IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.189 of 1994 Decided on : April 2, 2008 State of H.P. …Appellant. Versus Basant Ram …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 No. For the Appellant : Mr. P.M. Negi, Deputy Advocate General. For the Respondent : None. Surjit Singh, Judge( Oral ) This is an appeal against the judgment of acquittal of respondent by the trial Court. The respondent was charged with and tried for the offence of rape. Trial Court acquitted him mainly because the prosecutrix died, before she could make statement in the Court, in support of her allegation of having been raped by the respondent. 2. Prosecution story, as per evidence on record, is that on 16th August, 1990, the father-in-law of the prosecutrix was admitted in a hospital at Rampur. Her mother-in-law PW-4 Bhopu Devi also went to the hospital that day to attend upon her husband. Prosecutrix and her husband’s younger brother, PW-15 Sham Dass, were alone in the house. The prosecutrix went to sleep at the house of a neighbour, named PW-16 Kaul Ram. Around 1.30 in the night, the respondent, who had accompanied the mother-in-law of the prosecutrix to Rampur Whether reporters of the local papers may be allowed to see the judgment? …2… hospital, went to the house of the prosecutrix, on the pretext that clothes of her mother-in-law were to be carried to the hospital at Rampur. PW-15 Sham Dass told the respondent that the prosecutrix was not at home, as she had gone to Kaul Ram’s house to sleep there. Respondent then went to the house of PW-16 Kaul Ram and brought the prosecutrix to her own house, on the pretext that her mother-in-law had deputed him to fetch her clothes. On reaching the house of the prosecutrix, the respondent is alleged to have committed rape on her. The prosecutrix was pregnant for 7-8 months at that time. Because of the aforesaid act of rape, the prosecutrix had premature delivery. About 20 days after the incident, the prosecutrix died. 3. Prosecution examined PW-1 Deepa Nand, the father of the prosecutrix, to whom the prosecutrix allegedly narrated the incident on the next following day, PW-4 Bhopu Devi, the mother-in- law of the prosecutrix, to whom the prosecutrix narrated the incident on the third day of its occurrence, PW-15 Sham Dass, the brother-in- law of the prosecutrix, who testified that the respondent came in the night, around 1.30, and asked where the prosecutrix was, as he wanted to collect the clothes of her mother-in-law for being taken to Rampur hospital, PW-6 Kaul Ram at whose house the prosecutrix had gone to sleep on the fateful night and PW-7 Urmila Devi, a daughter- in-law of Kaul Ram, in whose room the prosecutrix was sleeping, when the respondent went to call her. 4. Trial Court has discarded the evidence of PW-1 Deepa Nand and PW-4 Bhopu Devi, being hearsay, observing that the incident having been narrated to these two persons on the second and the third day, respectively, the same is not covered by Section 6 …3… of the Indian Evidence Act. We see no reason to disagree with this observation. 5. PW-15 Sham Dass, the brother-in-law of the prosecutrix, has not testified that the prosecutrix returned to the house in the company of the respondent after the respondent made enquiries with him about the prosecutrix and the clothes of his mother. PW-17 Urmila Devi and PW-16 Kaul Ram testified that the respondent came to their house at 12 or 1 in the night and took the prosecutrix with him, on the pretext that he was to collect the clothes of her mother-in-law, for being taken to the hospital at Rampur. Husband of the prosecutrix, PW-18 Dharam Pal, stated that the prosecutrix told him that the respondent dragged her to her house from the courtyard of Kaul Ram. This statement of PW-18 Dharam Pal does not fit in the prosecution story. Prosecution story, as already noticed, is that the respondent took the prosecutrix to her house, on the pretext of collecting the clothes of her mother-in-law for being taken to Rampur hospital. Now, if this story is to be believed, there could not have been any question of the respondent carrying the prosecutrix forcibly by dragging her from the courtyard of Kaul Ram. Thus, the testimony of PW-18 Dharam Pal, belies the story that the prosecutrix was taken from the house of Kaul Ram, on the aforesaid pretext. 6. In view of the abovestated position, we do not think this to be a fit case for interfering with the judgment of acquittal. Therefore, the appeal is dismissed. ( Surjit Singh ), J April 2, 2008(sd) ( Surinder Singh ), J