1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 554 of 2000 Decided on September 28, 2010 __________________________________________________________ State of H.P. …Appellant. Versus Kushal Singh ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr.R.K. Sharma, Senior Additional Advocate General, with Mr.Rajinder Dogra, Additional Advocate General For the respondent: Mr.Narender Sharma, vice Ms.Meenakshi Sharma, Advocate. ________________________________________________ Justice R.B. Misra,J. ( Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of criminal Procedure in reference to judgment dated 28.6.2000, passed by Learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, H.P., in Sessions Trial No. 7 of 1998, for the offence under Sections 452, 376 and 506 of the Indian Penal Code, acquitting the alleged accused / respondent. 2. The prosecution case is that the victim / prosecutrix (PW.1) (name not given) aged about 19 years was residing at her 2 parental house alongwith her two younger brothers. The mother of the victim / prosecutrix had left her house for the house of her parents on 3.4.1996. In the intervening night of 3.4.1996 / 4.4.1996, when victim / prosecutrix was sleeping at her home, she visualized someone sleeping with her, she surprisingly got out of the bed and wanted to switch on the light despite resistance offered by the person sleeping with her. However, PW.1 got switched on the light and found that the accused person resident of the same village had trespassed into her room and was sleeping with her and forcibly committed sexual intercourse without her consent and against her will. The accused-respondent left in the same night after committing sexual intercourse and PW.1 the victim / prosecutrix reported the matter to her mother. Next day the matter was also brought to the notice of the village Panchayat and endeavour was made to reconcile the matter, however, the matter was reported to the police after elapse of six days i.e. 9.4.1996 at 5.30 P.M. The victim / prosecutrix was medically examined by Doctor Puneet Mahajan (PW.4), who after medical examination found the victim / prosecutrix a full grown up girl and was capable of sexual intercourse,however, has no mark or injury or violence on her body. PW.4 has opined that sexual intercourse cannot be ruled out. 3 3. After investigation, the accused-respondent was charged for the above offences and the case was committed for trial to the Sessions Court. In order to prove its case, the prosecution has examined as many as 9 prosecution witnesses, whereas, the accused / respondent through his statement under Section 313 of Cr.P.C., has denied the prosecution case. 4. We have scrutinized the prosecution witnesses and materials on record, we notice that the victim / prosecutrix was full grown up girl and was sleeping on the fateful night at her parents' house and her two younger brothers sleeping in the adjoining room and was allegedly sexually assaulted on that night, however, for the reasons best known without any explanation the report was not lodged for six days, such delay makes the prosecution case fatal. The medical report is also not corroborating the prosecution case that the victim / prosecutrix was sexually assaulted without her consent and against her will. For the reasons best known to the prosecution, brothers of the victim / prosecutrix said to have been sleeping adjacent to her, were not examined by the prosecution and no independent witness had also corroborated the testimony of the victim / prosecutrix, as such, testimony of the victim / prosecutrix is not inspiring confidence. 4 5. On analysis of the prosecution witnesses and materials on record, the learned Sessions Judge has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt to the accused and there is no scope of interference in the findings given by learned Sessions Judge. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 6. The bail bonds furnished by the accused-respondent are hereby discharged. (R.B. Misra) Judge September 28, 2010 (V.K. Sharma) (Purohit) Judge