HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 311 of 1995 Reserved on: 18.4.2009 Decided on: 21.4.2009 State of Himachal Pradesh ……… Appellant. Versus Ali Hussan ………Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.Rajesh Mandhotra, Deputy Advocate General. For the respondent: Mr.Karan Singh Kanwar, Advocate. Per V.K. Ahuja, J.: This is an appeal filed by the State of Himachal Pradesh under Section 378 of the Cr.P.C. against the judgment of the court of learned Sessions Judge, Sirmaur, dated 1.7.1994, vide which the respondent was acquitted of the charge framed against him under Section 376 read with Sections 511 and 506 of the Indian Penal Code. The prosecution story in brief is that on 14.2.1993, at 6.30 p.m., a report was lodged with the police by one Smt.’K’ (name not mentioned), accompanied by her husband Ram Dhan, in which it was alleged by her that she had gone to her sugarcane fields in the morning at about 9.30 a.m. The said fields were at a distance of 3 km. from her house and when she was going to her fields, ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. respondent caught hold of her hand and she asked him to leave her. On this, the respondent gave her abuses and beatings and threw her on the ground and asked her to have sexual intercourse with him. She further alleged that the respondent broke the string of her Salwar. She attempted to save herself and her Salwar was torn during this process. She further alleged in the report that she raised an alarm but none came to the spot and when she raised an alarm, the respondent left her and while leaving the place, he also gave a threat to take her life. She further alleged that her bangles were broken at the spot and one gold tabeez had also fallen on the ground. She further alleged that she suffered injuries on her right hand in which she was wearing bangles as well as on her neck. She further alleged that the respondent had also pressed her private parts. On this report, a case was registered and on completion of investigation, the challan was filed before the court of the learned Sub Divisional Judicial Magistrate, Paonta Sahib, who committed the case to the learned trial Court, who tried the respondent leading to his acquittal. We have heard the learned Deputy Advocate General for the appellant and the learned counsel for the respondent. The learned Deputy Advocate General has taken us through the evidence. On the basis of the statement made by the prosecutrix, coupled with the other evidence on record, it was submitted by the learned Deputy Advocate General that the findings recorded by the learned trial Court are not sustainable being perverse and the same are liable to be set aside. On the other hand, the learned counsel for the respondent supported the impugned judgment for the reasons recorded therein. On appraisal of the record of the case, it is clear that the prosecution had examined 7 witnesses to substantiate their case. There was only one eye witness to the occurrence, namely, the complainant, who has been examined as PW-2 and her statement can be said to be most material. A perusal of her statement shows that she reiterated her allegations made in the report lodged by her with the police and she stated that the respondent gave her abuses, threw her on the ground and caught hold of her breasts, which was not specifically mentioned in the report lodged by her, though she had alleged in the report that the respondent had touched her private parts. She further stated that her Salwar was torn by the respondent and her bangles were broken and she suffered injuries on her arms and neck. She cried for help but there was nobody near the place of occurrence and the respondent ran away giving her a threat that in case she told any person about the assault, she would be done to death. The learned trial Court had found various contradictions and infirmities in the prosecution case and had concluded that they make the prosecution case doubtful and the prosecution case was, therefore, not relied upon. The first contradiction observed was that the prosecutrix had stated that the accused had thrown her on the ground and mounted on her and remained mounted for about 10-15 minutes. The prosecutrix stated that she suffered bleeding injuries on her back and the injuries were so severe that she could not get up from the bed for several days. However, a reference was made to the testimony of PW-1 Dr.R.K. Mangla, who had examined the prosecutrix and found one injury over the front of neck and another on the right forearm and opined in cross examination that these injuries could be self inflicted. The doctor PW-1 Shri R.K. Mangla did not observe any injury, including bleeding injury, on the back of the prosecutrix. Therefore, it was observed that the statement of the prosecutrix does not stand corroborated fully from the medical evidence. It was further stated by PW-2 ‘K’ that the report Ext.PC was lodged with the police not by her but by her husband, but a perusal of Ext.PC shows that the report was lodged with the police by her and she had gone there accompanied by her husband. In case the prosecutrix had not lodged the report but it was lodged by her husband, the version given to the police is not that of the prosecutrix. The next contradiction observed was that the prosecutrix has stated that her father-in-law was not there in the fields when she went their after the alleged attempt by the respondent to rape her. However, PW-4 Bhagoo Devi is specific that the father-in-law of the prosecutrix was in the fields and the prosecutrix had narrated the incident to him also, who returned with them from the fields. There is nothing as to why the prosecutrix had deposed falsely in regard to the presence of her father-in-law at the place where she made a complaint to her mother-in-law and other two ladies. It has also come up in her evidence that the said place was at a distance of 150 metres from the place where she was allegedly attempted to be raped by the respondent and it looks surprising that her cries could not reach the said place where her father-in-law and mother-in-law and other ladies were present. Another contradiction observed was that the prosecutrix had stated that she had produced the pieces of bangles and her torn Salwar at the Police Post Rajban at the time of lodging the report Ext.PC, but the police has prepared the record to the effect that the pieces of bangles were recovered from the scene of the alleged occurrence. It has also come up in evidence that specific suggestions were put up to PW-2 ‘K’ in regarding to the false implication that a quarrel had taken place in between the prosecutrix and the wife of the respondent in regard to some minor occurrence for which the case was subsequently planted upon the respondent. The prosecutrix as PW-2 denied the occurrence but the possibility that some occurrence may have taken place in the manner as suggested cannot be ruled out. Keeping in view the infirmities, which may be minor, but that had weighed in the mind of the learned trial Court in coming to the conclusion that the prosecution had failed to prove their case beyond any reasonable doubt and though other view could have been taken by the learned trial Court, but it cannot be said that the view taken was perverse and, therefore, the findings recorded by the learned trial Court do not call for an interference by this Court. In view of the above discussion, we find no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged. (Deepak Gupta), Judge. April 21 , 2009. (V.K. Ahuja), (TILAK) Judge