IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 624 of 2002 Reserved on: 4.5.2010 Date of decision: 07.05.2010 Ramesh Kumar ... Appellant Versus State of H.P. … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Vinay Thakur, Advocate. For the respondent: Mr. Vikas Rathour, Deputy Advocate General and 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 of the Court of learned Sessions Judge, Chamba, dated 28.9.2002, sentencing and convicting the appellant under Sections 376 and 506 I.P.C. as under:- 1. Under Section 376 I.P.C.: Seven years simple imprisonment and fine of Rupees ten thousand. In default of payment of fine amount, the convict shall further undergo simple imprisonment for one year. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2. Under Section 506 I.P.C.: Two years simple imprisonment and fine of Rs.5000/-. In default of payment of fine amount, the convict shall undergo simple imprisonment for six months. Briefly stated, the facts of the case are that a report was lodged with the police by Bimla Kumari accompanied by her uncle Roshan Singh. It was alleged by the prosecutrix that she has studied upto 10th class. In September, 2000, she had gone to collect wood in Nagni Jungle. She did not recollect the date. When she was collecting wood from the forest, the appellant forcibly committed rape with her by giving her a threat. It was also alleged therein that thereafter also whenever she had been going to the forest, the appellant had been committing this sexual intercourse with her and had been assuring that he will take to his house as his wife. Thus, it was alleged that the prosecutrix was raped from September, 2000 to April, 2001 and she became pregnant. When this fact became known to her mother, she gave her beatings and then she told the facts. A message was sent to the family of the accused who assured them to take her but nothing happened and thereafter, the complainant accompanied by her uncle Roshan Singh, lodged the report with the police. On this report, a case was registered and after investigation, the challan was filed by the Court of learned Chief Judicial Magistrate, Chamba, who committed the case to the Court of learned Sessions Judge, Chamab, who tried the respondent, leading to his conviction and sentence, as detailed above. 3 I have heard learned counsel for the parties and have gone through the record of the case. On appraisal of the record of the case, it is very much clear that the prosecutrix could not be examined in Court since she died during the pendency of the case and, therefore, there is no statement on record made by her. The learned trial Court had passed his findings relying upon the report lodged by the prosecutrix and had taken it as a dying declaration and accordingly, convicted the appellant on the basis of the said report. However, a perusal of the said report shows that it is a carbon copy of the report lodged by the prosecutrix and the original copy bearing her signatures was never proved in evidence during the trial of the case. The copy proved in evidence Ext. PH allegedly bears the signatures of the prosecutrix, but the original copy having signatures of prosecutrix was not proved during the trial of the case. A perusal of the statement of PW-7 Hoshiara Ram shows that he stated that the statement of his daughter Ext. PH was recorded and she signed it over portion A to A in his presence and he identified her signatures on Ext. PH. Before this could be taken as a dying declaration or relevant for basing conviction as against the appellant, the original report lodged by her should have been proved according to law. A perusal of FIR Ext. PH shows that it bears the signatures of the informant, but it is not the original copy bearing her signatures. Apart from the above, there is no evidence on record to show that the complainant had stated to any of the witnesses that she had been raped on which date and at which place by the 4 appellant. A perusal of statement of PW-7 Hoshiara Ram shows that it was disclosed to him by one Bhunjo, who came to his house that the accused had disclosed to her (Bhunjo Devi) that he had committed rape on his daughter Bimla Devi , due to which she (Bimla Devi) is having pregnancy of 6-7 months. He stated that his wife Kumdei and brother were also present at that time and his statement could have been relevant if this fact had been told to her by the prosecutrix herself and not by the accused. It is also clear that the prosecutrix was not an illiterate person, but she had studied upto 10th class as has come up in evidence. He further stated that on enquiry, his daughter Bimla Devi told him that accused Ramesh Kumar had committed rape upon her. He was confronted with his statement Ext. DA where it was not so recorded, meaning thereby that he had made an improvement in this regard. He was also confronted with his statement Ext. DA wherein he had not stated that he had sent Bhunjo Devi to the house of accused Ramesh Kumar who sought time for 3-4 days for reconsideration. He also stated that Desh Raj, Diwan Chand and Paras Ram had met with accused Ramesh Kumar, but it was not mentioned in his statement Ext. DA that they had met accused Ramesh Kumar in this regard. PW-1 Smt. Santi Devi has stated that she was asked by the father of the accused to go to the house of Hoshiara Ram and request that they should not go to the police and she only conveyed this message. She has also nowhere stated that the prosecutrix had told her that she had been raped by the accused. PW-2 Diwan Singh has also stated that he was called by Hoshiara Ram and others and they had sent the message that his son Ramesh Kumar had 5 committed sexual intercourse with Bimla Devi and she has become pregnant and she should be taken to their house. There is nothing in his statement also that this fact was told to him by the prosecutrix. Similarly, the testimony of PW-3 Paras Ram is only to this effect that he was told by the elder brother of Hoshiara Ram that they should go to the house of the father of the accused with the message that his son Ramesh Kumar has committed sexual act with Bimla Devi, due to which, she has become pregnant and they should settle, otherwise he would go to Court for redressal. None of the witnesses as mentioned above has stated that at any time the victim had herself told that she had been raped by the accused at any time and at which place and rather her statement shows that she had been having sexual intercourse with him often thereafter also whenever he went to jungle. The age of the prosecutrix as per deposition of PW-7 Hoshiara Ram was about 18 years. This clearly shows that she was above the age of 16 years and could have given her consent for sexual intercourse, if any. However, the fact that the prosecutrix was raped by the accused was not at all established from the evidence of other witnesses examined by the prosecutrix since the prosecutrix could not be examined. It is also in the evidence of PW-10 Shiv Karan, ASI, that he did not get the DNA test conducted since he did not receive any permission from the higher authority, which suggests that no attempt was made to conduct DNA test, which was relevant, but it was not conducted by the police. The learned counsel for the appellant had relied upon a decision in Sudhakar and another Vs. State of Maharashtra, (2000) 6 Supreme Court Cases 671, wherein it was observed that 6 dying declaration made by the deceased is admissible only to the extent of proving the cause or circumstances of the transaction which resulted in death of the deceased. Statement should have close nexus with the actual transaction. In that case, the statement of the victim was recorded by the police 11 days after the occurrence, in which she alleged that she had been raped by two of the accused and on that basis, FIR was registered and victim was medically examined. In her statement, the victim narrating the circumstances relating to her rape. She however committed suicide about 5½ months after the occurrence. It was held that the statement of deceased was not a dying declaration and not admissible in evidence. On appraisal of the above evidence led by the prosecution, it is clear that there was no legal evidence led as against the appellant to hold him guilty of the charge framed against him under Sections 376/506 I.P.C. and consequently, the conviction and sentence imposed by the learned trial Court is liable to be set aside. In view of the above discussion, the appeal filed by the appellant is accepted and the sentence imposed by the learned trial Court is set aside. Fine if realized, shall be refunded back to the appellant forthwith. The bail bonds furnished by the appellant shall stand discharged. ( V.K. Ahuja ), May 07, 2010 Judge (BSS) 7