High Court of H.P. 1

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No.: 327 of 2007

Reserved on: 05.07.2016

Date of Decision: 11.07.2016

______________________________________________________________________

State of Himachal Pradesh …..Appellant.

Vs.

Giri Raj alias Denny and other s …..Respondents.

Coram:

The Hon’ble Mr. Justice Rajiv Sharma, Judge

The Hon’ble Mr. Justice Ajay Mohan Goel, Judge

Whether approved for reporting?

1 Yes.

For the appellant: Mr. V.S. Chauhan, Addl. A.G., with Mr.

Vikram Thakur and Mr. Puneet Rajta,

Dy. A.Gs.

For the respondents: Respondents No. 1 and 2 are proclaimed

offenders.

Mr. Naresh Kaul, Advocate, for

respondent No. 3.

Ajay Mohan Goel, J. :

By way of the present appeal, State has challenged the

judgment passed by the Court of learned Additional Sessions Judge (1),

Kangra at Dharamshala in Sessions Case No. 58 -N/2005 dated

24.05.2007 vide which, learned trial Court acquitted the accused for

offence punishable under Section 376 (g) of the Indian Penal Code. Before

proceeding further, it is pertinent to take note of the fact that there are

three respondents in the present appeal and respondents No. 1 and 2

Whether the reporters of the local papers may be allowed to see the Judgment?

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have been declared as proclaimed offenders by t his Court vide order

dated 26.02.2013. Accordingly, the present appeal is being heard qua

respondents No. 3 Chhinder alias Chhindu.

2. Briefly, the case of the prosecution is that prosecutrix is

suffering from mental disorder and on 31.05.2005, complain ant Nek

Mohammad and one Kalu Ram were on duty as Chowkidars from 8 p.m.

till 5 a.m. At about 12:30 a.m. during the intervening night of

31.05.2005/01.06.2005, the said persons were performing their

patrolling duty at Gandhi Bazaar. One Shri Bishamber, R/o Raja Ka

Talab called the complainant and informed that there was a lady crying

from the side of tank. The complainant and Kalu Ram went towards the

tank and they found the prosecutrix there with accused Gurmail alias

Fauji and Giri Raj alias Denny and one other boy who was wearing ear

rings. The said three persons were without their pants and under wears

and the moment the complainant and Kalu Ram threw torch light, the

boy who was wearing the ear ring ran away from the spot. However,

accused Gurmail alias Fauji was lying there as his arm was fractured.

The complainant and Kalu thereafter threw light inside the tank where

the prosecutrix was found. There was no water inside the tank. One

Dinesh alias Jatt went inside the tank and brought the prosecutrix out

from the tank. Prosecutrix informed them that she had been raped and

that her leg had been fractured. Complainant Nek Mohammad tied the

string knot of trouser of the prosecutrix and Dinesh alias Jatt had picked

up Gurmail alias Fauji, bundled him in his vehicle and took him away.

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Kalu Ram picked up the prosecutrix on his back and took her to Bus

Stand and then made her lie there on the bench. Thereafter, Kalu and the

complainant left to their houses. The family members of the prosecutrix

came to know about the said occurrence and on 02.06.2005 Hazari Ram,

father-in-law of the prosecutrix came to the house of the complainant and

made inquiries from him in this regard. Thereafter, he requested the

complainant to accompany him to the Police Station. FIR Ex. PW 12/A

was registered against the accused. The accused were arrested and the

accused as well as the prosecutrix were got medically examined. During

the course of investigation, one Chandni Guru Jassi Mahant, resident of

Raja Ka Talab produced one ring Ex. -PA before the police which was

taken into possession vide memo Ex. PW3/A. The said Chandni Guru

Jassi Mahant stated that this ring was that of accused Chhinder. After

completion of the investigation, police challaned the accused persons for

having committed offence punishable under Section 376(g) of the Indian

Penal Code. The challan was presented before the Court.

3. As a prima facie case was found against the accused,

accordingly they were charged for the commission of offence punishable

under Section 376(g) of the Indian Penal Code, to which they pleaded not

guilty and claimed to be tried.

4. In order to substantiate its case, the prosecution in all

examined 12 witnesses.

