IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 175 of 1997 Date of Decision : July 01, 2010 State of Himachal Pradesh Appellant Versus Guru Dutt alias Datta and another Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Vivek Thakur, Addl. Advocate General for the appellant/State. For the respondents : Mr. Banbhushan Singh, Advocate, vice Mr. Ajay Sharma, Advocate, for the respondents. Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgment dated 16.12.1995 passed by the learned Addl. Sessions Judge (I) Dharamsala, Camp at Una in Sessions Case No. 9/94/92 whereby he acquitted the accused of having committed an offence punishable under Section 376 of the Indian Penal Code. We may mention that accused No. 1, Pawan Kumar died during the pendency of the trial itself. Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 2. On 23.10.1990 at about 12.30 p.m. the prosecutrix lodged a report at Police Post, Daulatpur. The report itself is slightly confusing, therefore, the translation of the relevant portion of the report is being reproduced in extenso:- “On 19.10.1990 I had gone to Post Office, Daulatpur to receive money since money order had come in my name. After obtaining the money I was returning home. My bag in which I had put the money got left behind in a vehicle. I kept searching for Guru Dutt alias Datta but could not find him. On 21.10.1990 while searching for my bag I went to the shop of Sh. Madan Lal who repairs tyres and met Datta there. Then Kamal Kishore, Dharam Singh, Kishori Lal and Madan Lal told me to give shoe beating to Guru Dutt. On their asking I beat Guru Dutt with my shoes and tore his clothes. On 19.10.1990 Pammi and Gurmeet alongwith Datta had taken me in truck at about 3.30 p.m. Pammi had forcibly made me sit in the truck and told me that they would drop me home. Near the jungle there is a path leading to my home and I told them to drop me there, but they refused to do so. They closed the windows of the truck and gagged my mouth. Then I was forcibly made to drink liquor and lost my senses. When I regained my senses I found that I was in the jungle. My clothes were torn. These three people namely Pammi, Gurmeet and Datta had raped me. Slowly I walked home and reached there at night. Nobody was at home at that time. Next day on 20.10.1990 at about 9/10 a.m. I came to the bazaar. At the tyre shop I asked Madan whether some vehicle had come from Behra road side. Then he asked me what had happened. Then I told him about the entire occurrence. Madan Lal asked me to sit there and told me that when the three persons arrive he would inform me. Then the news about the occurrence spread in the entire 3 bazaar. Later Pammi searched for Gurmeet and Datta and brought them to the shop of Madan Lal. Lot of people gathered there including Kamal and Sharda. These people asked Guru Dutt alias Datta, Pammi and Gurmeet as to why they have done this wrong act. These persons confessed their guilt and agreed to undergo any penalty inflicted on them. Then I went home. I could not lodge the report because I was unwell. My medical examination may be got done. Sd/- (prosecutrix)” 3. On the basis of this report F.I.R. Ext. PW-6/A was lodged and thereafter the prosecutrix was got medically examined. It is not disputed that the prosecutrix is a major. In fact she is a married lady having been married for about 12 years and she has three children the youngest of whom was of four years of age at the relevant time. Other investigation was done by the police and thereafter challan was filed against the three accused for having committed the aforesaid offence. As already stated above accused Pawan Kumar died during the trial and the remaining accused were acquitted by the learned trial Court. Hence this appeal before this Court. 4. The prosecutrix appeared in the Court as PW-1. While appearing in the Court she stated that after receiving money in the post office, Daulatpur at 3.30 p.m. she was returning home when Pawan Kumar met her and told her that he would drop her at her house in his truck. She refused but accused Pawan Kumar forcibly made her sit in the truck in bazaar. She and Pawan were sitting in the front cabin of the truck and the remaining two accused were 4 sitting in the rear of the truck. When they reached the jungle Pawan Kumar took her from the truck to the jungle. The other two accused also joined him. All the three accused caught her and then forcibly made her drink alcohol and she became unconscious. She regained consciousness after about half an hour and found that her clothes were torn. She had injuries on her back, arms and legs. According to her all the three accused had raped her. By the time she regained consciousness none of the accused were present and she found that Rs. 800/- were missing. Next day she went to the shop of Madan Lal and narrated the entire incidence to him. While appearing in Court she gave a different explanation as to why she did not lodge the report in time. According to the version in Court it was only when her husband came back and she narrated the entire incidence to him then her husband reported the matter to the police. She was confronted with her statement made to the police. There were various improvements made in her statement made in the Court vis-à-vis her original complaint. In fact the perusal of the original complaint which has been quoted in extenso hereinabove apparently shows that she was more worried about the money. As per her original complaint on 19.10.1990 she left her bag in a vehicle and therefore on 21.10.1990 while searching for her bag she went to the shop of Madan Lal. In the latter half of the complaint she gave a different version and according to her on 19.10.1990 she was forced to sit in a truck, taken to jungle, raped and left all alone. 5 5. The law is well settled that in case of rape it is not necessary that the statement of the prosecutrix must be corroborated. However, it is equally well settled law that such statement of the prosecutrix should inspire confidence. If the statement is full of contradictions then no reliance can be placed on such statement of the prosecutrix. 