IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.365 of 1998 Decided on: 13th July, 2010 State of H.P …..Appellant. VERSUS Datta Ram & anr. …..Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1No For the Appellant: Mr.Vivek Singh Thakur, Additional Advocate General with Mr.Rajesh Mandhotra, Dy.Advocate General. For the Respondents: Mr.Ashwani Sharma, Advocate. Deepak Gupta,Judge (Oral) This appeal by the State is directed against the judgement dated 14.1.1998 delivered by the Learned Additional Sessions Judge, Mandi in Sessions Trial No.13 of 1995 whereby he acquitted the accused of having committed offences punishable under Sections 452, 376, 325, 323 read with Section 34 of the Indian Penal Code. 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… 2. The prosecution case, in brief, is that on 23.11.1992 the prosecutrix who is a married woman was present alongwith her minor children in her house at village Dhaban Illaqua Hatgarh, Tehsil and District Mandi. Her husband, Sarwan (PW/2) was not at home since he used to work as a labourer. At about 8.00 p.m, the prosecutrix (PW/1) stepped out of her house to urinate. Both the accused persons saw her urinating and started molesting her. The prosecutrix requested the accused persons to go away, but in vain. Thereafter, the prosecutrix rushed to her home. The accused persons followed her to her house. Thereafter, the accused dragged her from her house to a field at a distance of 100 yards from her house. Then the accused forcibly made the prosecutrix lie down on the ground and thereafter, forcibly subjected her to sexual intercourse. When she resisted their advances, she was also beaten by them and she lost one tooth in the upper jaw during this scuffle. After committing the crime, the accused fled away from the spot. Thereafter, the prosecutrix came home. Her husband, PW/2 reached the house late at night on 23.11.1992. The prosecutrix told her husband about the unfortunate incident and it was decided to report the matter to the authorities. Thereafter, the prosecutrix and her husband visited the District Head Quarters at Mandi and filed a complaint Ext.PW1/A before the …3… Additional Deputy Commissioner, Mandi who, in turn, marked it for necessary action and forwarded the same to the Superintendent of Police, Mandi and it was directed that an FIR be registered. 3. On the basis of this complaint (Ext.PW1/A), an FIR, Ext.PW5/A was registered. After registration of the case, investigation was conducted by PW/6 Ramji Dass, SHO, Police Station, Balh and the statements of the witnesses were recorded. Thereafter, report under Section 173, Cr.PC was filed against the accused. They were charged with having committed the offences detailed here-in-above. They pleaded not guilty to the charges levelled against them and claimed trial. After trial, the accused were acquitted. Hence the present appeal by the State. 4. At the outset, we may note that the accused No.1 expired during the pendency of the proceedings. In view of this development, the appeal against respondent No.1 stands abated. Therefore, the appeal is heard qua respondent No.2 only. 5. No doubt, the law is well settled that conviction in the case of rape can be recorded even 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 …4… confidence. If the statement is full of holes and untruths then obviously, no reliance on such a statement can be made. In the present case, there is no explanation as to why the prosecutrix and her husband did not go to the police station. They have not stated that they went to the police station and the police did not record their complaint and, therefore, they had to go to the Additional Deputy Commissioner, Mandi. 6. A perusal of the complaint, Ext.PW1/A clearly indicates that it has been drafted by some person conversant with law probably a document or petition writer. Even in this complaint, there is no mention as to why the prosecutrix and her husband did not go to the police station. The facts stated in the original complaint also do not tally with the testimony of the prosecutrix recorded in Court. This complaint has been filed by the prosecutrix and there is no mention that the accused first accosted the prosecutrix when she had gone out to urinate. All that is mentioned in this complaint is that on 23.11.1992 at about 8.00 p.m, the accused persons entered the house of the prosecutrix, abducted her from her house and took her to a field where they raped her. Thereafter, the husband of the prosecutrix (PW/2) came home and on his enquiry, the young son of the prosecutrix aged about eight years informed his father that 2-3 persons had forcibly abducted the prosecutrix. Thereafter, PW/2 brought the …5… prosecutrix back from the field and she was unconscious at that time. The first version given in the complaint is totally different from the story now put up in Court that the prosecutrix had gone to urinate; both the accused dragged her to a field and raped her; she herself returned back home; her husband came late at night and then the prosecutrix informed him about what had happened. 7. Admittedly, even according to the prosecutrix and her husband, her nephew Sher Singh was present in the house when the occurrence took place. According to her, when she came back, her son and Sher Singh were present. It is also apparent from the statement of the prosecutrix and her husband that there were many other houses around the house of the prosecutrix. According to the prosecutrix, one Alam Deen and Hazaria had accompanied her from her village to Mandi. She further stated that in the night, they stayed in the house of Shakuntala before going to Mandi. Sher Singh, Alam Deen, Hazaria and Shakuntala who were the independent witnesses have not been examined to support the prosecution version. 8. In fact, during the course of the examination of the Investigating Officer, PW/6, the defence got proved the statement of Sher Singh recorded under Section 161, Cr.PC in which there is no allegation of rape and it was stated that the …6… prosecutrix was drunk and was beaten by her husband. The motive for falsely implicating the accused is also not difficult to find out. The prosecutrix admitted in her cross-examination that accused Datta Ram had instituted a criminal case against her husband. She also admitted that her husband had filed an appeal in a case where he was booked under the Excise Act. She admitted that there was hostility between the parties for the last many years. 9. In view of the contradictions pointed out above, the statement of the prosecutrix and her husband could not have been relied upon. The independent witnesses having not been examined, an adverse inference had to be drawn against the prosecution. As such, the learned Trial Court was fully justified in acquitting the accused. 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