IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 457 of 2001 Decided on: 2.5.2011 State of H.P. ..…Petitioners. Versus Arbind Kumar & another. …… Respondent. Coram The Hon’ble Mr. Justice R.B Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1. For the Petitioner : Mr. R.K Sharma, Sr. Additional Advoate General with Mr. Rajinder Dogra, Additional Advocate General. For respondent : Mr. Kamal Sharma, Advocate, for the respondents. R.B Misra, Judge (Oral) The present criminal appeal has come up for consideration after leave to appeal has been granted under Section 378(3) of Cr. P.C against the judgment passed by Sessions Judge, Una in Sessions Case No. 9 of 1998, acquitting the respondents/accused for the offence under Sections 376,354,341 /34 of I.P.C in case F.I.R No. 85/1997 dated 7.2.1997. 2. The prosecution case in brief is that the victim/prosecutrix initially filed a complaint Ex. PJ on 6.2.1997 indicating that on 4-2-1997 when she was returning from village Pandoga after selling milk, accused persons, namely, Bindu alias Arbind Kumar and Pinku alias Praveen Kumar met her on the way 1 Whether reporters of the local papers may be allowed to see the judgment?. 2 and attempted to sexual assault. They tried to outrage her modesty and threatened her with a knife. On her raising alarm, they ran away from the spot and while leaving the spot they threatened that if she reported the matter to the police, they would put an end to her life. On such complaint, formal F.I.R, Ex. PM, was registered. The case was partly investigated by Smt. Shakuntala Devi (PW-8) and in respect of that complaint FIR No. 85/97 was registered, but on 13.2.1997 the victim/prosecutrix alleged that she had been subjected to forcible sexual intercourse on 28-1-1997 by the accused persons. So a request was made for her medical examination. Prosecutrix was medically examined by Dr. Anita Sharma (PW-1) who issued MLC, Ex. PB, and gave the following opinion: “Borough by police with H/o rape by two boys on 28.1.1997 at 6.00 p.m. Patient has changed clothes already and taken bath several time. Patient is married for last seventeen years. MLMP: 17-1-1997, Menstrual History 3-4/30-40 days. Patient is average built. Height: 5 feet. G.C Fair, conscious, oriented to time, place and person. Pulse 80 mm, regular, good volume BP-110/70 mm of hg. Chest, breath sou8nds normal B/L CVS normal, abdomen soft, laparoscopic sterilization scar 1 cm size present on anterior abdominal wall just below umbilicus. Obstetric History= P5. AO. Last Delivery: 5 years back. H/S laparoscopic sterilization: month after last child birth. Live issue: four female child, one male child. 3 General Exam: Breast Exam: B/L equal size, well formed, pendulous, areola black color nipple prominent and black color. Axillary Hair: well developed, public hair well developed 1-1/2 cm. size present all around public hair, Marks of violence: No marks of injury on any part of body or thighs, private parts, breast, abdomen, back, hips. G. Exam: Genital Exam: External exam: public hair well distributed, labia majora dark black color, labia minora pink color, labia majora separated, L. Minora seen through it. No marks of injury on labia minora. Labia Majora. No discharge seen on vulva. Public hair not matted. P/S-vaginal discharge-(n) scanty Cx. No erosion. P/V: Uterus tenderness.” 3. As opined by Medical Officer, no injury was found on the person of victim/prosecutrix, pregnancy test was also negative. Dr. V.S Minhaas (PW-2) has also examined the accused persons and no injury was found on their person also. 4. In order to prove the case, prosecution has examined 12 witnesses and accused/respondents in the statements under Section 313 of Cr. P.C denied the prosecution case. 5. PW-10 Prem Singh, husband of the prosecutrix stated that the prosecutrix, came weeping home on January 28, 1997 and told him that she had been subjected to forcible sexual intercourse by two boys. Those boys were identified on the next 4 morning when he and his wife went in search of them. However, PW-10 failed to explain as to why the matter was not reported to police. PW-1 Dr. Anita Sharma had medically examined the prosecutrix and issued MLC Ex. PB. The vaginal swabs of the prosecutrix were collected and were sent to FSL, Junga as stated by Mohan Lal (PW-4) through C Kushal Dev (PW-5). On receipt of the report Ex. PC the Medical Officer gave the opinion, Ex. PD, that the intercourse had been committed with the prosecutrix. 6. PW-2 Dr. V.S Minhaas had medically examined the accused persons and found that they are capable of committing sexual intercourse. 7. PW-6 Keshav Chandel has drafted the complaint Ex. PK, though the victim/prosecutrix had denied in her cross- examination that she got the complaint drafted from Keshav Chandel. 8. As per the testimony of victim/prosecutrix incidence took place at about 6.00 p.m. when she was returning from village Pandoga after selling milk. She further stated that on returning home she informed her husband and next day she informed to village Pardhan and as advised by Pradhan, she lodged the report to the police. However, the report lodged by the prosecutrix is Ex. PJ is dated 6.2.1997, thus no complaint has been made by the prosexutrix to the police prior to February 6, 1997. It is also admitted that the Lambardars of the village resides at a distance of 200/250 meters from the place of occurrence. However, for the reasons best known to her, matter was not reported to police or Lambaradar of the village for more than a week and delay in filing 5 the report was also not explained. So far as the complaint, Ex. PJ, is concerned, her modesty was outraged by the accused persons and nothing else was done. However, after about one week., i.e., on February 13, 1997, she made the allegations in the complaint, Ex. PK-2, that the accused persons had also raped her on January 29, 1997. As such, we notice that there is a major contradiction in the original complaint and the subsequent complaint. It was in respect of subsequent assertion, victim/proseuctrix was examined by PW-1 and it is found that sexual intercourse was done with the prosecuttrix but duration could not be given as no injury was found on her person. As per the testimony of PW-10 the husband of victim/prosecutrix did not have sexual intercourse with the prosexutrix six months prior to the incident. It is also pertinent to mention that prosecutrix/victim had changed her clothes several times before her medical examination. As such, medical opinion could also not said to be reliable. In view of testimony of PW-10 when he went along with victim/prosecutrix in search of accused persons who had committed rape on victim/prosecutrix, they found the accused persons in their cow-shed in next morning. 9. On scrutiny of prosecutrix evidence and the materials on record we find that the testimony of prosecutrix/victim itself not reliable, testimony of victim/prosecutrix does not inspire confidence. The victim/prosecutrix is aged about 32 years and being married women could not be believed that he had not any interaction with her husband. In our considered view, the sole testimony of victim/prosecutrix is not reliable. In the facts and circumstances, there is no scope of giving any indulgence in the finding arrived at 6 by learned Sessions Judge. In our considered view the prosecution has failed to prove its case beyond all reasonable doubt and also failed to bring home the guilt to the accused. Hence, present appeal is dismissed being devoid of merit. Bail bonds of the accused/respondents are discharged. (R.B Misra), Judge. (V.K. Sharma) Judge. 2nd May, 2011 (priti)