State of H.P. vs Naresh Guleria and Another

R.B. Misra, J.—The present criminal appeal has come up for consideration after granting of leave to appeal u/s 378(3) Code of Criminal Procedure in reference to judgment dated 26.6.1999 in Sessions Case No. 45-D/VII/98 passed by learned Sessions Judge, Kangra at Dharamshala(H.P.) acquitting the accused for offences under Sections 376 and 294 of Indian Penal Code in reference to FIR No. 30, dated 28.1.1998.

As per the prosecution story, PW-4 (victim prosecutrix name not given) daughter of PW-5, a student of plus one of Government Senior Secondary School, was alleged to have been sexually assaulted by accused. The accused were charged for the offences punishable under Sections 376 and 294 of IPC in reference to FIR No. 30 dated 28.1.1998 and the case was committed to the court of Sessions.

In order to prove its case, the prosecutions examined as many as 16 prosecutions witnesses, whereas the accused through their statement recorded u/s 313 Code of Criminal Procedure denied the prosecution case and pleaded their innocence.

The prosecution examined PW-1 Dr. Indu Kaushal, PW-2, Dr. Alok Singh, PW-3 Dr. R.K. Mahajan, PW-4 Miss Archna Rongta, PW-5 Raj Kumar, PW-6 Kishan Chand, PW-7 Ranbir Singh, PW-8 Nirmal Kumar, PW-9 Pankaj Puri, PW-10 Ranjana, PW-11 Prem Chand, PW-12 Anjna, PW-13 Atul Kumar, PW-14 Chamaru Ram, PW-15 Kishan Chand and PW16 Krishan Lal.

As per testimony of PW-4, (victim prosecutrix) her father was working as Senior Assistant in Education Board, Dharamshala and at the relevant time was residing at Jawahar Nagar and was studying in plus one. On 26.1.1998, she went to school to participate in Republic Day Parade function and reached there at about 9.00 am where she met Ranjna PW-10 her class mate who told PW-4 that they will not attend function and will go to Kangra. Accordingly, they both went to Kangra and Ranjna gave card to somebody, who was known to her. Thereafter, PW-10(Ranjna) told PW-4 that she wanted to visit her maternal grand mother at Malan and they boarded the bus for Nagrota Bagwan. At Nagrota Bagwan bus stand some persons already known to PW-10 Ranjna met her and one of them was Deepak Thakur(accused) who started misbehaving with PW-4. PW-4 boarded the bus followed by Ranjna and Deepak Thakur one Pankaj Puri(PW-9) also boarded the bus. Deepak Thakur accused had been passing indecent remarks in the bus but PW-4 did not say anything and she alongwith Ranjna got down from the bus at Chamunda. Ranjna (PW-10) told Deepak Thakur accused and others not to pass indecent remarks otherwise they will be in trouble. Ranjna and Deepak Thakur(accused) stated that since it has become late, a vehicle should be arranged for which Ranjna (PW-10) will pay the fare. Accordingly, a jeep was arranged and PW-4 alongwith some other persons, who were not known to her, boarded the jeep and went to Sakoh, where Ranjna got down and told that if they go together then they will be beaten up by their parents, however, Ranjna went to the house of her maternal aunt. PW-4 got down from the Jeep at Pingal Nallah near ''Shivji'' temple. Pankaj Puri and others went in that jeep towards Dharamshala.

