IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.245 of 1993 Reserved on: 9.9.2008. Date of decision: Sept. 26, 2008 State of H.P. Appellant Versus Ratti Ram and another. Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice V.K. Ahuja, J. Whether approved for reporting1? No.. For the appellant: Mr. Rajesh Mandhotra, Dy. Advocate General. For the respondents: Mr. Bhupender Gupta, Sr. Advocate with Mr. Janesh Gupta. V.K.Ahuja, J. This is an appeal filed by the State of H.P. against the judgment of the Court of learned Special Judge (Sessions Judge), Sirmaur District at Nahan dated 2.7.1993 vide which the respondents were acquitted of the charge framed against them under Sections 450,376(2),323 and 506 read with Section 34 IPC and Section 3(xi) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Briefly stated, the facts of the case are that on 1.11.1991 at about 11.30 AM, a report was lodged by Smt. K (name not mentioned) accompanied by her husband, that on the night intervening 30/31.10.1991 at about 1.00 a.m. during the night time Whether the reporters of Local Papers may be allowed to see the Judgment? Yes she was sleeping in the kitchen of her house along with her children. Her husband was away to another village. Two persons entered her room whom she identified as Hem Ram and Ratti Ram who caught hold of her and Hem Ram kept a cloth on her mouth and Ratti Ram broke the string of her Salwar and both the persons committed rape on her one after the other. Blood started coming out of her vagina and she suffered some injuries on her body. On this report, a case was registered and after investigation, the challan was filed and the case was committed to the learned trial Court who tried the respondents as detailed above leading to their acquittal. We have heard the learned counsel for the parties and have gone through the record. The first infirmity pointed out by the learned counsel for the respondents about which a reference has been made, is that the prosecutrix Smt. K in her statement as PW-1, has come up with a plea that Hem Ram respondent had inserted a Danda into her vagina and she lost consciousness because of this. She had nowhere alleged in the report lodged by her Ex. PE at any time that one of the accused had inserted a Danda into her vagina or she lost consciousness because of this. Even in her supplementary statement recorded by the police under Section 161 Cr. P.C. on 2.11.1991, the prosecutrix did not state that any Danda was forced into her vagina by either of the two rapists. She was duly confronted with FIR Ex.PE and her supplementary statement under Section 161 Cr.P.C., in which these facts were not mentioned. This shows that the bleeding was not as a result of insertion of Danda into her vagina by any of the two accused and it was rightly observed by the learned trial Court that finding no explanation for the post octal bleeding, the police introduced a new story about the insertion of the Danda into her vagina, which made her unconscious leading to profuse bleeding. These observations have rightly been made since there was no mention in the FIR or in the supplementary statement about the insertion of a Danda or the prosecutrix becoming unconscious. The deposition of the prosecutrix as PW-3 and her daughter Gita Devi PW-4 are also falsified that the door had been chained by two of the respondents from outside and they threatened them not to make any noise about which there is no reference in the FIR. Apart from this, there was no mention in the FIR that besides Hem Ram and Ratti Ram, the alleged rapists, any other person was involved in the crime or were present outside the room where the prosecutrix was raped. There is no reference in the FIR that the daughter and two other sons of the prosecutrix who were in the adjoining room, saw two of the accused persons standing outside their room or two of the rapists coming out of the kitchen where their mother was raped. This clearly shows that the names of these two persons being present at the spot were subsequently added. Once attempts are made by the prosecutrix to falsely introduce the names of other persons who were not involved in the crime as per the FIR, the testimony of the prosecutrix becomes doubtful. There are some other infirmities in the statements of the prosecution witnesses. The prosecutrix as PW-4, has stated that before the two accused entered her kitchen, supply of electricity to her house had been disconnected by switching off the main switch and she saw the main switch off in the next morning. Further, it was stated by PW-4 Gita Devi that after breaking the chain by means of a Teesa, she went to the kitchen, she switched on the light and saw her mother lying unconscious. The prosecutrix had stated that she re-gained consciousness in the next morning and saw her three sons and the witness Ram Datt and Rikhi Ram, PW- 5 and PW-6, respectively present there though PW-4 Gita Devi has stated that her mother re-gained consciousness on the same night itself. In her statement, the prosecutrix has stated that she had been gagged by means of a Chaddar but in the FIR it was mentioned that one of the rapist had placed his hands on her mouth to prevent her from shouting. PW-4 Gita Devi had further stated that nobody came to their house on hearing their cries and that she and her brothers succeeded in opening the door after breaking the chain by means of a Teesa. However, both the witnesses Ram Datt and Rikhi Ram, PW-5 and PW-6, respectively, have not stated that they went to the house of the prosecutrix on hearing her shrieks and cries of the children and saw that room of their house was chained from outside and it was opened by one of them after un-chaining it. They, however, have stated that they went to the house of the prosecutrix at about 8.00 a.m. in the next morning on being called by the daughter of the prosecutrix. The prosecutrix was confronted with her police statement wherein, she has stated that when she re- gained consciousness after sometime she saw Rikhi Ram and Ram Datt standing in her kitchen and she was confronted with her statement mark ‘A’. She had admitted about the dispute with one/two of the accused persons which was pending in Panchayat. PW-5 Rikhi Ram when examined, had stated that when he asked the prosecutrix she told that she was having pain in her stomach and thereafter told that she had been assaulted on that night. However, she did not tell him the nature of assault on her. He also admitted some dispute with the accused persons. PW-6 Ram Datt has stated that when he reached the house of the prosecutrix on the next morning, he found her sitting in slumped condition, however, she did not state anything to him. Both these witnesses were also declared hostile by the prosecution. Keeping in view the infirmities in the statement of the prosecutrix and other evidence, the findings recorded by the learned trial Court holding that the prosecution has to failed to prove its case beyond any reasonable doubt, cannot be said to be perverse calling for interference by this Court, and, as such, there is no merit in the appeal, which is dismissed accordingly. Bail bonds of respondents stand discharged. (Deepak Gupta),J. September 26, 2008 (V.K.Ahuja),J. (sds)