IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.353 of 1995 Date of decision:22.2.2010 State of H.P. ... Appellant Versus Gian Chand and others … Respondents 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.Vivek Thakur, Additional Advocate General For the respondents: Mr.Neeraj Sharma, vice counsel for the respondent. ____________________________________________________________ Deepak Gupta, J (Oral). This appeal by the State is directed against the judgment dated 14.11.1994 passed by the learned Additional Sessions Judge, Solan Camp at Nalagarh in Sessions Trial No.7-NL/7 of 1993, whereby he has acquitted the accused of having committed an offence punishable under Section 376 IPC. The prosecution version is that the prosecutrix had gone to cut grass in the ghasni land on 20.11.1992 at 1Whether reporters of Local Papers may be allowed to see the judgment? 2 about 12.30 a.n. The accused Gian Chand came there and made advances towards her. She repelled his advances but the accused pounced upon her and overpowered her. He then snatched the scythe from her hand. He threw her on the ground and raped her. At that time the prosecutrix was pregnant and the pregnancy was of seven months. She returned home in the afternoon and was suffering abdominal pain. However, she did not inform her husband about the incident because she was ashamed and was reluctant to inform anybody. Her husband kept asking her why she was suffering from pain. On 21.11.1992 at about 8 a.m. the prosecutrix informed her husband that she had been raped by a boy the previous day. She did not know the name of the boy but could recognize him by face. Later in the day on 21.11.1992 when she was lying outside in the courtyard she saw the accused passing her house. She immediately informed her husband that this is the boy who had raped her. The husband caught hold of the boy. According to the husband he knew the accused. He asked the accused why he had raped his wife. The accused told that he did not know that the 3 prosecutrix was the wife of Amar Dev. Then Krishan Lal a member of the Panchayat was called who in turn called Sh.Sant Ram, Pradhan of the Panchayat. According to the prosecution, the Panchayat Members deliberated over the matter for two days but no settlement could be reached. Thereafter, the Panchayat members informed the prosecutrix and her husband that now the time to get the medico legal examination is over and nothing could be done in the matter. Thereafter, the prosecutrix made a complaint to the members of the Mahila Mandal who in turn sent a complaint to the police. Thereafter, the police came to the spot and recorded the statement of the prosecutrix and then a case under Section 376 IPC was registered against the accused vide FIR No.61 of 1992. The prosecutrix was got medically examined. The spot at which the rape was allegedly committed was inspected. Pieces of broken bangles which were lying there were taken into possession. The clothes of the prosecutrix were also taken into possession. Admittedly these clothes had been washed during this period. After the completion of investigation challan was filed. The accused was arraigned for having committed offence punishable under Section 376 IPC. During the course of 4 trial the prosecution examined 14 witnesses. The learned trial Court acquitted the accused. Hence, the present appeal. The first ground which has been taken against the prosecution by the learned trial court and which casts doubt on the prosecution version is the delay in lodging the FIR. The incident took place on 20.11.1992 whereas the FIR was lodged on 28th November, 1992. The explanation for the first day is that the prosecutrix was feeling ashamed and did not want to inform her husband that she had been raped. This explanation to some extent is plausible and could be accepted. However, admittedly the next day i.e. on 21.11.1992 the prosecutrix informed her husband at about 8 a.m. in the morning that she had been raped. Thereafter, the accused was found crossing the house of the prosecutrix about 2.30 p.m. and then he was apprehended by the husband of the prosecutrix. There is no explanation as to why the husband of the prosecutrix or the prosecutrix herself kept silent from 8 a.m. till 2.30 p.m. Even if the identity of the boy was not known then also a complaint could have been made to the Panchayat or to any other authority 5 that the prosecutrix had been raped. No explanation whatsoever has been given in this regard. According to the prosecutrix the accused was apprehended by her husband at 2.30 p.m. on 21.11.1992. The husband sates that he had apprehended the accused at about 5.30 pm or 6 pm. He admits that the accused had been pointed out to him by the prosecutrix at 2.30 p.m. but according to him he did not apprehend the accused at that time but caught hold of him only in the evening. There is a material contradiction between the statement of the prosecutrix and her husband in this regard. It is obvious that the husband is trying to explain the delay in lodging the FIR which explanation is totally false. According to the prosecutrix and her husband, for two days the matter was dealt with by the Panchayat and after two days the Panchayat Pradhan told the prosecutrix and her husband that the time to