HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 346 of 2002 Decided on: 20.7.2011 State of Himachal Pradesh ……… Appellant. Versus Madan Lal ………Respondent. Coram: The Hon’ble Mr.Justice R.B. Misra, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.R.K. Sharma, Senior Additional Advocate General & Mr.Rajinder Dogra, Additional Advocate General. For the respondent: Mr.Inder Sharma, vice Mr.N.K. Thakur, Advocate. V.K. Ahuja, J.(Oral): This is an appeal filed by the State of Himachal Pradesh under Section 378 of the Cr.P.C. against the judgment of the court of learned Sessions Judge, Chamba, vide which the respondent was acquitted of the charge framed against him under Section 376 of the Indian Penal Code. 2. A notice of the appeal was issued to the respondent. Leave to appeal was granted by the Court. Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - 3. Briefly stated the facts of the case are that an application Ext.PG was submitted to the Superintendent of Police, Chamba by complainant Sunit Singh, brother of the prosecutrix, on which the case was registered against the accused under Section 376 IPC. In the application, it was alleged by the brother of the prosecutrix that he remains outside in connection with his work. His sister (prosecutrix) used to remain in the house, who is a paralytic for the last few years and the respondent/accused had committed rape with her. It was also alleged that he had been giving threats to her that in case she informed about this rape to any member of her family, he would kill the whole family. Thus, it was alleged that the prosecutrix did not tell any person about this rape and when she became pregnant, he learnt about this occurrence. On the basis of the report made by him, FIR Ext.PK was registered by the police. After investigation, the challan was filed before the learned Judicial Magistrate, who committed the case to the learned Sessions Judge, Chamba. The learned Sessions Judge framed the charge under Section 376 IPC and tried the accused leading to his acquittal. 4. We have heard the learned Senior Additional Advocate General for the appellant and the learned counsel for the respondent and have gone through the record of the case. 5. The contention put forth by the learned Senior Additional Advocate General was that there is a statement of the prosecutrix alleging that she was raped twice by the accused and she was paralytic and in view of the threats given to her by the accused, she could not make the complaint - 3 - to her brother Sunit Singh and her brother’s wife Neelu and, therefore, the delay in question has to be ignored by the court. It was submitted that the findings to the contrary of the learned trial Court are liable to be reversed since there is sufficient oral and medical evidence to substantiate the charge as against the respondent. 6. The most material witness in the case can be said to be the prosecutrix who appeared as PW-6 and stated in the court that her age was 29 years. According to the medical evidence, which consists of the statement of PW-1 Dr.V.K. Pathak, Radiologist, the age of the prosecutrix was above 19 years. PW-2 Dr.Veena Sehgal, who had examined the prosecutrix, had given the probable age of the prosecutrix as 25 years, but as per the report of the Radiologist, she had stated that the age was above 19 years. This fact further stands corroborated from the statement of PW-4 Amar Nath, Panchayat Secretary, who issued the certificate Ext.PJ, vide which the year of birth of the prosecutrix was 1971, which suggests that on the date of the occurrence in 1997, she was of the be of 18 years or so. Thus, this fact stands established that the prosecutrix was a major and as such she was competent to give consent for sexual intercourse and it has to be seen as to whether in the facts of the case it can be concluded that the sexual intercourse was done against her consent amounting to rape. 7. A perusal of the statement of the prosecutrix shows that she had stated that in the year 1997 in the month of November, her brother had gone out in connection with his work and while her sister-in-law (Bhabhi) had gone to jungle - 4 - for bringing grass, the accused came at about 10.00 a.m. to her house and asked her to have sexual intercourse and thereafter overpowered her and committed rape upon her. She further stated that the accused threatened her that in case she reported, he would kill her, her brother and her brother’s wife. She only stated that the accused gagged her mouth with his hand. She further stated that the accused ran away from the spot when her sister-in-law, namely, Neelu came from the jungle, meaning thereby that the accused had left the place on the arrival of PW-7 Neelu. She further stated that she did not tell the incident to any person because of the threat given to her. When she got pregnant, only then her Bhabhi Neelu enquired from her. She further stated that she had stated about the incident to Smt.Balo Devi, who is also related to her as Bhabhi in relation. She further stated that the accused was summoned by the family members and Smt.Balo Devi was also present, when the accused confessed of having committed the crime and agreed to pay expenses and damages. 