STATE OF H.P. Vs. RAJ KUMAR

JUDGEMENT

(1.) THIS appeal by the State is directed against the judgment dated 25.08.1998 delivered by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr in Sessions Trial No. 36 of 1996 whereby he acquitted the accused of having committed an offence punishable under Section 376 of the Indian Penal Code.

(2.) THE undisputed facts are that the prosecutrix was aged about 19 years at the time of the incident. In 1994 she came to village Tapri and started residing with her brother Raj Kumar, who was running a shop of radio -mechanic in the bazaar of Tapri. On 4th June, 1995 Raj Kumar went to village Chagaon and returned to his quarter at about 7.30 p.m. His sister, the prosecutrix, was not at home. The wife of the complainant Raj Kumar could not give any information as to where the prosecutrix had gone. For the whole night and during the next day the complainant searched for his sister. He came to know from his relative Shubh Chand that the prosecutrix had been seen in the company of the accused who was running a video -parlour near the shop of the complainant Raj Kumar.

(3.) THE learned trial Court has acquitted the accused mainly on the ground that this is a case of consent and not a case of forcible sexual intercourse. The testimony of the prosecutrix herself does not support the prosecution version. Her version is that the accused had been asking her to marry him. She refused the proposal but he continued to persuade her. On 4.6.1995 the accused came to the house of her brother when she was alone there. He again asked her to perform marriage with him and asked her to accompany him to village Chholtu which is at a distance of about 3 -4 kilometers. She does not allege that any force was used or any threat was given to her but she voluntarily went with him to village Chholtu. Thereafter, he took her to village Kanda. Again she does not state that she was threatened by the accused. However, she does say that on the way to village Kanda she declined to accompany the accused but then the accused became ready to assault her. According to her the accused had sexual intercourse with her on three -four occasions. In cross -examination, the prosecutrix admitted that a number of houses are situated on the road leading from Tapri to Chholtu. She also admitted that the distance from Chholtu to Kanda was 15 -16 kilometers. According to her she and the accused walked throughout the night. She admitted that she was meeting the accused without the knowledge of her brother and her Bhabi and that she had left her house when they were absent. She admitted that she had not even raised a hue and cry when she left the house of her brother even though many persons were present in the vicinity.