IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 82 of 2001. Date of decision: 22.12.2010. State of H.P. ….. Appellant. Vs. Mahesh & Anr. …. Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 For the appellant : Mr R. K. Sharma, Senior Addl. Advocate General with Mr. Rajinder Dogra, Addl.A.G. For the respondents : Mr. Dinesh Thakur vice Mr. Rakesh Jaswal, Advocate R.B. Misra, J. (Oral. The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment dated 19.8.2000, passed by the learned Sessions Judge, Kullu in Sessions trial No. 20 of 1999, acquitting the alleged accused for the offence under Sections 451, 376 read with Section 34 IPC. 2. The prosecution case is that the prosecutrix (PW-1), on 9.4.1998 came from parental house to village Goshaini, where her brother Nainu Ram (PW-2) was working as a Blacksmith, where she stayed during Whether the reporters of the local papers may be allowed to see the Judgment? 2 night. During night, she was taken by the accused outside the house where she was sexually assaulted by the accused persons. After investigation, the accused were charged for the aforesaid offences. 3. In order to prove its case, prosecution examined as many as ten witnesses, whereas, accused- respondents, through their statements under Section 313 Cr.P.C. denied the prosecution case. 4. Prosecution examined the victim-prosecutrix (PW- 1), Nainu Ram (PW-2), Dr. R. D. Goel (PW-3), Munish Kumar (PW-4), Jagdish Chand, Radiographer (PW-5), Lagan Chand (PW-6), Dr. Rakesh Kumar (PW-7), Daya Ram (PW-8), Inspector Jagdish Chand (PW-9) and Dr. Vanita Sharma (PW-10). 5. Victim-prosecutrix (PW-1) has stated that she had gone to the house of her brother for purchasing household articles and since money was to be paid to her by her brother Nainu Ram (PW-2), therefore, she stayed that night at the house of her brother. Family members of her brother slept on the ground floor and she slept at the top along with the minor daughter of her brother in upper storey. During night of 9.4.1998, Mahesh, Gopu and Gian came at the house of her brother and demanded glasses for drinks, there upon, PW-1 was asked by her brother to give glasses to them, but her brother and Bhavi had gone towards Bazaar at that time. Accused Gopal alias Gopu caught hold of her from 3 the waist and thereafter accused Mahesh came there and she was taken to the jungle. PW-1 was lifted on the back by accused Gopal alias Gopu and was taken in the cultivated land at a considerable distance where she was sexually assaulted first by accused Gopal alias Gopu, after that by accused Mahesh forcibly and at that time Mani along with one person and her brother (PW-2) came there and observed that accused Mahesh was committing sexual intercourse with her. When her brother PW-2 Nainu Ram asked the accused persons why they had committed ‘Galat Kaam’, the accused started assaulting her brother with danda. Gian was there but he did not commit any wrong act with PW-1. On the next day, FIR (Ext.PW-1/A) was lodged. Thereafter, the victim-prosecutrix was taken to the hospital. In cross-examination, PW-1 has stated that accused Gopal alias Gopu is a shopkeeper and his shop is below their house and has further stated that the accused persons after consuming liquor had left the house but again came thereafter. Her brother and Bhavi had gone to the jungle to collect fuel wood leaving PW-1 alone in the house. Accused Gopal alias Gopu came and lifted her. She raised hue and cry for getting herself free, when victim (PW-1) was going to the house of her grandmother, the accused took her forcibly from the path. PW-1 has further stated in cross-examination that accused Gopal alias Gopu lifted her on his back 4 and had sexually assaulted her first, however, she did not receive any injury on her back while she was taken in the field. PW-1 has denied in cross-examination that her brother was having some payment dispute with the accused and her brother wanted to avoid payment to the accused, as such, a false case was registered against accused Gopal alias Gopu. Victim (PW-1) has further stated in cross-examination that she was not knowing the accused persons prior to the occurrence but the names of the accused were told by other persons to her. When the string of her salwar was broken by accused Gopal alias Gopu, Gian was standing at some distance from the place where the accused had committed sexual intercourse with her. Victim (PW-1) has further stated in cross-examination that the accused came to consume liquor at her house and had broken the bottle and glasses. 