5. Dr. D.R. Riyal appeared as PW-1 and stated that in the year,

2005, he was po sted as Medical Officer in C.H. Nurpur and on

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06.06.2005, accused Chhinder was produced before him for conducting

his medical examination. On examination of Chhinder, vide M.L.C. Ex.

PW1/A, he opined that the said accused was found fit to perform sexual

intercourse.

6. Dr. Ashutosh appeared as PW -2 and stated that he had

conducted the medical examination of accused Giri Raj and Gurmail vide

MLCs. Ex. PW2/B and Ex. PW2/CV and as per his opinion, both of them

were capable of performing sexual intercourse.

7. Complainant Nek Mohammad stepped into the witness box

as PW-3 and stated that besides being an agriculturist, he was also

Panchayat Chowkidar for the last 35-40 years. He was the Watchman of

bazaar. He performed his duties as a Bazaar Watchman from 8 p.m. till 5

p.m. The other Chowlidar with him was Kalu Ram, who is resident of

Sukhar. He further deposed that on 31.05.2005, Kalu Ram was on duty

with him. At about 12:30 a.m. during night when they were on patrolling

duty at Gandhi Chowk/bazaar, one boy, s/o Master Bishamber, R/o Raja

Ka Talab called them and informed that some lady was crying from the

tank side. That boy also stated that he was checking electric tube light at

that time. He has further deposed that tank was about 6 meters from the

road in an orchard of mangoes. He and Kalu Ram went towards the tank

and with torch light they found one lady there alongwith accused Fauji

alias Gurmail, whose one hand was broken at the relevant time. Accused

Giri Raj alias Denny was also there and the third person present there

run away from the spot. PW-3 further deposed that he threw the torch

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light towards him, but he could not identify him. All that he could see

was that the third person was wearing an ear ring in his ear. All the three

persons were naked at that time. He has further deposed that he saw

accused Gurmail alias Fauji lying outside the tank and the lady was

inside the tank. With torch light he saw that the said lady inside the tank

was Savitri, who was mentally disturbed and quite often she was se en

roaming around in the bazaar for the last many years. There was no

water in the tank. He has further stated that no person by the name of

Jatt came there and he and Kalu took out that lady from the tank. The

trouser of the lady was tied by Kalu. The said witness was declared

hostile as he has resiled from his previous statement and the prosecution

was permitted to cross-examine him. In his cross -examination, he

admitted that on 02.06.2005, he, Hazari Ram, Savitri Devi and Pushpa

Devi went to the Police Station and lodged the FIR. He also admitted it to

be correct that after recording the FIR, police read over the same to him

and the contents thereof were admitted to be correct by him. He has

denied the suggestion that Dinesh Jatt, driver had come at the w ater

tank and that he had entered the water tank and tied the trouser of the

prosecutrix and took the lady out of the tank. He denied the suggestion

that on 07.06.2005, Chandni Guru Jassi had produced an ear ring of

accused Chhinder before the Police in his presence and that from ear ring

he had identified accused Chhinder on the night of occurrence was the

same person who run away from the spot. Thus, the said witness has

partially supported the case of the prosecution about the factum of

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accused Gurmail and Denny being there in the tank with the prosecutrix.

However, the remaining case of the prosecution has not been supported

by the said witness.

8. Hazari Ram, father-in-law of the prosecutrix has entered into

the witness box as PW-4. He has stated that Savitri Devi was mother of

four children. After she gave birth to her fourth child, she was taken to

hospital at Jawali for family planning operation and thereafter she lost

her mental balance. He also stated that she was not mentally fit for last

20 years and on account of this, she was found roaming around in the

bazaar and roads and some time, she also visited her house. She talks

irrelevant and she had fits. He has further deposed that on 02.06.2005,

he went to Raja Ka Talab for purchasing some household articles. There

one Subash, Pradhan told him that Nek Mohammad, Chowkidar had told

him that Savitri Devi had been raped during the intervening night of

31.05.2005 and 01.06.2005. On receipt of the said information, he

immediately went to the house of Nek Mohammad where Nek Mohammad

revealed everything to him about the occurrence of the event. Nek

Mohammad told him that two persons had committed rape with Savitri

Devi in a tank which was 6 feet deep. One of the rapists was disclosed by

him as Fauji and other was disclosed as Denny and third person had

been apprehended by the police itself. He also deposed that after arrest of

these three persons, in the Police Station they had disclosed in his

presence that they had raped Savitri Devi. He has further deposed that all

the accused persons were working in the house of Jassi.

