IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 125 of 2007. Judgment reserved on:3.6.2008. Date of decision:4th July, 2008. Pritam Chand .. ..Appellant Versus State of H.P. .. ..Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? yes For the appellant: Mr.Rakesh Jaswal, Advocate. For the respondent: Mr.Vivek Thakur, Addl.A.G. _____________________________________________________ Deepak Gupta, J. The present appeal under Section 374 of the Code of Criminal Procedure has been filed by the appellant-accused (hereinafter referred to as the accused) against the judgment dated 13.3.2007 passed by the learned Additional Sessions Judge (Fast Track Court), Kangra at Dharamshala, whereby the accused has been convicted of having committed offences punishable under Sections 376, 452, 506 and 323 IPC and has been sentenced to undergo rigorous imprisonment for 7 years and pay fine of Rs.10,000/- for the offence punishable under Section 376 IPC, simple imprisonment for 2 years and fine of Rs.2000/- for the offence punishable under Section 452 IPC, to undergo simple imprisonment for six months and fine of Rs.500/- in respect of the offence punishable under Section 323 IPC and simple imprisonment …2… for 2 years and fine of Rs.2000/- in respect of the offence punishable under Section 506 IPC. Briefly stated, the facts of the case are that the prosecutrix made a complaint to the police and her statement (Ext.PW-3/A) under Section 154 Cr.P.C. was recorded by the police on 18.5.2004 at about 11.15 p.m. In this statement the prosecutrix stated that she is a student of class 7 in Government High School Barwala. After the school closed at 2.30 p.m. the prosecutrix came home. At that time her parents and brother were working in the fields. She changed her clothes and ate food. Thereafter, she did her home work and was repairing her school clothes when the accused Prito @ Pritam Chand came there. She states that he (Pritam Chand) runs a tea shop in their village. After Pritam Chand entered the room he shut the door. The prosecutrix tried to run out but Pritam Chand stopped her. He stuffed the dupatta of the prosecutrix in her mouth and picked her up and took her into the kitchen. He then took off her clothes and then committed rape on her. In the meantime her brother Andresh came to the house. He shouted for the prosecutrix but since her mouth had been gagged she could not answer. On hearing the shouts the accused quickly put on his pants. In the mean time, her brother also reached the kitchen. Her brother asked the accused what he was doing. The accused then threatened the prosecutrix and her brother that he would kill them and while threatening them he …3… ran away. Then her brother helped her to wear her clothes. She was bleeding. Then her parents were called from the field and they were told about the whole incident. Pradhan Pratap Chand was called and told about the incident. On the basis of the statement of the prosecutrix the FIR (Ext.PW-10/A) was recorded and investigation was conducted. Prosecutrix was got examined by the Doctor on the next date. After examination by the Doctor the prosecutrix was referred to the Gynecologist. Vaginal swab was taken and vaginal smears were prepared by the Doctor. The Doctor observed that possibility of sexual assault cannot be ruled out. The prosecution was also examined by a Radiologist for assessing her age. According to the report of the Radiologist the age of the prosecutrix was 12-13 years. After the report of the forensic laboratory was received and investigation was completed, the challan was filed against the accused. The accused was charged with committing the offences aforesaid. He pleaded not guilty and claimed trial. Evidence was led and the accused has been found guilty and sentenced as detailed hereinabove. I have heard Sh.Rakesh Jaswal, learned counsel for the appellant and Sh.Vivek Thakur, learned Additional Advocate General on behalf of the State. Shri Jaswal urged that the judgment of the learned Sessions Judge is totally against the facts …4… proved on record. According to him there is no evidence of rape. He alleges that no semen has been found on the swab. He contends that therefore the finding that the semen was found on the slides shows that the slides have been tampered with. He also urges that from the evidence on record it is apparent that no seals were put on the vaginal swab/slides when they were sent to the Forensic Laboratory. Sh.Jaswal has also pointed out various contradictions in the prosecution evidence and the inconsistencies therein and urges that the conviction of the appellant being illegal should be set- aside. Shri Rakesh Jaswal has relied upon the following observations of the Apex Court in Bibhishan vs. State of Maharashtra, 2008 Cr.L.J. 721: “6. We have gone through the judgment of both the Courts below and also perused, the necessary record. As per the evidence of the doctor, there was no injury on the body of the prosecutrix Anita. There was no sign of semen on the private part of the body. Neither her clothes were torn nor there was any presence of hair of the accused on the private part of the prosecutrix. The doctor after examining the prosecutrix deposed that the girl was habituated to sexual intercourse. In view of this evidence, we are of the opinion that the High Court as well as the trial Court has not correctly appreciated the evidence and has wrongly convicted the accused- appellant. The accused who has been charged under Section 376 read with Section 511, IPC is entitled to benefit of doubt.” He has also relied upon the judgment of the Apex Court in Sadashiv Ramrao Hadbe vs. State of Maharashtra and another, (2006) 10 SCC 92, wherein the Apex Court held as follows: “9. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version …5… given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen.” On the other hand Shri Vivek Thakur, learned Additional Advocate General has supported the judgment of the learned Sessions Judge and has further contended that the statement of the prosecutrix inspires confidence and therefore her statement should be accepted and conviction can be based only on the said statement. The prosecutrix was examined as PW-3. She virtually repeated what she had stated in her statement under Section 154 Cr.P.C. However, there are certain discrepancies in the statement as pointed out by learned counsel for the appellant. In her statement in Court she says that accused came to her house and asked for water. He then closed the door from inside (the learned trial Judge has wrongly translated “darwaja band kar diya” as “bolted the door”). Thereafter, according to her the accused undressed her, then he took off his own clothes and committed rape with her. When she tried to raise an alarm he stuffed her dupatta in her mouth. According to her it took five minutes to complete the sexual act. At that moment her brother Andresh came to the scene of the occurrence. Then the accused wore his pants and ran away. She states that some discharge fell on her salwar. According to her there was no bleeding. …6… Then her neighbour Biasan came to the spot. Thereafter, her brother called her parents. She has identified her clothes. She has been confronted with her statement Ext.PW-3/A recorded under Section 154 Cr.P.C. wherein it is recorded that she had told the police that she washed her salwar. She denied making such a statement. She was also confronted with her statement where it is not recorded that she informed the police about the fact that the accused had asked her for water. Similarly, there is no mention of Biasa Devi in the statement Ext.PW-3/A. A suggestion has been put to her that her father had taken loan from the accused and as such the relations between the two sides are inimical. PW-4 Andresh Kumar, is the brother of the prosecutrix. According to him, he alongwith his parents was working in the fields on 18th May, 2004. His parents asked him to get tea from the house. When he reached the house he found that the door was closed but not bolted. He entered the room and then went to the kitchen. He saw his sister lying on the floor and accused was committing sexual act with her. On seeing the witness the accused pulled up his pants and ran away. According to the witness, he did not ask the accused what he was doing. His explanation is that he was frightened. He took out the dupatta from the mouth of his sister. Then the prosecutrix told him that accused had committed rape on her. He then raised an …7… alarm and the neighbours came to the spot. Thereafter, the parents also came. PW-6 Maya Devi is the mother of the prosecutrix. She states that she, her husband and their son (PW-4) were working in the fields. They sent their son to bring tea from the house. After some time he returned without tea and was crying. He informed his parents that the prosecutrix had been raped by the accused. Thereafter, they took some time to tether the oxen in the cattle shed. On reaching home she asked the victim what had happened. The prosecutrix informed her that she had been raped in the kitchen by the accused. She further states that salwar of the prosecutrix was wet but there was no bleeding. She denied making any statement to the police. She also denied the suggestion that a false case had been cooked up. PW-5, Anita Devi was a ward member of Barwala Gram Panchayat. She is a neighbour of the prosecutrix. According to her on 18.5.2004 when she returned to her house at about 3-4 p.m. she found the prosecutrix and her brother crying in front of the gate of their house. PW-4 informed her that his sister had been raped by Pritam accused. She further states that accused at that time was going towards his shop. She then went to the house of the victim and was informed that the accused had taken the prosecutrix to the kitchen and raped her there. In the meantime, the parents of the victim also returned from the fields and then they went to the …8… Pradhan. She admits that she had not informed the police that the victim and her brother were weeping on the side of the road. She admitted the suggestion that the mother of the victim came after 1 ½ -2 hours. PW-7 Pratap Chand was the Up-Pradhan of the Gram Panchayat at the relevant time. According to him, Bishan Dass father of the prosecutrix alongwith others met him at about 7 p.m. on 18th May, 2004 and informed him that his daughter has been raped by the accused. They went to the house of Bishan Dass where a number of persons including PW-5 Anita were present. The prosecutrix informed the persons that she was raped by Pritam Chand. The witness then telephonically informed the police at Police Station, Kangra about the incident and the police came within 1- 1 ½ hours and carried out the investigation. PW-2 Dr.Pooja Malhotra carried out Radiological examination of the prosecutrix. According to her the age of the prosecutrix was 12 to 13 years. PW-14 Laxmi Chand has produced the birth certificate of the prosecutrix. He states that as per the school record the date of birth of the prosecutrix is 1.10.1990. To the similar effect is the statement of PW-15 Kusum Kumari Dhiman. This tallies with the findings of the Radiologist and it is apparent that the age of the prosecutrix was about 13 years at the time of the incident. …9… PW-16 is Dr.Sumanju Dhiman who medically examined the prosecutrix. She has stated that she examined the prosecutrix and found an abrasion on the right forearm. No other injuries were present. She has also proved the report of the Gynecologist Dr.Anupama Bais who had resigned from service. According to her no sign of injury was found on the private parts of the prosecutrix. The hymen was intact and there was no sign of injury, inflammation, bleeding edges or discharge. She further states that vaginal swab was prepared by Gynecologist which was handed over to the police. According to her, in the course of intercourse it is not always necessary that there must be some external injury to the vigina nor is it necessary that the hymen should be ruptured. In cross examination she denied the suggestion that in case of rape of minor girl there must be bleeding, laceration or bruises. According to her such injuries may or may not be there. PW-11 is the Investigating Officer. According to him he has recorded the statement of the prosecutrix and the witnesses as made by them PW-12 is Head Constable Suresh Kumar who