1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cri. Appeal No.268 of 1998 Reserved on : 1st July, 2010 Date of Decision: 20th August, 2010 State of Himachal Pradesh Appellant Versus Rajesh Kumar @ Raju and another Respondents Coram The Hon’ble Mr. Justice Deepak Gupta,J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr.Vivek Singh thakur, Addl. A.G. For the respondent: Mr. Sandeep Chauhan, Advocate, vice Mr. K.S.Kanwar, Advocate. Sanjay Karol, J. For an offence, which is alleged to have been committed on 25.9.1996, accused were put to trial. In terms of judgment dated 24.2.1998 passed by learned Sessions Judge, Sirmaur District at Nahan, in Sessions Trial No.29-N./7 of 1997 , titled as State of H.P. vs. Rajesh Kumar alias Raju and another, accused stand acquitted of the charged offence. 2. It is the case of the prosecution that on 7.10.1996, prosecutrix (PW-3) and her husband Amar Singh (PW-4) lodged a complaint at Police Station Pachhad on the Whether the reporters of Local Papers are allowed to see the Judgment? 2 basis of which FIR (Ext.P3) dated 7.10.1996 under Sections 376, 506, 34, IPC was recorded by Shri Karam Chand (PW-9). 3. On 25.9.1996 prosecutrix and Mathura Devi (PW- 7) had gone to see the fair at Sarahan. There at about 4 p.m. she met accused Rajesh Kumar and accused parveen Kumar near the Bus Stand. Rajesh Kumar insisted upon them to accompany him to his residential quarter for taking tea. Accordingly they visited his house where Rajesh Kumar offered tea to them. Rajesh Kumar has two rooms out of which one room was used as a kitchen. After having tea, prosecutrix went to the kitchen to wash the glasses when accused Rajesh Kumar also accompanied her. Accused Parveen Kumar and PW-7 continued to sit in the other room. While prosecutrix was washing the glasses, accused Rajesh Kumar closed the door of the kitchen. He caught hold of the prosecutrix from behind and made her lie down on the ground and after breaking the string of her Salwar forcibly committed sexual intercourse with her without her consent. In the meanwhile accused Parveen Kumar also came into the kitchen. While accused Rajesh Kumar was ravishing her, accused Parveen Kumar caught hold of her and gagged her mouth with a dupatta. In this process her bangles got broken. Accused Rajesh Kumar also asked accused Parveen Kumar to have sex with her which he did without her consent. At that time accused Rakesh Kumar gagged her mouth. 3 Prosecutrix was only released after the two accused persons had satisfied their lust and ravished her. Thereafter the prosecutrix raised cries and hearing the same PW-7 entered the kitchen. Both the accused persons threatened the prosecutrix and PW-7 not to disclose the occurrence of incident to any one lest they be killed by them. Thereafter PW-7 went to spend the night in the house of Mohi Ram (PW- 8) at Village Kewari where she narrated the incident to him. They did not report the matter to anyone. Also prosecutrix did not lodge any report with the police out of fear. Her husband Amar Singh, who was employed as a labourer somewhere in Haryana returned back only on 6.10.1996. Thereafter, prosecutrix narrated the entire incident to him and accordingly on 7.10.1996 the matter was reported to the police and FIR lodged. 4. Investigation commenced with the lodging of the FIR. Prosecutrix was got medically examined by Dr.(Mrs.) Kamala Narang, who issued certificate Ext.P8. Accused persons were also got medically examined by Dr.J.P.Sharma,(PW-1), who issued certificates Ext.P-1 in respect of accused Parveen Kumar and Ext.P-7 in respect of accused Rajesh Kumar. Prosecutrix handed over her broken pieces of bangles which she had collected at the time of leaving the house of the accused. The same was handed over to the police on 10.10.1996. 4 5. With the completion of the investigation, challan was presented in the Court for trial. Both the accused persons were charged for having committed an offence punishable under Sections 376, 506 read with Section 34, I.P.C., to which they did not plead guilty and claimed trial. 6. At the time of alleged offence prosecutrix was 28 years of age 7. Noticeably alleged offence took place on 25.9.1996 and FIR was lodged on 7.10.1996. As per her version, she knew the accused as he happened to be resident of her village. Identity of the accused was not in doubt. There is unexplained delay in lodging of the FIR. 8. In our considered view, version of the material prosecution witnesses, i.e. prosecutrix (PW-3), Shri Amar Singh (PW-4), Smt. Mathura Devi (PW-7) and Shri Mohi Ram (PW-8) do not inspire confidence. In fact there are material contradictions rendering the prosecution case to be false. 