State of Himachal Pradesh vs Babu Ram

Justice Sanjay Karol, J.—For an offence, which is alleged to have been committed on 6.4.2001 accused was put to trial. In terms of judgment dated 15.10.2004, passed by the ld. Addl. Sessions Judge, Solan, Camp at Nalagarh, H.P. in Sessions Trial No. 3-NL/7 of 2002, titled as State of H.P. versus Babu Ram, accused stands acquitted of the charged offences. It is the case of prosecution that on 6.4.2001 at about 2.00 p.m., prosecutrix (PW-1) was alone in her house in village Upperla Kanyola, Sub Tehsil Ramshehar, Distt. Solan, H.P. Her ''bhabhi'' (sister-in-law) Smt. Meera (PW-2) had gone along with other ladies of the village to mourn the death of a lady. While prosecutrix was alone, accused entered the house, dragged her from the hair and after making her lie on the floor opened her clothes and then sexually assaulted her. He committed an offence of rape. In the meanwhile PW-2 came and saw the incident. Thereafter accused left the spot. In the evening, matter was reported to the male member of the house when Sh. Ram Asra (PW-6) husband of PW-2 returned. The matter was also brought to the notice of neighbours and the following morning report was lodged with the police by the prosecutrix and F.I.R. No. 25 of 2001 (Ext. PW 1/C) dated 7.4.2001, under Sections 452, 376 and 506 IPC was registered at Police Station Ram Shehar, Distt. Solan, H.P. Sh. Rajinder Kumar (PW-11) Incharge of Police Station Ram Shehar sent the prosecutrix for medical examination to the Community Health Centre, Nalagarh where she was medically examined by Dr. Neenu Narula (PW-10) who issued M.L.C. (Ext. PW 10/A). Police recorded statements of the relevant witnesses and after visiting the spot collected incriminating material in the presence of the witnesses. To establish the age of the prosecutrix, certificate of birth (Ext PW5/A) issued by Sh. Ramji Dass (PW-5) was obtained by the police. Prosecutrix was also got medically examined to determine her radiological age. Incriminating material collected from the spot was sent for chemical analysis to the Forensic Science Laboratory and report (Ext. PW 11/G) was obtained by the police. With the completion of investigation challan was presented in the Court for trial.

The accused was charged for having committed offences punishable under Sections 452, 376, 506-A and 506-B IPC to which he did not plead guilty and claimed trial.

In order to prove its case, prosecution examined as many as 13 witnesses and statement of the accused u/s 313 Cr.P.C. was also recorded in which he took up a defence of false implication on account of the fact that he had asked the father of the prosecutrix to return the money which were borrowed from him.

Appreciating the material on record, Court below acquitted the accused of all the charged offences, hence the present appeal.

We have heard Sh. R. K. Sharma, learned Senior Addl. Advocate General duly assisted by Sh. J. S. Guleria, Assistant Advocate General on behalf of the appellant-State as also Sh. Ramakant Sharma, learned counsel on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence placed on record by the prosecution. Having minutely examined the record, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is well reasoned and is based on complete and proper appreciation of evidence (documentary and ocular) placed on record. There is neither any illegality/infirmity nor any perversity in the same.

We shall first deal with the question of age of the prosecutrix. No doubt through the testimony of Sh. Ramji Dass (PW-5), prosecution has got exhibited certificate of birth (Ext. PW 5/A) to show that prosecutrix was born on 8.3.1985. If this certificate is to be taken to be correct then undoubtedly prosecution was just about sixteen years of age as on the date of the alleged offence. But we find that this certificate has not been proved in accordance with law. In cross examination PW-5 admits that entries made in the register, on the basis of which this certificate was issued are not in his hand. He further states that there are no signatures in the register to establish the identity of the person who actually recorded such entries in the register. Consequently it cannot be said that prosecution has been able to prove the factum of recording of entries in the register by a duly authorized person or a person conversant with the age of the prosecutrix. Significantly, both father of the prosecutrix i.e. Sh. Devi Ram (PW-4) and her brother Sh. Ram Asra (PW-6) do not state that they got the entries recorded in the register.

That apart, we find that statement of the prosecutrix herself demolishes the prosecution case with regard to the age. In no uncertain terms she states that she had disclosed her age to the medical Board to be of eighteen years, which fact in fact stands duly corroborated by the medical evidence placed on the record by the prosecution and as per the MLC (Ext. PW 10/A), wherein the radiological age of the prosecutrix is recorded to be between 17 to 19 years. Also Dr. Neenu Narula (PW-10) has deposed that difference in the same can be of two years on either side. Now benefit of doubt, if any, in this regard, has to be given to the accused. PW-10 corroborates the statement of PW-1 to this effect. Thus it cannot be said that prosecution has been able to prove the age of the prosecutrix to be less than sixteen/eighteen years as on the date of the alleged offence. In fact her age is more than eighteen years.

Coming to the question of rape, we find testimonies of the relevant prosecution witnesses i.e the prosecutrix (PW-1), Smt. Meera (PW-2), Sh. Devi Ram (PW-4) and Sh. Ram Asra (PW-6) not to be inspiring in confidence. There are material contradictions, improvements, embellishments and unexplained circumstances rendering their statements to be untrustworthy, if not completely false. In fact defence of the accused stands admitted by the prosecutrix herself in the Court. We also find that medical evidence negates the theory of sexual intercourse by force. We also find that there is no link evidence to establish the commission of the alleged crime. Report of the Forensic Science Laboratory (Ext. PW 11/G) does not establish the prosecution case at all.