Victim started towards her house and while passing through Handicap School, she came across accused Naresh Guleria, Sham Baloria, Parmar Mahajan and one more person whom she did not know, stopped her path. Naresh Guleria stated that here comes the daughter of ''boardwala'' and he will teach her a lesson. Naresh Guleria also stated that if she can go with other persons, why she cannot go with him, since he had seen her alighting from the jeep. PW-4 told him that he has no business and she can go with anybody whom she likes. On this, Naresh Guleria caught hold of PW-4 from her hands. At that time, Sham Baloria also caught hold of PW-4 and Naresh Guleria stated that if she will raise an alarm, they will proclaim that she was going with them out of her own will. Thereafter, PW-4 was taken by Naresh Guleria and Sham Baloria to a building which was under construction below the Government College and other persons namely Parmar Mahajan and another unknown person left the place. Sham Baloria asked Naresh Guleria to leave PW-4, but Naresh Guleria proclaimed that he will not spare PW-4. Naresh Guleria made PW-4 to sit and started threatening her, despite request of PW-4 to let her go to her house Naresh Guleria committed rape on PW-4 and 5 threatened her that if she will tell anybody she would be killed. In view of testimony of PW-4, her private part started bleeding. At that time Sham Baloria kept on standing nearby and Naresh Guleria was threatening her for a quite long time and he left that place accompanied by Sham Baloria. PW-4 tired to get up from that place but she could not get up. PW-4 then came to Civil Bazar at about 4.00 am. Being perplexed, whether to go to her house or not then she came to Chamunda. There one Navrattan Katoch met her to whom she did not narrate anything and could not decide where to go and then went to the house of one girl named Chhaya. PW-4 took meals there and also took her clothes for wearing. PW-4 remained in the house of Chhaya for quite a long time and from there PW-4 came to Dharamshala. When she reached near the office of Education Board, there she came to know that her father and police are searching for her. When she went near the house she found police personnel and many other persons present there and PW-4 entered her house at 8.30/9.00 pm. On seeing the condition, the father of PW-4 told her mother that nothing should be asked from her and they will ask her in the morning. Thereafter PW-4 slept and on the next morning PW-4 told the entire occurrence to her parents. Thereafter she was taken to the police station and report Ext.PG was lodged. Police visited the spot and collected the blood stains from the cemented floor by scratching and some hairs which were lying there and took into possession the Salwar of PW-4 and put seal impression ''T''.

In cross-examination, PW-4 has stated that she has not taken any other dress apart from the school dress, which she was wearing and changed the clothes at Sakoh school which were changed prior to the occurrence and had worn the clothes of Ranjna at Sakoh, which clothes were being carried by Ranjna and this aspect was told to the police that PW-4 changed the clothes belonged to Ranjna at Sakoh and Ranjna(PW-10) stated that if they will go in their school dress they will be caught. PW-4 in cross-examination has stated that Ranjna remained with Navrattan at Nagrota for half an hour in a shop and PW-4 kept on waiting outside. PW-4 did not ask Ranjna as to why she was going alone with Navrattan, since Ranjna told PW-4 that she wanted to talk with that boy in privacy. PW-4 has admitted that she was introduced to Navrattan by Ranjna (PW-10) since she was not knowing him earlier and Ranjna and Navrattan had tea in Sweet shop but PW-4 did not take tea with them. PW-4 has further stated in cross-examination that neither she was knowing Pankaj Puri nor was she introduced to him but had heard the name of Pankaj Puri at Nagrota Bus stand and learnt from Ranjna that Pankaj Puri was the son of big contractor. PW-4 had admitted in cross-examination that Pankaj Puri had arranged the vehicle and paid for it at the instance of Ranjna and Pankaj Puri (PW-9) came with PW-4 in that jeep up to Pingal Nallah from Sakoh, when Ranjna got down at Sakoh and it took nearly five minutes in the jeep from Sakoh to Pingal Nallah where PW-4 got down and at that place told Pankaj Puri to go back since her house was nearby and was scared from her father. PW-4 has further stated in cross-examination that there are 4-5 houses on both side at Handicap school but there is no house thereafter on that path. As per the statement of PW-4 in cross- examination, it may have taken only 2 or 3 minutes when she resisted and accused caught hold of her and she was forcibly taken to the building under construction by Naresh Guleria and Sham Beloria when they had caught her from her hand. PW-4 has further stated that there is a distance of one or one and half kilometers from handicap school to the building under construction where she was taken. She raised an alarm only once when she was being forcibly taken to the building under construction. Further stated that she raised the alarm for 2 or 3 minutes, however, denied the suggestion that there were shops and houses near the said building. PW- 4 further admitted in cross-examination that there was no roof in the room under construction, where she was taken and she got down at about 8.30 pm from the jeep near handicap school and was not able to say about the time which was taken from handicap school to that building but according PW-4 it might have taken about one or two hours. PW-4 has further stated in cross-examination that she did not tell the police in her statement as to how many hours she remained in the building which was under construction and further stated that she struggled a lot and resisted the rape committed by accused Neeraj Guleria and she struggled for 2 or 3 hours from handicap school to the building under construction to save herself.

