1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.: 69 of 1999 Judgment reserved on: 20.5.2010 Date of decision: 28.5.2010 State of Himachal Pradesh …Appellant Versus Rakesh Kumar @ Raju & Ors. …Accused/Respondents Coram The Hon’ble Mr.Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting? For the appellant: Mr. Vivek Singh Thakur, Addl. Advocate General. .For the respondents: Mr. Vinay Thakur, Advocate for respondents No.1, 11, 13 and 14. Per Deepak Gupta, J 1 This appeal by the State is directed against the judgment dated 23.11.1998, delivered by the learned Sessions Judge, Solan, in Session Trial No. 8-S/7 of 98, whereby he acquitted the accused of having committed offences punishable under Sections 376 and 176 of the Indian Penal Code. 2. The prosecution case, in brief, is that accused No.1 raped the prosecutrix, a minor girl of 6 ½ years of age in her village. According to the prosecution the Pradhan of the village and the other co-accused persuaded the parents of the prosecutrix not to lodge a complaint and despite having knowledge of the fact that the rape had been committed on minor girl, intentionally did not give information to the police. Accused No.1 was charged with having committed an offence 2 punishable under Section 376 of IPC whereas the other accused were charged with having committed an offence punishable under Section 176 of IPC. 3. On 29.1.1998, letter dated 25.1.1998, addressed to Dy.S.P Solan was opened by PW-10 D. D. Sharma, Inspector, SHO of Police Station, Solan since there was no post of Dy.S.P. at Solan. In this letter Ext. PW-10/A it was alleged that a 6 year old minor daughter of Brahma Nand had been raped by the son of Puran Dutt, who owns a saw mill. The condition of the girl is serious and she is being treated by a private doctor. This complaint was anonymous and it was prayed that action be taken. On the basis of the complaint, PW-10 registered FIR Ext. PW-10/B on 29.1.1998 at 3.10 pm. PW-10, thereafter proceeded to question the prosecutrix and her parents and recorded their statements. 4. From the investigation it transpired that, on 24.1.1998, the prosecutrix was playing in the compound of her house in village Googaghat. Her mother Kalawati PW-2 had gone to cut grass and her father Brahma Nand had gone to Solan in connection with some work. The accused came to their house and took the prosecutrix inside the bed room. He took off her salwar and raped her. Blood started coming out from the private part of the prosecutrix and stained her salwar. Thereafter the accused fled away 5. At about 12.00 noon, PW-2, mother of the prosecutrix, returned home and the prosecutrix informed her about the occurrence at about 12.30 a.n. When Brahma Nand PW-3 came home he was also told about the occurrence. 3 PW-3 Brahma Nand then took the prosecutrix with him and went to the father of the accused. He also intimated his brother about the incident. All these people prevailed upon PW-3 not to lodge a report as it would dishonour the prosecutrix. Since the prosecutrix was injured, she was got examined from PW-8 Dr. Lalita Prashar, a private practitioner at Solan. Next day accused 2 to 15 assembled in the house of PW-3 Brahma Nand and persuaded him to close the matter to save the honour of the child. It is alleged that the accused Raju, in the presence of the members of the Panchayat, sought pardon by executing a writing Ext.PW-3/A which was also signed by the other accused. 6. After the registration of the case, the writing Ext.PW-3/A was taken into possession and the prosecutrix was got medically examined from PW-9 Dr. Radha Chopra and PW-5 Dr. Maya Ahuja in District Hospital, Solan. The accused was got examined from Dr. A.K. Arora, PW-4. 7. After completion of the investigation, the accused were chargesheeted for the offences aforesaid. They claimed that they were innocent and were tried. After trial, the accused have been acquitted. Hence the present appeal. 8. One of the main grounds which weighed with the learned trial court was that it was difficult to believe that in order to save the honour of the child the wheels of the justice were not brought into motion by the parents. We are not in agreement with this part of the judgment of the learned trial court. We shall deal with the evidence hereinafter, but in India where a victim of rape is virtually treated like an accused and 4 becomes an object of ridicule and her esteem is lowered in the eye of public it is not difficult to believe that the parents may hush up the matter just to save the reputation of the girl child. 9. The prosecutrix was examined as PW-1. According to her when she was playing on the roof of her house alongwith her younger brother, the accused came and took her to the bed room. He thereafter opened her salwar and then inserted his penis into her private part. The learned court recorded that the witness pointed towards her thighs. Due to this act of the accused blood started coming out of her private part and stained her salwar. Then the accused left. Her mother came back after cutting the grass and her father also came back from Solan. She narrated the incident to them at 12.30 p.m. Her father took her to the father of the accused and thereafter took her to a doctor at Solan. In cross- examination she stated that her parents were accompanying her when she was examined by a female doctor at Solan. The Panchayat Pradhan was also present. According to her, after the incident she kept playing in the house with her brothers. A suggestion was put to her that she had deposed in a manner told to her by the parents. She admitted this suggestion to be correct. 10. PW-2 is the mother of the prosecutrix. According to her when she returned home at 12.30 p.m. after cutting the grass, she found that the prosecutrix was sitting silently in the house. On enquiry the prosecutrix narrated the entire incident. Thereafter the mother opened the salwar of the 5 prosecutrix and examined her private part and found that blood was oozing out. Thereafter her husband came home and PW-2 narrated the entire incident to him. Then her husband took the prosecutrix to the father of the accused. After seeing the condition of the prosecutrix the parents of the accused called other persons i.e. Jitender, Mahesh Ram, Amar Dutt, Deweshwar, Kanti Swaroop who are some of the co- accused. The same day the prosecutrix was shown to a private lady doctor at Solan. Next day the Panchayat assembled in the village where accused No.1 Raju sought pardon. In cross-examination this witness stated that she never participated in the Panchayat. No writing was executed in her presence. 