IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. : 17 of 2002 Decided on : 30.5.2011. ___________________________________________________________ State of Himachal Pradesh … Appellant. Versus Surjeet Singh @ Jeetu … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. R.K.Sharma, Sr. Addl. Advocate General. For the respondent : Mr. Chaman Negi, Advocate. ____________________________________________________________ R.B. Misra, Judge (oral). The present appeal has come up for consideration after leave to appeal has been granted under Section 378 (3) Cr. P.C in reference to the impugned judgment dated 21.9.2001, passed by the learned Sessions Judge, Chamba, H.P, in Sessions Trial No. 3 of 2001, acquitting the accused-respondent for the offences under Sections 376 and 506 IPC. 2. The prosecution case was that on 18.8.2000 at about 2.45 PM, the complainant was returning to her house after purchasing sugar from Gehra bazar accompanied by Kuldip 1 Whether reporters of the local papers may be allowed to see the judgment? 2 alias Gaddi son of Dharmo, Tilak alias Kaka son of Anat Ram and Parkash Chand son of Diwan Chand, all residents of same village, who were related to the victim-prosecutrix. However, at about 3.00 PM when the victim and the above named boys were passing through a maize crop field near Lech bridge talking with each other, accused Surjeet Singh, who is related to the victim as uncle came from the village side and as soon as he came near the above named persons, he pushed Kuldip and asked him to leave the place and caught the victim from her left arm. The three boys accompanying the victim left the place of occurrence. The accused asked the victim that she is very proud of her and he will remove her proud and thereafter the accused removed Chuni of the victim and put the same in her mouth and forcibly dragged her about 200 yards downward in the maize field. Despite trying to rescue her from the clutches of the accused, the accused broke the string of the salwar of the victim and forcibly committed sexual intercourse with the victim thrice and at about 6.30 PM the accused freed the victim and threatened her not to disclose the incident to anyone. However, on way to her house, mother of the victim who was searching the prosecutirx met the victim, who was apprised of the entire incident and thereafter the victim along with her parents came to the police station and lodged FIR. 3 The victim was medically examined and after completion of investigation, accused was charged for the aforesaid offences. 3. In order to prove its case the prosecution has examined as many as 15 witnesses. Whereas, the accused- respondent in his statement under Section 313 Cr.P.C has denied the prosecution case. 4. PW-1 (victim-prosecutrix), stated the manner of incident as claimed by the prosecution. PW-1 the victim- prosecutrix has stated that she raised hue and cry, since the accused had held her mouth after pushing her Chuni inside her mouth, slapped her, gave beatings and broke the string of her salwar and committed sexual intercourse thrice. According to the victim, she felt pain very badly and became unconscious and when she regained consciousness, she was threatened by the accused not to disclose the incident to her parents or anybody else. As per the testimony of PW-1, the accused is serving in the Army and allured her to take with him. When the victim was returning to her house, her mother Sukhdei met her in the way to whom she disclosed the entire incident to her. PW-1 further stated that for making complaint, her parents, sister Hukmo Devi, aunt Krishna Devi, deceased uncle Jai Chand and few other villagers went to the house of accused, but, they all were threatened by the accused. PW-1 (victim- prosecutrix) had stated in cross examination that the accused 4 and she had spent their childhood in the same village and also grew up there and they were on speaking terms and on the date of occurrence while coming back she could not take sugar and ration card as the same were fallen at the place of occurrence. PW-1 had also stated that there were other landlords in the vicinity where the accused took her forcibly, she could not tell for how much time she raised hue and cry, but she cried loudly. As per the testimony of PW-1 in her cross examination, she was dragged in maize field by catching her arm, she was not aware of the height of the maize crop, it might be six feet. The accused was dragging her towards maize field and she was resisting and trying to pull herself towards the passage leading to her village and such process continued upto the field where she was subjected to sexual intercourse after covering a distance of 100 yards and in that process maize plants were trampled. PW-1 has further stated that when string of her salwar was opened she could not raise hue and cry as her mouth was gagged by the accused. However, she did not remember the exact time spent with the accused. PW-1 had stated that she remained with the accused for about three hours and while the accused was committing rape upon her, she gave tooth bite. She did not remember upon what cheek of the accused tooth bite was given. The accused had also given tooth bite over her cheek, however her shirt was not torn, 5 salwar was torn from the centre portion. She did not remember whether the accused enjoyed smoking in the field. PW-1 had also stated in cross examination that she had a photograph with the accused. 