1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 353 of 1999 Decided on September 17, 2010 _________________________________________________________ State of H.P. …Appellant. Versus Ram Lal ...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.Rajinder Dogra, Additional Advocate General. For the respondent: Ms. Archana Dutta, Legal Aid counsel. Justice R.B. Misra,J. ( Oral) Ms. Archna Dutta, Advocate, has been requested to assist this Court, as legal aid counsel, on behalf of the respondent-accused and she 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 in reference to judgment dated 17.5.1999, passed by Learned Sessions Judge, Shimla, H.P., in Sessions Trial No. 25-S/7 of 1998, for the offence under Section 376 of the Indian Penal Code, acquitting the alleged accused / respondent. 3. The prosecution case is that on 18.10.1997, the victim / prosecutrix wife of Mohan Singh, resident of village Chalarna had gone to her fields, within the area of village Chalarna, while she was returning back to home around 7.00 2 P.M., with a bundle of hay, along a path passing through a forest, the accused and four more persons, namely, Chattar Singh, Amar Singh, Mast Ram and Partap Singh were lying in ambush. Accused-respondent appeared all of sudden and caught the lady by her arm and pulled her towards the lower side of the path. The other four persons instigated the accused to sexually assault the victim / prosecutrix. The accused then, threw the victim / prosecutrix on the ground, removed her salwar and also removed his own pant and then committed sexual intercourse. The victim / prosecutrix put some resistance and during the resistance, bangles which the prosecutrix was wearing were broken and she suffered minor injuries on her writ. The victim / prosecutrix also raised cries, attracted three persons named Ganga Ram, Bhim Singh and Bir Singh, but then the accused had committed the crime. On seeing the above named persons, the accused-respondent ran away. The victim / prosecutrix then went to home and narrated whole of the incident to her husband. Husband of the victim / prosecutrix and the prosecutrix herself tried to settle the matter with the accused-respondent in village level, but could not succeed. So on 25.10.1997, they lodged a written complaint with Judicial Magistrate, Chopal, who forwarded the same to the Station House Officer, Police Station, Chopal, for investigation of the matter. Accordingly, FIR No.136 of 1997 was lodged and after investigation, the accused was arrested and charged for the above offence and the case was committed for trial to the Sessions Court. 3 4. In order to prove its case, the prosecution has examined as many as 12 prosecution witnesses, whereas, the accused / respondent through his statement under Section 313 of Cr.P.C., has denied the prosecution case. 5. The victim / prosecutrix (name not given) has examined as PW.1, Bir Singh, PW.3 and Bhim Singh PW.4, all of whom allegedly saw the accused committing the crime, Jaii Pal PW.5, in whose presence the accused-respondent alegedly produced his underwear, Doctor Gita Ram Tegta PW.6, who conducted the medicolegal examination of the accused, constable Mohan Lal PW.7, who carried the parcels containing the underwears of the accused and the prosecutrix to the Chemical Laboratory, Mohan Singh PW.8, the husband of the victim / prosecutrix, Rajinder Singh MHC, PW.9 with whom the parcels containing the underwears were deposited by Investigating Officer, Kundan Singh ASI PW.10, who conducted the investigation of the case, Vidhi Singh PW.11, who prepared the challan and Doctor Rama Thakur PW.12, who conducted the medicolegal examination of the victim / prosecutrix . 6. PW.2 Ganga Ram has admitted that wife of the accused Ram Lal had lodged a complaint against him that he had been working in two departments of the government at the same time and drawing salary from both the departments and an inquiry was conducted on the basis that complaint against him. 7. PW.4 Bhim Singh has also admitted in the cross- examination that Partap Singh, brother of Mohan Singh, the 4 husband of the victim / prosecutrix had filed a criminal case of causing grievous hurt against him in the Court at Chopal. As such background testimony of these two witnesses is to be scrutinized. 8. There is a delay of six days in reporting the matter to the authorities for which no satisfactory explanation has been given, but the explanation offered was proved to be false. The victim / prosecutrix in her deposition has stated that her husband was not at home on 18.10.1997 and when he returned home, she narrated the incident to him. Her husband has made an endeavour to settle the matter, however, matter was not settled. Thereafter, the victim / prosecutrix alongwith her husband went to Chopal, where she got the complaint,Ex.PA scribed and the presented the same to the Judicial Magistrate and subsequently FIR was lodged. In cross-examination, the victim / prosecutrix has stated that she did not remember the date of the return of her husband and her having informed him about the incident, but stated that her husband returned home two-three days after the incident, then she narrated the incident to him. However, delay of two- three days has also not been explained by the victim / prosecutrix. The victim / prosecutrix is contradicted in material particulars by the earlier version which she gave in the form of complaint Ex.PA, addressed to the Judicial Magistrate, Ist Class, Chopal. The victim / prosecutrix has stated that she suspected that Chattar Singh, Amar Singh, Mast Ram and Partap Singh were hiding in the bushes by the side of the path, when the 5 accused overpowered her and committed sexual intercourse and that was why she named them as accused in the complaint Ex.PA. Further, she has stated that on hearing her cries Ganga Ram reached the spot and on seeing him, the accused ran away. She specifically stated that Bhim Singh did not reach the spot on hearing her cries and that he met her only when she was going home after the crime committed on her, on enquiry she told him that she had been dishonoured by the accused. However, when she confronted with statement, she stated that Bhim Singh and Ganga Ram both were attracted to the spot by her cries and on seeing them, the accused ran away. 9. PW.12 Doctor Rama Thakur, who conducted the medical examination of the victim / prosecutrix had not noticed any injury on her wrist or any other part of her body nor is there is mention of any injury in the medicolegal certificate Ex.PE. So much so, the prosecutrix did not get it recorded in the complainant Ex.PA, which she lodged after six days after the occurrence that any bangle worn by her got broken, at the time of commission of crime. As per testimony of the victim / prosecutrix , she was carrying a bundle of hay, when the accused caught her by her arm and the load of hay fell on the path. Ganga Ram PW.2, however, has stated that she did not have any bundle of hay or any Darati with her nor did he see any bundle of hay on the spot. Not only this, the police at the time of spot inspection, did not find any bundle of hay or traces of hay on the spot. 6 10. Taking into consideration the facts and circumstances, prosecution witnesses and materials on record, there are contradictions and inconsistencies in the statement of the victim / prosecutrix and no injury has been noticed by PW.12 on the body of the victim contrary to her own statement that she had suffered injuries on the wrist and other part of the body, as such, the testimony of the victim / prosecutrix is not inspiring confidence. 11. In the facts and circumstances and on analysis of the prosecution witnesses as well as materials on record, we are of the considered view that the prosecution has failed to prove its case beyond reasonable doubt and 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. 12. Fee of Rs. 2000/- for entire case shall be paid to Ms.Archana Dutta, Legal Aid Counsel, payable from Legal Aid Fund of H.P. High Court. 13. The bail bonds furnished by the accused- respondent are hereby discharged. (R.B. Misra) Judge September 17, 2010 (V.K. Sharma) (Purohit) Judge