IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 584/1996 Reserved on: 19.4.2010 Decided on: 28.4. 2010 _____________________________________________ State of Himachal Pradesh. …Appellant. Versus Rajinder Kumar and another. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Deepak Gupta, Judge. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the Appellant : Mr. Rajesh Mandhotra, Deputy Advocate General. For the Respondents : Mr. Ajay Sharma, Advocate. ____________________________________________________ Per Rajiv Sharma, J. State has filed this appeal against the judgment dated 5.12.1995 passed by the learned Sessions Judge, Una in Sessions Case No. 25 of 1995, whereby respondents charged with and tried for offences punishable under sections 376 and 452 of the Indian Penal Code, have been acquitted. 2. Case of the prosecution, in a nutshell, is that PW-5 Nirmala Devi had gone to attend the marriage in her village alongwith her children, including PW-3 Reena Kumari. The children were 1 Whether reporters of the local papers may be allowed to see the judgment? . No. 2 feeling sleepy at about 11.30 P.M., therefore, PW-5 Nirmala Devi sent PW-3 Reena Kumari alongwith her two brothers to the house. She came after 1½ hours. PW-3 Reena Kumari was weeping at that time and she told her mother that the respondents had entered her room, removed her clothes and put a cloth on her mouth and did sexual intercourse with her one after the other. She raised alarm and her brother, aged about eight years, got up at that time and prevented the respondents but the respondents threatened him. Nirmala Devi (PW-5) sent her brother-in-law to send a telegram to her husband. He came back after 3-4 days and lodged the report with the police on 14.3.1995 at 6.15 P.M. FIR Ex.PE was registered by Krishan Chand (PW-12). Reena Kumari (PW-3) was medically examined by PW-1 Dr. Neelam. She issued Medical Legal Certificate, i.e. Ex.PB. Respondents were also medically examined by Dr. Y.P. Sharma. He issued Medico Legal Certificates Ex. PC and PD. Case was investigated and challan was put up against the respondents. 3. Prosecution examined as many as twelve witnesses in all to prove its case against the respondents. Respondents were examined under section 313 of the Code of Criminal Procedure. According to them, they have been falsely implicated due to strained relations between the families. The learned trial court acquitted the respondents. 4. Mr. Rajesh Mandhotra, learned Deputy Advocate General has strenuously argued that the prosecution has proved its case against the respondents. 3 5. Mr. Ajay Sharma has supported the judgment of the learned trial court. 6. We have heard the learned counsel for the parties and perused the record carefully. 7. Date of birth of PW-3 Reena Kumari, as per certificate issued by PW-7 Kishori Lal, Head Master and PW-8 Ranbir Singh, was 1.6.1982. She was 12 years old at that time. She has deposed that she came back after attending the marriage with her two brothers. She slept in the room alongwith her brothers and at about 11.30 P.M., respondents entered the room and removed her Salwar and Kameez and threw her on the ground and both of them did “Bura Kaam” with her one after the other and put their male organ inside her vagina. She raised alarm and her brother aged about 8 years prevented the respondents. The respondents threatened him. They ran away after doing “Bura Kaam”. PW-5 Nirmala Devi came back at about 1.15 A.M. She narrated the entire incident to her. She has further deposed that Dilbag Singh (PW-4) came after 3-4 days. She was examined at Civil Hospital, Daulatpur. 8. PW-5 Nirmala Devi is the mother of the prosecutrix. She has corroborated the statement of PW-3 Reena Kumari the manner in which the incident had taken place. She deputed her brother-in-law to send a telegram to her husband. PW-4 Dilbag Singh is the father of the prosecutrix. According to PW-3 and PW-5, he came after 3-4 days, but PW-4 has deposed that he came on 13.3.1995 and FIR was lodged on 14.3.1995. PW-6 4 Vyasan Devi is the grandmother of the prosecutrix. The incident was told by the mother of the prosecutrix to her. The incident had taken place on 7.3.1995 at about 11.30 P.M. However, FIR was registered on 14.3.1995. The delay in lodging the FIR has not been explained. It is true that delay in lodging the FIR is not fatal to prosecution case. However, in the present case, the mother of the prosecutrix PW-5 Nirmala Devi had sent a telegram to her husband on 8.7.1995. He came back as per the statement of PW- 4 and PW-5 after 3-4 days. PW-4 has deposed that he came on 13.3.1995 in the evening. The FIR was lodged at his instance on 14.3.1995 that too at 6.15 P.M. The distance between the village of the prosecutrix and the police station is about 12 kilometers. The explanation given by the father i.e. DW-4 Dilbag Singh is that he did not lodge the FIR since he was tired. In normal circumstances, a man of reasonable prudence, whose daughter had been raped, would immediately come back and lodge report with the Police. Prosecutrix’s mother Nirmala Devi came back at 1.15 A.M. She had narrated the incident to her mother-in-law Vyasan Devi (PW-6). This incident was also narrated by her to one Soma Devi. Soma Devi has not been examined by the prosecution. Nirmala Devi (PW-5) had deputed her brother-in-law to send a telegram. In normal circumstances, the FIR ought to have been lodged with promptitude either by the mother of the prosecutrix i.e. PW-5 Nirmala Devi or grandmother of the prosecutrix or brother-in-law of PW-5. It has come in the evidence that the father of the respondents was not happy about the 5 frequent visits of undesirable persons to the house of Nirmala Devi (PW-5). This matter was also raked up before the Panchayat. The possibility cannot be ruled out that the case has been registered against the respondents at the instance of PW-5 Nirmala Devi to teach a lesson to the respondents and their family members for discussing her character in public. 9. Reena Kumari (PW-3) has deposed that the respondents entered the room and committed rape on her. Thereafter the boys ran away and she switched on the light. In case the boys had left the scene of occurrence during the night, their identity could not be established. It is well settled that the conviction can be made on the basis of sole statement of the prosecutrix. However, in this case, in view of the circumstances, discussed hereinabove, statement of PW-3 Reena Kumari does not inspire confidence. There is a delay of seven days, which remained unexplained in lodging the FIR. The character of the mother of the prosecutrix was discussed in Panchayat twice and there was tension between the two families about the undesirable persons visiting the house of PW-5 Nirmala Devi. The father of the prosecutrix, who had reached on 13.3.1995 has taken another 24 hours to register the FIR at 6.15 P.M. on 14.3.1995. The distance between the village of prosecutrix and the police station is 12 kilometers. The prosecution has not explained why the FIR was not registered immediately when responsible members of the family were present and knew about the incident which had taken place on 7.3.1995 at 11.30 P.M. 6 Accordingly, in view of above discussion, there is no merit in the appeal and the same is dismissed. Bail bonds furnished by the respondents/accused stand cancelled. (Deepak Gupta), J. (Rajiv Sharma), J. 28.4. 2010 *awasthi*