IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 312 of 2003 Reserved on: 27.12.2011 Date of decision: 29.12.2011 State of Himachal Pradesh ... Appellant Versus Ganga Ram S/O Sh. Bhumi Ram R/O Village Barnagi, Police Station Banjar, District Kullu, H.P. … Respondent Appeal under Section 378 of the Code of Criminal Procedure. Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Ramesh Thakur, Assistant Advocate General. For the respondent: Mr. R.K. Gautam, Senior Advocate, with Mr. Mehar Chand, Advocate, for the respondent. Per V.K. Ahuja , J.: This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of learned Sessions Judge, Kullu, dated 3.4.2003, vide which he acquitted the respondent of the charge framed against him under Section 376 I.P.C. 2. Briefly stated, the facts of the case are that on 27.4.2001, at about 9.30 P.M., a report was lodged with the police 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 by one Smt. Chandru Devi, in which she alleged that her grand- daughter ‘X’, name not mentioned, was living with her, who had gone to jungle in the morning for grazing the sheep. She did not return and the complainant sent Jai Wanti, her another grand- daughter, to search for her. The prosecutrix came back weeping and when asked through signal, she expressed that the respondent had committed sexual act with her. On this report, the case was registered and the girl was medically examined. The respondent was also medically examined and on completion of the investigation, the police filed the challan before the Court of learned Chief Judicial Magistrate, Lahaul & Spiti at Kullu, who committed the case to the Court of learned Sessions Judge, who tried the respondent as detailed above, leading to his acquittal. 3. We have heard the learned counsel for the parties and have gone through the record of the case. 4. On appraisal of the evidence, it is clear that most material witness can be said to be the prosecutrix ‘X’, who has been examined as PW-10. She stated that the respondent did wrong work with her when she had gone to the jungle for grazing the sheep. She stated that when he was doing wrong work, Jai Wanti saw them and the accused ran away. Then she came back with Jai Wanti and told her grand mother about the occurrence. In cross- examination, she stated that her grand-mother had told her the statement, which she was to give. She also stated that Jai Wanti had also told her what statement she was to give. She was asked some questions and the answers, but some of the questions were replied by her in affirmative or slowly and the learned trial Court 3 had made observations in regard to the statement made by her or her capacity to make statement in the end of her statement, which procedure adopted, cannot be said to be correct. In case, the girl was mentally retarded or she was able to understand by gesture only, as has come up in evidence and shall be discussed below, it was required of the police to have taken opinion of some Medical Officer as to whether she was fit to make statement or not. In case, she has been examined by the police during investigation and had been produced in Court subsequently, some question should have been put up by the learned Sessions Judge to know her capability to depose and speak and once he was satisfied that she was a competent witness, then only her statement should have been recorded. However, the observations were made after she had given her statement and some questions were put up to her, which she replied by saying in affirmative or she did not understand the questions. It was observed by the learned Sessions Judge as under: “(It is observed that witness virtually is saying yes to any type of question put to her. Except yes she is not uttering any other word.) Question:- No bad work of sexual intercourse was done by accused with you? Ans. The witness kept silent despite repeating the question for five times. It is correct that grandmother Chandru told me to tell that accused did wrong work with me.” 5. It is, therefore, clear that the procedure adopted by the learned Sessions Judge cannot be said to be correct and in 4 case, it is held that she was not a competent witness, her statement can be ignored and it has to be seen as to whether other evidence is sufficient or not to prove the case. 6. The other material witness can be said to be PW-9 Jai Wanti, who was sent to call the prosecutrix and who saw the accused there and came back and told her grand-mother Chandru Devi about what she had seen. She stated that she heard the cries of ‘X’, climbed over the boulder and saw accused lying over ‘X’. The pent and salwar were kept on one side and the accused was doing wrong work with ‘X’ and on seeing her, he picked his pent and ran away. In examination-in-chief, she stated that ‘X’ is mentally retarded and she talks very less. She is also hard of hearing. She is mentally retarded since birth. She stated that the blood had oozed out and it was on salwar of ‘X’, but that has not been stated by the Medical Officer and her statement cannot be explicitly relied upon in view of the medical evidence, which does not favour the prosecution. 7. PW-1 Chandru Devi is the grand-mother, who learnt about the facts, is not an eye witness and lodged the report. 8. PW-3 Dr. Richa Mehrotra, Medical Officer, who had examined the prosecutrix on the same day, at 10.45 P.M., observed as under:- “No mud stains or blood stains on clothes. Hair tied in hair band. There were no abrasion on hand or face. Pt. appears calm, but has a low I.Q. Her speech is not comprehensible and responds to leading questions by nodding her head. On coaxing she is not able to narrate anything on her own. She was 5 examined and asked questions with the held of her grand mother.” 9. She also observed as under: “There are no abrasions or accynoses on writs, lips, inner mucosa of mouth and breasts. No abrasions or bruises are seen over neck, elbows, knees and buttocks and abdomen.” 10. She further observed as under:- “No blood stains seen Gait is normal and no difficulty on walking. There was no tenderness on separation of thighs and no marks were seen on inner aspect of thighs. No discharge. No blood stains were seen. The vulvas area showed no sign or marks of struggle. The area was normal and healthy. There was no tenderness on touching the vulval area the labia majora was well approximated. No scrach was seen over L. Majora. No inflamation, swelling or tenderness seen over clitoris or L. Minora.” 11. She further stated that as per the Chemical Examiner report Ext. PW3/B, no blood or semen stains were found on specimen sent for chemical analysis. After seeing the report, she could not come to the conclusion that whether the victim was raped or not. She admitted the suggestion that in case rape is committed on bare earth, earth stains in that event will appear on clothes of the prosecutrix. She also stated that in case the victim was wearing clothes, some marks would appear on the body also. 6 12. No plea was taken in regard to the question that the girl was of the age of above 16 years since there was no question of consent being given by a mentally retarded person. The evidence led by the prosecution, which is not conclusive, only shows that as per the x-ray examination and report, the prosecutrix was of the age of 14 to 16 years, which report was never challenged and it has to be concluded that she was below the age of 16 years, but being a mentally retarded person, she could not give her consent, which plea has not been taken during cross-examination of the witnesses or during the arguments. The only plea taken is that no rape was committed and the learned trial Court after referring to the ocular evidence and the medical evidence had concluded that the prosecution evidence does not establish that the rape was committed upon the prosecutrix, which findings cannot be termed as perverse. 13. In view of the above discussion, we accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged. ( Deepak Gupta ), Judge December 29, 2011 ( V.K. Ahuja ), (BSS) Judge