IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 54 of 2009 Judgment reserved on : 17.11.2009 Date of decision : 24.11.2009 ____________________________________________________ Budh Ram …Appellant. Versus State of Himachal Pradesh …Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the appellant : Mr. Ramakant Sharma, Advocate. For the Respondent : Mr. Anshul Bansal, Addl. A.G. with Mr. R.P. Singh, Assistant AG. Kuldip Singh, Judge This appeal has been directed against the judgment dated 2.3.2009 passed by learned Addl. Sessions Judge, Sirmaur District at Nahan in Sessions Trial No.21-N/7 of 2007, convicting and sentencing the appellant to undergo rigorous imprisonment for seven years and to pay a fine of Rs.15,000/-, in default of payment of fine to undergo further rigorous imprisonment for a period of one year under Section 376 IPC. It has also been directed that whole fine amount, if realized, be paid to the prosecutrix. 2. The prosecution case against the appellant is that he had committed rape upon the prosecutrix on 1.6.2007 at about 4 PM at Jabiyana, Police Station Pachhad. It is the case of the prosecution ________________________ ¹ Whether reporters of Local Papers may be allowed to see the Judgment ?Yes 2 that on 1.6.2007 PW-2 prosecutrix had gone to irrigate her tomatoes crop at a distance of 8 to 10 K.M. from her village Jabiyana. At about 4 P.M. when she was returning to her home, accused met her and committed forcible sexual intercourse with her. The prosecutrix sustained injuries on her back, elbow and knee while resisting the act of the accused. The prosecutrix raised alarm but due to forest area no one came to her rescue, the prosecutrix later on returned to her home. The husband of the prosecutrix was away from home and on his return prosecutrix narrated the incident to him. The prosecutrix ultimately along with husband lodged FIR Ex.PW-2/A. The prosecutrix was medically examined by PW-1 Dr. Nirmal Vais who issued MLC Ex.PW- 1/A. The MLC of accused is Ex.PY. PW-5 Shyam Lal Thakur Inspector conducted the investigation who prepared site plan Ex.PW-5.B. The FSL report is Ex.PX. On completion of investigation challan was presented in the Court and the appellant was charged for offence punishable under Section 376 IPC. The accused pleaded not guilty and claimed trial. The prosecution has examined six witnesses and has also produced documentary evidence. The statement of accused was recorded under Section 313 Cr.P.C., he denied the prosecution case, but led no evidence in defence. The learned Addl. Sessions Judge convicted and sentenced the accused as noticed above. Hence, accused has come in appeal. 3. I have heard Mr. Ramakant Sharma, learned counsel for the appellant and Mr. A.K. Bansal, learned Addl. Advocate General assisted by Mr. R.P. Singh, learned Assistant Advocate General for 3 respondent. I have also gone through the record. It has been submitted on behalf of the appellant that learned Addl. Sessions Judge has erred in convicting and sentencing the accused. The evidence has not been properly appreciated. The inference drawn by learned Addl. Sessions Judge is not possible from the material on record. The suggestions to the various witnesses by the defence have not been properly appreciated. The medical evidence does not support the case of the prosecution. There are material contradictions in the prosecution evidence. The statement of prosecutrix does not inspire confidence. It has not been appreciated that the accused has been falsely implicated in the case. The learned counsel for the appellant has submitted that on the basis of material on record the appellant is entitled to acquittal. The learned Addl. Advocate General has supported the impugned judgment and has submitted that the learned Addl. Sessions Judge has rightly appreciated the material on record while convicting and sentencing the accused. 4. In order to appreciated the contentions put forward by either side it is necessary to refer evidence which has come on record. PW-1 Dr. Nirmal Vais has stated that she had examined the prosecutrix aged 30 years on 3.6.2007 at about 6.30 PM and on examination she found the following injuries:- On Examination “No history of external injury. There is one pin point healed scar over back, scabi possible duration 7 days. Two scratches over above back of left wrist. One scratch over right elbow. Two scratches over middle of right leg below the knee. 4 Healed burned area over left knee. Injuries seems to be present from before the act. On P/V examination: No fresh bleeding. No fresh injury either at the vulva or a outer vagina Vaginal orifices admits 2 fingers loose”. She has also stated that after the examination of the FSL report Ex.PX she gave the opinion that there was presence of semen of human on slides and clothes of patient (prosecutrix), but there was no blood found. There was no presence of semen on pubic hair. The patient had act of intercourse with her husband after the act next day. No injury mark over the vulval or vagina orifices. She issued MLC Ex.PW1/A. Injuries mentioned in MLC Ex.PW-1/A could be caused by dragging. In cross-examination she has stated that she has mentioned in the certificate that the injury seems to be present from before the act. 5. PW-2 is the prosecutrix. She has stated that on 1.6.2007 her husband had gone to village Thorniwar. She had gone to irrigate tomatoes crop at a distance of 8 to 10 K.M. She was returning to her home at 4 PM, Budh Ram accused committed rape upon her. She