IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.356 of 2000 Decided on : November 1, 2010 State of H.P. …Appellant. Versus Sanjeev Kumar …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the Appellant : Mr. Mr. R.K. Sharma, Senior Additional Advocate General, and Mr. Rajinder Dogra, Additional Advocate General. For the Respondent : Pt. Om Prakash, Advocate. Surjit Singh, J (Oral) State has appealed against the judgment dated 22nd April, 2000 of learned Sessions Court, whereby respondent Sanjeev Kumar, who was tried for an offence, under Section 376 of the Indian Penal Code, has been acquitted. 2. A report was lodged against the respondent by PW-3 Savitri Devi, the mother of the prosecutrix, on 18th October, 1998, that on 11th October, 1998, when she returned from paddy fields, in the evening, she was informed by her daughter PW-4 (the prosecutrix), then aged about eight years, that the respondent had taken her to a cow-shed close to their house and committed rape on her. Whether reporters of the local papers may be allowed to see the judgment? …2… 3. Case was registered vide FIR Ex. PW-3/A. Prosecutrix was got medically examined on the next following day. PW-2 Dr. Sumanju Dhiman conducted medically examination. No injury was noticed on any part of the person of prosecutrix (PW-4). 4. On the basis of allegations made in the report and the statements of the prosecutrix and her mother, made during the course of investigation, challan was filed against the respondent. Learned Judicial Magistrate, in whose Court, report was filed, committed the case to the Sessions Court. Leaned Sessions Judge assigned the case to the learned Additional Sessions Judge, who, after hearing the parties and going through the record, charged the respondent with offence, under Section 376 of the Indian Penal Code. Respondent pleaded not guilty. So, he was ordered to be tried. 5. Prosecution mainly relied upon the testimony of the prosecutrix, examined PW-4, her mother Savitri Devi, examined as PW-3, and the Pradhan of the Panchayat Narinder Singh (PW-9). Learned trial Court has acquitted the respondent, holding that from overall reading of the evidence it appears that there is a dispute over right of passage between the parties and in connection with that dispute prosecutrix had been rebuked and given two-three slaps and no incident of rape, as alleged by the prosecution, appeared to have taken place. …3… 6. We have heard learned Additional Advocate General as also learned counsel for the respondent and gone through the record. 7. PW-9 Narinder Singh, Pradhan of the Panchayat, is not a hostile witness. Prosecution very much relies upon his testimony. The witness, in no uncertain terms, testified that when the matter was reported to him on 12th October, 1998, by the mother of the prosecutrix, no allegation of rape had been made and that in fact he was told that the respondent had slapped the prosecutrix, in connection with the dispute over right of passage claimed by the parents of the prosecutrix. There should be no reason to disbelieve the testimony of this witness, especially when the prosecution did not declare him hostile and very much relies upon his testimony. 8. Mother of the prosecutrix, namely Savitri Devi, examined as PW-3, also stated that when the Pradhan was informed, he visited the spot and advised the parties not to quarrel, which fact suggests that it was a case of simple quarrel. PW-3 Savitri Devi stated that she had got this fact recorded in FIR Ex. PW-3/A, but such a fact does not find mention in the FIR, with which she was duly confronted. Also, the mother of the prosecutrix, in her testimony, stated that two written complaints about the incident, in question, had been lodged with the police and one of those complaints had been written by Up-Pradhan of the …4… Panchayat, namely Paras Ram Pandit. She also stated that Up-Prahdan accompanied her to the Police Station. She also stated that her own husband, who was at Dehra those days, was approached by her at Dehra, on the day next following the day of occurrence and that thereafter she lodged the report. She does not say her husband lodged any report with the police, even though he had been informed of the incident by her on the very next day of the occurrence. Also, she has offered no explanation for the Up-Pradhan of the Panchayat drafting a complaint about the incident, which is not on record. Explanation to this effect has been offered by the Pradhan, PW-9 Narinder Singh, who says that Up-Prahdan was apprised during election by the father of the respondent. 9. It is stated by the prosecutrix that she had been given two-three slaps by the respondent and he also objected to her passing through the disputed passage on the relevant day. She stated that this fact had been brought by her mother to the notice of the Panchayat also. Statements of the prosecutrix and her mother to this effect lend credibility to the version given by PW-9 Narinder Singh, Pradhan of the Panchayat. 10. Medical evidence also does not support the prosecution case. Also, there is delay of more than a week in reporting the matter to the police. Further, the mother of the prosecutrix testified that report had to be lodged with …5… the police, because respondent’s side did not act on the advice of the Pradhan to settle the matter amicably. This statement also indicates that this was a trivial matter of quarrel only. For the foregoing reasons, we see no merit in the present appeal. The same is, therefore, dismissed. ( Surjit Singh ), J November 1, 2010(sd) ( Rajiv Sharma ), J