IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 277 of 1999 Date of Decision: 14.6.2010. State of H.P. …Appellant. Versus. Raj Kumar …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for Reporting? No. For the Appellant: Mr. Vivek Singh Thakur, Addl. Advocate General. For the Respondent: Mr. Vinay Thakur, Advocate. Per Deepak Gupta, J.(Oral). 1. This appeal by the State is directed against the judgement dated 25.08.1998 delivered by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr in Sessions Trial No. 36 of 1996 whereby he acquitted the accused of having committed an offence punishable under Section 376 of the Indian Penal Code. 2. The undisputed facts are that the prosecutrix was aged about 19 years at the time of the incident. In 1994 she came to village Tapri and started residing with her brother Raj Kumar, who was running a shop of radio- 2 mechanic in the bazaar of Tapri. On 4th June, 1995 Raj Kumar went to village Chagaon and returned to his quarter at about 7.30 p.m. His sister, the prosecutrix, was not at home. The wife of the complainant Raj Kumar could not give any information as to where the prosecutrix had gone. For the whole night and during the next day the complainant searched for his sister. He came to know from his relative Shubh Chand that the prosecutrix had been seen in the company of the accused who was running a video-parlour near the shop of the complainant Raj Kumar. 3. Therefore, the complainant Raj Kumar lodged a complaint, which was entered in the daily diary register as Ext. PF and on the basis of the same F.I.R was lodged at Police Station Bhawanagar on 5.6.1995 at 10.30 p.m. On 6.6.1995 PW-9 H.C. Rup Lal, who was entrusted with the investigation of the case recorded the statement of Raj Kumar PW-1 and his wife Fulma Devi PW-2. He thereafter proceeded to village Lingni Kanda which was the native village of the accused alongwith a number of other persons. They travelled during the night and reached Lingni Kanda village at about 4.45 a.m on 7.6.1995. There the prosecutrix and the accused were 3 found sleeping together in the upper storey of a cattle shed (Dogri). The prosecutrix was recovered and handed over to her brother. Her clothes were taken into possession. She was got medically examined. After completion of investigation challan was filed and the accused was charged with having committed the offence of rape. 4. The learned trial Court has acquitted the accused mainly on the ground that this is a case of consent and not a case of forcible sexual intercourse. The testimony of the prosecutrix herself does not support the prosecution version. Her version is that the accused had been asking her to marry him. She refused the proposal but he continued to persuade her. On 4.6.1995 the accused came to the house of her brother when she was alone there. He again asked her to perform marriage with him and asked her to accompany him to village Chholtu which is at a distance of about 3-4 kilometers. She does not allege that any force was used or any threat was given to her but she voluntarily went with him to village Chholtu. Thereafter, he took her to village Kanda. Again she does not state that she was threatened by the accused. However, she does say that on the way to 4 village Kanda she declined to accompany the accused but then the accused became ready to assault her. According to her the accused had sexual intercourse with her on three-four occasions. In cross-examination, the prosecutrix admitted that a number of houses are situated on the road leading from Tapri to Chholtu. She also admitted that the distance from Chholtu to Kanda was 15-16 kilometers. According to her she and the accused walked throughout the night. She admitted that she was meeting the accused without the knowledge of her brother and her Bhabi and that she had left her house when they were absent. She admitted that she had not even raised a hue and cry when she left the house of her brother even though many persons were present in the vicinity. 5. From the statement of the prosecutrix itself, it is clear that she had willingly accompanied the accused first from Tapri to Chholtu and then from Chholtu to Kanda. She lived with him three nights. She crossed a number of residential areas but she never raised an alarm. This makes it more than obvious that she was a consenting party and was not taken against her consent. As noted above, she was 19 years old and therefore, the accused 5 cannot be held to have committed any crime. The appeal is, therefore, without any merit and the same is according dismissed. The bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. June 14 , 2010 ( Sanjay Karol ) (TM) Judge.