IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 614/1996 Reserved on: 6.5.2010 Decided on: 14.5.2010 _____________________________________________ State of Himachal Pradesh. …Appellant. Versus Shubh Kumar and others. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Deepak Gupta, Judge. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the Appellant : Mr. Vivek Singh Thakur, Addl. Advocate General. For the Respondents : Mr. Rakesh Jaswal, Advocate. ____________________________________________________ Per Rajiv Sharma, J. State has filed this appeal against the judgment dated 9.11.1995 passed by the learned Special Judge, Una in Sessions Trial No. 16 of 1995, whereby respondents charged with and tried for offences punishable under sections 376, 450 and 506 read with section 34 of the Indian Penal Code, have been acquitted. 2. Case of the prosecution, in a nutshell, is that on 13.4.1994, PW-3 Sohan Singh was away on night duty at tube well. PW-2 Amarjit Kaur alongwith her daughter aged three-four years and 1 Whether reporters of the local papers may be allowed to see the judgment? 2 son six-seven years old was in the house and was sleeping. Accused Shubh Kumar pushed the door at about 10.30 P.M. and entered the room of PW-2. He forcibly took her to the fields by gagging her mouth. Accused Satish Kumar and Aswhani Kumar (now deceased) were standing under mango tree. Accused persons committed sexual intercourse with PW-2 forcibly and accused Shubh Kumar committed this act twice. PW-2 could not raise alarm since her mouth was gagged with cloth. PW-3 Sohan Singh came there and saw Satish Kumar committing rape with PW-2. He was threatened by accused persons and he ran away. He brought PW-4 Som Dutt and one Ram Saroop on the spot. Accused, on seeing them, ran away. The incident took place on 13.4.1994, however, the FIR was registered on 19.4.1994. The matter was investigated by the police. PW-2 Amarjit Kaur was medically examined by PW-1 Dr. (Mrs.) S. Chauhan, who issued MLC Ex.PA. Accused persons were also examined by Dr. S.K. Nanda. He issued MLCs, Ex. PD, PE and PF. The challan was put up in the Court against the accused after completing all the codal formalities under section 207 of the Code of Criminal Procedure. 3. Prosecution examined as many as 10 witnesses in all to prove its case against the accused. Accused were examined under section 313 of the Code of Criminal Procedure. They pleaded that they have been falsely implicated due to dispute in regard to grazing of cattle. The learned trial court acquitted the respondents. Hence, the present appeal. 3 4. Mr. Vivek Singh Thakur, learned Additional Advocate General has strenuously argued that the prosecution has proved its case against the accused. 5. Mr. Rakesh Jaswal 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. PW-2 Amarjit Kaur is the prosecutrix. She has deposed that accused Shubh Kumar came to her house. She was forcibly lifted and her mouth was gagged. She was taken to the fields near the school ground where accused committed sexual intercourse with her forcibly. Accused Shubh Kumar committed sexual intercourse with her forcibly twice. She further stated that when accused Satish Kumar was committing sexual intercourse with her forcibly, she could not raise alarm since her mouth was gagged with a cloth. PW-3 Sohan Singh arrived at the spot when Satish Kumar was committing sexual intercourse with her. He was threatened by the accused persons and he ran away. PW-3 Sohan Singh came back with PW-4 Som Dutt and Ram Saroop. Thereafter accused persons ran away. 4. PW-3 Sohan Singh is the husband of the prosecutrix. He has stated that he heard his daughter weeping at about 10.00 P.M. and he enquired from her why she is weeping. She told PW-3 Sohan Singh that two persons have carried away her mother. He saw accused persons sitting with his wife. He was threatened and he ran away. He carried his wife to house with the 4 help of Ram Saroop and Som Dutt. PW-4 Som Dutt has deposed that at about 10.30 P.M., Sohan Singh came to his house and asked him to accompany him to his house since his wife had been taken away forcibly. He accompanied him to the school ground and did not find Amarjit Kaur and any other person there. He was declared hostile. The prosecutrix was medically examined by PW-1 Dr. (Mrs.) S. Chauhan, who issued Medico Legal Certificate, Ex. PA. She did not notice any injury on her body and according to her she was subjected to intercourse but exact duration could not be given. PW-7 Dr. S.K. Nanda has examined the accused persons. According to him, all the accused persons were capable of committing sexual intercourse. The matter was investigated by PW-9 Gurbax Singh, ASI. This is the entire evidence led by the prosecution to prove the case against the accused. PW-2 Amarjit Kaur was 33 years of age at the time of incident, i.e. 13.4.1994. It is difficult to believe that a grown up women will not resist and could be forcibly taken away by accused Shubh Kumar at a distance of 150 meters as per site plan Ex.PJ. According to her statement, her husband PW-2 Sohan Singh came on the spot when Satish Kumar was committing sexual intercourse with her. However, PW-3 Sohan Singh stated that three accused were just sitting near his wife and they threatened him and he ran away. The conduct of PW-3 Sohan Singh is also not natural. A person, whose wife is being raped, would challenge the accused and try to save her. In the instant case, PW-3 ran away when he was threatened by the accused persons. He has 5 not supported the version of his wife. PW-3 has deposed that he raised hue and cry which attracted the attention of PW-4 Som Dutt and Ram Saroop. However, PW-4 Som Dutt has stated that PW-3 came to his house. The distance between the house of PW-4 and the school ground was more than two kilometers. The distance between the tube well where PW-3 was working was ten meters and he heard the cries of his daughter. It is difficult to believe the story of the prosecution that she was forcibly taken from the house by the accused. She had been carried to a distance of about 150 meters. She could raise alarm knowingly fully well that her husband was working at close proximity. PW-2 Amarjit Kaur, in fact, has admitted that tube well is just at a distance of 30 feet from her house. She has stated in her cross- examination that when the door was pushed, she was unconscious. In case she was unconscious how could she recognize the accused. There is variance in the statement of PW- 2 and PW-3 the manner in which PW-3 has reached the spot. According to PW-3 Sohan Singh, he went to his house and thereafter came to the place of occurrence. However, PW-2 Amarjit Kaur has deposed that her husband came straight from the tube well. In these circumstances, it is apparent that the prosecutirx voluntarily went with the accused and it was consensual act. The other circumstance, which goes against the prosecution, is the delay in lodging the FIR. The incident had taken place on 13.4.1994. The distance between the house of the 6 prosecutrix and the Police Post is one kilometer. The FIR was registered on 19.4.1994. She was also medically examined on the sixth day after the incident. PW-2 and PW-3 were supposed to lodge the FIR during the night on 13.4.1994 or early in the morning of 14.4.1994. The explanation given by PW-2 and PW-3 is that they had gone to Pradhan, however, Pradhan told them after two-three days that the matter was not within his jurisdiction and it is only thereafter two-three days that they lodged the report. The prosecution has not examined the Pradhan. The delay in lodging the FIR has not been explained at all by the prosecution. It is true that the accused can be convicted on the sole statement of the prosecutrix alone, however, in the present case, there are discrepancies and contradictions in the statements of PW-2 and PW-3 and PW-4. The medical evidence also does not support the version of prosecution. Moreover, the prosecutrix was medically examined after six days by Dr. (Mrs.) S. Chauhan. Accordingly, in view of above discussion, the view taken by the learned trial court is supportable by the evidence and there is no perversity in the findings recorded by the trial court. Consequently, the appeal is dismissed. Bail bonds furnished by the respondent/accused stand discharged. (Deepak Gupta), J. (Rajiv Sharma), J. 14.5.2010 *awasthi*