HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 339 of 2003 Reserved on: 6.12.2011. Decided on: 8.12.2011. State of Himachal Pradesh ……… Appellant. Versus 1. Deepak Kumar, son of Shri Som Nath, Resident of Village Kosarian, Police Station & Tehsil Sadar, District Bilaspur, H.P. 2. Rajesh Kumar alias Raju, son of Shri Gopal Dass, House No.71-B, Dabra Main Market, Bilaspur, H.P. ………Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.Vivek Thakur, Additional Advocate General. For the respondents: Mr.Neeraj Sharma, Advocate. Justice V.K. Ahuja, J.: This is an appeal filed by State of Himachal Pradesh under Section 378 of the Cr.P.C. against the judgment of the court of learned Sessions Judge, Bilaspur, H.P., dated 1.5.2003, vide which he acquitted the respondents of the charge framed against them under Sections 366 and 376 read with Section 34 IPC. 2. Briefly stated, the facts of the case are that on 3.6.1996, at 6.45 p.m., a report was lodged by the prosecutrix ‘X’ (name not mentioned) that she is a resident of Village Kutheran and she had taken a room on rent at Kosrian from one person and was living alone in the said room. Her mother had asked her today to reach at District Hospital since she was to visit the hospital and she waited __________________________________________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - for her mother till 12.00 noon outside the hospital, but her mother did not come. When she was coming back to her quarter, respondents met her on the way and respondent Deepak asked her to accompany him and that he would give her his photograph. She refused, but Deepak Kumar, respondent, forcibly dragged her from her arm and took her inside the room of his friend Raj Kumar. She raised an alarm and Raj Kumar put his hands on her mouth and gagged her mouth. Deepak Kumar forcibly committed rape with her. She also raised an alarm. Thereafter, she came back to her quarter, informed her landlady Smt.Meena Suman, who asked her to report the matter to the police and the report was lodged with the police. On this report a case was registered and after investigation, the challan was filed before the learned Chief Judicial Magistrate, Bilaspur, who committed the case to the learned trial Court. The learned trial Court tried the respondents under the aforementioned Sections, leading to their acquittal. 3. We have heard Mr.Vivek Thakur, learned Additional Advocate General for the appellant-State and Mr.Neeraj Sharma, Advocate, for the respondents, and have gone through the record of the case. 4. On appraisal of the record of the case, it is clear that the prosecution had examined 10 witnesses to substantiate its case. The most material witness is the prosecutrix herself, who has been examined as PW-5. She reiterated the allegations made by her in the report lodged with the police that she was coming back at 12.00 noon and both the respondents met her on way and she was dragged inside the house of Raj Kumar. Her mouth was gagged by the - 3 - accused and she was raped by Deepak Kumar, respondent. She stated that when she tried to raise an alarm, the respondent Raj Kumar gagged her mouth and Deepak Kumar, respondent committed sexual intercourse with her forcibly. She came back to her quarter and kept sitting there for about 2-1/2 hours as she was in bad condition and trauma. Then she revealed the facts to her landlady Meena Suman, who gave a telephonic call to her husband in the shop and told him the facts. Then the landlady asked her to go to the shop of her husband and the prosecution went there, told him the facts and he asked the prosecutrix to go to the police and lodge the report and she lodged the report with the police Ext.PC. The said landlady or her husband, to whom the facts were told by the prosecution, did not accompany her to the police station to lodge the report, though the facts disclosed by her made out a serious offence. 5. It is clear from her cross examination that her mother had told her one month in advance to visit Bilaspur and, therefore, she had gone to the Hospital. It looks surprising that one month in advance she had been informed about this fact by her mother. She admitted that at that time her father was living in a Kutia of Kala Baba at Bilaspur. She had been living in the quarter, which had been taken on rent by her and her mother. She admitted that there are many houses around the house of the respondent. She admitted that it was a sunny day, but denied that the ladies were sitting outside in their verandahs. She stated that her mouth was gagged by the accused when she was taken from the path to the room and Deepak Kumar, respondent, had gagged her mouth on the path, while he had dragged her with the other - 4 - hand and had taken her inside the room. She admitted that there is a gate at the entrance of the house of respondent Raj Kumar before entering the verahdah and there is a narrow path through the verandah after the gate. She stated that she applied her complete force to prevent her being taken inside the room, but did not sustain any injuries while she was being taken inside the room or during the sexual intercourse, she suffered no injury on her private parts. No blood oozed out of her private parts and she did not notice any blood on her clothes. Surprisingly, she stated that she does not remember if she was wearing underwear at that time and the string of the salwar was opened by one of the respondent and was not broken. She does not remember if this underwear was given to the police or not. After the incident, she had gone to the mother of one of the accused and told her about the rape committed by the respondent and the mother of the accused abused her and the respondent also abused her. She had also gone to the father of the accused to tell him about the incident. 