State of Himachal Pradesh vs Shashi Kumar @ Shashi Pal

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 28.3.2005, passed in Sessions trial No. 28/2004, by learned Sessions Judge, Kangra, acquitting the respondent/accused for the offence punishable u/s 376 of the Indian Penal Code in reference to FIR No. 234 of 2003, dated 1.7.2003. The prosecution case, in brief, is that the victim/prosecutrix (name not given) was studying in Government Senior Secondary School, Banuri in 10+1 class. On 1st July, 2003, at 2.00 P.M. she was returning from school to her house with Reenu and Meenu, who took different route. While the victim reached a Nallah near her house at 2.30 P.M., the accused after meeting her there immediately gagged her mouth and dragged her to nearby bushes and sexually assaulted her. The victim with great difficulty reached her house, where she narrated the incident to her mother Satya Devi. The matter was reported to ward panch Malkan Devi, thereafter, the prosecutrix, her mother and Malkan Devi went to the police station and lodged FIR. The victim/prosecutrix was medically examined by PW-1, Dr. Sushma Sood and issued MLC Ex. PW-1/B and X-ray was also conducted to ascertain her skeletal age vide form Ex. Pw-1/C. After chemical examination and its report, accused/respondent was charged for the aforesaid offences.

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

PW-1, Dr. Sushma Sood while posted as Medical Officer at Civil Hospital, Palampur conducted the medical examination of victim in reference to application Ex. PW0-1/A dated 1.7.2003, where age of the victim was found 16 years. PW-1 on medical examination found no mark of injury on face, breast, legs or arms of the victim. PW-1 noticed some grass and mud on the shirt and the victim was wearing white salwar, which had no blood stains. PW-1 also noticed no tenderness or swelling at vulva. She also noticed that there were no blood stain and hymen was found intact. On examination, PW-1 found that tip of finger was not easily passing. Little finger tip passed with experiencing pain. PW-1 issued MLC Ex. PW-1/B and on receipt of chemical examiner report, she opined that attempt to rape cannot be ruled out. In cross-examination, PW-1 has stated that there was no mark of violence present on the person of the victim. PW-1 further stated that there is less possibility of sexual intercourse in the case in question.

PW-2, Dr. Arvind Bhan, conducted X-Ray for determination of skeletal age of the victim, which is Ex. PW-2/A to Ex. PW-2/E. He assessed the skeletal age of the victim above 17 years and below 19 years.

PW-3, victim/prosecutrix in support of prosecution case has stated that on 1.7.2003, she was returning home with her girl friends, namely, Reenu and Meenu. At Vand-Vihar, these girls went to their house and she proceeded to her house. Hardly after a distance of five minutes'' walk, when she reached the Nullah, accused met her and gagged her mouth with her dupatta and dragged her to the bushes and pushed her into a big pit and sexually assaulted her. She deposed that she came to her house with great difficulty. PW-3 deposed that she reported the whole incident to her mother, when the later asked the victim the cause of her weeping. Thereafter her mother and maternal uncle took the victim to the house of ward-panch, Smt. Malkan Devi and narrated the incident to her and thereafter the matter was reported to the police. FIR Ex. PW-3/A was recorded. PW-3 (victim) in cross-examination has stated that the house of Bir Singh and Babita is visible from the Nullah, however, self stated that there was none at that time in those houses. PW-3 has stated that house of Sh. Chain Singh and Sharmila is between 50-100 yards from the Nullah and the house of Mast Ram, Prem Chand and Atma Ram are across the Nullah, but they are not visible from the Nullah. PW-3 has also stated in cross-examination that she did not sustain any injuries due to the push, because the leaves had been placed there by the accused. According to PW-3, police also had seen the leaves, but they were not taken it into possession. PW-3 has very categorically stated in cross-examination that when accused opened her salwar, removed his payjama and underwear and tried to sexually assault her, she resisted and the accused could not perform the act. PW-3 further stated that she did not resist the accused because the pit was narrow and there was no space to move out. PW-3 has further stated that the accused has raped her, which means that the accused had penetrated his penis in her vagina. PW-3 has stated that the house of her maternal uncle is about 15-20 yards from her house and her maternal grand-mother and mousi were at their house at that time, but they were sleeping due to summers and her maternal grand-mother was also not well, as such PW-3 disclosed the incident first of all to her mother only.

