IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.682 of 1996. Judgment reserved on: 6.5.2010. Date of decision:18.6.2010. State of H.P. ... Appellant Versus Chuni Lal and another … Respondents Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No For the appellant: Mr.Rajesh Mandhotra, Dy.A.G. For the respondents: Mr.Rakesh Jaswal, Advocate. ____________________________________________________________ Deepak Gupta, J. This appeal by the State is directed against the judgment dated 21.6.1996 delivered by the learned Additional Sessions Judge, Mandi, in Sessions Trial No.12 of 1996 whereby he acquitted the accused of having committed offences punishable under Sections 376 & 323 IPC. At the outset we may mention that both the accused are police personnel and accused Chuni Lal at the relevant time was posted as ASI, In charge of Police 1Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 Post Pangna whereas accused Khub Ram was working as Langri in the said post. The prosecution story is that accused Chuni Lal went to the village of the prosecutrix who are two in number. He had gone there in connection with an excise case and was insisting that the prosecutrix shall provide him material for lodging an excise case which she refused. In the evening at about 9 p.m. the other accused Khub Ram came to the village and informed the prosecutrix that their husbands were lodged in the police post at Pangna and they should come there. On hearing this both the prosecutrix went to the Police Post, Pangna where they were forcibly made to take liquor and then raped by the accused. PW-4 Amaru husband of one of the prosecutrix came home at about 8 p.m. and found that his wife was missing and was told by his son that she had gone to the house of Mani Ram in the village. PW-3 Mast Ram husband of the other prosecutrix returned home along with Gian Singh and Kehar Singh at about 11 p.m. and found his wife missing. Both of them searched for their wives but did not find them there. Since accused Chuni Lal had come to the village in connection with some excise case they decided to go to the Police Post. When 3 they went to the Police Post they found that their wives were being raped by the two accused. However, instead of lodging a complaint the wives as well as their husbands were beaten up by the police and they were turned out. Next day they went to the house of Pradhan Naresh who rang up the Dy.S.P. Sundernagar and it was only on his intervention that a criminal case was lodged. The prosecutrix, their husband and the accused were examined by the Doctors PW-1 and PW-2. Both the prosecutrix are grown up ladies; one aged 28 years and another 30 years. Some injuries were also found on their persons. As far as one of the prosecutrix is concerned no finding was given that she had been subjected to any sexual intercourse. As far as the second prosecutrix is concerned the Doctor opined that intercourse had been performed. As far as the injures on the prosecutrix are concerned they are not related to any sexual offence but have been caused with a blunt weapon. After investigation, the accused were challaned for having committed the offences of rape and causing simple injuries. The learned trial Court noted glaring contradictions in the versions of the prosecutrix and their husbands, disbelieved their versions and thereafter 4 acquitted the accused. Hence, the present appeal by the State. Prosecutrix ‘K’ who is the wife of PW-3 Mast Ram states that accused Chuni Lal came to her village at about 4 p.m. and asked her to provide some excise case which she refused. At about 8 p.m., Khub Ram accused came to their house and told her that their husbands i.e. her husband and husband of prosecutrix ‘B’ have been taken to Police Post, Pangna for questioning and therefore they were required to go to the quarter of Thanedar. Both the ladies went to the house of Thanedar. Then they inquired about their husband who were not there. When they wanted to leave, Khub Ram accused forcibly caught hold of them and the two accused forcibly made them to drink liquor and then accused Khub Ram raped prosecutrix ‘K’. At about 11/12 p.m. their husbands came there and the accused gave beatings to both the prosecutrix in the presence of their husbands. Then they went home. This witness has been confronted with the statement made to the police under Section 161 Cr.P.C. wherein it is not recorded that accused Khub Ram told them that their husbands were in the Police Station. In fact in the original statement it is not mentioned that 5 the sexual intercourse was forcible in nature. The prosecutrix admitted that she had stated to the police that the kitchen and main door were bolted from inside and according to her this statement was correct. She stated that the liquor was taken in glasses. She states that she raised a hue and cry when Khub Ram tried to rape her but none came to rescue her till her husband came. She also stated that she gave scratches with her nail to the accused. She admitted that there are many houses adjoining to the house of Chuni Lal but none had come there. According to her when Khub Ram came to call her, her children were not in the house and had gone to the house of Mansa Ram