IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 656 of 1996. Decided on: 29.04.2010. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Ved Parkash. …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1No. __________________________________________________________ For the appellant : Mr. Vivek Thakur, Additional Advocate General. For the respondents : Mr. N.D. Sharma, Advocate. ---------------------------------------------------------------------------------------- Deepak Gupta, Judge(Oral) : This appeal by the State is directed against the judgment dated 21.11.1995, delivered by the learned Sessions Judge, Shimla in Sessions Trial No. 7-S/7 of 1995, whereby he acquitted the accused of having committed an offence punishable under Section 376 of the Indian Penal Code. 2. The prosecutrix is a married lady, who was aged about 25 years at the time of the alleged occurrence. According to her, when she was returning to her house after completing her work, she met the accused on the way. He caught hold of the prosecutrix by her arm. The prosecutrix raised a hue and 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. cry, but the accused pressed her throat. The accused tore her clothes and forcibly committed sexual intercourse with her. Immediately thereafter, the prosecutrix went to her hut and reported the matter to her husband. Thereafter, they both went to the house of PW-2 Sudhir Chauhan, with whom the prosecutrix was employed, who advised them to report the matter to the police. He took them to the Police Station, Kotkhai, where the matter was reported. Next day, the police came on the spot. The pieces of the broken bangles of the prosecutrix were seized from the spot vide memo Ex.-PW 1/C. The clothes which the prosecutrix was wearing, were taken into possession vide memo Ex. PW 1/B. The accused was also arrested and his clothes were taken into possession vide memos Ex. PW-1/A and Ex.-PW 1/B. The Investigating Officer H.C. Shyam Chand (PW-6) recorded the statement of the prosecutrix and prepared the site plan Ex.-PW 6/A. Both, the prosecutrix and the accused were got medically examined. Thereafter, the challan was filed against the accused, who was charged with having committed the offence aforesaid. After trial, he has been acquitted, hence, the present appeal. 3. We have heard Mr. Vivek Thakur, learned Additional Advocate General on behalf of the State and Mr. N.D. Sharma, learned counsel for the accused. 4. The prosecutrix was examined as PW-1. She repeated what was stated in the complaint. She admitted that she is employed with Sudhir Chauhan (PW-2). She admitted in cross-examination that there were houses at a distance of 100 yards from the place of occurrence. She also admitted that the path where the accused met with her, was a busy path adjoining the road. She also stated that she did not receive any injury on her person. According to her, when the accused caught hold of her, she struggled and scratched the face of the accused with her nails. She also stated that she received injuries on her throat. She admitted that other than her husband and PW-2 Sudhir Chauhan, she had not disclosed about the incident to any other person. A suggestion was put to this witness, which she denied, that she had lodged a false complaint against the accused at the instance of PW-2 Sudhir Chauhan. 5. PW-2 Sudhir Chauhan has only stated that the prosecutrix and her husband came to him and informed him about the incident, and then he took them to the Police Station. He has denied the suggestion that he instigated the prosecutrix to lodge a case because of his business rivalry with the accused. 6. PW-3 Tul Bhadur is the husband of the prosecutrix. According to him, when his wife came to the Dera, he noticed injuries on her face. 7. PW-4 Dr. Sarita Chauhan examined the prosecutrix. She found no evidence of struggle on any part of the body of the prosecutrix. She also found that the prosecutrix was sexually well developed and habitual to sexual intercourse. The Salwar of the prosecutrix was sent to the Chemical Examiner. The Chemical Examiner found that human semen was present on the Salwar of the prosecutrix. This witnesses admitted that in the case of a grown up married lady, if attempt of forcible sexual intercourse is made, injuries are likely to be caused to the prosecutrix as well as to the accused. The doctor has also issued certificate Ex.-PW 4/B, in which she opined that there is no evidence of sexual violence with the accused. This by itself, virtually shatters the prosecution version. 8. The doctor, who had examined the accused, was not produced in the court. Though the M.L.C. of the accused was exhibited as Ex. PW 6/B, however, in the absence of the statement of the doctor, the contents of the said M.L.C. cannot be taken to be proved on record. 9. The site plan Ex.-PW 6/A was prepared by the Investigating Officer PW-6. This shows that the place where the prosecutrix was allegedly raped, is next to a pedestrian path and at a very short distance from two main roads. There are a number of houses near the place of occurrence, which fact has been admitted by the prosecutrix also. If the prosecutrix had raised a hue and cry or struggled, there is no reason why some persons from the houses would not have come to her rescue. No doubt, the law is that in cases of rape, the accused can be convicted on the sole testimony of the prosecutrix, but such testimony must inspire confidence. In the present case, first the prosecutrix stated that she had not suffered any injuries, but later she stated that she suffered injuries on her throat, which fact was not supported by the medical evidence. According to the Investigating Officer, he found a number of injuries on the person of the prosecutrix, however, he admitted that he did not record the factum of such injuries being noticed by him in any contemporaneous record. The prosecutrix alleged that she had scratched the face of the accused with her nails, but the prosecution miserably failed to prove this fact and there is no evidence on record to show that the accused suffered any scratches. 10. We are dealing here with a case where the prosecutrix is a grown up woman of 25 years of age belonging to the labour class. If she had struggled and raised a hue and cry, that too in an open public area, the accused could not have had sexual intercourse with her. There are no marks of injury on the person of either the accused or the prosecutrix. In fact, the doctor has clearly opined that this is not a case of sexual violence. The version of the prosecutrix does not inspire confidence at all and stands contradicted by the medical evidence. The site plan clearly indicates that the occurrence, if any, took place in an inhabited area. Therefore, the learned trial court was justified in holding that the prosecution has miserably failed to prove that the accused was guilty of having committed offence under Section 376 of the Indian Penal Code. We, therefore, find no merit in this appeal, which is accordingly dismissed. Bail bonds are ordered to be discharged. (Deepak Gupta), Judge (Rajiv Sharma) Judge April 29, 2010. (bhupender)