1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 277 of 1993 Date of Decision: 17.3.2008 ____________________________________________________________ State of H.P. ……..Appellant. Versus Gian Chand ……..Respondent. Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes For the appellant : Mr. P.K.Sharma, Addl. Advocate General For the respondent : Mr. Naveen K. Bhardwaj, Advocate. ______________________________________________________________ Surjit Singh, J. (Oral) Heard and gone through the record. Respondent was charged with and tried for offences punishable under Sections 458 and 376, I.P.C. by trial Court for allegedly gang raping the prosecutrix, after committing house tress-pass. The respondent was alleged to be accompanied by an un-known and un-identified person, who too committed the rape. Trial Court has acquitted the respondent holding that the case of the prosecution does not stand established beyond reasonable doubt. Allegations on which the respondent was put on trial may be summed up thus: The prosecutrix, having been deserted by her husband, started living at her parental place in village Nehar, District Bilaspur. She Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 had two sons one aged about two years and the other aged one year. On 19-4-1991 around 8.45 P.M, when she was sleeping in one room with her younger son and her sister, Dharam Dei (PW3) was sleeping with her elder son in the adjoining room, the respondent accompanied by an un- identified man allegedly entered her room through the stairs connecting the ground floor with the first floor, which are inside her room. The prosecutrix was asleep in a room in the ground floor. Respondent and his said un-identified accomplice committed rape on the prosecutrix one after the other. There-after the respondent and his accomplice allegedly thrust a small sized bottle into the vagina of the prosecutrix. They then carried her out in the open outside the room and started giving beatings to her with a chopped piece of wood (Pacher). When the prosecutrix cried for help, her sister came out. She was slapped by the respondent. On hearing the cries, some neighbours of the prosecutrix including Babu Ram (PW4), Durga (PW5) and Smt. Shenkru (PW6) reached the spot. The respondent and his accomplice then ran away. Matter was reported to the Police by the prosecutrix on 22-4-1991. Police registered the case vide FIR Exhibit- PF. Prosecutrix was got medically examined. At the time of her examination, a piece of rough stone, measuring three inches in length, was found in her vagina which was taken into possession. Investigation revealed that on 21-4-1991, Smt. Hardei (PW7) visited the prosecutrix on coming to know that she had been having pain in her abdomen. She pressed the abdomen of the prosecutrix, upon which a bottle Exhibit-P7 came out from her vagina. The bottle, the piece of stone and the clothes of the prosecutrix were sent to the Chemical Examiner. Spermatozoa was found on her clothes. No spermatozoa was found on the bottle and stone and vaginal swab. The respondent was challaned. Trial court charged him, as aforesaid, and on completion of trial acquitted him. 3 We have been taken through the prosecution evidence by the learned Additional Advocate General. We have also heard the submissions made on behalf of the State as also the respondent. The testimony of the prosecutrix neither inspires confidence nor is it corroborated by any evidence. Even prosecutrix’ own sister PW2 Keli Devi does not corroborate her with respect to the charge of house tress-pass as also the rape. The witness has no where stated that the prosecutrix told her that she had been raped or that the respondent and an un-identified man entered the room where she was sleeping. Prosecutrix own version appears to be un-natural and un-believable. Also her statement is self- contradictory. Vide FIR Exhibit-PF, she reported that the respondent and his accomplice entered the room through the stairs connecting the ground floor with first floor which are inside her room. However, while in the witness box, she stated that the respondent jumped into her room through an opening in the roof and then he un-chained the door of the room and the un-identified man accompanying the respondent came through the door. The case of the prosecutrix, as per her testimony as also in the earliest version recorded in the FIR Exhibit-PF is that after the respondent and his accomplice committed the offence of gang rape, a bottle was thrust into her vagina which had been pressed out on 21-1-1991 by Smt. Hardei (PW7) but during the course of her medical examination, a piece of rough stone measuring three inches in length was also removed from her vagina. Prosecutrix has not explained as to where did this piece of stone come from into her vagina. No injury on the walls of the vagina or any other parts of her vagina was noticed during the course of medico legal examination, even though there was a rough stone inside. None of the witnesses examined by the prosecution, including those who reached the spot immediately on hearing the cries of the prosecutrix and her sister, 4 has stated that the prosecutrix complained that she had been raped by the respondent or his accomplice. It has come in the evidence that the respondent is a distant cousin of the father of the prosecutrix. He has been having disputes regarding landed property with the father and real brothers of the father of the prosecutrix. It has also come in the evidence, per prosecutrix own testimony that she took divorce from her first husband and re-married one Chet Ram and had filed a case against the second husband also, claiming maintenance allowance. We may also notice that no injury was found on the person of the prosecutrix at the time of her medico legal examination even though she alleged that she was not only raped by two men and a bottle was also thrust into her vagina but was also beaten with a Pacher. Also we find that even though in the FIR the date of incident is recorded as 19-4-1991 and the time as 8.45 P.M., during the course of trial, all the witnesses, including the prosecutrix, testified that the incident had taken place on 20-4-1991 at 8.30 or 8.45 P.M. In view of the above discussed position, we see no reason to interfere with the judgment of acquittal passed by the trial Court. Hence the appeal is dismissed. (Surjit Singh), Judge. (Surinder Singh) Judge. March 17, 2008. (bm)