State of Himachal Pradesh vs Mohinder Kumar

Justice V.K. Ahuja, J.—This is an appeal filed by State of Himachal Pradesh u/s 378 of the Cr.P.C. against the judgment, dated 14.11.2002, passed by learned Additional Sessions Judge-I, Kangra at Dharamshala, H.P., vide which the respondent was acquitted of the charge framed against him under Sections 376 and 511 of the IPC. The prosecution story in brief is that on 4.10.2000, a statement was recorded by the police u/s 154 Cr.P.C. of one Champa Devi in which she had alleged that her younger daughter, who is studying in 2nd class, had gone for grazing cattle on 2.10.2000 alongwith one Meena Devi. There the respondent was also grazing his cattle, who met them. He gave Rs. 4.00 to Meena Devi to bring toffees and in her absence, he carried the prosecutrix on his back behind a big boulder, removed his pants and Salwar of the prosecutrix and took her in his lap and committed rape with her. He also gave a threat to the prosecutrix not to tell about this incident to her parents otherwise they would be killed. The prosecutrix told about the incident to her mother after two days on 4th, when Shakuntla Devi and Kanta Devi were also alleged to be present there. Then the mother of the prosecutrix boarded a bus and came to the Police Station to lodge the report. On this report, a case was registered and after investigation, the challan was filed before the learned Judicial Magistrate Ist Class, Dehra, who committed the case to the court of the learned Sessions Judge, from where the case was assigned to the learned trial Court. The learned trial Court tried the respondent under the above mentioned Sections leading to his acquittal.

We have heard Mr.Rajesh Mandhotra, learned Deputy Advocate General for the appellant and Mr.O.P. Sharma, learned counsel for the respondent, and have gone through the record of the case.

On appraisal of the record of the case, it is clear that the prosecution had examined 14 witnesses in all to substantiate their case. The first point which arises for consideration is as to the age of the prosecutrix. The statement of the prosecutrix was recorded as PW-2, who was not administered oath. She was found to be of the age of 8 years and she replied to the questions put to her and then her statement was recorded. She stated that at that time she was studying in second class. Her mother, who has been examined as PW-4, stated that her daughter was studying in third class. The age of the prosecutrix as opined by PW-3 Dr. Sunita Kundu was 7 years and this part of the evidence has not been challenged by the respondent in cross examination of any of the witnesses.

It follows from the above discussion that the age of the prosecutrix at the time of occurrence was about 7/8 years.

Coming to the next question as to the statement of the prosecutrix, she was examined as PW-2 and she reiterated that the respondent gave Rs. 4.00 to Meena, sent her for bringing toffees and then removed his pants and underwear and the salwar of the prosecutrix and the accused came over her and then took her in his lap and committed "Galat Kaam" with her. She felt pain and cried and then the threat was given by the accused. From her cross examination, it is clear that the prosecutrix had admitted that injuries were seen by her mother and she asked her and in regard to the injury on the scalp, she stated that she suffered it by a fall. She did not elaborate in what manner it was suffered by her or whether it was suffered by her before the accused committed the rape upon her or thereafter or in that process. It is also clear that the prosecutrix did not tell her mother for two days anything about the incident and it is only on the third day that she claimed to have told the incident to her mother. For these two days after the occurrence, the prosecutrix had been going regularly to the school and therefore, her conduct appears to be unnatural and in case any such incident had taken place with her, she would have told her mother at the earliest about the same. Her mother had also given bath to the prosecutrix, but still she did not disclose anything to her and the explanation given was that it was because of fear that she did not tell about the incident to her mother. It is also in her evidence that her mother PW-4 had noticed blood on the cloths of the prosecutrix and there was pain in her private parts but nothing was enquired from the prosecutrix. Later on, she told this fact to her mother.

PW-5 Meena Kumari corroborated the statement of the prosecutrix as to what had been stated by her and she was also of the age of 8 years and the learned Sessions Judge had put questions to her as to whether she was fit to be examined or not. However, oath was not given to her since she was not in a position to understand the sanctity of oath. A perusal of her statement shows that the learned trial Court had observed at the time of recording her statement that whenever a reference was made to police, the witness was unable to speak clearly and appeared to be a tutored witness.

PW-4 Chamba, mother of the prosecutrix, had supported the statement of the prosecutrix, as mentioned above. She also admitted that when she was giving bath to the prosecutrix, she saw blood on her cloths and the prosecutrix felt pain in her private parts, but she never enquired from her as to the cause of the same and, therefore, the statement of the mother of the prosecutrix in this regard or that of the prosecutrix herself cannot be relied upon.

PW-3 Dr.Sunita Kundu had examined the prosecutrix and had observed as under:

Perinial examination

Labia majora: intact. Well apposed, no pubic hair. Labia Minora: separated.

Hymen: slightly tender but well intact. Smooth semilunar in shape.

Thigh: No marks of violence on both thighs.

There is a lacerated wound on scalp in occipital region measuring 3 cm x 2 cm.

Opinion:

As the hymen is intact, and smooth penetration of the penis has not taken place.

Patient has changed her clothes and taken bath, the cloth worn on the same day have been washed by her mother.

There is a lacerated wound on the occipital region of scalp measuring 3 cm x 2 cm.

She is a minor girl. Aged 7 years, who has not attained menarchy.

PW-3 Dr. Sunita Kundu issued MLC Ext.Pw-3/A. It is clear from a perusal of the statement of the Medical Officer that there were no marks of violence on both the thighs or any part of the body, except an injury on the scalp which the prosecutrix sought to state that she suffered it by a fall. But her statement in this regard or that the rape was committed upon her does not stand corroborated from the testimony of the Medical Officer, who examined her, who has stated that no penetration had taken place. No injuries on her body which she may have suffered in the process were also found.

From the above discussion, it is clear that the statement of the prosecutrix was not such which could be implicitly relied upon. The possibility of the witness being tutored was also there, which conclusion drawn by the learned trial Court leading to the acquittal of the respondent cannot be termed as perverse calling for an interference by this Court. In view of the above discussion, we find no merit in the appeal filed by the appellant, which is dismissed accordingly.