STATE OF HIMACHAL PRADESH Vs. ROOP LAL

JUDGEMENT

(1.) This appeal is directed against the judgment passed by the learned Sessions Judge, Shimla dated 26.8.1995 in Sessions Trial No. 42-S/7 of 1994 acquitting the accused of having committed an offence punishable under Section 376 read with Section 34 of the Indian Penal Code.

(2.) The prosecution story in brief is that the prosecutrix had been convicted in a theft case and was undergoing imprisonment in the Model Central Jail, Nahan. She was also an accused in another case under Sections 363, 364, 376, 342 read with Section 34 IPC and other offences under the Child Marriage Restraint Act. On 31.5.1990 Lady Constable Saroj Bala (PW-5) who was posted as Constable at Police Station, Nahan alongwith Head Constable Mahinder Singh (PW-7) were deputed to take the prosecutrix to Rohru to attend the Court hearing. They reached Theog at 6.30 P.M. No bus was available to Rohru thereafter. Therefore, they had to make arrangements for the stay of the prosecutrix at Theog. They requested the police officials at Police Station, Theog who informed them that there is a judicial lock-up at Theog where the prosecutrix can be lodged. Admittedly the prosecutrix was lodged there at night and the next morning PW-5 and PW-7 took her to Rohru. At Rohru the prosecutrix made a complaint to the Sub Divisional Judicial Magistrate, Rohru that she had been raped at Theog. The Sub Divisional Judicial Magistrate, Rohru recorded the statement of the prosecutrix which is Ext. PW 3/A in which she states that she was brought from Nahan and reached Theog at 5.30 P.M. Then they went to Police Station, Theog where the police officials said that there is no arrangement for a lady to stay in a police station and she was taken by the Lady Constable and Head Constable to a place near the Court at Theog behind which there was a lock-up. There the police officials accompanying her met a Hawaldar and went to his room and requested that the prosecutrix may be kept in the lock-up. Then the said Hawaldar searched for the key of the lock-up and one room of the lock-up was opened. The prosecutrix was lodged therein and the same was locked from outside. She was provided meals from the canteen and the door was opened by the police official from Theog. Then the police official from Theog gave her meals and water. Then she went to sleep. At 12.00 midnight the Hawaldar from Theog and one Constable opened the lock-up and entered the lock- up and first the Hawaldar lay down alongwith her but he could not complete the sexual act and he got up and sent the Constable. Then the Constable opened the `salwar' of the prosecutrix who started screaming. The Constable threatened her that in case she raised a hue and cry then five six more persons will come in and trouble her. Then she stopped screaming. Then the Constable raped her. The Hawaldar had caught hold of her legs while the Constable committed forcible sexual act with her. Thereafter the Hawaldar also raped her. These two persons then told her not to tell anybody about the incident. The prosecutrix does not say that she was threatened. In fact, according to her, she was told that in case she told anybody her image would fall in the eyes of public. The Constable also told her that after three months he would be posted to Rohru and he would give her money. The Hawaldar also promised to give her Rs. 1000/- after he got his salary. Thereafter the Hawaldar as well as the Constable left the lock-up and locked the room from outside. At 6.30 A.M. the Lady Constable and the Head Constable from Nahan came to the lock- up and took her to Rohru. According to the prosecutrix she wanted to tell about the incident to the Lady Constable and the Head Constable from Nahan but could not do so because they had told her to hurry up since the bus was leaving. Then she came in the bus to Rohru. After the aforesaid statement was recorded the prosecutrix was sent for medical examination by the Judicial Magistrate himself and examined by Dr. Deepak Kapoor (PW-1). He issued the Medical Legal Certificate Ext. PW 1/A. He did not give any opinion that the prosecutrix was subjected to any sexual intercourse as there were no signs of sexual intercourse. He further stated that if there is a recent sexual intercourse even with a married woman or a woman who is used to sexual intercourse the same can be detected within seventy two hours. He had only noticed stains on the `salwar' of the prosecutrix which were found to be positive for human semen.

(3.) The prosecutrix in the statement had neither named the police officials from Nahan or the police officials at Theog but had only described them by rank. There is nothing on record to show that any test identification parade was held. There is no material on record as to how the prosecutrix came to know about the identity of the accused. Despite this, while appearing in the Court as PW-3, the prosecutrix has identified both the accused. She has also made certain improvements in her statement in the Court. She states that after she was provided with meals at 7.30 P.M. in the lock-up at Theog at 9.00 P.M. accused Roop Lal brought a glass of liquor to her. She had not stated this before the learned Judicial Magistrate. She further states that thereafter the two accused came inside the lock-up and asked her to come outside the lock-up since the atmosphere was not congenial in the lock-up. This was also not stated by her in the statement Ext. PW 3/A. In Court she states that thereafter she was forced to lay on the floor and then they committed forcible sexual intercourse with her turn by turn. This is also not in consonance with statement Ext. PW 3/A wherein she had stated that first the Hawaldar lay down next to her but could not complete the sexual act and got up and then asked the Constable to have sex with her.