IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Appeal No. 339 of 1995 Date of Decision : February 22, 2010 State of H.P. Appellant Versus Prithvi Singh and others Respondents Coram: Hon’ble Mr. Justice Deepak Gupta, Judge Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Vivek Thakur, Addl. Advocate General for the appellant. For the respondents : Mr. Rupinder Singh, Advocate, for respondents No. 2 to 4 Deepak Gupta, J. (Oral) Actual date notices were issued to the accused since the learned counsel who was representing them had been elevated as a Judge of this Court. Notices issued to respondent No. 1 were received back with a report that the said respondent had died. Alongwith the report of the police officials, a certificate of the Gram Panchayat was attached. On 5.11.2008 the learned Deputy Advocate General had sought one week’s time to verify this fact. According to Sh. Vivek Thakur, learned Addl. Advocate General no information has been received in this regard. In view of the fact that the report is submitted on the basis of the certificate 1 Whether reports of Local Papers may be allowed to see the judgment? 2 of the Gram Panchayat and more than one year has elapsed the appeal against respondent No. 1 is dismissed as having been abated. The prosecution story in short is that on the night intervening 9th and 10th May, 1993 prosecutrix Padma Devi was alone at home. Her husband Sh. Mohi Ram had gone to catch fish. The children of the couple were at home with the prosecutrix. Around 11.00 P.M. or 12.00 midnight accused Prithvi Singh (since deceased) accompanied by respondents No. 2 to 4 came to the house of the prosecutrix. Prithvi Singh knocked on the door and asked Padma Devi to open the door. When she refused to do so then Prithvi Singh kicked the door which swung open. Thereafter, Prithvi Singh went inside the room and forcibly removed the salwar of Padma Devi and raped her. Immediately thereafter Mohi Ram, husband of the prosecutrix returned home. Accused gave him a push and ran out. The other three accused remained outside the room and threatened Mohi Ram that in case he lodged report he would be killed. Report was lodged with the police on 11th May, 1993 and F.I.R. was recorded. The clothes, which the prosecutrix was wearing, were taken into possession. The prosecutrix was medically examined and spot was inspected. After investigation was completed challan was filed and the accused arraigned for trial for having committed offences punishable under Sections 457 and 376(2) of the Indian Penal Code. During the course of trial the prosecution examined twelve witnesses. After conclusion of the trial the accused have been acquitted. Hence the present appeal. As mentioned above, main accused Prithvi Singh has expired, therefore, we are confining our discussion and reference to the prosecution case only so far as it relates to the accused/respondents No. 2 3 to 4 who are represented before us. Admittedly no overt role is ascribed to the three accused. All that is stated is that they remained standing outside when Prithvi Singh broke open the door and raped the prosecutrix. After Prithvi Singh ran away they threatened Mohi Ram. At the outset we may notice that though the incident is stated to have taken place on the night intervening 9th and 10th May, 1993 the F.I.R. was lodged on 11th May, 1993. The explanation given by the prosecution is that first Mohi Ram and his wife went to the Police Post Sangarah where they were advised that the jurisdiction is that of Police Station Renukajee and they should go there. They had to cover a long distance on foot. According to the prosecution they came back home because they did not have money to take bus to reach Renukajee. Delay by itself, especially in a case of rape, is not sufficient to shatter the prosecution case. But the explanation for the delay must be plausible. Normally in cases of rape the delay occurs because the prosecutrix is either reluctant to inform the police or is not herself in a position to inform the police and therefore waits for her family members. Here, the prosecution version is that when the crime was being committed the husband returned home. If that be so and the husband was aware then there is no valid explanation for the delay. No evidence worth the name has been led except for the bald statement of the prosecutrix and her husband to show that the prosecutrix and her husband actually visited Police Post Sangarah. If they had gone to the police, in the case of such a serious offence it was the duty of the officer incharge of such police post to have telephonically inform the police station concerned of such offence. Even if the prosecutrix and her husband had come home they would have informed the Pradhan of the village or some other village elder about the 4 incident and information could have been sent to the police station. The evidence in this behalf is against the prosecution because the Pradhan has deposed that he was never informed about the incident. Thus there is no valid explanation for the delay in lodging the F.I.R. Coming to the merits of the case according to the prosecution accused Prithvi Singh came inside the room while the other three accused stood guard to prevent anybody from rescuing the prosecutrix. If that were so then Sh. Mohi Ram could not have entered the house without first having a struggle with the other three accused. This cast doubt on the prosecution version. Both Sh. Mohi Ram (PW-4) and the prosecutrix (PW-1) state that accused Prithvi Singh was still inside the room when Sh. Mohi Ram entered the room. According to them Prithvi Singh was holding his ‘pajama’ and underwear in his hands. Then how did the accused ran away after wearing his clothes. This circumstance has also not been examined. According to the prosecution the prosecutrix was wearing bangles on her wrist and those bangles broke when the accused used force and she suffered injuries in the wrist. However, the Doctor (PW-2) has found no injuries on the wrist. According to the prosecution the prosecutrix went to the hospital wearing the same salwar and shirt which she was wearing at the time of the occurrence. This fact is stated by the Doctor (PW-2). The clothes were taken into possession and sealed by the Doctor and sent to the Chemical Examiner. The Chemical Examiner vide report Ext. PN has opined that the said clothes did not bear any stains of semen or blood. The prosecutrix has stated that semen fell on her vagina and that she showed the stains caused by semen to the Doctor at the time of her medical examination. 5 But the Chemical Examiner’s report shows no stains. This also falsifies the prosecution case. Therefore, the learned trial Court was justified in acquitting the accused. We find no reason to interfere with the well reasoned judgment of the learned trial Court. Appeal is accordingly dismissed. Bail bonds furnished by the accused are ordered to be discharged. (Deepak Gupta), Judge. (Sanjay Karol), Judge. February 22, 2010 (PK)