IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.485-SB of 1993 Date of Decision: March 07, 2007 Hamida ...Appellant VERSUS State of Haryana ...Respondent CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Sachin Mittal, Advocate, for the appellant. Mr.Dilbagh Singh, AAG, Haryana, for the State. ***** RANJIT SINGH, J. Appellant, who is sentenced to suffer seven years rigorous imprisonment after his conviction under Section 376 IPC, has filed the present appeal against his conviction and the award of the sentence. The incident, which took place on 16.11.1991, is based on a complaint filed by Sherbi wife of Chakmal, resident of village Naharika, who was allegedly ravished by the appellant. As per the story disclosed by the prosecutrix Sherbi, she was pulled to a ditch by appellant Hamida, while she Criminal Appeal No.485-SB of 1993 : 2 : was guarding a mustard crop. She claims to have grappled with the appellant, but still he was successful in breaking the string of her salwar and thereafter committed rape on her. Prosecutrix statedly raised hue and cry, which attracted Islamuddia and Asruddin from the nearby fields. On their arrival, the appellant has allegedly bolted from the scene. The report in this regard was lodged with the police and FIR was registered under Section 376 IPC on 17.11.1991. The investigation had been conducted in regard to this FIR. The defence led evidence to show that the allegations made by the prosecutrix were found false and a cancellation report in this regard was prepared, though the same had not been filed in the court till the time of decision. Perhaps in this view of the matter, the husband of the prosecutrix filed a complaint in this regard on 10.1.1992 leading to summoning of the appellant. The prosecution case was supported by the version of the prosecutrix and Asruddin (PW-5) claiming himself to be an eye- witness. Prosecution also produced Dr.Santosh Jain (PW-2), who had conducted the medical examination of the prosecutrix and the Investigating Officer. The appellant, however, took up a defence of complete denial and false implication. In support of his case, he examined HC Om Parkash (DW-1), who deposed about the result of the investigation conducted by the police pursuant to the registration of FIR dated 17.11.1991. It is through him that the defence brought on record that the police, after investigation, had found this case to be false and it accordingly prepared a cancellation report. The trial court, however, placing reliance on the version of the prosecutrix, convicted the appellant and sentenced him to suffer imprisonment, Criminal Appeal No.485-SB of 1993 : 3 : as mentioned above. I have heard the counsel for the parties. Mr.Sachin Mittal, the counsel appearing for the appellant has pointed out that this is a case where it may not be safe to place reliance on sole testimony of the prosecutrix. He would point out to various circumstances to indicate that the prosecutrix did not acquit herself well and as such may not be worthy of implicit reliance. On the other hand, the learned State counsel has submitted that as per settled proposition of law, the sole testimony of the prosecutrix would be enough to base a conviction as she can not be considered as an accomplice, which may require a corroboration of her version. It is required to be seen if it would be safe to rely on the sole testimony of prosecutrix. No doubt, the prosecutrix while appearing before the court had deposed that she was subjected to rape by the appellant. However, her attention was drawn to her previous statement recorded in the FIR where she had not made any allegation of rape. In the FIR, which was recorded at her instance immediately after the occurrence, the allegation of an attempt alone was made. As already noticed, this FIR was duly investigated by the police and it was found that the allegations made therein were not made out and accordingly a cancellation report was prepared. Even in the complaint, which was filed through the husband of the prosecutrix on 10.1.1992, no allegation of rape was disclosed. The same also read in line with the version that was given by the prosecutrix in the FIR. Here also, the husband had complained only of an attempt and raising of hue and cry by the prosecutrix, which had attracted Islamuddin and Asruddin. Though Asruddin was Criminal Appeal No.485-SB of 1993 : 4 : examined as a witness and did provide support to the version of the prosecutrix, but Islamuddin was given up by the prosecution. It is on record that Islamuddin and Asruddin are nephews of the prosecutrix and as such related to her. Though a mere fact that a witness is a relation of a victim is not sufficient to discard his version, but it is required to be noticed that closely related witnesses would be reluctant to spare and their evidence would require close scrutiny being evidence of related witnesses. Asruddin, while appearing as PW-5, even stated something which was not so brought out by the prosecutrix herself. His testimony would disclose that the appellant was seen naked by him and had run from the scene in that condition only. This has not been so stated by the prosecutrix. The evidence of prosecutrix is otherwise also not finding support from the medical evidence. The doctor, who examined the prosecutrix on the very next day of the incident, clearly deposed that no allegation of rape was made by the prosecutrix even before her at the time of medical examination. Doctor did not find any tell tale signs of rape. In reply to a pointed question, Dr.Santosh Jain (PW-2) stated that she did not notice any injury on any part of the body of the prosecutrix. She further disclosed that there was no indication of any resistance having been offered by the prosecutrix or if she was subjected to any rape. Thus, the version of the prosecutrix is also not in tune with the medical evidence. In her testimony, the prosecutrix clearly stated that she had received various bruises and injuries on different parts of her body. If that be so, these were bound to be reflected in the medical report and seen by PW-2 while conducting the medical examination. The absence of injury noticed by the doctor on the Criminal Appeal No.485-SB of 1993 : 5 : body of the prosecutrix, would also show that the prosecutrix had not come out with true details. The first version offered by the prosecutrix was only for an attempt which was changed subsequently to make an allegation of rape. Considering the totality of the facts and circumstances, in my view, it will be unsafe to place implicit reliance on the testimony of the prosecutrix. Though, as per law, the testimony of prosecutrix alone in cases of lust loaded offences is considered sufficient to base a conviction, but the courts can still look for material to satisfy itself that it will be safe to place reliance on such evidence alone. From the changing stand taken by the prosecutrix, it will not be safe to base conviction alone on the testimony of the prosecutrix. There are circumstances pointing to the facts that the prosecutrix had changed her version rather conveniently. Even the police had found the allegations to be un-substantiated or not proved and had prepared cancellation report. The prosecution is, thus, not able to prove the charge against the appellant beyond a shadow of doubt. There would be a doubt in regard to the commission of offence by the appellant, benefit of which is to be given to him. The conviction of the appellant recorded by the trial court, therefore, cannot be sustained. The appeal is accordingly allowed. The conviction and sentence awarded to the appellant is set-aside. The bail bonds and surety bonds, if any, furnished in the trial court shall stand discharged. March 07, 2007 ( RANJIT SINGH ) ramesh JUDGE Criminal Appeal No.485-SB of 1993 : 6 :