6. From the testimony of PW-1 itself, we notice apparent contradictions in the sense that she was sleeping in the fateful night with small daughter of her brother on the upper storey of the house, when she was called by her brother to give glasses for drinks to the accused, then under what circumstances her brother had gone towards bazaar leaving PW-1 alone in his house, whereas small children were also there. As per the testimony of PW-1 made in examination-in- chief, accused Gopal alias Gopu caught hold of her 5 from the waist and thereafter accused Mahesh came and she was taken to the jungle. She was lifted on the back of accused Gopal alias Gopu, whereas in cross- examination she (PW-1) stated that she had tried to get herself free from the accused and had run away towards the house of her grand mother but from the path she was forcibly taken to the jungle by the accused persons, as such, contradiction is being noticed regarding the place and manner of her lifting. 7. PW-2 Nainu Ram brother of the victim- prosecutrix stated that her sister was 16 years of age and was residing with elder brother of PW-2 and came on 9.4.1998 to purchase the household articles and asked for the money from him. He asked her sister to stay for a day and he will make the payment tomorrow accordingly. She stayed with him. PW-2 had one room house and, as such, the victim-prosecutrix (PW-1) was sleeping in the Talla (roof of the house covered with slate) and he along with his family were sleeping in the room. At about 1.00 A.M. accused had knocked at his door and when he opened the door Gopal, Gian and Mahesh entered in the room and told that they want to consume liquor and demanded the glasses. PW-2 asked his sister victim (PW-1) to give glasses to the accused, in the meantime, PW-2 had gone to the house of Bhagwan Dass alone in that night followed by his wife to inform that drunkard persons entered into his 6 house and Bhagwan Dass told that he will not coming during night hours. Thereafter PW-2 had gone at the house of Manu, who however on his request came with him to his house. On way one Mani Ram also met at his house who also came with PW-2. When PW-2 reached along with Manu and Mani Ram at his house none was present there even the prosecutrix. PW-2 observed one person going towards the field in the moonlight. PW-2 had gone after him for about 250-300 yards and saw that the prosecutrix was made to lie down in the field and accused Mahesh was committing sexual intercourse with her. When PW-2 had asked him what they were doing, accused Mahesh immediately hit him with danda. Thereafter all the three accused including Mahesh and Gopu and Gian came down quarrelling with him upto the house of Mani Ram. PW-2 did not ask anything from his sister. She told that she was lifted from the house and taken to the field where the accused persons committed sexual intercourse with her forcibly. Next day, PW-1 & PW-2 went to the Police Station and report (Ext.PW-1/A) was lodged. In cross-examination, PW-2 has stated that three glasses were given to the accused and PW-2 was not aware as to whether the accused persons consumed liquor or not as he had left his house immediately when the accused had come there as PW-2 was apprehending that the accused may quarrel with him as they were threatening him. PW-2 has 7 further stated that he was not medically examined for the beatings inflicted by accused Mahesh with danda on his leg. PW-2 has also stated in cross-examination that he had not seen Gopal when he reached in the field, where his sister was being sexually assaulted. According to PW-2, accused Mahesh was sexually assaulting his sister, she was not raising hue and cry. 8. We notice contradiction from the testimony of PW-2, that he slept with his wife and children in the ground part of the house and his sister slept alone in upper portion, whereas as per the testimony of PW-1, she was sleeping with minor daughter of her brother at the top/Talla of the house. We also notice apparent contradiction from the testimony of PW-1 that the glasses were broken by the accused, whereas nothing has emanated from the testimony of PW-2 to that effect. PW-2, however, has not seen anything that how PW-1 was lifted from his house, whereas we notice apparent contradictions from the testimony of PW-1 that she was lifted from the path leading to the house of her grand mother. In examination-in-chief, PW-1 has stated that in the house of PW-2, accused Gopal alias Gopu caught hold of her from the waist and thereafter accused Mahesh came there and she was taken to the jungle. PW-1 was lifted on the back of accused Gopal alias Gopu. In view of the testimony of PW-1, she was 8 sexually assaulted first by accused Gopal alias Gopu and thereafter accused Mahesh, whereas PW-2 had not seen accused Gopal alias Gopu when he reached in the field, where accused Mahesh was committing sexual intercourse with PW-1. Nothing is emanating from the testimony of PW-1 that while she was being sexually assaulted, she had raised hue and cry, in consonance