PW-1 Dr. Indu Kaushal, Medical Officer, Zonal Hospital, Dharamshala examined PW-4 on 29.1.1998 at 10.30 am. On examination no marks of injury on the body i.e. face, scalp. Breast, chest, back of chest, abdomen, limbs, back and perineum was noticed and PW-1 opined that there is nothing to suggest that rape has not been done. Subsequently, PW-1 opined that the prosecutrix might be habitual to sexual intercourse but not quite often.

PW-2 Dr. Alok Singh Thappa, Medical Officer, Zonal Hospital Dharamshala has examined Naresh Guleria and found him capable of sexual intercourse.

PW-3 Dr. R.K. Mahajan also examined PW-4(victim prosecutrix) and had taken seven X-rays Ext.PE/1 to PE/7 for determination of the age of PW-4 and opined that the age of the prosecutrix may be in between 17 to 19 years.

PW-5 Raj Kumar, father of PW-4(victim prosecutrix) in his endeavuor to support the prosecution case has stated that when he started searching for his daughter then he came to know that his daughter might have gone to the house of PW-10 Ranjna and on visiting the place of Ranjna she did not ascertain the whereabouts, thereafter, the police report was lodged. However, PW-4 came back on 27th January at about 10.00 pm in disturbed condition and was weeping and as such PW-5 and his wife decided not to ask from her anything and food was given to PW-4 and she slept. On the next morning PW-4 told PW-5 that Naresh Guleria had committed rape with her. Thereafter at about 5.00 pm PW-5 alongwith the police, Archna, Krishan Ram went to the spot from where blood stains by scratching the cemented place was taken into possession.

In cross-examination PW-5 has stated that he was told by his younger daughter that the victim(PW-4) had gone with Ranjna whereas, PW-5 had lodged a report about the mission of his daughter. PW-5 further stated that he called Ranjna to his house on 26th January, 1998 itself and Ranjna told that the victim has never accompanied her. As per testimony of PW-5 initially when he made inquiries from Ranjna she was avoiding to answer any question and further told that the victim might have gone at Malan or Nagrota.

PW-6 Krishan Chand has witnessed the recovery of underwear of Naresh Guleria, which was taken into possession vide recovery Memo Ext. PL. PW-9 Pankaj Puri is running a STD booth at Malan and was known to PW-10 Ranjna. PW-9 has stated that Ranjna and the victim met him in a bus bound for Chamunda, where they had tea and as the bus was not available, Ranjna requested him to arrange a taxi and that she will pay the fair lateron. Accordingly a jeep was arranged and they all came upto Sakoh where Ranjna got down and she asked the victim to get down at some distance and she got down at Pingal Nallah and they went towards Dharamshala.

PW-10 Ranjna has stated that she had gone with the victim to Kangra, where she gave a card to some person, then they went to Nagrota Bagwan, she met one Navrattan, had tea with him. They boarded the bus, Deepak Thakur who had been passing remarks, also boarded the bus and they got down at Chamunda. PW-10 requested Pankaj Puri to arrange for the jeep and they came to Sakoh, where PW-10 got down from the jeep and asked the victim to get down from the taxi near her residence. On the next day the victim father came to her house to enquire from her about his daughter (PW-4).

PW-13 MHC Atul Kumar had stated that three parcels were deposited with him by ASI Krishan Lal on 28.1.1998 in sealed condition and on 29.1.1998 LHC Anjna(PW-12) also deposited with him two sealed packet.

On analysis of the prosecution evidence and material particulars on record, we notice that though there were houses near the place of occurrence, but no alarm was raised by the prosecutrix for getting protection and since she was forcibly taken for a distance of more than one kilometer for 2 or 3 hours. She had sufficient time to raise alarm and make hue and cry. It cannot be believed that young girl is being forcibly taken by accused persons she would not call for assistance from nearby houses or would allow her to be taken easily without having suffered any injury on her person. We have also noted that there is a delay in lodging the FIR, as such, the prosecution case in the facts and circumstances becomes doubtful and an afterthought. On medical examination by PW-1 no mark of injury was noticed on the person of PW-4(victim prosecutrix) and from the opinion of PW-1 it could not be ascertained that she was sexually assaulted. The occurrence is said to have taken place on 26th January, 1998 and at that time PW-4(victim prosecutrix) was aged between 17 to 19 years. As such, the prosecutrix in any case was above 16 years and in present case it appears she was a consenting party, then it cannot be said that the accused is liable for the offence u/s 376 IPC. From the perusal of evidence and testimony of prosecution witnesses, we notice, some contradiction in the statements of PW-4 and PW-10 in view of testimony of PW-4 and PW-10. It is not clear as to whether said Navrattan was already known to PW-4(victim prosecutrix) or as to whether PW-4(victim prosecutrix) took tea with him and Ranjna kept sitting outside or Ranjna took tea and PW-4 went inside the shop and had tea with him. In view of testimony of PW-4(victim prosecutrix) she was friendly with Navrattan. There is also contradiction as to whether the clothes were already brought by Ranjna(PW-10) and the girls changed the school uniform into a normal wearing at Sakoh.

