IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 342 of 1996 Date of Decision : March 15, 2010 State of Himachal Pradesh Appellant Versus Parkash Chand Respondent Coram: Hon’ble Mr. Justice Deepak Gupta, Judge Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Vivek Thakur, Additional Advocate General with Mr. Ram Murti Bisht, Deputy Advocate General for the appellant. For the respondent : Mr. B. K. Malhotra, Advocate, with Mr. Rohit Chauhan, Advocate, for the respondent. Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgment dated 25.5.1995 passed by the learned Sessions Judge, Mandi, Kullu and Lauhal-Spiti Districts, at Mandi, H.P. in Sessions Trial No. 33 of 1994 whereby he has acquitted the accused of having committed an offence punishable under Section 376 of the Indian Penal Code. 1 Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 The prosecutrix is an unfortunate minor girl. She is deaf and dumb. It is not disputed that she is mentally challenged to such an extent that she is not even aware of what has happened with her. Dr. R. S. Dhatwalia (PW-1) has clearly opined that the prosecutrix is unaware of the offence having been committed on her. The prosecution story is that on 18.7.1994 the prosecutrix was not found at home and thereafter her mother searched for her and while searching for her she went to the cow-shed and found that the prosecutrix was lying on stack of hay. Her ‘salwar’ had been removed. The mother picked up the prosecutrix and took her outside and found that blood was coming out from the vagina of the prosecutrix. She took the prosecutrix to the verandah of her house. She then went to the Up-Pradhan Dina Nath (PW-8) and informed him that her daughter had been raped by the accused. She however did not go to lodge a report with the police as advised by PW-8 since her husband was not at home. Her husband returned after seven days of the occurrence. According to her after waiting for her husband for four days she went to Mandi and filed a complaint Ext.- PD with the Deputy Commissioner, Mandi. The learned trial Court found that the prosecutrix was a minor and also that in view of her mental condition she was incapable to give her consent. Dr. Vanita Kapoor (PW-2) has opined that the prosecutrix has been subjected to sexual intercourse. Therefore, there is no manner of doubt that this is a case of rape. The 3 question which has to be decided is whether it was the accused who raped the minor prosecutrix or not. Admittedly, the mother of the prosecutrix (PW-7) had lodged complaint Ext. PD with the Deputy Commissioner. This complaint has been drafted by Sh. Karam Singh (DW-1). It is dated 25.7.1994 that is seven days after the occurrence. According to the mother of the prosecutrix she went to Mandi after four days. This is not supported by Ext. PD. This shows that she went to Mandi after seven days. The mother of the prosecutrix admits that her husband had come back after the seventh day. Therefore, it appears that something is being hidden from the Court. No doubt in Ext. PD it is mentioned that Ext. PD is a complaint against the accused but what is stated in the complaint is that when the complainant (PW-7, mother of the prosecutrix) found the prosecutrix in a state of unconsciousness in the cow-shed the accused had already fled away from the scene of occurrence. There is no mention in this complaint that the accused was seen by PW-7 at any stage. While appearing in the Court PW-7 states that when she was going towards the cow-shed she saw the accused coming out of the cow-shed. This statement does not appear to be true because if that had been so, the mother would have immediately raised a hue and cry and told all the villagers that she had seen the accused coming out of the cow-shed. According to Sh. Dina Nath (PW-8) he advised PW-7 to report the matter to the police. The nearest police station is at Gohar. The village of the complainant is also close to Gohar. 4 There is no explanation as to why the complainant had to come to Mandi to get the complaint prepared from a petition writer instead of lodging it with the police. It is claimed that the mother of the prosecutrix is illiterate. If it is so, who advised her to go to the petition writer and not to the police since Sh. Dina Nath (PW-8) had asked her to go to the police. There is a delay of seven days in lodging the complaint Ext. PD. Delay, by itself may not be fatal to the prosecution. However the same must be reasonably explained. When there is delay then the evidence of the prosecution is to be screened with a greater care and caution to ensure that a false story has not been cooked up during the period available to the complainant side. In this case as already pointed above PW-7 in her statement stated that her husband came back after seven days and she went to Mandi after four days. This is not supported by Ext. PD. She did not go to the police. There is a very material contradiction between the version given in Ext. PD and the version given in the Court. Therefore, the statement of the mother of the prosecutrix cannot be totally relied upon. The only circumstance linking the accused to the offence as put up by the prosecution is that he was seen coming out of the cow-shed. This version was not mentioned in the written complaint Ext. PD even after seven days of the occurrence. It has come out for the first time in the Court. Therefore, it cannot be believed to be the gospel truth. 5 We therefore find no merit in the appeal which is accordingly dismissed. Bail bonds furnished by the accused are ordered to be discharged. The case property is ordered to be disposed of in accordance with law, as directed by the learned Sessions Judge. (Deepak Gupta), Judge. (Sanjay Karol), Judge. March 15, 2010 (PK)