to watch television. She states that she and prosecutrix ‘B’ did not go to the house of Mani Ram on that day. A suggestion has been put to this witness that she is involved in the illicit distillation of sale of liquor and one Sunder had died in her house after consuming liquor. She denied the suggestion that Chuni Lal, ASI, had conducted investigation in that case and because of that, false allegation was made against Chuni Lal. PW-7 is prosecutrix ‘B’ the second lady. According to her, Khub Ram accused came to her house at about 6 6/7 p.m. and told her that her husband was in the Police Post. Then she and prosecutrix ‘K’ went to the Police Post. They were taken to a quarter next to the Police Post. Ten minutes later accused Chuni Lal came there. He gave her liquor in a glass and asked to drink the same. She drank the liquor. Thereafter, Chuni Lal took her to another room and asked her to take off her salwar. He had sexual intercourse with her twice. She states that she did not resist because she was under the influence of liquor. While Chuni Lal was having sexual intercourse with her, her husband PW-4 Amaru came inside the room and then she was beaten up by the police personnel. She denied that she had made any statement to the police that Khub Ram forced them to take liquor after bolting the kitchen from inside. She stated that she did not raise hue and cry when the accused assaulted her or raped her. According to her she became unconscious when she was given beatings. She was declared hostile and cross examined by the prosecution. According to her, she did not know what was going on between the prosecutrix ‘K’ and the other accused Khub Ram. She stated that the main door of the quarter was bolted from inside. She further stated that since she was unconscious she was carried by her 7 husband who lifted her on his shoulder and she did not talk with her husband about the incident. Both the prosecutrix had also sworn affidavits on which they admit their signatures but according to them they were forced to sign these affidavits. In these affidavits the prosecutrix have stated that they lodged a false complaint against the accused. The versions of the husbands are totally different. Accord to PW-3 Mast Ram husband of prosecutrix ‘K’ when he came home along with Gian Singh and Kehar Singh at about 11 p.m. he did not find his wife there. PW-4 was also searching for his wife and then they decided to go to the Police Post. When they saw that the light of the house of the Thanedar was on, they peeped from the windowpanes and found that prosecutrix ‘K’ was sleeping with accused Khub Ram on one bed and prosecutrix ‘B’ was sleeping with the Thanedar (Chuni Lal) on another bed. Both the ladies were naked. Since the door was not bolted they opened the door and went inside. The ladies had taken liquor. They raised an alarm and on hearing their cries, Gian Singh and Kehar Singh came there. The ladies were taken home. According to this witness the accused gave beatings to him and the ladies 8 with dandas. Next day they went to the Pradhan who telephoned the Dy.S.P. at Sundernagar. The witness has been confronted with the statement recorded by the police from which it is apparent that a number of improvements have been made. In fact in the original statement Ext.PX it was not mentioned that the accused were having sexual intercourse with the prosecutrix. It has also come in his evidence that Gian Singh is the brother of prosecutrix ‘B” and Kehar Singh the other witness is brother of this witness. In fact in the original statement it was not even mentioned that Amaru was present in the courtyard. This witness stated that the door of the house of the accused Chuni Lal was not bolted from inside but just closed. It has also come in his evidence that the house of the prosecutrix and the witness Gian Singh and Kehar Singh are barely four minutes walk from the quarter of ASI Chuni Lal. He denied the suggestion that the distance is about 2 k.ms. However, he admitted that the entire Pangna bazaar came first and then Police Post and quarters came. It has also come in evidence that other police officials along with their families are residing in the same building in which the house of accused Chuni Lal situated. This witness admitted that one Sunder Singh 9 after taking liquor in his house had died and Chuni Lal had investigated this matter. PW-4 gives a totally different version. According to him he came back at 8 p.m. and did not find his wife at home. His son told him that she had gone to the house of Mani Ram. PW-3 Mast Ram came back at 11 p.m. and the sons of Mast Ram told that the prosecutrix ‘B’ may have gone with prosecutrix ‘K’ to the house of Mani Ram. He went to the house of Mani Ram but did not find both the ladies there and then he and PW-4 searched for them and went to the police post. According to this witness the light was on in the room of ASI. They saw that prosecution ‘B’ and the accused Chuni Lal were sleeping on one bed in the room. The other room was dark and they could not see anything from outside. This witness stated that the door of the room was closed but not bolted. Therefore, they opened the door. In the other room Khub Ram and prosecutrix ‘K’ were sleeping naked. He went into the room where the ASI Chuni Lal and prosecutrix ‘B’ were sleeping and Mast Ram went to the other room which was dark. Thereafter, some constables came there and the accused and the constables pushed them outside the room. They were given blows by these constables. The 10 ladies were drunk and then they took their wives to their houses. His wife told him what had happened and next day they went to the police post and informed the Pradhan etc. There are glaring contradictions in the statements of these four witnesses. According to the ladies they were taken to the quarter of the ASI at about 8 p.m. Admittedly, their husbands reached there only after 11 p.m. There is no explanation why these ladies were quiet for more than three hours. It has come in evidence that the house of Chuni Lal accused is surrounded by a number of other houses including the PWD Rest House. In fact in the same building some police officials are residing with their families. The version that the two ladies were forced to drink liquor cannot be believed. They drank liquor from individual glasses. It cannot be believed that for more than three hours the ladies could be forced to drink liquor in a house situate in the middle of the bazaar. In fact the version of the prosecutrix ‘B’ in Court clearly indicates that she was a consenting party. She has stated that she offered no physical resistance since she was under the influence of liquor. She stated that she had only two pegs. If she had only two pegs she could not 11 have been so drunk that she did not know what was happening. On the other hand, according to prosecutrix ‘K’ the accused persons had physically forced them to have liquor. As already pointed out above there are material contradictions in her statement made in Court and the statements recorded by the police. In face one of the prosecutrix i.e. PW-7 was declared hostile by the prosecution itself. Both the prosecutrix have however clearly stated that the door of the house of Chuni Lal was bolted from inside. This is contrary to the version of the husbands, according to whom, though the door was closed it was not bolted. This version also cannot be believed. No person who is having sexual intercourse or is allegedly raping a woman would do so in a room which is not even bolted from inside. Another contradiction in the statements of the husbands is that according to PW-3 when they peeped from outside they saw both the ladies being raped in one room. The version of PW-4 is totally different. According to him, when they peeped from outside they could only 12 see PW-7 prosecutrix ‘B’ sleeping with the ASI and prosecutrix ‘K’ was discovered with the accused Khub Ram, in a second room which was dark , only when they went inside. As far as prosecutrix ‘K’ is concerned there is no clear-cut indication that she was even subjected to sexual intercourse. The Doctor did not find any semen on her pubic heirs and even the vaginal swab taken on slide shows no dead or alive sperms. As far as prosecutrix ‘B’ is concerned she was a consenting party. Another reason to doubt the version of the prosecutrix is that from the evidence of the witnesses it is apparent that both the prosecutrix had grown up children. The elder son of prosecutrix ‘K’ was 13 years old at the relevant time whereas the elder son of prosecutrix ‘B’ was 18 years old. Both the prosecutrix live in two houses which have a common compound. According to the prosecutrix ‘K’, Khub Ram came to her house first whereas according to prosecutrix ‘B’ Khub Ram only came to her house. In the initial version it was not mentioned by them that Khub Ram had told them that their husbands were in the Police Post. This is a material improvement because otherwise they had no reason to go to the Police Post. Assuming that this version being 13 given in Court is correct, there is no explanation as to why if they were going to the Police Post after 8 p.m. they did not deem it fit to take their sons who were grown up boys or any other male villagers instead of going alone. Another factor which totally demolishes the prosecution case is that according to PW-3 Mast Ram when they were being beaten up, PW Kehar Singh and Gian Singh reached the Police Post. This is apparently false, since Kehar Singh and Gian Singh, according to PW-3, had only come to the village. It is not their case that they accompanied them to the Police Post. If the husbands had raised a hue and cry many other persons in the village would have woken up. There is no explanation as to why they had to wait till the next morning to report the matter to the Pradhan when they were already in the village and had raised a hue and cry. From the above material on record, it is more than obvious that both the prosecutrix had voluntarily gone with the police officials and having been caught by their husbands in a compromising position levelled false allegations against the accused. The learned trial Court was fully justified in acquitting the accused. We find no reason to interfere in the well reasoned judgment of the 14 learned trial Court. The appeal is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ), J. June 18, 2010 ( Rajiv Sharma ), J. PV