IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 398 of 1999 Date of Decision: 3.8.2010 State of H.P. …Appellant. Versus. Hardyal Singh …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for Reporting? No. For the Appellant: Mr. Vivek Singh Thakur, Addl. A.G. For the Respondent: Mr. Tek Chand Sharma, Advocate. Per Deepak Gupta, J.(Oral). 1. This appeal by the State is directed against the judgement dated 3.7.1999 delivered by the learned Sessions Judge, Kullu, in Sessions Trial No. 5 of 1999 whereby he acquitted the accused of having committed an offence punishable under Section 376 IPC. 2. On 27.6.1996 Ses Ram, father of the prosecutrix, lodged a report at Police Station, Manali to the effect that his daughter who is handicapped was raped by the accused about three and half months earlier when she was going to attend classes in the Prodh Shiksha Kendar (Adult Literacy Centre). It was alleged that the accused 2 had forcibly taken the prosecutrix to his house and committed sexual intercourse with her. It was only when she became pregnant and her mother asked her about the cause of pregnancy that she disclosed these facts to the parents and then the complaint was lodged. After filing of the complaint, the prosecutrix was examined by PW-5 Dr. Geeta Kaul, who found that the prosecutrix was carrying pregnancy of 20 weeks. She also found that the prosecutrix was totally blind in the right eye but her left eye vision was normal. 3. There is no dispute with regard to the age of the prosecutrix. She was more than 18 years of age at the time of the incident. The handicap is total lack of vision in one eye. This is not such a handicap which would make the prosecutrix unable to give consent to an act of sex. On the date of examination i.e. 27.6.1996 the doctor found the prosecutrix was pregnant by 20 weeks, which would mean that the conception had taken place some time in the end of January or beginning of February of the year 1996. The prosecutrix in her evidence stated that within two months of the incident she had disclosed this fact to her mother. This would mean that the mother knew about the said fact some time in the end of March 3 or beginning of April. Even then a report was not lodged and a report was lodged only in the month June, five months after the alleged occurrence. No doubt, delay by itself may not be fatal to the prosecution in all cases but in a case like the present one, there must be some reasonable explanation for the delay. We are dealing here with a prosecutrix who was a major, who alleges that she was raped five months earlier. Why did she keep silent for this period? There is no explanation in the statement of the prosecutrix. She does not state that she was threatened or that for any other reason she could not disclose this fact. It is the parents who say this but not the prosecutrix. 4. The allegation of the prosecutrix is that she was going to attend classes at the Adult Literacy Centre, when she was accosted by the accused. This version does not appear to be correct because even according to her the incident took place at 11 p.m. Adult literacy classes are held in the evening and not at mid night. No evidence has been led by the prosecution to show that any classes were scheduled to be held at that late hour of 11.00 p.m. 5. It would also be pertinent to mention that after the child was born the prosecutrix on behalf of the child had 4 filed a petition under Section 125 Cr.P.C. for grant of maintenance. This petition was filed in November, 1998 and the age of the child was shown to be two years. This petition was dismissed holding that it had not been proved that the minor son is the legitimate son of the respondent. This judgement has attained finality and has not been appealed from. Even if we ignore this judgement, for the reasons stated above, we are of the considered view that the act of sex, if any, was consensual in nature. 6. In view of the above discussion, we find no merit in the appeal, which is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. 3rd August, 2010 ( Sanjay Karol ) ™ Judge.