1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No168/1996 Decided on: August 11, 2010 State of H.P. …Appellant. VERSUS Pawan Kumar @ Babbar ….Respondents. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge Whether approved for reporting?1 Yes For the Appellant: Mr.Mr.Anil Jaswal, Dy.AG. For the respondent: Mr. Vijay Bhatia, Advocate R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to judgment dated 20.1.1995 passed by learned Sessions Judge, Mandi, Kullu and Lauhal-Spiti District at Mandi, HP in Sessions trial No. 35 of 1993, thereby acquitting the respondent / accused for the offences under Sections 452 and 376 of the Indian Penal Code. 2. In order to adjudicate the present criminal appeal, it is necessary to give the factual background of the case. On 7.2.1993, victim aged about 40 years, had gone to the place of Jamaldin in Sundernagar colony, where Abdul Hassan and Jamaldin were present Whether the reporters of the local papers maybe allowed to see the judgment? 2 at about 7.00 PM. At that time, accused Pawan Kumar, armed with knife Ex trespassed the quarter and threatened Jamaldin and Abdul Hassan by putting the knife on the chest of Jamaldin and asked them to get out of the room. On such threat, all the three, i.e. Abdul Hassan Jamaldin and Rafi Mohammad, son-in-law of Jamaldin, rushed out of the quarter and the victim was cornered by the accused and when she tried to ran, she was followed by the accused and was caught by the accused and threw her on the Varandah. Thereafter, accused injured the victim on her thigh, torned her clothes and subjected her to sexual intercourse. When victim cried two or three boys came on the scene. In the meanwhile matter was reported to the police by Jamaldin. Ex PW-11/A was recorded and accordingly an FIR was lodged and accused was charged for the aforesaid offences and the case was committed for Sessions trial. 3. In order to prove its case, prosecution has examined as many as 15 prosecution witnesses, whereas to his statement under Section 313 Cr.PC, accused person denied the prosecution case. 4. PW-1 Deepak Malhotra, Medical Officer, who medically examined the accused, PW-2 Jaya Vaidya, another Medical officer who also medically examined the prosecutrix, PW-3 Prosecutrix, PW- 4 Jamaldin, the complainant/informant, PW-5 Prem Dass, a constable who was on patrol duty at the relevant time, PW-6 Mohan Lal, PW-7 Shayam Singh, PW 8 Sukh Ram witnesses of the recovery of a knife, PW-9 Mitter Dev HC, PW-10 Gurdass Ram, PW-11 Chander Mani constable, PW-12 Prem Chand constable, PW-13 Biri Singh LHC, PW-14 Iqbal Singh SI, who are the police official witnesses who dealt 3 with the case property or recorded the report /FIR at different stages and PW-15 Kesar Lal S.I. the Investigation Officer were examined. 5. PW-1 Dr. Deepak Malhotra and PW-2 Dr. Jaya Vaidya, were examined the victim-prosecutrix. PW-2 Dr. Jaya Vaidya while examining the victim-prosecutrix has observed the following aspects and opined that: “marks of violence on the body- There was linear abrasion on the middle aspect of the left thigh, of the size 2 cm long with brown scab present on half of it. Half was completely healed. Gait was normal. No difficulty in micturition and defacation. Examination of genitals- Pubic hair present not metted. No stains on the middle side of thigh and external genitalia. On PV examination, it was done easily with two gingers. Uterus was multi parous size, retroverted. Fornices were clear. Cervix was downwards. Hymen replaced by carunculae-multiformis. Secretion taken from the posterior fornix on a swab and sent for chemical examination in a sealed bottle. Another smear sent to lab for examination for the presence of spermatozoa vide OPD Slip No. 7345/28.2.1993. It was examined on the next day i.e. 1.3.93. No dead or live supermatazoa were found. Duration of injury was 3 to 7 days. In my opinion she was habitual to intercourse. PW-2 in her cross examination has stated that if a woman is thrown on the hard smooth surface with force with a view to subject her to sexual intercourse, trauma is possible. In case a woman is subject to sexual intercourse on an irregular hard surface her sustaining injuries on the back are possible. 6. PW-3, victim-prosecutrix stated that she reside in Bhojpur at Sundernagar and when she had gone to the quarter of 4 Jamaldin her brother in law and while she was preparing the meal about 7 PM in the presence of Jamaldin and Abdul Gani, at that time accused, armed with knife, entered into the house of Jamaldin and threatened Jamaldin and Abdul Gani to get out of the room, otherwise, they would be dealt with the knife and five or six persons armed with knives were also supposed to follow him. As such Jamaldin and Abdul Gani ran out of the quarter and PW-3 also tried to ran away, however, at the gate of first quarter, she was cornered by the accused and PW-3 ran towards the place where she was cooking the meals, she was followed and caught by the accused and was thrown on the Verandah. The accused injured her with knife on the thigh and her clothes were torned and she was sexually assaulted. When Jamaldin and Abdul Gani came after 2-3 hours, victim-prosecutrix narrated the entire incident to them. Then they informed the police and FIR was accordingly lodged. Salwar and shirt Exts P-2 and P-3 were taken in possession. 