9. PW-4, husband of the prosecutrix does not remember the name of his employer with whom he was working in Haryana. He also does not remember the name of the drivers of the trucks or their numbers in which he was loading sand and stones. He does not know the name of other labourers or persons with whom he was living in the tents. As per his version, he owns 9-10 bighas of land in Village Gawalag. He had no reason to leave home for earning 5 his livelihood and that to0 as a labourer for loading the trucks with sand and stone. The justification for delay in lodging the FIR is thus unexplainable. He also admits that he did not lodge any complaint with the Pradhan or Numberdar of the area and straightway came to the Police. 10. Now according to PW-3 she did not lodge the FIR out of fear. This version of her does not inspire confidence. She admits that her house is at a distance of 150-200 kms. from Sarahan where she had gone to see the fair. On way she did not talk about the occurrence of the incident to anyone. Nor did she lodge any complaint with the Panchayat inspite of the fact that she had got relations living in the same village. It is not her case that the accused had accosted her all along or after 25.9.1996 had again threatened her. Now her version that both the accused had warned her and PW-7 from raising alarm lest they be killed stands contradicted by PW-7, according to whom, the prosecutrix was not threatened by the accused persons at all and the accused had only threatened her. Further PW-7 and PW-8 also admit that they did not report the matter to anyone. In this background the delay in reporting the matter to the authorities is fatal. 11. According to the Investigating Officer (PW-9) the alleged incident took place in the residential quarter of accused Rajesh Kumar, which is in a market place. There are shops both in the front and back. In the adjoining quarter, 6 teacher resides. Walls of the two rooms occupied by Rajesh Kumar are common and similarly wall of the room in which the teacher resides and that of room occupied by Rajesh Kumar is common. The Police Station is also at a distance of 200 yards. During fair bazaar is over-crowded. 12. Offence is alleged to have been committed after 4 p.m. in broad day light. According to the prosecutrix, when she went to the kitchen to wash the glasses both the accused persons came behind her. Accused Rajesh Kumar after holding her laid her on the ground. Then both of them forcibly raped her. She could not raise any voice as her mouth was gagged with a dupatta. This dupatta has not been taken into possession by the Investigating Agency. She could remember to pick up broken pieces of bangles from the spot and yet conveniently forget about the dupatta. She could have easily raised hue and cry or reported the matter to her relations. 13. There are some serious contradictions in the statements of the prosecution witnesses rendering the prosecution story to be absolutely false. Further according to the prosecutrix, she went to the kitchen for washing the tea glasses which version stands contradicted by PW-7, according to whom accused Raju asked the prosecutrix to go to the other room for washing the glasses. Initially she had gone alone and later on accused Raju went there. 7 14. Further as per the prosecutrix after both the accused forcibly had sexual intercourse with her she was released. It was then that she raised the alarm and PW-7 entered the room after opening the door. Now this version of hers stands contradicted by PW-7, according to whom, she heard the prosecutrix calling “Mammi” “Mammi”. Hearing the cries she pushed open the door of the kitchen and saw accused Parveen lying on the prosecutrix with her Salwar untied. At that time accused Raju was also present in the room. However, she contradicts herself by deposing that it was accused Raju who was lying on the prosecutrix and accused Parveen was standing on the other side of room. According to her both the accused were naked. She is categorical in his statement that she did not see accused Parveen Kumar committing sexual intercourse with the prosecutrix. This renders the version of the prosecutrix to be false. 15. Her version that she had met accused Rajesh alongwith accused Parveen Kumar at the fair stands contradicted by PW-7, according to whom, accused Parveen Kumar was already in the quarter. According to her only accused Rajesh Kumar (Raju) met her at the fair and wanted the prosecutrix to come alone with him for seeing the fair. Prosecutrix told him that she was in the company of PW-7 and, therefore, Raju offered both of them to join him at his 8 quarter. Further according to PW-3, accused Raju had prepared the tea, which version stands contradicted by PW-7 as it was Parveen who had prepared the tea. 16. Thus the version of the prosecution witnesses does not inspire confidence and no fault can be found with the view taken by the learned Sessions Judge, Sirmaur District at Nahan. 17. 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 persons 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. August 20,2010 (Sanjay Karol) (C) Judge.