Amar Dev vs State

Bhawani Singh, J.—Amar Dev, Appellant, has appealed against the judgment of Sessions Judge, Solan, in Case No. 1-S/7 of 1986, decided on 20-8-1986, whereby the accused was charged for offence u/s 376 of the Indian Penal Code, has been convicted u/s 354 of the Indian Penal Code and sentenced to rigorous imprisonment for one year and to pay a fine of Rs. 1000/-. In default of the payment of fine, to further undergo imprisonment for three months. Out of the fine, Rs. 500/- were ordered to be paid to the father of the prosecutrix, to be spent for the welfare of the minor girl, the victim of the offence.

The prosecution case, in brier, is that on 31-3-1985, Mange Ram (PW-5; had invited Jai Bhagwan Singh (PW-1; and his family along with others for a lunch in his house. At this time, the children of Jai Bhagwan Singh were playing in the compound of the Block. After taking his meals, Jai Bhagwan Singh locked his quarter, handed over the key to his daughter Kumari Nirmesh and went to Monkey Point where a Kirtan was arranged. The accused threw a nut (Akhrot) from the window of his quarter to Kumar Nirmesh. She picked up the same and gave it to her friend Kumari Verkha. The accused then asked Kumar Naresh to come to his quarter and on her coming to his quarter, the accused bolted the door, put of the Shalwar (Ex.P-2) of the prosecutrix, inserted his ringer into her private part and kissed her for some time and asked her to kiss his tongue and hold his private part in her hand and than kept the same on her private part. After sometime, the accused opened the door of his quarter and allowed her to go out and she went away. Mange Ram (P W-5) told Jai Bhagwan, the complainant, that the prosecutrix was not traceable. Search was made; the prosecutrix was seen standing on the road. On inquiry, the prosecutrix disclosed that she was in the quarter of the accused. The prosecutrix was brought to the house of the complainant where she informed that the accused took her to his room and bottled the door. On this, the complainant came out of his house and called the accused by name who peeped out of the window but shut the same when, he was asked by the complainant: about his daughter. Thereafter the complainant went to Monkey Point along with his daughter, the prosecutrix. At night, on inquiry by the mother of the prosecutrix as what she was doing in the house of the accused, the prosecutrix disclosed that she was playing in the compound when the accused threw an Akhrot which was picked up by her and thereafter the accused called her and she went to him in his quarter. The prosecutrix further disclosed that when she entered the room, the accused shut the door and just like feature film, he started kissing her and thereafter the accused put of her shalwar and inserted his finger into the private part of the prosecutrix. She further told that she felt pain and the accused removed his ringer and thereafter he tried to insert his private part into the private part of the prosecutrix but retracted himself as she got wet. The accused asked her to put on her Shalwar and she .came out of the quarter of the accused. It happened on 31-3-1985 and on 1-4-1985, the prosecutrix remained normal but on 2-4-1985 some pus came out of the private part of the prosecutrix but she was sent to school after her mother put some cloth on it. On that day, the teacher called the mother of the prosecutrix to the school and told her that the prosecutrix was feeling some pain. Thereafter the prosecutrix was taken to Kasauli Bazar to a private doctor who gave an injection to the prosecutrix and on 3-4-1985, v/hen the prosecutrix suffered much pain, she was taken to M.I.R. room and thereafter she was sent to Militaiy Hospital, Kasauli. She was at the Military Hospital when the police was informed and statement u/s 154 of the Code of Criminal Procedure was recorded by the police. The complainant explained that he did not inform the police as he was out to save his respect. Case was registered and investigation conducted. The accused as well-as the prosecutrix were medically examined. Clothes of both, the prosecutrix and the accused, which they were wearing at the time of the .occurrence, were taken into possession. Finally a chuan u/s 376 of the Indian Penal Code was put up against the accused.

The prosecution examined eight witnesses. The accused denied his presence at the spot at the time .of the occurrence and stated that he was implicated falsely due to enmity. Five witnesses were examined in defence. The .trial ended in the conviction of the accused u/s 354 of the Indian Penal Code as offence u/s 376 of the Indian Penal Code was not proved.