states that on 19th May, 2004 SHO deposited two parcels sealed with seal impression-T alongwith sample seal with him. Thereafter, on 20th May, 2004 two other parcels bearing clothes of the victim were also deposited. Two other parcels containing the vaginal swabs and slides of the victim were also deposited. He makes no mention of …10… there being any seal on the parcels containing vaginal swabs and slides. There can be no manner of doubt that conviction in a rape case can be based on the statement of the prosecutrix alone. However, this can only be done if the statement of the prosecutrix inspires confidence and can be corroborated to some extent with the other attending circumstances. In the present case there are some glaring contradictions. In the statement of the prosecutrix initially recorded vide Ext.PW-3/A she had stated that there was bleeding from her private parts but this fact she denied in her statement in the Court. There is no injury on the private part of the prosecutrix. The only injury is on the right forearm. According to the prosecutrix when her brother came he first shouted for her and then came to the kitchen. The brother then asked the accused what he was doing. The brother does not state that he shouted for the prosecutrix. According to him he did not ask the accused what he was doing. His explanation is that he got scared. The age of the brother at the time when his statement was recorded was 20 years. Therefore, he would be about 18 years when the occurrence took place. It cannot be believed that a young man of 18 years would see his sister being raped and not even attempt to catch hold of the accused. Admittedly, there is only one door between the kitchen and the room. The only way for the accused to go out was from the kitchen through the door …11… leading to the room and then go outside. The brother was standing at this door. The accused could not have run away through this door if the brother had intervened. The brother should have at least struggled. The accused is aged about 54 years. It would be much easier for a young man of about 18 years to handle such an old person. There are other glaring inconsistencies in the case of the prosecution. Anita Devi PW-5 states that the brother and sister were crying outside the gate. However, neither the prosecutrix nor her brother have made any mention of Anita Devi in their statements. In the first statement Ext.PW-3/A there is no mention of any neighbour having come to the spot. However, in the statement made in Court, Pushpa Devi states that her neighbour Biasan Devi came. The brother only states that a neighbour came. Biasan Devi has not been examined and there is no explanation for her non-examination. The version of Anita Devi also does not appear to be correct. According to her when she came the prosecutrix and her brother were sitting outside the house and the accused was proceeding towards his shop. If the accused was still around the place of occurrence it would have been but natural for this witness and the brother of the prosecutrix to make an attempt to apprehend the accused. They could have at least raised an alarm and gathered other villagers at the spot. …12… The version of the mother is also not natural. She states that after her son informed her that the prosecutrix had been raped she took some time to tether the oxen and then came home. Admittedly her husband was there. Any mother on coming to know about a heinous crime of rape being committed on her minor daughter would leave everything and rush to the aid of her daughter. However, in this case the mother states that she took some time to tie her cattle. There is no explanation as to why this work could not have been done by her husband or her son. In fact according to PW-5 the mother come after 1 ½ - 2 hours. Another glaring hole in the prosecution case is that neither the Doctor nor the SHO nor PW-12 have stated that the packets containing the vaginal swab and slides were sealed. Whereas they have all talked about the other packets bearing some particular seals but in respect of the vaginal swab and slides it is clear that the same were not sealed. A perusal of Ext.PA which is the report of the Forensic Laboratory also does not show that these packets were sealed. There is another surprising aspect of the case. According to the forensic report Ext.PA the vaginal swab did not contain any blood or human semen. However, the vaginal slide of the prosecutrix is alleged to contain human semen. A slide is prepared from the Swab. If the slide contains human semen the swab should have also contained human semen. It is not possible …13… that the slide would contain semen when there is no semen on the swab. Coupled with the fact that the packets containing the swab and slides were not sealed the possibility of the same having been doctored cannot be ruled out. Keeping in view the entire facts and circumstances above, especially the contradictions in the statements of the prosecutrix and her brother, the unnatural behaviour of the brother and the mother, the medical evidence which shows that there are no signs of struggle or injuries on the private part of the minor prosecutrix and last but not the least the fact that the vaginal swab contains no human semen, in my opinion it would be highly improper to convict the accused on the oral statement of the prosecutrix and her brother. The statements are not corroborated by the other evidence but in fact grave doubts regarding the correctness of the statements arise because of these inherent contradictions. The attending circumstances and other evidence in fact shatter the case of the prosecution. The learned trial Court has based the conviction only on the ground that there is no reason to disbelieve the child especially a girl of such tender age. This may be correct but in view of the various inconsistencies as pointed out above I am of the considered view that the prosecution has miserably failed to prove its case. The appeal is therefore allowed, the judgment and sentence imposed by the trial Court is set-aside and …14… the accused is directed to be released forthwith if not required in any other case. July 4, 2008. ( Deepak Gupta ) PV Judge