1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 230 of 1994. Date of decision: 6-5-2008. ____________________________________________________________ State of Himachal Pradesh. Appellant. Versus Suraj Singh and others. Respondent. ___________________________________________________________________ Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? yes For the appellant : Mr. P.M. Negi, Dy. Advocate General for the appellant. For the respondents : Vikaram Thakur, Advocate vice Shri Sarwan Dogra, Advocate. _________________________________________________________ Surjit Singh, J. (oral) State has appealed against the Sessions Court judgment, whereby the respondents, who were tried for an offence under Section 376 read with Section 34, I.P.C., have been acquitted. The prosecutrix, who was examined as PW1 at the trial, was married to one Bhagat Ram. In the year 1991, she was twenty one years of age. On 8-3-1991, she went to village Jhiri to see her father’s sister (Bua). She started back for her mother’s place in village Palsehar the same evening around 5.00 P.M. On the way, she purchased certain items of grocery at the shop of Govind Ram (PW12). When, after leaving the shop of said Govind Ram, she reached a place called Janjholi Nullah, respondents Suraj Singh Whether reporters of the Local papers are allowed to see the judgment? 2 and Netru met her. Suraj Singh respondent physically lifted her and carried her to the near-by nullah. There she was raped by Suraj Singh and his companion Netru. After about half an hour, the other two respondents also reached there. They too had had sexual intercourse with her. When the prosecutrix tried to raise alarm, she was gagged by her own Dupatta. Kayla Devi (PW5) happened to reach the Nullah. She was carrying a Jogti ( a handful bundle of burning sticks which is used as torch). Then said Kayla Devi went to the house of the mother of the prosecutrix in village Parsehar. Mother of the prosecutrix sent her son Nathu (PW11) and her husband’s brother Narainu (PW10) to the Nullah. Prosecutrix met these two persons on the way. She did not narrate the incident to either of the two. On the next morning, she narrated the incident to her mother Kesri Devi (PW4). Thereafter, she went to Police Station Aut and lodged the F.I.R. Exhibit-PA. Prosecutrix was medically examined by Dr. M. Lata (PW2) who did not find any injury on her person. She noticed that the prosecutrix was used to sexual intercourse. Trial Court has dis-believed the prosecutrix’ testimony and concluded that it was doubtful if the prosecutrix had been subjected to sexual intercourse and that even if such intercourse had taken place, that was with her consent. We have gone through the entire record. Also we have heard the learned Deputy Advocate General and the learned defense Counsel. We see no reason to dis-agree with the finding of the trial Court. The reasons for our aforesaid agreement with the trial Court’s finding are given in the following part of the judgment. 3 It has come in the evidence that the prosecutrix had been living with her mother Kesri Devi (PW4) at the time when the incident took place. She claims to have gone to her Bua’s place in village Jhiri on the fateful day in the morning. Distance between Pulrsehar, the village where the mother of the prosecutrix lived those days and Jhiri is one km per testimony of the prosecutrix herself who appeared as PW1 and also the statement of her mother Kesri Devi (PW4). One km distance can easily be covered, even on foot, within fifteen to twenty minutes. The prosecutrix says she left her Bua’s place in the evening at 5.00 P.M. and on the way back, she stopped for a while at the shop of Govind Ram (PW12) and purchased some merchandise. However, it appears that she did not purchase any merchandise from Govind’s shop. Govind Ram (PW12) denied, that the prosecutrix purchased any article at his shop on the relevant date. The mother of the prosecutrix, who appeared as PW4 also did not say that the prosecutrix came home in the evening with any merchandise. It is also not the case of the prosecution that the goods allegedly purchased by the prosecutrix at the shop of Govind Ram got left at the place of occurrence. That means, nothing was purchased by the prosecutrix at the shop of Govind Ram (PW12) on that evening. The question arises why should the prosecutrix have concocted a story of her having purchased some merchandise at the shop of Govind Ram on her way back home. The answer is not very difficult to find. The prosecutrix left her Bua’s place at 5.00 in the evening. The distance between her Bua’s place and her mother’s place where she was to return could have been very 4 easily covered within fifteen to twenty minutes even if she travelled on foot. She herself says that she reached near Janjholi Nullah, where respondent Suraj and Netru met her and carried out to the nullah at 7.00 P.M. The story of her having purchased some articles at the shop of Govind Ram has been cooked up to explain why she was so late and happened to be in the nullah very late in the night. The testimony of the prosecutrix that when she had been raped by all the four respondents, Kayla Devi (PW5) came there with a Jogti on her having called her by shouting her name, is proved to be false not only by the testimony of PW5 but also prosecutrix’ own mother Kesri Devi (PW4) who stated that Kayla Devi came to her house with a Jogti and informed that her daughter (the prosecutrix) was in the nullah along with three-four persons. The testimony of the mother of the prosecutrix gives the impression that according to the information passed on to her by PW5, the prosecutrix had been in the company of the respondents voluntarily. Now if she was in the company of the respondents voluntarily, late in the evening at a lonely place in a nullah, it is any-body’s guess what for she was there. For the foregoing reasons, we see no merit in the present appeal. The same is therefore dismissed. (Surjit Singh) Judge. (Surinder Singh) Judge. May 6, 2008. (bm)