In order to examine the allegations of the prosecution, it is necessary to refer to the statements of various witnesses to know if the allegations of the complainant as well as the prosecutrix against the accused are legally proved.

The prosecutrix has been examined as (PW-4). She states that the occurrence took place of Sunday of the last year. She was plucking flowers near her residence with her friend. The accused threw an akhrot from his window. She picked up the akhrot and the accused asked her to come to his quarter. She went there, the accused bolted the door. The accused put off her shalwar and inserted his finger in her private part. He did this for some time. The accused asked her to love him and also asked her to kiss his tongue with her tongue which she did. The accused also told her that she should not deceive him. The accused kept his private part on her private part and also put his private part in her hand. He took her on his body and after sometime, the accused opened the door. She went away. Her father met her on the way while coming back from the Monkey Point. She was taken to the house and after giving her water, he went to the Monkey Point. When her later came back from the Monkey Point, she narrated the incident to him. She also narrated it to her mother. In cross-examination, she states that varkha, her classmate, was with her while she was plucking the flowers. She states that she does not know from which place her father hails. Many children reside near her quarter at Kasauli. Mange Ram is a friend of her father. She further states that this incident was narrated to the parents in the house and not at the Monkey Point. She states that when she was plucking flowers, her father and mother were with Shri Mange Ram in his house. She also went to Monkey Point afterwards but she does not know at what time she reached at Monkey Point. They came back from Monkey Point when the sun was going to set. She felt pain when the accused inserted his finger in her private part but afterwards she did not feel any pain. She denied the suggestion that she was making the statement in the Court at the asking of her parents and Mange Ram. She also denies the suggestion that she was tutored by the police to make the statement.

From the perusal of the statement of this witness, it is not possible to believe that this witness, aged about 7 to 8 years, can either remember or give details of an incident which happened a year back. She appears to have been thoroughly tattered. There are certain statements which cannot at all be given by a witness of this age. Moreover, in case this incident had actually happened, the prosecutrix would have naturally complained of it as soon as her father met her or at least she went to the Monkey Point. Nothing has been done. Even her statement that when her father came back from Monkey Point she narrated this incident to him, is thoroughly unbelievable because had she narrated this occurrence to him at that stage, her father would have naturally and promptly brought it to the notice of his wife at Monkey Point and thereafter. Therefore, her statement that she narrated this to her mother during the night also is doubtful. It appears, this incident is a flashback from the stage she was examined by the doctor. In these Circumstances, it is not possible to believe and rely upon the Statement of the prosecutrix; so corroboration of her version is necessary from other witnesses produced by the prosecution.

Shri Jai Bhagwan Singh (PW-1) is the complainant. He is the father of the prosecutrix. He states that on 31-3-1985, he along with his wife and two children, including the Petitioner, had gone to the house of Mange Ram (PW-5) for lunch, whose house is situate nearby his house. His children were playing in the compound of the Block. Wine he came back at about 1 p.m., he locked his quarter and gave the keys to the prosecutrix to be given to his wife and he himself went to Monkey Point, as some Kirtan was arranged there. At about 3 p.m. Mange Ram (PW-5) came to Monkey Point and informed him that his daughter was not available. The same thing was stated by his wife who came to the Monkey Point with the if of Mange Ram. He further states that he took the keys from his wife and came towards his house. It is pertinent to observe here that this witness had given keys to his daughter to be handed over to his wife; so, his daughter must have met his wife and handed over the keys to her and that is how his wife was in possession of the keys which she gave to her husband Jai Bhagwan Singh (P.W. 1). Therefore, this story appears to be doubtful that the prosecutrix was missing in the manner this witness was narrating and now he states that whe-1 he came from Monkey Point to trace her, she is found on the way 50 yards away from the quarter. On inquiry, he states, his daughter disclosed that she was in the house of the accused and she could not come out of the house of the accused as he had bolted the door. Ultimately, he took his daughter to the Monkey Point where Kirtan was arranged. It is pertinent to observe here that the prosecutrix did not tell him as to what the accused had done with her while she was with him in his quarter. He further states that the prosecutrix set beside his wife at Monkey Point and in the evening they came back to the quarter after handling over P.A. set and then he. his Wife and the two children including the prosecutrix, went to see TV and came back to the quarter at about 9 at night when he asked his daughter about her being with the accused. Then she told him that the accused had been �making love with her just like movie pictures and she informed that while she was playing, she was called by the accused to his ''house the door was bolted, her Shalwar was put off and the accused inserted finger into her private paint and she felt pain. She also stated to him that the accused put his private part on her private part and made love with her by kissing her and the accused allured her to give sweets and money whenever she required and she did not raise hue and cry as the accused had Threatened her. He further states that his daughter did not complain at night and she remained normal and she remained normal on 1-4-1985 also. He did not report the matter for his personal respect. In the next morning, his daughter complained that pus was coming out of her private part and after putting a cloth on her private part, she went to school where his wife was called and was told that the prosecutrix was having some trouble. He and his wife took the prosecutrix to Kasauli to Dr. Chatarmuni, to whom this accidence was not disclosed. On April 3,1985, the condition of his daughter worsened and she vomitting and crying with pain. So the matter was reported to Medical Officer, Sq. Leader S.S. Likhari and the occurrence was narrated by this witness to the said doctor. She was checked and next day, she was sent to Military Hospital, Kasauli, where she was admitted. The matter was reported to the police and his statement was recorded and on April 7,1985, the shirt and shalwar put on by the prosecutrix on the day of the occurrence were handed over to the police. They were sealed.

