IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 180 of 1997 Date of decision: 18.08.2010 ____________________________________________________________ The State of H.P. .....Appellant. Versus Chattar Singh .....Respondent. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? ____________________________________________________________ For the appellant: Mr. Rajinder Dogra, Additional Advocate General. For the respondent: Mr. Rahul Mahajan and Mr. Vishal Panwar, Advocates. R.B. Misra, J (Oral). The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment and order dated 20.01.1997, passed by the learned Sessions Judge, Hamirpur, District Hamirpur, in Sessions Trial No. 6 of 1996, acquitting the alleged accused under Sections 376, 511, 506 and 323 of the Indian Penal Code in reference to FIR No. 6 of 1995. 2. Prosecution case in brief is that on 20.01.1995, during day time, prosecutrix (name withheld) reported in the Police 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... Station at Barsar that on the previous day, i.e., 19.01.1995, during day time, at about 2 O'clock, while she was grazing the cattle in Taropka jungle and also knitting, while in the sitting posture, from behind the accused came, caught hold of her by her neck and threw her in the 'Chala' (Nallah), untied her salwar and sat on her abdomen and then forcibly committed wrong act with her. When she resisted, the accused remarked that he will send her to her house in a naked condition. When she tried to raise noise, the accused slapped her and torn out her clothes. While running from the spot, the accused threatened her that if she disclosed to anybody, she will be put to death. When she got up, she found herself naked and her clothes were in torn condition. After a while, her Aunt (Bua) namely, Smt. Banarso Devi, provided her shawl to the prosecutrix to cover herself and got other pair of clothes from prosecutrix's house. After wearing the other pair of clothes, prosecutrix was brought to her house by her Aunt. During night time, when prosecutrix's parents arrived in the house, she narrated the occurrence to them. In the morning on 20.01.1995, she alongwith her mother visited the Pradhan of Gram Panchayat for reporting the incident, but he advised them to report to the police station. On such report, a case for offences under Section 376 and 506 IPC was registered against the accused. She was got medically examined. During investigation, her clothes etc. were taken into possession. Her clothes alongwith vaginal swab were sent to the Chemical Examiner. The accused was also got medically examined. His pubic hairs alongwith cotton swab were ...3... also sent to the Chemical Examiner. As per report of the Chemical Examiner, no semen on the pubic hairs, cotton swab, clothes of prosecutrix and vaginal swab was found. The Medical Officer, who medically examined the prosecutrix, opined that no evidence of sexual intercourse was found. Certificate regarding age of prosecutrix was collected from the Gram Panchayat – Bijhari and as per such certificate, her date of birth is 14.04.1980 and thus at the time of incident, she was below 16 years of age. On completion of investigation, challan was presented in the lower court. The then Additional Chief Judicial Magistrate found a case for offences under Section 376 read with Section 511 as well as for offence under Section 323 IPC against the accused, which is exclusively triable by the Court of Sessions Judge and case was committed to the Sessions Court, accordingly. 3. In order to prove its case, prosecution examined as many as fourteen witnesses, whereas, accused through his statement under Section 313 Cr.P.C. denied the prosecution case and in defence adduced DW-1, Nikka Ram. 4. Prosecution has examined following witnesses to prove its case: Prosecutrix - PW-1 Prosecutrix's mother - PWs-2 & 3 respectively and father Member and Pradhan - Pws-4 & 12 respectively of the Gram Panchayat Recovery witness - PW-5 ...4... Head Constable and - PWs 6 & 7 respectively LHC Smt. Banarso Devi - PW-8 Medical Officer who - PWs 9 to 11 respectively medically examined prosecutrix, Radiolo- gist, Medical Officer who medically exami- ned the accused Gram Panchyat Officer - PW-13 to prove the Extract of the Family Register Investigating Officer - PW-14. 