IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 215 of 1995 Reserved on : 16.04.2009. Date of decision: 18.04.2009 State of H.P. …. Appellant. Vs. Surender Kumar ... Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. The Hon’ble Mr. Justice V.K.Ahuja. Whether approved for reporting?1 No. For the appellant: Mr. R.M.Bisht, Deputy Advocate General. For the respondent: Mr. Ramakant Sharma, Advocate. Per Deepak Gupta, J. This appeal by the State is directed against the judgement of the learned Sessions Judge, Mandi, Kullu and Lauhal-Spiti Districts at Mandi in Sessions trial No. 38 of 1993 decided on 31.5.1994, whereby he acquitted the accused of having committed an offence punishable under Section 376 IPC. The prosecution story, in brief, is that on 12.9.1992 the prosecutrix, who is a married lady, was in her house in village Kandhla. She and her two children were sleeping in one room whereas her sister-in-law Thakari Devi was sleeping in another room. Her husband, PW-6 Murari Lal had gone to village Got. Between 9 and 10 p.m the prosecutrix came out of her room as she wanted to urinate. According to her, the accused, who was present outside her house, gagged her mouth and took her towards the cow shed where he subjected her to forcible sexual intercourse. She states that she resisted the advances of the accused but could not raise a hue and cry since during this entire process her mouth was gagged. While rape was being committed on the prosecutrix, her husband suddenly came to the spot. He pulled away the accused from his wife. The accused ran away from the spot. 1 Whether the reporters of the local papers may be allowed to see the Judgment . yes. 2 The matter was reported to the police next day i.e. 13.9.1992 at 4.45 p.m and F.I.R. Ext.PB was recorded. The prosecutrix as well as the accused were medically examined and the clothes, etc. of the prosecutrix were got chemically analysed. On the basis of the investigation, the accused was charged for having committed an offence punishable under Section 376 IPC. He pleaded not guilty and denied the entire charge. The trial Court acquitted the accused. Hence the present appeal. We have heard Shri Ram Murti Bisht, learned Deputy Advocate General for the State and Shri Ramakant Sharma, learned counsel for the respondent. At the outset, we may note that the prosecutrix is a grown up woman having two children. She was a married woman and from the facts proved by the prosecution witnesses it is apparent that the husband of the accused returned home late at night and found that the accused was having sexual intercourse with his wife. The only question which arises is whether this sexual intercourse was with the consent of the prosecutrix or against her wishes. The prosecution has relied upon the statement of the prosecutrix, wherein she says that she was subjected to sexual intercourse against her wishes. By now, the law is well settled that the conviction of an accused in a rape case can be rendered on the sole testimony of the prosecutrix if the same inspire confidence. In the present case, the statement of the prosecutrix does not inspire confidence at all. According to the prosecutrix, after she had urinated, the accused suddenly reached the spot. He gagged her mouth and then carried her over his shoulder to the cow-shed. He then broke open the string of her Salwar and then subjected her to sexual intercourse. This story cannot be believed for various reasons. Firstly, it is not possible for a person to over power and carry a fully grown woman on his shoulder and keep her mouth gagged at the same time. The prosecutrix 3 does not say that she was threatened or that the accused had shown her some weapon. Her only explanation is that her mouth was gagged. It cannot be believed that for this entire period during which the accused allegedly over-powered the prosecutrix, carried her on her shoulder, broke the string of her Salwar, opened his paints and then committed sexual intercourse with her, he could have used one hand to gag her mouth. According to the prosecutrix, when the accused took her to the cow-shed, he threw her down on the ground. Her mouth could not have been gagged at that time and she could have raised an alarm. She was just outside her house and there are number of other houses closeby and if she had raised an alarm somebody would have woken up. The accused could not have opened the string of the Salwar of the prosecutrix and opened his pants and simultaneously continued to keep the mouth of the prosecutrix gagged. If the story of the prosecutrix is to be believed that she had resisted the advances of the accused then some injuries would have been found on her person and some injuries on the person of the accused. Only three injuries have been found on the person of the prosecutrix. Out of these, one injury on the leg even according to the prosecutrix was sustained by her while she was cutting wood. The other two injuries are a laceration and an abrasion and according to the opinion of PW-1 Dr. Usha Vaidya, who conducted the medical examination of the prosecutrix on 15.9.1992 at 3.15 p.m these injuries were more than 72 hours old. The prosecutrix was allegedly raped on 12.9.1992 at about 9 and 10 p.m. Therefore, the injuries should have been less than 72 hours old. As such, these injuries are not co- related with the alleged rape. No injuries has been found on the person of the accused. It is obvious that the prosecutrix had never raised an alarm and she was a consenting party to the sexual intercourse. She cooked up a false 4 story only due to the fact that her husband reached the spot and caught her indulging in a sexual act with the accused. Keeping in view all these factors, we are of the considered opinion that the learned trial Court rightly acquitted the accused. The said judgement calls for no interference. The appeal is, therefore, dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. (Deepak Gupta), J. April 18, 2009. ( V.K.Ahuja ), J. ™