IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 428 of 2002 Reserved on: July 15, 2011 Date of Decision : August 19, 2011 State of H.P. …Appellant. Versus: Narender Kumar & Ors. …Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Vivek Thakur, Addl. A.G. with Mr. Ramesh Thakur, Asstt. A. G. For respondent No.3: Mr. Chaman Negi, Advocate Sanjay Karol, J. For an offence, which is alleged to have been committed on 2.10.1997, accused were put to trial. In terms of judgment dated 22.3.2002 passed by Sessions Judge, Mandi, in Sessions Trial No.15 of 1998, titled as State of H.P. vs. Narender Kumar & Ors. accused stands acquitted of the charged offences. 2. It is the case of the prosecution that the accused are residents of village Sankhetar, Police Station, Joginder Nagar, Distt. Mandi. Prosecutrix (PW-2) is also resident of the same village. On 2.10.1997 at about 9.30 P.M., while prosecutrix was 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 sleeping in her house, accused forcibly entered her house by breaking open the main door and started giving beatings to her. When she tried to raise an alarm, accused Hoshiar Singh gagged her mouth with his hands and also gave her blows on her face and body. Thereafter they all raped her turn by turn. Even thereafter, they assaulted her and then left the spot. On 3.10.1997, prosecutrix reported the matter with the police and F.I.R. No. 142/1997 (Ext.PD) dated 3.10.1997 was registered at Police Station, Joginder Nagar. The matter was investigated by ASI Parkash Chand (PW-8), who got the prosecutrix examined from Dr. M. K. Rana (PW-4) and obtained MLC (Ext.PF). Certain clothes from the house of the prosecutrix were recovered by the police in the presence of Smt. Kaushalya Devi (PW-3). Accused were examined by Dr. Dharuv Dev Rana (PW-1), who issued MLCs (Exts. PA, PB & PC). 3. With the completion of codal formalities, challan was presented in the Court for trial. The accused were charged for having committed offences punishable under Sections 450 & 376(2) IPC, to which they did not plead guilty and claimed trial. 4. In order to prove its case, prosecution examined 8 witnesses and the statements of the accused under Section 313 Cr.PC were also recorded in which they took up a plea of false implication. They also examined four witnesses in their defence, including the husband of the prosecutrix. 5. The Court below acquitted the accused of the charged offences, hence the present appeal. 3 6. There is no eye witness to the incident. In this case, prosecution case solely rests on the testimony of the prosecutrix (PW-2). 7. We find from the statement of the Investigating Officer Sh. Parkash Chand (PW-8) that the door of the house of the prosecutrix was not found to be broken during investigation. To this extent, testimony of PW-2 stands belied. Further, there is nothing on record to show that the accused had trespassed into her house for the purpose of committing a punishable offence with imprisonment for life. 8. In our considered view, testimony of the prosecutrix does not inspire confidence. 9. Prosecutrix is alleged to be a lady of loose character. In this regard, accused have produced Sh. Devi Singh (DW-1), President of the Gram Panchayat and Rajinder Kumar (DW-2), member of the Gram Panchayat. Their testimonies to a large extent make the defence of the accused to be probable. Both these witnesses have testified to the effect that prosecutrix is not a woman of good character. Their opinion is based on various complaints received by them from the co-villagers. This by itself is not a ground to disbelieve the statement of the prosecutrix, but however, we find that her testimony in Court, otherwise, does not inspire confidence. 10. To begin with, she states that accused gave blows with fists on her face. There is no medical evidence to prove the same. No marks of scuffle or injury, linked to the incident, were 4 found on her body. In fact the Doctor who examined her did not find any injury on her body except on the inner side of her legs, which also could not be linked to the incident in question. In Court, she has denied having made any statement to the police to the effect that her mouth was gagged by the accused. She was confronted with her earlier statement (Ext.PD) made before the police. Obviously, she resiled from the same for the reason that there was no medical evidence to corroborate this fact which has only rendered her version to be false. 11. She admits that previously also she had filed several complaints against the villagers, which were found to be false and as such were dismissed. It is a specific case of the accused that prosecutrix is having an illicit relationship with Jagdish brother of accused Hoshiar Singh, which appears to be the cause of the instant complaint. Prosecutrix admits that Mathura Devi w/o Sh. Jagdish had filed a complaint against her. She also admits that Mathura Devi had alleged that prosecutrix had given birth to children from the loin of Jagdish. Even prosecutrix had filed a complaint against her. She also admits that she had lodged a complaint against one Smt. Sukho Devi wife of accused Hoshiar Singh but feigns ignorance, about any fine being imposed by the Panchayat against her. She admits to have got herself photographed with Jagdish in photograph (Ext.DA). Though in Court, she has taken a defence that Jagdish is her cousin, but however perusal of the same only shows that both are having intimate relationship other than that of a brother and 5 sister. Further, prosecutrix admits that for the last three years, she has been residing separately from her husband. She admits that her sister Savitri Devi had not invited her at the time of marriage of her daughter. In fact she admits that even for the marriage ceremony of her own daughter, which in fact was performed by the villagers, she was neither invited nor does she state that she had participated in the same. 12. Sh. Soda Ram (DW-3) husband of the prosecutrix, has stepped into the witness box in support of the accused and deposed that his wife has left him and is permanently residing with Jagdish as a concubine. 13. Also prosecutrix admits that at the relevant time accused Hoshiar Singh was posted as an employee of H.R.T.C. at Parwanoo and accused Narender Kumar was running a canteen at Chandigarh. Except for the sole testimony of the prosecutrix, there is nothing on record to show that these witnesses were present in the village on the date of the incident. Accused Pawan Kumar, on the date of the alleged offence, was still studying in school. All this renders the prosecution version to be improbable, if not false. 14. Prosecutrix admits that there are houses of other villagers where families also reside. Yet she did not report the matter to anyone of the neighbours but directly went to the Police Station to lodge the complaint and that too the following morning. The incident is alleged to have taken place at about 9.30 P.M. on 2.10.1997. This witness admits that houses of her sister and 6 other relatives are close by, yet she did not report the matter the very same night to anyone. It appears to us that accused persons were falsely implicated by the prosecutrix. 15. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. August 19, 2011. (rana)