IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.264 of 1999 Decided on: 22nd October, 2010 State of H.P …..Appellant. VERSUS Mahesh Kumar …..Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the Appellant: Mr.Rajesh Mandhotra, Dy.Advocate General. For the Respondent: Mr.Ashok Sharma, Advocate. Deepak Gupta,Judge (Oral) This appeal by the State is directed against the judgement dated 26.3.1999 delivered by the Learned Sessions Judge, Solan in Sessions Trial No.27-S/7 of 1998 whereby he acquitted the accused of having committed an offence punishable under Section 376, IPC while 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… convicting him of having committed offences under Sections 363 and 366 of the Indian Penal Code. 2. The prosecution story, in brief, is that the father of the prosecutrix (PW/5) is running a Dhaba at Kaithlighat. The accused who is a truck driver used to stop his truck off and on at his dhaba to take tea and used to tease his daughters including the prosecutrix who used to help her parents in running the dhaba. The case of the prosecution is that the prosecutrix was only about 12-13 years of age on 25th August, 1999 when the accused called the prosecutrix and took her towards the Railway tunnel on the pretext that he wanted to have some talk with her. Admittedly, even as per the version of the prosecutrix, from Kaithlighat, they walked to Kandaghat on the Railway Track. At Kandaghat, they took a bus for Solan. At Solan, the prosecutrix was taken to the house of one Sh.Vijay Kumar where she was allegedly raped by the accused. Later in the same evening, the accused took her to Ambala. 3. In the meantime, the father of the prosecutrix lodged a complaint with the police and received some information that the prosecutrix had been taken by the accused towards Ambala. The complainant and the …3… police officials went to Ambala and the prosecutrix was found there and handed over to her father. The prosecutrix was got medically examined and it was found that there were no marks of injury on the body of the prosecutrix. It was also found that the hymen of the prosecutrix was ruptured and had healed long time earlier. No other injury was found on the body of the prosecutrix. 4. The learned Trial Court convicted the accused of having committed offences punishable under Sections 363 and 366. IPC since admittedly, the prosecutrix was a minor girl and had been taken away from the custody of her parents. The learned trial Court, however, acquitted the accused of having committed an offence punishable under Section 376, IPC on two grounds firstly that the prosecutrix was more than 16 years of age and was a consenting party to the sexual act, if any, and (2) that the medical evidence did not prove that the prosecutrix had been raped by the accused. Hence, this appeal. 5. In our considered view, we need not to go to the question with regard to the age of the prosecutrix since the medical evidence does not support the version of the prosecutrix that she was raped by the accused. …4… No doubt, the prosecutrix has stated that she was raped by the accused but she is a young girl of about 12 years of age and it is not very clear as to what she understood by the term ‘rape’ or ‘Balatkar’ as used by her in her statement. 6. The doctor who examined the prosecutrix has clearly stated that she found no marks of injury anywhere on the body of the prosecutrix. No injuries were found on the private parts of the prosecutrix. No blood stains or semen stains were found on the labia majora or labia minora. The doctor has categorically stated that the hymen had been ruptured at least eight days prior to the examination. There was no fresh injury present around the uterus. When a young girl of 12-13 years is raped, there were bound to be some injuries or inflammation etc. on her private parts. It may be true that the prosecutrix had been enticed away by the accused for which he has been convicted and sentenced by the learned Trial Court and has already undergone imprisonment but the medical evidence does not in any manner show that the prosecutrix was subjected to forcible sexual intercourse. The doctor has clearly stated that she cannot say whether any physical or sexual violence was used on the …5… person of the prosecutrix. This negates the prosecution case totally. 7. In view of the above discussion, we find no merit in the appeal which is accordingly rejected. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. October 22, 2010 (Sanjay Karol) (m) Judge