State of Himachal Pradesh vs Sh. Jagdish Chand @ Jaggu

Justice R.B. Misra, J.—The present criminal appeal has come up for consideration after the leave to appeal has been granted u/s 378(3) of the Code of Criminal Procedure against the judgment dated 25.2.2005, passed in Sessions Trial No. 9 of 2002, by learned Sessions Judge, Mandi, acquitting the respondent/accused for the offence punishable u/s 376 of the Indian Penal Code. The prosecution case, in brief, is that on 6.11.2001 at about 7:00 A.M., the victim had gone to fetch water from the water tap and while coming back she was caught hold by the accused. She was pushed and taken down side in the bushes and was sexually assaulted. In the meantime, Ram Dass came in search of the victim and found the bucket of victim lying on the path. At some distance Chappal of the victim was also lying. After going little ahead, Ram Dass (PW-1) noticed that accused was holding victim and after seeing Ram Dass, the accused ran away. However, it was divulged by the victim to Ram Dass that she has been sexually assaulted by the accused/respondent. After investigation and medical examination, accused was charged for the aforesaid offence.

In order to prove its case, prosecution examined as many as 11 prosecution witnesses, whereas, the defence has adduced 3 witnesses. Accused in his statement recorded u/s 313 of the Code of Criminal Procedure, denied the prosecution case.

PW-1 Sh. Ram Dass has stated that victim is his sister-in-law and his house is situated in village Kufri Balh, and the victim had been living with him for the last 5-6 years and had been studying in 7th standard at the time of occurrence. As stated by PW-1, victim was of 14-14-1/2 years of the age at the time of incident. On 6.11.2001, at about 7-7:15 A.M., the victim had gone to fetch water from the public tap at about 200-300 feet by main path and when for 15-20 minutes she did not return back, PW-1 called her, but got no response. Then, PW-1 went to search her. On the way, he noticed water bucket kept on the path and at about a distance of 50 feet from the bucket, Chappal of the victim was also lying. After going little ahead, accused was noticed holding victim and on seeing PW-1, accused ran away. On inquiry, PW-1 came to know that accused had dragged the victim, from the place (where the bucket was kept) forcibly to the place of occurrence and she was sexually assaulted. As stated by PW-1, victim was taken to her home, she took bath and changed the clothes and then went to the Police Station with him for lodging the report. In cross-examination, PW-1 has stated that distance between water tape and main road is 100 meters. Fields were vacant on the date of incident.

PW-2 (victim, name not given) stated that Ram Dass (PW-1) is her brother-in-law (Jija) with whom she had been living for the last 8-9 years. She was 14 years of age as her date of birth was 1987. On 6.11.2001, at about 7:00 A.M., she went to fetch water from the water tap and was returning home with water bucket, accused caught hold her and forcibly took her towards down side in the bushes and committed rape upon her. While she was being sexually assaulted her brother-in-law (PW-1) was calling her and on hearing the voice, accused got up and left the spot. PW-1 came to the spot and took the victim to home and on making inquiry, PW-2 narrated the incident to him. Thereafter, PW-2 took bath and changed the clothes and went to the Police Station and lodged the report Ex.PA and thereafter she was taken to hospital for medical examination. PW-2 has further stated in cross examination that from the Taur tree, a path goes to the main road and the same path goes to village Tarnoh and there are 100-150 houses in village Taroh. PW-2 has further stated in her cross examination that accused had taken her to a distance of 300 feet from the Taur tree by dragging her up to the place of occurrence, where there were bushes and stones in the path and through such path accused had taken her to the spot of occurrence and had committed sexual assault on the path itself. Her brother-in-law (PW-1) had been calling her for about half an hour. As stated by PW-2 in cross-examination that PW-1 had called her from the house as well as from the Taur tree and if any one calls from main road, it could be heard in the house of her brother-in-law (PW-1). PW-2 has very categorically stated in cross-examination that her body was not dragged but her feet were dragged up to the place of occurrence. The entire path in between was full of bushes from both sides and passage was quite narrow and accused had been holding her from one hand and had been dragging her to the place of occurrence. The bushes were thorny. PW-2 further stated that even in normal walk, the bushes touch the body. As stated by PW-2 that she remained at the place of occurrence for about 25 minutes, where accused had made her to lie on a stony surface. The spot of occurrence was quite stony and uneven. She tried to save herself. PW-2 further stated that both (she herself and PW-1) left their house for Mandi at about 9.00 A.M. and did not tell about the occurrence to anyone in the village, not even to scooter owner.

PW-3, Sh. Bhadar Singh, father of the victim, has stated that at the time of occurrence, victim was 14 years of age. PW-3 came to know about the occurrence about 5-6 days later, as such, the testimony of PW-3 is not leading to any consequences.

PW-4, Dr. J.N. Chauhan, conducted medical examination of accused and found him capable of performing sexual intercourse.

PW-5, Sh. Tulsi Ram, being a member of Pachayat of the village, knew the date of birth of victim. PW-5 remained Ward Panch from 1992 to 1994, however, when victim was born, he was not a member of the Panchayat, however, her date of birth was got recorded by him.

