HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 189 of 1995 Reserved on: 27.5.2009 Decided on: 02.07.2009 State of Himachal Pradesh ……… Appellant. Versus Chattar Singh ………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.R.K. Bawa, Advocate General, with Mr.R.M. Bisht, Deputy Advocate General. For the respondent: Mr.H.K.S. Thakur, Advocate. Per V.K. Ahuja, J.: This is an appeal filed by the State of H.P. against the judgment of the court of the learned Additional Sessions Judge (I), Shimla, dated 16.5.1994, vide which the respondent was acquitted of the charge framed against him under Section 376 of the IPC. Briefly stated the facts of the case are that on 12.6.1991, a police officer was present in the area at about 9.30 a.m., where a statement was made by Kumari ‘M’, (name not mentioned), in presence of her father Tej Ram under Section 154 of the Cr.P.C. The complainant ‘M’ alleged therein that she had been called by her maternal aunt Suni Devi to her house. She reached there on 11.6.1991 at about 8.00 a.m. and the children of her ____________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. maternal uncle, namely, Harish and Nisha were also present in the house. She cooked the food and her maternal aunt left for the fields and Nisha and Harish were present in the lower storey in the shop. She further alleged that one Chatau Ram alias Chatter Singh, who was working as a teacher in Middle School, Bhogra, came there when she was present in the kitchen. He asked her as to how the Mela was going on but she asked him to leave the place, who kept standing there. She further stated that she came up-stairs and Nisha also came there and when she and Nisha were present in the room, respondent Chatter Singh came there and started talking to her as well as to Nisha. Nisha went down to the shop and when she was about to leave the room, Chatter Singh bolted the door from inside at about 5 p.m. She further alleged that thereafter Chatter Singh caught hold of her and threw her on the bed. She further alleged that she raised an alarm and the respondent gave a threat to take her life. She further stated that he opened the string and removed the Salwar and forcibly raped her. Her Salwar was stained and on hearing her cries, Hem Raj, Kailash, Nisha and Harish came there and asked the respondent to open the bolt of the door, which was not opened by the respondent. Thereafter, those persons bolted the door from outside and went to call other persons. Meanwhile, the respondent turned the iron bars of the window and ran away. The complainant further alleged that she told Hem Raj and others that she had been forcibly raped by the respondent and the occurrence was also told by her to her brother Puran Chand and her brother’s wife Rekha and one Tara. On this statement, a case was registered and after investigation, the challan was filed before the Court of the learned Sub Divisional Judicial Magistrate, Rampur Bushahr, who committed the case to the learned Sessions Judge, Shimla. Thereafter, the case was assigned to the learned trial Court, who tried the respondent under Section 376 of the IPC leading to his acquittal. We have heard the learned Advocate General for the State and the learned counsel for the respondent and have gone through the record of the case. The submissions made by the learned Advocate General for the State were that there is sufficient evidence on record to show that the prosecutrix was forcibly raped by the respondent and her statement, coupled with other evidence, proves the guilt of the respondent and the findings to the contrary recorded by the learned trial Court are liable to be reversed being perverse. On the other hand, the learned counsel for the respondent had supported the impugned judgment for the reasons recorded therein supplementing it by the submission that it was not proved by the prosecution that the prosecutrix was below the age of 16 years at the time of occurrence and since she appears to be a consenting party to the sexual intercourse, if any, therefore, the findings recorded by the learned trial Court do not call for an interference by this Court. The first point to be considered by this Court is qua the age of the prosecutrix at the time of the occurrence since it is material to consider as to what was the age of the prosecutrix at the time of occurrence and whether she was capable to give her consent or not. PW-1, the prosecutrix (Kumari M), had given her age as 17 years at the time when her statement was recorded on 20.1.1993 and the occurrence is of 11.6.1991. A perusal of the statement made by her under Section 154 of the Cr.P.C. Ext.PA also shows that at the time of occurrence also, the prosecutrix had given her age as 17 years. She had not given her date of birth either in her statement Ext.PA or when she appeared in the court and this age has been given by approximation only. No copy of the birth entry of the prosecutrix has been proved on record. The only evidence proved on record is the report of the Radiologist in this regard. Coming to this evidence, PW-15 Dr.A. Santoshi has stated that the prosecutrix was referred to him from Rampur Civil Hospital for ascertaining the skeleton age of the prosecutrix. He took skiagrams Exts.P-2 to P-9 and after examining them, he gave the age of the prosecutrix as 15 to 16- 1/2 years and his opinion is Ext.PG. He admitted that while giving the skeleton age, the margin of plus-minus of two years is there and, therefore, the age of the prosecutrix can also be said to be 18-1/2 years. According to the well settled principle, two years margin is there in regard to the opinion given by the Radiologist and accordingly, the age of the prosecutrix can be said to be in between 17 to 18-1/2 years at the time of occurrence. Once there are findings to this effect that according to the Radiologist’s opinion, the age of the prosecutrix was above the age of 16 years, it has to be proved by the prosecution that sexual intercourse was committed upon the prosecutrix without her consent since she was above the age of 16 years. There is no other specific evidence on record in regard to the age of the prosecutrix. The learned trial Court had observed many infirmities in the statement of the prosecutrix and other evidence and accordingly, it was held that the case of the prosecution was not proved beyond any reasonable doubt. One fact recorded by the learned trial Court was that 4/5 days prior to the occurrence, in some tournament, the prosecutrix was seen photographed with the accused and another girl, and the prosecutrix admitted that in photograph Ext.DX, she was sitting with the accused. She gave an explanation that the accused was friendly with the other girl, but she agreed to be photographed alongwith them. The prosecutrix in her statement as PW-1 also stated that she had not gone to school and further stated that she was totally illiterate. This explanation may have been given