IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.215 of 1994 Decided on: May 1, 2008. State of Himachal Pradesh …Appellant Versus Tirath Singh …Respondent Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 yes For the Appellant : Mr. P.K. Sharma, Additional Advocate General. For the Respondent : Mr. Vinay Thakur, Advocate. Surjit Singh, Judge (oral) State has appealed against the judgment of Sessions Court, whereby the respondent, who was tired for an offence, under Section 376 IPC, has been acquitted. 2. Police filed a report against the respondent alleging that on 12.10.1992, he physically lifted the prosecutrix, examined as PW-1, from her cattle shed and took her to a nearby Cho (rivulet) and there subjected her to forcible sexual intercourse. Prosecutrix raised hue and cry, while being carried to Cho and also when she was being raped. Attracted by the cries and the alarm raised by her, PW-2 Kulwinder Singh, her brother, reached the spot. He saw the respondent mounted on the prosecutrix. He also saw that the respondent was not wearing his pants and his sister not wearing her salwar. That day the parents of the prosecutrix had gone to a nearby village to attend a marriage of some relative. PW-2 Kulwinder Singh went to that village and informed Whether reporters of the local papers may be allowed to see the judgment? …2… his father PW-3 Balwant Singh, about the incident. Matter was reported to the Pardhan of Gram Panchayat PW-6 Dhani Ram, the same day, in writing. The writing is Ext. PB. Prosecutrix was got medically examined the next following day. Her hymen was found ruptured and was bleeding on touch. The doctor opined that she had been subjected to sexual intercourse recently. Respondent was also got medically examined. Doctor found that there was nothing suggesting that he was incapable of performing sexual intercourse. 3. Trial Court has acquitted the respondent holding that the prosecutrix was more than 16 years of age and the evidence on record suggested that she was a consenting party to the sexual intercourse. 4. We have been taken through the evidence by the learned Additional Advocate General. Even though the prosecutrix stated that she had been subjected to sexual intercourse, without her consent and against her will, from the testimony of her brother PW-2 Kulwinder Singh it appears that she was a consenting party. In complaint Ext. PB, which was submitted to the Pardhan of Gram Panchayat by PW-6 Dhani Ram even though it is mentioned that PW-2 Kulwinder Singh was attracted to the Cho where the prosecutrix was subjected to sexual intercourse, by the cries and the shouts of the prosecutrix, but while in the witness box as PW-2, Kulwinder Singh stated that on the fateful day around 3 PM his sister had gone to the cattle-pond (Bara) to remove cow dung and that when he himself went to that Bara and did not see his sister there, he started searching for her and when he went near the Cho, he heard some sound of whispering and that when he went to the Cho, he saw the respondent and his sister naked and the respondent mounted on his sister. The witness did not say that he heard any shouts or cries or alarm raised by her sister. Instead he stated that he heard some whispering sound, which suggests that the respondent and …3… the prosecutrix were talking to each other in low voice, which in turn is suggestive of there being some consent on the part of the prosecutrix. 5. For the foregoing reasons, we see no merit in the appeal. The same is, therefore, dismissed. ( Surjit Singh ), J. May 1, 2008, (ss) ` ( Surinder Singh ), J.