HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. A. No. 199 of 1993 Reserved on: 04.03.2008 Decided on: 13.03.2008 State of Himachal Pradesh ………Appellant Versus Bali Ram ………Respondent Coram: The Hon’ble Mr. Justice V.K. Ahuja, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? No. For the appellant: Mr. J.S. Guleria, Law Officer. For the respondents: Mr. Ashwani K Sharma, Advocate. V.K. Ahuja, J: This is an appeal filed by the State of H.P. under Section 378 Cr. P.C. against the judgment of the court of learned Sessions Judge, Mandi, Kullu and Lauahal-Spiti Districts at Mandi, Himachal Pradesh dated 7.1.1993 vide which the respondent was acquitted of the charge framed against him under Section 376 read with Section 506 I.P.C. The prosecution storey in brief is that on 23.7.1990, at about 7.15 P.M. Kumari ‘B’ accompanied by her brother-in-law, Bhagat Ram lodged a report at Police Station, Sunder Nagar, District Mandi. In the said report, she alleged that on 16.7.1990 at 10.00 A.M., she had gone for grazing the goats, two boys namely Raju and Ramesh were 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. sitting at some distance from her. The accused came there and gave threats to these persons to run away from that place, otherwise they would be killed by them and thereafter he dragged her to a cave forcibly and raped her by keeping hand on her mouth when she raised an alarm. The Prosecutrix made attempts to save herself but the rape was committed by the accused and he gave threats that he would do away with her life, in case she narrated the occurrence to any body else. The prosecutrix was staying with her sister. She came to the house of her sister and narrated the occurrence to her sister and sister’s mother-in-law as her brother-in-law was away. The report could not be lodged as her brother-in-law was not at home and he returned on 3rd/4th day of the occurrence and thereafter a report was lodged by her about the occurrence at Police Station. On this, a case was registered leading to filing of challan. The case was tried by the ld. trial court, resulting in his acquittal. Heard. The submissions made by the ld. Additional Advocate General were that the learned trial Court had wrongly disbelieved the statement of prosecutrix in view of the minor infirmities in the prosecution case and delay. Thus, it was submitted that the findings recorded by the learned trial court are perverse and, as such, are liable to be reversed. On the other hand the learned counsel for the respondent had supported the impugned Judgment for the reasons given therein. The facts of the case show that the charge framed against the respondent was that he had allegedly raped a girl of age of about 11 years. It is true that such a minor girl will not depose falsely to implicate any other person and even her parents may use her to falsely lodge a complaint against the accused since the honour of the family is involved. However, the possibility of false implication has to be ruled out before a person can be held guilty and, therefore, the evidence of such a witness because of tender age has to be scrutinized with more care and caution. The first question which arises for consideration is in regard to the delay in lodging of FIR since the occurrence, in question, had taken place on 16.7.1990 at about 10.00 A.M. while report was lodged with the police after 7 days at about 7.15 P.M. as per the FIR Ex. PC. The Police Station is at a distance of 17 kms from the place of occurrence and it cannot be said that the police station was at quite a long distance and it was not possible for the prosecutrix to lodge the report immediately. The explanation given by the prosecutrix was that she was staying in her sister’s house in those days but her sister’s husband was not at home at that time and was away and had only returned on the previous night, she came to the police station and lodged a report. Coming to the statement of PW-2, ‘B’ in this regard she stated that she narrated the entire incident to her sister and sister’s mother-in-law but her sister’s husband was not at home since he had gone to Solan. He returned after 3rd /4th day of the occurrence and she narrated the entire incident to him and then he brought to her to police station and the report was lodged. According to her, her brother- in- law had returned on the 3rd /4th day of the occurrence which shows that he returned on 19th/20th July, 1990, but the report, in question, was lodged on 23.7.1990 after seven days. It was suggested to her that on the date next following the day of the incident, the 4th death anniversary of her brother-in-law’s father was observed and she admitted this suggestion which shows that on the next day following the day of the incident Bhagat Ram, her brother-in in-law was present in her house in connection with 4th death anniversary of her brother-in-law’s father which belies her version that her brother-in-law returned on 3rd /4th day. She clearly stated that Bhagat Ram was at the house on that day which is the date following the next date of the incident. On this point the sister of the prosecutrix PW-5 also stated that her husband had came after 5-6 days. She denies the suggestion that the 4th death anniversary of her husband’s father was observed within 5-7 days