to the version of PW-2 that at the time of sexual assault, the victim-prosecutrix was not raising hue and cry. PW-1 has not stated that at the time when she was being taken out from the house of PW-2, accused persons were carrying a danda in their hands. PW-2 was given danda blow by the accused but he was not medically examined, which creates doubt that PW-2 had not visited the spot. 9. PW-3 Dr. R. D. Goel, on the request of police (Ext.PW-3/A) examined Mahesh and found him capable of committing sexual intercourse. PW-4 Munish Kumar was told by PW-2 that some quarrel had taken place at his house and some boys had come at his house, who asked him to accompany him to his house. In cross-examination, PW-4 has stated that the victim- prosecutrix was in the field, however, he had not seen accused Mahesh committing sexual intercourse with the prosecutrix. PW-4 had seen accused Mahesh, Gopal alias Gopu and Gian there in the field where the victim- prosecutrix was present but they were at a distance of 9 about 10 feet from the prosecutrix. PW-4 had not seen that when Nainu Ram (PW-2) enquired from accused Mahesh what he was doing, upon which accused Mahesh hit him with a danda. PW-4 has further stated that he had not seen any quarrel between Nainu Ram and the accused persons. Testimony of PW-4, however, is not totally supporting the prosecution case to the expectation of the prosecution, as PW-4 had not seen anything and had also not seen that accused Mahesh was committing sexual intercourse with the prosecutrix. PW-4 who is said to have accompanied PW-2 Nainu Ram to the field but he has not stated that accused Mahesh had assaulted PW-2 with danda. From this point of view, the testimony of PW-1 & PW-2 is also contradicted. 10. PW-5 Jagdish Chand is a Radiographer, who has prepared X-ray films of Gumu Devi. PW-6 Lagan Chand, Teacher, Govt. Primary School, Deori, has stated to have issued certificate Ext.PW-6/A regarding the birth of the victim-prosecutrix. PW-7 Dr. Rakesh Kumar, on receiving skigrams (Ext.PW-5/A to Ext.PW-5/C) of the victim-prosecutrix gave an opinion (Ext.PW-7/A) that the victim-prosecutrix was 15 to 16½ years of age. PW- 8 HC Daya Ram and PW-9 Inspector Jagdish Chand are official witnesses. PW-9 had prepared the site plan and lodged FIR Ext.PW-1/A and recorded the statements of the prosecution witnesses as well as the statements 10 of the accused persons. PW-10 Dr. Vanita Sharma examined the victim-prosecutrix and has given an opinion that no marks of violence was found on the body of the victim-prosecutrix. Some stains were present on dark red coloured Salwar. As per the opinion of PW-10, the victim-prosecutrix was habitual of intercourse. However, PW-10 has not given definite opinion about any sexual assault having been made in respect of the present case. There is apparent contradiction from the testimony of PW-10 that the victim-prosecutrix was habitual to intercourse, whereas PW-1 has very categorically stated in cross- examination that no sexual intercourse was committed with her prior to the said incident. From this point of view also the testimony of PW-1 is not inspiring confidence. 11. On analysis of the prosecution witnesses and the materials on record, we notice that no mark of injury or violence was noticed on the body of PW-1 in medical examination. Approximation of 2 years could be given to the age assessment in medical estimation. As such, the victim-prosecutrix (PW-1) was about 16 years of age. In view of her own testimony as well as Nainu Ram (PW-2), she has not raised any hue and cry. PW-1 has stated in cross-examination that prior to this occurrence, no sexual intercourse was ever committed with her, which is also belied in view of the 11 testimony of Dr. Vanita Sharma (PW-10), who has very categorically opined that PW-1 was habitual to intercourse. In these circumstances, since sole testimony of the victim (PW-1) is not inspiring confidence, more so there is no corroboration by other reliable witnesses. PW-2 Nainu Ram was interested witness by virtue of being brother of PW-1. The testimony of PW-2 is also not reliable as he had not offered for medical examination regarding his injury, if any, received by him on the spot caused by accused Mahesh with danda. The testimony of PW-1 for lack of corroboration by any witness is also not reliable. Her testimony is full of contradictions, therefore, in the facts and circumstances is not inspiring confidence. In these circumstances, the prosecution cannot be said to have proved its case beyond reasonable doubt. The prosecution has also failed to bring home the guilt to the accused. Criminal appeal being devoid of merit is, therefore, dismissed. Bail bonds furnished by the accused are discharged. (R.B. Misra) Judge (Sanjay Karol) Judge December 22, 2010 (rana)