1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 512 of 2001 Decided on May 11, 2011 ________________________________________________________________ State of H.P. …Appellant. Versus Shaukat Ali ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. ¹Whether approved for reporting? For the appellant: Mr.R.K. Sharma, Senior Additional Advocate General. For the respondent: Mr. M.A. Khan, Advocate. Justice R.B. Misra,J. (Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal has been granted under Section 378 (3) of the Code of criminal Procedure in reference to judgment dated 2.6.2001, passed by Learned Sessions Judge, Una District Una, H.P., in Sessions Case No. 7 of 2000, for the offence under Section 376 and 506 of the Indian Penal Code, acquitting the alleged accused / respondent. 2. The prosecution case, in brief, is that the victim- prosecutrix (name not given), a married lady, mother of two children was undergoing four months pregnancy at the time of incident, had reported to the police vide Ex.PF that on 29.7.1999 her husband had gone to 'Tille-Wali-Dhar' for his work and she had gone to the Jungle to fetch grass. While she was cutting grass, accused Shaukat Ali, came 2 from behind and caught hold of her waist and made her lie on the ground and gagged her mouth with one hand. Thereafter, accused forcibly opened the string of her Salwar, tored away her shirt and committed sexual intercourse with her against her consent. During sexual intercourse, she made noise, whereupon, Nasar Din (PW.7) came there and he rescued her from the clutches of the accused. After investigation, FIR (Ex.PN), was registered at Polcie Station, Gagret by Inspector Khoob Ram (PW.17). 3. The case was partly investigated by ASI Prem Chand (PW.16) who took into possession the 'Kameez' of the prosecutrix Ex.P2, her 'Salwar' Ex.P3 and 'Dupatta' Ex.P4 vide memo Ex.PG. After completion of investigation, the accused was arrested and charged for the above offences and the case was committed for trial to the Sessions Court. 4. In order to prove its case, the prosecution has examined as many as 17 prosecution witnesses. Whereas, the accused / respondent through his statement under Section 313 of Cr.P.C., has denied the prosecution case. 5. PW.1 Dr.Ashish Lekhi medically examined the victim-prosecutrix on 30.7.1999 at about 3.15 A.M. and found the victim-prosecutrix about 25 years of age, she was conscious and was found to have changed her clothes. However, she had handed over her clothes to the police, 3 which she was wearing at the incident. On examination, no bruises, abrasion and any other injury marks were found present on the her face. No teeth mark was found on the face and lips. No injury marks present on the neck, breast, chest abdomen, back and on the arms. A small skill abrasion 1 mm long with inflammation around it was present on the dorsum of junction of middle and distal phalyns of left middle finger. No injury mark of any kind was found on her private part. Stains of semen on the salwar of the prosecutrix may be of her husband. There was no stains of blood and semen present on the kameez, dupatta and slides prepared from the vaginal swab of the victim. Underwear of Shaukat Ali contains stains of human semen, but no stains of human blood present on it. PW.1 Dr.Ashish Lekhi has stated that it cannot be said that no rape has been done. In cross-examination, PW.1 Dr.Ashish Lekhi, has stated that stains of semen on the salwar of the prosecutrix may be of her husband. No semen stain or blood stains were found on the thighs, genitalia of the prosecutrix. The semen stains may be on the underwear of married or unmarried person also if there is discharge of semen. 6. PW.2 Dr.Gian Thakur, has stated that he received a sealed parcel 'K' alongwith specimen seal 4 through Constable Pradeep Kumar on 12.8.1999. After opening the sealed parcels the examination was carried out by him and opinion was found as indicated by PW.1. 7. PW.3, the victim-prosecutrix, in support of the prosecution case has stated that on 29.7.1999, she went to cut grass from Lalmuh jungle and the land from where the grass was to be cut was owned by Kartaroo Devi and Hakam Din purchased the grass from Kartaro and PW.3 purchased the grass from Hakam Din. While PW.3 victim- prosecutrix was cutting grass, one person came from behind and made her lie on the ground from behind. He put one hand on her mouth and pressed by neck from the other hand. Hands of the prosecutrix were below her back on the ground when she was thrown into the ground. Thereafter, accused Shaukat Ali removed the hand from her neck and tore the string of her salwar with that hand while keeping