IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.299 of 1993 Decided on : June 17, 2008 State of H.P. …Appellant. Versus Ashok Kumar …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 No. For the Appellant : Mr. P.K. Sharma, Additional Advocate General. For the Respondent : M/s M.S. Thakur & Jeevesh Sharma, Advocates. Surjit Singh, Judge( Oral ) This appeal by the State is directed against the judgment of Sessions Court, whereby respondent Ashok Kumar, who was sent up for trial for offences, punishable under Sections 302 and 376 of the Indian Penal Code, has been acquitted. Leave to appeal was granted by this Court vide order dated 3rd June, 1993. 2. Prosecution story, as it emerges from the record, is like this. Deceased Ranjana alias Bholi was 10 or 11 years of age in December, 1991. As usual, she left her parents’ house on 21st December, 1991, in the evening, to fetch milk from the house of one Mast Ram. However, she did not return. Her mother PW-1 Bimla Devi accompanied by her Whether reporters of the local papers may be allowed to see the judgment? …2… husband’s brother PW-6 Nikka Ram started searching for her. They could not get any clue till late in the night. Next day, the search again started. PW-1 Bimla Devi and PW-6 Nikka Ram found a pair of Chappals, an umbrella, a bottle of milk and a shawl of the deceased lying scattered in a field by the side of the path. All those articles were collected by PW-1 Bimla Devi. She then went to PW-10 Chand Kishore, a shopkeeper of the village, at whose shop a telephone is installed. She requested him to make a call to the police. Chand Kishore tried to contact police. However, the call did not mature. Then PW-1 Bimla Devi, her husband’s brother PW-6 Nikka Ram and PW-10 Chand Kishore again went in search of the deceased. They found the dead body of the deceased lying in a Chala, meant for draining out excess water from the fields. PW-1 Bimla Devi accompanied by PW-6 Nikka Ram and PW-10 Chand Kishore then went to Police Station Nadaun. FIR Ex. PG was lodged by PW-10 Chand Kishore. 3. Police visited the site. Inquest was conducted. Dead body was sent for postmortem. PW-4 Dr. Archana Soni and one Dr. K.C. Kaushal conducted postmortem. They noticed the following injuries: “1. There was a contusion and swelling of reddish brown colour on the left side of the face including temporal region and left eye, size approximately 3” x 3”. 2. There was penetrating wound on left zygomatic arch, ½” deep and 2” from the route of pinna. Margins of wound were well defined. The wound was of rectangular shape and there was bleeding from the left …3… ear. Hair on left side of scalp were soiled with blood. 3. There was laceration of size of 1½” x 1 cm in between the buttock on the coccygeal region. 4. It was bleeding in the vagina and laceration on labia majora on both sides extending upto anal sphincter which was also lacerated and torn. Hymen torn with irregular margins with lacerations. Vaginal orific admitted two fingers. Vaginal wall was lacerated and blood was coming out of vagina. 5. There was a fracture at the base of middle parts of skull of the size of 1” linear. They gave the opinion that probably deceased had been raped before being done to death. 4. Respondent was arrested on suspicion. He made a disclosure statement leading to the discovery of a piece of stone stained with blood, a bamboo stick fitted with nail and an underwear, which was found to be stained with human semen, by the Chemical Examiner. Respondent visited the house of PW-6 Nikka Ram on 22nd December, 1991, when the search for the deceased was being made and told Nikka Ram’s wife PW-8 Brahmi Devi that the deceased had been taken away by labourers engaged for construction of a bridge. It came to light during the investigation that there was a dispute between PW-6 Nikka Ram and Sita Ram, the father of the respondent, over a piece of land and that that was the motive for the commission of the crime by the respondent. 5. Trial Court has disbelieved the prosecution version and acquitted the respondent. …4… 6. We have gone through the evidence and heard the learned Additional Advocate General as also the learned counsel for the respondent. 