IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 672 of 2001 with Cr. Appeal No. 624 of 2001. Judgment reserved on 21st April, 2011. Date of Decision: 28th April, 2011. _______________________________________________________ 1. Cr. Appeal No.672 of 2001. State of Himachal Pradesh .. Appellant. Versus Harish Kumar .. Respondent. For the appellant : Mr. R.K. Sharma, Senior Addl. Advocate General with Mr. Rajinder Dogra, Additional Advocate General. For the respondent : Mr. Neeraj Sharma and Mr. Pankaj Negi, Advocates. 2. Cr. Appeal No.624 of 2001. State of Himachal Pradesh .. Appellant. Versus Madan Lal .. Respondent. For the appellant : Mr. R.K. Sharma, Senior Addl. Advocate General with Mr. Rajinder Dogra, Additional Advocate General. For the respondent : None. Coram Hon’ble Mr. Justice R.B. Misra, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. ____________________________________________________ Per SURINDER SINGH, J. Both these appeals filed by the State are arising from a common judgment of acquittal of the respondents passed by the learned Additional Sessions Whether reporters of the Local papers are allowed to see the judgment? - 2 - Judge for the offences punishable under Section 376 of the Indian Penal Code against respondent Madan Lal and attempted rape against Harish Kumar, hence taken up together for its decision. 2. In short, the prosecution case can be stated thus. In the year 1996, the prosecutrix was a student of 7th standard studying in Government High School, Syari. 2. (i) On 14.6.1996, respondent Madan Lal resident of Jathia-Devi had sent a message through a boy to the prosecutrix to meet him next day. On 15.6.1996 at about 7.30 am, the prosecutrix was standing on the side of the road while on her way to school. 2.(ii) Respondent Madan Lal came driving Maruti Van bearing No.HP-02-3239 from the side of Jathia- Devi temple. He stopped it near the prosecutrix. She was asked to sit in the said vehicle. She occupied the front seat beside Madan Lal and took the vehicle near the temple. 2.(iii) Thereafter both alighted from it and she was taken to one of the rooms of the temple where Madan Lal respondent is alleged to have committed rape on her. 2.(iv) Then Madan Lal took her in the same vehicle to Syari Bazar. Both of them made some purchases - 3 - in the Bazar and at about 3.00 pm on the same day, respondent Madan Lal took her again to the temple and committed rape again in the same room. In the meanwhile, respondent Harish Kumar came there. He also tried to ravish her, but she managed to escape, boarded a local bus and reached home. 2.(v) At that time, the mother of the prosecutrix was not in the house as she had gone to her parental house. She came on 18.6.1996. It was then the prosecutrix narrated the entire story to her, who further told it to her father. 2.(vi) On 19.6.1996, FIR Ext.PW11/A was lodged in the above terms in the Police Station. 2.(vii) On 19.6.1996, the prosecutrix was medically examined by Dr. (Mrs.) Sudha Prakash (PW6). She did not find any mark of injury on her body, though hymen was ruptured. There was central tear posterior and edges were represented by two tags of tissue. There was no swelling and vagina admitted one finger easily. Posterior commissior was found intact. Her underwear was packed, sealed and sent for chemical examination, as she had washed her other clothes to which she was wearing at the time of the alleged incident. The - 4 - doctor aforesaid issued the Medico Legal Certificate Ext.PW6/A. In her opinion, the prosecutrix was exposed to coitus. 2.(viii) On 19.6.1996, both the respondents were arrested in the presence of PW9 Satish Kumar and PW17 Gokal Chand. Respondent Madan Lal identified the place of the alleged incident. 2.(ix) On 26.6.1996, Dr. J. Chauhan (PW7) ascertained dental age of the prosecutrix between 12 to 16 years. His report is Ext.PW7/A alongwith X- ray films. 2.(x) On 20.6.1996 respondent Madan Lal medically examined by PW10 Dr. R.K. Gupta. He was opined to be fit to perform sexual intercourse and to this effect certificate is Ext.PW10/A. 2.(xi) Police also took into possession birth certificate Ext.PW1/A from the Headmistress of Government High School, Krishna Nagar depicting her date of birth to be 13.1.1982. Another certificate Ext.PW8/A was also obtained from the Gram Panchayat. The prosecutrix is alleged to be of nine years on 30.12.1989. 2.(xii) On the receipt of the chemical examiner Ext.PW18/C separate challans were presented in the Court for the trial of the respondents. - 5 - 3. Respondent Madan Lal was accordingly charge-sheeted for the offence of rape and Harish Kumar for attempted rape. Both the respondents abjured their guilt and claimed trial. 4. To prove its case, prosecution examined its witnesses and the respondents were also examined under Section 313 of the Code of Criminal Procedure. 