IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. 331 of 1999 Decided on: 17.9.2010 State of H.P. ..…Appellant Versus Balbir Singh & Ors. ..…Respondents Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice V.K. Sharma, J. Whether approved for reporting?1 For the appellant : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl.A.G. For the respondents : Mr. Romesh Verma, Advocate. R.B. Misra,J. (Oral) The present criminal appeal has come-up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted, in reference to the impugned judgment dated 8.6.1999, passed by learned Sessions Judge, Shimla, H.P. in Sessions Trial No. 31-S/7 of 1998, acquitting the respondents-accused for the offence, under Sections 342/34, 376(2) and 506 of the Indian Penal Code. 2. The prosecution case is that victim/prosecutrix, a major woman, belonging from village Jamo, being deployed as 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 water carrier in Government school, Dargi was commuting daily between her place of residence in village Jamo and the school situated in village Dargi and was keeping her personal belongings at the shop of respondent-accused Hem Singh alias Krishnu in village Dargi and on the way back home was pick up those belongings, however, on 27.10.1997 she kept a plastic bag containing a book and currency notes worth Rs. 300/- at the shop of respondent-accused Krishnu and after the school over she went to the shop about 4.00 P.M. and was told by respondent-accused that her bag was kept in the godown in the lower storey of the building and as soon as she went to collect her bag, respondent-accused Krishunu following her, stealthily pushed her inside the godown and locked the same from outside. Thereafter, respondents-accused Balbir Singh, Mohinder Singh and Joginder Singh, who were hiding in the godown, pounced upon her and kept her in godown upto 11.00 P.M. when respondent-accused Krishnu opened the lock. Thereafter, all four respondents-accused forcibly carried victim/prosecutrix to a nearby Rest House belonging to the forest department and there also she was sexually assaulted. However, she was freed at about 4.00 A.M. with the threat that in case she reported the matter to the police or informed anybody else about the incident, she will face dire consequences. However, victim/prosecutrix went to her house and reached there at 6.00 A.M. and narrated the incident to her co-wife and accordingly, matter was reported on 6.11.1997 by filing FIR No. 185 of 1997. There was a delay of nine days in reporting the matter and in reference to the FIR, investigation 3 was made and all the respondents-accused aforementioned were charged for the aforesaid offences and case was committed to the Sessions Court. 3. In order to prove its case, the prosecution examined as many as thirteen witnesses, out of which testimonies of PW-2 victim/prosecutrix, PW-4 Godawari, the co-wife of the victim/prosecutrix and PW-13 Bhim Singh, Investigating Officer are material, whereas, the respondents-accused through their statement under Section 313 Cr.P.C. denied the prosecution case. 4. PW-2 victim-prosecutrix has no doubt testified that she has been wrongly confined in the godown of respondent- accused Krishnu and was subjected to gang-rape by all the four respondents-accused persons and when she was released, she was intimated that in case she reported the matter to the police or informed anybody about the incident, she would be done to death. However, in FIR Ex.PA, which she lodged with the police on 6.11.1997 i.e. by delay of ten days after the occurrence she got recorded that when she went to the godown to pick up the bag, respondent-accused Krishnu pushed her inside the godown and shut the door of the godown. However, PW-2 victim- prosecutrix in her deposition has stated that it was respondent-accused Balbir Singh, who pushed her into the godown and that two respondents-accused known by the name of Raju were already in the godown and in the FIR she got recorded that respondent-accused Balbir Singh and two Raju’s were already there inside the godown and that respondent- accused Krishnu after pushing her into the godown shut the 4 door. In FIR, she recorded that she had been kept confined in the godown upto 2.00 A.M. and thereafter she was taken to forest Rest House and she got herself freed with great difficulty at 4.00 A.M. but in the court, she deposed that she was kept in the godown upto 11.00 P.M. when she was shifted to the forest Rest House and finally freed at 6.00 A.M. 5. There is un-explained delay of ten days in lodging the FIR and the explanation offered by the victim-prosecutrix that 4-5 days after the commission of the crime, she was unable to move because of the pain and exhaustion. Whereas, contradicted her own testimony, in cross-examination PW-2 stated that she reached home at 6.00 A.M. on the fateful day, she took bath and left the house for bus stand, but by then the bus already left and so she went to the house of a lady named Meera and slept there for the whole day as she was tired. At the same time, she stated in the cross-examination that she had attending the school regularly after the commission of crime and she remained on leave only on 6th and 7th November, 1997. It appears that she did not go to the school on the aforesaid two dates because on 6th she went to the Police Station to lodge the report and on the next day she was brought to Shimla for her medical examination, however, she could not offer any explanation regarding reporting the matter immediately. 6. The deposition of victim-prosecutrix that on 28.10.1997 on reaching home she narrated the incident to her co-wife Godawari (PW-4) is contradicted by Godawari PW-4. Godawari PW-4 very categorically stated that the victim- prosecutrix did not return home on the night intervening Chhoti 5 Diwari and that when she came home next morning around six or seven, she took bath and left without uttering even a word and she did not return home even on the next following night and it was on the next morning around 6.00 or 7.00 A.M. that she informed her about the incident. The testimony of PW-4 Godawari not only contradicts the testimony victim-prosecutrix that she had informed the Godawari about the incident immediately on reaching home on 28th October, 1997 but also shows that the victim-prosecutrix is in the habit of staying away from the house during nights. 7. On analysis of the prosecution witnesses, we notice that there is contradiction about the date of the alleged occurrence while in FIR Ext.PA and in her deposition as PW-2 victim-prosecution stated that incident took place on the night of 27th October 1997. The conduct of victim-prosecutrix also appears to be doubtful. She deposed that she was kept confined in the godown of respondent-accused Krishun from 2.30 P.M. to 11.00 P.M. and in her own deposition the godown is surrounded by several houses, however, she for the reasons best known to her did not raise any alarm to attract the attention of the occupants of the nearby houses. She stated that her mouth had been shut. It is not believable that respondent-accused kept the mouth of the victim-prosecutrix shut by putting hand on it continuously for 8-9 hours. 8. The testimony of PW-6 Bhimi Ram is also relevant where he stated that the key of forest Rest House is kept by him and when police took it into possession the lock was not found to be broken nor did the respondents-accused have the key with 6 them to open it. Therefore, doubt is created how the victim- prosecutrix was taken to the Forest Rest House? 9. Keeping in view the discrepancies and improbabilities emanating from the testimony of PW-2 and other prosecution witnesses, the testimony of victim-prosecutrix is not inspiring confidence and doubt is created. In the facts and circumstances the prosecution cannot be said to have prove its case beyond reasonable doubt and also failed to bring home the guilt of the respondents-accused. Accordingly, the appeal, being devoid of any merit is, therefore, dismissed. 10. Bail bonds, furnished by the respondents-accused are hereby discharged. (R.B. Misra), Judge. September 17, 2010 (V.K. Sharma), Judge. (vs)