IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 65 of 1997 Date of decision: 31.05.2010 ________________________________________________________________ The State of H.P. .....Appellant. Versus Jitender Singh .....Respondent. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. Whether approved for reporting?1 ________________________________________________________________ For the appellant: Mr. Rajinder Dogra, Additional Advocate General with Mr. Vikas Rathore, Deputy Advocate General. For the respondent: Mr. Tara Singh Chauhan, Advocate. ________________________________________________________________ R.B. Misra, J (Oral) . The present criminal appeal has come for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment and order dated 31.08.1996, passed by the learned Sessions Judge, Bilaspur, District Bilaspur, Himachal Pradesh, in case No. 2 of 1994, acquitting the alleged accused under Section 376 of the Indian Penal Code. 2. In order to adjudicate the criminal appeal, it is necessary to give the factual background of the case. 3. The case of the prosecution precisely is that Smt. Ram Piari, PW-5/the victim/prosecutrix, wife of Shri Ram Dev, resident of village Jamli, lodged a report to the police on 09.03.1993 at 4 P.M. that she had been living separately from her in-laws' and her husband is a private truck driver, who had gone away for work. When she went for 1 Whether reporters of Local Papers may be allowed to see the judgment? :-2-: grass collection in Tharal forest and had collected grass and was about to tie the bundle of grass, accused Jitender Singh came there and caught hold of her and asked her to agree for sexual intercourse. On decline, accused broke the string of her salwar as also bangles, tore her salwar and after gagging her mouth with one hand made to lie her down on the ground and had committed rape forcible and thereafter left Rs. 200/- (two currency notes of Rs. 100/-) on the spot and asked the victim not to disclose the occurrence to anybody and ran away. 4. The FIR No. 45/1993 was registered on 10.03.1993. ASI Kaur Chand visited the spot and prepared site plan Ex. PW-8/A and also took into possession two currency notes of Rs. 100/- and broken pieces of bangles, shirt and salwar of the complainant. Accused made disclosure statement, Ex. PW-7/A and got recovered underwear, Ex. P-6. After medical examination of the prosecutrix, her statement under Section 161 Cr.P.C. was recorded. The challan was prepared and case was committed to Sessions Court for the offence under Section 376 of the Indian Penal code. 5. In order to prove its case, prosecution had examined as many as eight witnesses, whereas in defence accused, through his testimony under Section 313 Cr.P.C., has denied the prosecution case and has pleaded innocence. 6. Out of eight prosecution witnesses, the version of prosecutrix, Smt. Ram Piari PW-5, is that she has three children and on 09.03.1993 at about 3 P.M. she had cut the grass in Tharal forest and was about to tie the bundle of the grass, the accused came there. Thereafter, the prosecutrix narrated the same story as has been indicated by the prosecution. 7. In the testimony of PW-5, she deposed that she came to her :-3-: house weeping alongwith Rs. 200/- which the accused had thrown at the place of occurrence. She did not disclose about the occurrence to anybody on that day and kept waiting for her husband, who did not come and has come after two weeks, however, she came to police station on her own and lodged the FIR, Ex. PW-5/A. At her instance, police came on the spot, took into possession broken pieces of bangles from the spot vide memo, Ex. PW-5/B, in presence of Sant Ram and Hari Singh. Salwar and kameez were handed over to the police, which was taken into possession as Ex. PW-5/C. Ex. P-2 is shirt and Ex. P-3 is salwar, which were handed over to police and Rs. 200/- were handed over to the police at her house, which were taken into possession vide memo, Ex. PW-5/D, in presence of Sant Ram and Hari Singh. Ex. P-4 and Ex. P-5 are the two currency notes of 100/- denomination. When her husband came after 2-3 days after occurrence, she told the entire occurrence to him. According to PW-5, she did not tell him about the occurrence earlier, because she was having strained relations with him. According to testimony of PW-5, she had disclosed about the occurrence to Smt. Kamla Devi, who was serving as a teacher in the village on the next day of occurrence prior to coming to the police station and lodging the FIR. According to PW-5, accused had on two earlier occasions teased her and complaint in that respect was made by her husband to the father of the accused and an assurance was given by the father of the accused that such action would not be repeated in future. In cross- examination, PW-5 has stated that her parents-in-law, Devar and Devarani also reside in the same village and there are 25 houses in village Jamli and her house is just below the National Highway, which goes from Bilaspur to Kiratpur. There are 5-6 shops near her house. Ram Dittu and wife of Gandhi Ram are the two members of Panchayat :-4-: of their village, however, incident was not narrated even to anybody or parents-in-law, Devar, Devarani, members of the Panchayat or shop- keepers before going to the Police Station. 