In cross exanimation he states that Monkey Point is situated at a distance of 600 to 700 yards from his quarter. He reached Monkey Point at about 1.45 p.m. and came again there at about 3.30 p.m. or 4. p.m. along with the children. It takes about 20 to 25 minutes to reach Monkey Point from his quarter. He denies the suggestion that it takes 45: minutes to reach Monkey Point. He admits that the shawlar which his daughter was wearing on the day of occurrence was washed. He denies the suggestion that Manage Ram and other residents of his Block wanted to falsely implicate the accused and that is why the prosecutrix was examined again on April 6, 1985. He also denies that Mange Ram had, in his presence, threatened the accused that he would be falsely implicated in some case.

Perusal of the statement of this witness clearly demonstrates that he is quite an interested witness. He has made all efforts to say something even more than what the prosecutrix has said in her version. His statement thus cannot at all inspire confidence. It indicates that he tutored the prosecutrix throughly in making the statement she gave to the Court. His statement that he did not report the matter to the police for personal respect cannot, at all, be believed. It appears that the prosecutrix had not narrated anything either to the father or to the mother. Some infection developed and they suspected the involvement of the accused for the same. They went to the extent of initiating a case u/s 376 of the Indian Penal Code against him. Narration of his conduct and narration of incident does not at all inspire confidence. So, the statement of the prosecutrix still lacks corroboration.

Shri Mange Ram (PW-5) is the person with whom the complainant party had taken lunch that day. They had good relations. He states that when he came back to his house after 2 p.m. after performing his duty between 12.30 to 2. p.m., he was told by the complainant''s wife that the proecutrix was not traceable and asked for his help. He searched for her but proecutrix was not traceable and he went to the Monkey Point where he told the complainant about the missing of the proecutrix. After remaining there for 15 minutes, when his wife and the complainant''s wife reached there, complainant came to his house after taking keys from his wife. Again, the complainant came to the Monkey Point along with the prosecutor after about two hours. He admits that he had kept two blankets of the accused when his family came. He denies the suggestion that there was some quarrel between the accused and him relating to these blankets which he did not return; rather he was trying to return some other blankets from Kabari. He also denied the suggestion that in the morning of 31st March, 1985, he had some quarrel with the accused in the presence of the complainant.

The statement of this witness does not in any way improve the case of the prosecution. However, it appears that there is some evidence of some strained relations between the accused and this witness. His interest in the issue, in these circumstances, cannot be excluded. He may be behind the complainant to initiate this matter. It is safe to exclude his evidence for the purpose of corroboration.

