IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 417 of 2000. Date of decision: 22.11.2010. State of H.P. ….. Appellant. Vs. Sewa Ram …. Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr R. K. Sharma, Senior Addl. Advocate General. For the respondent : Mr. Y.P.S. Dhaulta, Advocate Sanjay Karol J. (Oral. For an offence, which is alleged to have been committed on 13.6.1992, accused was put to trial. In terms of judgment dated 20.3.2000 passed by learned Sessions Judge, Chamba, in Sessions Trial No. 37 of 1997 titled as State of H.P. vs. Sewa Ram, accused stands acquitted of the charged offence. 2. It is the case of the prosecution that prosecutrix (PW-1) was working as a daily wage labourer in the I&PH Department of the Government of Himachal Pradesh. She was working at Karol Nag. She was residing at village Kuthar with her father Sh. Janak Raj (PW-7). On 13.6.1992 at about 12.30 PM, Sh. Whether the reporters of the local papers may be allowed to see the Judgment? 2 Lal Chand (PW-8) called the prosecutrix and Smt. Prem Kumari (PW-19) and by handing a currency note of `.100/- asked them to bring sweets (“Makhanas” and “Chhuyaras”) from the market as he was blessed with a son. Both of them went to purchase the same from the shop of Sh. Param Chand (PW-15) in village Tikkari. On their way back at about 1.30 PM when they reached a place known as Dumugoth accused suddenly emerged from the bushes and caught hold of the prosecutrix from the arms. PW-19 ran away from the spot. From the path, accused dragged the prosecutrix into the jungle. He gagged her mouth with a shawl and tied her hands with the help of the bushes. He tore her shirt, broke open the string of her salwar and then forcibly committed sexual intercourse against her wishes. Accused threatened the prosecutrix of not informing anyone about the incident or else she be killed. After prosecutrix was freed she come home but narrated the incident to her aunt Smt. Dunkhari (PW-2). Her father learnt about the same and report (Ext.PA) was lodged with the Police Station on 17.6.1992, on the basis of which F.I.R. No. 5/92 (Ext.PK) dated 17.6.1992 under Sections 376, 506 IPC was registered at Police Station, Pangi, by SI Inder Singh(PW-10). Police commenced investigation and prosecutrix was got medically examined at the Rural Hospital, Kullu on 18.6.1992 by Dr. Mohinder Singh (PW-4). X-ray 3 examination was also carried out to determine her bony age. Dr. V. K. Pathak (PW-21) after examining X-ray conducted by Sh. Raksh Pal (PW-6) opined the age of the prosecutrix to be between 14 to 16 years. MLC (Ext.PE) issued by PW-4 was taken by the police. Shawl (Ext.P-3) with which her mouth was gagged was seized vide memo Ext. PB and her clothes i.e. salwar (Ext.P- 4), shirt (Ext.P-5),were seized vide memo Ext. PG. Clothes were sent for Chemical examination to the FSL, Junga and report of the Chemical Examiner (Ext.PD) taken on record. In order to determine the age of the prosecutrix, certificate (Ext.PM) issued by Sh. Vijay Sain, Development Officer, Gram Panchayat, Luj was also taken by the police. As per the certificate, prosecutrix was born on 4.6.1976. During investigation accused absconded and declared as a Proclaimed Offender. With the completion of investigation challan was presented in the Court for trial. 3. Accused was charged for having committed an offence punishable under Section 376 IPC to which he did not plead guilty and claimed trial. He participated during the trial. 4. In order to prove its case prosecution examined 22 witnesses and the statement of the accused under Section 313 Cr.PC was also recorded in which he took the defence that “I am innocent. Ratto Devi wanted to 4 marry me and on my refusal, she has falsely implicated me in this case”. 5. Court below acquitted the accused of the charged offence, hence the present appeal. 6. It is not in dispute that prosecutrix was gainfully employed as a daily wage labourer with the Government. Therefore, impliedly she was more than 18 years of age. According to Sh. Lakshmi Chand (PW-18), certificate (Ext.PM) was issued by Sh. Vijay Sain. Now Vijay Sain was unfortunately killed by the extremists when he was on his way to depose in this case. Unfortunately entire record also got destroyed. As per this certificate prosecutrix was born on 4.6.1976. The offence is alleged to have taken place on 13.6.1992. Thus as on the date of alleged offence she was 16 years, 3 months and 9 days old. 7. As per report (Ext.PA), dated 17.6.1992 recorded in the presence of the father of the prosecutrix, her age was disclosed to be 17/18 years. As per medical opinion given by the Experts Dr. Mohinder Singh (PW-4) & Dr. V. K. Pathak (PW-21), age of the prosecutrix was between 14 to 16 years. It is a settled position of law that variation of 2 years is acceptable and benefit of doubt about the age is to be given to the accused. PW-4 & PW-21 have also admitted that bony age of the person depends upon the dietry, environmental and hereditary factors. Prosecutrix 5 comes from the lower strata of society. Thus in view of the nature of evidence brought on record by the prosecution, it cannot be said that prosecution has been able to prove with certainty that prosecutrix was below 16 years of age at the time of alleged offence. 8. Incident is alleged to have taken place on 13.6.1992. Prosecutrix allegedly narrated the same to her aunt (PW-2) two days after the incident, yet no action was taken against accused or the matter reported either to the police or to the authorities. Identity of the accused was not in doubt. Aunt was also gainfully employed as a labourer. She could have conveniently taken action. According to the father incident was narrated to him by the prosecutrix on 17.6.1992, whereas according to the prosecutrix it was the aunt who had informed her father about the incident. Minor contradiction, on this point, is there. In our considered view, delay of 4 days in reporting the matter to the authorities or to the police has rendered the prosecution version to be slightly doubtful. Delay in lodging the FIR by itself may not be fatal but it has definitely rendered the prosecution story to be doubtful. 