5. At the end of trial, respondents were acquitted on the ground that there was no evidence with respect to the attempted rape by respondent Harish Kumar and the evidence on record qua respondent Madan Lal suggests material contradictions and deviation from the initial story made in the FIR leading to improbability about rape on the prosecutrix. 6. Shri R.K. Sharma, learned Senior Additional Advocate General vehemently argued that the learned trial Court discarded the testimonies of the prosecution witnesses for untenable reasons and conveniently ignored the statement of PW6 Dr. (Mrs.) Sudha Parkash with respect to the sexual intercourse committed by respondent Madan Lal as also the testimony of the prosecutrix for the offences charged against each of the respondents. - 6 - 7. Contra, the learned Counsel for the respondents supported the impugned judgment of acquittal passed by the learned trial Court. 8. We have given our thoughtful consideration to the rival contentions of the parties and have carefully and meticulously examined the evidence on record. 9. In fact, the prosecution is obliged to prove the offence of rape against the prosecutrix. The expressions ‘against her will’ and ‘without her consent’ may overlap sometimes, but surely these two expressions in clause first and clause second in Section 375 of the Indian Penal Code, have different connotations and dimensions. The expression ‘against her will’ would ordinarily means that intercourse was done by a man with a woman despite her resistance and apposition. On the other hand, the expression ‘without her consent’ would comprehend an act of reason accompanied by deliberations. In the instant case, the prosecutrix is proved to be more than the age of discretion. 10. The perusal of the testimony of PW6 Dr. (Mrs.) Sudha Parkash shows that the prosecutrix was subjected to coitus and she was not having any injury on her person. She also stated that from the examination of the prosecutrix it could not be determined as to when the sex was committed, but admitted that a well-developed girl - 7 - cannot be raped against her wish unless she is drugged or doped. 11. Though, the victim of sexual assault is not an accomplice to crime and her testimony cannot be doubted unless there are strong and valid reasons, but she has to be tested on the reliability test and if found trustworthy can be acted upon without corroboration. But in this case, prosecutrix is not found to be reliable and she materially deviated from her earlier version. 12. According to the prosecutrix, on the day of alleged incident respondent Madan Lal met her. He was known to her and offered a lift in a Van to drop her in the school. Instead, he took her towards temple. She was taken inside the temple, where he started misbehaving with her and forcefully opened string of her ‘Salwar’, removed it and subjected to sexual intercourse. She was detained for about two hours and during such period he had sex with her about 5/6 times repeatedly. Thereafter she was allowed to leave the room. She started going towards her house, but after covering one kilometer she sat near the ‘Peepal’ tree on the roadside for taking the rest. In the meantime, respondent Harish Kumar came there. It was raining and asked her to come back to that very room adjacent to the temple to take shelter. She went there. Respondent Madan Lal was also found - 8 - present in the said room. Madan Lal again sexually assaulted her. When respondent Harish Kumar attempted to have sex by opening her ‘Salwar’, she kicked him and could not succeed in his attempt. She ran away and boarded the bus for Syari and reached there at about 4.45 pm. She remained for three hours in Syari Bazar as her mother was not in the house. She was frightened because of the shameful act committed by the respondents. She also stated that around 6/7 pm she decided to go to the house of her friend, while on her way she met her father. He brought her to her home. She washed her clothes worn by her. She also stated that her father had enquired from her as to where she had gone and what happened to her, but she did not tell anything to him as she felt ashamed. When her mother returned on 18.6.1996 in the evening around 7.00 pm she disclosed her about this incident on that very day and it was then her mother told her father on 19.6.1996 she and her parents reported the matter to Shri Gokal Chand, Chairman, B.D.C., thereafter to the police. She also admitted her signatures on the FIR Ext.PW11/A. 13. It is worth mentioning that the prosecutrix gave altogether a different story as initially set-up by her in the FIR, the brief count of which is given above in para 2 - 9 - supra. She did not offer any cogent explanation to