IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.A.No.310 of 2001 Reserved on 29.2.2008 Date of decision 7.3.2008 State of H.P. Appellant Versus Om Parkash Respondent Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellant: Mr.Anil Kumar Jaswal, Deputy Advocate General. For the respondent: Mr. Bhupender Ahuja, Advocate. Rajiv Sharma,J. The respondent was prosecuted in Criminal Case No.28/2 of 2000 in the court of Sub Divisional Judicial Magistrate, Rajgarh camp at Sarahan under Sections 354, 323 and 506 IPC and was acquitted on 14.12.2000. This appeal has been preferred by the State against the judgment dated 14.12.2000. The brief facts gathered from the judgment of the trial court are that prosecutrix Anita Devi (PW-1) was a student of 9th standard at Government High School Gagar Sanikar. During the month of January, 2000 there was vacation in the school and her father had gone to his place of work on 18.1.2000. Her three sisters and one aunt Kiran were present at the house. Prosecutrix Anita Devi had gone to graze her cattle in the jungle (Chho-ka-Bagra). At about 3 p.m. accused Om Parkash came and laid her down on the ground and started pressing her breast and when she tried to raise alarm the accused said no body would hear her cries and thereafter he started sucking her mouth and when prosecutrix put up resistance to save herself from the clutches of the 1 Whether reporter of local papers is allowed to see the judgment? No. 2 accused, he gave teeth bite on her lips and also pressed her cheeks. In the meanwhile her brother Satpal (PW-3) appeared on the spot and thereafter the accused left. The prosecutrix narrated the entire incident to her aunt Kiran Devi (PW-5). The FIR was registered on 19.1.2000 at about 3.10 p.m. The matter was investigated and challan was put up against the accused. The prosecution had examined as many as seven witnesses in support of its case. The accused was examined under Section 313 Cr. P.C. The trial court acquitted the respondent on 14.12.2000, hence this appeal against his acquittal. The learned Deputy Advocate General had strenuously argued that the judgment dated 14.12.2000 is not sustainable in the eyes of law. He also argued that the prosecution had led cogent evidence and on that basis the respondent could not be acquitted. Mr.Bhupender Ahuja, learned counsel, appearing for the respondent had supported the judgment dated 14.12.2000. I have heard the learned counsel for the parties and also gone through the record of the case carefully. The material witnesses produced by the prosecution to prove its case are complainant Anita Devi (PW-1), Satpal (PW-3) and Kiran Devi (PW-5). PW-1 has stated in her statement that she had gone to jungle at Chho-ka-Bagra at about 3 p.m. when accused appeared there and forcibly laid her down on the ground and pressed her breast. She also stated that the accused gave teeth bite on her lips. She raised alarm which attracted the attention of her brother and thereafter the accused left. She had admitted that her sister had earlier lodged a similar complaint against the accused. Satpal (PW-3) has stated that the place of occurrence is not visible from his house but said place is visible from the village. If the place as stated by PW-3 is visible from the village it cannot be presumed that the accused would have committed heinous crime as projected by PW-1. He had admitted that any noise from the place of occurrence could be heard in the village. If the noise could be heard in the village so many 3 villagers were bound to come to the spot to enquire why the girl had raised the alarm. PW-5 Kiran Devi had admitted that Chho-ka-Bagra, the place of occurrence is visible from her house, though PW1 and PW-3 both maintained that the said place is not visible from their house. She heard the noise for about 15 minutes. If she could hear the noise for 15 minutes there is no reason why the other co villagers had not heard the noise. If she had heard the noise she would have immediately gone to the spot to enquire why the alarm was raised by Anita Devi. The explanation that she had to look after small children is not believable. Her first reaction would have been either to visit the spot herself or to raise the alarm in the village. The other circumstance which goes against the prosecution is the delay in lodging the FIR. The incident had taken place at 3 p.m. on 18.1.2000. However, the matter was reported to the police on 19.1.2000 at 3.10 p.m. There is no explanation why the FIR was lodged after a considerable period. It has come in the statement of PW-5 that her brother-in-law had come at 7.30 p.m. and was apprised of the incident. Had the accused forcibly laid down the prosecutrix there would have been injuries on her body. The prosecution has neither examined nor cited any independent witness to prove its case. If the incident had taken place near the village it was bound to attract the attention of co-villagers and they should been associated during the course of investigation. Moreover, the prosecution has not associated any independent witness at the time of recovery of shirt. The prosecution has failed to prove its case. There is no merit in the appeal and the judgment of the learned Sub Divisional Judicial Magistrate calls for no interference. The appeal is accordingly dismissed. The bail bonds furnished by the respondent are discharged. March 7, 2008(g) ( Rajiv Sharma ), J.