IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 540 of 1999 Date of Decision: 24.7.2010 State of H.P. …Appellant. Versus. Prem Pal …Respondent. 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. Rajesh Mandhotra, Deputy Advocate General. For the Respondent: Mr. Anup Chitkara, Advocate. Per Deepak Gupta, J.(Oral). 1. This appeal by the State is directed against the judgement dated 23.08.1999 delivered by the learned Addl. Sessions Judge, Sirmaur District at Nahan in Sessions Trial No. 10-N/7 of 1999 whereby he acquitted the accused of having committed offences punishable under Sections 452 read with Section 376 of the Indian Penal Code. 2. Briefly stated the facts of the case are that on 13th April, 1998 at about 10.30 a.m the prosecutrix lodged a complaint with the Police Station Pachhad to the effect that on 8.4.1998 at about 12 noon she was in her Obra 2 (cattle shed) giving fodder to her cattle. At that time accused Prem Singh came into the cattle shed and said that he wanted to have sex with her. She did not agree to this. The accused caught hold of her, hugged her and made her lie down on the floor of the Obra. He tore her salwar and forcibly opened the nara of the salwar. He pushed the salwar down, took off his own pants and had subjected her to forcible sexual intercourse. The prosecutrix raised a hue and cry and her cries were heard by her sister Jaiwanti, who came to the spot. On seeing her the accused ran away. According to the prosecutrix her husband was not at home on that date and he came back on the next day and she informed him about the occurrence at about 8.00 p.m. Thereafter they complained about the matter to the Pradhan of the Gram Panchayat, who did not take any action and only thereafter they came to the Police Station. On the basis of this complaint F.I.R. Ext.PW-1/A was recorded and the police investigated the matter. 3. The prosecutrix was got medically examined. She was examined by Dr. Ritu Vaidya and the report of the Dr. Ritu Vaidya had been proved by PW-11 Dr. Manisha Aggarwal. A perusal of this report shows that there were 3 no marks of injury on any part of the body of the prosecutrix. 4. Admittedly, the F.I.R in question was lodged five days after the occurrence. Delay in lodging the F.I.R may not, in every case, be fatal to the prosecution. However, the prosecution must give some reasonable grounds for the delay. In the present case, the version is that the prosecutrix first waited for her husband to return and then the matter was reported to the Pradhan and only after the Pradhan did not take any action then they compelled to approach the police. This version does not appear to be correct. Admittedly, immediately after the incident PW-2 Jaiwanti, sister of the prosecutrix, reached the spot. She is also a married woman aged about 30 years. There is nothing to suggest that her husband was not at home. Once the sister knew about the matter, we fail to understand why her husband has not accompanied the prosecutrix to the Police Station. Even in the remote areas of the State people are aware that such matters are reported to the police and not merely to the Pradhan of the Panchayat. 5. Even assuming for the sake of argument that the prosecutrix did not want to inform other villagers to protect her honour, once her husband came back on the 4 next day normally it would be expected that immediately thereafter they would go to the Police Station. According to the prosecutrix on the next day they went to the Pradhan. If the Pradhan did not take any action then they should have gone to the Police Station immediately. Even as per the statements of the prosecutrix and her husband, Sarahan, where the Police Station is located, is at a distance of 20 kilometers from their village and a bus plies to Sarahan. The Pradhan PW-9 does not support the version of the prosecutrix and her husband. According to him on 10th and 11th April, 1998 the husband of the prosecutrix alone had come to him and told him that the accused had had a scuffle with the prosecutrix. This witness has stated this fact in examination-in-chief. He was declared hostile and therefore, the prosecution has accepted this portion of his testimony at its face value. If this is the testimony of the Pradhan it only shows that when the complaint was initially lodged it was only in respect of some scuffle and there was no allegation of rape. While appearing in Court the prosecutrix and her husband gave an improved version. According to them they not only went to the Pradhan but after the Pradhan did not take any action they went to the Pradhan of the Mahila Mandal. However, no such 5 Pradhan is produced in Court and this version cannot be believed since it was not mentioned in the original complaint or in the statements of the prosecutrix and her husband recorded under Section 161 Cr.P.C. 6. There is delay of five days in lodging the F.I.R. The initial version as per the Pradhan was that there was only scuffle. There was no injury marks on the person of the prosecutrix. She, in fact, has not stated that she was threatened by the accused. All she stated is that the accused had caught hold of her hands and therefore, she did not resist. The prosecutrix is a grown up married lady. If she was not threatened then she would in normal course have put up some resistance and if there was some resistance there would have been injury on the person of the prosecutrix as well as the accused. There are no such injuries which go to suggest that the act of sex, if any, was consensual in nature. 7. The statements of the prosecutrix and her sister cannot be accepted at its face value. According to the prosecutrix the distance between her house and the Obra was about ½ kilometer. However, PW-10 Investigating Officer in cross-examination clearly stated that the distance between the Obra and the house of the prosecutrix was only about 20 yards. Even the 6 prosecutrix during cross-examination admitted that the distance between her house and the Obra was equal to the distance between the Court house and the main road, which would be about 20 yards. If the distance was so little and the prosecutrix had resisted and raised a hue and cry then somebody from the house would have come to rescue her. Therefore, her statement cannot be accepted. 8. In view of the above discussion, we find no merit in the appeal and the same is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. 24th July, 2010 ( Sanjay Karol ) ™ Judge.