IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.136 of 1999 Reserved on: 3.6.2010 Decided on: 13th July, 2010 State of H.P …..Appellant. VERSUS Rattan Lal …..Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the Appellant: Mr.Vivek Singh Thakur, Additional Advocate General with Mr.Rajesh Mandhotra, Dy.Advocate General. For the Respondent: Mr.Dinesh Kumar Sharma, Advocate. Deepak Gupta,Judge This appeal by the State is directed against the judgement dated 24.12.1998 delivered by the Learned Sessions Judge, Solan in Sessions Trial No.6-S/7 of 1996 whereby he acquitted the accused of having committed 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… an offence punishable under Section 376 of the Indian Penal Code. 2. The prosecution case, in brief, is that on 10.5.1995, the prosecutrix who was aged just about 13 years was present at her home alongwith her minor sister aged 11 years and two younger brothers aged 9 and 7 years. Her cousin, Kanshi Ram (PW/7) was also present in the house. Her parents were not at home as they had gone to attend a religious ceremony ‘Jagrata’ in village Barog. The prosecutrix was preparing the evening meals. The accused Rattan Lal came and helped her in preparing the meal. They all took their meals and thereafter, accused Rattan Lal, the prosecutrix and Kanshi Ram went to sleep in the courtyard of the house. At about 11.00 p.m, the accused gagged the mouth of the prosecutrix and dragged her by her arm to a field known as ‘Chouthi Bhagti’. He broke the string of her salwar and thereafter, raped her. The prosecutrix raised an alarm and on hearing her cries, her cousin Kanshi Ram (PW/7) and her younger sister came to the field and caught hold of the accused. PW/7 brought the accused to the house. The prosecutrix came back to her house from the field alongwith her younger sister. Next day, i.e., …3… on 11.5.1995 the prosecutrix lodged the report Ext.PW1/A with ASI Dhani Ram (PW/12) at village Neri Kalan. This report was sent to the Police Station, Parwanoo and on the basis of this report, FIR Ext.PW3/A was recorded by Inspector Kishori Lal, PW/3. 3. The prosecutrix was got medically examined by Dr.Mrs.Kamlesh Sharma (PW/8) at District Hospital, Solan. The accused was also got medically examined. After completion of investigation, the accused was summoned. He was charged with having committed the offence detailed here-in-above. He pleaded not guilty to the charges levelled against him and claimed trial. After trial, the accused was acquitted. Hence the present appeal by the State. 4. The prosecutrix appeared as PW/1. She has fully supported the case of the prosecution. However, there are some material improvements. According to her, when they came home from the field, she and her sister Krishna raised an alarm by crying loudly and on hearing their cries, PW/6, Sheesh Ram came from the nearby house. Thereafter, Sheesh Ram went to village Barog in the night itself and returned with the mother of the prosecutrix at 8.00 a.m next morning. Thereafter, she …4… was taken to the police where her statement was recorded. 5. Kanshi Ram, PW/7 also supported the prosecution story and deposed that on hearing the cries of the prosecutrix, he accompanied by Krishna went to the field and saw the accused lying on top of the prosecutrix. The salwar of the prosecutrix was kept on one side. Thereafter, both the prosecutrix and the accused were brought back to the house and alarm was raised. People from the surrounding houses were called and then Sheesh Ram, PW/6 came. According to this witness, Gurdei, the mother of the prosecutrix (PW/10) came on 11.5.1995 at about 1/1.30 p.m and thereafter, Gurdei and Sheesh Ram alongwith the prosecutrix went to the police station to inform the police about the incident. 6. No doubt, the law is well settled that conviction in the case of rape can be made only on the basis of the sole testimony of the prosecutrix and her testimony does not require corroboration in each and every case but this can be done only when the statement of the prosecutrix inspires confidence. If the statement is full of holes and untruths then obviously, no …5… reliance on such a statement can be made. In the present case, as found by the learned Trial Court, there are material inconsistencies in the statement of the prosecutrix which make her version unreliable and not worthy of credence. 7. According to the prosecutrix, she was forcibly dragged by holding her arm through stones and bushes to a field which is the fourth field from her house. According to her, she was dragged on the ground and due to such dragging, she sustained injuries on her person and on her back. Further according to her, the wheat field in which she was raped by the accused had stumps of harvested wheat. If this statement had been true, the prosecutrix would have had a number of injuries such as abrasions and scratches on her body. However, no such injuries were found by PW/8, Dr.Kamlesh Sharma who in fact, stated that in case the prosecutrix had been dragged to a distance of 25 to 30 feet, as alleged, then subjected to forcible sexual intercourse in a field having stumps of harvested wheat, the prosecutrix was bound to have injuries on her back. No marks of injury were found on any part of the body of the prosecutrix. PW/8 also found that the prosecutrix had not been subjected to …6… sexual intercourse in the last 48 hours. The prosecutrix was examined within 16 hours of the alleged rape. Therefore, the medical evidence does not support her version according to which, the prosecutrix had not had sexual intercourse for at least 48 hours prior to the examination. 