1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR. ORDER Date :- 09.05.2008 S.B.CRIMINAL APPEAL NO.227/1998 State of Rajasthan Vs. Hoshiyar Singh HON'BLE MR. JUSTICE M.C.BHAGWATI Mr. B.K. Sharma, Public Prosecutor, for the State. Mr. N.A. Naqvi, for the accused-respondent. This criminal appeal has been preferred against the judgment dated 15th October, 1997 passed by the Sessions Judge, Alwar whereby, the accused-respondent Hoshiyar Singh has been acquitted in the offences under Sections 376, 341 and 323 of the Indian Penal Code. The accused-respondent Hoshiyar Singh is alleged to have caught hold the prosecutrix PW-2 Smt. Mohini Kaur on 28th September, 1995 at 7:00 pm and dragged her to the house of Inder Singh which was lying in a dilapidated condition. It has been further alleged that the accused Hoshiyar Singh threatened her with knife, made her to lie on the ground, penetrated his penile in her vagina and thus committed rape upon her. He torn the shirt from the breast. Having heard her screams, Sunita PW- 3 and other persons of her village came there and thereafter he ran away. The police which registered the case Ex.P/4 on the verbal report of Smt. Mohini Kaur, prepared the site plan along with the description memo Ex.P/1, seized the cloths of Smt. Mohini Kaur, which she was wearing at the time of occurrence vide memo Ex.P/2, recovered the broken pieces of bangles from the site of occurrence vide memo Ex.P/3, got her medically 2 examined, arrested the accused Hoshiyar Singh vide memo Ex.P/5 and after usual investigation submitted the charge-sheet before the concerned Magistrate having jurisdiction. Heard the arguments of Shri B.K. Sharma, learned Public Prosecutor appearing for the State as also Shri N.A. Naqvi, Advocate appearing for the accused-respondent, considered the submissions made at the bar and perused the impugned judgment of the lower court along with the prosecution evidence and relevant material available on record. Shri B.K. Sharma, learned Public Prosecutor appearing for the State has simply contended that the learned trial court has not properly appreciated the medical report and has acquitted the accused-respondent merely on the ground of minor contradictions having occurred in the statements of the prosecution witnesses. Shri B.K. Sharma, has further argued that PW-2 Smt. Mohini Kaur, the prosecutrix of the case has duly supported the contents of the FIR Ex.P/4 and there is no reason to jettison her testimony. It is also argued by Mr. B.K. Sharma that PW-3 Sunita is a witness, who having heard the screams coming from nearby reached at the spot and found the accused Hoshiyar Singh lying upon Smt. Mohini Kaur who later on told her that the accused Hoshiyar Singh had committed rape upon her. PW-3 Sunita has corroborated the testimony of the prosecutrix and there is no reason to disbelieve their statements. The alleged offences are well proved beyond reasonable doubt against the accused-respondent and lower court's judgment is not found to be in accordance with the law and facts which deserves to be set aside. Shri N.A. Naqvi, learned counsel appearing for the 3 accused-respondent has drawn my attention to the findings of the lower court arrived at the judgment and vehemently argued that if the evidence of PW-2 Smt. Mohini Kaur and PW-3 Sunita are scrutinized and scanned in totality, they will discharge an impression of their being totally misplaced and concocted. It is also argued that Smt. Mohini Kaur has deposed in cross- examination that during the sexual intercourse of 20 minutes, she sustained injuries on her buttocks, thighs and at the back but these injuries have not been found to have appeared by the doctor PW-4 Dr. Amar Singh Rathore during her medical examination. Thus the testimony of PW-2 Smt. Mohini Kaur does not stand duly corroborated by the medical evidence too. So far as the PW-3 Sunita is concerned, she is said to have resided in Delhi. She has not furnished any explanation of her being in Alwar on the date of occurrence. Her statements are not reliable and deserves to be jettisoned outrightly. Mr. N.A. Naqvi has prayed that the judgment of the lower court is perfectly just and proper and based on prosecution evidence appearing on record which calls for no interference and State appeal should be dismissed. To bring home an offence under Section 376, the prosecution must prove that the accused had sexual intercourse with a woman against her will and without her consent and further that there was at least a penetration (partially or fully) no matter whether there was ejaculation of semen. Even a slight penetration in the Valva is sufficient to constitute the offence of rape. Having scanned the statements of prosecutrix PW-2 Smt. Mohini Kaur does not found that there are major contradictions 4 in her statements given on oath and statements of 161 of Cr.P.C. given before the police. In her