IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.98 of 2003. Date of decision: 5.4.2010 Pritam Singh ..Appellant Versus State of H.P ..Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? No For the appellant: Sh.Romesh Verma, Advocate. For the respondent: Sh.Rajesh Mandhotra, Deputy Advocate General. _____________________________________________________ Deepak Gupta, J, (Oral). This appeal by the accused is directed against the judgment dated 29.3.2003 passed by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr in Sessions Trial No.26 of 2000, whereby he convicted the accused of having committed an offence punishable under Section 376 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.20,000/-. In default of 2 payment of fine, the accused has been directed to undergo further simple imprisonment for one year. Briefly stated the facts of the case are that on 14th July, 1999 a report was lodged by the prosecutrix with Police Station, Rampur. In this complaint, she alleged that somewhere in the month of December 98/January 99, she had gone to buy sugar from the shop of the society at Village Faula. When she was returning home after purchasing sugar and was crossing the Salon Nullah, at about 4.30 p.m, the accused caught hold of both her arms and forced her to lie down on the ground. When she tried to raise an alarm, he gagged her mouth with one hand. The accused then broke the ‘Nara’ of her salwar and pulled the salwar down to her knees and then forcibly committed sexual intercourse with her. After committing sexual intercourse, he told her that she should not inform anybody about this act and that he would marry her. After about 2-3 months, when she had taken her cattle for grazing near Moti Nullah, again the accused met her and committed sexual intercourse with her. He 3 again held out false promise that he would marry her and then left the spot. Admittedly, the prosecutrix made no complaint to her mother, father or any other member of the family about the alleged occurrence. It was only when she was carrying pregnancy of eight months and was asked by her mother how she had become pregnant that she complained that the accused had raped her. She has been medically examined but the medical examination is not of much use since it was conducted after the eight months of the alleged rape. The learned Trial Court has convicted the accused by holding that delay in lodging the complaint was not fatal. He also held that the statement of the prosecutrix could not be said to be false. With due respect with the learned Trial Court, the manner in which it has approached the accused shows totally lack of application of mind and ignorance of the cardinal principles of criminal jurisprudence. In a criminal case, the accused can only be held guilty if it is proved beyond reasonable doubt that he has committed an offence. No doubt, the law is well settled that the 4 conviction in the case of rape can be made on the basis of the sole testimony of the prosecutrix and her testimony does not require corroboration in each and every case but this can be done only when the statement of the prosecutrix inspires confidence. If the statement is full of holes and untruths then obviously, no reliance on such a statement can be made. Here we are dealing with a case where for eight months, the prosecutrix kept silent. We are not dealing with a case of a minor girl. Though in the original complaint, the age of the prosecutrix was not given while appearing in the Court, she stated that her age was 18 years at the time of recording of statement and 16 years at the time of commission of offence. In cross- examination when the age of her brother and sister was put to her, she admitted that she was 23 years old when her statement was being recorded in the Court. Her statement was recorded on 4.1.2003 and, therefore, in January, 1999 at the time of alleged rape, she would be about 19 years old. 5 A girl of 19 years when she misses her menstrual period would definitely be aware that she is likely to be pregnant. The other signs of pregnancy would also start appearing after three or four months. Here is a case of a young lady who kept silent for eight months. This is a very advanced stage of pregnancy. In fact, even her parents must have known that she was pregnant much earlier. Therefore, the very inception of the complaint is shrouded by some element of untruth. In the complaint, it was stated that the same has been filed only when the mother asked the prosecutrix how she had become pregnant. This does not appear to be true since the mother should have realized much earlier that the daughter was pregnant. The manner in which the prosecutrix has behaved also does not show that she was telling the truth in the Court. Even if we discount the defence version that the prosecutrix was having liaison with other some persons and for the sake of argument, it is accepted that it is the accused who had sexual intercourse with the prosecutrix, it is more than obvious that the two acts of sexual 6 intercourse were those of consensual sex. With regard to both the incidents, the prosecutrix does not state that first the accused promised to marry her and then induced her to have sex with him. Her case is that first he had forcible sex with her and thereafter told her that he would marry her. Once the prosecutrix missed her menstrual period and would have known that she has become pregnant, she should have asked the accused to marry her, if her version was correct. There is no evidence on record to show that either the prosecutrix or her family members approached the accused for marriage. This also belies the prosecution version. Delay in lodging the FIR may not be fatal in every case but where the delay is inordinate and is more than eight months, as in the present case, then the prosecution evidence must be scrutinized with greater care and caution. If we go through the prosecution evidence in detail, it is apparent that the proseutrix was more than 18 years at the time of commission of offence and she was a consenting party to the sexual acts. No rape was committed on her. The approach of the 7 learned Trial Court that the accused should have led positive, cogent and reliable evidence to prove that PW/9 and PW/2 were hostile to him is totally incorrect. PW/9 Smt.Gangi Devi is the mother of the prosecutrix. She stated that the prosecutrix in the year 2003 was aged about 23 years but in the cross- examination, she admitted that her son was 26 years old and the prosecutrix was born two years later which would make her 24 years old. It is, therefore, obvious that both the prosecutirx and her mother lied about the age from the beginning. Therefore, their testimony cannot be accepted as the gospel truth. PW/4, Dr.Anupam Gupta examined the prosecutrix in July 1999 and according to him, the prosecutrix was habitual to sexual intercourse. She was pregnant and the gestation of 34 weeks. According to him, the skeletal age of the prosecutrix based on the skiagrams was more than 20 years. The statement of the doctor totally demolishes the story of the prosecution. In view of the above discussion, the learned Trial Court was not justified in convicting the accused. The 8 judgment of conviction and sentence passed by the learned Trial Court is accordingly set aside. Bail bonds, if any, furnished by the accused are ordered to be discharged. CMP No.797 of 2009 In view of the judgment passed in the appeal, no orders are required to be passed on this application. The application is disposed of accordingly. 5th April, 2010 ( Deepak Gupta ) (m) Judge