7. In cross examination PW-3 has stated that she is married with Jamaldin and have five issues from the first husband and at the time of occurrence, she had not married Jamaldin, however, she had sexual relations with Jamaldin for the last 4 years and whereas Jamaldin had three issues from his first wife. PW-3 has further stated in her cross examination that when accused entered the room, Jamaldin and Abdul Gani did not raise any hue and cry but on seeing the knife they left the place, when returned from the market and went to the police station. According to her, on the day of occurrence, Rafi Mohammad, son in law of Jamaldin was also in the quarter of Jamaldin. However, she has further stated that police post colony was 5 only 50 or 60 yards from the aforesaid quarter of Jamaldin. Jamaldin and Andul Gani had returned back in the quarter at about 8.30 PM and then the entire incident was narrated to them. PW-3 has also stated in her cross examination that she tried to escape from the accused. She had been crying. People in good number were coming and going on the road. People going on road seen her running and shouting. Further that she was not thrown on the ground by the accused with great force. She was just pushed by the accused and she fell on the smooth surface and was sexually assaulted for half an hour and during such assault, string of her salwar was broken by the accused, stitches of her shirt on the right side near the pocket were broken and similarly the stitches of her salwar were broken which was stitched by her in the next morning. 8. PW-4 Jamaldin, supported the prosecution case and has stated that on the date of incident, victim was at his quarter along with Abdul Hassan and when she was preparing the meals, at that time, accused entered in his house with knife and put it on his chest and threatened PW-4. On such threatening, PW-4 along with Abdul Hassan came out of the quarter and then PW-4 went to the police post and reported the matter to the police. After about one hour when PW-4 returned back to his quarter, police also came and at that time, victim was crying. She informed PW-4 and the police officials that she had been sexually assaulted. 9. As per the testimony of PW-4, accused was also not known to him. He was also not aware the name of the accused. As such, the name of the accused was not disclosed to the police. PW-4 has, however, stated in his cross examination that police post is at 5 6 minutes walk from his quarter and the S.O colony is a thickly populated colony and when the accused came to his quarter, he did not raise any hue and cry and even after coming out of the quarter. PW-4 has further stated in his cross examination that it is incorrect that victim prosecutrix had illicit intimacy with him. 10. Other witnesses, in the discharge of duty, had made endeavour to support the prosecution case to the extent they were assigned. 11. On the scrutiny of the prosecution witnesses and material on record, we notice that Abdul Gani and Rafi Mohammad were not examined. As per the testimony of PW-3, she was assaulted by knife on her thigh and her clothes were torned and she was sexually assaulted for half an hour and she raised hue and cry. However, she did not raise any hue and cry when accused came with knife and entered the house but the injury which was noticed by PW-2 on Thigh of PW-3 was not said to be inflicted by the knife and the duration of injury was 3 to 7 days old . As per the medical testimony of PW-3 she was in the habit of sexual intercourse and no injury has found to have been affected by sexual intercourse. PW-4 has given different version and narrated in such way that after arrival of accused, he left the quarter and came back about half an hour, then in what circumstances he reported the matter as he was unaware about the name of the accused and after coming in the presence of police how narration by PW-3 was made about the incident. The testimony of PW-4 is also not in harmony of testimony of PW-3. Apparent contradictions appear from the testimony of PW-3 and PW-4. In view of the testimony of PW-3 Jamaldin and Abdul Gani came back after 2-3 hours, whereas in view of the 7 testimony of PW-4, Jamaldin, he came after half an hour and in view of the testimony of PW-3, police post was about 50 or 60 yards, whereas in the testimony of PW-4 he stated that the police post is at a 5 minutes walk. However, the incident took place at between 7.30 and the police was informed by PW-4 and the FIR was lodged at 10.30 PM. The delay in lodging FIR in the present facts and circumstances of the case has also not been explained. The testimony of PW-3 also appears to be not reliable in view of the facts and circumstances when the persons said to be present on the spot at the relevant time were not examined except PW-4 Jamaldin, whose testimony is also in coherence to the testimony of PW-3. 12. On analysis of the prosecution witnesses and material on record, learned Sessions Judge has rightly come to the conclusion that the prosecution has failed to bring home guilt to the accused. In our considered view, prosecution has failed to prove its case beyond reasonable doubt. we find no scope for interference in the impugned judgment. The criminal appeal, being devoid of merit, is accordingly dismissed. 13. Bail bonds, furnished by the respondent, are hereby discharged. ( R.B.Misra ), J. 11th August, 2010 ( V.K.Sharma ), J. (sl) 8