IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 514 of 1999 Date of Decision : July 24, 2010 State of Himachal Pradesh Appellant Versus Sh. Sanjay Kumar 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. Rajesh Mandhotra, Deputy Advocate General for the appellant. For the respondents : Mr. Anup Chitkara, Advocate, for the respondents. Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgment dated 23.8.1999 passed by the learned Addl. Sessions Judge, Sirmaur District at Nahan, H.P. in Sessions Trial No. 9-N/7 of 1999 whereby the accused have been acquitted of having committed offences punishable under Sections 363, 366 and 376 read with Section 34 of the Indian Penal Code. Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 2. On 24.3.1997 at about 10.30 a.m. Smt. Bimla Devi (PW- 1), mother of the prosecutrix lodged a report at Police Station, Nahan relevant portion of which is that she after break up of her previous marriage had settled with Sh. Bansi Lal in village Kali- Kehad (Narag) along with her children including the prosecutrix. Her husband Sh. Bansi Lal remained ill and she was living with her family in a tent. About five days prior to the lodging of the report accused Sanju along with two other persons came to their residence. These two persons came up to her tent whereas accused Sanju remained below. They offered liquor to her husband which he refused. In the evening these two persons again came and abducted her daughter and took her away and later raped the prosecutrix. On the basis of this report F.I.R. (Ext. PW 1/B) was registered and investigation was done. During investigation the prosecutrix (PW-3) was recovered and medically examined. Her examination was also done for ascertaining her age. On the basis of the material collected during investigation challan against the accused was filed for having committed offences punishable under Sections 363, 366 and 376 read with Section 34 of the Indian Penal Code. The case was committed to the Court of Sessions. Accused were charged with the offences aforesaid. They pleaded not guilty and claimed trial. The accused have been acquitted. Hence the present appeal. 3. The prosecutrix (PW-3) herself was declared hostile on the ground that she was keeping silent and not answering the questions put to her by the Public Prosecutor. In our opinion she 3 could not have been declared hostile on this ground. Be that at it may be, the fact is that even when she was cross examined by the Public Prosecutor she did not admit some of the statements which were to be used against the accused. Most importantly in cross examination she stated that on the same night she had come back. If she had come back the same night why was the report lodged after five days? She also admitted that she was 21 years of age when her examination was conducted on 27.7.1999. The offence is alleged to have taken place on 24.3.1997. This would mean that she was about 19 years of age when the occurrence took place. She has also not identified any of the accused clearly in Court. She in fact admitted that on account of darkness she could not identify the persons who abducted her. She also admitted that even when the accused persons were brought in the police station she had told the police that they were not the same persons. 4. Even the statement of the mother Smt. Bimla Devi does not inspire confidence. Though she had partly stood by what she had written in the complaint there are material contradictions in her statement. She in her examination-in-chief itself stated that she could not recognize the accused persons as it was dark. She also admitted in the cross examination that the prosecutrix was about 20 years of age. She also admitted that before the police she had stated that she could not identify the three accused persons. 5. In the light of the statements of the prosecutrix and her mother there is no evidence whatsoever against the 4 accused. Therefore the appeal is dismissed. Bail bonds furnished by the accused are ordered to be discharged. (Deepak Gupta), Judge. (Sanjay Karol), Judge. July 24, 2010 (PK)