IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 452 of 2010 Date of decision: 12.12.2011 State of Himachal Pradesh ... Appellant Versus Manohar Lal S/O Bakshi Ram R/O Village Dhaneta, Tappa Hathol, Police Station Nadaun, District Hamirpur, H.P. … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the appellant: Mr. Vivek Thakur, Additional Advocate General, Addl. Advocate General. For the respondent: Mr. N.K. Thakur, Advocate. Per V.K. Ahuja , J. (Oral): 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, Hamirpur, dated 19.2.2003, vide which he a acquitted the respondent of the charge framed against him under Sections 376 and 506 I.P.C. 2. Briefly stated, the facts of the case are that on 31.8.1999, at 8.30 P.M., a report was lodged at Police Station Nadaun, District Hamirpur, by one Kumari Dipika Devi, aged about 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 16 years, that she is living with her maternal uncle Shakti Chand for the last 2 years. On 29.8.1999, at 5.00 P.M., she had gone to PWD Colony Dhaneta, for cutting of grass, since they had taken permission for grass in lieu of cow dung. It was alleged that Chowkidar Manohar Lal of PWD Colony came near to her, caught hold of her and committed ‘Bura Kaam’ (sexual intercourse) with her. She stated that she raised an alarm and he gave a threat that in case she told this fact to anybody, he will kill her. He went towards his house in village Dhaneta and because of fear, she did not tell this occurrence to her maternal uncle and aunt. However, her maternal uncle’s sons Sony and Monu, who had seen the occurrence, informed her Mami Rasksha Devi. It was alleged that her maternal uncle was not in the house, who came back today and the matter was brought to his knowledge and she came to Police Station to lodge the report with her maternal uncle. On this report, a case was registered and after investigation, the challan was filed before the Court of learned Additional Chief Judicial Magistrate, who committed the case to the Court of learned Sessions Judge, who tried the respondent as detailed above, leading to his acquittal. 3. We have heard the learned counsel for the parties and have gone through the record of the case. 4. On appraisal of the facts of the case, it is clear that first point taken by the learned Additional Advocate General that there was no delay in lodging the FIR. Though, the learned trial Court had observed that there has been in-ordinate delay in registration of the FIR. It was observed by the learned trial Court 3 that the occurrence took place on 29.8.1999 at 5.00 P.M. The FIR Ext. DX was lodged by the respondent on 31.8.1999 and thereafter, the present FIR was registered at 8.30 P.M. on 31.8.1999. The reasoning given was that the maternal uncle of the prosecutrix, namely, PW-7 Shakti Chand was away from the house, which explanation was not found to be plausible. 5. We may refer to the decision of the Hon’ble Supreme Court in State of Himachal Pradesh Vs. Gian Chand, AIR 2001 Supreme Court 2075, in regard to delay in the matters under Section 376 I.P.C. In that case, it was held that the delay has been satisfactorily explained since the mother of the prosecutrix was a widow, the accused was a close relation of the in-laws of the mother of the prosecutrix and PW-1 needed the support of her in-laws, to accompany her or help her in lodging the FIR. Efforts were made to settle the matter on the next day and thereafter the complainant lodged the report and it appears that the report was lodged on second day of the occurrence. In the present case, some explanation has been given by the prosecutrix as PW-10 that her uncle was not in the house and, therefore, the report could be lodged only when he returned on 31.8.1999. The uncle has been examined as PW-7, who has stated that he came back on 30.8.1999 during night time and then he learnt from his wife about the occurrence. He went to the Police Station and lodged a report, which was registered at 8.30 P.M. on 31.8.1999. The explanation given cannot be termed as very plausible, since he had come back on the night of 30.8.1999, but still took complete one day to lodge 4 the report, which was lodged at 8.30 P.M. on 31.8.1999. The distance in between the place of occurrence and Police Station is only 16 K.M. as per the FIR Ext. PW10/A. Before that, a report had already been got registered by the respondent Ext. DX, under Sections 342, 506, 323 and 34 I.P.C. and it was alleged that said Shakti Chand and his elder