IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 304/1996 Decided on: 20.4.2010 _____________________________________________ State of Himachal Pradesh. …Appellant. Versus Chaman Lal and others. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Deepak Gupta, Judge. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1No For the Appellant : Mr. Vivek Thakur, Addl. Advocate General with Mr. Rajesh Mandhotra, Deputy Advocate General. For the Respondents: Mr. Neel Kamal Sharma, Advocate for respondents No. 1 and 2. Mr. Ajit Saklani, Advocate vice Mr. Rajiv Jiwan, Advocate for respondents No.3 and 4. ____________________________________________________ Deepak Gupta, J (oral). This appeal by the State is directed against the judgment dated 22.4.1995 delivered by the learned Sessions Judge, Bilaspur in Sessions Trial No. 11 of 1992, whereby the accused have been acquitted of offences punishable under sections 366 and 376 read with section 34 of the Indian Penal Code. 2. The prosecutrix lodged a complaint Ex.PA with the Police Station, Ghumarwin on 30.5.1991 at 3.00 P.M. The relevant facts 1 Whether reporters of the local papers may be allowed to see the judgment? . Yes 2 stated in the complaint were that the complainant is a widow and earns her livelihood by selling milk in Ghumarwin. She had two grown sons, who were married. On 29.5.1991 at about 8.00 P.M., she had gone to Ghimarwin Bazar for personal work and was returning to her village Marhole. At that time two persons, who work in a liquor vend, came from behind in a Maruti van and asked her to procure some girl for them. When she refused to do so, they forcibly took her into the van in which one other person was already sitting. Those persons caught hold her from arms and made her forcibly lie on the seat. She was prevented from freeing herself. The tape recorder of the Maruti van was switched on at a high volume and the taxi started moving towards Nihari. When the taxi reached the bridge over Seer Khud, one other person having a beard, got into and sat on the front seat of this taxi. Though the prosecutrix tried to get up, she was prevented from doing so by the accused persons. Then they took the van to Bharari Rest House where she was forcibly taken to a room. The room was locked from the outside. Then one tall person removed her clothes and raped her. Thereafter another short person, who works in liquor vend came inside the room and raped her. Then she was raped by a third person, who was working as a Forest Guard. They also threatened to kill her if she told anyone about the occurrence. Then the bearded person came into the room, but he did not do anything to her. She then wore her clothes and thereafter another person came and brought meals for her, but she did not eat the food and taking advantage of the open door, 3 ran away and reached her home at 3.00 A.M. She thereafter had a bath and the clothes, which she was wearing, were kept in the house. In the morning, she came to know that the tall person and the short person work in the liquor vend and one person was a Guard in the Forest Department. She also came to know that fourth bearded person was the owner of the taxi. 3. On the basis of this statement, FIR was lodged. The prosecutrix was medically examined. The accused were arrested. They were also medically examined. The clothes of the prosecutrix, the cover of the mattress, the bed sheet and the curtains of the Rest House were taken into possession and sent to Chemical Examiner for analysis. After completion of the investigation, report under section 173 of the Code of Criminal Procedure was filed with the concerned Magistrate. Since the offences were triable exclusively by the Court of Sessions, the case was committed to the Court of Sessions. The accused were summoned and charged with having committed the offences detailed hereinabove. They pleaded not guilty and claimed trial. After trial they have been acquitted. Hence, the present appeal by the State. 4. The legal position in a case of rape, especially in gang rape, is very clear. Conviction of the accused can be based on the sole testimony of the prosecutrix. It is not necessary that in every case there should be corroboration of the statement of the prosecutrix. However, there is an important caveat, i.e. that the statement of the prosecutrix should inspire confidence. In case 4 the statement of the prosecutrix is truthful and the Court feels that it is safe to rely upon the same, it is not necessary to seek corroboration. However, if the statement is full of holes and does not inspire confidence, the testimony of the prosecutrix must be discarded and the accused cannot be convicted. 