…1… IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.249 of 2002. Reserved on: 14.07.2011. Decided on: August 31, 2011 ____________________________________________________ State of Himachal Pradesh …Appellant. Versus Des Raj @ Dessu …Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. ¹Whether approved for reporting? For the appellant: Mr.R.K.Sharma, Sr.Additional Advocate General, with Mr. Rajinder Dogra, Additional Advocate General. For the respondent: Mr.Arvind Sharma, Advocate. . Justice R.B. Misra,J. The present Criminal Appeal has come up for consideration under Section 378(3) of the Code of Criminal Procedure after the leave to has been granted against the judgment dated 22.1.2002, passed in Sessions Case No.5 of 2001, by learned Additional Sessions Judge, Una, acquitting the accused / respondent for offence under Sections 342, 376, 511 and 506 of the Indian Penal Code, in reference to F.I.R. No.61 of 2000 dated 29.6.2000. 2. The prosecution case, in brief, is that on 29.6.2000, …2… victim / prosecutrix, studying in 5th Class, at Harsa Primary School, made a complaint to the police at Police Station, Bangana, under Section 154 Cr.P.C. that on 16.6.2000, at about 10.30 A.M., when she was grazing her goats along with another victim / prosecutrix (cousin sister) near road head in their village, accused / respondent came there and asked them that after the grazing of goats is over, they should come to his place for purchasing grocery articles for him. Accordingly, when both the victims went to his house, at that time accused / respondent was already present in his house. When both the victims entered into the room, accused closed the door and windows and switched on the light and asked both the victims to remove their ‘Salwars’ and lie on the bed. The accused after removing his underwear lied on one of the victims. When she desisted and cried, accused left her and lied on another victim and when she also cried, the accused left the place threatening both the victims that if they will narrate anything to their mothers, they will be meeting dire consequences. However, the first victim told to her mother about the incident, accordingly F.I.R. was lodged on 29.6.2000 and after medical examination as well as investigation, accused / respondent was charged for the aforesaid offences. 3. In order to prove its case, prosecution examined as many as 11 prosecution witnesses, whereas, the accused / respondent through his statement under Section 313 of Cr.P.C., …3… denied the case of the prosecution. 4. On analysis of the prosecution witnesses and materials on record, we notice that on 29.6.2000 i.e. after thirteen days of the incident, first victim made a complaint stating that when on 16.6.2000, at about 10.30 A.M., when she had gone with her cousin / second victim for grazing the goats on the road head, at that time the accused / respondent came and asked both the victims that some grocery articles are to be purchased from the shop and accused asked both the victims to come to his house. When both the victims went to the house of accused, the latter asked both the victims to put off their ‘Salwars’ and one by one he lied on both the victims and after the incident both the victims came to their respective houses. The first victim disclosed about the incident to her mother, however, victim / (PW-3) has also stated that the accused had asked both the victims that when grazing of goats is finished, both should come to his house and thereafter both tied their goats in the house and went to the house of accused. Such statement was not narrated in her complaint. PW-3 / (victim) had divulged in her testimony that when both the victims reached in the house of the accused none else but accused alone was present in the house. When both the victims were sitting outside, the accused called both of them to come inside the room and both the victims sat on the double bed in a position as both of their legs were touching …4… the floor of the room and thereafter the accused asked them to remove their respective ‘Salwars’, which they obeyed. Accused when further commanded them to sleep on the bed, both did accordingly. The accused, thereafter put off his pant and underwear and mounted on PW-3 / (first victim), when she felt pain in her private part and cried, then accused released her and slept over the second victim. When she cried with pain, accused thereafter stood up and threatened them that in case they disclosed the aforesaid incident to anybody, they would be killed. Thereafter, the accused asked them to fetch grocery articles from the shop which they did. The aspect of bringing grocery articles were not mentioned in the complaint made by PW-3 (first victim) on 29.6.2000. Such improvement has been made before the Court while making her testimony on 23.8.2001. PW-3 has further stated that after returning to her house, she slept and in the evening she narrated the incident to her younger sister studying in 2nd Class and through the sister of PW-3, her mother came to know about the incident. PW-3 has further stated that mother of PW-3 enquired from her about the incident, accordingly, PW-3 narrated whole of the incident to her mother and thereafter the father of other victim (PW-4), who is employed outside, had come and reported the matter to the police. Such thing was not divulged by PW-3 on 29.6.2000 in her complaint. PW-3 has further stated that there are other houses near the house of …5… accused. She also stated that apart from them / (victims), Bholi was also grazing her cattle at some distance. PW-3, in her cross-examination, has stated that both the victims brought grocery articles i.e. pulses of yellow and black colour and Biris, the pulses were purchased from the shop of Ram Pal and Biris were purchased from Khokha. Such aspects were also not mentioned in the complaint dated 29.6.2000. PW-3 has also stated that both the victims had visited Una prior to the registration of the F.I.R., however, PW-3 was not able to indicate how many days prior to the registration of the case, they had visited Una. PW-3 has also stated that the house of accused is consisting of three rooms and mother of accused is also residing in that house. 