son Sonu had caught hold of him in the morning and had given him beatings, accompanied by two other persons. The beating were given with legs and fist blows. They took him to their house and locked him inside their cowshed till 10.00 P.M. He suffered injuries on the various parts of his body. The said injuries have been sought to be proved from MLC Ext. DW2/A, which are lacerated wounds, bruises, abrasions and these were six in numbers. These injuries were simple in nature. But a perusal of this report and the MLC cast a duty upon the Court to appreciate the evidence with more care and caution, though the delay in question cannot be said to be fatal, but the evidence has to be appreciated to rule out the possibility of false implication. 6. Coming to the evidence led by the prosecution, the prosecution has examined the prosecutrix ‘X’ (name not mentioned) as PW-10, who stated that the accused was present there, scuffled with her and took her that place, where the bitumen drums were lying in the store and subjected to her sexual intercourse against her will and her consent. She came up with the plea that she wanted to raise an alarm, but the accused pressed her mouth. Her brothers Sonu and Monu came there and on seeing them the 5 accused fled away from the place of occurrence. She did not alleged that any threat was given by the accused, as has been allege in the report lodged by her or she was taken to the space inside the drums or that on seeing Sony and Monu accused fled away. These facts were not mentioned in the earlier report lodged by her. Her statement only shows that the accused subjected her against her will and consent. She stated that she wanted to raise an alarm, but the accused had pressed her mouth. However, her legs and hands were free to resist the attempt made by the accused to rape her. There is nothing in her statement that she raised an alarm, caused any tooth bite to the person of the person or suffered any type of injuries on any part of her body, when she was raped inside the store. The Medical Officer PW-6 Dr. Archna Soni had observed that she examined the prosecutrix, issued MLC Ext. PW6/B and after receipt of the report of the Chemical Examiner report Ext. PW6/C, she had opined as under:- “As per chemical examiner report no spermatozoa or blood found on smeared on the cloths. However, by physical examination the possibility of sexual intercourse could not be ruled out. Her age as per Radiologist’s opinion was below 18-20 years. As per report of radiologist after ultrasound, she was found not pregnant. My opinion is Ex. PW6/D on the reverse of Ex. PW6/B.” 7. In her examination, she has stated that the prosecutrix was habitual of having sexual intercourse. In regard to the examination, she had observed as under:- 6 “……… There was no mark of violence present on face, neck, breats abdomen, back and inner side of thigh and voulbal region. Local examination - Libia majora, libia minora well developed. There was slight congession present on the vulbal region. Hymen was torn and old healed tags were present. Hymen was torn and admitted two fingers easily. ….” 8. From the above discussion, it is clear that the statement of the prosecutrix was not such which could be implicitly relied upon keeping in view the fact that she did not raise any alarm or protest or when there was an opportunity for her to free herself from the respondent, when she is a built up lady of the age of 20 years, as has been established by the prosecution from the evidence led in the Court from the birth certificate Ext. PW3/A duly proved in evidence. The date of birth mentioned is 2.10.1979 and the occurrence took place on 29.8.1999 and thus she was of the age of 20 years. She was a well built lady, but no injuries were found on her person and no semen or blood was also found on her clothes. The facts of the case clearly shows that a report had allegedly been lodged by the respondent in regard to the beatings given by the prosecutrix’s uncle and cousin brothers and, therefore, the learned trial Court had finally concluded that the possibility that respondent was falsely implicated, cannot be ruled out. The said findings arrived at by the learned trial Court in the facts and circumstances of the case, cannot be termed as perverse, calling for an interference by this Court. 7 9. In view of the above discussion, we accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged forthwith. ( Deepak Gupta ), Judge December 12, 2011 ( V.K. Ahuja ), (BSS) Judge