resisted and sustained injuries on her back, elbow and on knee. The accused caught hold her by arms. She raised alarm, but due to forest no one came to rescue her. She returned to her home, her husband came to home on the next day in the evening. There after they went to Police Station and lodged report. On 2.6.2007, report could not be lodged as police station is far away from the village. The FIR lodged by her is Ex.PW-2/A. She was medically examined. She handed over her salwar to the police. In the cross-examination she has stated 5 that there was no rain on that day nor after that or before that day. There are fields of other villagers adjoining to their fields where she had gone to irrigate the tomatoes. The accused is her brother-in-law (Devar). She denied that accused and her husband are having dispute over land. 6. PW-3 constable Khushal Chand has stated that on 7.6.2007 MHC Satveer Singh had handed over three packets alongwith sample seal for depositing them with FSL, Junga which he deposited at FSL. Junga. PW-4 ASI Satveer Singh has stated that on 4.6.2007 SHO Shyam Lal had handed over three packets to him with seal which he handed over to constable Khushal Chand for depositing them with FSL, Junga who after depositing them with FSL Junga handed over the receipt to him. PW-5 Inspector Shyam Lal Thakur has stated that in the year 2007 he was posted as I.O. at Police Station, Pachhad. On 3.6.2007 prosecutrix had lodged FIR Ex.PW-2/A with him. After receipt of chemical examiner report he prepared challan. In cross-examination he has stated that in the beginning of June there were no rains. PW-6 Dr. Gian Thakur, Assistant Director State FSL, Junga has proved report Ex.PX. The accused in his statement under Section 313 Cr.P.C. has denied the prosecution case. In his statement he however has stated that his brother, husband of the prosecutrix grabbed his share of land and inspite of request he had not handed over that portion of land to him. He has been falsely implicated in the case. 7. Mr. Ramakant Sharma, learned counsel for the appellant has submitted that the learned Addl. Sessions Judge has not properly 6 appreciated the evidence. The suggestions given to the prosecutrix by the defence in the cross-examination were for testing the veracity of prosecutrix but such suggestions have been misconstrued. The accused never admitted having committed sexual intercourse with the prosecutrix. He has submitted that suggestions given by the defence in cross-examination are not evidence against the accused. He however, submitted that independently suitable inference can be drawn from the evidence whether sexual act was consensual or not. 8. In Ex.PW-2/A the prosecutrix has stated that accused took her forcibly towards the upper side of the path and had committed forcible sexual intercourse with her. She raised alarm but no body responded to her alarm as it was forest area. Ex.PW-5/B is the site plan. The Rona-Jabiyana path divides the alleged place of occurrence into two parts. The point-B in Ex.PW-5/B is a big rock whereas point-A is adjacent to point-B where the prosecutrix was allegedly raped. The note No.2 in Ex.PW-5/B provides that the path is not visible when a person is behind the rock shown by point-B. The prosecutrix in FIR Ex.PW-2/A has stated that the accused took her forcibly towards the upper side of the path and had committed forcible sexual intercourse with her. The point-A shown in site plan Ex.PW- 5/B is on the lower side where prosecutrix was allegedly raped. Thus, site plan Ex.PW-5/B is in contradiction to the FIR regarding the place of forcible sexual intercourse. This creates suspicion in the prosecution story. 9. The prosecutrix in her statement in the Court has stated that she resisted the act of the accused and sustained injuries on her 7 back, elbow and knee during the act. PW-1 Dr. Nirmal Vais noticed the injuries on the person of prosecutrix, two scratches on the left wrist and one scratch over right elbow, two scratches on middle of right leg below the knee of the prosecutrix. The doctor has not found any scratches, injuries on the back of the prosecutrix or on her private parts. PW-1 has however stated that injuries seem to be present from before the act and this has been reiterated by the doctor in the cross-examination also. Thus, PW-1 doctor has contradicted the statement of prosecutrix when the prosecutrix has stated that she had sustained injuries on her person when she resisted the act of the accused. The doctor has not found any injury on the private parts of the prosecutrix. Therefore, the prosecution case is not getting support from the statement of doctor that at the time of alleged rape the prosecutrix had sustained injuries on her person, even though she resisted the act of the accused. 