IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 213 of 1999 Reserved on: May 31, 2010 Date of Decision : July 7, 2010 State of H.P. …Appellant v. Varinder Singh & Ors. …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, Dy. A.G. For the respondents: Mr. Dushyant Dadwal, Advocate Sanjay Karol, J. For an offence, which is alleged to have been committed on 26.5.1996, accused were put to trial. In terms of judgment dated 23.2.1999 passed by learned Addl. Sessions Judge-II, Kangra at Dharamshala, in Sessions Case No.11- P/1997, titled as State of H.P. vs. Varinder Singh & Ors., the accused stand acquitted of the charged offence. 2. It is the case of the prosecution that on 26.5.1996, the prosecutrix (PW-3) was sleeping along with her two daughters in the first floor of the house taken by her on rent at 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 village Moondhi. At about 10.30 P.M. the accused persons opened the iron chain (Sangli) of the main door of the house which was on the ground floor and entered the house with an intention to commit rape on the prosecutrix. Accused Mohinder Singh and Varinder Singh entered the room on the 1st floor where the prosecutrix was sleeping whereas accused Daljit Singh sat near the staircase leading to the 1st floor. On the asking of accused Mohinder Singh accused Varinder Singh gagged the mouth of the prosecutrix with her dupatta and caught her shoulder. Then co-accused Mohinder Singh tore her shirt and after removing her salwar committed rape on her. Thereafter, accused Mohinder Singh caught hold of the prosecutrix and accused Varinder Singh raped her. At the end prosecutrix was again raped by accused Mohinder Singh. The prosecutrix was able to identify both the accused persons in the light of the torch. She also noticed the presence of accused Daljit Singh. She was threatened by accused Varinder Singh not to disclose the incident to anybody or else she would be killed. After the accused had left, the prosecutrix fell unconscious and woke up only in the morning of 27.5.1996 at about 5.00 a.m. when she felt acute pain in her abdomen. However for the whole day she remained at home and only on 28.5.1996 did she visit the house of her neighbour Smt. Amarjeet Kaur to whom the incident was narrated by her. She also requested her for some money for treatment which was not given to her. Consequently she went back to her house and it was only on 29.5.1996 that husband of 3 Smt. Amarjeet Kaur took her for medical treatment to Dr. Baldev a private Doctor at village Thural. On the same day she returned to her house and narrated the incident to her brother Sh. Rajinder Singh (PW-5) and nephew Sh. Anil Kumar who happened to visit her. The said persons informed her father Sh. Parmeshwari Dass (PW-4) who visited her on 30.5.1996. She also narrated the incident to him. Both PW-3 & PW-4 visited the Police Station and lodged report (Ext.PW-8/A) on the basis of which F.I.R. dated 30.5.1996 (Ext.PW-6/A) was registered with Police Station Palampur. The prosecutrix was got medically examined by Dr. Veena Sharma (PW-1) who issued medical certificate (Ext.PW-1/C) and after considering the report of the Chemical Examiner (Ext.PW-1/B) gave her final opinion (Ext.PW- 1/D). The clothes of the prosecutrix were taken into possession vide memo (Ext.PW-3/A). The accused persons were also got medically examined. 3. With the completion of the investigation the challan was presented in the Court for trial. The accused persons were charged for having committed an offence punishable under Sections 456, 376 read with Section 34 IPC to which they did not plead guilty and claimed trial. To prove its case the prosecution examined 11 witnesses. Statement of the accused under Section 313 Cr.PC was also recorded and in defence they also examined two witnesses. 4. The Court below acquitted the accused of the charged offence on the ground that the statement of the prosecutrix did 4 not inspire confidence and that there was delay in lodging the FIR. 5. Having considered the material in its entirety, we are of the view that no ground for interference is made out at all. The learned Additional Sessions Judge has relied upon the material in its entirety and has correctly appreciated the evidence on record. No illegality or perversity could be pointed out in the impugned judgment. 6. The prosecution case primarily rests on the statements of the prosecutrix (PW-3), her father Sh. Parmeshwari Dass (PW-4) and her brother Sh. Rajinder Singh (PW-5). Other witnesses are official witnesses including the police officials who carried out the investigation. 7. As per the opinion of Dr. Veena Sharma (PW-1), the prosecutrix was habitual of sexual intercourse. She did not find external marks of injury or struggle on the body of the prosecutrix. She did not rule out the possibility of rape/intercourse for the reason that blood was found on the vaginal swabs but however it was clarified by her that this could be due to the menstruation in the mid cycle. 