HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A.No.: 40 of 1995 Decided on: 4.11.2008 State of Himachal Pradesh ………Appellant. Versus Shyam Lal ………Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For appellant: Mr.Rajesh Mandhotra, Deputy Advocate General. For the respondent: Mr.Vinay Thakur, Advocate. Per V.K. Ahuja, J: This is an appeal filed by the State of Himachal Pradesh against the judgment of the court of learned Additional Sessions Judge(I), Shimla, dated 18.12.1993, vide which the respondent was acquitted of the charge framed against him under Section 376 of the Indian Penal Code. The prosecution story in brief is that a complaint was preferred before the learned SDJM, Rohru by complainant ‘B’ (name not mentioned) alleging that the complainant had gone to her parents house where engagement of her cousin sister was fixed in the house of her cousin and the complainant had also been invited there. It was alleged that on 22.7.1991, after taking meals, at about 12.30 during night, when the complainant was sweeping the floor of kitchen with a broom, accused/respondent came there, caught hold of her from arm, threw ______________________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - her on the ground, opened the string of her Salwar and forcibly committed rape with her. The complainant further alleged that she tried to raise an alarm, but the accused had put his hand on the mouth of the complainant. The complainant cried and on hearing her cries, her husband came there. Apart from him, other persons were also present in the house. She alleged that she went to the Police Post Shawra and they asked her to lodge the complaint with Police Station, Jubbal and the complaint was presented on 25.7.1991, on which a case was registered. After the registration of the case, investigation was conducted leading to the filing of the challan and the respondent was tried by the learned trial Court leading to his acquittal. We have heard the learned counsel for the parties and have gone through the record of the case. The first point to be considered is in regard to the delay in lodging the FIR. The occurrence had taken place on 22.7.1991 at about 12.30 during night time, but no report was lodged on 23rd, 24th and on 25.7.1991 only, i.e. on the third day, the complaint was presented in writing to the court, who passed an order on the basis of which the FIR was registered. The explanation furnished by the complainant in the complaint is that they had gone to Police Post Shawra, who sent them to Police Station Jubbal and, therefore, the delay occurred. This is no ground since in case she had gone to Police Post Shawra, a rapat could have been registered by the police and the same could have been sent to the Police Station, Jubbal and even in regard to the visit to the Police Station Jubbal, she did not allege that she went there, whether the report was lodged or not or how the delay occurred. The delay in question gives an opportunity to the complainant to make out a false case or introduce false witnesses and keeping in - 3 - view the facts of the case that there has been a delay in lodging the FIR, when the husband of the prosecutrix was also present with her and there was no question of waiting for any male member to come and lodge the report, the evidence of the prosecution, therefore, has to be appreciated with more care and caution. Coming to the allegations, the complainant stepped into the witness box as PW-2. She stated that she was sweeping the floor in the kitchen of her brother’s house. Many guests were present in the house in connection with the engagement of the niece. She stated that respondent came from behind, closed the door, threw her down, opened the string of her Salwar and indulged in sexual intercourse with her against her wish. She tried to cry but the respondent gagged her mouth and after the act, she again raised cries which were heard by her husband present in other part of the house. Her husband opened the door. The respondent ran away after wearing his underwear and Pajama and she narrated the entire incident to her husband. Other persons also came there after her husband reached there. It looks unbelievable that a woman of the age of 22 years or so will be forcibly raped in this manner and with one hand the accused will gag her mouth and with the other hand he will open the string of her Salwar. To our mind, the site plan of the place of occurrence can be said to be material since it has to be considered as to the number of rooms in the house and as to whether the said house was a big one with the kitchen on one side and other members of the family were at a quite distance, who could not hear the cries of the prosecutrix. A perusal of the site plan prepared by the Investigating Officer Ext.PH clearly shows that the house consists of only one kitchen and one room and in case the occurrence had taken place in the kitchen and in case the - 4 - prosecutrix had raised an alarm, it could have been easily heard in one room apartment in which her husband and many other persons were present. In regard to the number of persons, the prosecutrix has stated that there were 10/12 persons in the other room. In regard to the distance, she stated that the kitchen and the adjoining room, where other persons were present, has a common wall. This clearly shows that the husband of the prosecutrix was present in the adjoining room, which had a common wall with the kitchen and, therefore, an inference can be drawn that she had not raised any alarm to attract the other persons to come and help her. It looks quite improbable that the prosecutrix raised cries which were not heard by 10/12 persons present in the adjoining room including her husband. Her statement was not sufficient to prove that the sexual intercourse was committed by the respondent against her wish. Apart from the above, the statement of the prosecutrix’s husband, namely, PW-3 Pritam Singh, to our mind, was sufficient to demolish the case of the prosecution. He stated that there were many people present there. He heard the cries and when he opened the door of the kitchen, he saw the respondent coming out after committing sexual intercourse with his wife. She told him that the accused indulged in the act forcibly and gagged her mouth. In cross examination, he has stated about the number of persons present in the house as 40-50 at the time of occurrence. He stated that the door of the kitchen, where the occurrence took place, was at a distance of 6-7 feet away from the place where they were sitting. In case any cries had been raised by the prosecutrix, it could have easily been heard by her husband and other persons present at 6-7 feet distance, which clearly shows that no cries were raised by the - 5 - prosecutrix before the act was performed and she may be a consenting party to the act of sexual intercourse performed by the respondent. His own statement in further cross examination is sufficient to demolish the case since he stated that they reached Jubbal on 25.7.1991 and he gave beatings to his wife on that day. He also accused his wife of having illicit relations with the accused. He further admitted that even prior to this incident, he had suspected that his wife was having illicit relations with accused and he had received several complaints about this from others. He further admitted the suggestion as correct that he asked his wife if she is truthful she has to lodge a report and then the report appears to have been lodged under pressure from her husband. In view of the above discussion of evidence, it is clear that the prosecutrix’s own statement as well as that of her husband were sufficient to lead to the conclusion that the findings recorded by the learned trial Court that the prosecution has failed to prove their case beyond any reasonable doubt can be said to be correct on the basis of the evidence and cannot be termed as perverse calling for an interference by this Court. Keeping in view the above discussion, we accordingly hold that there is no merit in the appeal filed by the State of H.P., which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged. (Deepak Gupta), Judge. November 4, 2008. (V.K. Ahuja), (TILAK) Judge.