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9. PW-5 Piara Ram has deposed that he had gone to Police

Station alongwith Puran Singh and remained associated with the police.

SHO had shown him ear ring, which was given to him by Ch andni Guru

Jassi Mahant and the same was sealed by SHO in a match box, which

was taken into possession vide memo Ex. PW3/A. He has further deposed

that the ear ring was identified by Nek Mohammad and thereafter he and

Puran Chand had signed the said memo.

10. Rakesh Kumar (PW -6) has stated that on 31.05.2005, a

Maha Yagya was conducted at the back of his house, which was to last

up to 08.06.2005. He was deputed by the villagers to keep an eye on this

function. He was checking the light in front of his gate. At that time, two

Watchmen were crossing from site. He told them that he had heard some

noise coming from a distance of about 100 meters. He has further

deposed that there were orchard, service station and shop towards the

side from where noise was coming. He further deposed that later on after

the arrival of the police, he came to know that some lady had been raped.

11. PW-7 Puspa Devi has stated that Savitri Devi was her

mother-in-law and she was mentally unstable for last many years. Savitri

used to come to the house and some time, she kept on wandering on the

roads. She has further deposed that she was told by her father-in-law

that her mother-in-law had been raped and he asked her to accompany

him to the Police Station. She further deposed that she, Hazari Ram and

her mother-in-law had gone to the Police Station.

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12. PW-8 HC Ramesh Chand is a formal witness, who has

deposed with regard to depositing of parcels containing the case property

with him in the Malkhana register as well as the sending of the said

parcels by him to FSL, Junga through Constable Sudershan Singh for

chemical analysis.

13. PW-9 Sudershan Singh has deposed that MHC Ramesh

Chand handed over five parcels and two envelopes which were deposited

by him at FSL, Junga vide R.C. No. 1 13/21 on 16.05.2005. On his

return, he handed over the RC to MHC.

14. PW-10 Chandani Guru Jassi Mahant has deposed that she

was residing in Raja Ka Talab for the last 15 years with her Guru Jassi

Mahant. Accused Chhinder is from her illaqua and he is just like her

brother. He was residing with her for the last 15/16 years. Chhinder goes

out with her to the houses of other person where ever function is

organized. They receive offerings in lieu of this. She has further deposed

that they wear ear rings on such occasions. She further deposed that

once her ear ring had fallen in the house of a person where they had gone

for getting something and the other ring was with her. She has denied the

suggestion that she had given one ear ring to accused Chhinder and that

he used to wear it.

15. PW-11 Dr. Nishu Priya has deposed that she was posted as

Medical Officer in Civil Hospital, Nurpur from March 2005. On

02.06.2005, she medically examined Savitri Devi and she issued MLC Ex.

PW11/A. She further deposed that as pe r her medical opinion, the

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prosecutrix was having third degree UV and was used to sexual

intercourse and after receipt of medical examination, the final opinion

had been given by her which is Ex. PW11/C and according to which,

there was no evidence of recent sexual intercourse.

16. Inspector Nathu Ram has deposed as PW -12 and he has

stated that FIR Ex. PW12/A was written by MHC as per the version of the

complainant and thereafter it was signed by him. He also deposed that he

moved an application Ex. PW11/ A for the medical examination of the

prosecutrix. He has also stated that he recorded the statements of the

witnesses as per their versions. He has further stated that report of

Chemical Examiner Ex. PX was received by him and thereafter he

prepared the challan and presented the same in the Court for trial. In his

cross-examination, he has stated that he had not moved any application

to the Medical Officer to know the mental state of the prosecutrix. He has

denied the suggestion Nek Mohammad was admitted in the hospital on

01.06.2005 and 32 bottles of glucose had been administered to him. He

has self stated that Nek Mohammad was admitted in the hospital on

02.06.2005 and discharged on 04.06.2005. He has admitted the

suggestion that he had gone to the house of Chandani Guru Jassi, but he

has denied that he had brought the ear ring from her house. He has

admitted it to be correct that identification parade of accused was not

conducted by him.

