1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.349 of 1997 Decided on October 4, , 2010 State of H.P. …Appellant. VERSUS Amjed Khan ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge Whether approved for reporting?1 For the Appellant: Mr.R.K. Sharma, Sr. Addl. AG with Mr. Rajinder Dogra, Addl. AG For the Respondent: Mr.Karan Singh Kanwar, Advocate. R.B.Misra, Judge (Oral) The present criminal appeal 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 22.5.1997, passed by learned Additional Sessions Judge, Sirmaur District at Nahan, H.P. in Sessions Trial No. 21- N/7 of 1995, thereby acquitting the respondent/accused for the offence under Sections 341/376 of IPC in reference to FIR No. 153/1994 dated 4.8.1994. 2. The prosecution case is that victim-prosecutrix, resident of Dhabon Mohalla, Nahan has lodged report on 4.8.1994 at 1.15 PM, stating that while she was coming to her home Whether the reporters of the local papers maybe allowed to see the judgment? 2 situated at Mohalla Dhabon, Katcha Tank, Nahan from the house of Dr. Ashok at Naya Bazar, Nahan and at about 12.15 PM when she reached near her house, the accused obstructed her way by standing in front of her and caught hold the complainant from her arm and uttered that he will not let her free today and he will outrage her modesty and that the accused kissed the complainant and dragged her down near the path into the bushes. The complainant was forced to lie down. The accused kept his one hand on the mouth of the complainant and from the other hand tried to un-tie the string of the salwar and when the string could not be opened, the accused torn the salwar of the complainant and sexually assaulted the victim-prosecutrix, a passer by noticed such mis-happening and accordingly FIR No. 153/94 was registered against the accused. After investigation, accused was charged for the aforesaid offences under Sections 341/376 of IPC and the case was committed to Session trial. 3. In order to prove its case, prosecution has examined as many as 13 prosecution witnesses, whereas, through his statement under Section 313 Cr.PC accused had denied the prosecution case. One defence witness was presented on behalf of the accused. 4. PW-1 Dr. R.C. Mohindru, conducted the medical examination of the accused. PW-2 Dr P.Sood conducted the medical examination of the victim-prosecutrix ( PW-11 )Suraj Pal (PW-3) witnessed of the recovery, Chatter Singh (PW-4) verified the investigation and prepared the challan, Kundan Singh (PW-5) posted as MHC, Police Station, Sadar Nahan during the year 1994, 3 with whom the case property was deposited. PW-8 Choli Ram, clicked the photographs Ex P1 to Ex P5 of the spot, PW-9 Partap Singh who was posted as M.C. Police Boast, Katcha Tank, Nahan, PW-10 Balkish eye witness of the occurrence, PW-11 Nazreen was the complainant herself. PW-12 Umardin husband of the complainant-victim prosecutrix and witness of the recovery and PW-13 Gopi Ram who investigated the case, were examined. 4. On analysis of the prosecution witnesses and materials on record, we notice that PW-10 Balkish and the PW- 11, victim-prosecutrix were the most material eye witnesses of the prosecution. PW-10 Balkish, instead of supporting the prosecution case, has totally demolished the case and she had categorically stated that she does not know anything about the case and she did not see the accused with the victim-prosecutrix in compromising condition at any time. As such, PW-10 was declared hostile and nothing could be extracted from her testimony. PW-10 is the niece of the victim-prosecutrix and as the victim is the married lady and there was no reason why PW-10 should not be believed. 5. PW-11 victim-prosecutrix had made improvement in her statement. She had introduced a new version regarding recovery of bangles and hair from the spot. The victim-prosecutrix had stated that while she was going to her house from the house of Dr. Ashok, resident of Naya Bazar, Nahan at about 11.15 AM on 4.8.1994 and when she reached near her house accused was found sitting on the path and he caught hold of her from her both hands and dragged her to the bushes as a result of which her bangles were broken. The accused told the complainant that he 4 would not allow her to leave without sexual intercourse with her and the victim-prosecutrix cried and then the accused caught hold of her hair and the victim prosecutrix also caught hold of the hair of the accused and in that process bunch of hair of both accused and victim-prosecutrix were removed. The victim-prosecutrix had further stated that the accused took her to the bushes and threw her on the ground as a result of which she suffered injuries on her back and thereafter he closed her mouth and then torn her salwar and sexually assaulted her and that the victim-prosecutrix again cried and then PW-10 came at the place of occurrence and on seeing her, accused got up, however, before getting up, accused had sexually assaulted the victim-prosecutrix. Whereas PW-10 has given a different narration and had at all not supported the prosecution case by saying that she was going to the shop of her husband with lunch and when she reached near Dhabon Mohalla, she heard noise from the side of bushes and then saw the accused leaving the victim-prosecutrix in a bad condition. However, in cross examination, she has not made a narration the way she has narrated in her testimony under section 161 Cr.P.C. 6. PW-2 Dr. P. Sood after examining the victim- prosecutrix has stated that there is nothing to indicate that sexual intercourse had not been done. The nature of injuries on her person was simple, caused within the duration of 12 hours. The clothes were sealed and handed over to the lady constable. However, in the medical report, no spermatozoa was found. In the opinion of PW-2, duration of the injuries is in relation to injury No.2 & 3. 5 7. In our considered view, medical report is not supporting the prosecution case. The victim-prosecutrix is a married lady aged about 23 years old and on medical examination, it was noticed that PW02 has indicated that if the victim- prosecutrix was lying on an uneven surface and there being resistance from her side, in case of sexual assault with her forcibly, there could be number of injuries on her back portion. PW-2 has further stated that injury No.3 on the left forearm could be self inflicted. 8. In the facts and circumstances when a young lady had given so much resistance and sexual assault was made against her wishes, in such circumstances, number of injuries could have been inflicted over the body of the accused and the medical report could have been otherwise, whereas the medical report, in the facts and circumstances, is not supporting the prosecution case. The incident took place in the day time and despite hue and cry made by the victim-prosecutrix, none of the witnesses have ever come to the spot or have supported the prosecution case. The testimony of victim-prosecutrix is not inspiring confidence. Learned Additional Sessions Judge has found infirmities, inconsistencies in the testimony of the prosecution witnesses. In our considered view, the testimony of victim-prosecutrix is not inspiring confidence. As such, the prosecution has failed to bring home the guilt to the accused. Therefore, in our considered view also, we find no scope for interference in the impugned judgment of the learned Addl. Sessions Judge. The criminal appeal being devoid of any merit, is accordingly dismissed. 6 9. The bail bonds, furnished by the accused/respondent, are discharged. ( R.B.Misra ), J. 4th October, 2010 ( V.K.Sharma ), J. (sl)