IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.A. No. 59 of 1995 Date of Decision: 31st October, 2008. State of H.P. …Appellant Versus. Hari Ram @ Singhu and others .. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K.Ahuja, Judge. Whether approved for Reporting? No For the Appellant(s): Mr. R.M.Bisht, Dy.A.G. For the Respondent(s): Mr. Ashwani Sharma, Advocate. __________________________________________________________________ Deepak Gupta, J. This appeal is directed against the judgment of the learned Sessions Judge, Mandi dated 4.3.1994 passed in Sessions Trial No.29 of 1993 whereby he has acquitted the respondents-accused of having committed offences punishable under Sections 366 and 376 IPC. The prosecution case, in brief, is that on 25.10.1992 the prosecutrix was returning to her village from the jungle after grazing her cattle. When she reached near Nalli the accused came there in Taxi No.HP-02-0300 and forcibly dragged the prosecutrix inside the taxi and drove the same to Ghatasani. There the prosecutrix was subjected to forcible intercourse by the accused Hari Ram. From Ghatasani the prosecutrix was taken in the same vehicle to Ghoghardhar where she was allegedly raped by accused Rajesh Kumar and Biri Singh. In the same taxi she was then taken to village - 2 - Padhar. At Padhar Biri Singh and Rajesh Kumar left. Accused Hari Ram then took the prosecutrix in the said taxi to Narla where she was again subjected to forcible sexual intercourse. Since the prosecutrix did not return to her home in the evening of 25.10.1992 after grazing her cattle, her family members started searching for her. Since they could not trace the prosecutrix, on the next day i.e. 26.10.1992 PW Durga Dutt brother of the prosecutrix lodged a complaint with the police. His statement Ext.PC was recorded under Section 154 Cr.P.C. In the meantime PW Ramakant (brother of the prosecutrix) and his wife Bhagwati found the prosecutrix in a taxi at Narla. The police party and the complainant also reached Narla. The taxi and other articles were seized. The prosecutrix was medically examined in civil hospital Jogindernagar. The Salwar, Vaginal swab and pubic hair of the prosecutrix were handed over by the doctor to the police and then sent to the Forensic Science Laboratory. The Laboratory submitted its report Ext.PK in which blood stains were detected on the salwar and the vaginal swab, semen and blood was found on the pubic hair. On the basis of the aforesaid investigation challan was filed against the accused. After recording evidence the learned trial Court came to the conclusion that no case was made out against Rajesh Kumar and Biri Singh and they were acquitted. Accused Hari Singh was called upon to put in his defence. After trial all the accused have been acquitted. Hence, the present appeal. - 3 - The statement of the prosecutrix was recorded under Section 161 Cr.P.C. in which she gave the version as has been set out above. However, in Court the prosecutrix gave a totally different version. In cross examination this witness admits that she was sitting on the front seat of the taxi. She admits that she had made a statement to the police under Section 161 Cr.P.C. In the said statement there is no mention of the prosecutrix being subjected to sexual intercourse by the accused at Ghoghardhar. She admits that when Ramakant and Bhagwati arrived at Narla she was sitting in the front seat of the taxi. The accused driver was also sitting in the driver’s seat. Contrary to this, in the examination-in-chief she states that the driver had jumped out of the taxi and fled away when Ramakant and Bhagwati came there. She has resiled from her statement under Section 161 Cr.P.C. on various aspects. She admits that both Narla and Padhar are large villages. She also admits that she never called for help at Ghatasani, Ghoghardhar, Padhar or Narla. In cross examination by the other accused she states that she was dragged in the taxi by Hari Ram accused alone and not by other accused and that she could not recognize the other two accused. In cross examination she has also stated that at Ghoghardhar she was raped inside the taxi whereas in her statement under Section 161 Cr.P.C. she states that she was raped in the jungle. Similarly she states that at Ghatasani she was raped inside the taxi whereas in her statement under Section 161 Cr.P.C. she has stated otherwise. - 4 - The law is well settled that conviction in a case of rape can be ordered on the sole testimony of the prosecutrix so long as the statement of the prosecutrix inspires confidence. In the present case the statement of the prosecutrix does not inspire confidence at all. The prosecutrix was admittedly aged 21-22 years at the time of the occurrence. She was a major. In her statement under Section 161 Cr.P.C. as well as in examination-in-chief she has identified accused Rajesh and Biri Singh as the two other accused who raped her. However, in cross examination she states that she did not know other two accused nor could she recognize them since it was dark. The prosecutrix admits that she was sitting on the front seat of the taxi when she was openly taken from one village to another. She admits that she made no attempt to call for help. The Doctor PW-1 who examined the prosecutrix has opined that there were no signs of violence on the prosecutrix and no fresh injury to her private parts. The prosecutrix has changed her version with regard to the place where she was raped. Whereas in her statement in Court she states that in all three places she was raped inside the taxi, in her first statement recorded by the police she stated that at Ghatasani and Ghoghardhar she was raped outside the vehicle. Ramakant PW-7 is the brother of the prosecutrix. He and his sister-in-law Bhagwati found the prosecutrix at Narla. He states that they saw the taxi at about 5 a.m. Then they knocked at the window on the driver side. The driver Hari Singh got down from the taxi and ran away. PW- Durga Dutt reached there at about 1-1.30 p.m. with the - 5 - police. It is not explained as to why no action was taken to call the police from 5 a.m. to 1 p.m. i.e. for almost 8 hours. PW-6 Durga Dutt who is the other brother of the prosecutrix states that they reached Narla at about 4 p.m. and the prosecutrix was standing outside the taxi. This is totally contrary to the version of Ramakant. The version of the prosecutrix that she was forcibly dragged into the taxi is not believable on account of the fact that she admittedly did not try to raise any alarm. It is not her case that her mouth had been gagged or that she had been threatened by the accused. The Medico Legal Report of the prosecutrix indicates that the prosecutrix was habituated to sexual intercourse. There are contradictions in her statement with respect to the place where she was actually raped. There is no explanation why if her brother Ramakant and sister-in-law Bhagwati had seen her at 5.30 a.m. her recovery is shown to be at 3.30 p.m. Keeping in view the aforesaid discussion, we are of the considered view that the judgment of the learned Sessions Judge is absolutely correct and does not call for any interference in appeal. Accordingly, we find no merit in the appeal which is accordingly rejected. Bail bonds furnished by the accused are discharged. ( Deepak Gupta ), J. October 31, 2008. ( V.K. Ahuja ),J. PV