deviate from the same 14. In cross-examination, she stated that when Harish Kumar respondent met her near ‘Peepal’ tree, during the conversation she disclosed to him that she was sexually assaulted by Madan Lal respondent and he told her to inform her father and took her to the room adjoining to the temple. Surprisingly she confided in Harish Kumar to narrate about the sexual assault by Madan Lal, who was stranger to her, is quite unnatural. She further stated that her clothes were smeared with semen and crushed, on account of sexual assault by Madan Lal respondent, therefore, she did not take shelter in the shops which were situated on the side of the road near ‘Peepal’ tree. Although, she denied having made any purchases in the Bazar in the company of respondent Madan Lal, but it found mentioned in her statement recorded by the police under Section 161 of the Code of Criminal Procedure with which she was confronted and then she admitted that respondent Madan Lal had brought her to Syari Bazar and made the purchases, i.e., pair of shoes and a pair of ‘Payl’ at 1.00 pm for her and remained sit in Van No.HP-02-3239. She also stated that thereafter respondent Madan Lal took her to the temple - 10 - and at that time her clothes were not damaged so badly. She did not accompany him to make the purchases. 15. In the further cross-examination by another accused, she stated the moment respondent Madan Lal opened the door of the room both of them went inside and it contained nothing except an oven. They squatted on the floor of the room. While sitting, respondent Madan Lal consumed liquor, she was sitting adjacent to him and he started assaulting her sexually. After the first coitus he again took 3-4 pegs of liquor and again committed rape. She also stated that when the respondent was taking drinks she kept sitting adjacent to him. At last the respondent left the room and after about 4-5 minutes she also followed him. She also stated that she was not allowed to wear the ‘Salwar’ once it was removed by the respondent at the time of first coitus. She was also slapped by him and given teeth-bites on her cheek, but no such marks were found on her medical examination. She also disowned her statement recorded by the police to the effect that respondent Madan Lal left her in the Bazar at 3.45 pm after committing the sexual intercourse. Pertinently, she also stated that when she was sexually assaulted during the period 8.00 am to 12.30 pm by respondent Madan Lal, a boy studying in Government High School, Mamligh came and asked as to what was - 11 - happening there, but she did not respond or make any hue and cry even at that time, which shows her tacit consent. She also denied having made the statement to the police that one person alighted from the bus, had a discussion with her. Contrary to the version given in FIR, she further stated that she boarded the bus at Jathia-Devi at 3.30 pm and reached Syari around 4.00 pm and remained in the Bazar till 7.00 pm. According to her, she did not tell about this incident to anyone either while traveling in the bus or strolling in the Bazar. But categorically stated that her father met her in the Bazar at about 7.00 pm, even he was not apprised of about the above episode. She also stated that FIR Ext.PW11/A was read over and explained to her and she did not remember as to what were its contents. 16. PW5 Bharat Ram is the father of the prosecutrix. His testimony rather supporting her case, caused further dent to her version. He stated that when the prosecutrix did not return to the house upto 9.00 pm, then he went in search of her to Syari Bazar and he found her at a lonely place little away from the Bazar. She was weeping, but she did not say so. On being asked she did not give any reason even on reaching home. On 18.6.1996, she narrated the entire story to his wife PW4 Sita Devi. It is pertinent to note that PW4 Sita Devi in her cross- - 12 - examination stated that on the day of alleged incident she had returned from the house of her parents and at 5.00 pm prosecutrix narrated the entire story to her on 18.6.1996. Her statement raises a further doubt, as according to the prosecutrix, she alongwith her father reached home at 9.00 pm and not at 5.00 pm. 17. Significantly, in his cross-examination, father of the prosecutrix stated that he came to know that the clothes and the shoes were purchased at Syari Bazar by respondent Madan Lal and he was told by the prosecutrix that these items were kept by her in the shop of a cobbler at Syari. He also stated that the clothes and the shoes were purchased by the prosecutrix from the money given by respondent Madan Lal. He also denied that the prosecutrix reached home at 5.00 pm and having told about the incident to his wife. In this way the prosecution could neither prove that the alleged sexual intercourse, if any, was ‘against her will’ or ‘without her consent’. The prosecutrix appears to be a consenting party against the above factual background. 