IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No.162 of 2000. Reserved on 02.12.2010 Decided on: 31.12.2010 _____________________________________________________ State of Himachal Pradesh … Appellant. Versus Tej Bhahdur … Respondent. _____________________________________________________ Coram: Hon’ble Mr. Justice Kurian Joseph, Chief Justice. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Ankush Dass Sood, Additional Advocate General. For the Respondent : Mr. Bimal Gupta, Advocate. _____________________________________________________ Justice V.K. Sharma, Judge The State is in appeal against the judgment dated 6.9.1999 of the learned Sessions Judge Sirmaur at Nahan, H.P., in Sessions Trial No. 4-ST/7 of 1998, whereby, the respondent, who shall hereinafter be referred to as ‘the accused’ was tried for the offence under Section 376 of the Indian Penal Code and was ultimately acquitted. 2. In brief, the case of the prosecution is that on 13.2.1997, FIR Ex.PA was recorded at Police 1 Whether reporters of the local papers may be allowed to see the judgment?Yes, 2 Station, Sadar Nahan, Distt. Sirmaur, on the statement of the prosecutrix, PW-1 (name withheld), who was accompanied by her husband PW-2, Dina Nath. She had stated that “she was married to PW-2, Dina Nath about 15 years back. Her parental village is Bubbi Jabbal Ka Bagh. Out of the wedlock two daughters and two sons were born, out of which one son had died. The daughters were aged 11 and 13 years, who were working as domestic helps. The son was five years old. We had kachha house in village Katasan Devi, which had fallen about two months back and as such we had come to reside in my parental village. Whereas my father works as a labourer outside, I remain at home. In my parental house, my mother and brother reside. Brother Phul Chand works as a labourer and my mother is a household lady. On 7.2.1997, my husband had gone to Nahan to work as labourer. My brother had also gone to the cantonment in connection with his work. My mother had gone to the house of my sister in village Surla. I along with my son Ranbir and nephew Kamal, aged 8 years, was present in the parental house. At about 2-2 ½ PM Tej Bahadur (accused) son of Dal Bahadur, resident of Bubbi, who is also a ward member came to our 3 house in dead drunken state and started taking liberties with me (chher chhar karne laga) and caught hold of me. In the meantime my Taya’s son, Bhagat Ram came and made the accused to flee from there after scolding him. After sometime when I was going to the house of my maternal uncle to narrate the above occurrence to my Bhabies (maternal uncle’s daughters-in-law), the accused all of sudden came from below the mango tree behind the house, gagged my mouth and dragged me upto the mango tree. Thereafter, he forcibly untied string of my salwar and after gagging my mouth forcibly laid me on the ground and committed rape upon me and also gave teeth bites on my cheek. I wanted to cry but he gagged my mouth and threatened that in case I raised much hue and cry, he would throttle and kill me. This occurrence, perhaps, had also been witnessed by others, but every body kept mum as the accused is a ward member and all are afraid of him. I could not narrate the incident to anyone else. My husband had gone out in connection with his work as a labourer, who came home day before yesterday. I narrated the incident to him yesterday. So, he has brought me today to lodge report. We have also submitted an application to the 4 Deputy Commissioner, in this regard. The accused had committed forcible sexual intercourse with me against my will and after terrorizing me. The wounds on my cheek have been healed, but the scars are still present. My husband had sexual intercourse with me day before yesterday. Legal action may be taken against the accused.” 3. During investigation, the police inspected the place of occurrence and found some broken pieces of red colour bangles lying there, which were got photographed and taken into possession vide memo Ex.PB. On production by the prosecutrix, her kameez and salwar were also taken into possession by the police vide memo Ex.PC. The accused also produced his underwear vide memo Ex.PF. 4. The prosecutrix was got medically examined through PW-5 Dr. (Mrs.) Archana Gupta, vide medico legal certificate Ex.PG. In the opinion of the medical expert “there is nothing to suggest that she has not been habitual to sexual intercourse”. The medical witness also opined that “ the possibility of teeth bite on left cheek cannot be ruled out”. 5. The accused was also subjected to medical examination vide certificate Ex.PH issued by PW-6 Dr. Anil Gupta, who opined that “there is nothing 5 to suggest that the person under examination is not capable of performing sexual offence”. 6. Ex.PJ is the site plan of the place of occurrence. Salwar and kameez of the prosecutrix and underwear of the accused were sent for forensic examination and report Ex.PK was obtained, which revealed that though there was no blood on the salwar of the prosecutrix , yet human semen was found on the same. However, neither blood nor semen was found on the kameez of the prosecutrix and underwear of the accused. 7. On completion of investigation the accused was sent up to face trial. On being charged, he did not plead guilty and instead claimed trial. The prosecution evidence followed. In all seven witnesses were examined by the prosecution. 8. On close of the prosecution evidence, the accused was examined under Section 313 Cr.P.C, wherein, he pleaded innocence and stated that a false case has been foisted against him. 9. On conclusion of the trial, the accused was acquitted. Being aggrieved, the State has laid challenge against the impugned judgment dated 6.9.1999, which is supported by the accused. 6 10. We have heard the learned Addl. Advocate General for the appellant-State and the learned counsel for the respondent-accused and perused the record. 11. True it is that in a rape case conviction can be based solely on the testimony of the prosecutrix, if otherwise found to be reliable and trustworthy. In the present case, the version stated by the prosecutrix has not been believed by the learned trial Judge. On an appraisal of the evidence on record, though we may not endorse the reasoning adopted by the learned trial Judge in its entirety, yet we are also unable to persuade ourselves to differ with the ultimate outcome leading to acquittal of the accused of the charge against him. The reasons to arrive at this inference at the very outset are set out hereinafter. 