HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No.: 279 of 2003 Decided on: 22.10.2010 Bishamber Dass ……… Appellant. Versus State of H.P. ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.Vinay Thakur, Advocate. For the respondent: Mr.J.S. Guleria, Assistant Advocate General. V.K. Ahuja, J.(Oral): This is an appeal filed by the appellant under Section 374 Cr.P.C. against the judgment dated 8.6.2003 passed by the learned Additional Sessions Judge(I), Kangra at Dharamshala, vide which, the appellant was held guilty under Section 376 read with Section 511 of the IPC and was convicted and sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.10,000/-. In default of payment of fine, the appellant was to undergo simple imprisonment for a further period of one year. 2. Briefly stated, the facts of the case are that on 17.9.1999, a report was lodged with the police by one Kanta Devi, in which she alleged that her husband was away to Jammu in connection with work of Biroja. On 5.9.1999, at about 4.00 p.m., when she reached her house, she was informed by one boy named Ashwani that her daughter Sunita has been given beatings by the appellant. He also informed her that Sunita’s Salwar was torn by the appellant and she had been ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - taken towards bushes. She ran to the place where the children were playing and the appellant was found present in the influence of liquor. She enquired about her daughter Sunita, on which the appellant broke the liquor bottle and attempted to give her beating. Because of fear, she ran away towards the house of Prem Chand, where his wife Jai Devi told her that in case she and Jogindera Devi and one other lady resident of Laked village would have not rescued her daughter from the appellant, the appellant would have committed ‘bura kaam’ with her. She was also informed that the Salwar of Sunita was torn. Thereafter, Sunita was brought by her son Sanjeev Kumar, aged about 7 years, who has having torn Salwar in her hand and was under a fear. When she enquired from Sunita, she told that the appellant had torn her Salwar and had opened the zip of his pants and was trying to reach over her, when Jai Dei and two other ladies rescued her. Thereafter, she alongwith Ward Panch Prem Chand took the appellant to the house of the Pradhan Mehar Chand, where the appellant gave in writing that he had committed the offence. She further alleged that she could not lodge the report earlier since she had written a letter to her husband at Jammu but she did not receive any reply nor her husband came and, therefore, she lodged the report with the police. It was also alleged in the report that her daughter Sunita was playing with her son Sanjeev Kumar, aged 7 years, and one Ashwani aged about 10 years. 3. On this report, a case was registered. The prosecutrix was medically examined and after investigation, the challan was filed before the court of the learned - 3 - Additional Chief Judicial Magistrate, Dehra, District Kangra, H.P., who committed the case to the court of the learned Sessions Judge, from where it was assigned to the learned trial Court, who tried the appellant leading to his conviction and sentence as detailed above. 4. I have heard Mr.Vinay Thakur, learned counsel for the appellant and Mr.J.S. Guleria, learned Assistant Advocate General, for the respondent, and have gone through the record of the case. 5. The submissions made by the learned counsel for the appellant were that the occurrence had taken place on 5.9.1999 and the report was lodged with the police on 17.9.1999 and there was no reasonable explanation given by the complainant for the delay in lodging the report. 6. Coming to the evidence, the complainant Kanta Devi had alleged in the report lodged by her with the police that her husband was away to Jammu and she had written a letter to him but neither he replied nor he came and thereafter she lodged the report herself. The complainant Kanta Devi appeared in the witness box as PW-2 and stated that she sent a report to the SDM as she did not go to the Police Station. This suggests that she had reported the matter to the SDM but the Investigating Officer PW-13 Nathu Ram, Inspector, had stated that the report was lodged by Smt.Kanta Devi, vide Ext.PW-2/A on 17.9.1999. He admitted that he did not receive any letter from the complainant through the office of the SDM about this incident in between 5.9.1999 to 17.9.1999. This clearly shows that the complainant alleged that she did not lodge the report since - 4 - her husband was away to Jammu but when she appeared in the witness box, she stated that she had sent a report to the SDM, but the said report was never produced nor the Investigating Officer admitted having received any complaint from the office of the SDM. The Investigating Officer has stated that the complaint was lodged by the complainant Kanta Devi herself and the case was registered on the basis of her statement. The complainant Kanta Devi as PW-2 admitted in her cross examination that in case of illness or urgency, she can go to Jawalaji and Nadaun. She also stated that the people of her village had been meeting her daily. 7. This discussion leads to the inference that some explanation was given by he complainant in the report lodged with the police and thereafter, another explanation was given in her statement made in the Court. The reports in such cases of indecent assault or attempt to rape or rape are not lodged with promptitude and at times, a woman has to take consent of her husband before lodging the report. Therefore, the delay of only 12 days does not prove to be fatal for the prosecution case, but it sounds a note of caution for the court to appreciate the evidence with more care to avoid the possibility of false implication. 8. Coming to the evidence, PW-2 Smt.Kanta Devi, the mother of the prosecutrix and complainant, was not an eye witness. She learnt about the occurrence from one Ashwani that Sunita had been taken by the accused and he has killed her. He did not state that an attempt had been made of rape upon her or some indecent assault was committed by the appellant and rather he stated that the girl has been killed - 5 - by the appellant. In her statement also, the complainant Smt.Kanta Devi stated that she went to the house of Panch, where wife of the Panch told her that she saved the girl otherwise she would have been killed by the accused. In her report lodged with the police Ext.PW-2/A, she had alleged that the wife of the Panch and two other ladies had rescued the prosecutrix from the clutches of the appellant. Therefore, whatever version of the complainant was there, she either had learnt it from three ladies, two of whom were named in the FIR and the identity of the third was also established being from a particular village, or from a boy named Ashwani. 