IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 110 of 1996 Reserved on: March 4, 2010 Date of Decision : March 16, 2010 State of H.P. …Appellant. Versus: Dalip Singh & Anr. …Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Vivek Thakur, Addl. A.G. with Mr. R. M. Bisht, Dy. A. G. For the respondents : Mr. Ashwani Sharma, Advocate Sanjay Karol, J. The present appeal filed under Section 378 of the Code of Criminal Procedure is directed against the judgment of acquittal dated 28.10.1994 passed by the learned Judicial Magistrate Ist Class, Court No.1, Mandi, H.P. in Cr. Case No. 67- II of 1994, under Sections 377/506 read with Section 34 IPC. It is the case of the prosecution that the complainant (PW-1) was working as a Cook in a Drilling Company which had a Camp in village Khaeod. The accused 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 persons, namely, Dalip Singh and Rajinder Singh were also posted there. On 25.1.1994 at about 9.30 p.m., PW-1 was called by the accused persons to their tent and was asked to sleep with them. On his refusal, he was forcibly covered with a blanket. Thereafter, both the accused persons forcibly had carnal intercourse against the order of nature with him. An attempt on the part of PW-1 to raise an alarm was thwarted by the accused by threatening him of dire consequences and also gagging his mouth. The act was performed by both the accused persons. Accused Dalip Singh caught hold of PW-1 and again committed carnal intercourse. Thereafter PW-1 went to another tent but due to severe pain could not sleep during the night. Since he was bleeding he threw away his soiled underwear and wiped himself with a piece of cloth which also got stained with the blood. In the morning, he went to Gohar and narrated the whole incident to his brother, who advised him to lodge a report at the police station. Accordingly, F.I.R. (Ext.PW-1/A), dated 26.1.1994 under Sections 477, 506 read with Section 34 IPC was lodged at the Police Station, Gohar. On 26.1.1994 at about 3.00 p.m., the accused as also the complainant were got medically examined from Dr. Surender Singh (PW-5), Medical Officer, Zonal Hospital, Mandi. The police took on record the medico legal certificates of accused Rajinder Singh (Ext.PW-5/B), accused Dalip Singh (Ext.PW-5/A) and the complainant (Ext.PW-5/C). The pant of the complainant (Ext.P-1) was taken into possession vide memo Ext.PW-1/C; the underwear of accused Dalip Singh (Ext.P-3) was 3 taken into possession vide memo Ext.PW-2/A; the pajama of the accused Rajinder Singh was taken into possession vide memo Ext.PW-2/B and the piece of cloth identified by the complainant was taken into possession vide memo Ext.PW-1/D. The articles were sent for chemical analysis to the Forensic Science Laboratory, Shimla and the opinion (Ext.PX) was also taken on record by the police. With the completion of the investigation, the challan was presented in the Court for trial and both the accused persons were charged for an offence punishable under Section 377 read with Section 34 of the Indian Penal Code for having committed carnal intercourse against the order of nature with the complainant as also the offence punishable under Section 506 read with Section 34 IPC, for having threatened the complainant with dire consequences. The accused persons did not plead guilty and claimed trial. To prove its case the prosecution examined six witnesses and the statements of the accused under Section 313 Cr.PC were also recorded. The Court below acquitted the accused of the charged offences. The Apex Court in Gowrishankara Swamigalu vs. State of Karnataka & Anr. (2008) 14 SCC 411, while dealing with the case of an offence of the kind in issue has reiterated the parameters laid down for reversing a judgment of acquittal. It is open for the High Court to re-appreciate the materials brought on record by the parties. It is also a settled principle of law that 4 where two views are possible, the High Court would not ordinarily interfere with the judgment of acquittal. The order of acquittal would not be interfered with by an Appellate Court, where the judgment of the trial Court is based on evidence and the view taken is reasonable and plausible. The judgment is not to be reversed merely because a different view is possible. The fact that PW-1 was subjected to carnal intercourse cannot be disputed. Doctor PW-5 has proved the medico legal certificate (Ext.PW-5/C) and has opined that the injury was consistent with the entry of the penis and some assault has been done. The alleged offence is stated to have taken place on 25.1.1994 at about 9.30 p.m. The Doctor examined the complainant on 27.1.1994 and opined that the duration of the injury was within three days. The relevant portion of the Doctor’s statement is reproduced as under:- “On examination, there was no external injury found on his person. Examination of the part (anus) was painful and there was strong contraction of buttock muscles and anal splinter. Person was not co-operative also. On inspection there was laceration of rectal mucosa at 6.0’ clock position which was broad at base and extended into the rectal mucosa. Size was 1.5 cm. at base x length 3 cm. Rectal mucosa was injected (red). No secretions and pubic hair present on part and clothes. Have taken bath, have thrown away the under clothes which he was wearing at the time of assault. In my opinion, the injury was consistent with the entry of the penis and some assault has been done.” 5 Taking into account the opinion of the Doctor, the offence could have been committed atleast one day prior to the date of alleged occurrence of the crime. In this background, the deposition of the complainant needs to be examined. As per the version of PW-1, on 25.1.1994 at about 9.30 p.m., the accused had called him in the tent. He went there thinking that some work was required to be done by him. Accused Dalip Singh asked him to sleep on a cot to which he refused. Thereafter, the said accused covered his face with a blanket and after opening his pant and underwear committed carnal intercourse against the order of nature with him. Co-accused Rajinder Singh also performed the said act. Even though he tried to get up but was not allowed to do so. Blood started oozing out of his anus. Accused Dalip Singh threatened to kill him with a knife if an alarm was raised. When he came out, accused Dalip Singh caught hold of him and after taking him back into the tent again committed the said act. Thereafter he came to another tent where due to severe pain he could not sleep during the night. Since his underwear was soaked with blood he threw away the same on the side. He wiped himself with the piece of cloth which also got stained with blood. The same was also thrown away by him on one side. In the morning, he visited his brother Hem Raj at Gohar and disclosed everything to him. He was advised to visit the Police Station and lodge a report which he immediately did. 6 In our considered view, in Court the complainant has not only improved upon