the other hand on her mouth. The accused committed sexual intercourse with PW.3 victim-prosecutrix against her wish and consent. The accused tored her salwar and shirt. She raised hue and cry and after some time Nasar Din came and rescued the prosecutrix from the clutches of the accused. PW.3 victim-prosecutrix has further stated that Bishat Mohammad and Saleem Mohammad also came on the spot after some time and they also witnessed the occurrence. PW.3 came home at 5 about 4.00 P.M., however, she narrated the entire incident to her mother-in-law. Husband of victim-prosecutrix came home at about 8.30 P.M., then PW.3 and her mother-in-law narrated the incident to him. Thereafter, PW.3 victim- prosecutrix, her husband and mother-in-law went to the house of Sardar Ali and narrated the incident to him. On 29.7.1999 itself the report was lodged at Police Post, Daulatpur. In cross-examination, PW.3 victim-prosecutrix, has stated that she did not remember whether in her statement to the police she told that her bangles were also broken or not. Initially she stated that she was conscious when she gave the statement, but she was not fully conscious due to knee injury given by the accused. However, she remained in hospital for 13 days and then bangles were shown to her. She remained unconscious in the hospital and became conscious two days before her discharge from the hospital. PW.3 told the police in her statement that the string of her salwar was broken by the accused. However, such thing has not been recorded in Ex.PF. PW.3 victim-prosecutrix, has very categorically stated in cross-examination that she struggled for 10-15 minutes with the accused to save her life. The semen of the accused also fell on her thighs and clothes. 6 8. PW.4 Sh.Parmod Din is husband of the victim- prosecutrix, who has endeavoured to support the prosecution case, after the narration was made to him by the victim-prosecutrix. PW.4 has stated that on 29.7.1999 on the day of occurrence, he went to the house of Sardar Ali and narrated the entire incident to him. Thereafter, they met Zamal Deen, Panch Hakam Deen and the entire incident was narrated to them. PW.4 Parmod Din has also narrated the incident to Lamberdar Sadhu Singh. PW.4 has stated that his wife was unconscious at home. At the police post also she was unconscious and in hospital also she was unconscious. From the testimony of PW.4, it appears that on the basis of information given by the victim-prosecutrix, her husband has made statement, however, it is not clear that when his wife was unconscious at home, even at police post, then how she could have narrated the incident to him. 9. PW.5 Sh.Sardar Ali has stated that on 29.7.1999 at about 4.30 P.M., Sheena Bibi and Ashmeen Bibi told that accused Shaukat Ali committed rape on the victim- prosecutrix. Thereafter, they went in the jeep to the police post, Daulatpur, where the victim-prosecutrix lodged report (Ex.PF) to the police in which she put her signatures. In cross-examination PW.5 has stated that he went to the house of Hakam Din Panch at about 5.00 P.M. 7 alongwith his brother Rahmat Din, thereafter, PW.5 Sardar Ali went to the house of Jamal Deen at about 6.00 P.M. However, nothing substantial is emanating from the testimony of PW.5 as well as PW.4. But there are improbabilities appearing in the statement PW.4, husband of the victim-prosecutrix, who has stated that her wife was unconscious at home as well as at the police post, then how she could have lodged the report and put her signatures. 10. PW.6 Sh.Sadhu Singh has stated that on 29.7.1999 at about 11.00 P.M., victim-prosecutrix, Sheena Bibi, Pramod Din, Jamal Din, Sardar Ali came to his house and they told that at about 3.00 P.M., Shaukat Ali accused committed rape on the victim-prosecutrix. PW.6 told the aforesaid persons to arrange for the vehicle and to go to the police to lodge the report. PW.6 also accompanied them to the police post, Daulatpur, where report was lodged by the victim-prosecutrix. As per testimony of PW.6, broken bangles were lying on the spot, which were taken into possession vide memo Ex.PJ. From the testimony of PW.6 Sadhu Singh, it appears that he has to put signatures on the recovery memo of the bangles shown to the victim-prosecutrix after 13 days of the occurrence. 