IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 3 of 2002. Date of Decision : May 19, 2011 State of Himachal Pradesh Appellant Versus Virender Singh @ Bittu. Respondent Coram: The Hon’ble Mr. Justice R. B. Misra, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. R. K. Sharma, Senior Addl. Advocate General. For the respondent : Mr. Karan Singh Kanwar, Advocate. Justice Sanjay Karol, J. (Oral) For an offence, which is alleged to have been committed on 18.11.2000, accused was put to trial. In terms of judgment dated 15.9.2001, passed by the learned Addl. Sessions Judge, Sirmaur District at Nahan, H.P. in Sessions Trial No. 1-N/7 of 2001, titled as State of Himachal Pradesh versus Virender Singh @ Bittu, the accused stands acquitted of the charged offence. 2. It is the case of the prosecution that prosecutrix was residing in village Fandi Bodiwala with her father Sh. Hari Chand, mother Smt. Shyama Devi (PW-9), two brothers and one sister. Whether reports of Local Papers may be allowed to see the judgment? 2 They shared a common compound with their uncle Sh. Phul Chand who also resides in his adjoining house with his family including ladies and children. On 18.11.2000 both Smt. Shyama Devi (PW-9) and Sh. Hari Chand had gone out for work. Accused who also resides in the same village, criminally trespassed into the house of Sh. Hari Chand at about 4.00 p.m. and forcibly committed sexual intercourse with the prosecutrix. In the evening when Smt. Shyama Devi returned home she found the prosecutrix to be in a frightened state. When she inquired for the reason, prosecutrix revealed that she had been subjected to rape by the accused not only on that date but also two-three occasions earlier as a result of which she had become pregnant and was carrying a child of two months. At about 8.00 p.m. when Sh. Hari Chand returned home Smt. Shyama Devi narrated the incident to him, who immediately brought the matter to the notice of the Pradhan Sh. Hari Saran (PW-10) and was advised that the matter be reported to the police. Next day i.e. on 19.11.2000, a complaint vide D.D. Entry (Ext. PE) was lodged on the basis of which F.I.R. No. 481 of 2000, dated 19.11.2000 under Section 376 IPC was registered at Police Station Paonta Sahib. Investigation in the matter was commenced by SI-Dev Raj (PW-11). Prosecutrix was got medically examined by Dr. Sunita Mangla (PW- 1) at the Civil Hospital, Paonta Sahib. Her radiological age was got determined through Dr. B. L. Bhardwaj. As per the medical record, M.L.C. (Ext. PB), prosecutrix was not pregnant but was subjected to sexual intercourse. Her age was between 14 years to 19 years. 3 Accused was also medically examined by Dr. Sanjeev Sehgal (PW-2) who issued MLC (Ext. PC). Clothes belonging to the prosecutrix, as also the vaginal swab was sent for chemical analysis. Record pertaining to the age of the prosecutrix was obtained from Smt. Indirawati (PW-3), Assistant Secretary of the Panchayat who issued date of birth certificate (Ext. PD). Statements of the prosecutrix and other witnesses were also recorded by the police. With the completion of investigation challan was presented in the Court for trial. 3. The accused was charged for having committed offences punishable under Sections 451, 376 and 506 I.P.C. to which he pleaded not guilty and claimed trial. 4. In order to prove its case prosecution examined fourteen witnesses and statement of the accused under Section 313 Cr. P.C. was also recorded. The accused took the defence of false implication due to prior animosity. In defence the accused examined two witnesses. 5. Appreciating the material on record, the Court below acquitted the accused of the charged offences. Hence the present appeal. 6. Medical record and the version of the Doctor (PW-1) establishes that prosecutrix was subjected to sexual intercourse. But however this would not mean that the accused is guilty of the same. 4 7. With regard to the age of the prosecutrix, PW-1 has deposed that as per the report of the radiologist prosecutrix was less than 19 and more than 14 years. Prosecution has not examined the Radiologist nor is medical record with respect thereto on record. Be that as it may be, prosecutrix in her statement does not state her exact date of birth. To the same effect is the deposition of her mother (PW-9). Our attention has been invited to the certificate (Ext. PD) as also the statement of Smt. Indirawati (PW-3) to prove that prosecutrix was born on 14.6.1984 and thus she was minor on the date of the alleged offence. Ext. PD is certificate issued on the basis of the Pariwar Register, as is so stated by PW-3. The law with regard to the probative value of the certificate