IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 268 of 1995. Decided on: 31.03.2010. ________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Suneel Madan and others. …Respondents. Coram: The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1.Yes. __________________________________________________________ For the appellant : Mr. Rajinder Dogra, Additional Advocate General. For respondent No. 1 : Mr. Sanjeev Sood, Advocate. For respondent No. 2 : Mr. Rakesh Jaswal, Advocate. For respondent No. 3 : Mr. K.S. Kanwar, Advocate. ---------------------------------------------------------------------------------------- Surjit Singh, Judge(Oral) : This appeal by the State is directed against the judgment dated 25.04.1994 of the Sessions Court, whereby respondents Suneel Madan, Atul Gautam and Rajesh Kumar, who were tried for offences, under Sections 341, 376 read with 34 of the Indian Penal Code, have been acquitted. 2. Prosecution’s case is like this. Prosecutrix examined as PW-1, was married to a man who lived in Singapore. She herself lived at Delhi. She had two sons from the wedlock, whom her husband took with him to Singapore in June, 1991. 1 Whether the reporters of the local papers may be allowed to see the judgment? - 2 - 3. Prosecutrix then aged about 30 years, fell ill and on medical advice, she came to Shimla around 25th August, 1991. She checked in hotel Bridge View on The Mall. On 27th August, 1991, around 7:00 in the evening, respondent Suneel Madan, whom she had seen once or twice earlier and who had been introduced to her by some bus passengers, met her near the lift on The Mall. He offered to host a dinner to her. She agreed to the same, and after informing the owner of Bridge View hotel, she went with respondent Suneel Madan in his car. The car proceeded towards hotel Asia The Dawn. On the way, two other respondents also boarded the car. 4. At hotel Asia The Dawn, the respondents took their meals while the prosecutrix took only soup. She then told respondent Suneel Madan to leave her at hotel Bridge View, before it was too late as the doors of hotel Bridge view are closed earlier. The three respondents then started with the prosecutrix in the same car. Instead of taking her to hotel Bridge View, they took her to a hotel named and styled as ‘Woodrina’, located in a direction different from that of hotel Bridge View. On the way, when the prosecutrix came to know that she was being taken in a different direction, she resisted and tried to jump out of the car, but was prevented from doing so by respondents Atul Gautam and Rajesh Kumar. 5. On reaching hotel Woodrina, respondents Suneel Madan and Rajesh Kumar got a room booked, number of which - 3 - was 31. Prosecutrix was dragged to that room by all the three respondents. When prosecutrix started raising cries, respondents Suneel Madan left the room. The other two respondents alongwith prosecutrix remained inside the room, which was bolted from inside by one of the respondents. After some time, respondent Suneel Madan entered the room through the ventilator in the toilet attached with room number 31. He made the other two respondents to leave the room and himself committed rape on the prosecutrix. Prosecutrix struggled hard to get herself released, but without success. She also raised cries, upon hearing which, Beli Ram PW-2, one of the employees of the hotel informed the Police telephonically. Entry was made in the Roznamcha at the Police Station, about the information received from PW-2 Beli Ram. Copy of the entry is Ex.–PN. As per this entry, information at the Police Station was received at 2:40 A.M. 6. On getting the aforesaid information, PW-12 ASI Keshav Ram of Police Station, Dhalli reached hotel Woodrina. He contacted the Manager of the hotel around 3:00 A.M. He entered room No. 31 of the hotel. Prosecutrix was half sitting and half lying in the bed. Lower part of her body was without clothes, though she had covered herself with a blanket. Respondent Suneel Madan was standing close to the bed. 7. At 7:00 A.M. on 28th August, 1999, statement Ex.- PA of the prosecutrix was recorded, which was sent to the Police Station for formal registration of the case. Case was registered vide FIR Ex.-PO. Prosecutrix was got medically examined. According to the MLC, Ex.-PV, and the testimony of Dr. Suresh - 4 - Kumar Verma (PW-4), medical was conducted on 30th August, 1991 at 3:45 P.M., but according to PW-12 ASI Keshav Ram, the prosecutrix and all the three respondents had been got medically examined by him on 28th August, 1991. No injury was found on the person of the prosecutrix by PW-4 Dr. Suresh Kumar Verma in the course of medical examination. Other three respondents were also not having any injury on their person. Their medical evidence did not indicate anything that they were incapable of committing sexual intercourse. 