18. Further, the lady-doctor who examined the prosecutrix did not say anything that the underwear was taken into possession, sealed and sent for chemical examination. There is also no mention in the Medico Legal Certificate to this effect. No witness was examined that - 13 - her underwear was taken to forensic examination. Forensic report Ext.PW18/C shows that there were two under-wears, one of which contained human semen and in another blood stains. None of these under-wears have been connected either to the prosecutrix or to the respondents. 19. On analyzing the aforesaid evidence, we find that the statement of the prosecutrix is Justapposite to her earlier version recorded in FIR Ext.PW11/A. On the above factual background, our conclusion is that the prosecutrix must have gone with respondent Madan Lal at her own will pursuant to the message received through a boy a day earlier to the alleged incident. She voluntarily took lift with him in the vehicle. She also did not raise any hue and cry when the route was deviated towards temple instead of taking her to the school. As far as co-accused Harish is concerned, qua him there are lot of material contradictions, embellishments and improvements raising considerable doubt in her version. Further, the purchases made by the respondent in the company of the prosecutrix from Syari Bazar and then again accompanying respondent Madan Lal to the temple shows that the prosecutrix was a consenting party, who had been obediently following him without any threat, misrepresented or promise. It is also strange enough that - 14 - she did not narrate the incident to anyone else while traveling in the bus or while strolling in the Bazar about the rape, except respondent Harish Kumar, who was stranger to her. Thus, her testimony is wholly improbable to prove the charge of rape or even attempted rape. The prosecution version has been distorted from beginning to end suppressing the truth and the prosecution evidence is unacceptable to prove the charges beyond doubt. As she being a consensual partner, her age is of utmost importance to ascertain if she was less than the age of discretion at the relevant time. 20. PW7 Dr. J. Chauhan, ascertained the dental age of the prosecutrix between the age group of 12 to 16 years, but in cross-examination, stated that it could be 16- 17 years. Another piece of evidence is Ext.PW1/A, the certificate issued by the Headmistress PW1 Jai Devi Gupta from the admission and withdrawal register of the School. According to her, on 6.4.1995, the prosecutrix was admitted in 6th standard in her School and the entries with respect to her date of birth were made on the basis of school leaving certificate issued by the previous Institution, which did not find the light of the day. Further Ext.PW8/A, certificate has been issued by PW-8 Sita Ram Kashyap, Panchayat Secretary, on the basis of entries made in the Pariwar register on estimation, which has no value. Thus, - 15 - there is no primary evidence with respect to the date of birth of the prosecutrix. 21. The provisions of H.P. Panchyati Raj Act and Rules framed there-under makes it imperative to register the births and deaths and also the marriages. A complete and comprehensive procedure has been provided in the Act and rules framed there-under; which have been taken note of by the learned trial Court. It is that certificate issued on the basis of such entries carries the presumption of truth, but no such entry or certificate has been relied upon and proved by the prosecution. The certificates Exts.PW1/A and PW8/A have no relevance. Even from the statement of doctor (PW7) the possibility of the prosecutrix of more than sixteen years at the time of incident can not be ruled out. 22. In view of the aforesaid material contradictions and deviation from the initial story by the prosecutrix and also the evidence with respect to her age coupled with the circumstances noted above also and in absence of the corroboration, no explicit reliance can be placed on the statement of the prosecutrix. Therefore, we are also persuaded not to accept her testimony with respect to the charges framed against the respondents as truthful version. - 16 - 23. For the aforesaid reasons, we do not find any material which could impel us to reverse the findings of acquittal recorded by the learned trial Court, hence both these appeals san merits and are accordingly dismissed. 24. The respondents are discharged of their bail bonds entered upon by them at any time during the proceedings of the case. (R.B. Misra), Judge. April 28th, 2011. (Surinder Singh), (rc) Judge.