5. PW-1 victim/prosecutrix in support of the prosecution case has stated that prior to such incident, such act of 'Ganda Kaam' (sexual intercourse) did not occur to her. The accused sat on her abdomen and then forcibly committed sexual assault with her. The victim/prosecutrix has further stated in cross- examination that she told the police that accused did 'Ganda Kaam' with her. She also told that accused threatened her to kill her, if she disclose to anybody. There were 12-13 houses in the village nearby the place of incident, comprising of the communities of Ghumar, Jullahe, Chamar and Sanai. The abadi of Rajput and Brahmins is situated just opposite Nallah. However, the victim/prosecutrix was not aware about the number of houses. As per the testimony of the victim/prosecutrix, she cried and on hearing such cries persons came to know about the incident, however, she did not narrate the incident to anybody. As per her testimony, when she was crying, there was response, as to why she ...5... was crying and obviously such response was by the person/persons who happened to hear her cries. Further, as per the testimony of the victim/prosecutrix when the accused did 'Ganda Kaam' with her, she merely prevented him from doing so as the accused was catching hold of her throat, neck and as such she could not do anything more, except raising sound and when the victim cried, the accused fled away from the spot. While raising noise, prosecutrix/victim was uttering the words that the boy had quarreled with her and caught hold of her. The victim/prosecutrix raised noise for 2-3 minutes. When the accused fled from the spot, she went towards 'Charta' (East) from the place of occurrence. Her Bua came running at the spot after the accused ran away from the spot. Other ladies also followed her Bua and enquired what had happened and my Bua asked them to bring the clothes of the victim/prosecutrix and those ladies went running to her house and brought her clothes within 2-3 minutes. 6. PW-1 has very categorically stated in her examination- in-chief that after the said incident she came back to her home and went to sleep. Her mother arrived at about 5 O'clock in the evening and asked about the cause of sleeping, then she told her that a boy, that is the accused, had quarreled with her. Father of the prosecutrix arrived at about 7 O'clock in the evening, then he was informed about the occurrence by her mother. Thereafter, the incident was narrated to Ward Panch, Balak Ram by her mother. 7. PW-8 Banarso Devi, Bua of the victim/prosecutrix was said to have reached at the spot after the accused escaped from the ...6... spot. She stated that she was going from her home to village Bijhar and while she was passing through Taropka jungle, she heard the calls from the daughter of Sahuru Ram. After crossing the nullah said girl complained to her that a boy grappled with her. In the meantime, some ladies also followed PW-8 and the girl was without dupatta and salwar. She has further stated that the victim/ prosecutrix did not disclose the name of that boy who has grappled with her. However, the victim/prosecutrix was covered with chhader (bed sheet) by PW-8. PW-8 did not see any boy anywhere at that place. From the testimony of PW-8, it is apparent that the only lady who was said to be present on the spot, in view of the testimony of the victim/prosecutrix, has not supported the prosecution case. 8. PW-9 Dr. Harinderjit Singh Shekhu examined the victim/prosecutrix and noticed the following external injuries: “1. There was an abrasion of 1 cm x ¼ cm in size situated on back at level of lumbar vertebra 3 obliquely directed with reddish brown scalp. 2. There was linear abrasion of 10 cm x 1 mm situated below injury No. 1 with reddish brown scalp directed above downwards. There was no other external injury seen in other parts of the body.” 9. On local examination of the victim/prosecutrix, PW-9 has noticed the following injuries: “There was no injury, redness and oedema over the hymen and it allowed tip of small finger to enter. ...7... There was no external injury seen on levia majora, lebia minora, forchette, medial side of thighs and around vagina. There was no semen or blood stains seen on above parts. There was no discharge.” 10. PW-9 has further opined that there was no evidence of any sexual intercourse with the victim/prosecutrix. Subsequently also he has stated that possibility of attempt of sexual assault cannot be ruled out. 11. On analysis of the prosecution witnesses and material on record, we notice that it is only prosecutrix/victim and Smt. Banarso Devi, who as per prosecution version can unfold the occurrence. The victim/prosecutrix in her statement has narrated the same version as find mention in the FIR, Ex. PA, although with some contradictions. The most important feature of the statement of the prosecutrix/victim is that she merely told her mother in the evening that the accused had quarreled with her. Her mother (PW-2) while in the witness box, stated that she was told by a village lady about the son of Sohan Lal having quarreled with the victim/prosecutrix. She accordingly visited the Member of the Panchayat, namely, Harbans Lal (PW-4) and told him so. She was directed by the member of the Panchayat to visit Pradhan and she did so accordingly. Shri Harbans Lal, member of the Gram Panchayat, Bijhari, PW-4, stated that Smt. Roshani Devi, PW-2, complained to him that a boy committed a mischief with her ...8... daughter, torn out her clothes. Her further stated that the name of the culprit was not disclosed to him by