IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.148 of 2000 Decided on November 09, 2010 State of H.P. …Appellant. Versus Sita Ram …Respondents. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting? For the appellant: Mr. R.K.Sharma, Senior Additional Advocate General. For the respondent: Mr. N.K. Thakur, Advocate. Justice R.B.Misra, J. (Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of Criminal procedure in reference to judgment dated 8.9.1999, passed by learned Sessions Judge, Solan, in Sessions Trial No.23-S/7 of 1998, acquitting the alleged accused/respondent for the offence under Sections 376, 341 and 506 of the Indian Penal Code. 2. The prosecution case is that the victim / prosecutrix, a married lady while coming home by bus on 15.3.1998 from Shimla after attending her father admitted in I.G.M.C. Shimla got down at Chambaghat and walked on foot to her village. On the way, accused/respondent Sita Ram crossed the victim/prosecutrix on the path some where and victim kept on going behind him. The accused / respondent even inquired of the whereabouts of the father of the victim / prosecutrix. On way accused caught hold of victim and committed sexual assault, however, the matter was reported on 20.3.1999 i.e. after elapse of 5 days to the police and FIR was lodged. 3. After investigation, the accused-respondent was charged for the above offences and the case was committed to the Sessions Court. In order to prove its case, the prosecution has examined as many as 11 prosecution witnesses, whereas, the accused / respondent through his statement under Section 313 of Cr. P.C. has denied the prosecution case. 4. The victim / prosecutrix has stated that on way to her village she told the accused /respondent that she is like his daughter and he should not misbehave with her. However, accused / respondent did not leave her arm whereas victim PW-1 kept on struggling, but being a female, she could not resist him long, however, kept on resisting for ½ hour. Accused / respondent picked up victim and took her towards nallah and then he pinned her to the ground and did not let her get up and committed forcible sexual intercourse. The accused / respondent kept the victim there for quite some time and told that if victim disclosed it to anybody, he will finish her. The accused / respondent also said that victim’s reputation will be affected and nothing will happen to him as he is a Koli, thereafter, accused / respondent left the place. The victim put on her clothes after cleaning those and then she went to her house and there also washed her clothes. She told her mother-in-law the next day as her mother-in-law was sleeping when victim / prosecutrix reached home. In cross examination PW-1 stated that she suffered some abrasions on her body during scuffle with accused and she tried to pull scratches on the face and body of accused, but could not succeed as accused was physically strong. She further stated that 3-4 bangles were broken and had fallen on the ground and she was taken to a distance of about 10 feet from the path by the accused. PW-1 further stated that she cried and shouted for help, but she does not know whether it could be heard in the house of Khem Chand and Gopal Singh. PW-1 further stated that she handed over the chit to Leela on the same night, but PW-1 did not tell Leela or her family members about the said incident and next day told her mother- in-law that accused had caught hold of her from the arm and nothing else. Victim / prosecutrix did not send any message to her husband. From the prosecution point of view, PWs-2, 3 & 4 are not very material. PW-5 Anil Kumar has stated that victim has told him that accused / respondent committed forcible sexual intercourse with her on 15.3.1998. PW-6 Amar Singh is not very material. PW-7 Dr. Manjit Kaur, who medically examined the victim has specifically stated that no mark of any injury or blood stains or semen stains present on the internal side of thigh or on the private part of the victim. PW-7, however, has opined that possibility of rape cannot be ruled out on 15.3.1998. 5. We have scrutinized the prosecution witnesses and material on record. It appears that in view of the testimony of victim / prosecutrix that she kept on resisting for ½ an hour and endeavour was made to reconcile the matter, however, the matter was reported to the police after a lapse of five days. The victim / prosecutrix was medically examined and no such mark of injury was noticed by Dr. Manjit Kaur (PW-7) on her body. 6. Despite opportunity, the victim / prosecutrix did not divulge anything to her husband and other members of the family specifically about the incident but only narrated to her mother-in-law that accused has caught hold of her arm. The occurrence appears to have taken at the place from where residential houses were located, however, she did not divulge to any body. No independent witness has corroborated the testimony of the victim / prosecutrix whereas the sole testimony of victim is not inspiring confidence. Despite the incidence having taken place on 15.3.1998, victim / prosecutrix did not inform her husband, as such delay of five days has not been properly explained, the delay makes the prosecution case fatal. More so, medical report is also not corroborating the prosecution case that the victim / prosecutrix was sexually assaulted. 7. On analysis of the prosecution witnesses and the materials on record, learned Sessions Judge has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt to the accused and there is no scope of interference in the findings given by learned Sessions Judge. The present criminal appeal, being devoid of any merit, is accordingly dismissed. 8. The bail bonds furnished by the accused-respondent are hereby discharged. (R.B. Misra) Judge (Kuldip Singh) Judge November 09, (ls)