IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 23 of 1995. Date of decision: 4.11.2008 State of H.P. …. Appellant. Vs. Gian Chand and another ... Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting?1 No. For the appellant-State: Mr. Ram Murti Bisht, Dy.Advocate General. For the respondents: Mr. Sharwan Dogra, Advocate. Per Deepak Gupta, J. This appeal is directed against the judgement dated 11th January, 1994 passed by the learned Additional Sessions Judge, Mandi, in Sessions trial No. 32/91, whereby he has acquitted the accused of having committed offences punishable under Section 341, 376 and 201 IPC. The prosecutrix (name withheld) was a student of 10th class in the year 1989. According to her, on 20th October, 1989 at 4.00 p.m. she was returning home from her school at Jai Devi. She was accompanied by a number of her class fellows. According to the prosecutrix, when they reached near village Tarmoda at about 4.15 p.m., the accused persons whom she did not know at the relevant time met them. The accused persons illegally and wrongfully restrained the prosecutrix. They caught hold of her and started dragging her towards a nearby Nallah. The other students accompanying the prosecutrix intervened and there was some sort of scuffle. However, the accused persons threatened the other students with a knife and managed to drag away the prosecutrix. They took her to a Nallah, where she was raped by both the accused in turn. She fell unconscious and regained consciousness only at about 5.00 a.m on the next morning i.e. 21st October, 1989. She went home and informed her mother about the incident. Her 1 Whether the reporters of the local papers may be allowed to see the Judgment yes. 2 father was not at home. He returned in the evening and then they went to the Police Station at Sundernagar. The F.I.R was lodged the next day on 22nd October, 1989. The prosecutrix was medically examined by Dr. H.K.Abrol (PW-10) who issued the MLC Ext.PW-10/A. According to this MLC at the time of examination she was wearing the same clothes which she was wearing at the time of the incident. These clothes were taken into possession by the Medical Officer. No injuries were found on the person of the prosecutrix. No fresh lacerations or tenderness were found on her private parts. According to the medical opinion, the prosecutrix was habitual to sexual intercourse. The radiological age of the accused was found to be between 15-1/2 to 17 years. The Investigating Officer thereafter conducted the investigation and finally challan was filed in Court. The accused pleaded not guilty. The prosecution examined a number of witnesses and the learned Court below acquitted the accused in view of the many discrepancies in the statements of the prosecution witnesses. The first point which needs to be decided is what was the age of the prosecutrix on the date of occurrence. The incident took place on 20th October, 1989. The prosecution itself has proved two certificates regarding the age of the prosecutrix. The first certificate Ext.PW-11/A has been issued by the Secretary of the Gram Panchayat and the second Ext.PH issued by the Headmaster of the school where the prosecutrix was studying. In both the certificates date of birth of the prosecutrix has been recorded as 9th July, 1971. Therefore, she was more than 18 years of age when the incident took place. According to the prosecutrix, the incident took place at about 4.15 p.m. when she was returning from school and at that time she was accompanied by 8 to 10 other students. Only two of the students have been examined by the prosecution. They are Raj Kumar PW-4 and Kala Devi PW- 3 5. Both these students have not supported the prosecution version. In their statements in Court, they have stated that when they were returning from school two persons met them on the way but they could not identify them. According to these witnesses, the prosecutrix went with these two persons. Both these witnesses have denied that either they or the prosecutrix was threatened or that any scuffle took place. According to the prosecutrix, she did not know the two accused. In her complaint, she stated that on the next day i.e. 21st October, 1989 she was told the names of the two accused by Raj Kumar (PW-4) and one Hans Raj. This fact finds mention in the F.I.R. Ext.PW-13/A. Raj Kumar categorically states that he does not know the accused persons. Hans Raj has not been examined. Interestingly, even the prosecutrix herself admits in her cross-examination that she met Raj Kumar and Hans Raj for the first time after the incident about four days later when she went to school. It is, therefore, apparent that her version in the F.I.R that she was told the name of the accused persons by Raj Kumar or Hans Raj is false. In fact, during cross-examination she does not even clearly identify the accused as the same persons who allegedly waylaid her and then raped her. In her first statement made to the police, the prosecutrix stated that the students accompanying her were threatened by the accused persons with a knife. The two students produced have not supported this version. While appearing in the witness box also the prosecutrix does not state anything about her co-students being threatened by a knife. In case, such an incident had taken place and the prosecutrix had been waylaid and abducted in the presence of 8 to 10 of her school mates at least some of them would have told their parents about the incident. There is no evidence in this regard and this casts a doubt on the version of the prosecutrix. The law is now very well settled that conviction in a case of rape can be based on the sole testimony of the prosecutrix. However, this testimony 4 should be credible and should inspire confidence. In the present case, in addition to the various discrepancies regarding the manner in which the prosecutrix was accosted and abducted, there is other material on record which goes against the prosecution and which casts serious doubt on the version of the prosecutrix. According to the prosecutrix after she was subjected to forcible sexual intercourse by the two accused she remained unconscious till 5.00 a.m. the next morning i.e. for about 12 hours. This version of the prosecutrix cannot be believed in view of the fact that there is no injury on her person and the Medical Officer has clearly opined that she was habitual to sexual intercourse. The version of the prosecutrix that she was dragged from the path to the nearby Nallah for about 1 or 1-1/2 K.M is not believable in view of the fact that there is no injury on her person. 8 of her co-students would not have remained mute spectators on her being dragged away. The version of the prosecutrix about the events after the alleged rape is also not supported by other contemporaneous evidence. Both the prosecutrix and her mother PW-15 state that after the prosecutrix returned home she took a bath. It is also there case that the clothes which she was wearing at the time of the incident were washed. The prosecutrix and her mother state that when she went for medical examination these clothes were taken in a separate bundle. However, according to the doctor, the prosecutrix was wearing the same clothes at the time of the medical examination which she was wearing at the time of the alleged rape and these clothes were taken in possession by him. Both the versions are totally contrary. Admittedly, the clothes which she was wearing at that time were washed. Therefore, there could have been no spermatozoa or blood on them thereafter. Another aspect of the matter is that according to report of the Chemical Examiner Ext.PW-16/E and that of the Serologist Ext.PX, 5 spermatozoa and human blood was found on the Salwar. Admittedly, these clothes were taken into possession by Dr. H.K.Abrol on 22nd October, 1989. PW-12 constable Bansi Ram states that he took the clothes to the Chemical Examiner at Patiala and that such parcel was given to him by the M.HC Gulam Mohamad (PW-6) on 22.5.1990 and he deposited the same with the Chemical Examiner on 23.5.1990. However, according to the Chemical Examiner’s report, the Chemical examiner received the clothes on 22nd December, 1989 and the report was issued on 28th February, 1990. As per the report of the Serologist Ext.PX, the clothes of the prosecutrix were received by him from the Chemical Examiner on 15.3.1990 and issued the report on 17.4.1990. This could not have been possible if the clothes were actually handed over by the constable to the chemical examiner on 23rd May, 1990. This also creates a doubt that clothes may have been changed with some other clothes. In view of the above discussion, we find that there are many contradictions in the prosecution version. The statement of the prosecutrix does not inspire confidence and therefore no conviction can be made solely on the basis of the same. The statement of the prosecutrix is belied by the statements of other witnesses especially her co-students and also the other medical evidence on record. We, therefore, find no reason to interfere in the order of acquittal passed by the learned trial Court. The appeal being without any merit is dismissed. The bail bonds furnished by the respondents-accused are discharged. (Deepak Gupta), J. November 4, 2008 (V.K.Ahuja), J. ™