IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.142 of 1993 Reserved on : August 20, 2008 Decided on : September 2, 2008. State of H.P. …Appellant. Versus Paras Ram and others …Respondents. Coram The Hon’ble Mr. R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. P.K. Sharma, Additional Advocate General. For the Respondents : Mr. Raman Sethi, Advocate. Per Surjit Singh, Judge State has appealed against the judgment of the Sessions Court, whereby respondents, numbering five, who were tried for the offence of rape, punishable under Section 376 of the Indian Penal Code, have been acquitted. 2. Accusations, on which the respondents were charged with the aforesaid offence, may be noticed. Prosecutrix, aged about 44 years, is resident of village Bhianchak. Her cattle-shed is in village Bhianseri. On 5th July, 1989, around 8 p.m., when she was returning from her cattle- shed in village Bhianseri to her house in village Bhianchak and was passing by a Khud below village Buragran, she spotted all the five respondents sitting by the side of the path and Whether reporters of the local papers may be allowed to see the judgment? …2… consuming liquor. When she reached near them, they physically lifted her and carried her across the Khud to a forest of pine trees and there they removed her Salwar and all of them then committed rape on her, one after the other. They also forcibly administered liquor to her. Throughout the night, they kept on having sexual intercourse with her, without her consent and against her will and released her only at daybreak. The same day at 5.45 p.m., she reached the police station at Kullu and lodged FIR Ex. PG. Police got her medically examined. Doctor found certain scratch marks and abrasions on her legs and buttocks and opined that she was habitual to sexual intercourse. Her underwear and Salwar, which she claimed to have been wearing, at the time of the incident, were sealed in a parcel by the doctor, who conducted the medico legal examination, namely PW-8 Dr. Anita Vidyarthi, and were sent to the Chemical Examiner, who found spermatozoa on the underwear. No spermatozoa were found on the Salwar or the sample of pubic hair of the prosecutrix. Respondents were arrested and got medically examined. PW-1 Dr. R.C. Kapoor and PW-2 Dr. Jitender Lal, who conducted the medico legal examination, found nothing suggestive that the respondents were incapable of performing sexual intercourse. 3. Prosecution examined eight witnesses in order to bring the charge home to the respondents. Three of the witnesses were the doctors, who conducted the medico legal examination of the respondents and the prosecutrix. Another was the prosecutrix herself. She appeared as PW-4. One …3… witness was prosecutrix’ husband Dulu, who appeared as PW- 3. Investigating Officer of the case, namely Inspector Dharam Singh, appeared as PW-7. Evidence of PW-5 and PW-6 was of formal nature, as it linked the report of the Chemical Examiner with the underwear of the prosecutrix. Respondents denied having committed the offence or rape. They took the plea that there was a dispute between Ram Dass, father of one of the respondents, namely Paras Ram, and the husband of the prosecutrix, with regard to the Kardarship of the local deity and because of that they had been falsely implicated. 4. Learned Sessions Judge did not believe prosecutrix’ testimony observing that her statement was self- contradictory and also there were contradictions in her statement in the Court and the earlier version, which she gave to the police, vide FIR Ex. PG, and also there were contradictions in her testimony and the testimony of her husband, which suggested that truth had been suppressed. 5. We heard the learned Additional Advocate General and the learned counsel for the respondents at length and were taken through the entire evidence by them. 6. Investigating Officer of the case, namely PW-7 Inspector Dharam Singh, admitted in his cross-examination that it had been brought to his notice by several persons that on the fateful evening the prosecutrix was seen wandering in a drunken state at the site of a fair near the place of occurrence. Even though, the persons who had allegedly brought this fact to the notice of the Investigating Officer, were not examined …4… by the defence nor was any suggestion put to the prosecutrix on these lines, yet from an overall reading of the statement of the prosecutrix and her husband, we do feel that this part of the statement of the Investigating Officer is believable. In the FIR, Ex. PG, prosecutrix herself stated that liquor had been administered to her forcibly, at the time of the commission of the offence of rape. However, while in the witness-box, she stated that liquor was poured into her mouth forcibly by the respondents at 4 a.m., when they were leaving the place of occurrence. On the face of it, the contradiction does not appear to be of much significance but when seen in the light of the aforesaid admission by the Investigating Officer in the cross-examination, it assumes a great deal of importance. Change in the statement of the prosecutrix with regard to the timing when the liquor was allegedly administered to her by use of force, probably, is on account of the fact that she was visibly drunk even when she reached her home and her husband saw her. Finding no explanation for her being drunk, she stated that liquor had been administered to her forcibly. At the time of lodging of the report also, she stated such a fact but there she got recorded the time of administration of liquor to be the same when she was being raped, but while in the witness-box she probably forgot as to what time she had got recorded and stated that it was at 4 a.m. This contradiction, when seen in the light of the aforesaid statement of the Investigating Officer, suggests that probably the prosecutrix drank alcohol voluntarily, either in the company of the …5… respondents or elsewhere, and on being questioned by her husband about her being drunk, she concocted the story that liquor had been forcibly administered to her. 7. There are other contradictions in the testimony of the prosecutrix and her husband, which make prosecutrix’ version doubtful. In the FIR, prosecutrix got recorded that it was when she was returning from village Bhianseri to go to her house in village Bhianchak that she was waylaid by the respondents and taken across the Khud. But, while in the witness-box, she stated that it was when she was going to village Bhianseri to take care of her cattle that the respondents encountered her and forcibly carried her to the forest. When her attention was drawn to this contradiction in the course of the cross-examination, she stated that what she got recorded in the FIR, Ex. PG, was correct and that her statement in the Court that she was going to Bhianseri from village Bhianchak was incorrect. She, however, offered no explanation for this contradiction. The contradiction suggests that the story put forward by the prosecutrix for her presence at the site of the alleged incident at an odd hour of the night when her husband was away from the house, for the whole night, has been cooked up only to explain her absence from the house, which her husband noticed on return to the house next morning and saw her in a drunken state. 8. Also, there are contradictions in the statements of the prosecutrix and her husband, which again indicate that the story has been cooked up by the prosecutrix to satisfy her …6… husband about her absence from the house for whole night and her being in a drunken state. According to her husband, PW-3 Dulu Ram, the prosecutrix was naked and had covered her body only with a piece of cloth. The prosecutrix, however, says that she was wearing another set of clothes when her husband came. Again, she says that before going to the Police Station to lodge the report, she first went to Sheeshu, Member of Gram Panchayat, and complained to him about the incident, but he did not respond and that thereafter she went to attend the proceedings of her case before the Panchayat and that is why there was delay in lodging the FIR. Her husband, PW-3 Dulu Ram, however, stated that she did not go anywhere that day and kept sleeping upto 4 p.m. and that thereafter she went to the Police Station to lodge the report. Prosecution did not examine Sheesh Ram, Member of Gram Panchayat, to whom the prosecutrix allegedly complained nor did it lead any evidence to prove that the prosecutrix had in fact attended some case proceedings before the Panchayat, on the relevant date. Again, the prosecutrix says that she went to the Police Station wearing another set of clothes and carried with her the clothes which she was wearing at the time of the incident, but her husband stated that she washed the clothes which she was wearing at the time of the incident and that she went wearing those very clothes, even though they were still wet. 9. Looking to the above-noticed contradictions and inconsistencies, which render the version of the prosecutrix …7… doubtful, we do not think this to be a fit case for interference with the judgment of acquittal recorded by the trial Court. Consequently, the appeal is dismissed. ( R.B. Misra ), J. September 2, 2008(sd) ( Surjit Singh ), J.