HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.680 of 2000 with Cr. Appeal No. 397 of 2000. Decided on: November, 9, 2010. Cr. Appeal No. 680 of 2000 State of H.P. …Appellant. VERSUS Ramesh Chand ….Respondent For the Appellant:- Mr. R.K. Sharma, Sr. Addl. Advocate General. For the Respondent: Mr. Ramakant Sharma and Mr. Malay Kaushal, Advocates. Cr. Appeal No. 397 of 2000 Ramesh Chand ….Appellant. VERSUS State of HP ….Respondent. For the Appellant Mr. Ramakant Sharma and Mr. Malay Kaushal, Advocates. For the Respondent: Mr. R.K. Sharma, Sr. Additional Advocate General Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 R.B.Misra, Judge (Oral) The present criminal appeal No. 680/2000 has come up for consideration after the leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure, in reference to judgment dated 27.7.2000, passed by learned Additional Sessions Judge, Solan, District Solan, in Sessions Trial No. 15-S/7 of 1999 and 03-S/7 of 99 thereby acquitting the respondent / accused for the offence under Section 376 IPC, however convicting the convict Ramesh Chand for the offences under Sections 452, 511, 354 IPC, thereby Whether the reporters of the local papers maybe allowed to see the judgment? …2… sentencing him simple imprisonment of two years and fine of Rs. 5000/- under Section 354 IPC and in default of payment of fine convict shall further to undergo simple imprisonment of five months. Convict Ramesh Chand was also sentenced for seven years simple imprisonment and fine of Rs. 10,000/- under Section 452 IPC and in default of payment of fine, to further undergo simple imprisonment of one year. Convict Ramesh Chand was also sentenced for five years simple imprisonment with fine of Rs. 10,000/- under Section 511 IPC for attempting to commit rape on the minor prosecutrix and in default of payment of fine, to go further simple imprisonment of one year. 2. State of HP preferred criminal appeal No. 680/2000 against the judgment dated 27.7.2000, acquitting the accused Ramesh Chand for the offence under sections 376 IPC in reference to FIR No. 49/98 dated 3.7.1998, whereas, Criminal Appeal No. 397/2000 has been preferred by the convict Ramesh Chand as convict appellant against the same judgment dated 27.7.2000, whereby he has been sentenced for the offences under Sections 452, 354 and 511 IPC in reference to the same FIR No. 49/98 dated 3.7.1998. Both these appeals shall be heard together as these have arisen against the common judgment dated 27.7.2000. 3. We have heard Sh. Ramkant Kant and Sh. Malay Kaushal, Advocates and Sh. R.K. Sharma, Senior Additional Advocate General in the respective criminal appeals. 4. The prosecution case, in brief, is that on 2.7.1998 at 1 PM, victim- prosecutrix ( name not given ) daughter of Tara Singh, resident of village Palach, Tehsil Kasauli, District Solan was sexually assaulted when she was alone in a cattle shed, situated at one kilometer from Dhandhri and Ramesh Chand accused is said to have committed house trespass and sexually assaulted the …3… victim-prosecutrix against her wishes. After investigation, Ramesh Chand was charged for the offence under Sections 452,354, 376, 511 IPC. 5. In order to prove its case, the prosecution has examined as many as 11 prosecution witnesses, whereas, the accused through his statement under Section 313 of Cr.P.C, pleaded his innocence and denied the prosecution case. 6. The prosecution examined PW-1 Dr. Sunil Gupta, PW-2 Dr. Maya Ahuja, PW-3, Chet Ram , PW-4 Vijay Kumar, PW-5 victim-prosecutrix, PW-6 Tara Singh, father of the victim-prosecutrix, PW-7 Dr. B.K Bhardwaj, PW-8 Jagtar Singh, HC, PW-9 Kishore Chand, LHC, PW-10 Uttam Chand, SHO and PW-11 Bhagwan Singh, ASI. 7. As per testimony of PW-5 victim-prosecutrix, she was student of 8th class studying in Kuthar Senior Secondary School and went to cattle shed on 2.7.1998 situated 1 ½ Kms from her house, where at about 1 PM, when she was giving feed to hens, Ramesh Chand came inside the cattle shed by opening the door and enquired about the whereabouts of her father. Ramesh Chand pushed PW-5 and laid her down on the ground. Accused opened her string of salwar and forcibly committed sexual intercourse. She raised alarm, but there was none to hear cries. When she told Ramesh Chand accused that she would report the matter to her uncle, thereafter accused fled away. PW-5, victim-prosecutrix came to her residential house at about 3-4 PM. However, when her father came, she started weeping and on inquiry about her weeping, she narrated the whole story to her father and since no means of transportation was immediately available to go and lodge the FIR, therefore, next day, FIR Ex PA was lodged at PS Kasauli. On 4.7.1998 victim-prosecutrix was medically examined. 