IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 86 of 1995 Reserved on.: 6th March, 2009. Date of Decision: 12th March, 2009 State of H.P. …Appellant. Versus. Rajesh Kumar. …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K.Ahuja, Judge. Whether approved for Reporting? No. For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the Respondent: Mr. Bimal Gupta, Advocate. Per Deepak Gupta, J. This appeal by the State is directed against the judgement of the learned Sessions Judge, Shimla dated 19.9.1994 passed in Sessions Trial No. 6/9-s/7 of 1993 whereby he acquitted the accused of having committed an offence punishable under Section 376 of the Indian Penal Code. The prosecution story in brief is that on 10.8.1991 the prosecutrix had gone to graze cattle in the forest. In the evening the accused came from behind, caught hold of the arm of the prosecutrix and threw her on the ground. He then tore her clothes including her Salwar and underwear and committed forcible sexual intercourse with her. The prosecutrix was going to raise an alarm but the accused gagged her mouth with the help of a scarf which the prosecutrix was wearing on her head. She then became unconscious. She regained conscious after about half an hour and noticed that blood was oozing out from her private part. Accused in the meantime ran-away towards the forest. The prosecutrix then came home but did not disclose the matter to any one. She took her meals and went to sleep. Next morning after having a bath, she went to the house of the accused and met the parents of the accused. When they questioned her as to why she had come, she told them that she had come to marry the accused. The accused allegedly hid himself. The prosecutrix stayed one night at the house of the accused and the next day she was turned out by the Bhabi and mother of the accused. After she returned to her house, she narrated the incident to her mother and then the mother called 3-4 other persons and all of them went to the house of the accused again but the mother of the accused did not allow anyone to enter the house. Then they went to Rohru where they met a lawyer and got a complaint drafted. After presentation of the complaint, the learned Court sent the complaint to the police station for investigation. Thereafter, investigation was conducted. The prosecutrix was got medically examined and on completion of investigation challan was filed. The learned trial Court has acquitted the accused. Hence, the present appeal. We have heard Shri Rajesh Mandhotra, learned Deputy Advocate General and Shri Bimal Gupta, learned counsel for the accused. The prosecutrix in her statement in Court while appearing as PW-1 has by and large repeated what she had stated in the complaint. However, it would be pertinent to note that in the written complaint Ext.PW-1/A one of the allegations was that the accused had committed sexual intercourse with the prosecutrix under the pretext that he would keep the complainant as his wife. However, while appearing in Court the prosecutrix has not stated anything in this regard. Her only allegation is that she was forcibly subjected to sexual intercourse. There are some glaring shortcomings in the prosecution case. In the first instance, the prosecutrix alleged that the accused committed sexual intercourse under the pretext that he will marry her. In the same breath she says that she was forcibly subjected to sexual intercourse. These two versions cannot co-exist. The prosecutrix is admittedly aged more than 18 years. There is no explanation for the delay of three days in lodging the complaint. If the accused had raped the prosecutrix there was no need for her to visit the house of the accused next day. She did not inform her mother or any other person that she had been raped. If she had not consented to the sexual intercourse and had been raped against her wishes she would have definitely complained to her mother in this regard. In Court the prosecutrix stated that the accused was not previously known to her and she did not even know where he was residing. There is no explanation as to how she then reached the house of the accused. She also states in cross-examination that when the accused committed sexual intercourse with her she was totally naked. According to her she resisted and scratched the face of the accused. She also states that she was forced to lay down on the ground on which there were bushes and she sustained injuries on her back. However, her medical examination does not reveal any injury on her back. Similarly, the medical examination of the accused does not show that he had any injury on his face. The whole story put forth by the prosecution is totally unbelievable. The evidence on record including the medical history of the prosecutrix shows that the prosecutrix was aged about 20 years and she was accustomed to sexual intercourse. The evidence also clearly shows that she was a consenting party to the sexual intercourse. In view of the above discussion, we find no merit in the appeal and the same is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ), J. 12th March, 2009 ( V.K.Ahuja ). J. ™