IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.14 of 1999 Decided on: 17th May, 2010 State of H.P …..Appellant. VERSUS Mahender Singh …..Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the Appellant: Mr.Vivek Singh Thakur, Additional Advocate General with Mr.Rajesh Mandhotra, Dy.Advocate General. For the Respondent: Mr.Chaman Negi, Advocate. Deepak Gupta,Judge (Oral) This appeal by the State is directed against the judgement dated 25.9.1996 delivered by the Learned Sessions Judge, Kangra at Dharamshala in Sessions case No.37-G/VII/97 whereby she acquitted the accused of 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… having committed an offence of attempt to rape the prosecutrix punishable under Section 376 read with Section 511 of the Indian Penal Code. 2. The prosecution case, in brief, is that on 10.7.1996, the accused alongwith the prosecutrix and one Lekh Raj went to Allhi Kutt to pluck the mangoes. After they had collected the mangoes, the accused sent Lekh Raj ahead. He then spread a ‘Chaddar’ on the ground, removed the salwar of the prosecutrix and climbed on top of her. On the basis of this material collected during the investigation, the accused was charged with having committed the offence detailed here-in-above. He pleaded not guilty to the charges levelled against him and claimed trial. 3. The learned Trial Court acquitted the accused mainly on the ground that the statements of the child witnesses, i.e., the prosecutrix and Lekh Raj did not inspire confidence. The learned Trial Court held that even if the entire evidence is believed, no offence under Section 376 read with Section 511 was made out. The learned Trial Court further held that the prosecution has failed to prove the facts, as alleged by it. …3… 4. The prosecutrix was just about 7 years old when the alleged incident had taken place. She was examined in the Court on 21.8.1998. She in her examination-in-chief has virtually repeated what has been stated here-in-above. Though the incident is alleged to have been taken place on 10.7.1996, the report was lodged with the police on 13.7.1996. According to the prosecutrix, her father came home on the next day, i.e., 11.7.1996 and then she alongwith her parents went to the Police Post, Khundian. They stayed there the whole day but the police officials after questioning refused to register the complaint and advised her father to go to the Tehsil and get a written complaint filed. She also stated that her mother had an uncle namely Sant Ram who serving in the police. Thereafter, next day, they went to the Police Station alongwith Sant Ram. She was taken to the hospital for medical examination by her parents and Sant Ram. She admitted that Sant Ram had told her what she should say before the doctor and the police. In cross-examination she stated that she was called to the police station again one day later and thereafter, her statement was recorded. …4… 5. PW/3 Lekh Raj stated that he alongwith the prosecutrix and the accused had gone to pluck the mangoes. He went ahead after sometime. Then he heard the cries from the place slightly ahead from where the mangoes were plucked. Then Renu came to him and they went to home. If these two statements are read together, all that is proved is that these persons had gone to pluck the mangoes. The prosecutrix was a small child. She would have told Lekh Raj as to what had happened if the accused had misbehaved with her. Lekh Raj in his statement did not state that the prosecutrix complained to him. 6. The prosecutrix did not even complain to her mother but only when her mother asked her from where she had got a one rupee coin that she told her mother that she was given the one rupee coin by the accused who had acted in the manner, detailed hereinabove. 7. Lekh Raj stated that he alongwith the prosecutrix and her parents had also gone to the police station on the next day and for 2 or 3 days they kept on going to the police but the police did not record their statements. Then Sant Ram came and ensured that a case was registered against the accused. Thereafter, the …5… police advised the parents of the prosecutrix to go to the Tehsil where written complaint was drafted. Then an inquiry was conducted by the police. 8. According to the mother of the prosecutrix, Gitan Devi (PW/4), when her daughter came home after plucking the mangoes at about 7.30 p.m, she had a one rupee coin with her. This witness asked her daughter from where she got this coin and then the prosecutrix narrated the entire story to her. According to her, next day, she went to Thakurdwara where her husband was working and came back in the evening. Thereafter, on the third day after the alleged incident, they took the prosecutrix to the hospital. The doctor told them that he could not give her any medicine and advised them to lodge a complaint with the police. Then they went to the police station and were told by the police to first get the medical done. Next day, the medical of the prosecutrix was got done. 9. Kushal Singh, father of the prosecutrix (PW/5) gave another version. According to him, the day after the alleged incident, his wife came to Thakurdwara and told him about the occurrence. Then he came to his house and got an application written at Police Post, …6… Khundian but the police told them to come on the next day, i.e., 13th July,1996. The prosecutrix, Lekh Raj, Gitan Devi, mother and Kushal Singh, father of the prosecutrix have given four different versions with regard to the sequence of events. According to the prosecutrix, on the third day after the incident, they went to the Police Post, Khundian where they were advised to go to the Tehsil and get the written complaint drafted. According to Lekh Raj, they kept on going to the police station for 2-3 days. His version is that on the day next to the incident itself, he alongwith the prosecutrix and her parents had gone to the Police Post, Khundian. According to the mother of the prosecutrix, on 11.7.1996 she went to Thakurdwara and returned with her husband in the evening. On 12.7.1996, she alongwith her husband and the prosecutrix went to the hospital where the doctor stated that no medicine can be given to the prosecutrix and then they went to the police station. This is contrary to the statements of other witnesses that they first went to the police station and then to the hospital. 10. The version of the father of the prosecutrix is that he got the complaint prepared on the day after the incident, i.e., 11.7.1996. Even assuming that he is talking …7… about 12.7.1996, his version is that he got the complaint prepared before going to the police station whereas according to the other witnesses, it was the police who advised them to get the complaint prepared. 11. In the case of a child witness, the Court must be very careful and scrutinize the testimony of the child with care and caution. A child, by nature, normally cannot tell a lie. However, once a child is tutored, the child may even start believing that what he or she has been told by her parents is the truth. In the present case, it is obvious that Sant Ram had told the prosecutrix what to say. Therefore, it is very difficult to rely upon the statement of the prosecutrix in the given facts and circumstances of the present case. Even if her statement is accepted to be the gospel truth, no offence of attempt to rape is made out since the prosecutrix did not state that the accused took off his pants or in any manner attempted to insert his male organ in her private part. 12. Even though no charge of committing an offence under Section 354, IPC was framed, this Court while dealing with a case of this nature can consider this aspect of the case also. In the present case, however, we find that it has not been proved on record that the …8… incident happened in the manner, as stated by the prosecution. 13. In view of the above discussion, we find no reason to interfere in the well reasoned judgement passed by the learned Trial Court. The appeal being without merit is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. 17th May, 2010 (Rajiv Sharma) (m) Judge