8. A perusal of the statement of the prosecutrix shows that she had simply stated that because of the threat given by the accused to kill her as well as her family, she had not disclosed this incident to any person, but not that the rape was committed under a threat. She had access to her Bhabhi who was living with her and also access to her brother, who must have come after some days, but till the fact became known when her stomach started bulging out, then she disclosed the fact to her Bhabhi. It is also clear that when the accused gave a threat, he was not having any knife - 5 - or any such thing and her simple statement that she was threatened by the accused cannot be believed since she was a person of the age, as per her, of 29 years and as per other evidence, above 19 years and she had clearly admitted in her statement that she was of sound mind, though she was paralytic and could not move around frequently. In cross examination, she came up with another plea that the accused had come to her house twice and both the times, the accused committed sexual intercourse with her. She also stated that the accused came after two months, after the first sexual intercourse. This clearly shows that the accused committed sexual intercourse twice, but the prosecutrix did not deem it necessary to lodge any complaint with her Bhabhi or with her brother, who were living with her. A perusal of her statement also shows that a school was being run in some portion of the house which fact was also admitted by PW-8 Balo Devi. The brother of the prosecutrix PW-7 Sunit Singh also admitted that house of one Biddo is adjacent to their house but the statement of the prosecutrix clearly shows that neither she resisted the attack upon her nor raised a voice or made any attempt to rescue herself when she was subjected to rape by the accused. She did not state that the accused forcibly removed her salwar and then committed the act of rape upon her or she made any attempt to rescue herself or raised any alarm to call for help, which clearly suggests that she must be a consenting party to the act, allegedly committed by the accused. No plausible explanation has been given by her which could be believed by the court that she could not lodge the report earlier due to the threat given by the respondent. The - 6 - respondent was a person known to the family of the prosecutrix and had been visiting the house and it is not that he was of a bad character and the threat given by him had caused a reasonable apprehension in the mind of the prosecutrix that she could not lodge the report with the police or inform her brother and Bhabhi in this regard. 9. Coming to the testimony of PW-7 Sunit Singh, brother of the prosecutrix, he has stated that he got drafted the application Ext.PG from a Petition Writer and submitted the same to the Superintendent of Police. He has also stated that he learnt about the occurrence for the first time in the month of April, 1998 when his sister was pregnant though the occurrence is alleged to have taken place in the month of November, 1997, but no steps were taken by the prosecutrix to inform her brother. He stated that after learning about the incident, he reported the matter after 3-4 days. 10. The Bhabhi of the prosecutrix has been examined as PW-9 who stated that she learnt from PW-8 Balo Devi that her sister-in-law was pregnant but she did not believe her. Then she enquired from the prosecutrix in the month of April, 1998 and then learnt that the accused had committed sexual intercourse with the prosecutrix in the year 1997. Thus, she learnt in the month of April, 1998 and though the occurrence had taken place in November, 1997, it was never reported to her by the prosecutrix. She also stated that she had seen once the accused coming from the side of their house at about 11/11.30 a.m., but there is nothing that she enquired from her sister-in-law the purpose of the visit or noticed anything abnormal in the behaviour of the - 7 - prosecutrix or anything which could suggest that the accused had raped her sister-in-law. In cross examination, she had come up with another version that the prosecutrix had told her that she was raped in the cowshed, which is neither the case of the prosecution nor that of the complainant, who is the brother of the prosecutrix. She also admitted that a school was being run in their house, which also suggests that the possibility that this act could not have been committed without any help having been available to the prosecutrix to save herself. 11. The statement of PW-8 Balo Devi, to whom the incident was reported by the prosecutrix after some time, also shows that she learnt about the incident in the year 1997, but she had informed the Bhabhi of the prosecutrix only in the month of April, 1998, which clearly shows that the fact was in her knowledge about this act having been committed by the accused. She also stated about the confession made by the accused, but neither the date has been mentioned by her or by the prosecutrix, not the number of persons present or the expenses which the accused undertook to bear for the termination of the pregnancy and, therefore, the plea of the alleged extra judicial confession made by the accused does not stand substantiated. She also stated that the prosecutrix had told her that the accused had committed sexual intercourse with her once in the cattle shed, though the prosecutrix had stated about this act having been done by the accused in the house. She also admitted that she did not tell about the incident to anyone after she learnt it from the prosecutrix. She denied of a dispute with the family of - 8 - the accused in regard to land, though admitted that their land adjoins the land of the father of the accused. 12. From the above discussion, it is clear that from whichever angle the statement of the prosecutrix is considered, it cannot be inferred that the sexual intercourse was committed upon her against her consent and the conclusion arrived at by the learned trial Court holding that the prosecution has failed to prove their case cannot be said to be perverse calling for an interference by this Court. We accordingly hold that there is no merit in the appeal filed by the appellant, which stands dismissed. The bail bonds furnished by the respondent shall stand discharged. (R.B. Misra), Judge July 20, 2010. (V.K. Ahuja), (tilak) Judge