Smt. Roshani Devi. He advised her to report the matter to the police. As he did not fully support the prosecution case and as such was declared hostile and subjected to cross-examination. He denied a suggestion on behalf of the prosecution that Smt. Roshani Devi disclosed to him the name of the accused to be the culprit, who committed mischief with her daughter. The Pradhan of the Gram Panchayat, PW-12, also stated that Smt. Roshani Devi complained to him against a boy of village Ambota having committed rape on her daughter on the previous day. But, he advised her to report the matter to the police. In the cross-examination also, he firmly stated that he was not told the name of the culprit by Smt. Roshani Devi. He also disclosed that there are about 25 houses in village Ambota and many boys reside there. Shri Suhru Ram, father of the victim/prosecutrix, of course, named the accused to be the person who was named by his daughter (prosecutrix) to be the culprit. He also stated that the victim/prosecutrix narrated to him the entire incident when accused committed ‘Kharab Kam’(an act which is done between the husband and wife) and then he ran away and she herself come running while weeping from the spot. He was also told about the arrival of Smt. Banarso Devi at that time and wrapping the victim/prosecutrix with the chaddar and then sending for another pair of her clothes from her house and making her to wear those clothes and then bringing her to her house. Smt. Banarso Devi, PW-8, has merely chosen to state that while she was ...9... on her way to village Bijhari, she heard the calls from the victim and on arriving at the spot, she found the victim to be without ‘dupatta and salwar’ and she complained to her that a boy had grappled with her, but she did not disclose the name of the boy. Then she offered her chaddar to cover herself and the victim was weeping at that time and then she sent her to her house. She was also declared hostile and subjected to cross-examination on behalf of the prosecution, but nothing favourable to the prosecution could be extracted. 12. In the first information report, Ex. PA, there is clear mention that the accused committed ‘Galat kaam’ with the victim/ prosecutrix and after he had ran away from the spot, she got up and found herself naked and her clothes were in torn condition. It further finds mention in Ex. PA that Smt. Banarso Devi sent for another pair of her clothes from her house and then she wore those clothes and was brought to her house by Banarso Devi. The victim in her statement as PW-1 identified her salwar and shirt, Ex. P3 and P4, respectively, to be the same which she was wearing at the time of incident and which were torn out by the accused in the course of occurrence. But, the bare perusal of salwar and shirt clearly falsifies the above deposition that these were torn during grappling. Salwar and shirt are completely intact except a small portion of side stitching of shirt having been unstitched. Smt.Banarso Devi has chosen to depose an altogether different version inasmuch as she when arrived at the spot, in response to the calls of the victim, she found her without dupatta and salwar. ...10... If salwar, Ex. P3, of the victim/prosecutrix is the same which allegedly she was wearing at the time of incident, then it is not understandable where that salwar was when Smt. Banarso Devi arrived at the scene. Salwar and shirt, Ex. P3 and P4, respectively, were produced during investigation before the police by Smt. Roshani Devi, as per memo Ex. PD, and as per the contents of this memo, Ex.PD, these clothes, amongst other articles, were kept at home by picking up from the spot by Smt. Roshani Devi. There is no direct or indirect evidence on the file to establish or suggest when allegedly Smt. Roshani Devi picked up these clothes, amongst other articles, from the spot. 13. The Investigating Officer has narrated an altogether different version in this context. According to him, when he inspected the place of occurrence, then he took into possession hairclip and Paranda, vide memo Ex. PC, and such place of occurrence was pointed out by the victim/prosecutrix while in the company of her mother and father. According to him, the salwar, shirt alongwith dupatta (Ex. P3 to P5), cardigan and pair of chappals (slipper) of the prosecutrix were produced by Smt. Roshani Devi and these were taken into possession vide memo, Ex. PD. The Investigating Officer visited the spot on 22.01.1995 and took the clip and Parandu from the spot vide memo, Ex. PC, whereas, the alleged occurrence took place on 19.01.1995. Victim/ prosecutrix, her father and mother, Smt. Banarso Devi in their cross-examination on behalf of the accused have stated clearly and unequivocally that a common path passes very close to the ...11... place of occurrence and it is also the grazing place for village Ambota and on the date of occurrence, fair was taking place at Bijhari and as such the people were coming and going. When it is so, the story of the clothes of the victim having kept lying at the spot becomes quite improbable. Mention of that part of the statement of Smt. Banarso Devi has already been made where she has stated that she on arrival at the spot in response to the calls of the victim found her without salwar and dupatta. The victim/prosecutrix also in her deposition (PW-1) stated that her Bua (Aunt, Smt. Banarso Devi) covered her with ‘Chaddar’ as she was naked on account of opening of her salwar. 