but also given a version which is different from the initial version given to the police at the time of getting the FIR registered. In the FIR the complainant got recorded that both the accused persons pounced upon him and gagged him. Thereafter, both of them committed sodomy turn by turn after removing his pant and threatened him with dire consequences if an alarm was raised. He is silent about the threat given by accused Dalip Singh of being killed by a knife. In the said statement, the complainant no where states that the accused Dalip Singh had asked him to sleep on the cot to which he had refused and his face was covered by the said accused with the help of a blanket. The complainant also does not mention the fact of being dragged into the tent by accused Dalip Singh and again performing the act of sodomy upon him. Importantly, his statement is conspicuously silent about the fact that his anus had started bleeding in the tent where the alleged crime was committed and that after going to another tent he had thrown away his blood soaked underwear as also a piece of cloth with which he had wiped himself. As per the report of the Chemical Analyst (Ext.PX), the underwear of Dalip Singh did not contain any marks of semen or blood. The pajama of accused Rajinder Singh and the pant of complainant contained only marks of human semen and not blood marks. The piece of cloth did contain marks of blood but however no marks of semen were found on the same. 7 From the opinion of the Experts, it cannot be clearly established that the complainant had been subjected to carnal intercourse only by the accused persons. Importantly, the doctor did not find any marks of injury on the other parts of the body of the complainant. There is no other witness to the occurrence of the crime. According to PW-1, there were about 150 persons working in the Camp and all of them were living in the tents. In all 7 to 8 tents had been installed at a distance of about 2 to 3 feet from each other. Each tent had 4 cots and every cot was occupied by two persons. The distance in between the cots was just about 2 feet. Importantly, PW-1 admits that besides the accused, five more persons had slept in the tent. He admits that when the blanket was thrown on him some scuffle had taken place. He has admitted that in the Camp dinner to the employees is served at about 9.00 p.m. The alleged offence is stated to have taken place at about 9.30 p.m. when the occupants must not have settled down in the bed or were fast asleep. Importantly, the alleged offence had not taken place in the middle of the night at a lonely place. PW-1 admits that no one in the tent had woken up. This renders his version to be totally unbelievable. Accused Dalip Singh is alleged to have committed the crime twice. There must have been some movement or noise attracting attention of other occupants of the tent. It is not the case of the complainant that accused Dalip Singh was actually possessing a knife in his hand and that the 8 act was performed under the threat of life. The threats were also not alleged to have been meted out by either whispering or signaling. Further, it is the case of the complainant himself that after the accused persons performed the alleged crime, he went to another tent and wiped himself there with a piece of cloth and threw away the same along with the blood soaked underwear. The incident was narrated to his brother only the next day in the morning and that too after travelling 2-3 kilometers. PW-1 has admitted that 150 employees were working in the Camp at that time. Surprisingly, he choose to remain silent and not disclose the incident to the Incharge of the Camp. No doubt, he has stated that after the commission of the offence he slept with another cook to whom he had disclosed the said incident but surprisingly does not remember their names. Even this version of his does not find mention in the FIR. Why the prosecution has not examined him has not been explained either. Importantly, the police has not examined any persons residing at the Camp for reasons best known to them. They would have definitely thrown some light on the occurrence of the alleged incident. Importantly, the underwear of the complainant which is stated to be soaked with blood was not recovered by the police. The piece of cloth on which the human blood was found cannot be linked to either the accused persons 9 or the complainant as their blood sampling was not carried out by the police. With regard to the recovery of the articles i.e. clothes of the accused and the complainant again there is contradiction. According to S.H.O. Shri Kuldeep (PW-4), the same was taken into possession on 26.1.1994 but however, as per the version of PW-2, the same was taken into possession on 27.1.1994 and that too in the police station. There is yet another aspect of the matter. According to the complainant there was no light in the tent at the time of commission of the crime. If it were so, then how could he identify the accused persons. It is not the case of the complainant that the accused had disclosed their names to him. Admittedly five more persons were in the tent at that time. Their probability of not having been involved in the alleged crime cannot be ruled out at all. Further accused was working as a cook. It was not part of his duty to either attend to the employees in the tent or serve them food there. At the first place there was no need for him to have gone inside the tent. The complainant was not directly reporting to the accused nor was he under their supervision. In fact, it is his specific case that accused Dalip Singh had asked him to sleep on the cot and on refusal had gagged his mouth and covered him with a blanket. Then why was accused Rajinder Singh named in the F.I.R. The statement of the complainant does not inspire confidence. There are material improvements and 10 improbabilities, rendering the same to be doubtful. The place of alleged crime was not lonely. The complainant was familiar with the persons residing at the Camp. The occurrence, in the face of the evidence on record cannot be said to be probable. We may further add that the accused persons had taken a defence that they had been falsely implicated for the reasons that they had complained against the accused for having provided uncooked food. In support of their defence they have examined one Sushil Sharma (DW-1), Incharge of the Camp at the relevant time. According to him, on 25.1.1994 a quarrel over the preparation of pranthas had taken place, when accused Dalip Singh had slapped the complainant. The defence taken by the accused thus cannot be said to be improbable. He admitted that this fact had also been disclosed to the police at the time of investigation. Why the police did not record his statement has not been explained. For the aforesaid reasons, we find no merit in the present appeal. The learned trial Court has rightly acquitted the accused persons. The appeal is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. March 16, 2010. (rana)