IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 74 of 1997 Date of decision: 28.05.2010 State of H.P. ... Appellant Versus Chain Ram and others … Respondents Coram : The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 For the appellant: Mr. Rajinder Dogra, Additional Advocate General and Mr. Vikas Rathore, Deputy Advocate General. For the respondents: Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate. Per V.K. Ahuja , J. (Oral): This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of learned Additional Sessions Judge, Shimla, dated 28.9.1996, vide which the respondents were acquitted of the charge framed against them under Sections, 366, 376 read with Section 109 and 342 I.P.C. 2. Briefly stated, the facts of the case are that PW-7 Smt. Sushma Devi was allegedly informed by the victim ‘V’, name not mentioned, that she had been raped by Amir Chand (since dead), in connivance with the rest of the accused persons. A report was sought to be lodged with the police by PW-2 Surjan Singh and since the 1Whether reporters of Local Papers may be allowed to see the judgment? 2 police had allegedly refused to register the case, an application was filed before the Judicial Magistrate and complaint Ext. PW2/A was registered. After investigation, the challan was filed before the Court of learned Sub Divisional Judicial Magistrate, Rohru, who committed the case to the Court of learned Sessions Judge and the case was assigned to the Court of learned Additional Sessions Judge, Shimla, who tried the respondents, leading to their acquittal. 3. We have heard learned counsel for the parties and have gone through the record of the case. 4. The case of the prosecution was that respondent/accused No. 2 Chain Ram was the father of the prosecutrix, who wanted to perform the marriage of his daughter Vidya with accused Amir Chand, aged about 40 years and respondents/accused No. 3 and 4 relatives of the prosecutrix had allegedly taken the prosecutrix to the house of Amir Chand, where they bolted the door from outside and Amir Chand (since dead) is alleged to have raped the minor daughter of Chain Ram. We have gone through the statement of PW-2 Surjan Singh and he stated that he filed complaint Ext. PW2/A, but in his statement he has nowhere stated that he attempted to lodge a report with the police, which was not registered and thereafter, he filed the complaint Ext. PW2/A. Whereas in his statement he has clearly stated that he had not reported the matter to the police and, therefore, the delay in question of two weeks in lodging the FIR from the date of occurrence has not been satisfactorily explained by the prosecution. 3 Therefore, statements of the prosecution witnesses have to be appreciated with more care and caution. 5. PW-7 Smt. Sushma Devi, who is alleged to have learnt about the rape from PW-1 ‘V’, when examined in Court turned hostile and stated that she was not examined by the police. She did not make any statement in favour of the prosecution so as to hold that the allegations made by her stands substantiated from her statement. PW-1 ‘V’, prosecutrix, has stated that Subo Devi and Bhagpati, respondents No. 3 and 4 visited her and had taken her to the house of accused Amir Chand. After dropping her at the house of accused Amir Chand, respondents/accused No. 3 and 4 had returned having bolted the door of the room from outside. It was also stated by her that Amir Chand who is alleged to have raped her was present in that room, who committed rape on her person. Thereafter, one person of the village Larot came there and opened the door from outside. In her cross-examination, she has stated that her father had deputed her to village Sandasoo with accused Subo Devi, respondent No. 3, with a view to fetch medicines. She further stated that respondent No. 3 had asked her to get down the bus at Sandasoo for purchasing medicines and had asked her to return to her village from Sandasoo. However, she did not get out of the bus at Sandasoo of her own accord. She stated that the she remained in the village fair at Jabbel for the whole day. She further stated that the matrimonial prospects were not discussed with her. She stated that she raised hue and cry when she had been bolted in the room from outside. She further stated that she stayed for the night in village 4 Bakora in the house of one person, who had opened the door from outside. She was recovered on the next day, not from the house of the accused Amir Chand. She also stated that she had informed the police that she had passed the night at the house of a boy in village Bakora. Therefore, the possibility that she remained with the boy or spent the night with him cannot be ruled out. Her solitary statement is not sufficient to prove that she was taken by respondents No. 3 and 4 to the house of accused Amir Chand and the door was bolted from outside. 6. In regard to her age, no cogent and reliable evidence has been led by the prosecution to establish the age of the prosecutrix. PW-5 Dr. Reeta Negi, Dental Surgeon, had conducted the examination of the victim, had determined her age and she gave the age in between 12 to 16 years. However, there is a margin of 2 years in the opinion given by the Dental Surgeon and, therefore, it cannot be said that the girl was minor at the time of the occurrence. No cogent and reliable evidence had been led to prove the age of the prosecutrix and her own statement was not sufficient to prove that she was raped by Amir Chand or the respondents had abated the commission of the said offence of rape by accused Amir Chand, who is since dead, who had allegedly raped the prosecutrix. 7. The net conclusion drawn by the learned trial Court on the basis of the evidence led by the prosecution cannot be said to be perverse, calling for an interference by this Court. 5 8. In view of the above discussion, we accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by respondents shall stand discharged. ( R.B. Misra ), Judge ( V.K. Ahuja ), May 28, 2010 Judge (BSS) 6