IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 237 of 1999 Date of Decision: 1.6.2010. State of H.P. …Appellant. Versus. Jai Ram and another …Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for Reporting? No. For the appellant: Mr. Rajesh Mandhotra, Dy. Advocate General. For the Respondents: Mr. Vinay Thakur, Advocate. Per Deepak Gupta, J. (Oral) 1. This appeal by the State is directed against the judgement dated 27.3.1999 delivered by the learned Sessions Judge, Solan in Sessions Trial No. 13-S/7 of 1998 whereby he acquitted the accused of having committed offences punishable under Sections 376, 506 read with Section 34 I.P.C. 2. The prosecution story in brief is that the prosecutrix is a migrant labourer from Bihar. She alongwith her husband worked as labourers in Parwanoo and had rented residential accommodation in village Tipra near Kalka, which was about three kilometers from Parwanoo. 2 3. In September, 1997 the prosecutrix was working as a painter with accused Jai Ram. According to the prosecution, on 27.9.1997 while the prosecutrix was working accused Jai Ram permitted her to go home at about 3.15 p.m. since she had to purchase medicines for herself. The prosecutrix then went to the Bus Stand, Parwanoo to take a bus for Kalka. In the meantime, accused came on a scooter and offered to give her a lift upto the barrier. However, near Shivalik hotel instead of going towards the barrier he took the road going to the upper side. When the prosecutrix asked him why he was not going towards the barrier he said he wanted to meet somebody. Then he took her above Shivalik hotel and parked the scooter and entered a nearby room. He then came out of the room, picked the purse of the prosecutrix and went inside the room. The prosecutrix followed him inside to get her purse back. Then the accused Jai Ram caught hold of her hand, gagged her mouth and forcibly forced her to lie on the bed and thereafter raped her. After the prosecutrix had been raped, she and the accused came out of the room. Two persons were standing there. They threatened the accused and the prosecutrix that they would intimate the police about the matter. Then accused Jai Ram offered Rs.300/- to Ram 3 Swaroop accused. Jai Ram accused then ran away from the stop and Ram Swaroop threatened Sushila and demanded that she have sex with him. On her refusal he raped her on a wooden table kept in a building which was still under construction. Thereafter, another old man came and tried to rape her but the prosecutrix manage to escape. She then walked to the road and met one lady Nisha. She then came to her quarter in village Tipra. 4. According to the prosecution, PW-2 Kanehya Lal, husband of the prosecutrix, returned from work at 10.30 p.m. The prosecutrix narrated to him the entire occurrence. They did not go to report the matter to the police on the next day since they did not have any money and F.I.R. Ext.PW-1/A was lodged at 3.30 p.m on Monday i.e. 29.9.1997. The prosecutrix was got medically examined in ESI hospital, Parwanoo from PW-10 Reeta Nair on 30.09.1997. Further investigation in the matter was got done and after completion of investigation, challan was filed against the accused. The accused were acquitted and hence, the present appeal by the State. 5. The law is well settled that in a case of rape, the statement of the prosecutrix does not require corroboration and the accused can be convicted solely on the basis of the statement of the prosecutrix. However, 4 there is one important caveat i.e. that the statement of the prosecutrix should inspire confidence. In the present case, we find that her statement is full of contradictions and does not inspire confidence and therefore, the learned trial Court was justified in not relying upon her statement. 6. First of all, there is unexplained delay of more than two days in lodging the F.I.R. According to the prosecutrix when she came back on the road she met Nisha. Nisha has not been examined. The prosecutrix stated that she never mentioned to Nisha what had happened to her. She did not inform anybody in the village about the rape. This may also be understandable since a woman may not want to tell other persons that she had been raped without first talking to her husband. Even according to the prosecution, the husband came back late at night. Nothing prevented them from coming back to Parwanoo immediately itself since admittedly the distance between their village and Parwanoo is less than three kilometers. Assuming that they did not want to come late at night, there is no explanation worth the name as to why they did not come the next day i.e. on Sunday. The prosecutrix and her husband would have the Court believe that they did not have any money and 5 therefore did not come to the Police Statin. No money is required to walk for three kilometers. Even the story that she had no money does not appear to be correct because according to her she left her work early because she had to purchase medicines. She must have had money to purchase medicines. Admittedly, she never purchased any medicines. The money must have been in her purse. Another reason to doubt her version is that according to her accused Jai Ram enticed her by grabbing her purse and taken her into the room. If there was no money in the purse she would not have followed Jai Ram to get the purse. 7. There are other reasons to doubt the statement of the prosecutrix. According to her she was to go to Kalka and the accused offered her a lift only upto the Parwanoo barrier. Hotel Shivalik is just a few hundred meters short of the Parwanoo barrier. If the accused was going off the main road she could have easily asked him to drop her and she could have walked further and caught the bus for Kalka from the barrier. 8. In fact from the allegations made we are of the opinion that the accused Jai Ram and Ram Swaroop could not have been tried jointly. There is not even an iota of evidence to show that they were working in tandem with 6 each other. In fact the prosecution case is that after Jai Ram had raped the prosecutrix and came out of the room Ram Swaroop threatened Jai Ram as well as the prosecutrix that he would inform the police about what had happened. If the prosecutrix was not a consenting party she would not have been scared of the police being called. There was another person with Ram Swaroop who has neither been named nor examined in the Court. Who this person is, remains unexplained. According to the prosecutrix on Monday i.e. 29.9.1997 she and her husband went to the Police Station at about 10.30 a.m but the perusal of the F.I.R shows that it was recorded at 4.30 p.m. There is an unexplained delay of four hours during this period also. 9. PW-2 Kanehya Lal, husband of the prosecutrix, stated that he could not come to the Police Station on Sunday since he had no money and the factory was closed. Therefore, on Monday he went to the factory contacted the factory Manager and apprised him of the incident. The factory Manager took him to the Managing Director of the factory who advised him to report the matter to the police and assured him that all the money required would be provided to him. Then he came to the Police Station alongwith his wife. This means that the 7 prosecutrix was with him when he went to the factory Manager and the Managing Director. Neither the factory Manager nor the Managing Director of the factory have been examined in Court. In fact, the prosecutrix has stated that she never went with her husband to the factory nor she met the factory Manager and the Managing Director. According to her version both of them went from Tipra straight-way to the Police Station. 10. The Investigating Officer PW-9 M.P.Baam admitted that he had investigated the matter and questioned the factory Manager of the factory where PW-2 husband of the prosecutrix was working. According to him, the factory Manager told him that PW-2 never met him or the Managing Director and therefore, he did not deem it fit to record their statements. 11. In view of the above discussion, it is apparent that there is unexplained delay in lodging the F.I.R. and therefore, the chance of the accused being falsely roped in the case, cannot be ruled out especially when PW-1 and PW-2 i.e. the prosecutrix and her husband have taken totally conflicting stands and have taken up a false plea to explain the delay. 8 In view of the above discussion, we find no merit in the appeal which is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. 1st June, 2010 ( Sanjay Karol ) ™ Judge.