17. This is the entire evidence which was produced on record by

the prosecution in order to substantiate its case. Learned trial Court on

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the basis of the said material produced on record by the prosecution,

concluded that the prosecution had not been able to prove its case

against the accused especially in view of the fact that PW-11 Dr. Nishu

Priya has stated that as per her final opinion, there was no evidence of

recent sexual intercourse with the prosecutrix. Accordingly, learned trial

Court concluded that from the evidence on record, it becomes clear that

there is no evidence of rape of the prosecutrix by the accused.

Accordingly, it held that the prosecution had not been able to bring home

the guilt of the accused for offence punishable under Section 376(g) of the

Indian Penal Code. Learned trial Court thus acquitted the accused.

18. Feeling aggrieved by the said judgment passed by the learned

trial Court, the State has preferred the present appeal. It was strenuously

argued by the learned Additional Advocate General that the judgment of

the learned trial Court was perverse and not sustainable in law. Mr.

Chauhan argued that the conclusions arrived at by the learned trial

Court were not borne out from the records of the case and the learned

trial Court had erred in coming to the conclusion that the prosecution

had not been able to prove its case against the accused. As per Mr.

Chauhan, the prosecution had successful ly proved on the basis of

material placed on record that the prosecutrix was mentally unstable lady

and she had been raped by the accused. On these grounds, he stated

that the judgment passed by the learned trial Court was liable to be set

aside and the accused deserved to be convicted for offence with which

they were charged.

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19. Mr. Naresh Kaul, learned counsel appearing for respondent

No. 3, on the other hand, has argued that there is neither any infirmity

nor any perversity with the judgment which has been passed by the

learned trial Court. Mr. Kaul argued that in the present case, the identity

of respondent No. 3 was not proved at all. He further submitted that there

was no independent witness who corroborated the story of the

prosecution and further it was evident from the deposition of PW-11 Dr.

Nishu Priya that the prosecutrix has not been subjected to any sexual

intercourse as alleged by the prosecution. Accordingly, he argued that

there was no merit in the appeal filed by the State and the same was

liable to be set aside.

20. Before proceeding further, we may take note of the fact that

in the present case, there is no eye witness, therefore, it is a case of

circumstantial evidence.

21. At this stage, it is relevant to take note of the judgment of the

Honble Supreme Court on circumstantial evidence in Vijay Thakur Vs.

State of Himachal Pradesh , (2014) 14 Supreme Court Cases 609,

relevant paras of which are quoted below:

“18. It is to be emphasized at this stage that except the

so-called recoveries, there is no other circumstances worth the

name which has been proved against these two appellants. It

is a case of blind murder. There are no eyewitnes ses.

Conviction is based on the circumstantial evidence. In such a

case, complete chain of events has to be established pointing

out the culpability of the accused person. The chain should be

such that no other conclusion, except the guilt of the accused

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person, is discernible without any doubt. Insofar as these two

appellants are concerned, there is no circumstance attributed

except that they were with Rajinder Thakur till Sainj and the

alleged disclosure leading to recoveries, which appears to be

doubtful. When we look into all these facts in entirety in the

aforesaid context, we find that not only the chain of events is

incomplete, it becomes somewhat difficult to convict the

appellant only on the basis of the aforesaid recoveries.

19. In Mani v. State of Tamil Nadu, (2008) 1 SCR 228,

this Court made following pertinent observation on this very

aspect:

“26. The discovery is a weak kind of evidence

and cannot be wholly relied upon on and

conviction in such a serious matter cannot be

based upon the discovery. Once the discovery

fails, there would be literally nothing which would

support the prosecution case....”

20. There is a reiteration of the same sentiment

in Manthuri Laxmi Narsaiah v. State of Andhra Pradesh ,

(2011) 14 SCC 117 in the following manner:

“6. It is by now well settled that in a case relating

to circumstantial evidence the chain of

circumstances has to be spelt out by the

prosecution and if even one link in the chain is

broken the accused must get the benefit thereof.