ShriChatar Muni (PW-6) is the medical practioner at Kasauli. It was he who examined the prosecutor. Although he gave her penicillin injections, but did not examine her clinically. He states that the parents of the girl did not tell him the cause of pus formation when they were specifically asked. In cross examination, he states that pus formation can be due to common infection.

Dr. (Mrs.) R. Chopra, Medical Officer, PHC, Dharampur (PW-2), states that there was no injury on the face, breasts and genitalia of the prosecutor. No other external injury was found on labia major and no labiaminora or semen staines were present. There was no inflammation or tenderness on her private part. Hymen was intact, there was no laceration or bleeding from the vagina and there was no discharge.

She was examined again on 6-4-1985 at the instance of the police when some scanty discharge was present. It was ct pus cells. There was no evidence of spermatozoa and N.G.C. In cross-examination, she states that pus can come out of Vagina due to disease and various other reasons and swelling can be caused by some injury.

Dr. J.G. Vohra, Medical Officer, PHC, Dharampur, (PW-3) examined the accused and excluded the possibility of recent intercourse having been done by the accused.

The aforesaid examination of this matter demonstrates that the prosecution has not (sic) been able to prove neither the commission of the offence u/s 376 of the Indian Penal Code nor u/s 354 of the Indian Penal Code. The findings of the learned Sessions Judge relating to the offence u/s 376 of the Indian Penal Code are correct but the learned trial Judge has gone wrong in appreciating the residence on record to arrive at the conclusion that an offence u/s 354 of the Indian Penal Code is established. Such a conclusion, in my opinion, cannot be arrived at in face of the facts and evidence brought on the record of the case. There is lack of cogent, convincing and reliable evidence on this aspect when once the same cannot be made use of for the offence u/s 376 of the Indian Penal Code. The versions of the prosecutor, complainant and Mange Ram are full of exaggerations and improvements. They indicate a conscious effort to prove the case against the accused and with this intention'' in mind, they colour their versions accordingly.

The prosecution case suffers from the major defect of the non-inclusion of Kumari Varkha as a witness in the case. Kumari Varkha, her class-mate, was playing and plucking flowers with the prosecutor and it was at that time that the accused is alleged to have thrown down the akhrot to the prosecutor which she gave to Kumari Varkha and it was at this time that she was called to his house by the accused and it was during this time that she went to his house. Whether this happened or not. If so, how long the prosecutor remained with the accused. All these are fundamental questions which could have been easily, conveniently and directly answered by Kumar Varkha. Failure of the prosecution to examine the hatters the whole story of the prosecution. This fact throws complete doubts on the prosecution case. No reason has been given for her non-examination. She is the only material witness. The consequence, in this situation, appears obvious. The prosecution story lacks credibility. The prosecution has not come forward with the real case. So, it can be easily and irresistibly concluded that the story is not what has been set-up by the prosecution and the accused is obviously entitled to the benefit in such a situation.

One more fact needs to be noticed. The prosecution has examined only those witnesses who have some kind of animus against the accused, like the complainant (PW-1) and Mange Ram (PW-5).

When once the learned trial Judge has observed that the accused had every opportunity to commit sexual intercourse with the prosecutor and it has been proved that no sexual intercourse was committed despite the fact that she was all alone and could have been subjected to sexual intercourse by the accused, still the same was not done; so the accused had no intention to commit sexual intercourse with the prosecutor and it can be safely, reasonably and appropriately concluded that when the allegation of an offence u/s 376 of the Indian Penal Code failed, the assertion of the prosecution that the accused had committed an offence u/s 354 of the Indian Penal Code, also falls into the zone of doubt. The learned trial Judge has failed to properly appreciate the facts and the evidence relating to this aspect of the matter. There j is complete lack of corroboration of the statement of the prosecutor and it cannot be reasonably concluded on evidence on the record of this case that the prosecution has proved a case u/s 354 of the Indian Penal Code against the accused beyond all reasonable doubts.

The result is, there is merit in this appeal and the same is allowed. The conviction and the sentence of the accused u/s 354 of the Indian Penal Code is set aside. He is acquitted of the charge. He is stated to be on bail. Personal bond and surety bond, if any, executed by him at any stage of the proceedings of this case, are hereby discharged.