9. However, out of the three women named in the FIR, two were examined by the prosecution, namely, PW-3 Jigindera Devi and PW-4 Jai Devi, wife of the Ward Panch. The third woman, namely, Amar Devi, was given up by the prosecution having been won over by the accused. The complainant derived her knowledge from these three women or through the wife of the Panch, namely, PW-4 Jai Devi, but neither of them has supported the statement of the complainant and rather they had stated that they did not see anything. PW-3 Jogindera Devi rather has even stated that she does not know Sunita and nothing happened in her presence. Therefore, the complainant’s version has not been corroborated by these three women, two of whom were examined and the third was not examined. Thus, this Court is left with the testimony of two minor children, namely, the prosecutrix Sunita Devi herself who has been examined as PW- 7, and one boy Ashwani examined as PW-6. - 6 - 10. As far as PW-7 Sunita Devi (prosecutrix) is concerned, the court found her a competent witness but the questions put to here were not recorded in her statement. However, the court was satisfied that she is intelligent and appears to have good understanding, but she was not administered oath and as such was examined without oath. She was examined on 27.12.2007 i.e. after more than two years and three months of the occurrence and it has to be seen as to whether she was able to recollect what had happened with her on that day. She admitted that she has come with her mother and denied the suggestion that her mother had told her to give the statement. She denied the suggestions put to her that the accused did not lift her or torn her Salwar. She stated in her examination-in-chief that the accused came, lifted her and took her into the bushes, torn her salwar and opened his fly. The other witness PW-6 is Ashwani Kumar, who was also examined after two years and three months of the occurrence. He is the Masi’s son of the prosecutrix. He gave a different version that the accused was carrying a bottle of liquor in his hand and asked him whether he was a boy or a girl and then asked Sunita whether she was a girl or a boy and then lifted her and took her into the bushes. Thereafter, he stated that the accused torn the clothes of Sunita and had also opened his fly. He stated that one lady came there and rescued Sunita but did not state that three ladies had come at that time or names of those ladies. He stated that thereafter Masi came to the spot. He admitted that he has come with his Masi. He also admitted that he obeys the command of his Masi and parents and is scared of - 7 - police. He also stated that whatever statement he has made today has been told by the police to him today. This witness was also examined without oath, though he was of the age of 11 years on the date of his examination. 11. After careful consideration of the statements of both these witnesses, I am satisfied that the guilt of the appellant cannot be said to have been established on the basis of the statements of these two witnesses, which cannot be relied upon solely to hold that the case of the prosecution was proved. 12. Apart from the above, the prosecution had also examined the Pradhan of the village, namely, PW-9 Mehar Chand, to whom the accused was taken alongwith the Ward Panch, but the said Panch was not examined who could corroborate that he also accompanied the appellant and the complainant to the house of the Pradhan or the accused made any extra judicial confession in his presence. Thus, the solitary statement of PW-9 Mehar Chand that he made an inquiry from the accused who firstly denied and when he asked the accused that in case he told the truth, he would pardon him, the accused confessed his guilt in writing which is Ext.PW-9/A. He admits that, at that time, many people had gathered there, meaning thereby that he was not a solitary witness to the extra judicial confession made by the accused, but there were others also and none of them was examined by the prosecution. In his cross examination, PW-9 Mehar Chand admitted that he knows that certain cases are not cognizable by the Panchayat. He admitted that 25-30 persons had gathered in his shop including the uncle of the girl, who thrashed the - 8 - accused. He admitted that portion B to B and A to A of writing Ext.PW-9/A was written by the accused after beatings were given to him. Therefore, the extra judicial confession, allegedly made by the accused, cannot be said to have been proved on the basis of the solitary statement of PW-9 Mehar Chand, which was also not made voluntarily but had been made after he was given beating. There was no occasion for the accused to repose confidence in the Pradhan or make an extra judicial confession in this regard or give any such writing and, therefore, this writing cannot be said to be sufficient to prove the guilt of the appellant. 13. A plea was taken by the appellant in his statement under Section 313 Cr.P.C. that the father of the prosecutrix had abducted a girl from Nahan about which they had deposed to the police and he also remained in jail. Therefore, he has been falsely implicated in the present case. The fact that the father of the prosecutrix remained in jail was suggested to PW-7 Sunita Devi (prosecutrix) but she denied her knowledge in this regard. PW-2 complainant Kanta Devi, mother of the prosecutrix, was not specifically suggested anything in this regard. However, PW-9 Mehar Chand, Pradhan, admitted that the father of the prosecutrix had undergone sentence but there was no suggestions that it was on the complaint of the appellant or for what reason. Therefore, the possibility of false implication cannot be ruled out, though no proper defence in this regard was taken by the accused by suggesting the facts to the prosecution witnesses, except as mentioned above. - 9 - 14. From the above discussion, I am of the opinion that the findings recorded by the learned trial Court holding the appellant guilty and convicting and sentencing him cannot be said to be correct. I accordingly hold that the prosecution had failed to prove its case beyond any reasonable doubt and the findings of the learned trial Court holding the appellant guilty and convicting and sentencing him are liable to be set aside, which are set aside by accepting the appeal filed by the appellant. The fine, if deposited by the appellant, shall be refunded to him after a period of three months or in case of an appeal, after decision thereof. The bail bonds furnished by the appellant stand discharged. Oct.22, 2010. (V.K. Ahuja), (TILAK) Judge