IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.10 of 1999. Judgment reserved on: 27.5.2010. Date of decision: 18.6.2010 State of H.P. ... Appellant Versus Bir Singh and others … Respondents Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No For the appellant: Mr.Vivek Singh Thakur, Addl.A.G. For the respondents: Mr.V.D. Khidtta, Advocate. ____________________________________________________________ Deepak Gupta, J. This appeal by the State is directed against the judgment dated 21.2.1998 delivered by the learned Additional Sessions Judge, Shimla in Sessions Trial No.27-S/7 of 1995 whereby he acquitted the accused of having committed offences punishable under Section 376 read with Section 109 IPC. Accused Bir Singh is facing trial under Section 376 IPC whereas his co-accused Bali Ram and Molak Ram have 1Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 been charged with committing an offence punishable under Section 376 read with Section 109 IPC. The prosecution story, in brief, is that on 12.3.1994 accused Bir Singh assaulted the prosecutrix with the assistance of his co-accused. Next day a complaint was lodged by the prosecutrix and her father Sh.Hira Dass with the Police Station, Rohru at 4.30 p.m. on the basis of which FIR No.75 of 1994 was registered. The matter was investigated and the accused charged with having committed offences as aforesaid. The learned trial Court acquitted. Hence, the present appeal by the State. The prosecutrix appeared as PW-3. According to her on the fateful day she had gone to the house of her maternal grand father in village Langoti, Tehsil Rohru. She had carried cow-dung in a ‘Kilta’ to a field which adjoins the house of accused Bali Ram. Accused Bali Ram called her to his house. Other two accused were also sitting in the house. They were all consuming liquor. On seeing them having liquor she wanted to leave the house and jumped from the verandah of the house. However, all accused persons caught hold of her and she was taken to an orchard of one Chuni Lal. There one of the accused persons caught hold of her arm whereas another caught 3 hold of her legs and accused Bir Singh @ Bittu broke the ‘nara’ of her salwar. Bali Ram and Molak Ram accused ran away and Bir Singh subjected her to forcible sexual intercourse. Thereafter, Bir Singh set her free and she went to the house of Bishan Devi. This lady provided her a ‘nara’ for her salwar. The prosecutrix narrated the incident to Bishan Devi and her bhabi Smt.Pamplu Devi whose house is also situate close-by. She also revealed the factum of her being raped to one Smt.Shana Devi. Then she went to the house of her material grand parents and narrated the occurrence to her material grand mother who in turn told this incident to one Man Dass. Her father was called from his village. Next day, she along with her father went to the Police Station, Chirgaon. From Chirgaon they went to Rohru and recorded the matter. Thereafter, she was got medically examined. Other investigation was done. In cross examination, the prosecutrix admitted that Bali Ram accused is her cousin and normally his wife and children reside with him. She also admitted that the land of the accused and her maternal grand father adjoin each other. She stated that she jumped from the first floor of the verandah but did not sustain any injury. When 4 asked why she did not raise an alarm, she stated that her mouth was pressed with a ‘Dhatu’. According to her the place where she was raped is slopy and stony but she did not receive any injury. According to her, she did not give any teeth bite or scratches of nails to accused Bir Singh. She stated that she did not know whether Bali Ram or her father were litigating with each other. She also admitted that on the day of occurrence Shivaratri festival was going on and this festival is celebrated with great enthusiasm in the villages. She also admitted that Molak Ram is father of Bali Ram accused and that Bir Singh is married to the sister of Bali Ram i.e. he is son in law of Molak Ram. It is not understood why the father-in-law and brother-in-law of Bir Singh would assist him in raping some other woman. The prosecutrix also admitted that she remained in the house of Bali Ram for half an hour and only thereafter she jumped from the verandah. She was confronted with the FIR Ext.PW-2/A wherein there is no mention of having jumped from the verandah. In this FIR it is also not recorded that she was lifted by the accused and taken to the orchard after gagging her mouth. She 5 denied the suggestion that her family and family of the accused are not on speaking terms. PW-4 Hira Dass is the father of the prosecutrix. According to him, his mother came and told him that prosecutrix was about to jump into the river as she has been raped by 2-3 persons. This is a totally different story. His mother told him to go to village Langoti. He then visited village Langoti where Man Dass informed him that his daughter had been raped by Bittu @ Bir Singh. He then talked to his daughter who told him about the incident. Thereafter, he went to the Police Station and lodged the report Ext.PW-2/A. He was confronted with the statement recorded under Section 161 Cr.P.C. wherein it is not recorded that Man Dass had informed him about her daughter being raped. PW-5 Pumplu Devi is the Bhabi of the prosecutrix. According to her she was informed by the prosecutrix that she had been raped by Bir Singh. However, she denied having made a statement to the police that Bali Ram had abetted the commission of such offence. PW-6 Dr.Rajinder Singh found no injuries on the person of the accused. No sperms dead or alive were found in the vaginal swab. No dried semen stains were 6 seen on the external genitalia and thighs. No blood stains were found present. He was definitely of the opinion that there was nothing to suggest that recent sexual intercourse had occurred with the victim. He therefore ruled out the possibility of prosecutrix being raped. This itself totally negates the prosecution story. Further more, Bishan Devi PW-13 does not support the prosecution. According to her the prosecutrix had only asked her for a ‘nara’ for her salwar and did not tell anything else. She therefore did not inquire from the prosecutrix why she was required a spare ‘nara’. This witness clearly stated that PW-5 Smt.Pamplu was not present at the village on the said date. The medical evidence does not support the prosecution. There are no injuries on her person though according to her she jumped from the first floor, was over- powered by three persons and raped on a stony surface. There are no marks of injuries on her back or thighs. She was a minor girl and if she had been actually raped she would have definitely suffered some injuries. There is also sufficient evidence on record to show that the relations between the accused and the parents of the prosecutrix 7 were not cordial at all. Therefore, the chances of false case being lodged could not be ruled out. The prosecution has also failed to examine two very material witnesses i.e. Man Dass and the maternal grand mother of the prosecutrix. In such circumstances the learned trial Court was fully justified in acquitting the accused. We find no reason to interfere in the well reasoned judgment of the learned trial Court. The appeal is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ), J. June 18, 2010 ( Rajiv Sharma ), J. PV