IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 390 of 1995 Date of decision: 22.02.2010 State of H.P. …. Appellant. Vs. Sat Pal ... Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting?1. No. For the appellant-State: Mr. Vivek Singh Thakur, Addl. Advocate General For the respondent: Mr. Malay Kaushal, vice Counsel. Per Deepak Gupta, J.(oral) This appeal under Section 378 of the code of Criminal Procedure by the State is directed against the judgement of the learned Sessions Judge, Sirmaur District at Nahan in Sessions trial No. 49-N/7 of 1994/1993 dated 2.1.1995 whereby he acquitted the accused of having committed an offence punishable under Section 376 of the Indian Penal Code. The prosecution case in brief is that the prosecutrix is a married lady. She had come to her maternal home to stay with her mother. On 13.10.1992 she left her maternal home in village Cheok, Tehsil Rajgarh for her husband’s home at village Kodab Bagana, Tehsil Rajgarh on foot. At about 3.00 p.m. when she was near village Bagh-Ka-Jungle the accused came from behind and caught hold of her by her arm and asked her to sit with him. 1 Whether the reporters of the local papers may be allowed to see the Judgment. Yes. 2 On her refusal to do so he pulled her towards the right side of the path and threw her on the ground and after removing her Salwar raped her. The prosecutrix cried for help. Since none was nearby to hear her cries she returned to her mother’s place and narrated the same to her. Her mother took her to the Police Station Rajgarh on the next day where the F.I.R was lodged against the accused. The prosecutrix was got medically examined. Her clothes which she was wearing at the time of the occurrence were taken into possession by the Police. The accused was arrested and got medically examined. On completion of the investigation, report under Section 173 Cr.P.C. was drawn up and filed and thereafter the case committed to the Court of Sessions. The accused was thereafter charged with having committed offence punishable under Section 376 IPC and pleaded not guilty. After trial the accused has been acquitted. Hence, the present appeal. The prosecutrix appeared as PW-6 and by and large stated what she had stated in her report to the police. However, there are some material contradictions in the two statements. Whereas in the F.I.R she had stated that the accused came from behind and caught hold of her, in her statement in Court she stated that the accused came from the opposite direction and dragged her towards the bushes. In the F.I.R she had stated that she had raised a hue and cry but in her statement in Court 3 she stated that she did not raise any alarm because there was none near the site of occurrence who could have come to her rescue. It has been urged that the testimony of the prosecutrix is sufficient to hold the accused guilty. No doubt, the law is clear that an accused in a case of rape can be held guilty even on the statement of the prosecutrix without further corroboration. However, the testimony of the prosecutrix must inspire confidence. In the present case as already pointed above there are two material contradictions in the version given by the prosecutrix in the F.I.R and the version given by her in Court. Even the medical evidence does not support the case of the prosecutrix. While appearing as PW-6 the prosecutrix states that she had suffered injuries on her back. She does not make any mention about any other injury suffered by her. However, Dr. Shashi Paul Singh who examined the prosecutrix has been examined as PW-1. In his statement he states that he found only one abrasion on the back whereas number of other injuries were found on the thighs, nasal, knee, etc. The prosecutrix has not spoken about these injuries and therefore, her statement becomes doubtful. One of the most important reasons to disbelieve the prosecutrix is that according to her she was raped when she was returning to her husband’s village from her maternal home. 4 PW-7 Ghanotu Ram has in no uncertain terms stated that the site of occurrence does not fall in the way from the parental village to the maternal village of the prosecutrix. Even the Investigating Officer PW-8 could not deny this fact. However, he tried to save the situation by saying that in fact the prosecutrix was going from her sister’s village to her husband’s village and therefore, the site of occurrence falls on the way. This is contrary to the statement of the prosecutrix. Another very important aspect of the matter is that the prosecutrix has clearly stated in her examination that she did not know the accused nor had seen him ever before the date of the incident. In the F.I.R. the name, parentage and complete address of the accused has been given. When asked to explain how she could give this information, the prosecutrix states that she had told her mother that the accused was married to the daughter of Nain Singh and her mother told her the name and address. If she had not seen the accused prior to the date of the occurrence, as clearly stated by her in her examination-in-chief, how could did she know that he was married to the daughter of Nain Singh. This totally belies her statement. Another important factor is that in the medico legal certificate Ext. PB it is initially recorded that no mark of blood or seminal stains were found on the Salwar and Kurta worn by the prosecutrix and these were sealed and sent for chemical analysis. 5 This obviously mean that the doctor had taken the clothes into possession and after sealing them had sent them for chemical examination. Later the words “not” have been interpolated in this medico legal certificate Ext.PB. Thereafter the police itself took the cloth into possession vide seizure memo Ext.PE on 14.10.1992. It is obvious that this interpolation has been done at the instance of the police. The doctor had not noticed any stains on the clothes of the prosecutrix. When this opinion was given the clothes were taken into possession. How could the police again take the same in possession and sent the clothes for chemical examination. The chemical Examiner opined vide Ext.PA that the Salwar bore stains of semen. When the doctor had clearly stated that no stains were there on the clothes of the prosecutrix there is no explanation as to how the said Salwar was latest found to be stained with semen. It obviously means that the investigation was not fair. Another important factor is that it has been proved on record that earlier also the prosecutrix had made a false complaint by lodging F.I.R. Ext.DX against one Shri Bahadur Singh. In that F.I.R. she had alleged that Bahadur Singh had outraged her modesty. Ext.DY is the copy of the order passed in the said case which shows that the matter was compromised and that the complainant had lodged the complaint due to a misunderstanding and the matter was compromised vide 6 compromise deed Ext.DZ. This clearly shows that on an earlier occasion the prosecutrix had leveled false charges of outraging her modesty against some other person. For all the reasons stated above, it cannot be said that the statement of the prosecutrix inspires confidence. In fact there are reasons to disbelieve her statement. Therefore, the learned trial Court was fully justified in acquitting the accused. We find no reason to interfere in the said judgement. The appeal is accordingly rejected. Bail bonds are discharged. (Deepak Gupta) Judge. 22nd February, 2010 (Sanjay Karol) ™ Judge.