by her when she admitted in her examination- in-chief that she remained inside the room with the accused for about 45 minutes. She gave an explanation that she did not know as to what it means with 45 minutes and accordingly, she had come up with the plea that she was an illiterate. However, there is other evidence to show that the prosecutrix had deposed falsely that she was an illiterate. PW-2 Suni Devi, aunt of the prosecutrix, has stated that the prosecutrix must have studied upto 6/7th standard and she saw her going to school for 6-7 years. She also gave the name of the School as Middle School, Mogra and another school at village Kangal. PW-3 Nisha, cousin of the prosecutrix, admitted that the prosecutrix had studied upto 6th class at Schools Mogra and Kangal, who had corroborated the testimony of PW-2 Smt.Suni Devi. These facts are sufficient to show that the prosecutrix had deposed falsely that she was an illiterate to give an explanation that she had no knowledge of 45 minutes which she stated in her examination-in-chief when she and the accused were present in one room. A perusal of the statement of PW-1, the prosecutrix, shows that she raised cries but the accused had gagged her mouth. She further stated that on hearing her cries, Hem Raj knocked the door from outside and the accused quarreled with Hem Raj and stated that he did not commit any sexual intercourse, upon which the said Hem Raj bolted the door from outside. Then the accused broke open the iron bars of the window and ran away. It looks surprising that the door was got opened by Hem Raj and having found the prosecutrix and the accused inside the room, he would go out to call people by bolting the door from the outside and will allow the girl to remain inside the room with the accused. This may be suggestive of the fact that the prosecutrix and the accused may be there in the room with the consent and it may be the reason that he did not take out the prosecutrix outside and went to call other relatives. She stated that she was not knowing the accused. The photograph referred to above clearly proves that she was knowing the accused and had even mentioned the fact that he was working as a teacher, living in rented house as per the report Ext.PA lodged by her with the police. She denied the suggestion that she was habitual to sexual intercourse and stated that she was a virgin till the time the accused subjected her to forcible sexual intercourse. Her statement does not find corroboration from the testimony of the Medical Officer, namely, PW-14 Dr.Sushma Bajaj, who examined the prosecutrix and gave her report Ext.PF. She clearly stated that the girl was habitual to sexual intercourse and it may be that she was used to sexual intercourse for years. The doctor clearly stated that the hymen was destroyed and it admitted two fingers without pain. This clearly shows that the statement of the prosecutrix that she was virgin and was not used to sexual intercourse does not stand corroborated by the medical evidence on record. It is in the statement of the prosecutrix herself when she appeared in the witness box as PW-1 that at the time she was inside the room or it was bolted by the accused, Nisha (her cousin) had gone out to play with the children and her other cousins were also outside. Harish was also playing in the courtyard at that time, who is her cousin, and all the children were playing at a distance of 4-5 feet away from the said door. It looks improbable that the accused would have attempted to rape the prosecutrix when her 2-3 cousins were playing outside the door itself, who could have easily heard the cries raised by the prosecutrix. The fact that the accused came to the house stands proved from the testimony of PW-2 Suni Devi, aunt of the prosecutrix, who saw the accused there when she left for agricultural work. She only stated in her statement that when she came back, the prosecutrix had left for her parental house. She was told by Nisha that the accused and the prosecutrix were found inside the room, which was bolted from outside by Hem Raj and she did not state that she learnt that the accused had raped the prosecutrix at that time. She rather admitted that Nisha did not tell her anything about any sexual intercourse committed by the accused on the prosecutrix inside the room. It appears that in the next morning, the facts may have been twisted and a case made out for sexual assault. PW-3 Nisha, cousin of the prosecutrix, has stated that she was dusting the room and then she started playing with Harish and other children and then she heard the shrieks of the prosecutrix and the accused did not open the door. It was thereafter bolted by Hem Raj and the accused ran away. She stated that she heard 10-12 cries raised by the prosecutrix, but the prosecutrix had stated that she cried once and then her mouth was gagged by the accused. PW-4 Rekha Devi has stated that the prosecutrix was the real sister of her husband. She further stated that one Hem Raj came to their house and disclosed that they had caught a thief. It was never stated that the said person was a rapist who had raped the prosecutrix and, therefore, he had been apprehended at the spot by the persons present there. The said Hem Raj, about whom a reference has come up in evidence and who had knocked the door and bolted it from outside, has stated that he heard the cries and the accused unbolted the door, though the other evidence is that it was not unbolted, and then he bolted it from the outside. He stated that when the door was opened, he found the prosecutrix weeping on the bed and the accused claimed that he had not done anything with the prosecutrix. He went to call the parents of the prosecutrix and informed her brother Puran Chand in regard to this episode. He admitted that he and Harish were playing at a distance of 10-15 feet. He heard only one or two cries and reached there and knocked the door. He, however, stated that before hearing the cries, he had heard all the conversation between the prosecutrix and the accused for 2-4 minutes. From the above discussion of the evidence, it is clear that it looks improbable that the accused would have committed the rape with the prosecutrix when other children were playing just outside the room and the facts clearly show that the possibility that the prosecutrix was the consenting party cannot be ruled out, who was found inside the room alongwith the accused, which led to the door being bolted from outside and all this is suggestive of the fact that the prosecution evidence does not establish beyond any reasonable doubt that rape was committed by the respondent upon the person of the prosecutrix. The findings recorded by the learned trial Court are based upon correct appreciation of evidence and they cannot be termed, in any manner, as perverse and as such there is 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. July 2, 2009. (V.K. Ahuja), (TILAK) Judge.