IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.346 of 1995. Dated of Decision: September 1, 2009. State of H.P. ……… Appellant. Versus Tilak Raj & Another. ………. Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?. For the Appellant : Mr. Ramesh Thakur, Asstt. Advocate General. For the Respondents : Mr. Malay Kaushal, Advocate, vice Mr. Ramakant Sharma, Advocate. Surjit Singh, J (oral): State has appealed against the judgment dated 17th October, 1994 of learned Sessions Judge, Hamirpur, whereby respondents, who were charged with and tried for offence, under Section 376 read with Section 34 of the Indian Penal Code, for allegedly raping a minor girl, aged below 16 years, on 3rd July, 1991, have been acquitted. Prosecution case, as per evidence on record is like this. The prosecutrix, examined as PW3, was a student of 10th standard in Government High School Dhaneta in July, 1991. On 3rd July, 1991, when she was returning home after attending the school and reached ------------------------------------------------------------------------------------------- Whether reporters of local papers may be allowed to see the judgment? 2 on a culvert at Dugah Nallah around 1.30 p.m., the respondents dragged her towards the bed of Nallah and committed rape on her, one after the other. Prosecutrix was only 15 years of age at that time. After committing rape, the two respondents threw the prosecutrix in the water of Nallah and disappeared. Prosecutrix on reaching home informed her Nani PW4 Nar Devi and Mami PW5 Giano Devi. It may be stated that the parents of the prosecutrix are dead, so she lived with her maternal grand parents. Her grandfather and Mama were not at home. Her Mama returned on next morning. Matter was brought to his notice, who took the prosecutrix to the police station. There the prosecutrix lodged FIR Ex.PE. Prosecutrix was got medically examined. PW1 Dr. Suman Sharma conducted her medical examination. She found abrasion, bluish red in colour on her back. She also found that area around labia majora was red and inflamed. Her hymen was freshly torn which bled on touch. Vagina admitted one finger only. Slides from posterior fornix were prepared. Respondents were also medically examined. They were found to be capable of performing sexual intercourse. On coming to know about the incident, Pradhan of Panchayat, namely Ajit Singh (PW8) went to the house of prosecutrix. There the respondents also came. They begged to be pardoned for the mistake they had committed. During the course of trial, prosecutrix did not name the present respondents as the persons who committed rape on her. She stated that those who committed rape on her were not the respondents, but some other boys, whom she did not know. However, PW4 Nar Devi, the Nani and PW5 Giano Devi, the Mami of the prosecutrix did state 3 that she told them that it were the respondents who had committed rape on her. PW8 Ajit Singh and PW9 Kehar Singh testified that the two respondents had confessed their guilt and begged to be pardoned on 4.7.1991 when they (witnesses) had gone to the house of prosecutrix and the respondents also came there accompanied by their relatives. Trial court acquitted the respondents in view of the testimony of the prosecutrix. We have heard the learned Assistant Advocate General as also the learned counsel for the respondents and gone through the record. It may be stated at the very outset that the prosecutrix as per school certificate Ex.PM was not 15 years of age as is the case of the prosecution, but she was a little more than 17 years of age, because her date of birth is recorded as 14.6.1974. That means she had crossed the consenting age of 16 years for the sexual act. Her deposition in the court that it were not the respondents, who committed rape on her, though by itself is not sufficient to jump to the conclusion that she was a consenting party to the sexual act, but we find from the other evidence that she might have consented to the act. There was no injury on her person, except a small abrasion on the back, which is supposed to have appeared when the sexual act was being committed, as the place of occurrence is admittedly on the bed of Nallah. There was no mark of injury on the persons of either of respondents, which fact suggests that no struggle was put up by the prosecutrix. Also we find from the evidence on record that the prosecutrix might not have named the respondents as the 4 offenders to her Nani and Mami. PW5 Giano Devi has stated in her cross-examination that initially they suspected that the rapist was the son of Lokha, their neighbour, but later they found that he was not the culprit. This part of the statement of PW5 Giano Devi suggests that the prosecutrix did not name the respondents as offenders, at- least when she narrated the incident to her Nani PW4 Nar Devi and her Mami PW5 Giano Devi. This statement in addition to suggesting that the prosecutrix might have been a consenting party lends corroboration to the prosecutrix’ statement in the court as PW3 that she was not knowing the offenders. In view of the above stated position, we do not consider this to be a fit case for interfering with the judgment of acquittal passed by the trial court. Hence, appeal is dismissed. (Surjit Singh) Judge September 1, 2009. (Surinder Singh) (Pds) Judge.