issued on the basis of the Pariwar Register is now well settled. It is mainly corroborative in nature if proved in accordance with law, which in the present case is not true. PW-3 admits that the entry in the record is not in her hand. She also does not state who got the date of birth recorded in the register. Thus it cannot be looked into. Consequently it cannot be said that prosecution has been able to establish the exact date of birth of the prosecutrix or for that matter that she was minor at the relevant time. 8. According to Smt. Shyama Devi (PW-9), the matter was got reported to the Pradhan (PW-10) on the very same day by her husband, who for reasons best known has not been examined by the prosecution. Why so? No reason is forthcoming. His examination was material for the reason that the Pradhan (PW-10) has not 5 supported the prosecution case at all. He was declared hostile and cross examined and yet nothing fruitful could be derived from his statement. There is nothing to show that he has falsely deposed. Apart from that, on certain points he has supported the accused for which also there is no cross examination by the prosecution. Importantly he states that the parents of the prosecutrix had come to his house and disclosed it to him that “a boy had raped their daughter”. Now who is this boy? Accused was a resident of the very same village. It is not that his identity was not known to the family or the prosecutrix herself. He has further deposed that monetary demands were made by the father of the prosecutrix and the accused was threatened to meet the same or else face serious consequences. It is in this background non examination of father of the prosecutrix acquires significance. 9. We otherwise feel that the statements of the other relevant witnesses i.e. the prosecutrix and her mother does not inspire confidence. According to the prosecutrix the accused entered her house at 4.00 p.m. and then continued to rape her for more than two hours. She was also threatened not to disclose the earlier incidents of rape to anyone. She could not cry for help as her mouth was gagged. Now this version of hers stands materially contradicted by her statement i.e. D.D. Entry (Ext. PE) on the basis of which F.I.R. was registered wherein there is no reference of prior threats or her mouth being gagged. That apart, medical evidence does not suggest that her mouth was gagged. In fact to this extent it belies 6 the prosecution case. No sign of abrasion/injury was found at all. Further mother of the prosecutrix admits that the fact pertaining to the threats was not even mentioned in the report lodged with the police. 10. We find the statement of the prosecutrix to be unconvincing and improbable. According to her, at the relevant time, no other member of the family was present in the house, which version not only she but also her mother has materially contradicted. According to the mother her other children had come back from school at 4.00 p.m. and according to the prosecutrix the house of her uncle, where lady members and children also reside, is just adjoining to their house having a common wall. Now if other persons were residing and present in and around the house at the relevant time, then the version of the prosecutrix that she was subjected to sexual intercourse for two hours is absolutely unbelievable. Her version in Court that she was gagged is also conspicuously absent in her statement recorded under Section 161 Cr. P.C. (Ext. PG) by the police with which she was confronted with. She was allegedly carrying a pregnancy of two months which also is not proved by medical evidence. Where? when? and before whom the threats were given by the accused is not substantiated by the prosecutrix. Consequently her plea that she was subjected to rape earlier and that she was silent and did not report the matter to anyone, for this reason seems to be improbable and unbelievable. 7 11. Our attention is invited to the deposition of Sh. Joginder Singh (DW-1) and Sh. Sanjeev Kumar (DW-2) to the effect that there was animosity between the families of the accused and the prosecutrix and that the family of the prosecutrix had also levelled false allegations of molestation against her own first cousin. We are not going into this aspect of the matter particularly in view of our earlier discussions. 12. Thus we find that prosecution has not been able to prove the charged offences by leading clear, cogent, convincing and reliable material on record. 13. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the person has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Justice R. B. Misra), Judge. (Justice Sanjay Karol), Judge. May 19, 2011 (PK)