We are of the opinion that the present is in fact a

case of no evidence.”

21. Likewise, in Mustkeem alias Sirajudeen v. State

of Rajasthan, (2011) 11 SCC 724, this Court observed as

under:

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“24. In a most celebrated case of this

Court, Sharad Birdhichand Sarda v. State of

Maharashtra, (1984) 4 SCC 116, in para 153,

some cardinal principles regarding the

appreciation of circumstantial evidence have been

postulated. Whenever the case is based on

circumstantial evidence the following features are

required to be complied with. It would be

beneficial to repeat the same salient features once

again which are as under: (SCC p.185) “(i) The

circumstances from which the conclusion of guilt

is to be drawn must or should be and not merely

'may be' fully established;

(ii) The facts so established should be consistent only with

the hypothesis of the guilt of the accused, that is to say, they

should not be explainable on any other hypothesis except

that the accused is guilty;

(iii) The circumstances should be of a conclusive nature and

tendency;

(iv) They should exclude every possible hypothesis except the

one to be proved; and

(v) There must be a chain of evidence so complete as not to

leave any reasonable ground for the conclusion consistent

with the innocence of the accused and must show that in all

human probability the act must have been done by the

accused.”

22. Thus, the salient points which have been carved out by the

Hon’ble Supreme Court in the case of circumstantial evidence, on the

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basis of which the guilt of the accused can be brought home are as

under:

“(i) The circumstances from which the conclusion of

guilt is to be drawn must or should be and not merely

‘may be’ fully established;

(ii) The facts so established should be consistent

only with the hypothesis of the guilt of the accused, that

is to say, they should not be explainable on any other

hypothesis except that the accused is guilty;

(iii) The circumstances should be of a conclusive

nature and tendency;

(iv) They should exclude every possible hypothesis

except the one to be proved; and

(v) Thee must be a chain of evidence so complete as

not to leave any reasonable ground for the

conclusion consistent with the innocence of the

accused and must show that in all human

probability the act must have been done by the

accused.”

23. The Hon’ble Supreme Court in Sangili alias Sanganathan

Vs. State of Tamil Nadu, (2014) 10 Supreme Court Cases 264 has held

as under:

“15. To sum up what is discussed above, it is a case of

blind murder. There are no eyewitnesses. Conviction is based

on the circumstantial evidence. In such a case, complete chain

of events has to be established pointing out the culpability of

the accused person. The chain should be such that no other

conclusion, except the guilt of the accused person, is

discernible without any doubt. In the present case, we find, in

the first instance, that the appellant was roped in with

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suspicion that it was a case of triangular love and since he

also loved PW-3, he eliminated the deceased when he found

that the deceased and PW-3 are in love with each other.

However, we are of the view that this motive has not been

proved. The evidence of last seen is also not established.

Father of the deceased only said that the deceased had

received a call and after receiving that call he left the house. In

his deposition, he admitted that he had not seen the appellant

before and he did not recognize his voice either. Therefore, he

was unable to say as to whether the phone call received was

that of the appellant. Proceeding further, we find that the

deceased was not seen by anybody after he left the house.

When we look into all these facts in entirety in the aforesaid

context, we find that not only the chain of events is incomplete,

it becomes somewhat difficult to convict the appellant only on

the basis of the aforesaid recoveries.

16. In Mani v. State of Tamil Nadu, (2009) 17 SCC

273, this Court made following pertinent observation on this

very aspect:

“26. The discovery is a weak kind of

evidence and cannot be wholly relied upon and

conviction in such a serious matter cannot be based

upon the discovery. Once the discovery fails, there

would be literally nothing which would support the

prosecution case....”

There is a reiteration of the same sentiment in Manthuri

Laxmi Narsaiah v. State of Andhra Pradesh, (2011) 14 SCC

117 in the following manner:

“6. It is by now well settled that in a case relating to

circumstantial evidence the chain of circumstances has

to be spelt out by the prosecution and if even one link

in the chain is broken the accused must get the benefit

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thereof. We are of the opinion that the present is in fact

a case of no evidence.”

