1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 154 of 2000 Decided on December 6, 2010 ________________________________________________________________ State of H.P. …Appellant. Versus Chain Singh and others ...Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. ¹Whether approved for reporting? No. For the appellant: Mr. R.K.Sharma, Senior Addl. Advocate General, with Mr.Rajinder Dogra, Addl. Advocate General. For the respondent: Mr. Romesh Verma, Advocate. Justice Sanjay Karol,J. For an offence, which is alleged to have been committed on 21.9.1997, accused were put to trial. In terms of judgment dated 16.09.1999 passed by Sessions Judge, Solan, in Sessions Trial No. 21-S/7 of 1998, titled as State of H.P. vs. Chain Singh and others, accused stand acquitted of the charged offence. 2. It is the case of the prosecution that on 21.9.1997, prosecutrix (PW.1) alongwith her sister Rita (PW.4) had gone to purchase medicine from the Chemist in the bazar at Solan. After purchasing the medicine, at about 11.00 A.M., when they reached the bus-stand, they made inquiries from the accused, driver of the bus, as to where the bus was going. They were 2 informed that the bus would be going to 'Mashiwar'. Prosecutrix and her sister sat in the bus. The accused persons also sat in the bus and accused Chain Singh, drove the bus towards 'Chambaghat'. After some distance accused Puran Dutt and Rakesh got down from the bus and accused Chain Singh and Rakesh took the bus ahead. In the bus, accused Rakesh Kumar, caught hold of the prosecutrix and took her to the back seat. There he opened her salwar and after taking off his pant forcibly committed sexual intercourse with her. Thereafter, bus was brought back to Solan and prosecutrix and her sister were dropped near St. Luke School at Solan. From there both the girls went home where prosecutrix narrated the incident to her mother, who in turn informed her father Chet Ram (PW.5), who lodged FIR No. 167/1997 (Ex.PW.5/A) at Police Station, Solan, under Sections 342, 376 and 120B IPC. Police commenced the investigation. Prosecutrix was got medically examined through Doctor Anita Sood (PW.2), who issued MLC (Ex.PW.2/A). Accused were also got medically examined. In order to determine the radiological age of the prosecutrix, X-ray examination was conducted and Doctor B.K. Bhardwaj (PW.3), on the basis of X- ray films (Ex.PW.3/A-1 to Ex.PW.3/A-4), opined the age of the prosecutrix to be between 17-19 years vide Report (Ex.PW.3/B). The school certificate (Ex.PW.8/A) and Panchayat certificate (Ex.PW.9/A) showed the date of birth of the prosecutrix to be 23.5.1981. Clothes of the prosecutrix (Ex.P1 3 to Ex.P3) were sent for chemical analysis and report of the Chemical Examiner (Ex.PW.11/E) obtained by the police. With completion of investigation, challan was presented in the Court for trial. 3. The accused were charged for having committed offences punishable under Sections 342 of IPC also Section 376/511 read with Section 120B IPC, to which they did not plead guilty and claimed trial. 4. In order to prove its case, prosecution examined 12 witnesses and statements of the accused under Section 313 Cr.P.C. were also recorded. 5. Court below acquitted the accused of the charged offences, hence the present appeal. 6. From the evidence of the Doctor (PW.3), it is quite apparent that as on the date of the alleged offence prosecutrix was between 17-19 years of age. It is a settled position of law that in the skigram test there can be variation of 2-3 years and benefit of doubt is to be given to the accused. We may also note that oral testimony of father to the effect that prosecutrix was 13 ½ years of age at the time of alleged offence, is not corroborated by the prosecutrix herself, who in fact, is silent on this aspect. The school certificate and the record of the Panchayat also does not help the prosecution from which it is evident that she was more than 16 years of age. Thus, prosecution has failed to prove beyond reasonable doubt that prosecutrix was less than 16-18 years of age as on the date of 4 the alleged offence. 7. Importantly, it is the case of the prosecutrix and also her sister (PW.4), that from the time they boarded the bus and got down both were always together in the bus. 8. (PW.1) states that she was raped by accused Chinu, driver of the bus. But in Court she specifically does not identify this person to be the accused. This gains significance for the reason that it has no where come on record that accused Chain Singh and Chinu are one and the same person. 9. It is a settled position of law that version of the prosecutrix needs no corroboration and if it inspires confidence and the same can be relied upon to prove the guilt to the accused. In the instant case, we find her version is not worthy of credence. 10. She admits that she did not know Chinu before the incident and learnt his name only in the Police Station. Now admittedly, in the instant case, no identification parade was carried out. Then who disclosed the particulars or identify of the accused to the police. 11. That apart, prosecutrix admits that the bus was stopped for about 15 minutes at 'Chambaghat', from where it went to a factory on the Kalka-Shimla road. Thereafter bus was taken to 'Chambaghat' and finally brought back to Solan. Now, it is not her case that the accused had threatened her or that in any manner she was prevented from raising alarm. Bus passed through busy market places during broad day light. 5 Importantly, after they got down from the bus at Solan, according to the prosecutrix she walked for 1-2 hours upto their village and then reported the matter to their mother. Why is it that they did not straight away go to the Police Station at Solan. St. Luke School is in the heart of the town. She could have raised alarm there. 12. We further find that version of PW.1 and PW.4 to be contradicted. According to PW.4, bus did not stop at 'Chambaghat'. She contacted her sister. Further prosecutrix states that they walked upto their house, whereas according to her sister (PW.4), they travelled by bus. According to the prosecutrix, she had not changed her clothes, till the time, she was examined by the doctor, whereas according to her sister prosecutrix had changed the clothes and had brought another pair of clothes from her house at the time of medical examination. It appears that the police took the extra pair in their possession. According to the prosecutrix, she did not resist the advances of the accused, whereas, according to the sister she hit the accused with fist and legs and also slapped him. No injury marks were found on the body of any person medically examined by the police. 13. Further, it has come on record that bus was full of passengers upto a particular point. She could have conveniently raised an alarm knowing that the accused had ill intention of committing the crime. To us it appears to be a case of consensual sex, if any. 6 14. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (R.B. Misra) Judge December 6, 2010 (Sanjay Karol) (Purohit) Judge