IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 263 of 1997. Decided on: 18.8.2010. ___________________________________________________________ State of H.P. … Appellant. Versus Om Parkash. … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Rajinder Dogra, Addl. A.G.. For the respondent : Mr. Ramakant Sharma, Advocate. ___________________________________________________________ R.B. Misra, J. (Oral). The present criminal appeal has come up for consideration after leave to appeal has been granted, under Section 378 (3) Cr.P.C., in reference to the impugned judgment, dated 1.11.1996, passed by the learned Sessions Judge, Solan, H.P., in Session Trial No. 3-S/7 of 1996, acquitting the respondent- accused for the alleged offence, under Section 366 IPC, in reference to FIR No. 146/95, P.S. Solan. 2. The prosecution story is that the prosecutrix is daughter of Shri Rattan Chand (PW1). On 16.6.1995, she was 18 years old. She was residing with her father at village Saproon. Accused Om Parkash was a tenant at the house of Shri Rattan Chand. He had hired a room and was living in the same house. The accused and the prosecutrix are stated to 1 Whether reporters of the local papers may be allowed to see the judgment? 2 have developed intimacy. They wanted to enter into matrimonial alliance. 3. On June 16, 1995, the prosecutrix was sleeping in the company of her grand mother Smt. Bohri Devi (PW8), Anita Devi, Nek Ram and Dropti on the lintel of the roof of the house. The accused came there at about 2.00 a.m. He whisked away the prosecutrix from there. She was lifted by accused by gagging her mouth. He took her to his room in the house of her father. In the morning, the accused is alleged to have left the room for work. The prosecutrix remained inside the room of the accused. The room was locked from outside. Thereafter, at about 11.30 a.m., a boy came to her in the room. He delivered vegetables to her to be cooked for the day meal. After handing over the vegetable (cauliflower), the boy left. 4. At the instance of Shri Rattan Chand, father of the prosecutrix, FIR was lodged on 17.6.1995. On completion of investigation, the accused-respondent was charged for the alleged offence under Section 366 IPC. 5. In order to prove its case, prosecution has examined as many as 15 witnesses, whereas through his statement under Section 313 Cr.P.C., the accused has denied the prosecution case. 6. PW6 Dr. B.K. Bhardwaj has examined the victim/prosecutrix. He has stated that the age of the prosecutrix is between 15 to 17 years. PW7 Shri Adesh 3 Chand has issued certificate Ext. PW7/A on the basis of an entry found in the register in which birth and deaths taking place in the village situate in Gram Panchayat, Anji are entered. PW7 has admitted that the name of prosecutrix is written in different ink, however, a perusal of his statement shows that the entry in Ext. PW7/A had been tampered with and as such, no reliance can be placed on it. 7. PW14 Biru Ahmad has got the prosecutrix examined for ossification test from PW6 Dr. B.K. Bhardwaj. PW1 Rattan Chand has stated that victim/prosecutrix has attained the age of 18 years in August, 1996. PW2 during the course of her statement has not stated as to how old she was on 16.6.1995. However, she has given the age of her brother Prit Kumar to be 23 years in August, 1996 and has stated that she is younger by two years from him. According to her statement, she was 21 years of age in the month of August, 1996. 8. PW3 Nek Ram, uncle of the prosecutrix and PW8 Smt. Bohri Devi, grand mother of the prosecutrix have not stated about age of the victim/prosecutrix as on 16.6.1995. PW8 Bohri Devi has stated that the victim was two years younger to Prit Kumar, who happened to be 22 or 23 years old in the year 1996. 9. On scrutinizing the testimony of the victim/prosecutrix (PW2), it shows that victim was sleeping on the lintel of her house by the side of her grand mother, grand 4 father, Anita Devi, Nek Ram and Dropti. Smt. Gamru was also sleeping there. The accused came there at about 2.00 a.m. and after gagging her mouth with the assurance that he would be marrying her, took her to his room hired on rent in the same premises of the father of the victim and sexually assaulted the victim. In the morning he left the room and asked her to remain inside till he comes from the work. The prosecutrix without making any hue and cry, remained there and a boy came about 11.30 a.m. and offered cauliflower. PW2 remained in the room and did not cry from inside nor did knock the door from inside to go herself outside. She chose to remain in hiding. In her testimony, PW2 has stated that 15 to 20 tenants were residing in the building of her father. If there is any movement or whisper then everybody come to know of it. In view of the testimony of PW2, such an incident was not watched by any independent witness. 10. On scrutiny of the evidence of PW1 Rattan Chand, father of the prosecutrix, PW3 Nek Ram, uncle of the prosecutrix, PW8 Bohri Devi, grand mother of the prosecutrix and PW2, it does not reveal that the victim while being taken away on the date of incident had made no hue and cry nor as per her own statement she was in and around six persons and the way she was being taken by the accused, surprisingly was not watched by anybody. 11. After careful scrutiny of the evidence, we have come to know that PW5 Dr. Usha Bhardwaj, who has 5 medically examined the victim, has opined that there is no evidence of commission of any rape on the victim, it appears that PW1 Rattan Chand, father of the prosecutrix, has given an affidavit that under misconception, he lodged the FIR and such an affidavit has also been affirmed as per his statement in cross-examination. 12. On analysis of the prosecution witnesses and material on record, we are of the considered view that the learned Session Judge has rightly come to the conclusion that the prosecution has miserably failed to prove their case beyond any reasonable doubt and to bring home guilt to the accused. There is no scope for interfering with the impugned judgment of the trial Court. 13. In view of the aforesaid facts and circumstances, the present criminal appeal being devoid of any merit is dismissed. (R.B. Misra) Judge. (V.K. Sharma) Judge. August 18, 2010. (cr)