1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. JUDGMENT State of Raj. Vs. Harish Chandra S.B.CR. APPEAL NO. 196/1993. DATE OF JUDGMENT :::: 22nd August, 2008 P R E S E N T HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr B.K.Sharma, Public Prosecutor, for the State. None present for the respondent. BY THE COURT Challenge in this appeal is to the judgment dated 7th February, 1991 rendered by Sessions Judge, Jhunjhunu whereby the accused respondent Harish Chandra has been acquitted in the offence under Section 376 and the respondent Gordhan has been acquitted in the offence under Section 323 of IPC. 2. The prosecution story is woven like this: “That on 23rd May, 1989, at about 12.00 in the noon the prosecutrix PW/1 Vimla was coming from her field to village. No sooner did she reach near the field of Harish Chandra, the accused Harish Chandra suddenly appeared before her and caused the bag of dung-fuel fall down. It is alleged that the accused Harish Chandra caught hold of her hands and forcibly tried to drag her. When she resisted, the accused lifted and took her to his own hut. There, he made her to lie on the ground, lifted her Ghaghara and having taken of her panties forcibly in a hurried heat, ravished her. She cried but the accused threatened her to kill. Having heard her shrieks, Gordhan and Gangadhar came 2 there who removed the accused who was lying upon the prosecutrix. On the written report Ex.P/1 submitted by Vimla Kumari, the police lodged the FIR and commenced investigation. 3. The Investigating Officer recorded the statement of the witnesses, got the prosecutrix medically examined to ascertain her age and the offence of rape, arrested the accused and after usual investigation sent the accused persons Harish Chandra and Gordhan for trial to the Court. 4. The accused Harish Chandra was charged for the offence under Section 376 and Gordhan for the offence under Section 323 of the IPC who pleaded not guilty and claimed trial. In order to further its version, the prosecution has examined as many as 10 witnesses. In their explanation under Section 313 Cr.P.C, the accused claimed innocence and pleaded that they have been falsely implicated at the instance of Mohar Master and Jaykaran Sarpanch of the village. 5. None is present on behalf of the accused respondents in the Court. Hence, heard the submissions advanced by the learned Public Prosecutor appearing for the State and perused the impugned judgment of the lower court along with the relevant material available on record. 3 6. The fact situation emerging from the material on record is as under: (i) The prosecutrix Mst. Vimla is found to be 13 to 15 years old. (ii) The accused Harish Chandra was 40 years of age on the date of occurrence. (iii) The occurrence of rape took place at about 12.00 during day hours in an open hut of accused situated in his own field. (iv) The prosecutrix is said to have sustained three injuries on her eye-lid, left fore-arm and left leg along with multiple colourless stains on the Petticoat and redish black stains on under-wear of red colour. (v) No stains of blood and semen has been found on external genitals and near about. (vi) No external injury mark seen on the external genitals and near about. Hymen torn posteriorly congested. No bleeding from the hymen on touch. No injury mark on vagina. 7. The accused Harish Chandra was examined on 26th May, 1989 and his medical report Ex.P/9 reveals that he had a lacerated wound 3/4”X1/4”X1/4” on the superior aspect of scalp which was advised for X-ray. The prosecutrix has made improvements in her earlier statements given before the Investigating Officer. The Investigating Officer has not appeared in witness box. 8. The learned Public Prosecutor has focused his argument on the testimony of PW/1 Vimla. As per his contention, there is no 4 ground to disbelieve the testimony of prosecutrix as she has consistently supported the contents of written report Ex.P/1. The medical examination report Ex.P/2 supports the testimony of prosecutrix which exhibits the presence of injuries on the body of the prosecutrix sustained during the commission of rape. The learned trial Court has acquitted the respondent Harish Chandra on this ground that the Investigating Officer has not been examined by the prosecution and this may not be the proper ground to throw the whole case of the prosecution, as such the State appeal be allowed and the accused respondent Harish Chandra be convicted. 9. Per contra, the learned counsel for the accused respondent has simply urged that the judgment of the lower court is perfectly just and proper which calls for no interference and the State appeal deserves to be set aside. 