AMAR SINGH Vs. STATE OF H P

JUDGEMENT

(1.) The instant petition, has been filed by applicant/ accused, under Sec. 439, Code of Criminal Procedure, for seeking, an order, for his being released from judicial custody, whereat he is extantly lodged, for, his allegedly committing an offence, punishable under Sections 376, 342 of the Indian Penal Code, in respect whereof, an FIR No. 144 of 2018, of, 24.5.2018, is, registered with Police Station, Sadar Solan, District Solan, H.P.

(2.) The accused is suffering judicial incarceration, for, four months. The prosecutrix/victim is a married lady, and, has two minor children. She is deaf and dumb. However, the apt status report discloses qua hers not lacking, the, capacity hence for making an apt communication to her husband or to other members of her matrimonial home. Contrarily, it is manifest, from, a perusal of the status report, that, she could make communications, through, gestures and by using sign language, and, there is also disclosure therein, that, her apt communications, through, gestures and sign language, were understandable by the members, of, her matrimonial home. The effect of the aforesaid, is, that the prosecutrix rather cannot be construed, to, lack the capacity to mete consent, if any, visavis perpetration, of, sexual intercourse upon her, by the bail applicant/accused. If so, she was enjoined, to, promptly report the incident, to, the police. However, the apt status report discloses qua about 21 days rather elapsing, since the occurrence, upto hers' making apt communications, to her motherinlaw. Even though she in her statement recorded, under, Sec. 164 Crimial P.C. she makes echoings, qua, her within two days, since the occurrence rather reporting the incident to her motherinlaw, yet, the afore contradictions rather constrains this Court, to conclude, that, there is a manifest delay, in, the reporting, of, the incident to the police. Neither the motherinlaw of the prosecutrix nor the latter has meted any tangible explications qua the apt delay. The effect thereof is (i) qua hence the emergence of apt medical evidence being precluded, (b) nor hence evidence is forthcoming qua bruises, and, abrasions rather occurring on the person of the bail applicant/accused or upon the person of the prosecutrix/ victim, with, any vivid display qua whether prosecutrix had or not resisted, the, sexual intercourses perpetrated upon her, by the bailapplicant/accused, (ii) thereupon at this stage, it cannot be firmly concluded qua the sexual intercourse, which occurred interse the bail applicant/accused, and, the prosecutrix being construable to be a forcible sexual intercourse. Corollary thereof is hence, the apt benefit at this stage, is visitable, upon, the bail applicant/ accused qua his rather with the consent of the prosecutrix, hence sexually accessing the victim.

(3.) Be that as it may, the prosecutrix, at, the end of her statement, recorded under Sec. 164 Crimial P.C. has, made acquiescences qua her forgiving, the, misdemeanor of the accused, acquiescences whereof , is, rather tentatively and prima facie may be readable qua hers consenting, visavis, the bail applicant hence sexually accessing her.