IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 167 of 2001. Judgement reserved on: 20.6.2008. Date of decision: July 7, 2008. Mohan Singh …..Appellant. Vs. State of H.P. …. Rrespondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : M/s Dinesh Sharma & Y. Paul, Advocates. For the Respondent : Mr. A.K. Bansal, Additional Advocate General. Kuldip Singh, Judge. The appellant-accused has filed this appeal against his conviction and sentence recorded by the learned Additional Sessions Judge, Solan on 5.4.2001 in Sessions Trial No. 8-NL/7 of 1999, sentencing the appellant under Section 376 IPC for seven years simple imprisonment and fine of Rs.20,000/-, in default of payment of fine, further simple imprisonment for one year and for the offence under Section 511 IPC, three years simple imprisonment and fine of Rs.5,000/- and in default of payment of fine, further simple imprisonment for six months. Whether the reporters of the local papers may be allowed to see the Judgment? …2… 2. The prosecution case in brief is that prosecutrix accompanied by Pradhan Karanbir, Surmukh Singh, Kanta Member Panchayat and brother Hazara Singh lodged FIR Ex. PW 1/A on 2.1.1999 at about 10.30 p.m. alleging therein that she is living with her brother Hazara Singh, on 2.1.1999 she had gone to collect fodder and fuel from her fields outside the village situate at a distance of half kilometer, at about 5.00 p.m. Mohan Singh accused appeared there and forcibly lifted her to some distance, he removed her salwar and committed sexual intercourse with her, he had also given teeth bite on her cheeks. She attempted to raise cries but her mouth was gagged with her shawl. Accused left her after committing sexual intercourse she put on her salwar and came back to her home. She narrated the whole incident to her brother, who returned home after collecting fodder for the goats. He informed the villagers. The police came into action. The case was handed over for investigation to PW 11 Jeet Singh ASI. The prosecutrix was got medically examined on 2.1.1999, the doctor issued MLC Ex. PW 5/A of the prosecutrix. The spot was inspected and spot map Ex. PW 11/A was prepared, the shirt Ex. P 3 of the prosecutrix was taken into possession. The accused was arrested on the same night and he was also medically examined vide MLC Ex. PW 4/B. The statements of the witnesses were recorded. The report of Chemical Examiner Ex. PW 4/A was obtained. On completion of investigation, challan was presented in the court against the accused, who was charged for offence punishable under Section 376/ 511 IPC on 19.11.1999 to which he pleaded not guilty and claimed trial. The prosecution examined …3… eleven witnesses. The statement of the accused was recorded under Section 313 Cr.P.C. He denied the prosecution case. He has stated that there are two communities in the village, namely Rajputs and Sainis, due to long enmity between two communities, he has been falsely implicated in the case. The learned Additional Sessions Judge on conclusion of the trial convicted and sentenced the accused, as noticed above. 3. I have heard Mr. Dinesh Sharma, Advocate assisted by Mr. Y. Paul, Advocate learned counsel for the appellant and Mr. A.K. Bansal, learned Additional Advocate General for the State and gone through the record. It has been submitted on behalf of the appellant that appellant has been falsely implicated in the case. The appellant has been wrongly convicted under Section 376 and Section 511 IPC separately. The medical evidence has not supported the prosecution case. The statement of prosecutrix does not inspire confidence. There is no other evidence which supports the case of the prosecution case. The prosecution has miserably failed to prove the case against the accused. Mr. Dinesh Sharma, learned counsel for the appellant has submitted that in the facts and circumstances of the case the appellant is entitled to acquittal. The learned Additional Advocate General has supported the impugned judgement. 4. The rival contentions of the parties can be appreciated only after looking into the evidence. PW 1 M.P.Bam has stated that he was posted as S.H.O., Police Station, Nalagarh. On 2.1.1999 he recorded FIR Ex. PW 1/A of the prosecutrix and on completion of the investigation, he forwarded the challan to the court. In cross- …4… examination, he has denied that report was lodged by Surmukh Singh. The prosecutrix was sent by him for medical examination at about 10.45 p.m. Thereafter the investigation was conducted by Jeet Singh, ASI. PW 2 Babu Ram has stated that in the year 1999, he was posted at Police Station, Nalagarh. On 5.1.1999 he deposited sealed parcels of FIR No. 3/99 dated 2.1.1999 at F.S.L., Junga. 