PW-6 Subhash Chand, Panchayat Secretary, brought the Births and Deaths Register and also the Pariwar register. As per the births and deaths register, victim was born on 5.2.1987. As per report of Tulsi Ram, he had issued birth certificate Ex.PH. The true extract of the register is Ex.PG. Such register was closed in May, 1987, because its proforma was changed, in which a girl was shown to have been born in the house of Bhadar Singh on 5.2.1984 and her birth entry was made by Chowkidar Katuku and before that in the year 1981 another daughter was born to Bhadar Singh. PW-6 has also presented Pariwar register in which birth of Kanta Devi is shown as 8.10.1981 and death on 29.5.1984. As per entry in the register, Chanchala Devi was recorded to have been born on 5.2.1984 and then by cutting, name of Deepa was added, the extract of which is Ex.PH/1. PW-6 has further stated in his cross-examination that he was not aware as to who have made such cuttings and entries etc.

PW-7, Sh. Nand Lal, PW-8 Constable Naganu Ram, PW-9 S.I./S.H.O. K.D. Sharma have made endeavoured to support the prosecution case in their official capacity to the extent the role assigned to them.

PW-10, Dr. P.K. Soni, assessed the radiological age of the victim between 14 to 15 years. PW-11, Dr. Anita Puri, while conducting medical examination of victim, has observed that there was no dead or alive spermatozoa and on medical examination opined that there was no sign of rape as hymen was old torn. PW-11 opined that the victim was already exposed to coitus. PW-11 has also opined in cross-examination that if a person is dragged to a distance of 200 to 300 feet, on a stony surface or through thorny bushes, abrasions of similar injuries might be there, but these type of injuries were not present on the person of the victim. PW-11 has further opined in cross-examination that if the victim is subjected to forcible rape on some hard stony surface, the injuries on her body were possible.

DW-1, Sh. Mast Ram, has stated that there are about 100-150 houses in village Tarnoh. There is a common path and all residents of that village use such path for boarding buses to Mandi. However, DW-1 has stated that on the fateful day, he was in the village. However, while manuring his fields on the fateful day, he did not hear anything in the morning till the arrival of police, irrespective of the fact that he remained there for the whole day.

DW-2, Smt. Mamta, claimed that her house is about 25 yards from the water source, where a cow shed of Mast Ram was there near the house of Ram Dass. She was in her house throughout the day, however, not heard of committing of rape with victim by the accused.

DW-3, Chet Ram, has stated that his house is at a distance of 1 K.M. from the house of Ram Dass and his house is 100 meters from the house of the accused. DW-3 has also ascertained that he had not heard anything about the incident.

On analysis of prosecution witnesses and the material on record and as per the opinion of medical expert, namely Dr. Anita Puri (PW-11), it appears that no sign of rape was evident on the person of the victim. Contrary to the assertions of PW-2 that she was dragged upon about 300 feet from the place, where bucket was lying, to the place of occurrence, even then there was no sign of any injury by bushes or by stones or by dragging. As per testimony of PW-2, PW-1 had been calling her for half an hour, but it cannot be believed that when the voice raised from the house of PW-1 could be heard by others, why the other villagers had not heard the voice of PW-1 or PW-2 and it also does not appear probable that the victim remained in the company of accused for about 25 minutes during sexual assault. PW-3, father of the victim had not heard about the incident on the same day and came to know about the incident after 5-6 days of the occurrence. As per testimony of PW-2, after hearing the voice of PW-1, accused ran away from the spot, whereas, as per testimony of PW-1, when he reached the spot, at that time accused was holding the victim and on seeing him, he ran away. Ex.PH indicates the date of birth of victim as 5.2.1987. However, Ex.PJ shows different date of birth i.e. 5.2.1984 and the name is shown as Diya, daughter of Bhadar Singh and cutting is also apparently visible on Ex.PH/1. On Ex.PJ, Diya has been shown as daughter of Bhadar Singh born on 5.2.1984, however, 84 has been interpolated and has been shown as 87. The records do not reveal the certainty that the date of birth of victim was 5.2.1987. Doubt is created by Ex.PJ indicating that date of birth of victim could be 5.2.1984. Certainly, on the date of incident, the victim was not below 16 years of age.

In view of the testimony of PW-2, made in cross examination, there are 100 to 150 houses in village Tarnoh and she was being dragged in the morning at about 7:00 A.M. by the accused and was dragged up to 300 feet on stony and uneven surface and thorny bushes, she had not come across of any injury on her person and body. In view of the testimony of PW-11, there were no sign of sexual assault and there was no sign of injury of any kind on the body of victim against the claim of PW-2 having been dragged between 200-300 feet. In view of the testimonies of DW-1, DW-2 and DW-3, despite their presence in the village on the whole day, they did not hear anything about the sexual assault on the victim.

We have gone through the contents of the record and have also gone through the prosecution witnesses, we find sufficient, improbabilities, inconsistencies and discrepancies. Keeping in view the contradictions emanating from the testimony of PW-2, we are of the considered view that the testimony of PW-2 is not inspiring confidence. In all probabilities, she was not below 16 years of age and keeping in view the testimony of PW-1, it appears that no sexual assault was made upon her.

In these circumstances, the acquittal and findings arrived at by Learned Sessions Judge, Mandi in the impugned judgment, needs no interference. In our considered view, prosecution has failed to bring home the guilt of the accused, as such, the criminal appeal, being devoid of any merit, is dismissed. Bail bonds, furnished by the respondent, are hereby discharged.