prior to the incident or 5/6 days subsequent thereto. However, the said Bhagat Ram when he appeared in the witness box, as PW-6 came up with the plea that he returned home after one and half month when his wife and “B” told that the accused had raped ‘B’. He came with the plea that 4th death anniversary of father was observed, a day before the day of incident and he was present in his house on the day of the said death anniversary. This clearly shows that prior to the occurrence which took place on 16.7.1990, he was present in the house on 15.7.1990 which clearly rules out the possibility that he returned to home after one and half months and thereafter occurrence was narrated by the prosecutrix. In case PW-6, Bhagat Ram was present in the house after few days of the occurrence or had returned on 3rd /4th day of the occurrence before the lodging of the report or after seven days makes the prosecution story doubtful in view of the enmity alleged in between the said Bhagat Ram and accused which shall be discussed below. However, the prosecutrix’s father had also attended the said death anniversary on the next date following the incident as stated by PW-2, ‘B’ and in case he had attended the said function, there was no occasion for the prosecutrix and her sister to wait for the return of Bhagat Ram he being head of the family. It has come in evidence of PW-2 ‘ B’ that the village of her father is at a distance of 4-5 kms from village of her brother-in-law. In case there is a distance of 4-5 kms from village of her sister then she could have sent for her father. In cases of rape, honour of the family is involved. The mere fact that there has been delay is not sufficient to disbelieve the prosecution story but in case the delay is satisfactorily explained the Court can consider the delay and ignore the same. However, in view of the facts of the case, it cannot be said that the delay has been satisfactorily explained and it also goes against the prosecution. There was also suggestion in the statements of witnesses about the false implication of the accused. PW-2 ‘B’ admitted that accused was a mule-teer by occupation. The accused used to take his mules through lands of her brother-in-law Bhagat Ram and his brothers. She also admitted that Bhagat Ram’s brother objected to the accused taking his mules through their lands. She further stated that on the day of 4th death anniversary of her brother-in-law’s father, the accused and his wife armed with an axe came to the house of her brother-in-law and they were given threatening by Bhagat Ram to undergo a trial. She further clearly stated that the report Ext. P.C. was lodged by her brother-in-law and she could not speak even a word. PW-5, Leela Devi sister of the prosecutrix denied the suggestions in regard to false implication of the accused or strained relations. It was similarly denied by PW-6, Bhagat Ram also, but these had been admitted by the prosecutrix in her statement. Therefore, the possibility of false implication cannot be ruled out. It has come up in evidence that at the time of occurrence, PW-4, Raj Kumar nephew of Bhagat Ram and another person were also present there who was also asked by the accused at that time to leave the place by giving threats and they stayed at a distance. PW-3 Raju, stated that he stayed at a distance of 5-7 feet only but he took no steps to help the prosecutrix or inform the prosecutrix’s sister or family members or any other person. He states that he casually returned in the evening at 5.00 P.M. and did not report the matter to any person of having witnessed the occurrence. The different people behave differently in different circumstances, but the behaviour of this person, aged 15 years at that time can be said to be un-natural. He alongwith his cousin was at the spot did not take any steps to help the prosecutrix, who was closely related to them. He admits that he saw afterwards that the condition of the prosecutrix was very bad and he does not know what he means by bad condition, meaning thereby, that he remained present at the spot till the occurrence, but did not take prosecutrix to her house, who returned alone at around 12.00(Noon), whereas, this witness returned in the evening. Therefore, the presence of PW-3, at the spot cannot be said to have been established for giving corroboration to the testimony of prosecutrix, since the other witness Ramesh, who was also present at that time was not examined, apart from the mother-in-law of the sister of the prosecutrix to whom the occurrence was told in the evening. She could have given credence to the testimony of the prosecutrix. On the basis of these contradictions in the prosecution case, the learned trial Court had come to the conclusion that the persecution case cannot be said to have been proved beyond any reasonable doubt. The mere fact some other view could have been possible, though, in view of the contradictions in the prosecution story, no other view is said to be possible and the findings recorded by the learned trial Court cannot be said to be perverse calling for an interference by this Court. There is no merit in the appeal filed by the State of H.P which is liable to be dismissed and the same is dismissed accordingly. ( V. K. Ahuja), Judge (Surinder Singh), Judge March 13, 2008 (brb)