IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 686 of 1996. Decided on: 27.7.2010. ___________________________________________________________ State of H.P. … Appellant. Versus Sandeep Singh … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Rajinder Dogra, Addl. A.G. and Mr. Anil Jaswal, Dy.A.G. For the respondent : Mr. Ramakant Sharma, Advocate. ___________________________________________________________ R.B. Misra, J. (Oral). The present criminal appeal has come up for consideration after leave to appeal has been granted, under Section 378 (3) Cr.P.C., in reference to the impugned judgment, dated 24.11.1995, passed by the learned Sessions Judge, Solan, Camp Court at Nalagarh, District Solan, H.P., in Sessions Trial No. 11-NL/7 of 1994, acquitting the respondent-accused for the alleged offence, under Section 376 IPC. 2. Prosecution case is that PW-1 Ram Parkash, resident of Beli Deol, Tehsil Nalagarh, lodged F.I.R. Ext. PA on March 20, 1994 at about 11.20 p.m. at Police Station, Nalagarh complaining that he has been deployed in the Himat Leather Factory at Ranguwal and on the said day, he was on duty upto 12.00 O’clock at night. However, at about 7.40 p.m., he received a telephonic 1 Whether reporters of the local papers may be allowed to see the judgment? 2 message from someone that his wife was involved in some quarrel and that he should come home immediately and was told by his son Hari Krishan and his wife PW-4 Amarjit Kaur that his sister PW-2 prosecutrix (name not given) at about 4.00 p.m. had gone to her field to throw cow dung where the accused committed sexual assault on her without her consent. On such report, PW-9 SI Hari Saran went to the spot and prepared site plan Ext. PG on 31.3.1994 and prosecutrix was medically examined by PW-6 Dr. Brind Kapil at Rural Hospital, Nalagarh. On medical examination, PW-6 found that the prosecutrix/victim was sexually assaulted within 48 hours of the medical examination, however, no external injury was found on the genitalia part, except there was an abrasion of 0.5 cm on the centre of the breasts in reddish blue colour. 3. PW-8 Shri Kewal Singh, Secretary, Gram Panchayat, Plassi has issued birth certificate, Ext. PF, according to which, prosecutrix/victim was born in the year 1964, whereas according to certificate Ext. PH, date of birth of the accused was 30.3.1977. 4. Prosecution in order to prove its case, examined as many as 11 witnesses, namely Ram Parkash (PW-1), Complainant Miss Kamlesh Kumari prosecutrix (PW-2), Mathura Devi (PW-3), Amarjit Kaur (PW-4), Miss Sunita Devi (PW-5), Dr. (Mrs.) Brind Kapil (PW-6), Dr. Arun Sharma (PW-7), Kewal Singh (PW-8), Hari Saran (PW-9), Om Kishan (PW-10) and Bachan Singh (PW-11). Whereas, the accused in his statement under Section 313 Cr.P.C. has denied the prosecution case. 5. PW-1 Shri Ram Parkash, the real brother of the victim, in support of prosecution case has stated that his wife, Smt. 3 Amarjit Kaur and his son Hari Kishan told that the prosecutrix/victim informed them that when she had gone to throw cow dung in the field, she was nabbed and sexually assaulted against her will by the accused. The villagers including Sita Ram came and PW-1 Ram Parkash proceeded to the Police Station for lodging F.I.R. In cross- examination, PW-1 Ram Parkash has stated that on receiving telephonic message at about 7.40 p.m., he walked on foot and none met PW-1 on the way. He reached his house after 1½ hours of the message and thereafter, he lodged F.I.R. with the police. PW-1 has stated in cross-examination that admittedly litigation is going on between PW-1 and Shri Jeet Ram, the father of the accused and at the time of commission of offence, wheat crops were grown in the field and from the field nothing was visible from the point where road passes through. 6. PW-2 Prosecutrix/victim has stated that she was sexually assaulted without her consent by the accused. PW-2 also stated that after she was sexually assaulted, her aunt Smt. Mathura Devi came after some time and observed that PW-2 had been sexually assaulted. The clothes Ext. P1, Ext. P2 and Ext. P3 i.e. shirt, salwar and Chunni; respectively of the victim, which the prosecutrix was wearing (at the time when rape was committed on her) were taken into possession. PW-2 has stated in cross- examination that after she was sexually assaulted, the whole day she had been lying there in the field and many people came there at the place of occurrence and father of the victim brought her from the place of occurrence. She also stated that accused was in the field far away from the place where PW-2 was throwing the cow dung and accused came running towards her and after coming the 4 accused sexually assaulted PW-2 and during sexual assault, she did not try to escape herself and after sexual assault, PW-2 went to Smt. Nikko at Bagh Bania and sat in the house of that lady and also apprised her that she had been raped by the accused. PW-2 came with Smt. Nikko to the Police Station and both of them remained in the Police Station throughout the night and on the next day in the morning, both came back. PW-2 has also stated that accused is in her relation and is related as nephew. One Kalyan Singh, Patwari had also come to the spot when crime was committed. PW-2 has admitted in cross-examination that there exist enmity between the accused and her brother Bhagat Ram. She also admitted that the glass bangles which she was wearing had not broken on that day. PW-2 has further stated in cross-examination that sexual assault was made by the accused with her consent. 