17. Likewise, in Mustkeem alias Sirajudeen v. State of

Rajasthan, (2011) 11 SCC 724, this Court observed as under:

“24. In a most celebrated case of this Court, Sharad

Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116,

in para 153, some cardinal principles regarding the

appreciation of circumstantial evidence have been postulated.

Whenever the case is based on circumstantial evidence the

following features are required to be complied with. It would be

beneficial to repeat the same salient features once again which

are as under: (SCC p.185) “(i) The circumstances from which

the conclusion of guilt is to be drawn must or should be and

not merely 'may be' fully established;

(ii) The facts so established should be consistent only with the

hypothesis of the guilt of the accused, that is to say, they

should not be explainable on any other hypothesis except that

the accused is guilty;

(iii) The circumstances should be of a conclusive nature and

tendency;

(iv) They should exclude every possible hypothesis except the

one to be proved; and

(v) There must be a chain of evidence so complete as not to

leave any reasonable ground for the conclusion consistent with

the innocence of the accused and must show that in all human

probability the act must have been done by the accused.”

24. In these circumstances because it is a case of circumstantial

evidence, this Court has to satisfy its judicial conscience as to whether by

way of circumstantial evidence produced on record by the prosecution, it

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has been able to link the commission of the offence with the accused or

not.

25. As per the case of the prosecution, the alleged occurrence of

the incident was intimated to complainant Nek Mohammad and Kalu

Ram by son of Bishamber, R/o Raja Ka Talab. The son of Bishamber, i.e.

Rakesh Kumar has entered into the witness box as PW -6. The

complainant has entered into the witness box as PW-3. Rakesh Kumar

has deposed that on the fateful night, he heard some noise coming from a

distance of about 100 meters from the side where there was an orchard,

service station and shops etc. and he disclosed this fact to two Watchmen

who were crossing from that site. PW-3 Nek Mohammad has deposed that

on the fateful night PW-6 told him that some lady was crying from the

tank side. The second Watchmen, namely Kalu has not been examined by

the prosecution. PW-6 Rakesh Kumar has not mentioned in his

statement that he informed the Watchman that he heard the noise of a

lady crying from the tank side. Thus, there is contradiction between the

statement of PW-6 and PW-3 as to what was actually reported to the

complainant by PW-6.

26. Further, as per the case of the prosecution, when the two

Watchmen reached the spot , they found three persons with the

prosecutrix, out of which one ran away. One Dinesh alias Jatt came there

who went inside the tank and took the prosecutrix out from the tank on

his lap. The prosecutrix thereafter told them that she had been raped and

her leg had been fractured. Complainant tied the string knot of the

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trouser of the prosecutrix and Dinesh alias Jatt picked Gurmail bundled

him in his vehicle and took him away. Prosecutrix was taken back to the

Bus Stand by Kalu Ram.

27. This version of the prosecutrix is not supported by the

complainant, i.e. PW-3. Not only this, surprisingly the prosecution has

not produced Dinesh alias Jatt in the witness box. In this view of the fact

that there is variation in the statements of PW-3 and PW-6 and further

neither Kalu nor Dinesh alias Jatt have been produced in the witness box

by the prosecution, the version put forth by the prosecution with regard

to the alleged occurrence of the event gets shrouded with doubts.

28. Now coming to the deposition of father -in-law of the

prosecutrix PW-4 Hazari Ram, he has stated that on 02.06.2005, he went

to Raja Ka Talab for purchasing some household articles and there one

Subash Pradhan met him and told him that Nek Mohammad had told

him that Savitri Devi had been raped during the int ervening night of

31.05.2005 and 01.06.2005. The said witness has been confronted with

the statement which he had made to the police, in which statement, it is

not so recorded that Subhash, Pradhan told PW-4 that he had been told

by Chowkidar Nek Mohammad that daughter-in-law of PW-4 was raped

on the fateful night. In fact, what has been recorded in the statement of

PW-4 made under Section 161 of Cr. P.C. is that Subhash Pradhan told

him that his daughter-in-law had been raped by some people and

thereafter he went to the house of Chowkidar Nek Mohammad. The

prosecution incidentally has not examined the said Subhash Pradhan

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also. Nek Mohamad has not supported the version of the prosecution and

he has been declared as hostile witness. According to PW -4, he, Nek

Mohammad, prosecutrix and his daughter -in-law went to the Police

Station and thereafter the FIR was got registered.