6. There is no other corroboration to her statement, except by PW-7 Meena Rani, the landlady, to some extent. PW-7 Meena Rani stated that the prosecutrix left in the morning at 10.00 for the hospital, came back at about 12.15 p.m., though the prosecutrix states that she came back at 12.00 noon. She further stated that the prosecutrix remained in her house for about 2 to 2-1/2 hours i.e. from 12.00 noon to 2.30 p.m. Thereafter, the prosecutrix came to her. On her query, the prosecutrix told her that she was raped by the accused and her mouth had been gagged by Rajesh Kumar. She then informed her husband on telephone and the - 5 - prosecutrix thereafter went alone and lodged the report. She admitted in cross examination that she is not on talking terms with the mother of one of the respondents after this incident. She was also confronted with news item published in the Divya Himachal newspaper, copy of which is Mark X. The news item suggests her involvement with some bank officer and the news is with the caption “Rang ralia manate dhare gaye”. She admitted that the news referred to her suggests about her arrest from a restaurant and also admitted that she was kept in the police custody and was released on the next day on bail. She denied the suggestion that one of the respondents had seen her in a compromising position with another person and bolted the door and called her husband. All these suggestions have been made to create doubts about the veracity of the statement made by PW-7 and nothing more deserves to be said on the suggestions made in this regard, suffice to say that her statement cannot be taken as gospel truth. 7. The Medical Officer PW-6 Dr.J. Goswami, who examined the prosecutrix and gave her report, has stated that hymen was absent and vagina admits one finger comfortably. She stated that the girl was habitual of sexual intercourse, though the prosecutrix had stated that this was for the first time that she was subjected to sexual intercourse. The duration of abrasions was less than 72 hours while duration of infected injuries was more than 48 hours. She had given her opinion that the girl was habitual to coitus. In regard to the question as to when this intercourse took place, she opined that this opinion was to be given after the vaginal examination of vaginal smear and after the examination of - 6 - vaginal smear, she had opined that there was absence of sperm, G.C. and T.V. The clothes which were given by the prosecutrix to the police were stained with semen and she opined that the coitus had taken place more than 48 hours prior to medical examination of the girl, which had been conducted on the same day at 8.30 p.m. i.e. within around 9 hours of the occurrence. 8. A perusal of the site plan Ext.PK proved in evidence shows that the occurrence had taken place just in the market and there are houses on both sides. Therefore, it looks improbable that a girl of the age of 20 years, as has come up in evidence, will be taken forcibly by gagging her mouth and will not be able to raise any alarm on the road side or near the gate or in the verandah leading to the room. The time of the occurrence is such i.e. 12.00 noon and in a place, as shown in the site plan Ext.PK, which is surrounded by the houses, it is not possible that the girl could have been easily taken by the accused persons without her consent or no person would have been attracted to the spot on hearing the cries of the prosecutrix. The prosecutrix admits in her statement that when she was raped, her mouth was gagged by the other accused and her both hands were free, which clearly shows that she had every opportunity to protest or resist the attempt made on her body by one of the respondents. 9. The learned trial Court on the basis of the statement of the prosecutrix, the place of occurrence and other factors had rightly come to the conclusion that it cannot be said that the guilt of the respondents was established and as such the final conclusion drawn by the learned trial Court leading to the acquittal of the - 7 - respondents cannot be said to be perverse calling for an interference by this Court. 10. In view of the above discussion, we accordingly hold that there is no merit in the appeal filed by the appellant, which stands dismissed. Bail bonds furnished by the respondents shall stand discharged. (Deepak Gupta), Judge. December 8, 2011 (V.K. Ahuja), (tilak) Judge.