7. Respondent is sought to be connected with the crime by following three circumstances: (a) There was enmity between PW-6 Nikka Ram, the brother of the father of the deceased, and Sita Ram, the father of the respondent. (b) Respondent Ashok Kumar tried to mislead PW-8 Brahmi Devi, wife of PW-6 Nikka Ram, by telling her that the deceased had been taken away by the labourers, who were constructing a bridge at a nearby place. (c) Respondent made a disclosure statement leading to the discovery of a piece of stone stained with human blood, a bamboo stick fitted with nail and his underwear, which was found to be stained with human semen, and the aforesaid piece of stone and bamboo stick were used as weapons to kill the deceased, per opinion of PW-4 Dr. Archana Soni. 8. It is true that the evidence on record suggests that there had been some litigation in the year 1990, between the father of the respondent and PW-6 Nikka Ram, with respect to a piece of land, but this, in our considered view, cannot be taken to a motive for the commission of the offence of rape on the minor daughter of PW-1 Bimla Devi. Offences of sexual assault are normally not committed, on account of enmity or …5… other motive for taking revenge, but they are actuated by sexual lust and desire. 9. As regards the second circumstance, viz. the respondent went to PW-8 Brahmi Devi and told her that the deceased had been taken away by the labourers, it appears from Brahmi Devi’s own statement that the story put forward by her may not be true. She has admitted in the cross- examination that her family members and the members of the family of Sita Ram, the father of the respondent, are not even on talking terms. If it is so, it cannot be believed that respondent went to Brahmi Devi’s house and tried to mislead her, in the aforesaid fashion. Moreover, PW-8 Brahmi Devi disclosed this fact, for the first time, to the police on 27th December, 1991, even though she claimed that respondent visited her place on 22nd December, 1991, even before the recovery of the dead body. If it were a fact, PW-8 Brahmi Devi was supposed to have disclosed the same to her husband PW-6 Nikka Ram as also to the mother of the deceased, PW-1 Bimla Devi, immediately after the recovery of the dead body and this fact would have been reported to the police also at the time of the lodging of FIR Ex. PG. But the story does not find mention in the FIR. 10. Evidence with regard to the third circumstance is also doubtful. According to the prosecution, two independent witnesses, namely PW-12 Mehar Singh and one Man Chand were present when disclosure statement Ex. PH/1 was allegedly made by the respondent. Prosecution examined only …6… Mehar Singh (PW-12). He is proved to be a liar. The witness stated that his bicycle had been stolen on 26th December, 1991 and that on 28th December, 1991 he went to Police Station Nadaun to lodge the report and that when he reached the Police Station he saw the respondent being interrogated by a Police Officer and in his presence respondent made disclosure statement that he had kept hidden a blood stained stone, a bamboo stick fitted with a nail in a bamboo grove and his own underwear stained with semen in his hut. The witness says that he was accompanied by Man Chand. The witness stated that his report about the theft of bicycle was not recorded at Police Station Nadaun, as he was told that the place where the theft had been committed fell within the jurisdiction of Police Station Jawalamukhi, District Kangra. The witness did not explain why did he not go to Police Station to lodge the report on 26th December, 1991 itself when the theft was committed or on the next following day, i.e. 27th December, 1991. Not only this, he stated that after being told by Nadaun Police that the report was to be lodged at Police Station Jawalamukhi, he went to the later mentioned Police Station and lodged the report on the same evening. But, a police official from Police Station Jawalamukhi, examined by the defence, namely DW-4 HC Desh Raj, testified that no report of theft was lodged at Police Station Jawalamukhi by PW-12 Mehar Singh on 28th December, 1991. The above discussed position makes the very presence of the witness at Police Station Nadaun, on the relevant date, highly doubtful. …7… 11. PW-17 SI Karnail Singh says that the disclosure statement was made in the presence of PW-12 Mehar Singh and one Man Chand. Since Mehar Singh’s presence at the Police Station, at the time of the making of the disclosure statement, is doubtful, testimony of PW-17 HC Karnail Singh is also rendered doubtful. 12. Furthermore, it has come in the evidence that it had been raining heavily on the night of 21st December, 1991, when the crime was committed and because of such rain search for the deceased during night was abandoned. Now, if it had been raining so heavily, how could have there been stains of blood on the stone, which was recovered from the bamboo grove. Otherwise also, the sole circumstance of recovery of blood stained piece of stone from near the place of occurrence, by itself, does not connect the respondent with the commission of the crime. 13. There is no other evidence linking the respondent with the commission of the crime. 14. In view of the above discussion, we see no merit in the present appeal. The same is, therefore, dismissed. 15. Appeal stands disposed of. ( Surjit Singh ), J June 17, 2008(sd) ( Surinder Singh ), J