IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 14/2003 Date of decision: 15. 6. 2010 Sanjiv Kumar …..Appellant Versus State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Appellant: Mr. Anup Chitkara, Advocate. For the respondents : Mr. J.S. Rana, Assistant Advocate General. Surinder Singh, J. Appellant was convicted by the learned Sessions Judge for committing rape on the prosecution (15 years) and sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.20,000/-, in default of payment of fine to further undergo simple imprisonment for a period of one year. 2. Feeling aggrieved by the impugned judgment of conviction and sentence passed 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - in Sessions Trial No. 10 of 2001 decided on 4.1.2003, by the learned Sessions Judge, the present appeal has been preferred. 2(a) In short, the prosecution case, as emerges from its evidence can be summed-up thus. In the year 1998, the prosecutrix was a student of 9th standard studying in Government Senior Secondary School Kanam, wherein the appellant was posted as a lecturer in Political Science. He was residing along with one Science teacher Suresh Kumar in the said building. 2(b) Prosecutrix along with other students Saroj and Raj Kumari used to take tuition in Mathematics from Suresh Kumar, a B. Sc. Teacher and in his absence from the appellant. 2(c) On 25th June, 1998 as usual, prosecutrix along with her class-mates went to the residence of Suresh Kumar for being taught mathematics but he was unwell thus, they were taught by the appellant. The appellant asked the prosecutrix to fetch water, to quench his thirst from an adjacent small room. The moment, prosecutrix went inside the room, the - 3 - appellant followed her and bolted the room from inside. The appellant is alleged to have started molesting her. She raised hue and cry. The appellant gagged her mouth with a handkerchief, laid her on the ground and committed rape on her. The appellant thereafter assured to marry her but warned her not to disclose this fact to any one. 2 (d) On 5th July, 1998, appellant again called the prosecutrix to his residence and committed rape. Thereafter appellant proceeded on leave. He returned from leave on 31st July, 1998. Prosecutrix told that since she was raped by him, she should have been taken by him along with him. The appellant is alleged to have managed his transfer to some other place. Thereafter she disclosed about the above incident to her mother Sanam Dassi (PW2) and B.D.C. member Naresh Kumar (PW9). 2 (e) Her mother along with her maternal aunt Anil Kumari (PW5) and B.D.C. member (PW9) took her to Pradhan Gram Panchayat Spillow. The Pradhan contacted the appellant. He is alleged to have confessed his guilt and executed a writing - 4 - Ext. PW8/A for his marriage with the prosecutrix. The original was retained by Naresh Kumar aforesaid and copy was handed over to the prosecutrix. The prosecutrix stayed with the appellant only for about three days at his residence. The appellant on the pretext of bringing water absconded and did not turn-up. 2(f) After about one month, the matter was reported to the police in terms of FIR Ext. PW13/A. Police got the prosecutrix medically examined. According to the doctor, as per history it could only be said that sexual intercourse had taken place in the past. She was also referred to ascertain the skeletal age. As per ossification report, she was found between 15- 16 ½ years of age. 2(g) During the investigation, police obtained the admission slip Ext. PW3/A of the prosecutrix and also the entry about the date of birth Ext. PW6/A from the School record and a certificate Ext. PW12/A from the Pradhan concerned. Her medico legal certificate is Ext. PW16/G. 2(h) Appellant was arrested. He was also medically examined. His medico legal - 5 - certificate Ext. PW16/H. Police also took into possession copy of Pariwar Register of the prosecutrix (Mark-XX). 3. After recording the statement of the witnesses and completing the investigation, challan was presented in the Court for the trial of the appellant. 4. The appellant was charge sheeted for the aforesaid offence to which he pleaded not guilty and clamed trial. 5. To prove its case, prosecution examined prosecutrix, PW2 Sanam Dassi PW5 Anil Kumari, PW9 Naresh Kumar, PW10 Anita Kumari her class-mate, PW8 Dechin Gialmo, President of the Gram Panchayat Spillow, PW11 Rajiv Mehta, PW16 Dr. Daljit Kaur, Medical Officer and PW17 Mohinder Singh Investigating Officer besides examining other witnesses regarding age. 6. Appellant was also examined under Section 313 of the Code of Criminal Procedure. He took the stand that the prosecutrix had intended to marry him and she along with other witnesses forcibly obtained writing from him. He was transferred from the School on 30th July, 1998. The prosecutrix was forcibly kept in - 6 - his residential room. He left his room and later he was roped in a false case. 7. The appellant was called upon to enter upon his defence but he did not lead any evidence in defence. 