IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 393 of 1996 Date of Decision : March 18, 2010 State of Himachal Pradesh Appellant Versus Tarsem Singh Respondent Coram: Hon’ble Mr. Justice Deepak Gupta, Judge Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Vivek Thakur, Addl. Advocate General with Mr. R. M. Bisht, Deputy Advocate General for the appellant. For the respondent : Mr. Ajay Sharma, Advocate, for the respondent. Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgment dated 27.9.1995 delivered by the learned Sessions Judge, Una, District Una, H.P., in Sessions Case No. 9 of 1995 acquitting the accused of having committed offences punishable under Sections 376 and 342 of the Indian Penal Code. The prosecution story in brief is that on 24th October, 1994 Sh. Anant Ram (PW-4) had come out of his house at about 8.00 a.m. He found that a young girl aged about 19 years was standing Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 on the roadside and crying. She had covered her face with hands. This witness inquired that why she was crying. She told PW-4 her name (name withheld). She had injuries of tooth bite on her face and an injury near her eye. She told the witness (PW-4) that a man having a beard had committed rape on her in the night time in a ‘jhuggi’ below Raipur – Santokhgarh road. Sh. Anant Ram (PW-4) took the girl to his house. Since the girl’s clothes were very dirty Smt. Sheela Devi (PW-5) wife of Sh. Anant Ram (PW-4) gave her own clothes to her to wear. PW-4 came out of his house and met Sh. Ashwani Kumar (PW-3). He informed Ashwani Kumar (PW-3) about the circumstances in which the girl was brought to his house. Therefore, PW-3 also came to his house and made inquiries from the girl. Then PW-3 went to report the matter to the police and the prosecutrix remained in the house of PW-4. Thereafter, police came to the house of PW-4 after one and a half hour. The police recorded the statement of the prosecutrix and she identified the ‘jhuggi’ where she was raped. This ‘jhuggi’ was owned and possessed by the accused. Further, according to this witness when they were near the railway crossing the accused was seen coming from the side of the railway station and on seeing him, the girl cried that the accused was the person who raped her. He was thereafter overpowered by the police and was apprehended. Smt. Sheela Devi (PW-5) states that on 24th October her husband brought a girl aged about 20 – 22 years to her house. She gave bath to the girl and also changed her clothes. The girl 3 informed this witness that she had been raped by Tarsem Singh husband of Ram Piari. This statement is totally contrary to the statement of PW-4, since according to PW-4 the girl had stated that she was raped by a person having a beard whereas PW-5 names the accused as well as his wife. Sh. Ashwani Kumar (PW-3) has corroborated the prosecution version. Importantly, this witness states that Tarsem Singh is a married man and lives in the said ‘jhuggi’ alongwith his wife. In this case the prosecutrix was not examined because she could not be traced by the police. In the absence of the statement of the prosecutrix the learned trial Court was totally justified in acquitting the accused. It was the prosecutrix alone who could have positively identified the person who raped her. The prosecutrix admittedly was more than eighteen years of age. Even assuming that the accused and she had sex then whether this sex was consensual or not could only have been ascertained if the prosecutrix had been examined. None of the witnesses i.e. PW-3, PW-4 and PW-5 have stated that the prosecutrix of her own had told them that she had been raped. It is only when they made repeated inquiries from the prosecutrix that she gave this version. Another important aspect of the case is that according to PW- 3 and PW-4 the accused was arrested near the railway crossing on 24.10.1994. However, PW-11 states that he had not arrested the accused. Then who arrested the accused? This question remains unanswered. There is also discrepancy in the statements of the 4 witnesses as to where the accused was arrested. In view of the fact that the prosecutrix was not examined and the contradictions in the case the learned trial Court was justified in acquitting the accused. In view of the above discussions there is no merit in the present appeal and the same is accordingly dismissed. Bail bonds furnished by the accused are ordered to be discharged. (Deepak Gupta), Judge. (Sanjay Karol), Judge. March 18, 2010 (PK)