5. PW-2 Smt. Sukhdei, mother of the victim- prosecutrix in her endeavour to support the prosecution case has stated that when she was searching the victim she met her on the way and on enquiry about the reason of coming late, PW-1 told her about the incident. After reaching home, she took her husband Taru Ram, daughter Hukmo Devi, sister-in- law Krishna Devi and deceased brother-in-law Jai Singh to the house of the accused and asked him as to why he had committed rape upon the prosecutrix, the accused gave beatings, abused and threatened all the persons. Thereafter the matter was reported to the police. Surprisingly, no medical examination was conducted. PW-3 Taru Ram in his endeavour to support the prosecution case had stated that he noticed the victim-prosecutrix and other persons at his house and went to the house of accused to know the reasons , but the accused hurled abuses, threatened and beaten us. PW-4 Parkash Chand had deposed that he had gone to Gehra bazar for medical treatment, while coming back he noticed that three persons namely Kuldeep Singh, Tilak Raj and victim- prosecutrix were going ahead of him, he followed them and 6 when he reached near the maize field he saw the accused coming from the opposite side, the accused started talking with the prosecutirx. However, he could not hear conversation going on between the victim-prosecutrix and the accused. 6. PW-5 Gian Chand had stated that police took photographs of the place of occurrence and took into possession one burnt piece of cigarette and one empty packet of cigarette of Four Square. Whereas, in view of testimony of PW-1 nothing was told about consumption of cigarette on the spot. PW-6 Krishan Kumar, Gram Panchayat Vikas Adhikari, has produced original parivar register in respect of the family of Taru Ram, according to which the date of birth of the prosecutrix is 19.11.1979. PW-7 Pawan Singh had deposed that he was working as Salesman in Govt. Fair Price Shop at village Gehra and on 18.8.2000 at about 2.30 PM the prosecutrix came to the shop and after purchasing sugar returned back to her village Lech. According to PW-8 Dr. Naresh Gupta, who is posted as Medical Officer in Zonal Hospital Chamba, after medical examination of the accused found him capable of committing sexual intercourse. Dr. V.K. Pathak, PW-9 Radiologist, Zonal Hospital Chamba, had examined the victim and assessed her age between 17 to 19 years. Dr. Ruchi Sharma, PW-13 had medically examined the victim-prosecutrix and found her 7 perfectly healthy and opined that there was possibility of the victim having sexual intercourse. 7. PW-14 Krishna Devi had made endeavour to support the prosecution case, however, her testimony is of no help. PW-15 Abhey Singh is the Investigating Officer, who during investigation had taken into possession one piece of burnt cigarette and one empty packet of foursquare, which however was not indicated by the victim-prosecutrix PW-1. PW-1 in her cross examination has stated that she and the accused grew up and have spent their childhood in the same village and she could not take ration card and sugar to her house as the same had fallen at the place of occurrence and it is 15 minutes walk from the bridge to the field where she was subjected to forcible sexual assault when she cried loudly. PW- 1 also could not tell that the accused had enjoyed smoking in the field. In view of testimony of PW-4 in his cross examination that the conversation between the accused and prosecutrix was being held in a very cheerful manner and the prosecutrix asked Kuldip and Tilak Raj to leave the place as she had an urgent work with the accused. PW-5 in cross examination has stated that the place from where the photographs were taken maize crop was growing and the crop was intact. Om Parkash PW-12 in cross examination had stated that the medical officer has not clearly opined that the 8 prosecutrix was subjected to sexual intercourse. PW-13 Dr. Ruchi Sharma, has stated in cross examination that the prosecutrix was perfectly healthy and that if the girl is not dragged, unconscious or over powered, then she may offer voluntarily resistance and would make an attempt to run and that on medical examination abrasion of about one inch long on the front side of the neck and another 0.5 cms wound covered with scab circular in shape was found just below the left angle of the mouth and apart from this no mark of violence was found on the body. PW-13 has also stated that said abrasion and the wound cannot be sustained as a result of dragging and on a stony uneven ground if a girl is subjected to forcible sexual intercourse, it is possible that abrasions and wounds may be sustained by her on the back and buttocks. In view of testimony of PW-4 the victim asked Kuldip and Tilak Raj to leave the place as she had an urgent work with the accused. The testimony of PW-1 that she was dragged by the accused upto a distance of 100 yards is contrary when she herself asked Tilak Raj and Kuldip to leave the place. The testimony of PW-1 is also contrary to the version when PW-13 Dr. Ruchi Sharma, stated that the victim was perfectly healthy and it was not possible for the accused to drag her upto 100 yards without her consent. Therefore, version of dragging by the accused appears to be improbable. Moreso, 9 when no dragging mark was visible on her person and a healthy girl cannot allow herself to go under sexual assault without putting resistance. The circumstances and medical evidence reveal that the victim-prosecutrix was a consenting party. 8. On analysis of materials on record and prosecution witnesses, the learned Sessions Judge has rightly come to the conclusion that the prosecution has not been able to prove its case beyond reasonable doubt. In our considered view, the prosecution has miserably failed to bring home guilt to the accused. Accordingly, the appeal is dismissed being devoid of any merit. (R.B. Misra) Judge. (V.K. Sharma) Judge. May 30, 2011. (lsp)