1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 39 of 1998 Decided on September 17, 2010 _________________________________________________________ State of H.P. …Appellant. Versus Binder Singh …Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr. R.K. Sharma, Senior Additional Advocate General, with Mr. Rajinder Dogra, Additional Advocate General, For the respondent: Mr. Avneesh Kumar, Advocate. Justice R.B. Misra,J. ( Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of criminal Procedure has been granted in reference to judgment dated 1.7.1997, passed by the Learned Sessions Judge, Shimla, H.P., in Sessions Trial No. 17-S/7 of 1996 under Sections 376 of the Indian Penal Code, whereby acquitting the alleged accused/respondent. 2. The prosecution case is that on 15.6.1994, accused accompanied by two relatives of the victim / prosecutrix, namely, Ishwar Singh and Chander Sain, went to the house of the victim / prosecutrix in village Tangnu around 9.00 P.M. All the three asked the lady, if she had any liquor with her and on refusal, the above named relatives of the victim / prosecutrix left the house. Accused-respondent also pretended to leave the 2 house, but as soon as the two relatives of the victim / prosecutrix stepped out of the door, the accused turned back and bolted the door of the house from inside and sexually assaulted the victim / prosecutrix. The right hand of the victim / prosecutrix was deformed, and therefore, she could not put up physical resistance. After some time one Sardar Singh, whom the victim / prosecutrix calls Mama, went to the house of the victim / prosecutrix, he noticed the accused inside the house of the victim / prosecutrix. Accused-respondent told said Sardar Singh not to tell anybody that he was in the house of the victim / prosecutrix. Therefore, Sardar Singh left for his own house. The accused-respondent stayed in the house of the victim / prosecutrix for the whole of the night and committed sexual intercourse on her twice. After committing sexual intercourse, accused-respondent offered the victim / prosecutrix to marry her, but she declined the offer because the accused was already married and was having children too from his wife. On the next day, the victim / prosecutrix went to Police Post, Chirgaon, to lodge the report, but her report was not lodged. Subsequently, she went to the police station. Thereafter, the victim / prosecutrix came to Shimla and narrated the incident to her mother, who lodged a written complaint to Chief Minister, on the basis of that complaint, case was formally registered. The FIR was lodged on 19.8.1994. 3. After investigation, the accused was arrested and charged for the aforesaid offence. The case was committed for Sessions Trial. In order to prove its case, the prosecution has 3 examined as many as 15 prosecution witnesses. Whereas, the accused through his statement under Section 313 of Cr.P.C., has denied the prosecution case. 4. The prosecution examined PW.4, the victim / prosecutrix, PW.5 Smt. Janki Devi, mother of the victim / prosecutrix, PW.6 Sardar Singh, who allegedly spotted the accused in the house of the victim / prosecutrix on the relevant night, PW.10 Surat Ram, Petition Writer, from whom the victim / prosecutrix got scribed the complaint Ex.PW.4/A, for presentation at the Police Post, Chirgaon and PW.13 Anant Ram, Sub Inspector, who conducted the investigation of the case. 5. PW.4 the victim / prosecutrix in her endeavour to support the prosecution case has stated that on the fateful day, when she was being sexually assaulted by the accused- respondent, she did not raise any alarm or made any hue and cry as well as did not disclose anything to PW.6 Sardar Singh. She has also stated that when she went to the police station and lodged a written complaint Ex.PW.4/A, the matter was got compromised by the police vide compromise deed Ex.PW.4/B. Ex.PW.4/A the alleged complaint lodged by the victim / prosecutrix with the police has come from her own custody and not from the record of police post Chirgaon. The victim / prosecutrix did not explain how this complaint and the compromise deed Ex.PW.4/B got into her hands when the same was supposed to be in the police record. As per complaint Ex.PW.4/A, the accused-respondent went to the house of the victim / prosecutrix not on 15.6.1994, the alleged date of the 4 incident, but on 22.6.1994, in the company of her relatives Rameshwar and Chander Sain and tried to dishonour, but this complaint no where indicates that the victim / prosecutrix was sexually assaulted by the accused-respondent and the accused- respondent stayed at the house of victim / prosecutrix whole of the night and had sexual intercourse thrice during the course of that night. The date of incident mentioned in the above writing is also different in her deposition as PW.4. 6. PW.6 Sardar Singh has stated that on 15.6.1994, around 12 in the night, when he was passing by the house of the victim / prosecutrix, he saw two girls Girja Patti and Kishan Dei standing outside the house of the victim / prosecutrix and heard some one crying and when he went inside the room, he saw accused Binder Singh hiding under a cot and he told him not to tell anybody about his presence in the hose of the victim / prosecutrix. PW.6 Sardar Singh did not indicate in examination-in-chief that the victim / prosecutrix told her that she had been sexually assaulted by the accused-respondent. Though in the cross-examination, when put a question whether the victim / prosecutrix told him anything when he went to her house initially at 9.00 P.M., he said that she told him when he went for the second time that the accused had sexually assaulted her. PW.6 has further stated that he did not tell anybody that the victim / prosecutrix told him that she had been sexually assaulted by the accused-respondent. PW.6 Sardar Singh has stated that he heard the cries of some one around 12 in the night when he passed by the house of the 5 victim / prosecutrix, but he has nowhere stated that those were the cries of the victim / prosecutrix. 7. PW.5 Smt. Janki Devi, mother of the victim / prosecutrix, in her endeavour to support the prosecution case has stated that she got a complaint Ex.PW.5/A drafted on 5.7.1994 and presented the same to the Chief Minister and PW.5 has however not offered any explanation of lodging the complaint by the delay of 12 days. 8. Keeping in view the facts and circumstances and materials on record, we notice that age of the victim / prosecutrix is 25 years and in her own testimony the victim / prosecutrix has given the different version about the date of incident mentioned in the complaint Ex.PW.4/A, lodged by her with the police on 23.6.1994. Further, nothing has been divulged by the victim / prosecutrix to anybody, from which it could be revealed that if any injury was caused to her in the said incident, the prosecution case appears to be highly improbable and the testimony of the victim / prosecutrix herself is not inspiring confidence. 9. In view of the facts and circumstances, inconsistencies and contradictions are being apparently noted from the prosecution witnesses, the learned Sessions Judge has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt to the accused and there is no scope of interference in the findings given by learned Sessions Judge. In view of the aforesaid facts 6 and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 10. The bail bonds furnished by the accused/respondents are hereby discharged. (R.B. Misra) Judge September 17, 2010 (V.K. Sharma) (Purohit) Judge