` IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 366 of 1996 Date of decision: 21.4.2010. State of H.P. …. Appellant. Vs. Tara Chand and another ... Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1. No. For the appellant-State: Mr. Vivek Singh Thakur, Addl. Advocate General For the respondent No.1: Mr. Anoop Chitkara and Mr. Bhupinder Ahuja, Advocate. Deepak Gupta, J.(oral) This appeal by the State is directed against the judgement dated 6.6.1995 of the learned Sessions Judge, Sirmaur District at Nahan, Camp at Sarahan, in Sessions Trial No. 01-N/7 of 1995 whereby he acquitted the accused of having committed an offence punishable under Section 376 of the Indian Penal Code. The prosecution story in brief is that the prosecutrix who is a married lady have three daughters was returning to her maternal home from the house of her god-mother in village Belard and when she was in a jungle known as Devi-Ka-Bhoun the two accused alongwith one Devinder accosted her and asked her to have sex with them. After she refused Tara Chand and Devinder forcibly carried her to the bushes and then turn by turn raped her. In her initial complaint Ext.PP she had stated that Billu did not commit any sexual act with her and remained sitting 1 Whether the reporters of the local papers may be allowed to see the Judgment. Yes. 2 on the side of the path. According to the prosecutrix her minor daughter was with her and she got lost during this occurrence. A little later Prem Dutt, who is the step brother of her husband Mohan Datt, reached the spot and he raised hue and cry and on seeing him the accused ran away. Then the prosecutrix accompanied Prem Dutt and returned to the village. The incident is stated to have occurred on 8th May, 1993 but the F.I.R was lodged on 10th May, 1993 at about 8.15 p.m in Police Station Sarahan. Thereafter, the prosecutrix was got medically examined and the investigation completed. Report under Section 173 was filed and the Magistrate committed the case to Sessions since the offence was exclusively triable by the Court of Sessions. After trial the accused has been acquitted. Hence, the present appeal. The appeal against respondent No. 2 stands abated due to his death. As mentioned above in the original complaint the complainant had stated that she was accosted by three persons and she gave the complete names and addresses of these three persons. She also stated that she was raped by Tara Chand and Devinder but not by Billu. According to her, her daughter Meena, who was just three years old, got lost and she alongwith Prem Dutt returned to home. While appearing in the Court the prosecutrix gave a totally different version of the occurrence. In this version she stated that when she reached the jungle at Devi-Ka-Bhoun only Tara Chand and Billu met her and it is these 3 two persons who raped her. According to her Devinder Singh was not present at the spot. When her attention was drawn to the F.I.R Ext.PD, she admitted that she had named Devinder Singh in the F.I.R. but according to her this was done by mistake and he had not committed any sexual intercourse with her. During cross-examination she gave a third version and this version is that two accused alongwith Devinder met her near the water-tank at Belard and that the jungle Devi-Ka-Bhoun where the occurrence took place is four kilometers from this tank. Thus there are material contradictions in the statement of the prosecutrix with regard to the place where she was accosted and the persons who actually caught hold of her. There is also contradiction with regard to the names of the persons who raped her. The second surprising aspect of the matter is that the case of the prosecution itself is that Prem Dutt PW-6, who is brother- in-law of the prosecutrix being step brother of her husband Mohan Datt PW-7, reached the spot and rescued her from the accused. The prosecutrix stated that she did not tell Prem Dutt about what had happened till she reached home and disclosed the incident to her husband and Prem Dutt after reaching home. PW-6 Prem Dutt has admitted that he heard the conversation of the accused with the prosecutrix as well as the cries and shrieks of the prosecutrix. It would be natural human reaction for a person who met his sister-in-law in such a situation to ask her what had happened. It cannot be believed that they travelled 4 such a long distance on foot without even talking to each other. Prem Dutt in fact stated that when prosecutrix accompanied him she was not crying nor she disclosed anything to him till she reached home. The most damaging aspect of the case as far as the prosecution is concerned is that according to the prosecutrix her three years old daughter was with her when the incident took place. After she had been raped her brother-in-law reached the spot and rescued her from the accused. The first reaction of the mother would have been to search for the child. She neither disclosed to Prem Dutt that her child was lost nor made any effort to trace out a three years old child and left this child of three years to fend for herself in the jungle. This clearly shows that either the prosecutrix is a liar or is a very callous mother. It is more than apparent from the facts narrated above that the story of the child being lost and being found by the husband of the prosecutrix PW-7 on the next day has been concocted only with a view to cover up the delay in lodging the F.I.R. In this case the incident is alleged to have taken place on 8th May, 1993 and according to the prosecutrix she disclosed the same to her husband and Prem Dutt on the same day in the evening. Even if we believe this to be true there is nothing which prevented the prosecutrix from going to the Police Station alongwith her brother-in-law the next day while her husband searched for the minor child. In fact the husband states that 5 both he and PW-6 had gone to search for the child but PW-6 categorically states that he had not gone to search for the child. Admittedly the village of the prosecutrix is 8 kilometers walking distance from Sarahan. There is material on record to show that there is a road connecting these two places also. Even if the prosecutrix had to walk it would not take more than 2-2½ hours to walk this distance. According to the prosecutrix and her husband they left their village on 10th May at about 5.00 a.m to lodge the report but admittedly the report was lodged at 8.15 p.m. The explanation given is that they walked leisurely. Even at a snail’s pace this distance can be covered in a much shorter time. No doubt delay by itself is not fatal to the prosecution case but in the facts of the present case it is obvious that there is inordinate delay in lodging the F.I.R and this time could have been used by the prosecutrix and her family members to concoct a false story. The law is very clear that in case of rape the statement of the prosecutrix does not necessarily need corroboration but the statement of the prosecutrix must inspire confidence and the Court should have reason to believe the statement to be true and only then conviction can be based on the sole testimony of the prosecutrix. In the present case there are glaring contradictions in the statement of the prosecutrix. She states that she had never seen the accused before but in the F.I.R she had given not only the names of the accused and their parentage and complete address. She did not give any explanation as to how from where 6 she learnt the names and addresses of the accused. According to her husband PW-7 the prosecutrix went to her god-mother’s house at Belard on 9th May and then discovered the names of the accused. This appears to be totally false since in the complaint one of the persons named as accused is Devinder and the prosecutrix has stated that she had gone to attend a ceremony relating to the marriage of Devinder himself. If she could go to her god mother’s village alone by herself, what prevented her from going to the police station to lodge the complaint especially when she had admittedly disclosed this fact not only to the brother-in-law PW-6 but also to the Pradhan of the village. The other major contradictions as pointed out above are that whereas in the original complaint it was stated that Billu had not raped her in Court it was stated that Billu raped her but Devidner did not rape her. The version about the daughter being lost also appears to be totally false. Keeping in view the aforesaid discussion, we are of the considered view that the learned trial Court was justified in acquitting the accused. We find no merit in the appeal which is accordingly dismissed. The bail bonds furnished by the accused are discharged. (Deepak Gupta) Judge. 21st April, 2010. (Rajiv Sharma) ™ Judge.