5. The version given by the prosecutrix in the complaint has been given in detail in the preceding paragraphs. The prosecutrix while appearing in the Court as PW-1 has made material changes in her statement, which renders her testimony doubtful. Whereas in her initial statement, she had stated that two persons, namely, Surinder Kumar and Chaman Lal, who work in a liquor vend caught hold of her and forced her into taxi and only one other person was sitting in the taxi, while appearing in the Court, she stated that two persons had forced her into the taxi, a third person (accused Kailash Chand) was sitting in the taxi and the fourth person (accused Surender Kumar) was driving the taxi. Whereas in the complaint, the prosecutrix had stated that the vehicle was taken towards Nihari and then stopped near Seer Khud where the fourth person got into the taxi and sat on the front seat, in her statement in Court, she stated that she did not know in which direction the taxi was taken. She also stated that the taxi was never stopped and no other person got into the taxi. Whereas in her complaint Ex.PA, the complainant had stated that she was raped by three persons while appearing in Court, she stated that she was raped only by two persons, i.e. Surinder Kumar and Chaman Lal. She, in fact, took a total ‘U’ turn and stated that she 5 had never seen Surjit Kumar accused. She did not know accused Surjit Kumar and according to her he was not even present on the day when the occurrence took place. 6. The most important contradiction comes thereafter. According to the prosecutrix, on the next morning after taking bath, she again collected the milk and proceeded to Ghumarwin to sell the milk. After she had sold milk, she was returning home. She had no intention to lodge any complaint. However, at that time accused Chaman Lal and Surender Kumar came in a van, which was being driven by accused Surender Kumar and they tried to run over the prosecutrix. Then the van was stopped. The prosecutrix caught hold of Surender Kumar from the collar but he slapped her. It was only thereafter that she went to Police Station, Ghumarwin and lodged the complaint at 3.00 P.M. 7. According to the prosecutrix when she went to the Police Station, she again did not make any complaint that she had been raped. Her version is that she only told the police that the two accused had tried to run her over with the van. Her explanation is that she did not talk about the occurrence of the previous night to save the prestige of the accused. To say the least, this explanation is ridiculous and unbelievable. Why would a woman, who had been raped and on whose life an attempt was made, try to protect the prestige of those persons? 8. According to the prosecutrix it is thereafter that the police accompanied her and they went to the liquor vend where she identified two of the accused. This portion of the story is not 6 supported by the other evidence. The FIR was lodged at 3.00 P.M. in which complete details have been given as set out hereinabove. There was no mention in the FIR or in any other record that any attempt was made to run over the prosecutrix. Even the Investigating Officer PW-12 Sh. Dalip Singh has clearly stated that the prosecutrix had not disclosed to him that accused Chaman Lal and Surender Kumar had tried to run over her with a van. PW-5 Sh. Anil Kumar states that he alongwith prosecutrix and the Station House Officer (SHO) had gone to Ghumarwin Bazar where she identified the two persons, one sitting in the taxi No. HP-02-0046 and one standing in front of the liquor vend as the persons, who had kidnapped her. This is totally contrary to the version of the prosecutrix that she identified the two accused in the liquor vend as the persons, who had tried to run her over. 9. PW-2 Sh. Jagdish Chand was working as the Chowkidar in the PWD Rest House on that day. He is otherwise regularly employed as Mali in the Rest House. He stated that four persons came in a van and he identified accused Chaman Lal and Surender Kumar. According to him, they all took liquor in the rest house. In his statement in Court, he did not support the version that these persons were accompanied by a woman on that day. Surprisingly, this witness was not declared hostile by the prosecution. Therefore, his statement, which is in favour of the defence, has to be accepted at its face value. 10. PW-4 Sh. Rakesh Singh is the person, who was posted in the Forest Range Office as Chowkidar. According to him, he was 7 not present in the rest house on that relevant day. The prosecution has failed to produce the person, who allegedly provided meals to the prosecutrix in the Rest House. He could have been one of the best witnesses to the case. 11. When cross-examined, the prosecutrix admitted that she never raised any alarm on that day. True it is that a woman who is subdued by four persons may not raise alarm, but here we are dealing with a case where the woman was not only taken in the taxi when she might have been in a position to raise an alarm but according to her version she was alone with a person who provided meals to her and she had sufficient time to complain to him that she was raped. She did not do so. 12. In view of the foregoing reasons, the statement of the prosecutrix does not inspire confidence. There are too many contradictions between the statement made by her initially to the police and her sworn testimony in Court. The two statements cannot co-exist together. She is not telling the truth. Therefore, it would be highly dangerous to rely upon her sole testimony. We therefore, agree with the findings of the learned trial court and uphold the acquittal of the accused. The appeal is accordingly dismissed. Bail bonds stand discharged. (Deepak Gupta),J. (Rajiv Sharma),J. 20.4.2010 *awasthi*