IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.383 of 2003 Date of Decision : October 15, 2011 State of Himachal Pradesh …Appellant. -Versus- Om Parkash alias Omi …Respondent. Coram: The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the Respondents : Mr. Inder Sharma, Advocate vice Mr. Naresh Thakur, Advocate. Surjit Singh, Judge(Oral) State has appealed against the judgment dated 6th May, 2003, of learned Sessions Judge, whereby respondent Om Parkash, who was tried for offences, under Sections 376 & 506 of the Indian Penal Code, has been acquitted. 2. Case was registered against the respondent, when the prosecutrix, examined as PW-1 in the trial Court, submitted an application, under Section 156(3) of the Code of Criminal Procedure, to the Chief Judicial Magistrate, Chamba, alleging that on 19th January, 2002, around 5.30 p.m., when she was on way to her parents house, from the house of her in-laws, and reached a Whether reporters of the local papers may be allowed to see the judgment? …2… place, known as Ron Nalla, respondent, who was grazing sheep and goats, affronted her and forcibly carried her to a nearby cave and kept her confined in that cave for the entire night, where he committed sexual intercourse with her, without her consent and against her will, four-five times, before dropping her at her mother’s place, on the next morning. 3. Police got the prosecutrix medically examined. Her clothes were also taken into possession, which were sent to the Chemical Examiner, who, vide report Ex. PW- 4/B, found stains of semen and blood on her clothes, including underwear. Respondent was arrested. He too was got medically examined. Medical report Ex. PW-6/A did not indicate anything, suggesting that he is incapable of performing sexual intercourse. His clothes were also seized and sent to the Chemical Examiner, but no stains of blood and/or semen were found thereon. 4. On completion of investigation, report, under Section 173 of the Code of Criminal Procedure, alongwith relevant papers, was filed in the Court of concerned Judicial Magistrate. Learned Judicial Magistrate, after complying with the requirement of Section 207 of the Code of Criminal Procedure, committed the case to the Sessions Court. Respondent was found to have prima facie committed offences, under Sections 376 & 506 of …3… the Indian Penal Code and was charged accordingly, by the Sessions Court. On his pleading not guilty, respondent was put on trial. 5. Prosecution examined the prosecutrix as PW-1, her husband Tej Ram as PW-3, the doctors, who conducted her medical examination and the medical examination of the respondent, and also the police officials, who investigated the case or dealt with the case property. Learned trial Court concluded that testimony of the prosecutrix did not inspire confidence and that it appeared that the alleged act of sexual intercourse, if it took place, was with her consent. 6. We have heard learned Assistant Advocate General as also learned counsel representing the respondent and perused the record. 7. We find ourselves in agreement with the view taken by the learned trial Court that the testimony of the prosecutrix does not inspire confidence. Incident is alleged to have taken place on 19th January, 2002. Application, under Section 156(3) of the Code of Criminal Procedure, was submitted to the Chief Judicial Magistrate, Chamba, on 22nd January, 2002. No explanation has been offered by the prosecution for long delay in reporting the matter to the police, especially when it is testified by the prosecutrix that she had brought the alleged crime of the …4… respondent to the notice of her mother, on the next morning, that is to say on 20th January, 2002, when she reached her mother’s place and to her husband on the same day. She reached her mother’s place around 7 or 8 a.m. 8. Moreover, prosecutrix, in her testimony, has admitted that she had been knowing the respondent for the last four-five years and they were on friendly terms. Also, in the cross-examination, she stated that the respondent lifted her by her hands, when she reached Ron Nalla, before taking her to the cave, at a distance of 50 feet, from the point where he had affronted her. She stated that after she had been lifted, by her hands, by the respondent, she walked with him to the cave on her own. Also, she stated that she remained with the respondent, in the cave, for the whole of the night and became unconscious when he committed sexual intercourse with her for the fourth time. No injury was found on her person, not only in the course of medical examination, which was conducted on 25th January, 2002, but also on the very next day of the incident, because her husband Tej Ram, examined as PW-3, who reached her mother’s place on that very day, did not say that any injuries were there on the person of the prosecutrix. Prosecutrix herself also does not say that she sustained any injuries. …5… 9. Abovestated position apart, mother of the prosecutrix, who was the first to be informed of the alleged crime, per prosecutrix’ deposition, has not been examined by the prosecution. Though no corroboration to the testimony of the prosecutrix is required, but in a case, like the present one, where testimony of the prosecutrix is shaky, it is desirable that corroborative evidence, when available, must be examined. Mother of the prosecutrix, therefore, ought to have been examined to seek corroboration to the testimony of the prosecutrix that on reaching her mother’s place, in the morning around 7 or 8, on the next following day, she informed her about the alleged incident. For the foregoing reasons, we find no merit in the present appeal. The same is, therefore, dismissed. (Surjit Singh), J October 15, 2011(sd) (Rajiv Sharma), J.