IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. 415 of 2000 Decided on: 22.11.2010 State of H.P. ..…Appellant Versus Daulat Ram. ..…Respondent Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting?1No. For the appellant : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. For the respondent : Mr. Y.P. S. Daulta, Advocate. Sanjay Karol,J. (Oral) For an offence, which is alleged to have been committed on 17.9.1998, accused was put to trial. In terms of judgment dated 24.4.2000, passed by learned Sessions Judge, Sirmaur, District at Nahan, H.P., in Sessions Trial No. 21-ST/7 of 1999 titled as State of H.P. Vs. Daulat Ram, accused stands acquitted of the charged offence. 2. It is the case of the prosecution that on 17.9.1998, prosecutrix (PW-2) had gone to graze cattle in the jungle near Ram Nagar. At about 1200 noon, she was returning home for 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 taking meals when accused caught her and took her to a maize field belonging to Guman Singh. There he tore her clothes and broke the string of her salwar. Thereafter, he laid the prosecutrix on the field and forcibly committed sexual intercourse against her will. Prosecutrix tried to rescue herself and she bit the accused with her teeth on his cheek. After committing sexual intercourse, accused ran away from the spot. Prosecutrix wore her clothes, went home and narrated the incident to her mother Smt. Shanti Devi. Her father Shri Mehar Singh (PW-9) was not available in the village till 19th of September, 1998. On his return, incident was narrated to him by the mother of the prosecutrix. Consequently, on 21st of September, 1998 the father reported the matter to the police, on the basis of which FIR No. 400 (Ext. PD/1) dated 21.9.1998 was registered with the Police Station, Paonta Sahib, under Section 376 IPC. Police commenced the investigation. Prosecutrix was got medically examined by Dr. (Mrs.) Shahida Ali, Medical officer, Civil Hospital, Paonta Sahib on 22.9.1998, who issued (MLC Ext.PC). Clothes of the prosecutrix (Exts. P1 and P2) were taken vide memo (Ext.PB). The accused was examined by Dr. S.N. Sachan (Dental Surgeon), who issued MLC (Ext.PA). In order to prove the age of the prosecutrix, extract of the Pariwar Register (Ext.P3) was obtained by the police. Clothes of the prosecutrix were sent for chemical analysis and report of the Chemical Examiner (Ext.PF) was also obtained. With the completion of investigation, challan was presented in the Court for trial. 3 3. The accused was charged for having committed an offence punishable under Section 376 IPC, to which he did not plead guilty and claimed trial. 4. In order to prove its case, prosecution examined ten witnesses and the statement of accused under Section 313 Cr.P.C. was also recorded. The accused took the following defence:- “The prosecutrix has deposed falsely against me. I have done nothing with her. The prosecutrix is closely related to me and had love affairs with me and wanted to marry me which proposal was resisted by her father and other family members and she was engaged some wherelese (sic). Moreover, Sh. Mehar Singh is having land dispute with my father as such out of annoyance and enmity the prosecutrix and Mehar Chand in connivance with each other got false case registered against me. No other witness of Illaqa has deposed against me. The prosecutrix has given a false version to the police and in the court. I am innocent.” 5. The Court below acquitted the accused of the charged offence, hence the present appeal. 6. From the statement of Dr. (Mrs.) Sahhida Ali (PW-8), it is apparent that except on the left breast no injury marks were found on the body of the prosecutrix and prosecutrix was habitual to sexual intercourse. 7. According to the prosecutrix, she narrated the incident to her mother on 17th of September 1998 itself. Now mother has not been examined in the Court. From the testimonies of prosecutrix (PW-2) and Mehar Singh (PW-9), it is quite apparent that Gulab Singh, aged 21 years, eldest son of 4 Mehar Singh had come to know of the incident prior to the date when it was narrated by the mother to the father. Yet the matter was not reported to the police by the family. It is unbelievable that the brother would not take any action in this regard. It is an extremely unnatural conduct on the part of the complainant family. That apart, Mehar Singh admits that on 19th of September itself his wife had informed him about the incident. Yet he chose not to report the matter either on the 19th or on the 20th. He admits that he knew where police post Singhpura was situated. He also admits that he cannot tell as to why he did not report the matter there and waited for two days to come to the police station and report the matter. Thus, in the instant facts, in our considered view, inordinate delay in lodging the report has not been explained by the prosecution witnesses. Definitely it casts a doubt on the prosecution story. 8. Prosecutrix (PW-2), no doubt, has supported the prosecution and has narrated the version as per the prosecution story. According to her, when the accused caught her and took her to the maize field she tried to rescue herself by giving bit with her teeth on the cheek of the accused. Even though she resisted the advances of the accused but however, he succeeded in his attempt. However, immediately, in cross-examination, she states that she had given leg blows to the accused and maize plants were there at the place where crime took place. She received abrasions on her back and lower portion of her body. Now, this version of hers stands contradicted by medical evidence on record. No such injuries were found on her body. She does not state having received injuries on her breast. 5 Further, according to her blood had come out from her private parts which had fallen on the ground and also her salwar. Even, this version stands contradicted by the report of the Chemical Examiner as no blood was either found or collected by the police from the spot. 9. According to the prosecutrix, incident was witnesses by Balbir Singh and Guman Singh. Now, prosecution has not examined these persons. The offence allegedly took place in the fields of Guman Singh. He was relevant witness and prosecution ought to have examined him. Offence is alleged to have taken place in broad day light in the open fields. According to the prosecutrix she cried for help and none came. Now, this stands contradicted by her initial version that Guman Singh and Balbir Singh had witnessed the occurrence. Also it does not appear to be true. She also admits that house of Mani Ram is situated adjoining to the place of occurrence and his family also resides there. It is not the case of the prosecution that none was present in the house at that time. Her cries would have definitely attracted attention in the house at that time. We also find that in Court she had made several improvements from her earlier statement (Ext.DA) recorded by the police. Her version that accused had put his hand on her mouth and that she had cried for help is not mentioned therein. In this background, version of the prosecutrix does not inspire confidence. Sexual intercourse, if any, appears to have been with her consent. Statements of the prosecution witnesses do not inspire confidence. It cannot be said that prosecution has been able to prove its case. 6 10. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (R.B. Misra), Judge. November 22, 2010 (Sanjay Karol), Judge. (vs)