5. PW 3 Dev Dutt Patwari has stated that he prepared the site plan Ex. PW 3/A at the instance of Surmukh Singh and Chowki Incharge, Dhabota. He was declared hostile. PW 4 Dr. Sandip Narula has examined Mohan Singh accused and issued MLC Ex. PW 4/B and opined that person was fit to have sexual intercourse. In cross-examination, he has stated that as per complete medical examination report including Chemical Analyst report accused Mohan Singh has not committed any rape. PW 5 Dr. (Mrs.) Neenu Narula has stated that on 2.1.1999 at 11.55 p.m. she examined the prosecutrix, who was brought by the police with the alleged history of rape. Lady appeared to be of 65 years. She found bruise about 4 c.m. x 5 c.m. on the left cheek and small bruise (superficial) on right cheek of the victim, the clothes were intact without any sign of resistance. On examination of genitalia no sign of penetration appeared. On 22.2.1999 Chemical Analysis report Ex. PW 4/A was produced before her and thereafter she gave her final opinion. The vaginal swab of the prosecutrix had shown human blood but no seminal fluid was present. Pubic hair and clothes did not show seminal fluid or any kind of blood. There was no evidence of rape having been conducted. She issued MLC Ex. PW 5/A, which bears …5… her signatures. The bruises found on the cheeks of prosecutrix could not be caused by human teeth bite. The clothes of the prosecutrix were sealed by her and were handed over to police for chemical analysis. In cross examination, she has stated that according to complete medical report including chemical analysis report, the rape has not been committed on the prosecutrix. 6. PW 6 Karanbir Singh, President Gram Panchayat, has stated that at about 7.00 p.m. on 2.1.1999, he came to know through telephonic message of Surmukh Singh that there was some urgent work and he called him immediately. On this, he visited the house of Surmukh Singh, who told the witness that rape was committed on the prosecutrix. There was suspicion on accused Mohan Singh. Thereafter he alongwith Surmukh Singh, Kanta Devi, prosecutrix and Hazara Singh went to Police Station, Nalagarh for lodging the report. In cross-examination, he has stated that Surmukh Singh told the witness that he had suspicion upon accused. 7. PW 7 prosecutrix stated that she was residing in the house of her mother. She had gone in the field about two years ago for agriculture work. The accused lifted her and made her naked completely and committed forcible sexual intercourse with her. The accused kissed her on the cheeks and in the process gave teeth bites. She tried to raise alarm but her mouth was closed with clothes. The accused after committing sexual intercourse had gone to his house. She came to her residence and told the incident to Kanta Panch. She also disclosed the incident to her brother. Ex. PW 1/A bears her thumb mark. She was medically examined, her shirt …6… Ex. P 3 was taken into possession by the Investigating Officer. Salwar Ex. P 2 was also taken into possession by the Medical Officer. She identified Mohan Singh in the court. In cross-examination, she has stated that accused committed rape in the field. The incident took place between 4.00 and 5.00 p.m. She had fallen on the fence when she returned from the field and sustained injuries on her cheeks. The accused committed sexual intercourse with her for about two- three hours. The surface was stony where rape was committed. 8. PW 8 Smt. Kanta Devi has stated that she was Ward Panch of village Dhabota. On 2.1.1999 at about 6.00 p.m. Hazara Singh brother of prosecutrix informed her that rape was committed on the prosecutrix by Mohan Singh. The prosecutrix had also informed her that accused committed sexual intercourse with her forcibly. The shirt Ex. P 3 was given to Investigating Officer by the prosecutrix in her presence vide seizure memo Ex. PW 7/A. In cross examination, she has stated that a person can reach the Police Station within fifteen minutes from Dhabota. PW 9 Surmukh Singh has stated that on 2.1.1999 at about 6.30 p.m. Hazara Singh brother of the prosecutrix came to him and told that rape was committed by accused Mohan Singh upon his sister. Thereupon he alongwith prosecutrix, her brother Pradhan Karanbir, Kanta ward panch went to police station for lodging the FIR, which was lodged by the prosecutrix. 