IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 423 of 2001. Date of Decision : June 2, 2011 State of Himachal Pradesh Appellant Versus Atma Ram and another Respondents Coram: The Hon’ble Mr. Justice R. B. Misra, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. R. K. Sharma, Senior Addl. Advocate General. For the respondents : Mr. Kamlender Bhardwaj, Advocate. Justice Sanjay Karol, J. (Oral) For an offence, which is alleged to have been committed in the year 1997 accused were put to trial. In terms of judgment dated 4.4.2001, passed by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, H.P., in Sessions Trial No. 7 of 2000, titled as State versus Atma Ram and another, accused stand acquitted of the charged offences. 2. It is the case of the prosecution that prosecutrix (PW-1) was residing with her father Sh. Narsingh Dutt (PW-2) and sister Whether reports of Local Papers may be allowed to see the judgment? 2 Ms. Geeta Sharma (PW-4) in village Kot, Tehsil Kumarsain, District Shimla, H.P. She was working as an apprentice and learning tailoring and stitching work from Sh. Ramesh Chand (PW-3) in village Tikkera (Kangal). On 10/12-10-1997, prosecutrix was on her way back from Kangal to village Kot when Atma Ram (Accused No. 1) caught her and after taking her behind the bushes gagged her mouth and by forcibly opening the string (naada) of her ‘salwar’ committed sexual intercourse without her consent. Thereafter he promised to marry her. After about 10 - 12 days when the prosecutrix had gone to the fair in the village she again met him. There also he committed forcible sexual intercourse with her. Even then he did not raise the issue of their marriage inspite of the fact that she had become pregnant. Further sometime in December, 1997, when prosecutrix had gone to the bazaar, she saw Raman Kumar (Accused No. 2) sitting in his shop. He told her that his mother was sick and therefore requested her to cook meals for the family. She entered the shop for the purpose of cooking the meal but Raman Kumar immediately closed the shop. Inside the shop she saw accused Atma Ram sitting. There also Atma Ram forcibly committed sexual intercourse with her. Then also he assured of getting married to her. But however, promises meted out by accused Atma Ram did not materialize. Therefore she disclosed the factum of rape to her father and after birth of the child, on refusal of accused Atma Ram to marry prosecutrix, complaint was lodged with the police. F.I.R. (Ext. PW 1/B) No. 51/1998, dated 14.5.1998, 3 under Sections 376, 120-B and 342 IPC was registered with police station, Kumarsain by the prosecutrix and her father. The matter was investigated by ASI-Om Prakash (PW-7). Prosecutrix was got medically examined by Dr. Rajeev Rai (PW-9) who issued MLC (Ext. PW 1/C). Accused Atma Ram was also got medically examined through Dr. Narender Mehta (PW-8) who issued MLC (Ext. PW 8/A). With the completion of investigation challan was presented in the Court for trial. 3. Accused Atma Ram was charged for having committed offences punishable under Sections 376, 120-B and 342 IPC and accused Raman Kumar was charged for having committed offences punishable under Sections 342 and 120-B IPC. Both the accused did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined nine witnesses and the statements of the accused under Section 313 Cr. P.C. were also recorded. The trial Court acquitted the accused, hence the present appeal. 5. The fact that the prosecutrix is major is not in dispute. It is also not in dispute that as on the date of the alleged offence she was major and had acquired the age of discretion. She was of 21/22 years of age. The fact that the prosecutrix gave birth to a girl child is also not in dispute. In any event it stands proved through the testimony of Dr. Rajeev Rai (PW-9). 6. The question however is as to whether accused Atma Ram had forcibly committed sexual intercourse with the prosecutrix or 4 had given any false promises of marrying her? From the record it is apparent that prosecutrix had refused to give her and her child’s sample of blood for comparison with the sample of blood of accused Atma Ram. Why so? It has not been sufficiently explained. Why was she shying away from doing so? Was she afraid that accused Atma Ram was actually not the father of the child. Her explanation that police had been sending her to numerous places for this purpose and that she did not have sufficient funds for travelling does not appear to be correct, plausible and convincing. The Investigating Officer (PW-7) in no uncertain terms has categorically deposed that prosecutrix had refused to furnish the samples of blood. It is not that prosecutrix was never got medically examined by the police through the Doctor. She was taken by the Investigating Officer to the hospital. She did not incur any expense for the same. Therefore, her explanation that she did not have money is untrue and an afterthought. 