5. PW-4 / (another victim) could not make any statement as she was found not fit to make testimony. PW-5 / (Beena Devi), mother of PW-3 (victim No.1), in her endeavour to support the prosecution case, has stated that the victims had not gone to school on the fateful day as it was holiday and had gone to graze the goats in the morning and both the victims returned to home at 12 noon. In the evening her another daughter, namely, Anu studying in 2nd Class told PW-5 about the incident and accordingly PW-5 enquired from the victims and after the incident the accused had also given money to victims to bring grocery articles for him. PW-5 has stated that her brother-in-law / devar / Kishori Lal, who was …6… running a shop at Rampur Sarahan, was informed through letter to come home but the entire incident was not disclosed therein, when he did not come he was informed telephonically and he came after 11 days thereafter. Kishori Lal informed the police about the incident. PW-5 has further stated that distance between the house of victim and that of accused is ½ kilometer to ¾ kilometer. PW-5 has further stated that her another daughter Rekha had gone to school on that day and on the fateful day her husband was also present at the house. PW-5, however, has denied that before registration of the case, they had gone to Una. PW-5 has stated in her cross-examination that she had not told the police that her daughter / victim had first told the incident to Anu and Anu further narrated the incident to PW-5. PW-5 has very categorically stated that Anu had not told her anything. 6. PW-6 / (Bimla Devi), mother of second victim, in her endeavour to support the prosecution case, has denied that the girls / (victims) had gone to school on the fateful day. PW- 6 has further divulged to the police about the blisters and pain in her private parts on touching but such statement was not recorded by the police. PW-6 has also stated that Pradhan and Panches in the village were not disclosed about the occurrence, though they had talked about the incident to their near and dear ones. PW-6 has further stated that she is an illiterate lady and she wanted to discuss the matter with her …7… husband who is running a shop at Sarahan. She made a telephonic call and dispatched a letter to him. PW-6 has also stated that she had gone to the accused, however, the accused did not meet, then she apprised the incident to her mother. Next day also, PW-6 visited the house of the accused but the matter was not reported to the police as her Jeth (the elder brother of her husband) used to remain ill and after 10 – 12 days of the incident, matter was reported to the police. PW-6 has further stated that it was incorrect that PW-3 (victim No.1) had not gone to school on that day. 7. PW-7 / (Rangila Ram Rao) and PW-8, (HC Hardyal Singh), are the formal witnesses who had sent the Rukka Ext.PW-3/A to Police Station on the basis of which F.I.R. Ext.8/A was recorded. PW-9 / (Roshan Lal), the father of victim No.1, has stated that when his wife (PW-5) apprised him about the incident then PW-9, along with other family members, had gone to the house of the accused, however, he was not available in his house and then PW-9 again visited the house of the accused on the next day along with his wife Bimla Devi and enquired from the accused. The accused on asking by PW-9, as to why he did so, the former told that he had done what he intended to do and they were at liberty to do anything. PW-9, however, did not report the matter to the police as the daughter of his brother was also victim and without consulting the father of second victim, did not report …8… the matter to the police as the reputation of the family was involved. As stated by PW-9, his brother came some time after the occurrence and after discussion with him it was decided to report the matter to the police. PW-9, in his cross-examination, has stated that on the day of occurrence, he reached home after day’s work and it was not known to him that on the fateful day, the victims had gone to the school or not. 8. PW-10 / (Ashwani Kumar), has divulged that as per Panchayat record, one victim was born on 18.4.1993. PW-11 (ASI / SHO Rikhi Ram), in his enddavour to support the prosecution case, has stated in his cross-examination, that nothing could be brought on record that after the incident grocery articles were purchased by the victims for accused. PW-1, (Dr.Ranjan Angra), Medical Officer, District Hospital, Una, has conducted the medical examination of victims and has found no mark of violence on any part of their body. PW-1 opined that there was nothing to suggest that recent or in past sexual intercourse had been performed over them. PW-1 had also observed that both the victims had changed and washed their clothes after the incident. PW-2 / (Dr.V.K.Raizada), also did not notice any mark of injury on the body of accused. 9. On analysis of prosecution witnesses and materials on record, we notice that much improvements have been …9… made by (PW-3) / victim No.1 in comparison to the complaint. The narration has not been made correctly through her statement under Section 154 Cr.P.C. There is no coherency in the testimonies of mothers of both the victims. PW-9 had told that the father of victim No.2 came after 7 – 8 days, whereas, PW-3 also could not give proper explanation of filing the F.I.R. by thirteen days. PW-5 / (Beena Devi), the mother of PW-3 (victim No.1), could not give any proper explanation about the incident and also could not explain the delay in filing the F.I.R. The F.I.R. was made after deliberations and discussions. 10. DW-1 / (Satya Parkash), has tried to indicate that on the basis of attendance register of the school, both the victims, on the fateful day, were present in the school which is in derogation to the testimony of PW-3 that her daughter had not gone to the school as it was a holiday. DW-1 has further stated that he has only made statement as per entry made in the attendance register. DW-2 / (Naresh Kumar), has tried to indicate that the parents of both the victims were inimical to the family of the accused. It is also very apparent to note that there is over-writing in the attendance register regarding the details of PW-3 (victim No.1). DW-3 / (Subhash Chand), has tried to impress that the accused / respondent was not present on the spot on the fateful day. DW-4 / (Jiwan Kumari, JBT Teacher), has indicated that she had given her statement as per record, however, was not aware whether the victim …10… was present in the school or not on the fateful day. DW-4 has also admitted that there was over-writing in the attendance register Ext.DW-1/A. 11. On analysis of testimonies of prosecution witnesses, specifically victim / prosecutrix PW-3, we notice that her testimony is not inspiring confidence. The prosecution witnesses had not been able to explain the delay in filing the F.I.R. There are apparent inconsistencies and contradictions in the testimonies of the prosecution witnesses. The medical evidence also had not supported the case of the prosecution. In our considered view, the learned Additional Sessions Judge has rightly arrived at a finding that the prosecution has miserably failed to bring home the guilt to the accused. Accordingly, the appeal, being devoid of any merit, is dismissed. Bail bond, furnished by the respondent at any point of time, stands cancelled. ( R.B.Misra ), J. August 31, 2011. ( Sanjay Karol ), J. (soni)