9. Dr. Mohinder Singh who examined the prosecutrix on 18.6.1992, found the following injuries on her body; “(1) Heal abrasion on fore-head, left sided just above the left eye lid;(2) Two pin head size heal 6 abrasion just 2 cms. above the outer angle of mouth on left side;(3) 3 cms x 0.5 cm long heal abrasion on right leg 6 cms. above the mideal malleolus of foot;(4) Two linear abrasions healed on left leg 4 cms. above the ankle 2.5 cms x 0.5 cms. and (5) A pin head size pustular lesion on right buttack 7 cms. away from right side of labea mazora. Two pin head size abrasion (healed)on right fore-arm.” According to him, possibility of the prosecutrix being subjected to recent sexual activity could not be ruled out. Now this fact alone would not prove the culpability of the accused to the charged offence. We may also note that the prosecution version that Lal Chand and Prem Kumari had asked the prosecutrix to purchase the sweets also stands proved from the testimonies of Lal Chand (PW- 8), Des Raj (PW-9) and Param Chand(PW-15). This fact also, in our considered view, would not prove the culpability of the accused to the charged offence. 10. According to the prosecutrix while she was on her way back from village Tikkari, accused caught her from the arms and after dragging her into the jungle tied her arms with the bushes, gagged her mouth with the shawl and then forcibly committed sexual intercourse. Part of the incident is alleged to have been witnessed by Prem Kumari (PW-19) who contradicts by stating that nothing happened in between the shop and the place of work and both of them come back 7 together to the place of their work. No doubt this witness has been cross-examined at length by the Public Prosecutor but however there is nothing on record to show that she has deposed falsely so as to doubt the veracity of her statement. 11. It is a settled position of law that accused can be held guilty and convicted on the basis of the sole testimony of the prosecutrix. It need not be corroborated. However, having carefully scrutinized the statement of the prosecutrix, we are of the considered view that it does not inspire confidence. Not only there are improvements but several improbabilities which create serious doubt about the veracity and truthfulness of her statement. In cross- examination she admits that in her village there are about 30-35 houses. She admits that accused never met her before or after the occurrence of the incident. She also admits that she did not narrate the incident to anyone except her aunt. Then how and by whom was accused identified. For two days there were holidays and only thereafter she narrated the incident to her aunt. Why did she remain silent for these two days. No doubt she states that accused had threatened her for life. Now if this was so then what prompted her to narrate the incident after two days. She admits that of her own she narrated the incident to her aunt. 8 12. Most importantly she states that after the incident she went to the site and worked for two and half hours, yet she did not report the matter to anyone. She admits that there were 20 labourers working with her. It is her case that accused had not only torn her shirt from both sides but also broken the string of her salwar with which she had tied her salwar again. How is it that none noticed her torn clothes. 13. Further according to the prosecutrix, accused continued to commit sexual intercourse with her for about one hour. Why did she not resist his advances for such a long period of time. She admits not to have given any blow with her legs to the accused. She states that she could not cry for help for the reason that her mouth was gagged but however this version of hers does not appear to be true. She could have protested and resisted the advances of the accused. She admits that there is a path adjoining to the place where the incident took place. Offence is alleged to have taken place in broad day light and adjoining public path. Had the accused raped the prosecutrix for over one hour she would have had ample opportunity to raise an alarm which would have definitely invited attention of the passers bye. She admits that her version in Court to the effect that Prem Kumari had seen the accused catch her; she tied her salwar with a 9 broken string; her shirt was torn by the accused from both the sides not to be recorded in her earlier version given to the police. 14. We may also note that both PW-8 & PW-9 have categorically deposed that prosecutrix had returned back to her work at about 2/2.30 P.M. along with Prem Kumari and no injury marks were noticed on her face. This creates a serious doubt about the prosecutrix actually suffered injury marks found on her body to be arising out of the alleged crime. 15. Version of PW-2 also does not inspire confidence. PW-2 admits to have met the prosecutrix every day, yet the incident was narrated to her after two days. Her version that it was the father of the prosecutrix who reported the matter to the police stands contradicted by the record. 16. We find that statements of the prosecution witnesses not to inspire confidence. Sex, if any, may have been consensual in nature. 17. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. 10 No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (R.B. Misra) Judge (Sanjay Karol) Judge November 22, 2010 (rana)