IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 199 of 1999 Date of Decision: 8.7.2010 State of H.P. …Appellant. Versus. Jai Gopal @ Kala …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for Reporting? No For the Appellant: Mr. Vivek Singh Thakur, Addl. Advocate General. For the Respondent: Mr. Inderjit Narwal, Advocate. Per Deepak Gupta, J.(Oral). 1. This appeal by the State is directed against the judgement dated 5.1.1999 delivered by the learned Sessions Judge, Solan in Sessions Trial No. 15-S/7 of 1997 whereby he acquitted the accused of having committed offences punishable under Sections 342 and 376 of the Indian Penal Code. 2. The prosecution story, in brief, is that on 12.11.1996 it was a festival of Bhaiya Dooj. PW-2 Sundri, mother of the prosecutrix, had gone from her matrimonial home at village Tipra to her parental home at Kalka to celebrate the said festival with her brothers. Her daughter (the 2 prosecutrix) aged about 11-12 years was in the house at that time. PW-7, Rachna, daughter-in-law of PW-2 and sister-in-law (brother’s wife) of the prosecutrix requested the prosecutrix to go to the house of the accused to fetch milk. According to the prosecution, the accused locked the door and had sexual intercourse with the prosecutrix. He gave her Rs.10/- and threatened her not to disclose this fact to anybody. In the evening the mother came home, but the prosecutrix did not tell her anything. The prosecutrix gave Rs.30/- to her mother, which she had collected on account of money given by the brothers on Bhaiya Dooj. Next day in the evening when the mother (PW-2) was preparing the meals she asked the prosecutrix whether she (the prosecutrix) had any other money and then the prosecutrix said that she had been given Rs.5/- on Bhaiya Dooj by one Kuldip and Rs.10/- by the accused. The mother asked the prosecutrix why the accused had given her Rs.10/-. On this query, the prosecutrix started crying and stated that the accused had locked her in the room, untied her salwar and had sexual intercourse with her. 3. On the same evening when the father of the prosecutrix (PW-3 Asha Ram) returned home, the mother of the prosecutrix told him about the occurrence. They 3 then went to the Police Station at Parwanoo the next morning to lodge the report and the mother Sundri lodged report Ext.PW-2/A in this behalf. Thereafter, the prosecutrix was medically examined. The accused was arrested and was also got medically examined. After completion of investigation, the accused was challaned and charged with having committed the offences aforesaid. The learned trial court acquitted the accused. Hence the present appeal. 4. The law in regard to rape cases is well settled. The statement of the prosecutrix does not necessarily require corroboration. However, the statement must inspire confidence. The law with regard to appreciation of child witness is also well settled. A child by its inherent nature would normally tell the truth. However, a child if in the custody of the parents can easily be tutored and in case the child is tutored he/she may start believing what has been told by the parents or others having control over the child to be the truth. In the present case the prosecutrix has clearly stated that when she went to the house of the accused to collect milk, the accused bolted the door from inside and took her (the prosecutrix) to bed. He took off his pants, untied the salwar of the prosecutrix and inserted his male organ in her private 4 part. Thereafter the accused gave her a 10 rupees note and told her not to disclose the occurrence to any person. If this statement is taken at its face value, there can be no manner of doubt that the accused would be guilty of having committed the offences aforesaid. In cross- examination, the prosecutrix stated that she felt no pain when she was being raped. No blood oozed out. The accused is 46 year old. Even if slightest penetration has taken place in the case of 11 year old girl she would have felt some pain at least. 5. The statement of the prosecutrix also does not find support from the medical evidence. PW-4 Dr. Anita Sood examined the prosecutrix on 14.11.1996 i.e. two days after the incident. She found no mark or injury either on the internal or on the external genitalia of the prosecutrix. She found no tear or blood stains in the hymen. According to the doctor, the possibility of sexual assault could not be ruled out and it could have been attempted penetration or partial penetration. After the report was received from the Forensic Laboratory, she gave her final opinion that it may be a case of attempt to rape but not a case of rape. In cross examination, she admitted that even this opinion of it being a case of attempt to rape was based only on the whitish stains, which she had 5 found on the salwar of the prosecutrix. In forensic examination, it has not been found that these whitish stains were of semen. Therefore, this factor cannot be used against the accused. 