State of Himachal Pradesh vs Nitin Chauhan

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 of the court of learned Sessions Judge, Sirmaur District at Nahan, H.P., dated 8.10.2002, vide which the respondents were acquitted of the charge framed against them under Sections 363, 366, 376, 506 read with Section 34 IPC and Section 3 of the SC and ST (Prevention of Atrocities) Act.

Briefly stated, the facts of the case are that on 24.1.2000, at 1.15 p.m., a statement u/s 154 Cr.P.C. was made by prosecutrix �A� (name not mentioned) that she is studying in Girls School at Nahan and is living at Nahan alongwith her father and younger brother since June. It was alleged that while going to the school and for tuition, respondent Parveen who is living in Medical Colony, Nahan and who was known to her, used to ask her to talk to him. He had asked her on 22.11.2000 to meet her, failing which, he would not talk to her. She stated that on 23.1.2000, she alongwith her friends Indira and Sharmila had gone to purchase notebooks at 10.30 a.m. at Mall Road, Nahan, where her friends left her. She was coming back towards her quarter and at about 11.00 a.m., one jeep (number mentioned) stopped near her and Parveen came out of the said vehicle and asked her as to why she was not talking to him. She ignored him and the other person, who was driving the vehicle, also made a comment, but she did not reply. Thereafter, the driver of the vehicle got down, pushed her inside the vehicle and took the vehicle on Shimla road. She tried to get down from the running vehicle and the said driver, whose name she learnt as Tinku, son of Shri Sadanand, caught her from the arms and did not allow her to get down. The respondent Parveen was sitting on the side of the driver and they took the vehicle for a distance of 3 km. Thereafter, the driver got down and gave the vehicle to Parveen and Parveen took the vehicle for a distance of 2/3 furlongs on kachcha road and he asked her as to why she was not talking to him and she told him that her brother had asked not to talk. There Tinku informed Parveen that his father has learnt about his coming here and that the tyre of his vehicle has got punctured and asked Parveen to leave the place, but Parveen refused to leave. Parveen asked her to get out of the vehicle, but she was made again to sit in the vehicle by Tinku, who came inside and sat by her side and there was exchange of abuses in between her and Tinku. She wanted to hit him with an iron rod lying in the vehicle, but he threw it and gave a slap blow and dragged her from hair and threw her towards the window side. She tried to rescue herself and he caught hold of her from both arms, removed her salwar, underwear and attempted to rape her. It was further alleged that she gave a tooth bite on his hand, who gave her a slap blow, removed his pants and committed rape with her. She raised an alarm and also gave beatings to him with legs and fists and thereafter Parveen came there, called Tinku and Tinku proceeded on foot while Parveen brought her back in the vehicle to some distance where she was asked to wash her face with the water brought by a hotelier. Parveen bought 5/6 packets of Raj Darbar Gutkha. Thereafter, Parveen brought the vehicle to Nahan and gave a threat to her that Tinku was a well connected person and she will not be able to cause any harm to him and, therefore, she should not tell about the occurrence to any person. She was made to get down near a mechanic shop on Shimla road and there she asked the way to her house and reached there. She took 15-20 tablets lying in her house and she started vomiting. Thereafter, at 2.00 p.m., she went to the quarter of one Parmeshwar Negi, where Parmeshwar, Ravi and Sandeep met her and she told them about the occurrence. She went to her quarter and slept there. Then she took Brasso meant for cleaning of utensils. In the morning, at 6.30 a.m., she went for tuition, but she was not feeling well and one Indira came there and the prosecutrix told her about the occurrence. The said Indira accompanied by her brother Tejasvi brought her to zonal hospital and admitted her there. Thereafter, information was sent to the police, who came there and her statement was recorded and a case was registered.

After investigation, the challan was filed before the court of the learned Sessions Judge, who tried the respondents leading to their acquittal.

We have heard Mr. Vivek Thakur, learned Additional Advocate General for the appellant, Mr. M.S. Chandel, learned Senior Advocate for the respondent No. 1 and Mr. Ramakant Sharma, learned counsel for respondent No. 2, and have gone through the record of the case.