7. There is no witness to the occurrence of the incident. Significantly, according to the prosecutrix she was raped by accused No. 1 on three different occasions. Yet she did not disclose this fact to anyone. According to her it was due to shame that she did not disclose the same. Significantly it was not threat, fear or intimidation. The explanation also does not appear to be true for the reason which has come out in the testimony of her real sister (PW- 4) who has deposed that prosecutrix was actually in love with accused Atma Ram. Therefore for us, it appears to be a case of 5 consent and not rape or deceit. Sexual intercourse took place on three different occasions. Her statement that she was raped first and thereafter accused made promises for marrying her does not inspire confidence. 8. According to the prosecution, prosecutrix was raped for the first time on the road. It has come on record that accused Atma Ram was known to her from before. His identity was not in dispute. It is highly unbelievable that at about 5.30 p.m., in the month of August when days are long, prosecutrix would be raped on a public path. Had it been true she would have narrated the incident at least to her sister if not her father. She used to walk to Kangal for learning tailoring and stitching with her friends. Her friends would have witnessed the occurrence of the incident. None came forward to corroborate the version of the prosecutrix about this incident. With regard to the second incident it is alleged prosecutrix was subjected to forcible sexual intercourse in the ‘Mela’. Again this version of hers does not inspire confidence. She admits that in the ‘Mela’ there were about 500 to 700 people. Had she been subjected to rape she would have conveniently and easily raised hue and cry or narrated the incident to any one of the co-villagers present at the spot. With regard to the third incident, from the site map it is clear that shop of accused No. 2 is surrounded by shops of others. Version of the prosecutrix that accused No. 2 hurriedly closed his shop by pulling down the shutter in broad day light does not inspire confidence. Site plan shows that adjoining shop is a tea stall run by 6 one Jyoti. Significantly police has not associated any of the neighbours during investigation. Sudden closing of the shop in broad day light would have evoked some anxiety/curiosity from a neighbour in a small town. In any event site plan does not show that the shop was more than one room or a kitchen. Her version that she entered the shop to cook food therefore does not inspire confidence. She did not have proximity or relation with accused No. 2. She also does not earn by doing errands. It does not appear to be true that prosecutrix was subjected to forcible sexual intercourse on three different occasions by accused Atma Ram. Version of the prosecutrix that she was promised by the said accused to marry her also does not inspire confidence. Refusal on her part to give blood samples for analysis for paternity/maternity test raises serious doubt about this fact. Further with regard to the charged offence against accused No. 2, there is no inspiring evidence. 9. Importantly, according to the father of the prosecutrix he learnt about the incident only after she narrated the same to him. This version of his also does not appear to be true inspiring confidence for the reason that the prosecutrix was unmarried and living with him. Physical development of the prosecutrix would have definitely alarmed the father about the fact that his unmarried daughter was carrying a child in her womb. The genesis of the prosecution case thus appears not to be completely, fully and correctly disclosed. It could not be proved that since inception accused had never intended to marry the prosecutrix or that his 7 promises were merely false. It appears to us that prosecutrix and accused Atma Ram were in love and therefore both had consented to sexual intercourse. 10. From the record there is no evidence to show that the accused hatched a criminal conspiracy to wrongfully and illegally confine the prosecutrix. 11. For the aforesaid reasons it cannot be said that the prosecution has been able to prove its case, beyond reasonable doubt, by leading clear, cogent, convincing and reliable material on record. 12. 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 versus 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. (Justice R. B. Misra), Judge. (Justice Sanjay Karol), Judge. June 2, 2011 (PK)