8 11. PW.7 Sh.Nasar Din, is said to have witnessed the occurrence. PW.7 has stated that on 29.7.1999 while he was collecting the barbed wire in the forest at Lalu Muhn Jungle, Shaukat Ali (accused), Visat Ali and Saleem Mohammad were also with him at that time, at work and on hearing the cries he went to the spot and found that accused had caught the victim-prosecutrix and he rescued her from the clutches of the accused. PW.7 has further stated that the victim-prosecutrix was lying on the ground and accused had caught her when he reached the spot. In cross-examination, PW.7 Nasar Din has stated that accused had kept one hand on her breast and other on her waist. Visat Ali and Saleem also reached the spot in the meantime. PW.7 has further stated in cross-examination that accused threatened the victim-prosecutrix to put her death if she disclosed the incident to any person. Subsequently, PW.7 Nasar Din has denied that accused Shaukat Ali committed rape on victim-prosecutrix and went away. PW.7 Nasar Din has further stated in cross- examination that there is land of Padam Singh near the land of Kartaro Devi, whereas the victim-prosecutrix was cutting grass in the land of Padam Singh which grass was purchased by the accused. From the testimony of PW.7, it appears that he had not seen the occurrence and at the 9 relevant time only he had rescued the victim-prosecutrix from the clutches of the accused. As per testimony of PW.7, accused Shaukat Ali, Visat Ali and Saleem Mohammad were also with him at that time and on hearing cries of the victim-prosecutrix they reached the spot, however, nothing has been emanating from the testimony of PW.7 that they had seen the occurrence. PW.3 victim-prosecutrix has very categorically stated in cross-examination that she struggled for 10-15 minutes to save herself, however, no injury has been noticed on her body in medical examination. PW.7 Nasar Din, is stated to have seen the occurrence, however did not see the victim-prosecutrix while struggling with the accused to save her life, when he reached to the spot, as such, presence of PW.7 Nasar Din on the spot becomes doubtful. 12. PW.8 Sh.Kamal Din and PW.8 Smt.Kartaro Devi are not very material to support the prosecution case. Whereas, PW.10 Sh.Visharad Mohammad has stated that at the relevant date accused Shaukat Ali, Nazar Din and Saleem Din were at work as labourers in Forest Department, at Lalmuh jungle, and victim-prosecutrix was cutting grass nearby, at that time accused went to her and asked her that why she was cutting his grass which he purchased from Padam Singh. Thereafter, altercation took 10 place between them and PW.10 Sh.Visharad Mohammad caught accused Shaukat Ali and took him aside. Nothing has been emanating from the testimony of PW.10, except that some altercation took place between the accused and the victim-prosecutrix. 13. As per testimony of PW.11 Saleem Mohammad, some altercation took place between the accused and victim-prosecutrix regarding cutting of grass, however, she never cried. PW.11, however, has not supported the prosecution case. 14. PW.12 Sh.Dilwari Lal, PW.13 Constable Satish Kumar, PW.14 LHC Ramesh Chander, PW.15 Sh.Pradeep Kumar, PW.16 Sh.Prem Chand and PW.17 Inspector Khub Ram in due discharge of their official duty have endeavoured to support the prosecution case to the extent the role assigned to them. 15. On analysis of the prosecution witnesses and materials on record, we notice that nothing is emanating from the testimony of PW.1 and PW.2 that any kind of injury was noticed on the person of the victim-prosecutrix. No such sign or mark was noticed which could prove that sexual intercourse committed by the accused on the victim-prosecutrix on the fateful day. In view of the testimony of victim-prosecutrix (PW.3) major improvements have been made from beginning to the end. 11 She has very categorically stated in cross-examination that she has quarrelled for 10-15 minutes, however, such quarrel has not been noticed by PW.7 Nasar Din, who is stated to have come to the spot and had witnessed the occurrence. In view of the testimony of PW.4, the victim- prosecutrix was unconscious at home and at Police Post as well as in the hospital, but surprisingly how she made the statement at Police Post and lodged the FIR and also put her signatures. Sole testimony of the victim-prosecutrix (PW.3), is not inspiring confidence and has also not been corroborated by any other independent witness. 16. In the facts and circumstances, on analysis of the prosecution witnesses as well as materials on record, we are of the considered view that the prosecution has failed to bring home the guilt to the accused and has failed to prove its case beyond reasonable doubt. Therefore, there is no scope of interference in the findings given by learned Sessions Judge. Accordingly, the present criminal appeal, being devoid of any merit, is dismissed. 17. The bail bonds furnished by the accused- respondent are hereby discharged. (R.B. Misra) Judge May 11, 2011 (Sanjay Karol) (Purohit) Judge 12