IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 264 of 2001. Reserved on 28.02.2011. Decided on:06.04.2011. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Rajesh Kumar alias Bintu. …Respondent. Coram: The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the appellant : Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General. For the respondent : Mr. N.K. Thakur, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: State has come in appeal against the judgment dated 02.02.2001, passed by the learned Sessions Judge, Hamirpur in Sessions Case No. 08 of 2000, whereby respondent, who was charged with and tried for offence punishable under Section 376 of the Indian Penal Code, has been acquitted. 2. Case of the prosecution, in a nut-shell, is that on 16.02.1999, the prosecutrix has gone to graze her cattle. The accused caught the prosecutrix by the neck. The accused laid the prosecutrix on the ground and performed sexual intercourse. Prosecutrix could not raise an alarm because she was threatened by the accused of dire consequences. In the evening at about 4:00 p.m., Smt. Sansaro Devi, mother of the prosecutrix, went to pasture land. She noticed that the 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - prosecutrix was weeping. She enquired from the prosecutrix why she was weeping. The prosecutrix told her mother about the incident. Thereafter, the F.I.R. was registered. The prosecutrix and the accused were medically examined. Police completed the investigation and a challan was put up after completing all the codal formalities. The accused was also examined under Section 313 of the Code of Criminal Procedure. His defence was of denial simplicitor. The trial Court acquitted the respondent on 02.02.2001. Hence, this appeal by the State. 3. Mr. R.K. Sharma, learned Senior Additional Advocate General has strenuously argued that the prosecution has proved its case. According to him, the learned Sessions Court has failed to appreciate the ocular and documentary evidence placed on record by the prosecutrix. 4. Mr. Naresh Thakur, learned counsel for the respondent has supported the judgment dated 02.02.2001. 5. We have heard the learned counsel for the parties and gone through the pleadings carefully. 6. The incident took place on 16th February, 1999. However, the F.I.R. was lodged on 18th February, 1999. There is delay in lodging the F.I.R.. The only explanation given by the prosecution for delay in lodging the F.I.R., is that the father of the prosecutrix, Tulsi Ram was not present in his house on 16.02.1999 and 17.02.1999. Prosecution has not led any evidence to prove where he had gone on 16.02.1999 and 17.02.1999. The delay in lodging the F.I.R. has not been explained. The prosecutrix has turned hostile. She has clarified that portion “A” to “A” and “B” to “B” of her statement - 3 - incorporated in the F.I.R. has been incorrectly recorded. The portion “A” to “A” of Ex. PW-1/A is to the effect that the accused had forcibly raped her. She has deposed that this portion was incorrectly recorded. According to the contents of F.I.R., i.e., Ex. PW-1/A, she deposed that when she returned to her house, she narrated the story to her mother. However, while appearing as a witness, she has deposed that her mother had come to meet her in the jungle after the incident has taken place. According to Dr. Jyoti Kapil, there was no evidence of the prosecutrix being subjected to sexual intercourse as per Ex. PW-5/A. The opinion has been given by PW-5 Dr. Jyoti Kapil after analyzing the Chemical Examiner’s report Ex. PW-5/B as well. The prosecutrix was 21 years of age at the time of incident. According to the prosecutrix, her shirt and Salwar were torn, but, the shirt Ex. P- 1 and Salwar Ex. P-2 were not as stated by the prosecutrix. Father of the prosecutrix, who had gone with her to lodge the F.I.R., has not appeared as witness. 7. What emerges from the observations and discussions made hereinabove, is that the prosecution has miserably failed to prove the case against the accused. Consequently, we will not interfere in the well reasoned judgment of the trial Court. Accordingly, there is no merit in this appeal and the same is dismissed. Bail bonds are ordered to be discharged. (R.B. Misra), Judge (Rajiv Sharma) Judge April 04, 2011. (bhupender) - 4 - - 5 -