cross-examination, she has deposed that the accused had a bite on her cheeks and her breast and she sustained injuries during forced cohabitation of 20 minutes on her buttocks, thighs and at the back. But these statements do not get any corroboration from medical examination report Ex.P/5. PW-4 Amar Singh Rathore has categorically denied of the injuries on thighs, back, cheeks and breast having appeared during the medical examination of Smt. Mohini Kaur. As per the medical examination report Ex.P/5, the doctor found only three lacerated wounds on her wrist of left hand which was of superficial nature and could come because of the slight friction of broken bangles. It is highly surprising that the accused committed rape upon her continuously for 20-25 minutes and none appeared on the spot after hearing her screams. It is an admitted position that the place where the offence of rape is said to have been committed, is situated in the center of the village which is surrounded by so many houses from all four sides. The occurrence is alleged to have taken place in the evening at 7:00 pm on 28th September, 1995. It is a time when usually the inhabitants of village do not retire to their bed-rooms. It is again surprising that having heard screams of prosecutrix PW-2 Smt. Mohini Kaur, only PW-3 Sunita, who happens to be her relative appeared on the scene of occurrence and none other resident of neighbouring houses came on the spot. The prosecutrix has also deposed that there were signs of foot-prints of the accused on the place of occurrence and there were also spots of blood and semen on her cloths she was 5 wearing. This statement of the prosecutrix has neither been supported by PW-4 Dr. Amar Singh Rathore nor by PW-5 Shri Daya Ram Singh who happens to be the investigation officer of this case. PW-5 Shri Daya Ram Singh has stated that he did not find any spot of blood and semen on the spot albeit he prepared the site plan Ex.P/1 during the course of investigation. Similarly, PW-4 Dr. Amar Singh Rathore has also deposed that the prosecutrix was examined by a lady doctor who reported him that no sperm was found to be in vagina. Vaginal swabs are said to have taken by the lady doctor and sent for pathological examination but on pathological examination also the sperms have not been found in the vagina of the prosecutrix. Thus the statement of prosecutrix given in the cross-examination to this effect that the accused left her only when he discharged semen inside the vagina is also falsified by the statement of PW-4 Dr. Amar Singh Rathore. It is true that normally a woman would not falsely implicate a person for the offence of rape at the cost of her character. It is also true that in Indian society it is very unusual that a lady with a view to implicate a person would go to the extent of stating that she was raped. But in the instant case, the enmity between prosecutrix and the accused is very well established. In her cross-examination PW-2 Smt. Mohini Kaur has admitted that she had contested election with the cousin of the accused in which she was defeated. The accused is also said to have taken possession of her agricultural land. On account of these factors, the possibility of getting the accused falsely implicated in the offence of rape cannot be ruled out. Thus the court is compelled to draw this inference on account of the 6 reasons that the statements of the prosecutrix have neither been corroborated by the medical evidence nor by the investigation officer with regard to injuries, the prosecutrix is said to have sustained during the course of forcible intercourse nor it is corroborated on other grounds. PW-3 Sunita is found to be an interested witness and her statements does not inspire any confidence. The presence of PW-3 Sunita on the site of occurrence is found to be doubtful, as she has not been able to explain her presence on 28th September, 1995 in a village Liwaria whereas she is said to have lived in Delhi. She has also failed to tell the court as to when did she come from Delhi. She being an interested witness cannot be relied upon. Having regard to the evidence led by the prosecution in this case and the finding recorded by the learned Sessions Judge, Alwar, to my mind is very cogent and sound. I find that the acquittal of the accused-respondent for various offences under Sections 376, 341 and 323 is well merited and supported by the evidence available on record. The statement of PW-2 Smt. Mohini Kaur are found to be false, misleading and exaggerated in narration, far away from the reality and untrue in their substance. The judgment of the lower court is perfectly just and proper and I do not find any infirmity and perversity therein. I fully concur with the findings of the lower court and to my firm view the impugned judgment does not call for any interference. In view of above, the State appeal stands dismissed. (M.C.BHAGWATI), J. Mak/- 17