IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 419 of 1998. Reserved on : 17.05.2010. Decided on: 02.06.2010. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Yaseen. …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1Yes. __________________________________________________________ For the appellant : Mr. Vivek Thakur, Additional Advocate General. For respondent : Mr. Vinay Thakur, Advocate. ---------------------------------------------------------------------------------------- Per Rajiv Sharma, Judge: State has challenged the judgment of learned Additional Sessions Judge, Shimla, rendered in Sessions Trial No. 14-S/7 of 1996, dated 27.05.1998, whereby the accused who was charged with and tried for an offence, under Section 376 of the Indian Penal Code, has been acquitted. 2. The case of the prosecution, in a nut-shell, is that on 10.11.1994, husband of the prosecutrix (PW-2) was doing the white washing work in the new house of the accused. She was cooking food around 11:00 a.m.. She closed the door, but it was not bolted from inside. Accused entered in the room and bolted 1 Whether the reporters of the local papers may be allowed to see the judgment?. Yes. the door from inside. The prosecutrix objected to the entry of the accused inside the room as well as the locking of the door by him from inside. However, the accused pushed her away and forcibly made her to lay down on the floor of the room. She tried to save herself, but the accused torn out her shirt near the breast and also broke the string of her Salwar. She was subjected to sexual intercourse twice by the accused and thereafter he ran away. She cleaned her private parts with her Salwar which she was wearing before the occurrence and removed by the accused. She worn the same Salwar and covered her torn shirt with sweater. Thereafter, she went to the place of work of her husband and told him that she was going to the bazaar. Thereafter, she went to river Pawar to commit suicide. She was about to commit suicide, however, she was taken out by some people from the river and brought to Civil Hospital, Rohroo. The statement of the prosecutrix was recorded vide Ex.- PW2/A, on the basis of which, F.I.R. Ex.-PW6/B was registered. She was medically examined by Dr. Prem Machhan (PW-1). He issued M.L.C. Ex.-PW1/A. The accused was also examined as per M.L.C. Ex.-PW1/B. The clothes of the prosecutrix and the Pant of the accused were taken into possession and were sent to F.S.L., Bharari for analysis. Neither any bloodstain nor any semen was found on either of the clothes worn by the prosecutrix and the Pant of the accused as per report Ex.- PW7/A. After completing all the codal formalities, the challan was put up by the Police. 3. The prosecution has examined a number of witnesses. The accused was also examined under Section 313 of the Criminal Procedure Code. The accused pleaded not guilty to the charge and claimed trial. The learned trial court acquitted the accused. Hence, this appeal by the State. 4. Mr. Vivek Singh Thakur, Additional Advocate General has strenuously argued that the prosecution has proved its case against the respondent. 5. Mr. Vinay Thakur, Advocate learned counsel for the respondents has supported the judgment of the learned trial Court. 6. We have heard the learned counsel for the parties and gone through the record carefully. 7. PW-2 is the prosecutrix. She was 22 years of age at the time of examination in court. She stated that she was residing alongwith her husband in the premises taken by them on rent from accused. On 11.11.1994, her husband was away from the quarter in connection with his job. She was alone in her quarter and had gone to serve the meals to the mother of second wife of her husband. She started cleaning the utensils. The accused entered the room all of a sudden and she was perturbed to see the accused. She was pushed away by the accused, due to which she fell on the floor of the room. She made every possible effort to save herself from the clutches of the accused. She resisted for about 15 minutes. The accused had bolted the door from inside. She requested the accused to let her go and also started crying, but the accused had caught hold both of her hands with one of his hand and opened the string of her Salwar with his another hand. He thereafter removed her Salwar and lay upon her. She was subjected to sexual intercourse by the accused for two three minutes without her consent and against her will. The accused thereafter left the room. She cleaned her private parts with the Salwar. She came out of the quarter and after locking the same, went to the place of work of her husband. She handed over the key to her husband and told him that she was going to bazaar. She did not disclose her husband about the sexual intercourse committed by the accused on that day. She threw the key before her husband and left the place. Thereafter, she jumped into the river. She did not remember as to who had brought out her from the river. She regained consciousness around 12:00 O clock in the night. Her husband was in the quarter