hold medico legal examination is over and nothing could be done in the matter. The Panchayat Pradhan has not been examined. One Sh.Krishan Lal, Member of the Panchayat has been examined as PW-5. According to him on 21.11.1992 when he returned to his village after visiting 6 some relations he was informed that the prosecutrix had been raped and he went to the house of the prosecutrix. He clearly states that he called the Pradhan who arrived the next day on 22.11.1992. This witness in no uncertain terms states that the Pradhan told the prosecutrix and her husband that the matter was not cognizable by the Panchayat and the same should be reported to the police. This totally belies the version of the prosecutrix and her husband. They were told on 22.11.1992 that they should report the matter to the police. It is also pertinent to note that Krishan Lal is the first cousin of the husband of the prosecutrix. Therefore, there is no reason to him to side with the accused. It even otherwise appears more probable that the Panchayat Pradhan and Members would tell the prosecutrix and her husband that the matter is a serious one which has to be reported to the police and the Panchayat has no power to take any action in this behalf. The delay from 22nd to 28th November, 1992 is sought to be explained on the ground that a complaint was made to the Mahila Mandal who in turn made a complaint to the police and the police thereafter came 7 to the village after receipt of the said complaint on 28.11.1992. PW-3 Smt.Sheela Wanti is the Pradhan of Mahila Mandal. According to her 2-3 days after the incident she went to the house of the prosecutrix and was informed that the prosecutrix had been raped by the accused. On the same date she sent a written complaint to the police. Surprisingly this written complaint has not seen the light of day. This complaint has not been produced by the prosecution. According to her the police came to the village on 28.11.1992 in response to her complaint. She however makes another contradictory statement that she had made the written complaint to the police on 28.11.1992 when the police came to the spot. Her statement is therefore full of contradictions and no reliance can be placed on the same. In cross examination she states that Amar Dev husband of the prosecutrix had given a written complaint to the Mahila Mandal and that a meeting of the Mahila Mandal was held on receipt of the complaint and a resolution was passed. Neither the complaint of Amar Dev nor the Resolution of the Mahila Mandal were produced in the Court. The statement of PW-3 is totally belied from the 8 statement of the Investigating Officer who states that he went to the village in connection with some excise case and it was only in the village that he was informed that the prosecutrix had been raped. Therefore, there is no cogent or reliable explanation for the inordinate delay of 8 days in filing the complaint. Another important fact is that in the first information report the prosecutrix had stated that she had been raped thrice. However, later she realized that her story that she had been raped thrice in a few minutes would not be believed. Therefore, in her examination in Court she stated that twice the accused attempted to rape her and she successfully resisted the same. However, in the third attempt the accused was successful in raping her. This is not a statement of virgin or a minor child. The prosecutrix here is a married woman who knew what is sexual intercourse. She admitted in cross examination that she is used to multiple coitus during the night. It would be totally impossible for her to have been raped thrice in a short span of time. This also casts a doubt on the version given by her. There are certain other contradictions pointed out by the learned trial Court which also cast doubt on the 9 prosecution version but we need not repeat the same since according to us there are other major flaws in the prosecution story. Two other important factors are that according to the site plan the prosecution was cutting grass on one side of the nullah and was raped on the other side. If three attempts had been made to rape the prosecutrix and there was a struggle the prosecutrix would have suffered some major abrasions and would have received other marks on her body if she had been dragged from one side of the valley across nullah to the other side. In fact the Investigating Officer admits that the edges of nullah were about 1- ½ ft. high and therefore in all probability, as held by the trial Court, she would have fallen into the nullah if she had resisted the advances of the accused. According to the prosecutrix she was wearing bangles on her wrists and these bangles broke at the time of the occurrence. She also states that she suffered bleeding on wrists. This is not corroborated by the medical evidence by Dr.C.L. Bhardwaj who states that he did not find any marks of injuries on the wrists. 10 For the foregoing reasons, we find that the prosecution has miserably failed to prove that the prosecutrix had been raped by the accused. We therefore find no reason to interfere with the well reasoned judgment of the trial court. The appeal is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ), J. February 22, 2010 ( Sanjay Karol ), J. PV