6. As noted hereinabove the incidence of rape allegedly took place on 19.10.1990. The first information to the police was given four days later on 23.10.1990. There is a delay of more than three days in lodging the complaint. While in the complaint, explanation given was that the prosecutrix was feeling unwell and therefore she could not lodge the complaint but while appearing in Court the prosecutrix stated that she waited for her husband and only thereafter lodged the report. 7. As far as the alleged ill health of the prosecutrix is concerned there is no evidence to support this version. Her own case is that on 20.10.1990 she went to the shop of Madan Lal and told him about the entire incidence. If she was unwell then why did she go to the bazaar. If she could go to the bazaar and inform Madan Lal and other persons about the incidence what prevented her from informing about the incidence to the police. Even telephonic information could have been given to the police. 8. As far as the explanation that she waited for her husband to return is concerned there is no evidence worth the name to support her this version. The husband has not been examined. According 6 to the prosecution the report was lodged by the prosecutrix. The prosecutrix stated that the complaint was lodged by her husband. A perusal of the first report Ext. PW-5/A shows that it was in fact lodged by the prosecutrix herself and she has signed the said report. There is virtually no evidence to show that her husband returned to the village on 22.10.1990. 9. There is another contradiction in the statement of the prosecutrix. Realising that there is a delay in lodging the report she while appearing in Court came up with a new version and stated that she in fact had complained about the matter to the police on 20.10.1990 itself. However the police itself has not supported this version of the prosecutrix and all the official witnesses have clearly stated that the first report was lodged only on 23.10.1990. It is, therefore, apparent that the prosecutrix is telling lies to cover up the delay in lodging the F.I.R. 10. The other circumstance used against the accused is the so called extra judicial confession made by the accused before Smt. Sharda (PW-2) and Sh. Madan Lal (PW-3). According to Smt. Sharda (PW-2) she met the prosecutrix on 20.10.1990 at 8.30 a.m. in the shop of Sh. Madan lal (PW-3). Prosecutrix was crying and on inquiry the prosecutrix told Smt. Sharda (PW-2) about the entire incidence. This is contrary to the statement of the prosecutrix itself. The prosecutrix has stated that initially she only told Sh. Madan Lal about the incidence and thereafter Kamal and Madan Lal traced all the accused and thereafter accused were brought at the Rest 7 House, Daulatpur and at that time Smt. Sharda was present. Prosecutrix has not stated that Smt. Sharda was present in the shop of Sh. Madan Lal. Even Smt. Sharda (PW-2) states that the accused made the so called extra judicial confession in the Rest House. Both PW-2 and PW-3 have stated that the accused were beaten by the prosecutrix and other villagers. Here also there is contradiction in the statements of the witnesses. Whereas according to the prosecutrix all the three accused were traced out on the first day itself. According to PW-2 and PW-3 only accused Pawan and Gurmeet were traced out on the first day and accused Guru Dutt was traced out on the subsequent day. 11. PW-2 is the President of the Mahila Social Welfare Committee and she is also an employee of the Electricity Department. In case such a confession would have been made in her presence she would have in natural course immediately reported the matter to the police. There is no plausible explanation as to why this was not done. It is pertinent to mention that PW-2 was confronted with the statement made to the police and she admitted that she had not told the police about the beatings given by the prosecutrix and other villagers to the accused. Since she has admitted that beatings were given it is apparent that the confession, if any, was not a voluntary one. In fact, she was confronted with her statement wherein it was not recorded that the accused had confessed about the commission of the offence at Daulatpur Chowk. Most importantly from the evidence of this witness it is apparent that she and accused No. 2 8 belong to different political parties and they have been opposing each other in political activities for the last many years. Therefore, no reliance can be made on her statement. 12. Sh. Madan Lal (PW-3) also supported the prosecution. He was also confronted with his statement recorded under Section 161 Cr. P.C. wherein it was not recorded that the accused had confessed their guilt when they were brought to Daulatpur Chowk. He also admits that accused were beaten by the prosecutrix and the villagers at the Rest House. 13. Neither the statement of the prosecutrix nor the statements of the two witnesses can be relied upon. In fact, the story set up by the prosecution does not inspire confidence at all. It is more than apparent that there was some dispute with regard to money between accused Guttu Dutt and the prosecutrix but no allegation of rape was initially made when the prosecutrix initially complained to Madan Lal about the accused. If, as admitted by the prosecutrix herself the entire bazaar was aware of the fact that she was raped, nothing prevented her from lodging the F.I.R. immediately thereafter. The prosecutrix is a married lady and once the entire village knew about the fact that she had been raped there is no reason why she would not have complained to the police. 14. Another important fact is that according to the prosecutrix she lives in the house alongwith her mother-in-law and three children. She also admits that there are number of houses in the village. After she walked back from the jungle, in a natural course she 9 should have informed her mother-in-law. If the next day she could come to the bazaar and inform Sh. Madan Lal who is neither close to her nor a close confidante why she did not report the matter to her mother-in-law or other co-villagers in the village itself. It is more than apparent that it was only after Smt. Sharda (PW-2) intervened in the matter that the story was cooked up. 15. In view of the above discussions we find no merit in the appeal and the same is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. (Deepak Gupta), Judge. (Sanjay Karol), Judge. July 01, 2010 (PK)