1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 380 of 1993 Decided on: June 20, 2008 State of H.P. ……..Appellant. Versus Kaka Ram ……..Respondent. Coram Hon’ble Mr. Justice V. K. Ahuja, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the appellant : Mr. J. S. Guleria, Law Officer. For the respondent : Mr. Deepak Kaushal, Advocate. ______________________________________________________________ SURINDER SINGH, J (oral). Respondent was tried and acquitted, for the offences punishable, under sections 363, 366 and 376 of the Indian Penal Code, which has been challenged in this appeal by the State. 2. In short, the allegations against the respondent were that on 7.11.1991 in the evening at 7 p.m., the prosecutrix had gone to defecate, in a nearby orchard of her house, but she did not return. Thereafter, her brothers Om Parkash and Naresh Kumar went in search for her but they did not find any clue. In the morning, they lodged her missing report, in the police station. On return, they met Surji Devi (PW4) near their house. She informed them that the respondent was seen by her hiding himself, near their house during the last evening and there was every likelihood of his involvement in the matter. Next day, Om Parkash and Naresh Kumar revisited the police station and revealed the complicity of the respondent in the elopement of their sister. On their report, police raided the house of Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 the respondent and recovered the prosecutrix from his house, however the respondent was not there. Custody of the prosecutrix was given to Om Parkash, brother of the prosecutrix, on the condition to bring the prosecutrix, next following day to the police station for recording her statement. Next day, the prosecutrix was taken to the police station and she made her statement to the police that while defecating in the orchard, respondent came there with an axe and threatened her and told her to follow him, lest she would be killed. Thereafter, respondent took her to his house forcibly and there he committed rape on her. Prosecutrix was got medically examined. 3. In the opinion of the Doctor, respondent was exposed to coitus. Her wearing apparels were sealed and taken into possession, thereafter sent for chemical examination. The respondent was arrested and medically examined. Some simple injuries were found on his person. However, in the opinion of the Doctor, respondent was fit to perform sexual intercourse. 4. Sample of semen along with underwear of the respondent were sent for chemical examination. Report of the Chemical Examiner revealed that the presence of semen on the trouser of the prosecutrix, but it did not say that it tallied with the sample of semen of the respondent. 5. Statements of Surji Devi and Raksha Devi were recorded. According to Raksha Devi, the respondent was seen carrying the prosecutrix to his place and at that time he had borrowed a torch from her because it was pitch dark. Police recorded 3 statement of other witnesses and presented the challan in the court for trial of the respondent, under the aforesaid sections. 6. Respondent was charge sheeted, for the offences aforesaid, to which he pleaded not guilty and claimed trial. 7. To prove its case, the prosecution examined its witnesses. The respondent was also examined under section 313 Cr.P.C. He explained the circumstances to him that his relations with the brothers of the prosecutrix were very cordial. They were on visiting terms in the houses of each other. However, day before the festival of Bhaiya dooj, he had gone to Nahan and found the prosecutrix gossiping with his wife. She used to address him as Bhaiya. On inquiry, she expressed her desire to stay with his wife. At his residence, she took meals with them and stayed there. Next morning he along with his wife went to her parents’ place in connection with the festival of Bhaiya dooj. Prosecutrix remained behind and told them to go later during the day. According to him, he was falsely implicated in this case. 8. After appreciating the evidence on record, the learned trial court acquitted the respondent on the ground that the version given by the prosecutrix was quite unnatural and she had contradicted herself in material particulars from her earlier version Ex. DA. Raksha Devi was not examined to corroborate the case of the prosecution. Surji Devi (PW4) did not support the case of the prosecution. Statement of Ram Swaroop (PW5) was also full of contradictions and on the top of it, conduct of the prosecutrix was not above board and worth inspiring confidence. The investigation of the case was not conducted in a fair manner inasmuch as statement of 4 the prosecutrix was not recorded immediately after her recovery from the house of the respondent, rather her custody was given to her brothers with a direction to bring her next morning in the police station for recording her statement, which gave enough time to the complainant party for deliberations, therefore, the prosecution case lacked probity. 9. Mr. J.S.Guleria, learned Law Officer has very forcefully argued that the respondent cannot be given any benefit of the lapses, committed by the investigating officer. According to him, the testimony of the prosecutrix inspires confidence and it was wrongly rejected by the learned trial court. If it is reappraised in right perspective, acquittal can be converted into conviction. 10. Contra, Mr. Deepak Kaushal, learned counsel for the respondent has supported the impugned judgment of acquittal. 11. We have given our thoughtful consideration to the rival contentions of the learned counsel for the parties and have carefully gone through the evidence on record. 12. At the very outset we would like to say that the age of the prosecutrix was few months short of 18 years. We have scanned her testimony. According to her, when she had gone to answer the call of the nature in the nearby orchard and after completing the act when she got up to tie the string of her trouser, respondent tied up her face and threatened her to kill with an axe. Thereafter, he physically lifted her up to a distance of 10 yards from where she was taken on foot. On the way, the respondent went to the house of one Raksha Devi to borrow a torch where she had complained to Raksha Devi about her forcibly taking by the respondent. Raksha Devi asked 5 the respondent as to why he was doing that act, on this respondent replied that she should mind her own business, then the prosecutrix was taken by the respondent to his house, where his wife was present. In the presence of his wife, he made her to sleep with him and committed sexual intercourse. Learned trial court held this version of the prosecutrix being unnatural, as she had deviated and contradicted from her earlier statement given to the police. To corroborate her version of taking Torch from Raksaha Devi and about the complaint having been made by the prosecutrix to her, in our opinion, Raksha Devi, was an important and material witness who could have lent strength to the case of the prosecution but she was not examined during the trial of the case on the ground having been won over. There is nothing on record to show as to how the prosecution came to know that she would not support its case. Further Surji Devi (PW4), who was alleged to have seen the respondent, near the house of the prosecutrix, did not support the case of the prosecution. PW5 Ram Swaroop has stated he had seen the prosecutrix taking her to his place by holding her arm. In the cross-examination he has stated that in one hand respondent was holding a Torch, which means that his both the hands were engaged. He did not say anything about tying of mouth of the prosecutrix or carrying an axe by the respondent. In his cross- examination he has stated that he did not have any talk with them but further stated that he asked from the accused as to where he was taking the girl but he was intimidated by the accused- respondent. He did not disclose this fact to any body about what he had seen. On the close scrutiny of the statement of this witness we 6 find that he is not truthful, his statement goes counter to the statement of the prosecutrix and also against the initial story as alleged by the prosecution. His conduct is absolutely unnatural and requires to be condemned. 13. The prosecutrix in her statement has admitted that when the police reached residence of respondent, she was alone. If that being so, she had every opportunity to flee away from the house of the respondent then why she remained there, for which there is no answer. It is also not understood as to what prevented the police to record her statement immediately on her recovery. Thus it can safely be inferred that the prosecutrix at that time did not impute any allegation against the respondent and it was after due deliberation and on the pressure of the brothers of the prosecutrix that she was made to give statement against the respondent. On seeing her version we do not find consistency in her statement rather it is full of contradictions, embellishments, unnatural, material improvements and lacks probity, which cannot be relied upon. 12 On the close scrutiny of the aforesaid evidence, the findings of acquittal recorded by the learned trial Magistrate are borne out from the record and there is no perversity therein, therefore, the impugned judgment of acquittal calls for no interference. Accordingly, the appeal is dismissed. Respondent is discharged of the bail bonds, entered upon by him during the proceedings of the case at any stage. (V. K. Ahuja), Judge. June 20, 2008 (Surinder Singh), (D) Judge. 7