According to the prosecutrix (PW-1), while she was alone at home, accused came and asked for a cassette. She informed him that the same was with her brother. Thereafter the accused took her inside the house by pulling her from her hair and after opening her clothes forcibly committed rape. Her mouth was gagged with a ''chunni''. While accused was committing the offence, her ''bhabhi'' (PW-2) came inside the room and witnessed the incident. She also narrated the incident to her ''bhabhi''. However, prior to that, both she and the accused cleaned their private parts with a "bori" (gunny bag). In the evening when her brother Sh. Ram Asra came home, the incident was narrated to him and the following day matter was reported to the police.

Now significantly she admits in her cross-examination that her father had borrowed money from the accused. She also admits that in spite of repeated demands the same was not returned by her father to the accused. She admits that two days prior to the occurrence of the incident, accused had demanded money from her father which resulted into heated exchange of words. She also admits that as a result of the same, her brother had quarreled with the accused. She also admits that accused had threatened her father and brother to either return the amount or else he would drag them to Court. Significantly she admits that on the day of occurrence of the incident when accused came to her house to demand money, her brother and father "intentionally escaped from the house" and thereafter accused abused them. She admits it to be correct that when she narrated the factum of hurling of such abuses to her father and brother she was told by them that they would teach the accused a lesson and they "planned" to make a false case against the accused before he could take the matter to the Court. Now this totally demolishes the prosecution case and renders the defence taken by the accused to be highly probable if not completely true.

We find that on the question of rape or for that matter the actual incident, her statement does not inspire confidence. To begin with she does not remember the name of the lady whose death her ''bhabhi'' had gone to mourn in the village. She also does not remember the colour of the clothes which the accused was wearing at the time of the alleged offence. She states that accused committed rape with her for more than ten minutes while the main door was open. This renders her version to be highly improbable as the alleged offence took place during broad day light. Significantly she states that both she and the accused ejaculated while having sexual intercourse. She admits not to have resisted the acts of the accused. Now sex, if any, in our considered view is consensual. This however does not mean that we have come to the conclusion that prosecutrix was actually subjected to sexual intercourse voluntarily or involuntarily in nature.

Most significantly matter was not reported to the police or the neighbours/panchayat/relatives promptly. Why so? has not been explained. The alleged offence took place on 6.4.2001 and that too at about 2.00 p.m. in the afternoon. Whereas, F.I.R. was lodged only on 7.4.2001 at about 8.30 a.m. What transpired within this period has not been explained by the prosecution. All that the prosecutrix states is that the incident was narrated to her brother. Possibility of due deliberation and false implication of the accused by the complainant party, in the backdrop of the quarrel which had taken place, immediately prior to the incident, cannot be ruled out. More particularly when prosecutrix admits it to be correct that her father Sh. Devi Ram and ''bhabhi'' Smt. Meera Devi had spoken with the police and police did not make any inquiries from her about the incident. Significantly she admits it to be correct that she did not state what was written in the F.I.R.

It has come on record that house of the prosecutrix is surrounded by 20 - 26 houses where families also reside in close proximity. Significantly none of such residents have been examined by the prosecution in Court. Why is it that prosecutrix did not resist the acts of the accused has also not been explained by her. We find that upon medical examination, the Doctor (PW-10) opined that no injury marks or scratches, bite marks, bruises, swelling or bleeding on the body of the prosecutrix including her genital parts were found. Significantly we find that the prosecutrix was habitual to sexual intercourse as the Doctor has opined that two fingers could easily be inserted inside her vagina. It is not that prosecutrix was married.

Coming to the testimony of Smt. Meera (PW-2), she has corroborated the initial version narrated by the prosecutrix but we find her statement to be uninspiring in confidence. Significantly she does not remember the name of the woman whose death she had gone to mourn. Hence her absence from the house has not been sufficiently explained. Further we find that she has made exaggerations, improvements and also there are embellishments in her testimony. She states that while fleeing, the accused threatened the prosecutrix to kill her which in fact is not the version of the prosecutrix. Further her version in Court that she heard the cries ''bachow - bachow'' (help-help) of the prosecutrix, which prompted her to enter the house, not to be recorded in her previous statement (Ext. PW 2/A) with which she was duly confronted. In Court, she states that on account of sexual assault she had seen blood on the spot which was also cleaned with a gunny bag, used by the prosecutrix and the accused to clean their private parts. We find this version not to be true. Also she was confronted with her previous statement (Ext. PW 2/A) wherein this fact was not so recorded. It is not the case of the prosecutrix that she had bled as a result of the sexual assaults. That apart, report of the Forensic Science Laboratory (Ext. PW 11/G) does not establish this fact.

Undisputedly, Sh. Devi Ram and Sh. Ram Asra are not witnesses to the incident. Significantly they are silent on the question of delay in lodging the matter to the police. No doubt PW-6 states that he had informed the neighbours about the incident but then prosecution has not examined any one of the neighbours to establish this fact.

Hence in our view case set up by the prosecution cannot be said to be inspiring confidence. It cannot be said that prosecution has been able to establish that accused had forcibly subjected the prosecutrix to rape or that he had trespassed into the house of the prosecutrix with preparation of causing hurt or assaulting the prosecutrix or wrongfully restrained the prosecutrix from moving in any direction. It also cannot be said that accused committed any offence punishable u/s 506 (recorded as 506-A and 506-B IPC by the trial Court) IPC. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., , it cannot be said that the Court below incorrectly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. Present appeal is thus dismissed. Bail bonds, if any, furnished by the accused are discharged.