8. Respondents took the plea that they had been falsely implicated by the Police by blackmailing the prosecutrix that in case she did not accuse them of the offence of rape, she herself would be involved in a case under the Immoral Traffic (Prevention) Act, 1957. 9. Suggestions thrown to the witnesses indicate that the prosecutrix went with Suneel Madan respondent of her own to enjoy sex with him and the other two respondents did not commit any offence. 10. We have heard the learned Additional Advocate General, as also the counsel representing the respondents and perused the record. 11. Defence plea is probalised from prosecution’s own evidence. It was suggested to the prosecutrix that from the hotel she had been taken to the Police Station alongwith the respondents and there she was pressurized to implicate the respondents in a case, under Section 376 of the Indian Penal Code. Similar suggestions were thrown to PW-12 Keshav Ram ASI. Prosecutrix admitted that she had been taken to the Police - 5 - Station and it was there that her statement, under Section 154 of the Code of Criminal Procedure Ex.-PA was recorded. PW-2 Beli Ram also admitted that the prosecutrix and the respondents had been taken to the Police Station immediately after they were nabbed at hotel Woodrina and that they were brought back to the hotel next morning at 8:00 A.M., and it was then that the statement of the prosecutrix Ex.–PA was recorded. I.O. Keshav Ram, however, stated that the prosecutrix had not been taken to the Police Station immediately and that he recorded her statement at 7:00 A.M. at the hotel, and took her and the respondents for medical examination late in the evening on 28th August, 1991 and did not go back to the Police Station in between. The contradictions in the testimony of prosecutrix and Beli Ram PW-2 on one side, and Police Officer Keshav Ram on the other side, lend a great deal of probability to the defence plea. 12. Contradictions in the testimony of PW-2 Beli Ram and PW-12 ASI Keshav Ram as to the respondents who were there in the room with the prosecutrix at the time when the Police reached, also renders the prosecution’s case highly doubtful. According to Beli Ram PW-2, when the Police came, respondent Sunil Madan was not present in the room, but was standing out side the room taking puff of a cigarette, while the other two respondents were inside the room with the prosecutrix. According to him, the prosecutrix herself was sleeping at that time. PW-12 Keshav Ram stated that when he reached room number 31, respondent Suneel Madan was there and the other two respondents were not there. - 6 - 13. Story put forward by the prosecution that the prosecutrix cried for help and on hearing those cries, Beli Ram gave a wring to the Police, also does not appear to be true. Beli Ram PW-2, as per the entry made in the Roznamcha, copy of which is Ex.-PN, informed the Police at 2:45 A.M., meaning thereby, that the prosecutrix was raising cries around that time. Police reached the spot within fifteen minutes, as PW-12 Keshav Ram ASI stated that he had reached the hotel at 3:00 A.M. Now, had the prosecutrix been subjected to rape, that is to say sexual intercourse without her consent or against her will, and despite her having put up resistance, she could not have gone to sleep within fifteen minutes, but PW-2 Beli Ram says that she was asleep when the Police came and this fact negates the story that the prosecutrix cried for help, and on hearing her cries, Beli Ram informed the Police telephonically. 14. Defence plea is further probablised by the fact that the prosecutrix was not got medically examined immediately. Prosecutrix’ testimony is that she was having many injuries, including some on her elbows and back which she sustained, while being dragged on the road by the respondents. Such injuries could have very easily been noticed, had she been got medically examined immediately. She stated that she had told the Police about the injuries and had even shown those injuries to them. Despite that, she was not got medically examined on the very day of the occurrence, but two days later. The delay fits in the suggestions thrown to the prosecutrix in the cross- examination that she had consumed alcohol and because of her - 7 - being under the influence of liquor, she was not prepared to undergo the medical examination immediately. 15. It is also doubtful if the case was registered in the morning of 28.8.1991 on the basis of Ex.-PA. FIR was delivered to the Magistrate concerned on 29.8.1991 at 10:30 A.M. No explanation for this long delay is there. It is quite likely that the case was registered much later after manipulation and concoction. Delay in medical examination of the prosecutrix is also a pointer to this. In view of the abovestated position, we see no reason to interfere with the judgment of acquittal, passed by the trial Court. Hence, the appeal is dismissed. (Surjit Singh), Judge (Rajiv Sharma) Judge March 31, 2010. (bhupender/sck) - 8 -