IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.444 of 2005 Judgment reserved on: 17.3.2008 Decided on: March 20, 2008. Babu Ram …Appellant Versus State of H.P. …Respondent Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Rameshwar Sharma, Advocate. For the Respondent : Mr. P.K. Sharma, Addl. Advocate General. Surjit Singh, Judge Appellant is aggrieved by the judgment of Sessions Court, whereby he has been convicted of offences, under Sections 376 and 342 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.10,000/- for the offence, under Section 376 IPC, and to rigorous imprisonment for one year and fine of Rs.1000/-, for the offence under Section 342 IPC. 2. Case of the prosecution, as per record of the trial Court, is like this. The prosecutrix, aged about 13 ½ years at the time of occurrence, was studying in 6th standard in Govt. Middle School, situated in her village. Appellant was employed as Social Study Teacher in that very school. Prosecutrix and the appellant had their houses at a short distance in the same village. On 21.7.2003, the appellant allegedly called the prosecutrix to his house on the pretext Whether reporters of the local papers may be allowed to see the judgment? …2… that she should bring her spray pump for use by him. When the prosecutrix went to the appellant’s house, he allegedly bolted the door of the room from inside and committed rape on the prosecutrix. 3. To bring the charge home to the appellant, the prosecution examined the prosecutrix as PW-6. It also examined the mother of the prosecutrix PW-8 Sumitra Devi. The doctor, who conducted medico legal examination of the prosecutrix, namely Dr. Reena Thakur, was also examined. She is PW-7. Appellant was got medically examined from PW-9 Dr. Jatin Sharma. Appellant pleaded innocence. He stated that he had been falsely implicated because of enmity and jealousy. However, no suggestion in this regard was thrown to the prosecution witnesses. 4. Prosecutrix, in her deposition as PW-6, stated that when she went to the house of the appellant with a spray pump, as asked by the appellant, the latter caught hold of her by the arm and took her inside the room and made her to lie on the bed and then committed sexual intercourse with her. She stated that the bed sheet and the quilt cover got stained with blood that came out from her vagina, as a result of sexual intercourse. She stated that after committing the sexual intercourse, the appellant released her and she went straight to her house where her mother was present and she narrated the incident to her. She stated that the appellant took ten minutes to commit the crime. PW-8 Sumitra Devi, the mother of the prosecutrix, stated that on the relevant date she returned home at 5.30 PM, after attending I & PH office at Dhar, a place situated at a distance of 25 kilometres from her village and noticed that the prosecutrix was crying and on inquiry she told that she had been raped by the appellant. In the cross-examination she stated that she started from village Dhar at 5 PM and reached at her house at 5.30 P.M. …3… 5. PW-7 Dr. Reena Thakur did not notice any injury on the person of the prosecutrix except tenderness of vulva. She did not give any positive opinion that the prosecutrix had been subjected to sexual intercourse; but stated that it could not be commented that no sexual intercourse had taken place. She prepared the slides of the vaginal swab. She also took into possession clothes of the prosecutrix, which she had not changed since the commission of the alleged crime. Her pubic hair and foreign hair found in the pubic portion were also sealed. The clothes, the slides and the pubic hair were sent to the Chemical Examiner, who found no semen or spermatozoa on any of these things, though he did find stains of blood on the salwar and the vaginal swab. 6. Having gone through the entire record and having heard the learned counsel for the appellant, we are of the considered view that the case of the prosecution does not stand established beyond reasonable doubt. The prosecutrix at the relevant time was about 13 ½ years old. The doctor, namely PW-7 Reena Thakur, did not find any injury on her person. Rather she found that the hymen was intact. Also no injury inside the vagina was found. Labia majora and labia minora were also normal. There was only tenderness of vulva. The prosecutrix stated that she was given tooth bite on her face and breasts, but no marks of any tooth bite were found by the doctor. The doctor testified that the prosecutrix had been menstruating from 16th July, 2003 to 21st July, 2003. The incident is alleged to have taken place on 21st July, 2003, when the prosecutrix was still menstruating. Therefore, the possibility that the blood which was found in the vaginal swab and on the salwar of the prosecutrix was her menstrual blood, cannot be ruled out. In fact, the blood has to be assumed to be menstrual blood because as per testimony of PW-7 Dr. Reena Thakur, …4… no injury, leave alone a bleeding injury, on the genitals of the prosecutrix, was noticed. 7. Prosecutrix’s statement that the bed sheet and the cover of the quilt, lying on the bed of the appellant, got stained with blood is falsified by the report of the Chemical Examiner, Ext.PW7/B, per which no blood was found on the bed sheet or the cover of the quilt. 8. Prosecutrix had allegedly been called by the appellant to deliver the spray pump. However, no spray pump was recovered from the house of the appellant during the investigation of the case. Prosecutrix’s testimony that when she returned home after the alleged criminal act at 4 P.M. her mother was already there also stands falsified by the testimony of her mother PW-8 Sumitra Devi, who has testified that when she returned home at 5.30 PM , prosecutrix was already there and was crying. 9. In view of above discussion, we are of the considered view that the charge against the appellant does not stand established beyond reasonable doubt. Consequently, the appeal is accepted and the judgment of the trial Court convicting and sentencing the appellant for the offences, under Sections 376 and 342 IPC, is set aside and the appellant is acquitted. He being in jail is ordered to be set at liberty forthwith in case his detention is not required in any other matter. 10. The appeal is disposed of. ( Surjit Singh ), J. March 20, 2008, (ss) ( Surinder Singh ), J.