8. In cross examination, PW-5 victim-prosecutrix stated that the name of her uncle is Parma Nand and there was distance of one kilometer …4… between her residential house and cattle shed and PW-5 came to cattle shed along with her uncle Parma Nand at about 11 AM from her house. Uncle of PW-5 Parma Nand was sitting outside the cattle shed and PW-5 had fed to the hens twice and she had given feed to the hens second time at 1 PM. PW-5 and her uncle remained outside cow shed till 12.30 PM. As per testimony of PW-5 made in cross examination, her uncle Parma Nand reside with her father in joint family and cow shed consist of two rooms having two different doors. In one room, hens were available and in another room oxen were available and her uncle went to another cattle shed at 12.30 which was situated at a distance of about 15 meters, whereas cows were kept in another cattle shed, however, loud cries could be heard from the cattle shed and when her uncle came back from another cattle shed at about 1.30 PM, she was sitting outside the cattle shed and she talked to her uncle and came back to the residential house along with uncle on foot. After coming to her residential house, her uncle remained in the same house along with her. PW-5 has further stated in her cross examination that accused Ramesh Chand was having plaster in his right arm and arm was tied with neck. She has stated to the police that accused pushed her and laid her on the ground. 9. In view of the testimony of PW-5, word ‘pushed’ has not been recorded in the FIR Ex PA. Accused first laid her down on the ground and thereafter, opened the string of her Salwar, but in the FIR it has been recorded that after the accused opened the string of the Salwar of the victim-prosecutrix she was laid down on the ground. As per the testimony of PW-5, her Salwar was only half open and was not completely taken out from her leg. Her salwar was opened by the accused with his left hand and the door was closed by the accused. Accused also opened his pant to the half of his legs and penetrated his penis in her vagina. She was laid down on the plain ground and at that time, she …5… was crying and weeping. Her face was towards the face of accused but her legs were slightly bent. Accused penetrated his penis in her vagina several times. Semen did not fall in her vagina but fall on her Salwar. Again PW-5 stated that she did not know where the semen of the accused had fallen. PW-5 has very categorically stated that when accused came out of the cattle shed, her uncle did not come at that point of time. However, she worn the same Salwar again and came to her residence and accused worn his pant himself after committing sexual intercourse. PW-5 changed her clothes next day in the morning and brought Salwar in bag along with her to police station. As per testimony of PW-5 made in cross examination, there were four houses adjoining to her residential house. 10. PW-1 Dr. (Sunil Gupta) medically examined the accused Ramesh Chand on 5.7.19098 and after careful examination, PW-1 opined that there is nothing to suggest that the accused was incapable of doing sexual intercourse, but it was difficult to opine that he had done sexual intercourse in the last 2-3 days. In the cross examination, PW-1 has indicated that it is correct to suggest that there was no sign on the person and private part of the accused to the fact that he has committed any sexual intercourse within last 2-3 days and while making medical examination, accused Ramesh Chand was having plaster in his right hand below elbow. Plaster was old one on the right arm of the accused and not fresh one and because of this plaster, accused could not make use of his right wrist and could only use his elbow frequently. 11. PW-2 Dr. (Maya Ahuja) medically examined the victim-prosecutrix on 3.7.1998 and had found no mark of injury anywhere around the body and PW- 2 had handed over to the police Salwar, slides, and pubic hair of the victim prosecutrix. PW-2 has also assessed the age of victim prosecutrix between 12 …6… ½ to 15 years and PW-2 has given final opinion Ex PW-2/C, indicating that there was no evidence of sexual intercourse, but attempt for the above could not be ruled out. Further PW-2 has very categorically indicated that there was no sign of attempting of rape on the private part of the body of the victim prosecutrix as the possibility of attempting rape was indicated on the basis of Ex PW-2/B, i.e. chemical examiner report. 