at that time. The doctor on duty had inquired from her the reason of jumping into the river. She informed him that she jumped into the river because accused Yaseen subjected her to forcible sexual intercourse. She admitted in her cross-examination that the building of the accused where she was residing with her husband was two storeyed and adjoining to their room, the accused was residing. The accused was residing with his wife and children. When she came out from the quarter, she noticed the children of the accused and his wife in the Verrandah. They were at a distance of 10 feet from her room, however, she did not enter into conversation with them. In the ground floor, S/Sh. Chetu, Cleem Din and Slim were also residing. She has also admitted that on the date of occurrence, there was a religious function in the house of the accused and he had invited Maulvi. She also admitted that when she left the quarter after the occurrence, she noticed the accused, his wife and the Maulvi in the Verrandah of the building. She, however, admitted that the accused and his wife had also come to the hospital when she regained consciousness. She also admitted in cross-examination that she had not reported to the Police that she was subjected to sexual intercourse twice by the accused. She had not stated to the doctor that she was raped on 10th November, 1994 and she had also bathed thereafter as well as changed her clothes. She jumped into the river around 4:30 p.m. and was completely drowned in the water. Her husband came to the hospital around 9:00 a.m. on the next day. She stated that she sustained injuries during scuffle with the accused on her person. She also stated that these injuries were noticed by the doctor during her examination. According to her, she also gave tooth bite and nail scratches to the accused. 8. PW-3 Kirpa Ram is the husband of prosecutrix. He narrated that on 11.11.1994, he was doing job in the another building of accused. His wife visited him at 2:45 p.m. She handed over the key to him, on the pretext that she intended to go to the bazaar. She threw the key there and left the place. He was informed by one Ishweri about the direction his wife has headed for. He then narrated that his wife after regaining the consciousness, told the doctor about the forcible sexual intercourse committed with her by the accused. 9. PW-5 Ishwar Chand was declared hostile. The matter was investigated by PW-6 S.I. Dhani Ram. The prosecutrix was medically examined by Dr. Prem Machhan (PW- 1). He has not noticed mark of any violence over her breast. There was no mark of injury on labia majora and labia minora. After laboratory examination, there was no sign of sexual intercourse within two three days of examination, but she was found habitual of sexual intercourse. 10. There are material contradictions in the statement of prosecutrix (PW-2) in court vis-à-vis the statement recorded by her under Section 154 of the Criminal Procedure Code, i.e., Ex-PW2/A. The date of incident given by the prosecutrix in Ex.- PW2/A is 10.11.1994, however, when she has appeared in court, she has given the date of occurrence as 11.11.1994. The statement of PW-2 does not inspire confidence. The family of the accused was residing in the adjoining room where the religious function was solemnized and they have also visited the prosecutrix when she was taken to the hospital. In the ground floor, S/Sh. Chetu, Cleem Din and Slim were also residing. If she had raised hue and cry, the people living in the vicinity could have definitely come to her rescue. Her statement that she tried to save herself and resisted for about 15 minutes cannot be believed. 11. PW-1 Dr. Prem Machhan has not noticed any injury on the prosecutrix. She did sexual intercourse with her husband after the incident of alleged rape as per the statement of PW-1. PW-1 has also stated in his cross-examination that last coitus with the prosecutrix in this case could have taken place on 9th of November, 1994 or may be prior to it. Now, there are two versions about the date of occurrence. According to statement of the prosecutrix Ex.-PW2/A, the incident has taken place on 10th November, 1994. However, in her statement in court, the prosecutrix (PW-2) has deposed that the incident has taken place on 11th November, 1994. She had categorically stated before the court that scuffle took place between her and the accused and she gave tooth bite to the accused. However, as noticed above, no injuries were noticed by Dr. Prem Machhan (PW-1) on her person. 12. We have also gone through the F.S.L. report. Neither any bloodstains nor semen was found on the Salwar or Pant of the accused. In view of this, the prosecution version that the accused has committed forcible sexual intercourse with the prosecutrix cannot be believed. The prosecution case is not supported by PW-1 as well as by the C.F.L. report. In view of the above discussion, we find no merit in this appeal, which is accordingly dismissed. Bail bonds are ordered to be discharged. (Deepak Gupta), Judge (Rajiv Sharma) Judge June 02, 2010. (bhupender)