IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 474 of 1996 Reserved on : 1.4.2010 Date of Decision: 4. 6.2010. State of H.P. …Appellant. Versus. Bansi Ram and another …Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for Reporting? No. For the Appellant: Mr. Vivek Singh Thakur, Addl. Advocate General. For the Respondent No.1: Mr. Vinay Thakur vice Mr. Jagdish Vats, Advocate. For the Respondent No.2: Mr. Rajiv Jiwan, Advocate. Per Deepak Gupta, J. 1. This appeal by the State is directed against the judgement dated 11.12.1995 delivered by the learned Sessions Judge, Mandi, Kullu and Lauhal-Spiti Districts, at Mandi in Sessions Trial No. 7 of 1994 whereby he acquitted the accused of having committed offences punishable under Sections 376 and 420 of the Indian Penal Code. 2. On 23.5.1992 a written complaint was sent to the Hon’ble Chief Minister of the State with copies to various officials including the SHO Sundernagar. This complaint was signed by Moti Ram, husband of the prosecutrix. It 2 was alleged that the accused Bansi Ram, who is a constable in the police alongwith other accused Budhi Ram visited the house of the complainant at about 1.00 p.m. on 21.5.1992. Since the complainant was not at his home these two persons started misbehaving with the prosecutrix and the wife of Tuwaru Ram. Bansi Ram caught the prosecutrix and pressed her breast and tried to untie the Narah of her Salwar. Budhi Ram caught hold of the other lady Fatri Devi, wife of Tawaru Ram, but she managed to escape from his clutches. Though they outrage the modesty of the prosecutrix they failed to commit rape on her and asked her to arrange Rs. 200/- otherwise the prosecutrix was threatened that she would be sent to jail. The prosecutrix gave Rs.200/- to the police constable and the other accused Budhi Ram stole Rs.2000/- from the wooden box where the money was kept. Again the two accused started misbehaving with the prosecutrix. In the meanwhile, one Dumna came to the house and requested the accused not to behave in such a manner. The accused abused Dumna, who ran away. Thereafter, accused Bansi Ram forcibly took off the clothes of the prosecutrix and raped her thrice in the kitchen. He then again dragged her in the second room and raped her there again. At about 4.15 p.m. the 3 accused left the place of occurrence. On the same evening the complainant came home from Karsoag where he had gone to work. He reached at about 8.30 p.m and his wife disclosed to him the entire story. Then they went to the Pradhan of the Gram Panchayat and narrated the incident to him. They then went to the SHO Police Station Sundernagar, who did not pay any heed to the complaint of the complainant. Therefore, the complaint was lodged next day on 23.5.1992. This complaint led to the recording of the F.I.R. No. 128 of 1992 Ext. PE. After the complaint was recorded the police investigated the matter and the prosecutrix was medically examined. On the basis of the material collected during investigation the accused were challaned with having committed the offences aforesaid. They pleaded not guilty and claimed trial. After trial they have been acquitted. Hence, the present appeal by the State. 3. At the outset, we may note that PW-1, Dr. Indira Kaushal, who examined the prosecutrix, did not note any injury on the person of the prosecutrix except one bluish contusion on the outer aspect of the right thigh. The prosecutrix was a married woman and habitual to sexual intercourse. She in her cross-examination admitted that the probable duration of the injury was 3 to 6 days. 4 4. The prosecutrix appeared as PW-3. According to her she and Fatri Devi, her sister-in-law were alone in the house when the two accused came there at about 1.00 p.m. Accused Bansi Ram inquired about her husband and he was informed that her husband had gone to his in- laws house. According to her some arguments took place and then Bansi Ram slapped her and asked her to pay Rs.200/-. She paid this amount to him and then she called Dumna Ram. Thereafter, both the accused alongwith Dumna Ram sat there and started chatting. The prosecutrix went to the kitchen and cooked food for the accused. Except Dumna Ram nobody else came there. According to her, her sister-in-law was in a separate room and then she went to the forest. At this stage, the public prosecutor asked the prosecutrix why Fatri went to the forest and it was only on his asking she replied that Budhi Ram had tried to catch hold of the Salwar of Fatri and then she went to the forest. According to her Bansi Ram came into her room, caught hold of her, took off his clothes and then untied her Salwar. Thereafter he raped her. She did not know how many times he raped her as she became unconscious. According to her, she did not know the accused earlier. When her husband came in the evening she revealed the 5 matter to him. In cross-examination, she admitted that her husband had a second wife Ramki, who was only 14 years of age. She also admitted that somebody made a complaint against her husband that he had illegally got married to a girl of the tender age and therefore, her husband was called to the Police Station. She admitted that Bansi Ram had come to her house to serve notice on her husband. According to her, Bansi Ram accused gave her 10 slaps with full force and she fell against the wall. She sustained injuries on the other parts of her body. She also stated Bansi Ram gave her blows of a Danda more than 10 times and therefore, she fell unconscious. According to her she regained consciousness the next day only. 5. Dumna Ram was examined as PW-6. According to him, when he went to the house of the prosecutrix the accused was sitting there. He also joined them. The prosecutrix was sitting in another room. He stated that Bansi Ram went out and entered the room of the prosecutrix and embraced her. Bansi Ram told him that he should not look inside the room and should look to the other direction. After some time, Bansi Ram came to the room where he and Budhi Ram were sitting and then they 6 both left. Thus this witness has not at all supported the prosecution version. 6. PW-7 Fatri Devi only stated that Budhi Ram tried to catch her and then she immediately got up and ran towards the Jungle. In cross-examination, she stated that Budhi Ram was not trying to molest her but was behaving in ‘fun and frolic’ manner. 7. These are the three witnesses of the incident. Dumna Ram has not supported the prosecution though he was stated to be there throughout. Similarly, Fatri Devi, sister-in-law of the prosecutrix, has not supported the prosecution. The statement of the prosecutrix cannot be believed since there are various inconsistencies in her statement made in Court and the version given in the complaint. In the complaint, it was stated that she was raped thrice in the kitchen and then in the room whereas according to the version given in Court she was only raped in the room. According to the prosecutrix she was beaten up and given more than 10 forceful slaps and more than 10 blows with a Danda. The medical evidence also does not support her since the doctor has only found one injury on the person of the accused. According to the prosecutrix and as mentioned in the complaint she told her husband about the entire incident when he came 7 back. But in cross-examination she sated that she became unconscious and regained consciousness only the next day. There is no explanation why the prosecutrix cooked a meal for the accused after they had outraged her modesty. In the complaint it was mentioned that Dumnu Ram ran away after he was threatened by the accused but in evidence it has come that he was there throughout. It is apparent that there was a case against the husband of the prosecutrix for having married to a minor girl. It is also on record that it was in this connection that Bansi Ram had gone to the village of the prosecutrix. Therefore, the possibility of the police constable being falsely implicated in the case cannot be ruled out. In view of the material contradictions in the statement of the prosecutrix and the other witnesses the learned trial Court was fully justified in acquitting the accused. We find no merit in the appeal, which is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. 4th June, 2010 ( Sanjay Karol ) ™ Judge. 8