PW-4 and Ranjna had gone at their own by skipping the Republic day parade for having fun outside or for moving in the area. It is very surprising when Deepak Thakur had been making indecent remarks to PW-4 in the bus, still the girl accompanied all those persons, boarded a jeep, hired by Pankaj Puri and then all came to Sakoh, whereas Ranjna(PW-10) got down and at some distance from that place but, PW-4 got down at Pingal Nallah. It is also evident from the testimony of PW-10 that they had taken tea together at Chamunda bus stand. This behaviour of the girls look some how unnatural when one of the boys had been misbehaving with the friend of Ranjna(PW-10), but still both these girls agreed to go in a taxi alongwith that boy and other boys for returning back to their home. In cross- examination PW-4 has stated that there are 4 or 5 houses on both sides near handicap school but stated that there is no house thereafter on that path. PW-4 has admitted in her cross-examination that there is a distance of 1 of 1 1/2 Kms from handicap school to the building under construction, where she was taken. She raised an alarm only once when she was being forcibly taken to the building under construction. She further stated that she raised alarm for 2 or 3 minutes when accused caught hold of her. PW-4 also stated that she had got down from the jeep near handicap school at about 8.30 pm. She did not remember the time taken from handicap school to that building, but it could be about 1 or 2 hours. PW-4 has further stated that she struggled for 2 or 3 hours from handicap school to the building under construction to save herself but surprisingly she did not receive any injury. There are residential houses right from the handicap school upto some distance and there are several houses on both sides as have been detailed in the inspection note. After covering a distance of few yards where there are houses on both sides, then there is an open place and there is no other house. It is difficult to believe as per the testimony of PW-4 that she struggled for 2 or 3 hours and in case she had raised sufficient alarm to save herself, she could have easily attracted the persons from the near by area, between 8.00 or 8.30 pm in winter days and it is surprising that during such a long struggle the victim did not receive any injury.

In view of testimony of PW-4, after having been sexually assaulted, her private part started bleeding. However, no such aspect was noticed by DW-1 (Dr. Indu Kaushal), in medical examination of the victim/prosecutrix. It is also every surprising that when one Navrattan Katoch met the victim/prosecutrix after the incident in question, she neither narrated him nor she disclosed about the incident to her friend, namely, Chhaya, with whom she remained at her house for a long time, however, for the reasons best known she also did not narrate her about the said incident. From the testimony of PW-4 it is also noted that she raised alarm for 2 or 3 minutes. Thereafter, she has not stated in her statement that her mouth was gagged by either of the accused and that she could not cry or raise an alarm or she was forcibly taken on the shoulder by any one of the accused or that she became unconscious and as such, could not raise an alarm. It appears from the testimony of PW-4 that she was a matured girl above 17 years and when being taken forcibly by two accused persons and the only act attributed to them is that they had caught hold of her and no other act is attributed to them, but she did not raise sufficient alarm; did not try to call the persons from the nearby area during the period of 2 or 3 hours taken to reach the place of occurrence. It is very strange to note that what prevented the girl from escaping and making endeavour for freeing herself from the clutches of the accused. There is nothing to suggest that she made an attempt to free herself from the clutches of the accused. No mark of injury was found on medical examination on any part of the body of the victim. PW-5 father of the victim also did not lodge the report on 27.1.1998 itself and lodged the same at a belated stage for which proper explanation has also not been given.

The sole testimony of victim (PW-4) is not inspiring confidence in the facts and circumstances more so for lack of non corroboration of other prosecution witness. The testimony of PW-4 is suffering from contradictions inconsistencies and improbabilities.

On analysis of the prosecution witnesses and material on record, we are of the considered view that the learned Sessions Judge has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubt. Therefore, the criminal appeal, being devoid of any merit, is accordingly dismissed.

The bail bonds, furnished by the accused/Respondents are discharged.