10. Having reflected over the submissions advanced by the learned Public Prosecutor and scanned the evidence of prosecution witnesses, it is found that the injury found on the head of the accused has not been explained by the prosecution witnesses. Thus, the prosecution has suppressed the genesis and the origin of the 5 occurrence and has not presented the true version. The prosecutrix is also not found to have sustained any external or internal injury on her genitals. No semen or blood stain has been found on the pubic hair or on the private parts. Even the prosecutrix was not feeling any pain in or around vagina during her examination. There was no mark of violence or injury in or near about the vagina. As per the injury report Ex.P/2, Vimla had simple abrasions and bruise on her left fore-arm, left leg and eye-lid. Thus the injuries found on her person do not corroborate the medical report and vice versa. But, there was no injury on the elbows or on the back or on the buttocks of the prosecutrix. In the above back drop the explanation furnished by the accused under Section 313 of the Cr.P.C. becomes very relevant in the light of the injury report Ex.P/2 of Ms Vimla and the medical report Ex.P/9 of accused respondent Harish Chandra. The respondent Harish Chandra has described this case to be the result of political animosity. He has submitted that one day prior to the alleged incident, Vimla committed the theft of dung-fuel from his hut. When he complained, she denied. Then he took her to Gordhan Jat for corroboration. Meantime, having heard the noise, Gangadhar and Gordhan and 2-3 more persons assembled there Vimla while weeping went to her 6 house. Thereafter, the next day when he was going to his house, Mangelal, the uncle of Vimla, assaulted upon his head with lathi. He also assaulted Raghuveer and Shivpal. Mohar Master and Jaykaran Sarpanch of their village have implicated him in this case on account of the political enmity. 11. Now turning to the evidence of the prosecutrix, it may be observed that the whole prosecution case rests solely on the testimony of the prosecutrix of PW/1 Vimla. Albeit, the age of the prosecutrix has been found to be in between 13-15 years. But the manner in which she has deposed before the Court, leads me to hold that her evidence does not inspire any confidence. It is very well settled that the conviction can be based on the sole testimony of the prosecutrix provided that her statements are found to be wholly reliable and trust-worthy but if the testimony of prosecutrix is not trust- worthy then it seeks corroboration from the direct or circumstantial evidence. 12. No mark of injury or violence has been found on the genitals of the prosecutrix. Otherwise too, there is no other circumstance of rape appearing on or near her private parts and that leads me to hold her statements unworthy of 7 credence. On the contrary the suppression of the genesis and origin of the occurrence by the prosecution is proved to be fatal. It appears that the complainant party gave a lathy blow on the head of the accused Harish Chandra and to counter this incident, the case of rape was registered against him in the Police Station. 13. The prosecution has also not examined the Investigating Officer of this case. He was the witness who could prove the contents of report Ex.P/1 whereupon the FIR was lodged. The report Ex.P/1 has been written by somebodyelse and it bears only the thumb impression of prosecutrix. The contents of this report could be proved only by him. Apart this, other documents also do not stand proved. In the case of Bhopal Singh & ors. Vs. State of Raj. 1989 (1) RLR, 492, this court has observed that the Investigating Officer is a very important witness. If he is not examined and he does not prove his case, the entire case of the prosecution, on this ground alone falls on the ground........ Therefore, non examination of the Investigating Officer is fatal to the entire prosecution case which goes to its root. The learned trial court has found the prosecution case not proved on this ground also. Undisputedly, the manner in which the evidence 8 of the prosecutrix has emerged before the Court and the way in which she has made improvement in her statements and the contradictions and discrepancies have crept into leads this Court to hold her testimony to be untrust-worthy and unreliable. The evidence of the prosecutrix is not found worthy of credence and as such inspires no confidence in the light of the above discussion. It is not found at all safe to base the conviction of the accused respondent Harish Chandra solely on the testimony of the prosecutrix. The judgment of the trial Court is cogent and well-merrited. It suffers from no infirmity and I am in unison with the finding of acquittal arrived at by the learned trial Court and the impugned judgment calls for no interference. 14. For these reasons, the State appeal being devoid of merit stands dismissed. (MAHESH BHAGWATI),J PCG