7. PW-3 Smt. Mathura Devi, the aunt of PW-2 prosecutrix/victim who had come on the spot, however, has said nothing about the sexual assault on PW-2 (victim/prosecurtix). PW- 3 has stated that accused is her nephew and the accused and PW- 1 were not having good relation and they are inimical, whereas, PW-3 is having good relations with the brother of the victim. From the testimony of PW-3, it appears that she was not on the spot, as such, the testimony of PW-2 prosecutrix/victim cannot be relied upon. 8. PW-4 Amarjit Kaur, the wife of PW-1 Ram Parkash, the brother of PW-2 victim/prosecutrix has stated that victim/prosecutrix is her ‘Nanad’ and according to PW-4, victim is slow in her intellect and wisdom and is also handicapped physically. Victim is incapacitated mentally and physically. PW-4 5 has further stated that when she was returning home from the market on 20.3.1994 between 4.00 to 5.00 p.m., she met her daughter Sunita, who told PW-4 that prosecutrix/victim was weeping and that accused had committed rape on her. Rather, PW-4 has stated that the accused had sexually assaulted her. PW-4 had summoned the accused, but he refused to admit the crime. The elder brother of the accused came thereafter and felt sorry for the act of the accused. PW-4 has also admitted in cross- examination that complainant’s family is having strained relations with the family of the accused. From the testimony of PW-4 also nothing is derived that PW-3, the aunt of the victim, namely Smt. Mathura Devi had seen the occurrence and on asking by PW-4, the victim/prosecutrix had denied about sexual assault having been made on her by the accused. From the testimony of PW-4, it is clear that in consonance to the statement of PW-1, PW-2 and PW- 3, undisputably, there is enmity in the family of complainant and accused. 9. PW-5 Sunita Devi, the niece of the victim has stated that victim is of simpleton, having less intellect and deficient in wisdom. However, when victim had gone to throw the cow dung in the field, PW-5 found her weeping. On questioning, the victim, told that accused had sexually assaulted her and when the mother of PW-5 returned from Bagh Bania, PW-5 narrated entire story to her, when accused was summoned and message was given to the father of PW-5. PW-5 has also stated that accused and her father have developed some strained relations. 10. PW-7 Dr. Arun Sharma, PW-8 Kewal Singh, PW-9 S.I. Hari Saran, PW-10 HC Om Kishan and PW-11 Bachan Singh 6 are of no much help to prosecution. On analysis of the prosecution witnesses and also material on record, we find that the testimony of victim/prosecutrix that she is of less intellect and wisdom and is also incapacitated mentally has given different version. She stated that at the time of sexual assault, PW-3 had come to the spot and had seen the occurrence, whereas PW-3 has denied such aspect. PW-4 was not told clearly by the victim that she had been sexually assaulted. PW-1 has made complaint on the basis of hear-say. Undisputably, the sexual assault was made on the victim. However, on her old version, many people came to the field and after sexual assault, whole day, she was lying in the field and she went from that place to the house of Smt. Nikko, where she told to Smt. Nikko about said incident. However, victim herself and Smt. Nikko stayed for the whole night in the Police Station and undisputably, the family of accused and nephew were not having good relation. Both the families were inimical to each other. Undisputably, the victim was major and nothing could be derived from her statement and on her old testimony, she had not made hue and cry when she was sexually assaulted as such it cannot be said that she was not a consenting party. 11. In the peculiar facts and circumstances that the accused was also related to the victim, therefore, it cannot be said that by mutual consent the accused could have sexually assaulted the victim. In these circumstances, the learned Sessions Court has rightly concluded that the prosecution has failed to bring home the guilt to the accused and has also failed to prove the prosecution case beyond any reasonable doubt. There is no scope for 7 interference with the judgment of the trial Court. Accordingly, the appeal being without merit fails and is dismissed. (R.B. Misra) Judge. (V.K. Sharma) Judge. July 27, 2010. (cr)