IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 362 of 1996 Date of Decision: 15th March, 2010 State of Himachal Pradesh Appellant Versus Ramesh Respondent Coram The Hon’ble Mr. Justice Deepak Gupta,J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Shri Vivek Thakur, Addl. Advocate General. For the respondent: Shri G.D.Verma, Sr. Advocate, With Mr. Romesh Verma, Advocate. Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgment of the learned Sessions Judge, Shimla, dated 20.6.1995 in Sessions trial No. 49-S/7 of 1995 whereby the accused has been acquitted of having committed an offence punishable under Section 376, IPC. The prosecutrix and the accused are related to each other since the accused is the real uncle of the husband of the prosecutrix. The houses of the two also adjoin each other. Whether the reporters of Local Papers are allowed to see the Judgment? Yes. 2 The prosecutrix made a complaint to the Pradhan, Gram Panchayat, Jharag Nakrari to the effect that on 19.4.1994, she was alone at her home and then the accused seeing her alone entered her house and caught hold of her hand. He then tried to pull her outside the kitchen where she was working. She tried to raise an alarm but the accused had gagged her mouth with his hand. Thereafter he raped her and then released her. Then she came out and complained to her husband’s maternal grand father Shawnu, who then accosted the accused and told him that he should die of shame. She then states that on the next day her husband returned home and she told her husband and parents-in-law about the incident. She states that when her in-laws started abusing the accused facing his house, the accused asked them why they were hurling abuses against him and made allegations that the lady of your house is of easy virtue and entangled with the police officials at Jubbal. The complaint to the police was made on 25.4.1994, six days after the incident took place. Thereafter, the prosecutrix was medically examined. After completion of investigation, the case was registered. The accused was not found guilty by the trial Court. Hence, the present appeal. The prosecutrix is a married woman. When she appeared in the Court, her statement was totally 3 different to what she had stated in the complaint filed with the Gram Panchayat. According to her she was dragged inside the kitchen where the accused untied her Salwar and forced her to lie on the ground and then committed forcible sexual intercourse with her. Obviously, this could not have been done while her mouth was gagged with one hand. Therefore, she had opportunity to raise an alarm. Though in her examination-in-chief she states that it was only when the accused fled away that she raised an alarm, in her cross-examination she stated that she raised a hue and cry for about 5-10 minutes when the accused entered the kitchen. Admittedly the residence of PW- 2 Shawnu is in the same building and there are a number of other families residing in the village adjoining to the house of the prosecutrix. The prosecutrix also admits that when there was a struggle in the kitchen the household articles including utensils fell down and there was a loud noise. If this was correct then someone from the neighbouring houses would have come to save her or find out what had happened. She also states that this noise was heard by Shami Devi. This person has not been examined. There is a delay of six days in lodging the FIR. In this case, according to the prosecutrix, she had told her grand father-in-law about the incident 4 immediately after it had occurred. Nothing prevented her from going to police especially when she had already informed the Pradhan also. Even the first complaint was made two days after the incident had occurred. This is not one of those cases where to protect the honour of the prosecutrix there was hesitation to lodge the complaint. Assuming for the sake of argument that there is a valid explanation upto 21.4.1994, once the matter was made public by lodging a complaint with the Gram Panchayat there was no reason why the prosecutrix could not have lodged the complaint with the police. PW-5 Balbir Singh, husband of the prosecutrix is employed with the Electricity Board and according to him on 20.4.1994 when he came home his wife told him that the accused had committed sexual act with her. Despite this, he went away to join his duties at Jubbal on 21.4.1994, as if nothing had happened. It is important to note that he does not say that his wife was raped because there is no mention that his wife told him that the accused committed forcible sexual act with her. It cannot be believed that a husband who comes to know that his wife has been raped and the matter is known to entire village would not make a complaint to the police. In cross-examination he states that he cannot give any explanation as to why he did not make a complaint. 5 He also admits that report was lodged at the instance of his parents and not at his instance. There is sufficient material on record to show that there are civil disputes pending between the in-laws of the prosecutrix and the accused. In such a situation, the delay in lodging the FIR becomes very crucial. There are also material improvements and contradictions in the complaint made to the Panchayat and the statement made in the Court. No doubt the law is clear that conviction in such a case can even be based on the sole testimony of the prosecutrix but such testimony must inspire confidence. Here we are dealing with a prosecutrix who is young lady, who could have resisted the advances of the accused. Initially, she stated that her mouth was gagged and she could not raise an alarm. In the statement made in the Court, she stated that she was dragged and her clothes were torn. This could not have been done while one hand of the accused was used to gag her mouth. Therefore, she made an improvement and stated that she has raised hue and cry for 5-10 minutes. She also states that during this struggle all the utensils fell down. In case there had been some noise, somebody would have come from the adjoining houses. The conduct of the husband also casts grave doubt on the testimony of the prosecutrix. Why did 6 the husband keep silent? He gave no answer to the question. It is apparent that there is something more than meets the eye and something has been hidden from the Court. The complaint to the Gram Panchayat was made on 21.4.1994. Therefore, the entire world knew what had happened. Why was the prosecutrix silent upto 25.4.1994 when the complaint was made to the police. All these questions remain unanswered and there is no explanation from the prosecution for the same. This casts grave doubt on the prosecution version. In view of the aforesaid, we find no merit in the present appeal, which is dismissed. (Deepak Gupta) Judge. (Sanjay Karol) 15th March, 2010 Judge. (C)