9. PW 10 Ranjit Singh has stated that he was posted as MHC, Police Station, Nalagarh. ASI Jeet Singh had deposited three parcels in the Police Station on 3.1.1999. On 5.1.1999, he sent three …7… parcels alongwith two packets to F.S.L, Junga through constable Babu Ram. PW 11 Jeet Singh ASI has stated that he was posted at Police Station, Nalagarh from 1998 to January 2000. On 2.1.1999, the prosecutrix came to Police Station for lodging FIR. SHO Mohinder Pratap had handed over the case to him for investigation. The prosecutrix was got medically examined in the night on 2.1.1999, he prepared spot map Ex. PW 11/A. The prosecutrix produced shirt Ex. P 3, which was taken into possession vide memo Ex. PW 7/A. The accused was arrested on the same night. He was also got medically examined. The accused was examined under Section 313 Cr.P.C. He denied the prosecution case and pleaded his innocence. 10. PW 7 prosecutrix has stated that she was raped on 2.1.1999 at about 4.00 or 5.00 p.m. by the accused in the field. She has also stated that the accused had given teeth bites on her cheeks. She has also stated that the surface where she was raped was stony and accused had sexual intercourse for about two-three hours. In her statement, she has stated that she tried to raise alarm but her mouth was closed with cloth by the accused. In FIR Ex. PW 1/A, she has stated that her mouth was closed with her shawl by the accused, no such shawl was recovered during investigation. The medical evidence has not supported the prosecutrix on the point of rape. The prosecutrix has stated that the brick-kiln was nearby. It is not believable that accused misbehaved or sexually assaulted the prosecutrix for about two-three hours but still during this period nobody noticed the occurrence. It is nobody’s case that field where prosecutrix was sexually assaulted was situated in a lonely deserted …8… place. No injury on the person of the prosecutrix was found in her medical except bruise about 4 c.m. x 5 c.m. on left cheek and small superficial bruises on right cheek. The prosecutrix had alleged that these injuries were caused by teeth bite when accused kissed her. This version of the prosecutrix has not been supported by her medical, rather prosecutrix herself has stated that while returning home she fell on the fence and sustained injuries on her cheeks. Thus the allegations of the prosecutrix that accused had given teeth bites on her cheeks were demolished by her own statement in the court as well as by her own medical. 11. PW 8 Smt. Kanta Devi has stated that it takes about fifteen minutes to reach the Police Station from Dhabota. The incident allegedly took place at about 4.00 or 5.00 p.m. on 2.1.1999, but the FIR was lodged at 10.30 p.m. on 2.1.1999. As per prosecution, there were many people who came to help the prosecutrix for lodging the FIR. In these circumstances, FIR was not lodged with promptitude which gives scope for deliberations. As per evidence, which has come on record, it is not a case of the type where sole testimony of the prosecutrix is sufficient to convict the accused. The testimony of the prosecutrix in the present case does not inspire confidence so as to convict the accused only on the basis of her testimony. In Aman Kumar and another vs. State of Haryana 2004 (4) SCC 379, the Hon’ble Supreme Court has held that there is no rule of law that testimony of the prosecutrix cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal than an injured witness. However, if the court of …9… facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration would suffice. In the present case it is not possible to accept the version of prosecutrix on its face value, therefore, what was required from the prosecution was some assurance, short of corroboration in support of the version of the prosecutrix, but the prosecution has not placed on record even such material by leading reliable evidence. The medicals of prosecutrix and accused have ruled out rape on prosecutrix, as alleged by her. 12. In addition to what has been discussed above, there is another aspect of the case. The accused was charged for offence punishable under Section 376/ 511 IPC which has been clearly mentioned in para-3 of the impugned judgement. The appellant has been convicted separately for offence under Sections 376 as well as 511 IPC. The offence punishable under Section 376 IPC is major in comparison to offence punishable under Section 376/ 511 IPC. The accused under sub-section (2) of Section 222 Cr. P.C. in a given situation can be convicted for minor offence. But accused charged with minor offence cannot be convicted for major offence. In Willie (William) Slaney vs. State of Madhya Pradesh AIR 1956 SC 116, while considering