1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 218 of 2000 Decided on September 8, 2010 _________________________________________________________ State of H.P. …Appellant. Versus Arjun Kumar …Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr. Anil Jaswal, Deputy Advocate General. For the respondent: Mr. Manoj Pathak, Amicus Curaie. Justice R.B. Misra,J. ( Oral) Mr. Manoj Pathak, has been requested to assist this Court, on behalf of the respondent-accused and he has agreed to assist this Court. 2. 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 has been granted in reference to judgment dated 5.11.1999, passed by Learned Sessions Judge, Kangra at Dharamshala, H.P., in Sessions Case No. 51-P/VII/98, under Section 376 of the Indian Penal Code, acquitting the alleged accused/respondent. 3. The prosecution story is that PW.3 victim / prosecutrix, daughter of Pratap Chand (PW.4) was coming at about 8.00 P.M. to the thrasher of Jagat Ram from her house and accused-respondent Arjun Kumar came from behind and caught hold of her, and accused gagged her mouth with his hand. Thereafter, accused took her to nearby 2 bushes, after removing her salwar forcibly and committed sexual intercourse. While leaving the place, he also gave her threats that in case she would disclose this fact to her family members, he will do away her life. On the way, PW.5 Jagdish Chand, uncle of victim / prosecutrix met her, to whom she narrated the incident, who also brought the victim to her house and narrated the incident to her father and mother. Accordingly, matter was reported to the village Pardhan, Shri Madan Lal (PW.8). On the next day, report Ex.PG was lodged. PW.1 Dr.S. Kaul examined the victim / prosecutrix. After investigation, accused was charged for the offence under Section 376 of the Indian Penal Code and the case was committed for Sessions Trial. 4. In order to prove its case, the prosecution has examined as many as 11 prosecution witnesses. Whereas, the accused through his statement under Section 313 of Cr.P.C., has denied the prosecution case. 5. PW.3 victim / prosecutrix in support of the prosecution case has stated that while she was going to the thrasher, accused- respondent came from behind and caught hold of her. She raised an alarm, but the accused gagged her mouth with his hand, took her to the nearby bushes near the common path, removed her salwar forcibly and committed sexual intercourse. Accused also gave threats to her, on which she became perplexed and confused. She became scared as the accused had suddenly caught hold of her and in this process her bangles were broken and her salwar was torn. 6. PW.4 Pratap Chand, father of the victim / prosecutrix in support of the prosecution case has stated that the victim / prosecutrix came weeping alongwith Jagdish Chand and told him that accused Arjun forcibly committed sexual intercourse with her. 3 7. PW.5 Jagdish Chand, real uncle of the victim / prosecutrix has stated that when he reached the bushes on the common path, he saw accused running from those bushes and after that victim / prosecutrix met him weeping and told that accused Arjun had committed sexual assault on her. 8. PW.1 Dr.S.Kaul has medically examined the victim / prosecutrix and has opined that sexual assault on 10.5.1998 cannot be ruled out. PW.2 Dr.O.P. Ramdev has also examined the accused- respondent and opined that the accused was capable of performing the act of sexual intercourse. 9. PW.8 Madan Lal, Pardhan of the Panchayat has stated that on 10.5.1998 Partap Chand alongwith his brother Jagdish Chand came to his house and informed him that their daughter is missing and on asking they told that accused Arjun had misbehaved with her, and therefore, she is missing. This witness was declared hostile. 10. PW.6 LHC Prakash Chand, PW.7 Ajay Kumar, Photographer, PW.9 Miss Sudershna Devi, Lady Constable and PW.11 ASI Bhagat Ram, in due discharge of their official duty have endeavoured to support the prosecution case to the extent role assigned to them. 11. The FIR Ex.PG, was lodged at very belated stage without mentioning the name of PW.5 Jagdish Chand, uncle of the victim / prosecutrix, who met the victim / prosecutrix immediately after the occurrence. 12. On analysis of the prosecution witnesses and materials on record, we notice that the victim / prosecutrix was a well built girl of the age of above 17 years and she had been subjected to sexual assault 4 just at some distance from her house, but none came to the spot and no alarm was raised by her, which makes her version doubtful. Near the place of occurrence is Abadi and in view of the testimony of PW.3 ( victim / prosecutrix ) that the house of one Madho Ram is at a distance of about 200 yards from the place of occurrence and house of one Balbir is also at a distance of 200 yards from the place of occurrence and the place where the victim / prosecutrix was sexually assaulted is a motorable road. The victim / prosecutrix has also admitted that if her mouth has not been gagged she could have collected several persons on the spot, but she gave explanation that she could not try since the accused had put his hand on her mouth. The radiological age of the victim / prosecutrix was assessed at about 25 years and she was a grown up girl. The victim / prosecutrix had herself admitted that the accused had gagged her mouth with one hand and with one hand opened her salwar, but the fact cannot be lost sight of that her both the hands were free at one particular time. It is surprising that a young man is opening salwar and then he has removed his own pant with his hand and one hand is only kept on the mouth of the victim / prosecutrix, but she was unable to raise any alarm. The victim / prosecutrix has not even given any explanation as to why she could not give beatings to the accused, pushed him or did any act to save herself or at least raise any alarm, which could have attracted the persons from the nearby houses, which fact she has admitted in her statement. As per testimony of victim / prosecutrix, the aforesaid process of sexual assault was of 10 or 15 minutes, but she was not able to make out as to why she could not make any resistance for 10 or 15 minutes when her both hands were free. Further, the victim / 5 prosecutrix has not stated that during this time the accused had threatened her of dire consequences or the accused was having a knife or she was so scared that she could not raise any alarm. There was no injury mark either on the body of the accused or on the body of the victim / prosecutrix. 13. In view of the aforesaid facts and circumstances, it is very much clear that the statement of the prosecutrix herself was sufficient to show that it cannot be said that she was subjected to any forcible sexual assault, since she being the grown up woman did not raise any alarm and did not cause any injury on the person of the accused to save herself, therefore, learned Sessions Judge has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubts. In our considered view, there is no scope of interference in the findings given by learned Sessions Judge. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 14. The bail bonds furnished by the accused/respondents are hereby discharged. (R.B. Misra) Judge September 8, 2010 (V.K. Sharma) (Purohit) Judge