8. Undisputedly prosecutrix has two daughters aged 5 and 7 years. It stands admitted by the prosecutrix that within a short span of time in village Moondhi itself she has changed rented accommodation at least 4 times. This may not give credence to the defence set-up by the accused that the prosecutrix was a 5 woman of loose virtue but however there is also no explanation for the reason behind the same. 9. Be that as it may be, the fact of the matter is that the alleged incident took place in the night of 26.5.1996 at about 10.30 p.m. when the prosecutrix was sleeping in the upper storey of her rented accommodation along with her two daughters. She is alleged to have been raped twice by accused Mohinder Singh and once by accused Varinder Singh. She admits that her hands and feet were not tied. She also admits that at the time when she initially protested her mouth was open, yet neither did she raise any hue and cry nor did she show any sign of struggle or resistance. No marks of injury were found either on the body of the prosecutrix or any of the accused persons. 10. It has come on record that the place of occurrence is surrounded by the houses of S/Sh. Onkar Singh and Vikram Singh. In fact house of Sh. Rasil Singh adjoins the Courtyard of the house of Sh. Roshan Lal which was taken on rent by the prosecutrix. She admits that voices and cries from the rented accommodation can easily be heard by the persons residing around the locality. She also admits that the adjoining houses were occupied by the family members of the respective owners and the house of accused Mohinder Singh is just at a distance of 10 paces from her house. She also admits that she was on visiting terms with Smt. Sulochna Devi wife of Sh. Onkar Singh. In this background her version that the accused persons forcibly 6 committed sexual intercourse without her consent does not inspire confidence. 11. According to the prosecutrix the alleged incident took place on 26.5.1996. On 27.5.1996 she kept on lying in her house through out the day and it was only on 28.5.1996 that she went to the house of one Jat Master and met his wife Smt. Amarjeet Kaur from whom she demanded money for treatment. The same was however refused but she narrated the incident to her. Thereafter, the prosecutrix returned back to her house and it was only on 29.5.1996 that the said Jat Master took her to a private Doctor at Thural. There she was administered treatment during the day. However, in the evening she come back home. Her brother Sh. Rajinder Singh and nephew Sh. Anil Kumar who happened to visit her were also narrated the incident. She admits that both of them stayed with her during the night and left only the next morning. On 30.5.1996 she was again taken by the said Jat Master to the very same Doctor who again administered treatment to her. Smt. Savitri Devi, Pradhan of the village visited her at the Clinic to whom the incident was also narrated. She was advised by the said Pradhan to report the matter to the police. In the meanwhile, her father came and a complaint written by him was handed over to the Pradhan who after endorsing the same asked the prosecutrix to visit the Police Post at Bhawarna. Accordingly the report was lodged there. 12. Now the prosecution has not examined Smt. Amarjeet Kaur, her husband Jat Master, Dr. Baldev or Smt. Savitri Devi. 7 The complaint alleged to have been written and handed over to the Pradhan has also not been produced on record. 13. Be that as it may be, there is no explanation as to why the prosecutrix did not inform the police or the authorities on 29.5.1996 when she had visited the Doctor at Thural which is far of from village Moondhi. She also did not reveal the incident to the Doctor. Surprisingly even her brother did not take any action on 29.5.1996 when the incident was allegedly narrated to him. He could have conveniently reported the matter to the police or at least raised the issue with the neighbours and the relatives. Surprisingly PW-5 states that he did not inform anyone about the incident of rape. This is not a normal conduct and behaviour of a brother. Even on her second visit to the Doctor on 30.5.1996 she did not inform the incident to the authorities. Even PW-4 admits not to have disclosed the incident to the Doctor who had administered treatment to the prosecutrix at Thural. Why it was not done has not been explained. Assuming that she was not in a condition to move out of the house on 27.5.1996, she could have conveniently called for the neighbours through her children. Further even on 28.5.1996 she could have gone to the house of Sh. Onkar Singh and narrated the incident to Smt. Sulochna Devi with whom she was on visiting terms. There is a Govt. Hospital at Thural. She could have conveniently taken medical treatment there. 14. We find that there has been inordinate and unexplainable delay in lodging of the F.I.R. rendering the prosecution version 8 to be extremely doubtful. Police Post Bhawarna is just at a distance of 8 to 9 kms. from village Moondhi. 15. It is her version that she had sent Gandhi and Kaka Ram to call for her father. Even the said persons have not been examined. This stands contradicted by PW-5 according to whom it was he who had informed his father. In totality, the version of the prosecutrix does not inspire confidence. There is also no medical evidence to corroborate her statement. 16. The accused have 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 person 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. (Deepak Gupta) Judge. July 7, 2010. (Sanjay Karol) (rana) Judge.