IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 238 of 2000 Date of Decision: 3.12.2010 State of H.P. …Appellant. Versus. Bhagat Ram and another …Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol,, Judge. Whether approved for Reporting? No. For the appellant: Mr. Vivek Singh Thakur, Addl. Advocate General. For the respondents: Mr. Amar Deep Singh and Mr. Pawan Sharma, Advocate. Per Deepak Gupta, J.(oral) 1. This appeal by the State is directed against the judgement of the learned Sessions Judge, Sirmaur District at Nahan in Sessions trial No. 27-ST/7 of 1998 decided on 14.10.1999 whereby the accused were acquitted of having committed offences punishable under Sections 451 and 376 IPC. 2. The prosecution story in brief is that the prosecutrix, who is a married lady aged about 30 years was residing in village Bagadi. She had three minor children. On 31.1.1998 she was alone at her house since her husband had gone to 2 visit some relatives. At about 7.00 p.m when her children had gone to sleep, accused Bhagat Ram came to her house and on coming to know that her husband was away he tried to molest her. She resisted his advances and in fact she used an iron pipe (used to blow air on the kitchen hearth) to hit Bhagat Ram. In the meantime, the second accused Bhagwan Singh entered the house and snatched the iron pipe from her. He blew off the lamp and thereafter Bhagat Ram pulled off her Salwar and subjected her to forcible sexual intercourse. Bhagwan Singh was waiting outside with intention of raping her after Bhagat Ram had done so. In the meantime, hearing the shouts of the prosecutrix her neighbour Deep Ram came to the spot. He gave a shout outside the house as to what is happening and on hearing his shout both the accused ran away. Thereafter, the prosecutrix sent for her husband and next day i.e. on 1.2.1998 report was lodged at Police Station, Renuka. The prosecutrix was medically examined. After investigation the accused were charged with having committed the offences aforesaid. They pleaded not guilty and claimed trial. After trial the learned trial Court acquitted the accused. Hence the present appeal by the State. 3. As far as the accused Bhagwan Singh is concerned there is virtually no evidence against him. Even according to the prosecutrix Bhagwan Singh came there and only snatched the iron pipe from her. True it is, she says that Bhagwan 3 Singh was waiting for his turn, but other than snatching the pipe she has not attributed any other act to Bhagwan Singh. The presence of Bhagwan Singh at the spot is doubtful because Deep Ram PW-4, who is the neighbour, denies having seen Bhagwan Singh at all. There is virtually no evidence against Bhagwan Singh. 4. We are not unaware of the legal proposition that the statement of the prosecutrix by itself can be used to convict the accused. However, as held by the Apex Court in a number of cases the statement of the prosecutrix must inspire confidence. In the present case, her statement does not inspire confidence. The prosecutrix while appearing in Court stated that Bhagat Ram on entering the house first after taking liberties with her, took off her Salwar and committed forcible sexual intercourse. Her statement is not supported by PW-4 Deep Ram, who is the eye-witness. According to Deep Ram, on 31st January, 1998 he went towards the house of Daya Ram, husband of the prosecutrix, since he wanted to talk to him. The door of the house was closed. He pushed the door and entered the house and saw that Bhagat Ram accused was committing sexual intercourse with the prosecutrix. He further states that he immediately came out and went to his Doghari and had no talk whatsoever with the prosecutrix. This witness was declared hostile and cross- examined by the learned public prosecutor at length. He has 4 empathetically denied that the prosecutrix had complained to him that she had been raped by Bhagat Ram. He also denied that at the instance of the prosecutrix he went to village Jadon to call her husband. His statement clearly indicates that the sexual act was being committed with the consent of the prosecutrix. The husband of the prosecutrix was examined as PW-3 and he states that PW-4 Deep Ram came to call him from village Jadon and he reached his home at mid night and his wife told him that she had been raped by the accused. Next day, they went to the police station to lodge the report. 5. According to the prosecutrix, she kept wearing the same clothes till she was examined by the doctor. The version of the prosecutrix is two fold. Firstly that the string of the Salwar was broken and then the Salwar was pulled down. If that were true then the prosecutrix could not go to the police station without putting in a fresh string or retying the old string. When the clothes were opened in the Court there was no string in the Salwar and the prosecutrix virtually gave no explanation, how she held up her salwar till her examination by the doctor on the next day. She admittedly walked on foot and then travelled by bus to the police station and then went to the hospital. Even the doctor would have noticed the fact whether the Salwar was tied properly with a string or not. The doctor did not find any semen on the 5 private part of the prosecutrix. The prosecutrix while appearing in Court gave an explanation that the accused had ejaculated on the wooden floor. There is nothing to show that any semen was removed from the wooden floor. Her statement also is that the Salwar had been removed and kept aside. Therefore, the semen stains on the Salwar would not be related to the act of sexual intercourse. Furthermore, this is not a case where there is denial of the act of sex but it is a case where it is virtually alleged that the act of sex was a consensual act. 6. From the material on record, it cannot be said with certainty that the prosecutrix was subjected to sexual intercourse without her consent and therefore, the learned trial Court was justified in acquitting the accused. We find no merit in the appeal and the same is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. 3rd December, 2010 (Sanjay Karol ) ™ Judge.