HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.395 of 1997. Decided on: September 6, 2010. State of H.P. …Appellant. VERSUS Inder Dev & Anr. ….Respondents. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the Appellant: Mr.Rajinder Dogra, Addl.AG with Mr.Anil Jaswal, Dy.A.G. For the respondent: Mr.Rakesh Jaswal, Advocate. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to judgment dated 1st July, 1997, passed by learned Sessions Judge, Bilaspur, H.P., in Sessions Trial No.9 of 1992, thereby acquitting the respondents / accused persons for offence under Sections 363, 366, 376, 354 read with Section 34 of the Indian Penal Code. 2. The prosecution case was that the victim / prosecutrix (name not disclosed), a minor daughter of Jagdish Ram, on 20.7.1991, had gone to Whether the reporters of the local papers maybe allowed to see the judgment? …2… answer the call of nature near roadside, from there she was forcibly taken by the driver of the truck and was sexually assaulted. In an endeavour by the conductor to sexually assault the victim / prosecutrix, she resisted and both the accused persons, while returning back, left the victim / prosecutrix at Dosarka and after a gap of seven days F.I.R. was lodged by Jagdish Ram, the father of the victim and the respondents / accused were charged for the aforesaid offence and the case was committed to the Sessions Court. 3. Prosecution, in order to prove its case, has examined as many as twenty one witnesses, whereas, the respondent / accused, through their statement under Section 313 Cr.P.C., have denied the charges and prosecution case. 4. We have scrutinized the prosecution witnesses and materials on record. We find that out of twenty one prosecution witnesses, PW-1 to PW-5, PW-10, PW-17, PW-18, PW-19 and PW-20 are formal. PW-6 is the victim / prosecutrix, who, in support of the prosecution, has stated that she had gone to answer the call of nature near roadside from where she was taken forcibly by the driver of the truck and was sexually assaulted by him forcibly. …3… 5. PW-7, Jagdish Ram, father of the victim / prosecutrix, has stated that his daughter (the victim) remained weeping for 4/5 days after the incident and had not disclosed anything to him. On 27th July, 1991 evening only, she had narrated about the whole incident to him, however, in his cross- examination, the witness denied that the victim / prosecutrix had disclosed everything to him on 21st July, 1991. 6. PW-8, Parkash Chand, brother of the victim / prosecutrix, in support of the prosecution, has stated that in presence of his parents and other villagers (who were present in his house), the victim had disclosed everything and accordingly they had suggested that the culprits should be traced out first and thereafter the report should be made but the culprits were not traceable till 27th July, 1991, on which date the report was lodged. 7. PW-9, Bansi Ram, Member, Gram Panchayat, has stated that the father of the victim / prosecutrix had apprised him about the said incident and accordingly on 21st July, 1991 when the girl came back to her house, she narrated everything to her parents. 8. PW-11, Narender Kumar, whose cement was being carried by the respondents / accused in their …4… truck and was un-loaded at Neharian Bazar, has stated that the girl was also in the truck and the respondents / accused after un-loading the truck had gone back along with the girl. He has further stated that it took about 2/3 hours in un-loading the cement and many people were present there and during that period the girl also came out, however, she did not disclose anything to anyone. 9. PW-12, Krishan Kumar, owner of cement shop at Neharian, has also stated that the girl was with the respondents / accused persons. PW-13, Ram Rakha, has stated that he had prepared memos Ext.PW-13/A and Ext.PW-13/B. 10. On analysis of the prosecution witnesses and material on record, we notice that the doctor, who examined the victim / prosecutrix, though has found that she was sexually assaulted, however, no injury or mark was noticed on her body. We also notice that the F.I.R. was lodged after a lapse of seven days but from the testimonies of the prosecution witnesses nothing is known that the village, from which the victim belongs, is a very big village where shops remain open late in the night but it is not clear that how the victim / prosecutrix was picked up from roadside and taken inside the truck. It has also not been stated by the victim whether she had raised any hue and cry …5… when the driver was forcibly taking her inside the truck. 11. It reveals from the testimonies of PW-11 Narender Kumar, PW-12 Krishan Kumar and PW-13 Ram Rakha that the respondents / accused had come to Neharian and un-loaded the cement and at the relevant time the victim / prosecutrix was also in the truck. These witnesses have also stated that the victim / prosecutrix remained sitting in the truck and she also came out but she never disclosed that she has been taken away by the respondents / accused forcibly or she has been sexually assaulted by the truck driver without her consent. These aspects show that the victim / prosecutrix was accompanying the respondents / accused at her own sweet will and was moving in the company of the accused persons. 12. The victim / prosecutrix has nowhere disclosed her age and only disclosed her age as 22 years when she appeared in the Court, meaning thereby at the time of incident she was more than 17 years of age. Dr.J.Goswami (PW-16) has opined that her radiological age was about 17 to 19 years at the time of incident. Obviously, in such tests, the margin of error on either side varied from two years, as such, the victim was not less than 18 yeas of age. …6… 13. In the totality of facts and circumstances, when victim / prosecutrix had gone to Neharian Bazar and it took about 2/3 hours in un-loading the cement and she came out of the truck, however, despite getting opportunities for interacting with the people she deliberately did not disclose to anybody that she was forcibly taken and sexually assaulted without her consent by the respondents / accused persons. In the facts and circumstances, the F.I.R. was lodged after un-explained delay of seven days, however, the prosecution cannot said to have proved its case beyond reasonable doubt. 14. On analysis of the testimonies of prosecution witnesses and materials on record, the prosecution cannot said to have proved its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt to the respondents / accused and there is no scope for interference in the impugned judgment and the criminal appeal, being devoid of any merit, is accordingly dismissed. Bail bonds, furnished by the respondents, are hereby discharged. (R.B.Misra), J. September 6, 2010. (V.K.Sharma), J. (soni) …7…