Sections 535 and 537 of old Cr.P.C. (which are equal to Sections 464 and 465 of new Cr.P.C.), the Hon’ble Supreme Court has held as follows:- “………..There may be cases where a trial which proceeds without any kind of charge at the outset can be said to be a trial wholly contrary to what is prescribed by the Code. …10… In such cases the trial would be illegal without the necessity of a positive finding of prejudice. By way of illustration the following classes of cases may be mentioned: (a) Where there is no charge at all as required by the Code from start to finish—from the Committing Magistrate’s court to the end of the Sessions Trial; the Code contemplates in section 226 the possibility of a committal without any charge and it is not impossible to conceive of an extreme case where the Sessions trial also proceeds without any formal charge which has to be in writing and read out and explained to the accused (section 210(2) and section 251(A) (4) and section 227). The Code requires that there should be a charge and it should be in writing. A deliberate breach of this basic requirement cannot be cured by the assertion that everything was orally explained to the accused and the assessors or jurors, and there was no possible or probable prejudice. (b) Where the conviction is for a totally different offence from the one charged and not covered by Section 236 and 237 of the Code. On a charge for a minor offence, there can be no conviction for a major offence, e.g., grievous hurt or rioting and murder. The omission to frame a separate and specific charge in such cases will be an incurable irregularity amounting to an illegality.” 13. In the present case, the charge was framed for offence punishable under Section 376/ 511 IPC which is nothing but attempt to commit rape. The accused having been charged for minor offence could not have been convicted for major offence of rape under Section 376 IPC. On this ground also, the conviction of accused under Section 376 IPC is not sustainable. As per prosecution story, the allegation against the accused is that he committed rape on the prosecutrix. The prosecution has not come …11… forward with the case of attempt to rape of the prosecutrix. The prosecution has miserably failed to prove the allegation of rape against the accused. The prosecution case with regard to attempt to commit rape on the prosecutrix is also not reliable. There is nothing on record to show that accused had attempted to rape the prosecutrix. The injuries on the cheeks of the prosecutrix were not connected with the teeth bite of the accused. The prosecutrix has not stated that the accused had torn her clothes or injured her in any other way for attempting to commit sexual intercourse with her. In Aman Kumar’s (supra), it has been further held that an attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part- execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In order to find an accused guilty of an attempt with intent to commit a rape, court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. In the present case, there is no reliable material on record that accused in …12… fact laid hold the prosecutrix, he desired as well as intended to gratify his passions upon her person notwithstanding any resistance on her part. Therefore, prosecution has failed to prove charge of attempt to rape also. From the material on record even offence under Section 354 IPC is not made out inasmuch as bruises on the cheeks of the prosecutrix, as per PW 5 are not possible due to human teeth bite. The prosecutrix in her statement has also admitted that while returning home, she fell on the fence and got injuries on her cheeks. There is no other evidence on record so as to bring the case within the ambit of Section 354 IPC. Thus taken from any angle no case against the accused is made out either under Section 376 IPC or 376/511 IPC or 354 IPC. 14. The learned Additional Sessions Judge has not noticed various flaws and legal infirmities in the prosecution case against the accused. The impugned judgement of conviction and sentence is not sustainable. 15. No other point was urged. 16. As a result of the above discussion, the appeal is allowed, judgement of conviction and sentence dated 5.4.2001 in Sessions Trial No. 8-NL/7 of 1999 passed by learned Additional Sessions Judge, Solan under Section 376 IPC and Section 511 IPC is set-aside. The appellant-accused is acquitted of the charge. The amount of fine, if any, deposited by the appellant- accused be refunded to him. His bail bonds are discharged. July 7, 2008. ( Kuldip Singh ) (Hem) Judge.