IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 193 of 1999 Date of decision: 26.5.2010 State of H.P. Appellant. Versus Kaul Ram Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the appellant: Mr. Rajesh Mandhotra, Dy. Advocate General. For the respondent: Mr. Yadhubir Singh vice Mr. K.D.Shreedhar, Advocate. Per Deepak Gupta, J, (oral) 1. This appeal by the State is directed against the judgement dated 13.1.1999 delivered by the learned Sessions Judge, Mandi in Sessions Trial No. 18 of 1997 whereby he acquitted the accused of having committed an offence punishable under Sections 376 of the Indian Penal Code. 2. The prosecution case is that the accused Kaul Ram forcibly committed sexual intercourse with the prosecutrix some time in January/February 1996. 3. PW-3, Dolu Devi, is the mother of the prosecutrix. According to her, the prosecutrix lives separately from 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 their family in a ‘Dogri’ at Neend. There the prosecutrix looks after a ‘Gharat’ and also the cattle which are kept in the ‘Dogri’. According to the prosecution, the prosecutrix is not fully mentally developed. The mother states that sometime in July 1996 she was helping the prosecutrix in taking a bath and saw that her stomach was swollen. She asked the reason and was informed by the prosecutrix that the accused had forcible sexual intercourse with the prosecutrix in the Dogri at Neend. Thereafter, PW-3 informed her husband Tej Singh PW-4 about the occurrence. 4. PW-4 Tej Singh states that he was informed by his wife that their daughter was carrying a pregnancy and that Kaul Singh is the father of the child. Kaul Singh admitted that he had had sexual intercourse with the prosecutrix. Thereafter, he complained to the Pradhan of the Gram Panchayat. PW-5 Chet Ram is the Pradhan of the Gram Panchayat, who also happens to the uncle of the prosecutrix since he is married to the real sister of the mother of the prosecutrix. The accused was summoned before the Panchayat and admitted his fault and also admitted that he is the father of the child. These proceedings were signed by the accused. According to the father he had reported the matter to the police but the police came to the spot after 2 days. 3 He admits that the matter was reported to the police after one month of the Panchayat being held. Before reporting the matter to the Panchayat the father waited for 10-12 days. The accused had first confessed in front of his father when he was alone. He also admitted that he had filed a complaint Ext.PW-4/A, which was written by Rattan Dass. In this complaint, there was no allegation of rape. All that was alleged was that accused had illicit relations with the prosecutrix and she was pregnant because of these illicit relations. It was further alleged that the accused should take over the responsibility of the child. 5. PW-5 Chet Ram states that when he received the application from Tej Singh, father of the prosecutrix, he sent notice Ext.PW-5/A. In this notice also there is no allegation of rape and all that alleged is that the accused had illicit relations with the prosecutrix. Thereafter, the accused is alleged to have made the extra judicial confession Ext.PW-4/B in which he admitted that he has raped the prosecutrix. This witness in cross-examination stated that the accused had also admitted his guilt in the presence of the Branch Manager of the Bank. 6. PW-6, Rattan Dass, is the witness to the confession Ext.PW-4/B and he is also the scribe of the 4 application Ext.PW-4/A. This witness had also scribed the confession Ext.PW-4/B. In reply to the Court question he admitted that the so called confession Ext.PW-4/A was dictated to him by Pradhan PW-5 and not by the accused though it was based on what the accused had stated in front of the Panchayat. PW-7 was also a member of the Panchayat. 7. Before dealing with the statement of the prosecutrix, we shall first deal with the allegations of the prosecution that the prosecutrix was mentally unsound and therefore, incapable of giving consent. No medical evidence has been led to prove that the prosecutrix is mentally unsound. The learned trial Court while recording her evidence has not noticed that she is unable to answer the questions. It has also come in evidence that the prosecutrix who was between 22 to 25 of age at the relevant time was living separately from her parents. She was managing a Gharat and looking after the cattle. If she was mentally unsound her parents would not permit her to live separately. Therefore, this allegation of the prosecution is not proved. 8. It would also be pertinent to mention that the learned trial Court while recording the statement of the prosecutrix has noticed that the witness does not 5 understand either Hindi or English and could only speak the local dialect and therefore, she was questioned by Shri Chet Ram, President of the Gram Panchayat, who is also a witness in the case. Probably the learned trial Court did not realize that Chet Ram was not a formal witness since he happened to be the uncle of the prosecutrix as mentioned here-in-above. He, in fact, was an important witness and it would have been better if the statement of the prosecutrix had been recorded with the help of some other person knowing the local dialects. 9. Be that as it may, even if the statement of the prosecutrix read as a whole it is more than apparent that she did not objected to or resist the sexual advances of the accused. She states that the accused came to her Dogri and locked the door of the cow-shed. He thereafter opened her Pajama and had sexual intercourse with her. True it is that she states that she did not consent but admittedly she did not make any attempt to resist the accused. She does not state that the accused threatened her in any manner. Therefore, her non-resistance itself in the circumstances would amount to consent. The fact that the prosecutrix was the consenting party to the sexual act is also apparent from the fact that for six months she did not complain 6 about the incident to any person. It was only when her mother questioned her as to why her stomach was swollen then she told the mother about the sexual relations with the accused. As pointed out above in the original complaint and the notice there is no allegation of rape and all that is stated is that the accused had illicit relations with the prosecutrix. 10. Coming to the extra judicial confession, it is a fact that in confession the word ‘Balatkaar’ has been used. This word would translate to rape. However, the confession Ext.PW-4/B is read as a whole it is clear that there is no admission by the accused of having committed forcible sexual intercourse with the prosecutrix against her wishes. PW-6 Rattan Dass, the scribe of the so called extra judicial confession, has admitted that the confession was dictated by the Pradhan and not by the accused. The Pradhan is closely related to the prosecutrix and the prosecutrix has admitted in her cross-examination that she had made the statement in Court on the asking of the Pradhan, the police and her parents. In such an eventuality, this extra judicial confession, which has been denied by the accused being a very weak piece of evidence cannot be relied upon especially when the other evidence placed on record clearly shows that the 7 prosecutrix was a consenting party to the sexual intercourse. 11. In view of the above discussion, we find no merit in the appeal, which is accordingly dismissed. The bail bonds furnished by the accused are discharged. ( Deepak Gupta ) Judge 26th May, 2010. ( Rajiv Sharma) ™ Judge.