12. As per testimony of PW-3 (Chet Ram), headmaster of Primary School, the date of birth of victim-prosecutrix was 29th March, 1985. PW-4 (Vijay Kumar) has also prepared a certificate Ex PW-4/A regarding the date of birth of the victim prosecutrix. PW-6 ( Tara Singh ), father of the victim-prosecutix has stated that earlier he got married with Sewati Devi from whom victim prosecutrix was born, thereafter Sewati Devi died and he married to Kanta Devi from whom one son and one daughter were born. Out of misunderstanding, Kanta Devi left Tara Singh and went to her parents’ house. PW-6 further stated that his aged mother, father and his brother Parma Nand are residing together with whom victim-prosecutrix is also staying. Victim-prosecutrix was looking after the cattle and hens and on 2.7.1998 between 5 to 6 PM when PW-6 was returned to his house, he observed PW-5 was weeping and on asking she narrated the story. 13. In cross examination, PW-6 has stated that 4-5 houses were adjoining to his house where families were residing and victim-prosecutrix disclosed the incident to him. However, PW-6, in his cross examination, has stated that he had not seen any injury or blood on the person of victim prosecutrix on that day. Victim was wearing same clothes which she was wearing in the morning at the time of incident and on the same clothes she came to police station. Her medical examination was conducted on 4.7.1998 at District Hospital, Solan and at that time also, she was wearing same clothes …7… which she wore on the date of incident and after medical examination, she changed the clothes on 4.7.1998 at District Hospital, Solan and after medical examination, she handed over the same clothes to the doctors, which she was wearing at the time of incident. 14. PW-7 (Dr. B.K. Bhardwaj) has assessed the age of victim prosecutrix between 12 ½ to 15 years. PW-8 ( Jagtar Singh ), HC while posted MHC, PS Kasauli, has stated that on 4.7.1998, LHC Ram Krishan deposited two parcels with him which were sealed with hospital seal and on 9.7.1998, LHC Kishore Chand deposited the parcel with him sealed with seal ‘AN’ and on the same day, he sent all the parcels to FSL Junga through LHC Kishore Chand along with sample of seals, who on his return, deposited the receipt with him. PW-9 (Kishore Chand ) has stated that on 9.7.1998, MHC Jagtar Singh had handed over two parcels which were deposited on 10.7.1998 at FSL, Junga. PW-10 (Uttam Chand) SHO, after completion of the investigation, prepared challan. PW-11 (Bhagwan Sing) ASI, recorded FIR and had conducted investigation and had observed that Parma Nand i.e. the uncle of victim prosecutrix was the star witness. 15. On close scrutiny of the prosecution witnesses, we notice that Dr. Sunil Gupta (PW-1) has very categorically indicated in his cross examination that there was no sign on the person and on the private part of the accused to indicate that he has committed any sexual intercourse within last 2-3 days from 5.7.1998 and has also very categorically observed that right hand of the accused was plastered with plaster below elbow. From the testimony of PW-1, one aspect is very clear that Ramesh Chand had not sexually assaulted anyone within last 2-3 days prior to 5.7.1998. In view of the testimony of PW-2 (Dr. Maya Ahuja), no mark of injury on any part of the body of victim prosecutrix …8… was noticed and PW-2 had handed over to the police Salwar, slides and public hair of victim prosecutrix, which she was wearing at the time of incident. PW-2 has also indicated that there is no sign of attempt of rape on the private part of the body of the victim prosecutrix. PW-2 has also very categorically stated that only attempt of rape was indicated on the basis of Ex PW-2/B which was the FSL laboratory test, which indicated that there was no sign of blood on salwar, however, human semen was found on it. Surprisingly, victim prosecutrix when had stated that accused Ramesh Chand opened her string of salwar by left hand and forcefully committed sexual intercourse after laying down her on the ground and before that accused Ramesh Chand had pushed her, such thing is not mentioned in the FIR. PW-5 has also asserted that the salwar was only half open and was not completely taken out from her leg and the accused open his pant to the half of his legs. However nothing was mentioned about the underwear he was wearing, whereas forensic expert has specifically indicated that there was no mark of blood or human semen on underwear. 16. On close scrutiny of the testimony of victim prosecutirx, it appears that victim was sexually assaulted, penetration was made in her private part, whereas medical opinion of PW-2 is contrary to it. PW-5, victim prosecutrix has endeavoured to improve her version by saying that she worn daily used clothes at the time of incident and the same salwar was worn by her at her residence and she changed her clothes on the next day in the morning and brought those original salwar in bag to police station which was worn by her at the time of incident. Such version of PW-5 is contrary to the version of PW-6, Tara Singh. 