IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 54 of 1997 Date of decision: 26.05.2010 State of H.P. ... Appellant Versus Kashmir Singh and another … 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: None for the respondents. Per R.B. Misra, J. (Oral): Heard. The present criminal appeal has been preferred consequent upon the grant of leave under Section 378(3) of Code of Criminal Procedure, in reference to judgment dated 1.8.1996, whereby learned Sessions Judge, Kangra at Dharamshala, has acquitted the alleged accused persons, respondents herein, in reference to Sessions Case No. 8-J/VII-1996, for the alleged offences under Sections 341 and 376 I.P.C. 2. In order to adjudicate the present criminal appeal, it is necessary to give brief facts of the case. Precisely the case of the prosecution is that on 11.6.1993 at about 9 or 9.30 AM the 1Whether reporters of Local Papers may be allowed to see the judgment? 2 prosecutrix has gone to river Beas alongwith her cattle. On the way she was caught hold by accused Madan Lal from the arm. She was dragged and later on Kashmir Singh had committed sexual intercourse. The prosecutrix came to her house, waited for the arrival of her husband, Isha Mohammed and after his arrival narrated the incidence to him. Isha Mohammed took her to the police station and got the matter reported. The investigating officer after recording the FIR, proceeded to the spot, prepared spot map. Clothes of the prosecutrix were taken in possession. The prosecutrix was also got medically examined and M.L.C. was procured by him. The clothes and vaginal swab were sent to Chemical Examiner. On receipt of report of Chemical Examiner and completion of investigation the challan was prepared and presented in Court. 3. PW-1 Dr. Neeraj Gupta medially examined Smt. Goga, prosecutrix and opined that the prosecutrix is a married lady and the injury which noticed on buttocks can be sustained when a lady carried grass load or fuel wood on her back. The investigation was completed, case was committed to the session trial and charge under Sections 341/376 I.P.C. was framed. 4. Prosecution in order to prove its case, has examined as many as 10 witnesses, whereas the alleged accused persons have denied the prosecution case. 5. PW-1 Dr. Neeraj Gupta stated that on 11.6.1993, at 5.40 P.M., he medically examined Smt. Goga, prosecutrix. The prosecutrix was wearing Salwar, Kameez. Salwar was torn and shirt was also torn. No seminal stains detected. No mud and blood stain detected on the clothes. No injury marks on face, arms, breast, chest 3 and leg, back. Small abrasion on right thigh and buttocks was noticed. In opinion of PW-1, the prosecutrix is multiparous and used to sexual intercourse. In the opinion of PW-1 the injuries noticed could have been by carrying grass load or fuel wood on the back of the prosecutrix. 6. PW-2 Smt. Goga Bibi, prosecutrix, has stated that when she went to river Beas alongwith her cattle, she was caught hold by Madan accused, while Kashmir committed sexual intercourse with her. She did not raise any hue and cry. 2-3 persons came to rescue her. She did not know their names. One of them was Mukhtiar Singh. PW-2 further stated that that then she narrated the incident to her husband and then she reported the mater to the police. PW-2 was medically examined. According to PW-2 she did not give any scratch marks to the accused nor she caught hold the from their clothes. As per testimony in cross-examination, PW-2 Smt. Goga stated that during scuffle, she was rescued by 2-3 persons and they were standing at a distance of 10-15 feet away. 7. PW-3 Isha Mohammed has deposed that when he reached at his house, the prosecutrix disclosed him in the house that the accused committed bad act with her. Then he went to the house of father of accused and asked him as to why this type of quarrel has taken place between my wife and accused. Then he reported the matter to the police. According to PW-3, husband of prosecutrix, he admitted that the land of accused is adjoining. He admitted in his cross-examination that some times his cattle used to go to the fields of accused and some times their cattle used to come to their fields. On 4 earlier occasions also, the accused quarreled with him many times and gave beatings. 8. PW-4 Mukhtiar Singh simply deposed that the prosecutrix was abusing the accused persons and the accused were also abusing Goga, prosecutrix, as the cattle of Goga entered the fields of accused, where Mash crop had been sown. 9. PW-6 Smt. Sehni also deposed that quarrel took place between the prosecutrix and the accused as the cattle of Goga Bibi has entered the fields of accused and destroyed their crop. 10. PW-7 Gian Chand deposed that MHC handed over three parcels to him to be carried to the FSL Bharari, which he deposited the same on 30.7.1993 intact. 11. PW-9 S.I. Jagjivan Singh deposed that he caused the arrest of accused under Section 354 I.P.C. 12. From the testimony of the prosecution witnesses, we notice that marks as found existing on the body of prosecutrix, may not be during sexual intercourse as in the opinion of PW-1 Dr. Neeraj Gupta, the scratches and marks noticed on the body of the prosecutrix could have been caused if lady carried grass load or fuel wood on her back. From the testimony of PW-2 Smt. Goga, prosecutrix, she had never raised any alarm and hue and cry and she was rescued by 2-3 persons who were standing at a distance of 10-15 feet away. Such statement does not inspire confidence as the said incident had taken place in between 9 or 9.30 A.M. and 2-3 persons were standing at a distance of 10-15 feet away observing the incident and have rescued her, are improbabilities. Therefore, the findings 5 recorded by the learned trial Court cannot be said to be perverse, calling any interference by this Court. 13. We are of the considered view that the prosecution has failed to establish the charges against the accused persons/respondents beyond any reasonable doubt. There is no scope of any interference in the judgment dated 1.8.1996, passed by the court of learned Sessions Judge, Kangra at Dharamshala, therefore, the appeal, being devoid of any merit, is dismissed. 14. Bail bonds, furnished by the respondents, are hereby discharged. ( R.B. Misra ), Judge ( V.K. Ahuja ), May 26, 2010 Judge (BSS) 6