8. At the end of the trial, appellant was convicted and sentenced as aforesaid which has been assailed in the present appeal. 9. Shri Anup Chitkara Advocate for the appellant vehemently argued that the FIR in the instant case was registered out of vengeance and grudge against the appellant. The family members of the prosecutrix forcibly intended to marry her with the appellant. Prosecution case is self destructive and self contradictory and the alleged writing was wrong and does not prove the case of the prosecution in any manner. Learned counsel also took me through the evidence on record and ventilated that the case of the prosecution lacks probity. The inordinate delay in lodging the FIR also stands not explained and the statement of the prosecutrix is not worth confidence inspiring. - 7 - 10. Contra Shri J.S. Rana, learned Assistant Advocate General supported the impugned judgment of conviction and sentence. 11. I have given my thoughtful consideration to the rival contention of the parties and have carefully scanned the evidence on record. 12. Although the prosecutrix when examined in the Court stated that she along with Saroj and Raj Kumari used to take tuition from Sh. Suresh Kumar B. Sc. Teacher and at times they used to take tuition in mathematics from the appellant. She stated that on 25th June 1998, she along with her class-mate aforesaid had gone for the tuition to the residence of Suresh Kumar in which building three other teachers along with appellant was residing he was having headache and had gone to sleep thus they were being taught by the appellant. She further stated that the appellant asked her to bring water from the small room. As soon as she entered the room, appellant followed her and bolted the room. The appellant started indulging in unwanted acts with her. She - 8 - raised hue and cry but her mouth was gagged with the handkerchief. The appellant forced the prosecutrix to lie on the ground and committed rape upon her, thereafter told her not to disclose this matter to any one as he would marry her. She further stated that on 5th July, 1998, she was called again by the appellant to his residence and committed rape. He again assured to contact marriage with her but she would not disclose about this incident to any one. Thereafter he proceeded on leave and came back on 31st July, 1998. Later she told to her mother Smt. Sanam Dassi, maternal aunt Anil Kumari and my brother Subhash and B.D.C. member Naresh Kumar about the entire incident. They took her to Pradhan and thereafter the appellant was contacted. He admitted her in their presence as his wife and also gave a writing to this effect. She started living in the house of the appellant and stayed there for three days. Thereafter the appellant absconded on the pretext of bringing water and did not turn up. 13. In cross examination she admitted that all the three teachers were residing - 9 - in that building in which the appellant was residing. It was having common verandah for all the three quarters having approach through the gallery. She further stated that the entire episode took place under the promise of marriage. Had the appellant contacted marriage with her, the matter would not have been reported to the police. She denied that the case was foisted upon the appellant to extort money. 14. To prove the incident, prosecution also relied upon the statement of PW10 Anita Kumari, cousin of the prosecutrix. She was a class-mate of the prosecutrix. But she gave another story. She did not say that she along with prosecutrix used to take tuition in Mathematics from said Shri Suresh Kumar, but she stated that the appellant used to teach Mathematics to them. She further stated that on 25th June, 1998, Sunita Kumari was asked by the appellant to fetch water from the kitchen. After fetching water, prosecutrix went to the kitchen of the appellant and she along with Raj Kumari remained outside. She further stated that the prosecutrix came - 10 - out from the house of the appellant within five minutes and told them that the appellant had committed (Shararat)/teased her. Pertinently, she stated that when the prosecutrix came out from the room, she was quite normal and was not having any signs of abnormality. 