6. In addition to the fact that the medical evidence does not support the prosecution, there are other factors which go to show that the prosecutrix and her parents have not disclosed the entire truth. In the FIR Ext.PW/2/A, it was clearly mentioned that when the mother came home on the day of Bhaiya Dooj itself i.e. on 12.11.1006, the prosecutrix gave her Rs.30/-. While appearing in Court the mother stated that when she returned home on Bhaiya Dooj the prosecutrix was sleeping. According to the statement made in Court by the mother, on next morning the prosecutrix went to school and it was only when she (the prosecutrix) returned home in the evening the mother enquired from the prosecutrix about the money received by the prosecutrix on the occasion of Bhaiya Dooj and it was at that time when the prosecutrix told her that 5 rupees were given by her brothers and 10 rupees by the accused. The mother denied that she had told the police that the prosecutrix had given Rs.30/- to her on the day of Bhaiya Dooj itself. 6 7. This contradiction becomes material in view of the fact that the FIR was lodged only on 14.11.1996 two days after the incident. Whereas in the first version it was stated that Rs.30/- were given by the brothers, Rs.5/- by Kuldip and Rs.10/- by the accused in the statement of the mother recorded in Court it was stated that Rs.5/- were given by the brothers and Rs.10/- by the accused. The prosecutrix gave a totally different version. According to her, Rs.5/- were given to her by Kuldip and Rs.10/- by the accused. She remained totally silent about what money was given by her real brothers. 8. The prosecutrix only stated that she had been sent by her sister-in-law (PW-7) to fetch milk from the house of the accused. The mother (PW-2) stated that her daughter-in-law (PW-7) had given Rs.2/- to the prosecutrix for purchasing milk from the accused. According to the PW-2, the prosecutrix brought back this amount of Rs.2/- and handed over the same to PW-7 Rachna, but the prosecutrix does not say a word that she took any money. According to the prosecutrix, she and her family were not purchasing milk from the accused and on that day it was for the first time she was sent to bring milk from the house of the accused. This statement is totally contradictory to the statement of mother (PW- 7 2), who said that they regularly buy milk from the accused but on cash basis. PW-7 gave a totally different version. According to her they were buying the milk on regular basis @ Rs.12 per litre from the accused and were paying him at the end of the month. 9. Another reason to doubt the prosecution version is that according to PW-7, the prosecutrix came back after 1½ hours but she did not deem it fit to enquire about where the prosecutrix had been for such a long time. The version of this witness (PW-7) that the prosecutrix told her about the occurrence on the next day in the evening, cannot be believed since according to her she did not tell this fact even to her husband. It cannot be believed that the wife would not tell her husband that his minor sister aged about 11-12 years had been raped by a 46 year old man. 10. As noted above the FIR was lodged on 14.11.1996 at about 2.00 p.m. Delay by itself may not be fatal to the prosecution especially in a case where a minor girl is involved. But here we are dealing with a case where different explanations are coming for explaining the delay. According to the prosecutrix on the day of Bhaiya Dooj itself she told her mother that she had been raped. The mother gave one version in the FIR that the 8 prosecutrix had not told her anything on her return from Kalka on the day of Bhaiya Dooj except handed over Rs.30/- which were given by her sons (brothers of the prosecutrix) on the occasion of Bhaiya Dooj. In fact she gave another version in Court that on the day of Bhaiya Dooj when she returned, the prosecutrix was sleeping and she talked her for the first time in the next evening. 11. The father (PW-3) gave a totally different version. According to him on the 3rd day from Bhaiya Dooj he was informed by his wife. These three versions are totally contradictory to each other. 12. The conduct of the parents in this case also casts a doubt on the prosecution story. The prosecutrix told her mother that she had been raped. According to the mother she did not try to physically inspect the body of the child to see what injury she had suffered. This is not a normal conduct. According to her she only examined the salwar and nothing else. The conduct of the father is even worse. If his statement is to be believed then he did not even talk with his daughter about what had happened. He did not confront the accused or make any complaint in the village even though for the whole night they were in the village and left for Parwanoo sometime at noon, since 9 admittedly the Police Station Parwanoo is hardly at a distance of 3-4 Kms from their village. 13. In view of above discussion, it is very difficult to rely upon the testimony of the prosecutrix. It cannot be said with certainty that she is stating the truth. The benefit has to be given to the accused. Therefore, we find no merit in the appeal. The same is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. 8th July, 2010 ( Sanjay Karol ) (VT) Judge.