1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 377 of 1999 Decided on September 20, 2010 _________________________________________________________ State of H.P. …Appellant. Versus Rajiv Kumar and Another …Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr. R.K. Sharma, Senior Additional Advocate General, with Mr. Rajinder Dogra, Additional Advocate General, For the respondent: Mr. Chaman Negi, Amicus Curaie. Justice R.B. Misra,J. ( Oral) Earlier Mr. Adarsh Kumar Vashisht, Advocate, was supposed to assist this Court on behalf of the respondents, however, despite his endeavour, the respondents-accused could not contact him. In these circumstances, he is not in a position to assist this Court. Mr.Chaman Negi, Advocate, has been requested to assist this Court as an amicus curaie, on behalf of the respondent-accused, and he has agreed to assist this Court. 2. The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of criminal Procedure has been granted in reference to judgment dated 5.7.1999 passed by the Learned Sessions Judge, Kullu, H.P., in Sessions Trial No. 6 of 1998, under Sections 376 and 354 read with Section 34 of the Indian Penal 2 Code, in reference to FIR No.442 of 1993, dated 14.12.1993, whereby acquitting the alleged accused/respondents. 3. The prosecution case is that on 14.12.1993 victim / prosecutrix, X-1 (name not given), lodged the report with the police that she alongwith victim / prosecutrix, X-2, were sitting under a Peeple tree at Akhara Bazar, Kullu, one tempoo came in which the driver and one boy were sitting and stopped the tempoo and forcibly taken them in the tempoo to Pahanala road. Thereafter, tempoo driver after stopping the tempoo came at the back seat and caught hold of the victim / prosecutrix, X-1, with one hand and opened her salwar with other hand and thereafter, he committed sexual intercourse with her. The other girl victim / prosecutrix, X-2, was taken out by the other person sitting with the tempoo driver, was also sexually assaulted. Thereafter, both X-1 and X-2 (victims / prosecutrix) were taken back in the same tempoo to Raison by gagging their mouths and they were left at a isolated place. Later on they deposed the name of the driver as Rajiv and the name of the accused- respondent was Premu. Accordingly, FIR was lodged and matter was investigated and both the accused-respondents were charged for the aforesaid offences. The case was committed to Sessions Court. 4. In order to prove its case, the prosecution has examined as many as 15 prosecution witnesses, whereas, the accused through their statement under Section 313 of Cr.P.C., have denied the prosecution case. 3 5. The prosecution examined PW.1 Bhag Chand, PW.2 Dot Ram, PW.3 Dr.G.D. Gaur, PW.4 Dr.Mohan Lal, PW.5 Constable Akhatar, PW.6 ASI Kamali Devi and PW.8 Dr.Harish Malhotra, are the formal witnesses. 6. PW.9 Dr.Sashi Thakur, examined the victim / prosecutrix X-1, on 15.12.1993 and given the following observations:- “i) P/V Hymen torn, old tages formed, vagina admits two fingers easily. Advised urine for pregnancy test. ii) P/S examination. Cervix healthy. Advised vaginal smear GCTV and spermatozoa, vide OPD No.71532. Spermatozoa not seen. GCTV not seen. Clothes i.e. salwar was sealed in a sealed parcel with five seals on it and duly attested specimen seal handed over to the police. iii) For age estimation advised x-ray right wrist joint, right elbow joint, right shoulder joint, AP/lateral view. X-ray right ankle joint, right knee joint and right hip joint AP/lateral view. According to the report of Dr.G.D. Gaur, Radiologist, the radiological age of the prosecutrix appeared to be 17 to 19 years. In cross-examination, the witness has stated that the prosecutrix was habitual to sexual intercourse. 7. PW.10 The victim / prosecutrix, X-1 was an endeavour to support the prosecution case, has stated that she was forcibly taken towards Pahanala side and was sexually assaulted without her consent. She has further stated that they could not raise any hue and cry because they have been threatened with dire consequences. Both the girls were again brought back and left at Raison by the accused-respondents. While victim / prosecutrix, X-1, was going towards her home, her uncle Roop Dass met her and enquired whether they were taken by the tempoo driver. Thereafter, uncle of the victim / 4 prosecutrix, X-1, took her to the police station to lodge the report. 8. PW.11 Another victim / prosecutrix, X-2 was also an endeavour to support the prosecution case, has stated that accused Premu took her outside the tempoo and caught her by both the hands and was pressing her breast with one hand. In cross-examination, she has stated that she could not raise hue and cry at Akahara Bazar. Accordingly, accused / respondent Rajiv committed sexual intercourse with victim / prosecutrix, X-1 and she was watching the same from some distance. 9. PW.12 Roop Dass, has stated that when the prosecutrix disclosed about the incident, he brought both the girls to Kullu, where report was lodged. PW.13 Dina Nath is father of the victim/ prosecutrix, X-1. 10. PW.14 Mine Ram, Secretary Gram Panchayat, who brought the copy of parivar register Ex.PH and PJ. According to him, the date of birth of the victim / prosecutrix, X-1 was 31.12.1978 which was later on shown as 31.12.1992. PW.15 Inspector Paras Ram, the Investigating Officer, who has investigated the entire case. 11. Taking into consideration the statements of PW.10 and PW.11, it appears that while they were being taken by the accused-respondents forcibly, they did not raise any hue and cry and after commission of crime,both the girls were again left by the accused-respondents at Raison and from there they went to their houses. PW.9 Dr. Shashi Thakur examined the victim / prosecutrix, X-1, has very specifically stated that the victim / 5 prosecutrix, X-1, was habitual of sexual intercourse and according to the report of Dr.G.D. Gaur, the radiological age of the victim / prosecutrix, X-1, was between 17-19 years. There is only statement of PW.11, victim / prosecutrix, X-2, who had seen the occurrence, however, on analysis of her testimony, it appears that for the reason best known to X-2, she was not medically examined and prosecution has failed to prove that she was sexually assaulted. However, PW.3 Dr.G.D. Gaur has assessed the age of the victim / prosecutrix, X-2 as 17-19 years, which shows that the prosecutrix was major at the time of incident and she was not taken forcibly by the accused persons. It appears that in any case both the victims / prosecutrix, X-1 and X-2 said to be the consenting party and deliberately for best reasons known to them they did not raise any hue and cry and subsequently no mark or injury was also found in their medical examination. 12. Keeping in view the facts and circumstances and materials on record, the learned Sessions Judge has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt to the accused and there is no scope of interference in the findings given by learned Sessions Judge. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 13. The bail bonds furnished by the 6 accused/respondents are hereby discharged. 14. We place on record our words of appreciation to Mr. Chaman Negi, for his assistance to the Court, as an amicus curaie. (R.B. Misra) Judge September 20, 2010 (V.K. Sharma) (Purohit) Judge