IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 19 of 1996 Date of decision: 25.02.2010 State of H.P. …. Appellant. Vs. Vidya Kirti ... Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting?1. No. For the appellant-State: Mr. Vivek Singh Thakur, Addl. Advocate General For the respondent: Mr. Vinay Thakur, Advocate. Per Deepak Gupta, J.(oral) This appeal is directed against the judgement of the learned Additional Sessions Judge, Shimla in Sessions trial No. 38-K/7 of 1993 dated 20.8.1994 whereby she acquitted the accused of having committed offence punishable under Section 376 of the Indian Penal Code. The prosecution case is that prosecutrix as well as the accused belong to village Telangi. The village deity of village Telangi had been taken to village Kothi and on 7th July, 1992 was returning from Kothi to village Telangi. A number of villagers, at least one member from each family from the village had gone to village Kothi to escort the deity back to village Telangi. About 70 to 100 people were present there. The prosecutrix was also 1 Whether the reporters of the local papers may be allowed to see the Judgment. Yes. 2 watching the procession of the deity being brought back. She was accompanied by one lady Smt. Chhosham. According to the prosecution the accused came there and told the prosecutrix that he wanted to tell her something. When she had gone with him for 2-3 yards he dragged her about 70-80 yards away and had forcible sexual intercourse with her. Then the accused and the prosecutrix went to the water channel (kuhal) where another girl Km. Gian Bhagti and another person Losang met them and then the prosecutrix narrated the entire incident to Gian Bharti. Then the accused ran away. The prosecutrix thereafter returned to her house and narrated the incident to her sister-in-law Smt. Sati. Then the family members of the prosecutrix including her brother and sister-in-law approached the family members of the accused so that the accused and the prosecutrix could be got married. Initially the family member of the accused agreed to the proposal but later they refused and therefore, the F.I.R was lodged after four days on 11th July, 1992. The prosecutrix was got medically examined. Her clothes were sent for medical examination. Other investigation was done and challan was filed against the accused. He was charged with having committed an offence punishable under Section 376 IPC. The accused pleaded not guilty and claimed trial. After trial, he has been acquitted. Hence, the present appeal by the State. 3 The prosecutrix appeared as PW-7. She stated that at about 10 p.m she and Chhosham were watching the quarrel which was going on when at the place where they had gone to bring back the deity from village Kothi. The accused came there and told the prosecutrix that he wanted to tell her something and he dragged her by the arm to some distance saying that he had to talk to her. Thereafter, he dragged her forcibly and put the Shawl which she was wearing on her face. He forcibly opened the string of her salwar and pulled down her underwear and indulged in sexual intercourse with her. After they had sexual intercourse the accused helped the prosecutrix to put on her clothes and they both went to the water channel (kuhal). Gian Bhakti and Losang were sitting near the kuhal and on seeing them the accused ran away. The prosecutrix then raised cries for help. She came home and told her sister-in-law about the occurrence and thereafter her sister-in-law and her brother went to the house of the accused and these talks continued for about four days whereafter the report was lodged. In cross- examination she states that there were 80 to 90 people standing from where she was dragged. Admittedly, Chhosham was also standing with her. She admits that after 3-4 steps she started suspecting the intention of the accused and then raised a hue and cry. According to her she did not fall during the distance of 70 steps for which the accused dragged the prosecutrix. She 4 states that she tried to hit the accused and bit him and scratched him with her nails. She also states that the accused told her that he will leave her at her house after he brought her to the Kuhal. She admits that the crowd which had gathered near the deity was barely 30 to 40 steps from the Kuhal. She further states that when her family member asked her whether she was willing to marry the accused, she declined. The defence put up is that it is a case of consensual sex. The prosecutrix herself states that on 27.7.1994 i.e. the date when her statement was recorded she was 23 years old and married. This means that she was 21 years old when the incident took place. There are various contradictions in the story of the prosecution which makes her initial version impossible to believe. She is a well built young girl. PW-10 Chhosham was standing next to her when the accused allegedly first came to talk to her. She admits that after 3-4 steps she started suspecting the intentions of the accused and raised a hue and cry. If that were true, the accused would have been apprehended there and then because 70 to 100 persons had gathered at the spot. The prosecutrix herself states that after the accused had sex with her he helped her to put her clothes and they both walked to the water channel which was 20 feet away. This would be most unnatural conduct on the part of a rapist who would in normal circumstance immediately after 5 raping the girl run away. Why would a rapist accompany the girl for 20 steps? Admittedly, she did not raise hue and cry at this stage but accompanied the accused till the Kuhal. It is there that they met Gian Bhakti and Losang. To us it appears that it was the case of consensual sex but on being seen by Gian Bhakti and Losang the prosecutrix cooked up a false story of being raped. This is also apparent from the fact that for four days no F.I.R was lodged. It appears that first efforts were made to have the matter amicably settled by getting the boy and girl married. It was only when these efforts failed that the report was lodged. Even the medical evidence does not support the prosecutrix. No external injury was found on the person of the prosecutrix. She was a well built young girl and if she had been subjected to forcible intercourse which she had resisted then some injuries would have caused to her also. In view of the above discussion we find no merit in the appeal, which is accordingly dismissed. Bail bonds are discharged. (Deepak Gupta) Judge. 25th February, 2010 (Sanjay Karol) ™ Judge.