On appraisal of the evidence led by the prosecution, it is clear that the prosecution had examined 29 witnesses to substantiate their case. The most material can be said to be the statements of the prosecutrix herself and of other persons to whom she told about the occurrence, apart from the statement of the medical officer.

The prosecutrix has been examined as PW-15 and she reiterated the version given by her in her statement made to the police u/s 154 Cr.P.C. Ext.PN. In her statement she has stated that the rape was committed by Tinku alias Nitin Chauhan, respondent No. 1. But there is nothing that the rape was committed by Parveen, the other respondent. The prosecutrix has stated that Parveen came back, had a conversation and then she was left by Parveen on Shimla road. There is nothing to suggest even that Parveen was standing at that time when the rape was being committed upon the prosecutrix by other accused Tinku alias Nitin Chauhan. It is clear from a perusal of her statement that the learned Public Prosecutor for the State trying the case has not put the time of occurrence on record or the time she was left. She stated that she came back in the evening to her house, took some tablets and then went to Parmeshwar Negi at Naya Bazar, Nahan, where she met Parmeshwar, Ravi and Sandeep, to whom she narrated the entire story. Out of these three persons, who were informed about the occurrence by the prosecutrix at the first instance, none has been examined by the prosecution for the reasons best known to them. There is a statement of the learned Public Prosecutor that he gives up Sandeep, Ravinder and others having been won over by the accused. Their statements were material which could have thrown light on the occurrence, which was reported firstly to them by the prosecutrix. The father of the prosecutrix is putting up at Nahan itself and there is nothing on the record to show that she went to her house, met her father or informed him about the occurrence or not and she is silent on that point. It has again come up that she then talked to Indira, who met her when she went for tuition, whom she disclosed the entire matter and thereafter with the assistance of her brother Tejashvi, who does not appear to be the real brother but has been stated so, she was got admitted in the zonal hospital.

The said Indira has been examined as PW-16, who stated that on 23.11.2000, the prosecutrix had met them, they got separated and they went to their respective houses. On the next day, the prosecutrix met her and she told that the accused Tinku raped her after taking her in his vehicle. It is further stated by PW-16 Indira that nothing else was told by the prosecutrix. The prosecutrix did not complaint to her that she was kidnapped by Tinku and other accused or was taken on Shimla road and then to a Kachcha road, but simply stated that she had been raped yesterday by Tinku by taking her in the vehicle. She took her to Tejasvi and then she was taken to the hospital.

The said Tejasvi has been examined as PW-17, who stated that he knew the prosecutrix as well as Indira, PW-16. He went to the house of Parmeshwar, where many Negi boys and the prosecutrix were present and he was told that the prosecutrix had been taunted by someone. He made an enquiry from the prosecutrix, who told him that Tinku had teased her and he told her that he would ask Tinku not to tease her. On the next day, Indira came to him and told that the prosecutrix had fainted and she was taken to the hospital. Then, the prosecutrix told him that she was taken to Shimla road by the accused persons in the jeep and then teased her. The prosecutrix does not state that on the day of occurrence, she had also told Tejashvi about the occurrence but Parmeshwar etc. were informed by her. There was no mention of her meeting with this witness, but in regard to the next day when PW-16 Indira also met her, she had only complained that she had been taken to Shimla road by accused in a jeep and was teased but she nowhere complained to him, who also appears to be from the same district Kinnuar to which the prosecutrix belongs, that she was teased by the accused and not that any rape was committed upon her.

From the above discussion, it is clear that the prosecutrix meets three persons on the same day, informs them about the occurrence but none is examined by the prosecution to substantiate her version. Thereafter, on the next day, she meets PW-16 Indira Negi and PW-17 Tejasvi Negi, who take her to the hospital and get her admitted and they also had not stated that any occurrence of this nature or rape having been committed by one of the accused was ever reported to them by the prosecutrix. She does not state as to where her father was, she met her or not and as to whether any attempt was made by her to go to the police station accompanied by her father to lodge the report. There is no question of any delay in the matter since the matter was reported on the next day itself, but as to why she did not associate her father or took him into confidence is not on record.