8. The presence of PW/7, Kanshi Ram at the house of the prosecutrix is also extremely doubtful. Whereas initially it was stated that Kanshi Ram is the cousin brother of the prosecutrix when subjected to a detailed cross-examination, the prosecutrix as well as her mother had to admit that this witness is not a close relative but a cousin only by relationship in the village. 9. While lodging the FIR and in the original statement, there was no mention of PW/6 Sheesh Ram who allegedly went to inform the parents of the prosecutrix and he alongwith the mother of the prosecutrix, PW/10 returned to the house on 11.5.1995 and thereafter, went to lodge the report to the police station. The version of the mother of the prosecutrix and Sheesh Ram is that they were going to the Police Station at Parwanoo but at village Neri Kalan, they met ASI Dhani Ram and reported the matter to him. This version of the …7… prosecutrix, her mother and Sheesh Ram is falsified by the statement of PW/12 ASI, Dhani Ram. 10. ASI Dhani Ram appeared as PW/12. As per this witness, PW/7 Kanshi Ram accompanied by a few villagers came to village Neri Kalan where he had come to investigate some other case. Kanshi Ram and the villagers informed him that the prosecutrix had been raped and then he went to the spot and recorded the statement of the prosecutrix under Section 154, Cr.P.C (Ext.PW1/A). According to him, it was PW/7 Kanshi Ram who took him from Neri Kalan to the house of the prosecutrix. This is totally contrary to the version of the prosecutix and PW/7, Kanshi Ram according to whom, it was Sheesh Ram who went to village Barog to inform the parents of the prosecutrix and thereafter, Sheesh Ram alongwith Gurdei, mother of the prosecutrix (PW/10) lodged the report. It is obvious that this improvement was made to show the presence of Kanshi Ram and Sheesh Ram in the house of the prosecutrix. 11. Another discrepancy in the statement of the witnesses is that according to the prosecutrix and Kanshi Ram, Sheesh Ram, PW/6 left for village Barog to inform the parents of the prosecutrix on the night intervening …8… 10.5.1995 and 11.5.1995. However, Sheesh Ram gives a totally different version. According to him, he stayed for the whole night in the house of the prosecutrix and next morning left for village Barog to inform the parents of the prosecutrix and then Gurdei came back with him at 1.00 p.m. This timing of his coming back is also contrary to the statement of the prosecutrix according to whom, Sheesh Ram and her mother returned home at 8.00 a.m in the morning. Gurdei gives a third different version. According to her, Sheesh Ram reached village Barog at 10.00 a.m and she alonwith Sheesh Ram came back to the house at 3.00 p.m. Further according to her, they went to the police station and returned home at 5.00 p.m. This version is also different to the version of PW/12 Dhani Ram, referred to above. 12. There are other discrepancies in the case which make the presence of Sheesh Ram and Kanshi Ram extremely doubtful. According to Sheesh Ram, when at about 12 mid night, he went to the house of the prosecutrix, he found the prosecutrix and the accused totally naked. In his presence, they both put on their clothes. His version is that the accused only wore his underwear since his pants were lying in the field where …9… the prosecutrix had been raped. The version of PW/7 Kanshi Ram is totally different. According to PW/7, the pants of the accused were lying on the cot on which he was sleeping. Even as per the prosecutrix and Kanshi Ram, Sheesh Ram arrived about one hour after the incident. It is difficult to believe that for one hour, the prosecutrix and the accused remained totally naked. 13. There is another contradiction with regard to the apparel being worn by the accused. According to the prosecutrix by the time Kanshi Ram reached the spot where she was raped, the accused had already worn his underwear. This is contrary to the statement of Kanshi Ram who stated that the accused was lying on top of the prosecutrix. From the evidence on record, especially the statement of the doctor, it is apparent that the prosecutrix was not subjected to any sexual intercourse on the night intervening 10/11.5.1995. Therefore, the medical evidence also does not support the version of the prosecutrix. It is also apparent that the presence of Sheesh Ram and Kanshi Ram appears to be totally doubtful. 14. In view of the contradictions pointed out above, the learned Trial Court was fully justified in holding …10… that the prosecution has miserably failed to prove its case. Therefore, we find no reason to interfere in the judgment of the learned Trial Court. The appeal being without merit is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. July 13, 2010 (Sanjay Karol) (m) Judge