IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 286 of 1999 Date of Decision : June 14, 2010 State of Himachal Pradesh Appellant Versus Yogesh Kumar alias Golu Respondent 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. Vivek Thakur, Addl. Advocate General for the appellant. For the respondent : Mr. Varun Chandel, Advocate, vice Mr. Rajiv Jiwan, Advocate, for the respondent. Justice Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgment dated 24.10.1998 delivered by the learned Sessions Judge, Sirmaur District at Nahan, H.P. in Sessions Trial No. 3-ST/7 of 1998 whereby he acquitted the accused of having committed an offence punishable under Section 376 of the Indian Penal Code. 2. The prosecution story is that the prosecutrix at the relevant time had just attained the age of sixteen years. On 17.8.1997 she was swinging on a ‘jhula’ from Mango Tree when the accused Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 assaulted her from behind. He showed her a knife and threatened to kill her in case she resisted his advances. After putting the prosecutrix under the fear of death the accused took her to a nearby ‘khud’ and committed sexual intercourse with her. The prosecution case is that while the prosecutrix was being subjected to forcible sexual intercourse Smt. Saroj Bala (PW-5), aunt of the prosecutrix crossed and saw the incident. She questioned the accused and the prosecutrix. The accused begged forgiveness from Smt. Saroj Bala. In the mean while Smt. Gian Devi (PW-6), mother of the prosecutrix reached at the spot. On seeing her accused ran to the house of his aunt Smt. Sneh Lata with whom he was residing at the relevant time. The mother of the prosecutrix went to the house of Sneh Lata who assured her that she would produce the accused within a week of the occurrence before the prosecutrix and her mother Smt. Gian Devi. No First Information Report was lodged because of the assurance given by Sneh Lata. They waited for one week and thereafter F.I.R. (Ext. P-8) was lodged at Police Station, Nahan on 24.8.1997. After lodging of the F.I.R. prosecutrix was got medically examined. Other investigation was completed and after completion of investigation challan was filed against the accused. Accused was tried and has been acquitted by the trial Court on the ground that there is nothing on record to prove that the accused had forcibly assaulted the prosecutrix. Hence the present appeal. 3. The prosecutrix in her statement in Court has repeated what is mentioned in the complaint. She was cross examined at length 3 and in cross examination admitted that she alongwith her sister Uma Devi had gone to offer prayers at a temple situate at a short distance from their house. Near the temple there is a pond. Accused along with Neeraj were fishing in the pond. Uma, sister of the prosecutrix offered ‘prashad’ to both the boys. Thereafter Neeraj and Uma went away. 4. According to the prosecutrix while she was swinging on the ‘jhula’ accused caught hold of her from behind and threatened her with a knife. She in cross examination admitted that when Smt. Saroj Bala came she never informed that the accused had threatened her with knife. In fact she admits that even when her mother came she never told her about being threatened with knife. The first version of the knife appeared one week after the incident. For seven days the prosecutrix and her mother kept silent and only thereafter lodged the report. It is for the first time in this report that there is a mention of the prosecutrix being threatened with a knife. Smt. Saroj Bala (PW-5) states that when she was crossing the fields she saw the accused and the prosecutrix. Both of them were not wearing the lower portion of their clothes and were naked waist downwards. However, according to her nothing else was done when she saw them. 5. From the statements of the prosecutrix, her aunt and mother it is obvious that for one week the family waited to settle the matter with the accused. It is only after the accused and his father refused the marital proposal that the case was lodged. In case the 4 prosecutrix had been threatened with a knife, as she now states, she would have told this fact to her aunt and mother but admittedly this was not done. The incident is stated to have taken place at 1:30 p.m. barely 15 – 20 yards from the house of the prosecutrix and less then one furlong from the temple. It cannot be believed that at this time, during the day light hours, the accused could have taken away the prosecutrix forcibly by showing her a knife. This knife was never recovered by the police nor produced in evidence. Saroj Bala does not say that she saw the accused with a knife. Accused is stated to have run away from the spot. If he had done so the knife would have been left behind and could have been recovered easily. Even Smt. Gian Devi (PW-6) is silent with respect to the knife. Even though they had not seen the knife themselves they would have stated that the prosecutrix told them that the accused threatened her with a knife. 6. The evidence of the Doctor also does not support the prosecution case. She was examined more than one week after the incident and according to Dr. (Mrs.) Archana Gupta (PW-1) the prosecutrix was habitual to sexual intercourse. In fact there is no clear cut medical evidence to indicate that the prosecutrix was actually subjected to sexual intercourse because her medical examination was done one week after the incident. True it is that the Doctor has stated that there is nothing to suggest that prosecutrix was not subjected to sexual intercourse but it is a negative statement and the Doctor has not positively stated that the 5 prosecutrix was actually subjected to sexual intercourse. This medical evidence has to be read with the statement of Smt. Saroj Bala (PW-5) who has stated that she only saw the accused and the prosecutrix standing with their trouser and salwar missing. She did not see anything else. 7. In view of the aforesaid evidence the learned Sessions Judge was fully justified in acquitting the accused. We see no reason to disagree with the judgment of the learned trial Court. Appeal is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. (Justice Deepak Gupta), Judge. (Justice Sanjay Karol), Judge. June 14, 2010 (PK)