PW-4, Dr. K.R. Ahluwalia, medically examined the accused and opined that there is nothing to suggest that the accused is incapable of performing sexual intercourse. In cross-examination, PW-4 has stated that he had not collected semen sample of the accused. PW-4 further stated that without chemical examination of semen of a person, stains of semen on any cloth cannot be linked to that person. PW-4 has mentioned in the MLC about absence of smegma, which means that there is possibility of sexual intercourse having been done. As per opinion of PW-4, absence of smegma can be due to masturbation or night fall also, therefore, it is not necessary that the accused have committed sexual intercourse.

PW-5, Smt. Satya Devi, mother of the prosecutrix has made endeavour to support the prosecution case and has stated that on 1.7.2003 when she reached home at about 3.00 P.M., she noticed that victim was weeping and on enquiry she told her that when she was returning from school and reached near the Nullah, the accused came there and gagged her mouth with dupatta and took her to bushes, where there was a pit. She was thrown into the pit and then accused removed her salwar and also removed his payjama and underwear and committed rape upon her. On inquiry made by PW-5 from the victim that why she did not oppose the accused, victim/proscutrix told her that the accused had fixed her in the pit in such a manner that she could not move out. The accused thereafter ran away and victim got up with great difficulty and came home. PW-5 further deposed that then she informed her brother Raj Kumar, (who is maternal uncle of PW-3) who took PW-3 and PW-5 to the house of ward panch Smt. Malkan Devi. The incident was narrated to ward panch and Smt. Malkan Devi accompanied them to their house and thereafter took PW-5, Raj Kumar and PW-3 to the Police Station, Palampur, where the victim and PW-5 lodged FIR Ex. PW-3/A, which was signed by PW-3 (victim) and PW-5. PW-5 stated that the victim was medically examined by the police at Civil Hospital, Palampur at that time victim was wearing school dress. As per testimony of PW-5, made in cross-examination, she failed to give any definite date of birth of the victim. PW-5 has further stated in her cross-examination that when she inquired from the victim, then PW-3 told her that while the accused tried to commit sexual intercourse with her, she protested against it, due to which the accused failed to commit sexual intercourse. PW-5 has further stated that she does not know that Ravinder son of Mast Ram was also studying at Banuri at that time. PW-5 stated that the daughter and son of Sharmila were also studying at Banuri, but in private school. PW-5 stated that houses of Sharmila and Chain Singh are at a distance of about 25-30 yards from the Nullah and one has to cross the Nullah while going to the house of Chain Singh. The land of Sharmila is abutting the Nullah. PW-5 stated that Sharmila is having cattle, like cow, sheep, cock and hen etc. and her cowshed is near her house.

PW-6, H.C. Rajinder Singh, PW-7, Mast Ram, PW-8 constable Parkash Chand, PW-9 S.I. Purshottam Chand, PW-10, S.I. Joginder Singh and PW-11, S.I. Mastan Singh have made endeavour to support the prosecution case in their official capacity to the extent the role assigned to them, however, nothing concrete is emanating from their testimonies.

After going through the contents of the medical report, we notice that a doubt is created about sexual assault. In view of the testimony of PW-1, Dr. Sushma Sood, she noticed no mark of injury on face, breasts, legs or arms. Private parts of the victim were not indicating any sexual assault. From the testimony of PW-3, it appears that she was dragged to the bushes and was pushed into a big pit and was sexually assaulted. However, in cross-examination, she stated that she did not give resistance to the accused, because the pit was narrow and there was no space to move out. The testimony of PW-3/(victim) made in examination in chief about the size of pit is contrary to what she has divulged in cross-examination. As per testimony of PW-3, she was pushed into a big pit, whereas, in cross-examination, she deposed that she could not give resistance to the accused, because the pit was narrow and there was no space to move out. There was no mark of any injury or any thorn or any mark of leaves on the clothes of the victim. Contrary to it, on medical examination, PW-1 has only noticed some grass and mud on the clothes of victim/prosecutrix. PW-3 has very emphatically told to her mother that because of resistance given by her to the accused, sexual assault could not be made, contrary to the assertions of PW-3 she was dragged, pushed and thrown in a big pit and was sexually assaulted.

On the analysis of prosecution witnesses, it appears that the testimony of PW-3 (victim) is not inspiring confidence. On analysis of prosecution witnesses and material on record and medical evidence, learned Sessions Judge has rightly arrived at the finding that the prosecution has failed to prove its case against the accused beyond reasonable doubt. In our considered view, there is no scope of interference in the judgment of learned Sessions Judge, as such, the criminal appeal, being devoid of any merit, is dismissed. Bail bonds, furnished by the respondent, are hereby discharged.