14. From the above referred prosecution evidence, it emerges that the true narration of the occurrence has not been made by the victim either before the policed while getting the FIR, Ex. PA, recorded or while appearing as a witness in the court, during trial. Identity of the person, who grappled with her also does not stand established beyond shadow of doubt. The mother of the victim/prosecutrix, while complaining to the Member and Pradhan of the Gram Panchayat (PWs 4 & 12, respectively), merely complained against a village boy of Ambota, who committed mischief with her daughter. Smt. Banarso Devi too did not name the accused to be the person who grappled with the victim as per the disclosure made by the latter to the former immediately after the occurrence. Smt. Roshani Devi, as per her deposition, was told about the grappling by a village lady while she was coming back to her house from her work and that village lady did not ...12... name the accused or the boy who so grappled with the victim. Further, according to Smt. Roshani Devi, on hearing such news from that village lady, she instead of visiting her house went back and visited the Member of the Gram Panchayat and complained to him. Further, according to her, when she arrived back at night in the house and was offering a suit (pair of shirt and salwar) to the victim, then the latter remarked that during day time, the accused threatened her to be killed and if he succeeded in doing so, then she was no longer alive to wear that new suit. Mention of that part of the prosecution version has already been made, whereby as per the memo, Ex. PD, shirt, salwar, dupatta of the victim/prosecutrix alongwith cardigan, pair of chappal (slipper) were taken into possession and these having been produced by Smt. Roshani Devi before the Investigating Officer as she after picking up these clothes from the spot kept with her, whereas there is no grain of evidence in the statement of Smt. Roshani Devi or the victim or in the statement of any other witness as to suggest even remotely that Smt. Roshani Devi after the occurrence on 19.01.1995 till the production of these clothes before the Investigating Officer on 22.01.1995 had visited the spot and picked up the clothes from there. Moreover, such a version not only being without any basis is also quite contradictory and inconsistent with the other part of the prosecution version, whereby the Investigating Officer on visiting the spot at the instance of the victim collected her clip and paranda from the spot as per memo Ex. PC. 15. In view of the above analysis, we notice that as per the ...13... statement of Smt. Roshani Devi, the victim/prosecutrix was running in 17th year, whereas PW-3 Shri Sehuru Ram, has stated that the victim/prosecutrix is his third child, though she is yet to complete her 17 years. PW-2 Smt. Roshani Devi described her third child to be daughter Kunti Devi, who according to her, is now 19 years of age. From the contradictory statement of Smt. Roshani Devi and her husband Suhru Ram, it is also doubtful that the age of the prosecutrix at the time of the incident was below 16 years. In our considered view, the birth certificate also cannot be relied upon, as the date of birth recorded in the birth register is not inspiring confidence, as the name of the victim/prosecutrix does not fine mention. There is no other document or any oral or documentary evidence to establish that the age of the victim/prosecutrix was below 16 years. 16. The victim/prosecutrix on the date of the incident neither clearly indicated to her mother or father about the real incident and has simply stated that 'Ganda Kaam' was done by the accused with her. PW-9 has completely ruled out any sexual assault with the victim/prosecutrix. The accused, through his statement under Section 313 Cr.P.C. indicates that family of the victim/prosecutrix and accused were not in good terms. 17. On analysis of the prosecution witness and material on record ad infer that the testimony of the prosecutrix is not reliable. The learned Sessions Judge has rightly arrived at a find that the prosecution has failed to prove its case beyond reasonable doubt and after going through the impugned judgment, we do not ...14... find any scope of interference in the judgment of the trial court and appeal being devoid of merit is dismissed. (R.B. Misra) Judge (V.K. Sharma) Judge 18th August, 2010 (virender)