IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 127 of 1999. Decided on: 25.05.2010. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Dilwar. …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1No. __________________________________________________________ For the appellant : Mr. Vivek Singh Thakur, Additional Advocate General. For the respondent : Mr. R.K. Gautam, Senior Advocate with Ms. Archana Dutt, Advocate. ---------------------------------------------------------------------------------------- Deepak Gupta, Judge(Oral) : This appeal by the State, is directed against the judgment dated 15.12.1998, delivered by the learned Additional Sessions Judge, Solan, Camp at Nalagarh in Sessions Trial No. 9-NL/7 of 1997, whereby the accused has been acquitted of having committed offences of attempting to rape the prosecutrix and causing simple injuries to her. 2. The prosecution story, in brief, is that the prosecutrix (PW-1) had gone to a place known as ‘Pipal Wala Ghatta. This place is situated next to a pond between village Reru and village Kalyanpur. The buffaloes had gone to graze in 1 Whether the reporters of the local papers may be allowed to see the judgment?. Yes. this area and the prosecutrix went to look after her buffaloes. She then went to one side in the bushes to ease herself. In the meantime, the accused, who is a resident of the same village, came and embraced her. He gagged her month with one hand and untied her Salwar with the other hand, and forced her to lie down on the ground. The prosecutrix managed to remove the hand of the accused from her mouth and raised an alarm. Thereafter, PW-2 Hem Raj and Naresh Kumar (not examined) reached the spot. Ram Partap (PW-4) and husband of the prosecutrix PW-6 Ram Dayal also came to the spot. Thereafter, husband of the prosecutrix lodged a complaint with the Police, on the basis of which, F.I.R. Ex.-PW-3/A was lodged. The prosecutrix was got medically examined. Other investigation was done and after completion of investigation, challan was filed against the accused. Accused pleaded not guilty and claimed trial. He has been acquitted after trial. Hence, this appeal by the State. 3. We have heard Mr. Vivek Singh Thakur, learned Additional Advocate General on behalf of the State and Mr. R. K. Gautam, learned senior counsel for the accused, and have gone through the entire record of the case. 4. The prosecutrix while appearing in the witness box stated that after she had gone to answer the call of nature, accused came and embraced her. She requested the accused to leave her, but he threw her on the ground. He closed her mouth with one hand and tried to open her Salwar with the other hand. She managed to remove his hand from the mouth and cried for help. On hearing her cries, Hem Raj and Naresh came to the spot. Many other persons gathered at the spot. Then, she was brought home. She then intimated her husband about the episode, who in turn, informed the Police and the Police recorded her statement Ex.-PW-1/A. In her cross-examination, she admitted that the houses of Hem Raj and Naresh are in the centre of village Reru and if one goes from the Pipal Wala Ghatta, the house of Hukam Deen comes first. She admitted that Hem Raj and Naresh are her nephews and Sham Lal and Ram Pratap are her brothers-in-law. 5. It would be pertinent to mention here that the prosecutrix in her statement has named Hem Raj as the person who first came to the spot. Hem Raj was examined as PW-2. According to him, at about 10:30 a.m., he heard the cries coming from Pipal Wala Ghatta. Then, he and his brother Naresh Kumar rushed towards the same and saw that their aunt, the prosecutrix had been caught by the accused and on seeing Hem Raj and Naresh Kumar, the accused fled away from the spot. The prosecutrix was holding her Salwar with one hand and the Dupatta was in her mouth. In cross-examination, this witness stated that none else except him and his brother Naresh reached the spot and later on, other persons reached at the spot. Initially, he stated that he did not chase the accused while he was fleeing, but later on he changed his version and stated that he chased the accused for a little distance only. He also stated that he did not himself see the accused embracing the prosecutrix, but simply saw him running away from the spot from a distance of 10 to 12 steps. He also admitted that the house of Hukam Deen is the first house from village towards Pipal Wala Ghatta 6. Ram Pratap (PW-4) is the brother-in-law of the prosecutrix. According to him, he heard the cries of the prosecutrix. First Naresh Kumar and Hem Raj rushed towards the spot and he also followed them. When he reached the spot, the accused ran away. In cross-examination, this witness stated that he with his own eyes saw the accused grappling with the prosecutrix and attempting to open her clothes. This is a false statement since Hem Raj (PW-2) has clearly stated that he only saw the accused running from the spot and did not see anything. Admittedly, Ram Pratap (PW-4) reached after Hem Raj and Naresh Kumar and, therefore, his statement that he saw the accused and the prosecutrix grappling with each other is totally false. His statement becomes unreliable on this account alone. 7. PW-6 is the husband of the prosecutrix. As noted above, according to his wife, she came home and told her husband about the incident. However, while appearing in the witness box, Ram Dayal, husband of the prosecutrix stated that he also went to the spot, but, by that time, the accused had fled away. He on the information received from his wife, reported the matter to the Police. 8. It is true that in a case of rape, the accused can be convicted on the sole statement of the prosecutrix and it is not necessary that her statement is to be corroborated in each and every case. However, there is an important caveat, i.e., that the statement of the prosecutrix should inspire confidence. In this case, the statements of the witnesses are contradictory. According to the prosecutrix, when she was easing herself, the accused came and tried to embrace her. In cross-examination she stated that she was tying her Salwar when this happened and therefore the Salwar fell down. On the other hand, in her own statement, she stated that the accused was using one hand to gag her mouth and one hand to untie her Salwar. If her Salwar was already open, the question of the accused untying the same did not arise. 9. Hem Raj (PW-2) has candidly admitted that he saw nothing and by that time he reached the spot, the accused was running away. Naresh Kumar was not examined by the prosecution. The statement of the brother-in-law of the prosecutrix Ram Pratap (PW-4) and the husband Ram Dayal (PW-6) do not inspire confidence because they have told lies as is apparent from what has been discussed above. The prosecution has miserably failed to prove that the accused, in any manner, tried to rape the prosecutrix. Therefore, the learned trial court was fully justified in acquitting the accused. In view of the above discussion, we find no merit in this appeal, which is accordingly dismissed. Bail bonds are ordered to be discharged. (Deepak Gupta), Judge (Rajiv Sharma) Judge May 25, 2010. (bhupender)