17. Surprisingly, Parma Nand, who had happened to go to cow shed with victim prosecutrix remained there even after the incident took place and came with victim prosecutrix, however, was not informed about the said …9… incident and in view of the testimony of PW-11, Parma Nand was a star witness, but he was not examined. Recovered materials, pertaining to the accused and victim, were sent to FSL Junga, on 9.7.1998, whereas in view of the testimony of PW-9 (Kishore Chand), the same were sent to FSL, Junga on 10.7.1998. Surprisingly, nothing is known as to where for three days the seized material and packets were kept and which were received to FSL Junga on 13.7.1998. On Scrutiny of the prosecution witnesses, it appears that no blood sample was taken to link the human semen found on the salwar, allegedly worn by PW-5 victim prosecutrix, over which in view of Ex PW-2/B, human seman was found and the prosecution has failed to link with that human semen with that of accused Ramesh Chand. In view of the decision of Hon’ble Supreme Court in Tameezuddin alias Tammu Vs. State (NCT of Delhi) (2009) 15 SCC 566, for correlating semen found on salwar of victim, blood samples were necessary to be taken. The relevant observations made in paragraph-11 of the Tameezuddin (supra) is extracted as below: “11. As already mentioned above the medical evidence does not support the commission of rape. Moreover, the two or three persons who were present in the factory premises when the rape had been committed were not examined in court as witnesses though their statements had been recorded during the course of the investigation. In this background, merely because the vaginall swabs and the salwar had semen stains thereon would, at best, be evidence of the commission of sexual intercourse but not of rape. Significantly also, the semen found was not correlated to the appellant as his blood samples had not been taken.” 18. On the scrutiny of prosecution witness PW-5, victim prosecutrix, it appears that there are 4-5 houses adjoining to the house of victim prosecutrix and that similar averments have also been made by PW-6 Tara Singh. However, surprisingly, nothing was revealed to any person of the locality. In view …10… of the testimony of PW-5, victim prosecutrix, when her uncle Parma Nand went to another cow shed situated at 15 meters away, could not hear hue and cry of victim. Whereas on her own version, loud cries could be heard from the cattle shed and after PW-5 has started weeping and raised hue and cry at the time of incident, then in that mysterious circumstances, how it could not be heard by her uncle and if in view of the testimony of PW-5 made in cross examination, she had talked with her uncle and had a cordial relation with her uncle, then why immediately she had not divulged the said incident to Parma Nand. Nothing was brought on record from which it could be ascertained that the cow shed was allegedly belonging to PW-6 Tara Singh. PW-6 has also not stated to that effect in his statement that the said cow shed was owned by him, wherein Ramesh Chand has allegedly trespassed on 2.7.1998. PW-5 had very categorically stated that when she raised alarm, there was none to hear her cries and on her saying to the accused that she would report the matter to her uncle, thereafter accused fled away. Such aspect also makes the presence of Parma Nand doubtful and the occurrence of incident also doubtful, more so, when Parma Nand, being a star witness, in view of the testimony of PW-11, has not been examined by the prosecution 19. In view of the facts and circumstances, the testimony of PW-5 is not inspiring confidence. Her narration of incident seems to be unnatural , more so, when PW-1 Dr. Sunil Gupta has very categorically ruled out the possibility of sexual assault done by Ramesh Chand within last 2-3 days of the date of his examination on 5.7.1998. PW-2 Dr. Maya Ahuja has very categorically opined that there was no sign of attempt of rape on the private part of the victim prosecutrix. Since the testimony and version of victim prosecutrix PW-5 is not reliable, as such, the allegation of house trespass and outraging her modesty …11… becomes baseless and for lack of credibility of the testimony of PW-5, no offence under sections 376 and 511 IPC is made out. 20. In the facts and circumstances and in our considered view, the prosecution has failed to prove its case beyond reasonable doubt. As such, the criminal appeal No. 680/2000, being devoid of merit, is dismissed and on the analysis of the foregoing reasons criminal Appeal No. 397/2000 is allowed and sentence and fine awarded by the learned Sessions Judge is set aside and Ramesh Chand appellant is acquitted of the offences 452,354 and 511 IPC. 21. The bail bonds shall be discharged and the amount of fine already deposited is to be returned to the accused Ramesh Chand. (R.B.Misra), J. November 9, 2010. (Kuldip Singh), J. (sl)