12. As per recitals in FIR Ex.PA, admittedly son of the prosecutrix and her nephew Kamal, aged about 5 and 8 years, respectively, were present, when the accused had allegedly entered the house under the influence of liquor, caught hold of the prosecutrix and had started taking liberties with her, but, they were not cited as witnesses. Even though no fault can be found with the prosecution on this score for the reason that both of them were 7 child witnesses of tender age, yet Bhagat Ram cousin of the prosecutrix, who is also stated to have arrived there and had scolded the accused and made him to flee from there, was though cited as a witness, but was given up by the prosecution “to avoid duplicity”. 13. We fail to understand as to how and under what circumstances, Bhagat Ram, who was a material witness for the prosecution and could have lent corroboration to the version stated by the prosecutrix, was given up allegedly to avoid duplicity. Still further though there is a recital in FIR Ex.PA that the occurrence relating to the alleged commission of rape upon the prosecutrix by the accused was, perhaps, seen by others, yet it is not specified as to who those others were, albeit the assertion that all of them kept mum as the accused was a ward member and every body was scared of him. 14. In view of the above, a very serious doubt is cast on the very veracity of the genesis of the prosecution case. 15. The testimony of the prosecutrix can also not be safely relied upon as the same suffers from serious contradictions, which cannot be lightly overlooked. Whereas, in FIR Ex.PA, she had stated 8 that the accused had come to her parental house in drunken state and started taking liberties with her and had thereafter caught hold of her and in the meantime her cousin, Bhagat Ram, who had come there had scolded the accused and made him to flee from there, while appearing as PW-1, she has stated that the accused after entering the house had bolted the door from inside and opened the string of her salwar and in the meantime her cousin, Bhagat Ram had come there and when he gave a push to the door, the door had opened and consequently he (Bhagat Ram) had entered the room and asked the accused to go out and he (accused) had followed suit. According to the prosecutrix, she had apprised Bhagat Ram about the occurrence and he also went away. Both these versions cannot be easily reconciled with each other and would rather go to cast a very serious doubt on the very veracity of the version stated by the prosecutrix. 16. PW-3, Smt. Bala Devi, to whom the occurrence is stated to have been narrated by the prosecutrix on that very day, has not supported the case of the prosecution in its material particulars and was declared hostile. The way her statement in chief examination and in cross examination has 9 been recorded leaves much to be desired as no serious effort appears to have been made to elicit the truth from her. 17. Even the medical evidence led by the prosecution in this case is not conclusive to establish the offence for which the accused has been charged. PW-5 Dr. Mrs. Archana Gupta had not observed any other injury on the person of the prosecutrix except those on her left cheek, which could be as a result of teeth bite, but the same had also been healed and the probable duration of these injuries also does not correlate to the period of the alleged occurrence. 18. In the facts and circumstances of the case and on an overall view of the matter, presence of human semen on the salwar of the prosecutrix, as per FSL report Ex.PK, cannot be ascribed to the alleged act on the part of the accused, as admittedly she was a grown up married lady having four children, one out of whom had died and further more when even as per her own version she had physical access to her husband on 11.7.1997, which fact is though denied by him (PW-2 Dina Nath), yet he has admitted that she was wearing the same shirt and salwar, Exts. P-2 and P-3, when he returned home. 10 19. The complaint said to have been made to the Dy. Commissioner, Sirmaur at Nahan, has also not seen the light of the day so as to ascertain the version stated therein. 20. It is equally true that mere delay in lodging F.I.R in a rape case, if satisfactorily explained is not fatal for the prosecution case. However, in the present case, there is no plausible explanation coming forth for the delay in reporting the matter to the police. Admittedly, the occurrence relates to 7.2.1997 at about 2-2 ½ PM. However, FIR Ex.PA was lodged only after six days on 13.2.1997. The prosecutrix while appearing as PW-1 has stated during chief examination at page 4 of the English record that “though my mother had returned on the next day and I narrated this occurrence to her also, but I preferred to wait my husband”. Though Smt. Uma Devi, mother of the prosecutrix was also cited as a prosecution witness, but, she was also given up stating the same reason, i.e ‘to avoid duplicity’. In the peculiar facts and circumstances of the present case, she was also a material witness for the prosecution, who could have lent some corroboration to the version stated by the prosecutrix, but she was also given up on such flimsy ground. 11 21. As per the recitals in FIR Ex.PA, the husband of the prosecutrix, PW-2 Dina Nath, had returned home on 11.7.1997, but, the occurrence was not narrated to him by the prosecutrix at the very first available opportunity and instead he was informed about it only on 12.7.1997. Even thereafter the matter was not reported to the police at the earliest and instead FIR was lodged only on 13.7.1997, albeit the fact that the police station is at a short distance of 5/6 KM. 22. In view of the above, the delay in lodging the FIR in this case cannot be lightly brushed aside 23. In view of what has been stated hereinabove, we are satisfied that the prosecution has not been able to bring home guilt against the accused beyond reasonable doubt and as such we are not inclined to upset the findings of acquittal returned in favour of the accused by the learned court below. The appeal is accordingly dismissed. 24. However, while parting, we cannot help but observe that it is incumbent upon the prosecution to gather all conceivable evidences including forensic evidence, such as DNA finger printing in serious offences, such as of the present nature. It was not done in this case. As such, let a copy of this judgment be sent to the Principal Secretary 12 (Home) to the Government of Himachal Pradesh, to ensure that in future in all serious criminal cases, such as, murder, rape etc. etc. an earnest effort be made to resort to DNA finger printing to pin point culpability of the person(s) charged for such offences. 25. The appeal stands disposed of. (Justice Kurian Joseph) Chief Justice (Justice V.K. Sharma) Judge. December 31 , 2010. (Lsp)