15. PW11 Rajiv Mehta at that time was also one of the students. He used to take tuition along with prosecutrix. He stated that on 25th June, 1998 he went to the residential house of Mathematics lecturer and he found the appellant present there. Prosecutrix, Anita Kumari and Raj Kumari girl-students also came there. Mathematics teacher gave them questions of mathematics since he was unwell and went inside the room. Thereafter the appellant taught them English subject not mathematics as stated by the prosecutrix or PW Anita Kumari aforesaid. Significantly, he also introduced another story. According to him, appellant told the prosecutrix to bring water from the tap outside the house but prosecutrix could not do so because there was no water in the tap. Thereafter the appellant told - 11 - her to fetch water from the bucket lying in the kitchen and she was followed by the appellant. Door was closed by him. There was some noise “chhor do Chhor do”. After 4-5 minutes the prosecutrix came out. Neither prosecutrix uttered in her examination this story nor stated by any witness. Further, his conduct is also doubtful. According to him, he narrated about the said incident to his friend Kaka after about 4-5 days. Kaka was not examined. He further stated in his cross- examination that when the prosecutrix came out in the room in his presence, he did not inquire from her as to what had happened inside. When he had heard the noise inside the room, as a prudent person he should have asked the reason for raising such a voice by the prosecutrix. 16. Except the aforesaid evidence, there is no other evidence with respect to the incident and all the statements are varied and have marked difference with respect to the incident in question. It is also important to note that Suresh Kumar, who used to reside in the same building and used to teach prosecutrix and other - 12 - students was present in his room, he was not examined as witness to lend strength to the case of the prosecution. In view of the above, statement of the prosecutrix has lost its credibility. Reason for foisting of a false case upon the appellant appears to be obvious that the prosecutrix might have developed liking for the appellant and she wanted to marry with him. He was transferred from that Station, thus concocted the present case in connivance with her relative to get her married with him. 17. The other evidence produced by the prosecution is also equally dubious. PW2 Sanam Dassi, mother of the prosecutrix stated that when the matter was reported to her by the prosecutrix, she along with her sister-in-law B.D.C. member and Pradhan visited the residential house of the appellant and the appellant told them that he had accepted the prosecutrix. Thereafter they left the house leaving the prosecutrix in the company of the appellant. But after two days, appellant left the place and it was thereafter an - 13 - application Ext. PW2/A was moved to the Superintendent of Police. 18. Writing Ext. PW8/A alleged to have been executed by the appellant appears to be under the pressure of the Pradhan and the B.D.C. member aforesaid. There is no reference with respect to the alleged incident or having confessed the guilt by him in the said writing. It simply says that he had accepted the prosecutrix as his wife in the presence of the witnesses and copy Ext.PA which was alleged to be in possession of the prosecutrix, does not say anything else except the mention of home address of the appellant. Therefore, this evidence is also not sufficient to connect the appellant with the alleged offence. 19. Another piece of evidence is the statement of the doctor PW16 Daljit Kaur. On her medical examination doctor did not find anything which could supply any evidence of having committed rape with the prosecutrix. According to doctor, it could only be said that in view of the medical examination, intercourse had taken place in the past because hymen was found absent - 14 - and carunculae myrtiformes were found present. In her cross-examination, she particularly stated that the prosecutrix told her that sexual intercourse had been committed with her consent 20. The mother of the prosecutrix stated to the doctor that at the time of alleged incident, she was aged about 16 years. 21. Her mother PW2 Sanam Dassi stated that date of birth was got recorded by her husband in the Panchayat. She pertinently stated that prosecutrix was got admitted in the School by her 12 years ago from the date of her examination in the Court on 19.9.2002 which comes to the year 1990 when she was stated to be six years of age. Thus her age on the date of the alleged incident comes more than 16 years and according to the report of the Radiologist it could be of even 16 ½ years, which is the age of her discretion. 22. In view of the aforesaid statement with respect to the age of the prosecutrix, and in any case the prosecutrix being a consenting party, as stated by the doctor, the marked delay in - 15 - lodging the FIR and also the varied version about the incident by the witnesses make the entire case of the prosecution a suspect and in view of the this, the case of the prosecution, especially statement of the prosecutrix did not inspire confidence with respect to the offence in question. 23. Consequently, the appeal is allowed and the judgment of conviction and sentence passed by the learned trial Court is set aside. 24. The bail bonds entered upon by the appellant at any stage during the trial of this case are ordered to be discharged. June 15, 2010 (Surinder Singh),J (cm)