S.B. Cr. Appl. No.219/1992 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. JUDGMENT The State of Rajasthan Vs. Unnis @ Unni (S.B. Criminal Appeal No. 219/1992) Date of Judgment : September 12, 2008 P R E S E N T HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr.B.K.Sharma, Public Prosecutor, for the State. Mr.Asgar Khan, for the accused-respondent. BY THE COURT: The challenge in this appeal is to the judgment dated 24 January, 1992 whereby, the learned Additional Sessions Judge, Kishangarhbas (Alwar) acquitted the accused-respondent Unnis @ Unni in the offence under Section 376/511 of IPC. 2. The nub of the appellant's story is:- That on 24 February 1990 at 4.00 pm the prosecutrix aged nine years was digging the grass near the field of Khatibas. It is alleged that Unnis @ Unni S/o. Mehmooda suddenly came and forcibly lifted her to the Mustard field and having taken off her salwar, laid her on the ground. It is further alleged that the accused gagged her mouth and forcibly efforted to penetrate his penis into her vagina who did not succeed and as a result of which, he being in a hurried heat discharged the semen on her body and cloths. The prosecutrix narrated this incident to her father Shri Sherdeen, who lodged the FIR Ex.P/1 in police station Tapukada, S.B. Cr. Appl. No.219/1992 2 District Alwar. The police registered the case and commenced investigation. The Investigating Officer recorded the statements of the witnesses, prepared the site plan Ex.P/2, arrested the accused and after usual investigation submitted the challan in the Court. In due course, the case came up for trial before the Additional Sessions Judge, Kishangarhbas, who read over the charge of the offence under Section 376/511 of IPC to the accused, who did not plead guilt and claimed trial. The prosecution examined in all five witnesses to prove its case. In his explanation under Section 313 of Cr.P.C., the accused-appellant claimed innocence. On completion of trial, the court acquitted the respondent as indicated hereinabove. 3. Heard the learned Public Prosecutor appearing for the State, Learned counsel for the accused-respondent and with their assistance scanned the material available on record. 4. Having reflected over the submissions advanced by both the parties and weighed the prosecution evidence, it is noticed that the prosecution case rests upon the sole evidence of the prosecutrix. Hence I feel appropriate first to record the observation of PW-3 Dr. Ram Kumar Mishra, who examined the prosecutrix on 16.02.1990. Vide medical examination report Ex.P/3, PW-3 Dr. Ram Kumar Mishra has observed thus:- “No marks of any injury over body. No marks of any stain, blood semen or dust present S.B. Cr. Appl. No.219/1992 3 over body. Axillary and pubic hair absent.” While examining her cloths, he observed:- “No marks of any stain, blood, semen or dust present over cloths. Cloths are not torn.” While examining her private parts, Dr. Mishra observed as under:- “No marks of injury on medial side of thighs, labia majora and minora. Hyman intact and not bleeding or inflamed or no dematos.” Pathological Report: “Spermatozoa not seen.” Opinion:- “No definite opinion is ascertained regarding rape.” 5. Now, adverting to the evidence of prosecutrix, in her deposition she has stated that when she was digging Bathua from the field of Dadakala, the accused Unni came and lifted her to the field of mustard. Thereafter, he took off her salwar, gagged her mouth with the shirt and while penetrating her penis into her vagina ravished her. She screamed loudly. Thereafter, the accused after fulfilling his wild lust, fled from there. She narrated the entire incident to her mother. In her cross-examination, she has stated that the accused penetrated his finger also in her vagina as a result of which the blood came out. Her thighs, breasts and cloths were stained with the blood and semen which he showed to her mother, father and doctor also. 6. It is pertinent to note that the prosecution case solely rests on the evidence of the prosecutrix. There is no ocular or other circumstantial evidence available on record to S.B. Cr. Appl. No.219/1992 4 support her testimony. Hence, duty is cast upon the court to shift the evidence of the prosecutrix very careful and cautiously. It is a settled law that the court can base the conviction of the accused solely on the evidence of prosecutrix, if it is found trustworthy and worthy of credence. If the evidence of the prosecutrix appears to be tainted, coloured and shaky, the corroboration of her testimony is required to convict the accused. 7. In the instant case, the report with regard to the commission of the offence of rape, has been lodged by the father of the prosecutrix PW-5 Sherdeen. The circumstances disclosed by the prosecutrix that the blood and the semen stains fell on her cloths and on her thighs and they were present when she was examined by the doctor, do not correspond with the medical examination report Ex.P/3 of the prosecutrix. 8. Absence of injury on any part of the body of the victim girl sometimes probabalises absence of any coitus. When no mark of injury or violence is found on any part of the body in support of having been ravished forcibly by the accused, it can safely be inferred that no rape was committed upon her. In the instant appeal, the police registered the case in the offence under Section 376/511 of IPC. In the verbal narration Ex.P/1, PW-5 Sherdeen reported that the accused endeavoured to penetrate the penis into the vagina but he did not succeed and the accused, in hurried heat, discharged the semen. But before Court, the prosecutrix improved her version and stated that the accused forcibly penetrated his penis into her vagina. It does not seem to be probable that when the accused forcibly endeavours to penetrate his penis into the vagina of a nine years old girl, the girl S.B. Cr. Appl. No.219/1992 5 sustains no injury on her genitals. Under such an application of force, not only that a little girl shall sustain the injury on her genitals but possibility of the accused having sustained injuries on his penis also cannot be ruled out. In the instant case neither any mark of violence or injury has been found on the private parts of the prosecutrix nor any injury has been seen on the penis of the accused. There is no other ocular or circumstantial evidential which supports the prosecution case. Hence, in view of this position, it is highly unsafe to believe the testimony of the prosecutrix. The evidence of the prosecutrix is found to be untrustworthy and unworthy of credence. The learned trial Judge has observed that the mother of the accused was made naked and tied to a tree because she was known to be a lady of bad character by the villagers. She was beaten also by the people. Hence, under this apprehension that the accused and other persons be involved in a case, PW-5 Sherdeen in defence precautionary lodged a false report in the police. The prosecutrix has supported this fact in her cross-examination. 9. In the ultimate analysis, the testimony of the prosecutrix is not found to be credible. Her statements do not inspire any confidence. The evidence of her mother and father is also found to be untrustworthy and unbelievable. The learned trial court has critically analyzed the prosecution evidence. The impugned judgment is cogent and well merited and does not suffer from any infirmity. The finding of the acquittal arrived at by the learned trial court is just and proper with which I fully concur and, in my firm view, the impugned judgment calls for no intervention. S.B. Cr. Appl. No.219/1992 6 10. For these reasons, the State appeal being devoid of merit stands dismissed. The accused-respondent is on bail. He need not surrender and his bail bonds stand discharged. (MAHESH BHAGWATI),J Mak/