IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA. Cr. Appeal No. 384 of 1996. Decided on 17.3.2010 -------------------------------------------------------------------------------- State of Himachal Pradesh Appellant. Versus Yashpal alias Johanda Ram 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. R.M.Bisht, Deputy Advocate General. For the Respondents Mr. Rakesh Jaswal, Advocate. -------------------------------------------------------------------------------- Deepak Gupta, Judge (Oral). This appeal by the State is directed against the judgment dated 25.8.1995 delivered by the learned Sessions Judge, Mandi, Kullu and Lahaul & Spiti, District Mandi in Sessions Trial No. 28 of 1994 acquitting the accused of having committed offence punishable under Section 376 of Indian Penal Code. 2. The prosecution case is that the prosecutrix PW-2 and her husband PW-3 Lachhman Ram run a tailoring shop in Village Matru, Tehsil Jogindernagar District Mandi. On 17.2.1994 the prosecutrix was alone in her shop. Accused came to the shop of the prosecutrix at about 2 pm, assaulted her and lifted her to the Obri (attic type room above the shop). The accused thereafter broke the string of the salwar of the prosecutrix and committed forcible intercourse with her. The prosecutrix raised a hue and cry. While the accused was indulging in ---------------------------------------------- Whether reporters of local papers may be allowed to see the judgment ? Yes. -2- sexual intercourse some voices were heard from outside. Then the accused broke the plank of the roof of the Obri and fled away. The husband of the prosecutrix reached in the evening but the prosecutrix did not inform him about the incident since she was ashamed. The next day she informed her husband who reported the matter to the Pradhan Gram Panchayat, PW-5 Jog Raj. This witness advised them to report the matter to the Police Station. Report was lodged with the Police Station Jogindernagar on 19.2.1994 i.e. two days after the incident. Thereafter, the prosecutrix was got medically examined and after completion of investigation the challan was filed. The case was committed to the Court of Sessions and the accused has been acquitted by the learned trial Court mainly on the ground that it is a case of consensual sex. 3. For the sake of this appeal we proceed on the assumption that the accused had sexual intercourse with the prosecutrix. This occurrence took place at 2 pm. The prosecutrix and her husband admitted that there are a number of houses close to the shop where she runs the tailoring business in the open verandah which is visible from main road. This is also apparent from the plan prepared by the investigating Officer. The house of Giano Devi is at the distance of 10 feet and there are two karyana shops across the road. Thus the open verandah was visible from these houses and shops also. True it is, that the prosecutrix states that all the shops were closed but this version has only come during her testimony in Court but not earlier. 4. At 2 pm the shops would not be closed. The prosecutrix is a young lady of 21 years. It is not her case that the accused threatened her. She only states that he forcibly took her inside and gagged her -3- mouth. She raised hue and cry. If that was true someone would have come from the neighboring shops and houses on hearing her cries. According to the prosecutrix the accused had broken the nara of her salwar. However, when this salwar Ex. P1 was produced in the Court, the court noticed that the nara of the salwar was not broken and was complete. This also belies the story of the prosecution that the nara was broken. According to the prosecutrix the accused had broken the plank of the roof of the Obri and fled away. However, on the record there is no recovery memo and the said plank has not been produced during the course of trial. The prosecutrix claims that during the struggle she sustained injuries on her breasts. However, the MLC Ex. PA does not show that there were any injuries on the breasts of the prosecutrix. Only one bruise on the lower side of the back of the prosecutrix was found at the time of medical examination. The prosecutrix is a married woman and therefore, the presence of semen on her salwar cannot be linked with the accused alone. 5. In fact the prosecutrix herself states that when some voices were heard from outside then the accused fled away. This clearly indicates that the prosecutrix was a consenting party. They feared that they may be discovered and then the accused fled away. 6. In this case the statement of the prosecutrix does not inspire any confidence whatsoever. In addition thereto there is no explanation for the delay in lodging the FIR. The incident took place at about 2 pm on 17.2.1994. According to the prosecutrix she told her husband about this on the next day i.e. on 18.2.1994. However, PW-4 Gian Chand who returned with the husband to Matru at 9 pm states that -4- prosecutrix had informed them that she had been raped by the accused in the shop. This also belies the version set out by the prosecution. The prosecution has not sought to declare this witness hostile or cross examine him. 7. The case of the prosecutrix is that she told her husband about the incident the next morning and then they went to PW-5 and reported the matter to him at 1 pm on 18.2.1994. The Pradhan stated that he advised the prosecutrix and her husband to go to the Police Station Jogindernagar which can be reached within 30 to 45 minutes from Matru. There is no explanation as to why the prosecutrix and her husband did not immediately go to Jogindernagar to lodge the report. Why did they wait for another day ? This gave them sufficient time to cook up a false story. 8. In view of the above discussion we find no merit in this appeal which is accordingly dismissed. The bail bonds, if any furnished, are ordered to be discharged. (Deepak Gupta) Judge. (Sanjay Karol) Judge. March 17,2010. (KC)