8. As per testimony of PW-5 in her cross-examination PW-5 has stated to police that accused had broken her bangles during the sexual assault and the bangle pieces were lying at the spot. PW-5 in her cross-examination has stated that she was carrying a 'daraat' with her for cutting grass in the jungle and when she was about to tie a bundle of grass at the spot daraat was in her hand. Accused scuffled with her and threw the daraat after snatching it from her hands. PW-5 has stated in her cross-examination that accused threw her on the thorny bushes and one and two thorns were pricked on her back, which were removed by her husband when he came back. There are small stones and pebbles on the ground over which the accused had made to lie down the prosecutrix and she felt the impact of these stones on her back. Accused gagged the mouth of the prosecutrix with one hand and as such she could not bite his hands. According to PW-5, accused gagged her mouth when she was made to lie down on the ground. PW-5 tried to rescue herself from the accused but could not do so, however, PW-5 in her cross-examination has specifically indicated that she did not try to push the accused with her hands. She did not tell to the doctor at the time of medical examination that she had any impact of stones on her back or that there were any thorns pricked on her back. 9. PW-1 Dr. J. Goswami, Medical Officer, stated that on 10.03.1993 at 3:15 P.M. he examined Smt. Ram Piari, aged 24 years, who was brought by a lady constable, Smt. Veena Kumari. On examination, the prosecutrix was found to be a well-built female and following observations were made: :-5-: “Breasts are sagging, no evidence of violence. Vulva- no evidence of violence, pubic hair are present. Thighs also shows no evidence of violence. On internal examination, vagina admits two fingers easily, no bleeding present. On Bimanual examination, uterus is multiparus size, fornices are clear, cervix is firm and mobile. There is no tenderness. Sperm not found on examination of slides of vaginal smear. Tubectomy scar present on abdomen. In my opinion, there is no evidence to suggest sexual violence. I issued the M.L.C. Ext. PW1/A which is in my hands and bears my signatures. She was examined on the application of the police Ext. PW1/B. I have also gone through the chemical examination report Ext. PW1/C. According to the Chemical Examiner, sexual intercourse may have taken place on 9-3-1993.” 10. From the testimony of Dr. J. Goswami PW-1, a specific report has been given that in his opinion there is no evidence to suggest sexual violence over the prosecutrix and in cross-examination of PW-1, no specific date with regard to commission of rape has been mentioned. 11. PW-8, ASI Kaur Chand, on the complaint visited the spot, prepared the site plan and took into possession two currency notes of Rs. 100/- each, Ex. P-4 and Ex. P-5, vide memo Ex. PW-5/D and took into possession broken pieces of bangles and also took into possession shirt and salwar of the prosecutrix. 12. On examination of prosecution witnesses, material on record as well as recovery memo Ex. PW-5/B, we notice that the broken pieces of bangles were recovered and Ex. PW-5/D said to be recovery memo of Rs. 200/- (two currency notes of Rs. 100/-) from the prosecutrix reveal that recovery of Rs. 200/- which were carried by the prosecutrix is not known from which place such notes were handed over to the police, these were recovered in police station or these were :-6-: recovered from the house of the prosecutrix. Recovery memo does not divulge that daraat was recovered from the spot. Prosecution has not bothered to indicate about the bundle of grass, as the grass after being collected was about to be tied up and the broken pieces of bangles could be spotted there. It is very surprising that under what circumstances bundle of grass was there and no suggestion was ever made by the prosecutrix to ensure the definite presence of bundle of grass at the place of occurrence and two vital things, daraat and the grass collection and untied grass, which was to be tied before that incident took place, was not linked with the prosecutrix and the offence. PW-1 Dr. J. Goswami, has very categorically indicated in his opinion that there is no evidence of sexual assault. No scratch mark was ever noticed, no thorn was found to be inside the body near the neck and the recovery itself becomes doubtful and the prosecution witnesses, specifically PW-5 does not inspire confidence, as the manner of description of the sexual assault was narrated by PW-5. 13. On analysis of prosecution witnesses and material on record, discrepancies are apparent and the prosecution witnesses are not inspiring confidence, as such learned Sessions Judge has rightly acquitted the accused for an offence under Section 376 of the Indian Penal Code and in our considered view also, prosecution has failed to prove its case beyond reasonable doubt. We find no merit in the appeal and appeal being devoid of merit is dismissed. (R.B. Misra) Judge (V.K. Sharma) Judge 31st May, 2010 (virender)