The father of the prosecutrix D.T. Negi has been examined as PW-19, who has stated that on 23.12.2000, he came back from office at 5.30 p.m. The prosecutrix came after half an hour and went to her room. On the next day, she went for tuition at about 10.00. A friend of the prosecutrix told him that the prosecutrix was admitted in the hospital. He went to the hospital and the police was present there, who was recording her statement. However, the prosecutrix did not tell him anything. Thus, it is clear that the prosecutrix did not inform her father, with whom she was living, at any time about the occurrence, though they were in the house on the evening of 23.11.2000.

It is also clear from a perusal of the statement of the prosecutrix that she was taken in the morning from main bazaar itself to a distance of 3 kms. at Nahan-Shimla road, which is a State/National Highway and must be a busy road surrounded by shops on both sides and houses also on both sides but no attempt was made by the prosecutrix to raise an alarm, seek the attention of the passers-by or seek the help of the persons living nearby or going on the road. It is also on the record that the Police Chowki is also at some distance from that place but none came to help her. She never claimed that her mouth was gagged by one of the accused, which prevented her from raising any alarm and rather she only states that she was caught hold by the accused from one hand and she was free to raise any alarm and attract the attention of the passers-by, but none has been examined to substantiate this version. It looks surprising that a girl of the age of 17 plus studying in 10+1 is taken forcibly from the State/National Highway to a distance of 3 kms or more on the State/National Highway itself but she was not in a position to call anyone or seek the attention of the passers-by. It is also in her statement that one of the accused, namely, Parveen was known to her and she also knew where he was living, which clearly suggests that she had some acquaintance with the said accused and the possibility that she may have boarded the vehicle herself cannot be ruled out, though there is nothing to suggest that she had consented for the sexual intercourse allegedly committed upon her. It is also in her statement that when she was brought back, the vehicle was stopped and a jug of water was brought by a hotelier for her to wash her face, but she does not state that she took any steps to seek the assistance of the said hotelier or make any complaint to him or told him that she was forcibly taken and had been raped by one of the accused persons.

A perusal of the site plans Ext.PX and Ext.PW shows that some houses have been shown at some distance from the metalled road but distance has not been mentioned in the site plan, though it was mentioned that on both sides of the road, there are pucca houses.

Coming to the medical evidence, the prosecutrix was examined by PW-18 Dr. Monisha Aggarwal and two other doctors, who were the members of the Board. The history given was that she had been subjected to sexual intercourse by two persons against her will on 23.11.2000, but even the name of one of the accused who was known to her was also not mentioned and though her statement shows that she was raped by one person only. The Medical Officer had found that there was no spermatozoa dead or alive, the hymen was old ruptured and vagina admitted two fingers tight. The Medical Officer opined that the prosecutrix had sexual intercourse previously also and no injuries whatsoever were noticed on her person. The Medical Officer in cross examination had stated as under:

It is a fact that whenever there is forcible intercourse and there is resistance form the victim then in all probability she should have injuries on her person. In view of the genital condition and condition of hymen as stated above the victim must have been indulging in sex for the last good time. She may be indulging in sex for the last at least more than four months.

It is, therefore, clear that when the prosecutrix states that her hair were pulled and that she struggled with the accused persons at that time, but no injuries are noticed on any part of her body including abrasions, bruises etc. The Medical Officer is specific that there was no visible mark of injury on any part of the body of the prosecutrix. The Medical Officer has clearly opined that the hymen was old ruptured and admits two fingers tightly and that the prosecutrix was habitual to sexual intercourse, though the prosecutrix stated in her statement that she had been subjected to sexual intercourse for the first time. The version given by the prosecutrix that she was forcibly taken from the road on the State/National Highway but none could be called for assistance also does not inspire confidence. This fact has been established by the prosecution that the age of the prosecutrix at the time of occurrence was above 17 years which has not been challenged by the accused also on the basis of the evidence, which clearly shows that she was in a position to give consent to the sexual intercourse committed upon her. However, the evidence led does not substantiate her version of rape and her statement has not been corroborated by any of the persons to whom she narrated the occurrence, since two did not support her and three were not examined.

On appraisal of the above evidence led by the prosecution, it is clear that the view taken by the learned trial Court leading to the acquittal of the respondents cannot be said to be perverse, which calls for no interference by this Court. We accordingly hold that there is no merit in the appeal filed by the appellant, which stands dismissed. The bail bonds furnished by the respondents shall stand discharged.