1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 274/1999 Decided on: September 17, 2010 State of H.P. …Appellant. VERSUS Rich Pal Singh ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge Whether approved for reporting?1 For the Appellant: Mr.R.K. Sharma, Sr. Addl. AG with Mr.Rajinder Dogra, Addl. AG For the respondent: Mr. Rajesh Verma, Legal Aid Counsel R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure, in reference to judgment dated 1.3.1999 passed by learned Sessions Judge, Shimla, HP in Sessions Trial No. 47-S/7 of 1998, thereby acquitting the respondent / accused for the offence under Sections 376 of the Indian Penal Code. 2. Mr. Rajesh Verma, Advocate, is requested to assist the court as Legal Aid Counsel and he has agreed for the same. 3. The prosecution case is that the victim-prosecutrix was major and was married to Puran Bhadur who was employed Whether the reporters of the local papers maybe allowed to see the judgment? 2 with Jagdish Rawat as agricultural labourer and was having a temporary residence in the orchard of said Jagdish Rawat in village Kathasu, Tehsil Jubbal, whereas accused was employed by one Lala Onkar Chand, as a domestic servant. Accused used to visit Puran Bhadur and victim-prosecutrix occasionally. In the last week of July, 1998, Puran Bhadur went to Nepal, leaving the prosecutrix behind. On 30.7.1998, victim-prosecutrix to a forest to graze the oxen of her master Jagdish Rawat. After releasing the oxen in the deep forest, victim-prosecutrix sat on one side of theroad. Around 12.00 or 1.00 PM, accused went there. He snatched scythe, which the prosecutrix was carrying, and threw the same away and he pulled and took the prosecutrix into a deep forest. There he broke loose the string of her salwar and removed his own pant and then committed sexual assault on her. After committing the sexual assault, accused fled to the house of his employer Onkar Chand. The victim-prosecutrix followed him and gave him beating. She also narrated to the daughter-in-law of accused’s master and two girls named Rekha and Kalpana that she had been sexually assaulted by the accused. On 2.8.1998 went to the police station and lodged the report regarding the incident. The matter was enquired into. After investigation, the accused was charged for the aforesaid offence and the case was committed to the session Court. 4. In order to prove its case, prosecution has examined as many as 8 prosecution witnesses, whereas, to his statement under Section 313 Cr.PC, accused denied the prosecution case. 3 5. PW-4 victim-prosecutrix, in her endeavour to support the prosecution case, has stated that when she finished the job of tethering the bullocks, accused, who was sitting in the nearby house of his employer Onkar Lal whistled at her and when she went to the Onkar Lal’s house and asked the accused why he had been whistling, when he had, only a little before, committed sexual assault on her. She also slapped him on his face. Then the accused also gave beating to her. Victim-prosecutrix told Parmod’s wife that the accused had sexually assaulted her in the forest. Victim-prosecutrix also Rekha and Kalpana that she had been raped by the accused. On 2.8.1998, the incident was narrated to Jagdish Rawat, the employer, by the victim-prosecutrix that she was sexually assaulted. In the cross examination, PW-4 has stated that accused caught her by her hand and gave beating to her and took her to the forest forcibly. That road was a public road. Two-thee persons were passing by that road when the incident took place. However, they were at a considerable distance so they could not hear her cries. She further stated that after sexually assaulting her, she was given beating by the accused. She has further very categorically stated that she had not reported the matter to the police because of the fear that her husband on return from Nepal would beat her up, but when the accused himself started declaring publically and openly, she was left with no alternative but to lodge the report. When the accused blew whistle on seeing her after she tethered the bullocks at the place of her employer, she felt that the accused was going to defame her. In such circumstances, the report was lodged. 4 6. PW-4 herself has admitted that she is 23 years of age and has one son, who is 8 years of age. That day her child was not at home and had gone to school. 7. On the analysis of the prosecution witnesses and materials on record, we notice that inordinate delay has been caused in making the complaint on the part of the victim- prosecutrix as initially she did not wish to file the report and subsequently lodge the report vide FIR Ext PC. However, the explanation of victim-prosecutrix was not corroborated by Rekha Devi (PW-1) and Kalpana Devi (PW-2) in whose presence the accused, per deposition of the prosecutrix, started whistling on seeing her, The two witnesses have nowhere stated, in their deposition that the accused on seeing the victim-prosecutrix had blown whistle. 8. PW-5 Dr. Dinesh Kumar, Medical officer, Civil Hospital, Jubbal, District Shimla examined the victim-prosecutrix on 2.8.1998 at 8 PM and after examination, noticed following injuries on her body: 1. Contusion over left arm 3x2 cm on anterior aspect in mid part of left arm. 2. Abrasion 1x1 cm on the extensor aspect of left forearm in mid part. 3. No breast injuries detected. 4. No injuries were found on glutial region. 5. There were no injuries found on thighs and abdomen. No laceration of labio majora and labia minora was detected. Pubic hair were well developed. On local examination, no injuires over clitoris, vagina were noticed. No injury over posterior forchette was noticed. 5 No bleeding or laceration of vagina was found. Hymen was ruptured. Orifice admitted two fingers easily There was no laceration or abrasion in the vagina. Sample of pubic hair was taken and sealed for being sent to Chemical Examiner. Slides of vaginal smear were taken for being examined in the laboratory. Smear was taken from posterior fornix. As per laboratory report no sperm was found in the vaginal smear. Smegma bacilli was not found. The examinee stated that she had started menstruating at the age of 14 years and that she had been menstruating for 3-4 days in a period of 30 days. As per her statement last menstrual period was started on 4.7.1998. As per medico legal examination, there was no evidence suggesting that she had been subject to sexual intercourse within 24 hours. 9. The testimony of PW-5 is also not corroborating the testimony of PW-4, victim-prosecutrix. 10. On the analysis of the prosecution witnesses and materials on record, we notice that the victim who was about 23 years of age, was major woman and there was no sign of having been sexually assaulted by the accused and her testimony is not supported by PW-1 and PW-2. In these circumstances, the sole testimony of PW-4 cannot be said to have inspired confidence and the prosecution case cannot be said to have proved its case beyond reasonable doubt. Therefore, we find no scope for interference in the impugned judgment of the trial court. The criminal appeal, being devoid of merit, is accordingly dismissed. 6 11. We appreciate the assistance rendered by Mr. Rajesh Verma, Advocate, as Legal aid counsel. He is entitled to be paid Rs. 2,000/- as legal fee. 12. The bail bonds, furnished by the accused/ respondent, are discharged. ( R.B.Misra ), J. 17th September, 2010 ( V.K.Sharma ), J. (sl) 7