IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 422 of 1998 Date of Decision : July 28, 2010 State of H.P. …Appellant. Versus: Kishori Lal ………....respondent-accused. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Rajesh Mandhotra, Dy. A. G. For the respondent : Ms. Uma Manta, Advocate Deepak Gupta, J. (Oral). This appeal by the State is directed against the judgment dated 28.08.1998 delivered by the learned Sessions Judge, Kangra at Dharamshala, in Sessions Trial No. 6 of 1998, whereby the accused was acquitted of having committed offences punishable under Sections 376 & 452 IPC. 2. On 15.9.1997 at about 12.15 p.m., a report was lodged at Police Station, Jawalamukhi by the prosecutrix to the effect that 5 days earlier on 10.9.1997 at about 6.00 p.m., she was alone in her house. Her husband had gone out of the house to work and that her ‘Sautan’ Swarna Devi (other wife of her 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 husband) had gone to cut grass. In the meantime, the accused came to the house and proclaimed that he was a ‘Gunda’ and wanted to have sex with the prosecutrix. She refused, but he dragged her inside the house, took her inside the room, untied her salwar and raped her. Thereafter, Swarna Devi came home and she saw the accused running away from the house. On inquiry, she informed Swarna Devi that she had been raped by the accused. 3. The prosecution version is that the prosecutrix being a poor illiterate woman waited for her husband to come back. He returned back in the evening, when she informed him about the incident. On the next day i.e. 11.9.1997 the matter was reported to the Pradhan. The Pradhan promised to take action in the matter, but no action was taken and finally on 15.9.1997, the report was lodged. 4. After the lodging of the report, the prosecutrix was medically examined, statements of the witnesses were recorded and other investigation completed. On completion of the investigation, the challan was filed in Court against the accused for having committed the aforesaid offences and the accused was charged with having forcibly entering the house of the prosecutrix and raping her. The trial Court acquitted the accused. Hence, this appeal by the State. 5. The main ground which weighed with the learned trial Court for acquitting the accused was that there is gross 3 unexplained delay in filing the complaint, which casts a doubt on the prosecution version. She also found that the investigation had not been fair. As far as the delay is concerned, the explanation given is that on 11.9.1997, the matter was reported to the Pradhan, who first promised that he would take action and then he took no action but gave a letter in writing to be taken to the police and then the F.I.R. was lodged. This version of the prosecutrix is not supported by the Pradhan who appeared as PW-6. According to him, on 11th/12th September, 1997, PW-5 Gian Chand, husband of the prosecutrix came to his house and complained that the accused had teased his wife. The Pradhan asked the husband Gian Chand to bring his wife. Next day, the prosecutrix and Swarna Devi wife of Gian Chand came to him. The Pradhan then asked a lady member of the Panchayat to question the two ladies and then the lady Panch reported that the women were complaining that the accused had committed a wrong act. He advised them to go to the Police Station. He states that he did not issue anything in writing. 6. According to the prosecutrix, who appeared as PW-3, the accused came to the spot, proclaimed that he was a ‘Gunda’ and took her inside the house. While appearing in Court she does not even state that she was forcibly taken inside the house and the sex was committed forcibly by the accused. She states that the accused committed bad act and ran away. In the Court this lady does not state that she made any effort to free herself 4 from the clutches of the accused. Her version is that her co-wife had gone to the field nearby to cut grass. She had raised an alarm. PW-4 Swarna Devi should have heard the same. 7. PW-4 Swarna Devi does not state that she heard any cries of the prosecutrix. According to her, when she came back after cutting the grass she saw the accused coming out of their room. On seeing her, he jumped from the verandah and went away and then she went inside and asked what has happened. It was only then that the prosecutrix informed her that she has been raped. The husband obviously came much later and his statement is only to the effect that his wife told him that she has been raped. 8. It is true that in a case of rape the fact can be recorded even on the sole testimony of the prosecutrix, however, the same must inspire confidence. The statement of the prosecutrix does not inspire confidence. She is a young married lady, aged about 23 years. On medical examination, no injury marks were found either on the accused or on the prosecutrix. This shows that she had not resisted the attempt of the accused. She does not state that she was threatened with any arm. She states that the accused proclaimed that he was a ‘Gunda’ and had come to commit a bad act. She could have at least offered some resistance. Admittedly, this was not done. 9. The incident was reported after 5 days. Even if the version of the prosecutrix and her husband is believed then by 5 12.9.1997 the Pradhan had told them that they should go to the police. There is nothing on record that why they did not go to the police till 15.9.1997, and delayed the matter by 3 days. It has come in evidence and admitted by the prosecution witnesses that aunt Swarna Devi had run away with the accused and thereafter this aunt has been boycotted by the biradari. In such a situation, the possibility of the accused having been falsely implicated cannot be ruled out. 10. In view of the above discussion, we find no merit in the appeal. The learned trial Court was fully justified in acquitting the accused. The appeal is accordingly dismissed. The bail bonds are discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. July 28, 2010. (rana)