11. Statement of PW-3 is similar as far as the main incident is concerned. According to the father accused 2 to 15 prevailed upon him to keep the matter quiet to save the honour of the child. According to him accused Raju begged for forgiveness, apologized for the occurrence and sought pardon for the wrong done by him. He executed the writing Ext. PW- 3/A, which was signed by him and all the other co-accused. The witness, however, could not state who wrote on the back of Ext. PW-3/A since according to him he was not in his senses. In cross-examination he stated that the accused initially denied that he committed any act but later admitted it. According to this witness, the accused executed writing Ext. PW-3/A at the instance of his father. The writing Ext.PW- 3/A also contained the signatures of PW-3, Brahma Nand, father of the prosecutrix. In cross-examination this witness 6 has admitted that he never wanted the people of the area to know about the incident since this would have resulted in dishonouring of his family. He further stated that the co accused Jitender etc. did not know actually what had happened. He had simply told them that the accused had done something bad with his daughter. According to him, for this reason they took the prosecutrix to a private doctor, but he told the doctor what had happened. 12. According to Dr. Lalita Prashar, she examined the prosecutrix on 24.1.1998 and found a small cut in Hymen. She prescribed certain medicines. She proved the record Ext. PW-8/A. She denied that she had been told that the prosecutrix had been raped. According to her, the parents of the prosecutrix did not accompany her into the chamber of the doctor. Only one person claiming to be Pradhan of the Gram Panchayat was present. 13. After the F.I.R. was lodged, the prosecutrix was examined first by Dr. Radha Chopra at District Hospital, Solan, on 29.1.1998. She did not find any injury on the vulva. The vaginal orifice was congested and dark purple in colour. The hymen was lacerated, torn and hanging from the vaginal orifice at 6 O’clock position and was purple in colour. On wiping the surface, blood was oozing out. Area was very tender. 14. The prosecutrix was also examined by PW-5 Dr. Maya Ahuja, who endorsed the opinion of PW-9 Dr. Radha Chopra. She opined that the possibility of rape could not be 7 ruled out. Dr. A.K. Arora, PW-4 examined the accused and found that he was capable of performing sexual intercourse. 15. The prosecutrix is small child. The law with regard to appreciation of the testimony of a child witness is that the testimony of such a child witness should be examined with great care and caution. A child is inherently innocent and in view of his innocence will normally tell the truth. However, in case the child is told by the parents or some other person having influence over the child to speak in a particular manner then the child may tell an untruth. In fact, a child may start believing what has been told by his or her parents to be the truth. 16. In the present case, as noted by us above, the prosecutrix in the cross examination admitted that her parents had tutored her to give such a statement. She also admitted that she is deposing what was told to her by her parents. In these circumstances it would not be safe to rely solely on the statement of the prosecutrix. The corroborative evidence in this case is missing. Unfortunately, due to the wrong perception by the parents they did not take the child to a Government Hospital and took her to a private hospital. According to the father the doctor was told about the incident but the doctor denies having met the parents. In fat, according to Dr. Lalita Prashar PW-8 it was only the Pradhan who had come with the prosecutrix. We are unable to accept this version of the doctor. A girl having an injury on a private part would not be brought by a Pradhan or a neighbour, but by a female family member. Both the parents have stated that 8 they took the prosecutrix to the private doctor, but it cannot be believed that they did not go inside. On 24.1.1998, PW-8 only recorded a small cut on the Hymen. On the other hand PW-9 and PW-5 have noted a number of injuries on the genitalia of the prosecutrix. It is obvious that somebody is not telling the truth. Probably PW-8 was told to hush up the matter and, therefore, she only noted a small injury on Hymen. This is fatal to the prosecution. 17. In the case of minor girl penetration would be complete if the hymen was ruptured as was found by PW-9 and PW-5. There would have been associated injuries on the labia minora and labia majora. There would have been injuries on the vaginal walls also. PW-8 did not find any such injuries on the first day. Therefore, the medical evidence does not support the version of the prosecution 18. According to the prosecutrix after she was raped she started playing. If penetration was complete in that case of a girl of 6 years it would have been extremely difficult for her to walk, let alone play. It appears that the true facts have not been brought before the court and in such an eventuality, it is unfortunately the accused who has to be given the benefit of such lack of evidence. Even the so called extra judicial confession is not very clear. There is no clear cut admission of guilt of having committed rape. The accused denied that he made such an extra judicial confession. In these circumstances, it was incumbent upon the prosecution to have got the execution of his document proved in accordance with law. Unfortunately all the other signatories to the document 9 were made accused and only the father has stated that the document was written by the accused. No evidence of any expert has been led in this behalf. 19. Therefore, the learned trial Court was fully justified in acquitting the accused. We find no error in the judgment of the learned trial Court. The appeal is accordingly dismissed. The bail bonds furnished by the accused are discharged. ( Deepak Gupta ) Judge May 28, 2010. ( Rajiv Sharma) (VT) Judge. 10