IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 578 of 2002 Date of Decision 4th August, 2011 ________________________________________________________ State of H.P. ….Appellant Versus Sunka Ram ….Respondent. ________________________________________________________ Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 ________________________________________________________ For the Appellant: Mr. R.K. Sharma, Sr. Additional Advocate General. For the Respondent: Mr. T.S. Chauhan, Advocate. ____________________________________________________________ Dev Darshan Sud, J(oral) The State challenges the acquittal of the respondents herein for offence under Section 376 of IPC. The case of the prosecution was that while the prosecutrix had gone to cut grass from the ghasni, the respondent forcibly committed rape on her. She and her daughter PW2 Anjana are the star witnesses. The learned trial Court has acquitted the respondent herein 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 on the ground that evidence of both these witnesses cannot be relied upon for the reason that they have totally denied the incident in their cross examination. 2. We will consider only those facts which are necessary for adjudication of this case. The prosecutrix Rameshwari Devi, PW2 states that the accused is her Devar (brother-in-law). On 31.7.1996 at around 1-30 PM he had come to her house and stated that his father is ill and his mother had gone to Bilaspur to attend his ailing father in the hospital. He had to cut grass as it was required for his cattle. He asked the prosecutrix to accompany her and to help him in the task. She conceded and went with him alongwith her daughter Anjana. 3. After cutting grass, she tied it in bundles. The accused helped her daughter in taking the load of grass on her head and asked her to go home. This according to her was a ruse by the accused so that he could accomplish his nefarious design. She states that as soon as her daughter left and while she was preparing the bundles of grass the accused caught hold of her, as a result of which she fell down on the ground, he gagged her mouth with his hands and committed sexual intercourse with her forcibly without her 3 consent. She shouted for help and her daughter PW2 rushed to the spot. At this point of time, the accused left her, fell on her feet and begged for forgiveness. She says that she sustained injuries on her wrists. She also gave blows to the accused with her sickle as a result of which he sustained injuries. She then returned home and informed her husband about the incident who then lodged the First Information Report Ext.PA with the police. In these circumstances, it is the evidence of PW1 prosecutrix Rameshwari Devi and PW2 Anjana which is of primary importance as one is the victim and second is the eye witness of the entire episode. 3. Adverting to the evidence of prosecutrix, we find that she is not consistent in her version. In her examination in chief, she supports the case of prosecution with respect to the occurrence of incident. However, in cross examination, she destroys her entire case. She states that grass which had been cut was meant for their individual use. She then states that she did not send her daughter ahead. She states that after the accused untied her salwar he did not commit any sexual/indecent act with her. She also states that she and the accused were standing when her daughter came there and in these circumstances, they could not 4 do anything. She says that her daughter told to her that she would tell her grandmother that they were talking with each other; most important of all is the fact that at this she got afraid and then informed her husband that a report should be filed. She then states that the accused was arguing with her regarding the place from where she had to cut grass. Lastly and most important of all is that she told the police that no sexual intercourse/act was committed with her. She has been declared hostile and cross examined by the Public Prosecutor. She was again cross examined by the defence when she states that no sexual act was committed with her. On Court question put to her, she again stated that sexual intercourse has been committed with her. But while she was re-cross examined by the defence counsel, she states that no sexual intercourse was committed with her. 4. The statement of PW2 is also very important as she supports the case of prosecution in examination in chief, but then suddenly she says that she just saw the accused and her mother standing together and talking with each other. She states that no sexual intercourse was committed with her mother. When she was cross examined by the Public Prosecutor, she again 5 says that the accused did not commit sexual act with her mother. When the Court question was put to her to ascertain the truth, she says that the accused did commit sexual intercourse with her mother. She was cross examined and then she again states that no sexual intercourse was committed with the prosecutrix. This is the entirety of the evidence on which conviction is sought by the prosecution. 5. PW8 Dr. Savita Mehta, the Medical Officer at District Hospital, Bilaspur examined the prosecutrix and according to her opinion, the prosecutrix was used to sexual intercourse. PW9 Dr. S.K. Patial, the Medical Officer, District Hospital, Bilaspur has examined the respondent and opined that he was a healthy adult male and capable of performing sexual intercourse. He found minor injuries/abrasions on the body of the respondent which could be caused with hard object or stick. 6. Looking to the evidence on record, this is a case in which it cannot be said that the evidence of the prosecution witnesses has not been properly appreciated by the learned trial Court, or that the conclusion arrived at by the learned trial Court is perverse and cannot be sustained on the basis of the 6 evidence on record. We note that both the prosecutrix and PW2 have been approbating and reprobating not once but over and over again. We also find that medical evidence is not consistent with the explanation as to the commission of rape. In these circumstances, we can not persuade ourselves to accept the argument advanced on behalf of the State that the rape was committed on the victim. Thus there is no merit in this appeal. Appeal stands dismissed. Bail bonds furnished by the respondent stand discharged. (R.B. Misra) Judge August 4th ,2011 (Dev Darshan Sud), ms Judge 7