PW-7 Pushpa Devi in her statement has deposed as under:

“I, Hazari Ram and my mother -in-law

had gone to the Police Station. I don’t know any

other person.”

29. Thus, as per PW-7, Nek Mohammad did not accompany them

to the Police Station. In our considered view, both PW-4 and PW-7 are

interested witnesses as they are closely related to the prosecutrix.

Therefore, their statements have to be read very carefully in order to

conclude whether they inspire any confidence and whether they are

trustworthy so as to be made basis for the conviction of the accused.

30. In our considered view, the statements of these witnesses as

well as other prosecution witnesses, especially the complainant do not

inspire confidence. There are too many improvements and contradictions

in the statements of these persons. Normally Court does expect variations

keeping in view the fact that much time elapses between the occurrence

of the event, recording of statements under Sections 154 and 161 Cr. P.C.

and the witnesses thereafter deposing in the Court of law. However, in

this case, the contradictions are glaring.

31. Another important and factual aspect of the matter is that

according to the prosecution, the prosecutrix was mentally unstable,

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High Court of H.P. 20

however, strangely the prosecution has not got the prosecutrix medically

examined to establish this fact on record. PW-12 Inspector Nathu Ram

has stated that no application was moved for forming Medical Board so as

to ascertain the mental state of the prosecutrix. Now, in this background,

when we peruse the statement of PW -11 Dr. Nishu Priya and the MLC

issued by her, both shatters the case of the prosecution.

PW-11 has categorically stated as under in her stated in the

Court:

“After receipt of report of Chemical Examiner, the final

opinion has been given by me which is Ex. PW11/C,

according to which there was no evidence of recent

sexual intercourse.”

32. Further, a perusal of Ex. PW-11/C demonstrates that the

final medical opinion given by PW-11 is as under:

“….Hence, there is no evidence of recent sexual

intercourse/…………….as per the chemical analysis

report. Report has been signed by Chemical Examiner

to the Govt. of Himachal Pradesh.”

33. Another important aspect of the matter is that the identity of

respondent No. 3 has also not been established beyond reasonable doubt

by the prosecution. PW-12 has admitted in his cross-examination that no

identification parade of the accused was conducted by him. There is no

material on record to suggest that the complainant or the other

Chowkidar present with him had identified respondent No. 3 at the spot.

The said respondent has been arrayed as accused on the basis of the

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High Court of H.P. 21

alleged recovery of ear ring. The alleged recovery of ear ring has also not

been established beyond reasonable doubt by the prosecution. Chandani

Guru Jassi Mahant has not supported the story of the prosecution.

Though the said witness was declared as hostile, but in her cross-

examination, the prosecution has not been able to elucidate anything

relevant to further the cause of the prosecution.

34. Therefore, it is evident from the discussion held above that

the prosecution has not been able to link the accused/respondent No. 3

with the commission of the offence. The chain of circumstances is totally

incomplete and it cannot be said on the basis of material produced on

record by the prosecution that the case against respondent No. 3 stood

proved by the prosecution beyond reasonable doubt.

35. Further, a perusal of the judgment passed by the learned

trial Court reveals that all these aspects of the matter have been minutely

gone into by the learned trial Court and thereafter on the basis of the

appreciation of material on record, learned trial Court has come to the

conclusion that the prosecution has not been able to establish its case

against the accused beyond reasonable doubt. We do not find any

perversity or infirmity with the findings so recorded by the learned trial

Court. In our considered view also, on the basis of the material produced

on record by the prosecution, it has not been able to prove beyond

reasonable doubt that respondent No. 3 was guilty of the offence alleged

against him. Accordingly, the judgment passed by learned trial Court in

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High Court of H.P. 22

this regard qua respondent No. 3 is upheld and the present appeal qua

respondent No. 3 is accordingly dismissed.

(Rajiv Sharma)

Judge

(Ajay Mohan Goel)

Judge

July 11, 2016

(bhupender)

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