10. The supreme court in Pratap Misra and others vs. State of Orissa, AIR 1977 SC 1307 after noticing the opinion of the medical experts in that case has observed that it is very difficult for any person to rape single-handed a grown up and an experienced woman without meeting stiffest possible resistance from her. In the present case there is no evidence of resistance except bald statement of the prosecutrix which is not corroborated by her medical evidence. This creates suspicion in the prosecution case. 11. In the present case except the statement of prosecutrix, there is no other worth believing evidence on record that the accused had committed forcible sexual intercourse upon her. There is no 8 denial of the fact that in a rape case accused can be convicted on the sole testimony of prosecutrix provided it inspires confidence. The evidence of the prosecutrix in the present case is not of such quality. There is also no evidence on record which lends some assurance, some corroboration that the prosecutrix is making truthful statement. In Dilip and another vs. State of M.P. , 2002 SCC ( Cri) 592 the Supreme Court has observed as follows:- “The Court is finding it difficult to accept the truthfulness of the version of the prosecutrix that any sexual assault as alleged was committed on her in view of the fact that her narration of the incident becomes basically infirm on account of being contradicted by the statement of her own aunt and medical evidence and the report of the Forensic Science Laboratory. The defence has given suggestion in cross-examination for false implication of the accused persons which, however, have not gone beyond being suggestions merely. It is not necessary for us to dwell upon further to find out the probability of truth contained in the suggestions because we are not satisfied generally of the correctness of the story as told by the prosecutrix. We find it difficult to hold the prosecutrix in the case as one on whose testimony an implicit reliance can be placed”. In Vimal Suresh Kamble vs. Chaluverapinake Apal S.P. and another 2003 Cr. L.J. 910 the Supreme Court has held that it is no doubt true that in law the conviction of an accused on the basis of the testimony of the prosecutrix alone is permissible, but that is in a case where the evidence of the prosecutrix inspires confidence and appears to be natural and truthful. The evidence of the prosecutrix in that case was not found to be of such quality, and there was no other evidence 9 on record, which may even lend some assurance, short of corroboration that she was making a truthful statement. The Supreme Court upheld the finding of the High court in an appeal against acquittal 12. The learned Addl. Sessions Judge has noticed suggestions given to the prosecutrix by the defence while convicting the accused. The learned counsel for the appellant has submitted that suggestions of defence does not mean that defence has admitted the commission of offence. He has submitted that suggestions were meant only to test the veracity of the prosecutrix. He has submitted that on the basis of suggestions given by the defence to the prosecutrix it cannot be construed that defence has nothing to say in the case except to rely on the suggestions. He has submitted that suggestions given in a criminal case is not a substantive piece of evidence. In Koli Trikam Jivraj & another vs. The State of Gujarat AIR 1969 Gujarat 69, a Division Bench has held that suggestions put in cross- examination are no evidence at all and on the basis of such suggestions no inference can be drawn against the accused that he admitted the facts referred to in the suggestion. 13. In a rape case without taking the consent as defence, the accused can argue that the prosecution case itself indicates consensual sexual intercourse and not rape. In Pratap Misra supra, the Supreme Court has held that learned Sessions Judge dismissed the plea of consent on the ground that it was not pleaded by the accused completely losing sight of the fact that in a criminal case the accused was not bound by his pleading and it was open to the accused to prove his defence even from the admissions made by the 10 prosecution witnesses or the circumstances proved in the case. The High Court has not considered this aspect at all. Such a wrong approach, therefore, by both the courts below has resulted in a serious miscarriage of justice to the accused. In the present case, as per prosecution sexual act was committed at point-A which is adjacent to rock shown by point-B in site plan Ex.PW-5/B. The point-A is not visible from village path which is behind big rock shown by point-B. No injuries were found on the person of prosecutrix during sexual act as noticed above, therefore, even if, statement of prosecutrix is believed that accused had committed sexual intercourse with her on the relevant date and time in that case also such sexual intercourse cannot be said to be without consent of the prosecutrix who was 30 years of age at the relevant time. Thus, seen from any angle, no case for commission of offence punishable under Section 376 IPC is made out against the accused. 14. The learned counsel for the appellant has submitted that there is delay in lodging the FIR. There is no substance in this submission. The alleged occurrence took place on 1.6.2007. Thereafter prosecutrix went to her home and her husband was away from home who came next day evening. The prosecutrix approached the police on the next day. The place of occurrence is about 65 KM from the police station as per FIR Ex.PW-2/A where facility of easy transport was not available. In these circumstances, it cannot be said that the prosecutrix had lodged the report belatedly. 15. The learned Addl. Sessions has not properly appreciated the material on record. He has not drawn proper inference from the 11 statement of prosecutrix and PW-1 Dr. Nirmal Vais. The present case is not of that nature where the sole testimony of the prosecutrix is enough to convict the accused. There is no corroborative evidence or evidence of such nature which lends assurance to the statement of prosecutrix. In these circumstances, the impugned judgment of conviction and sentence is not sustainable. 16. In view of above discussion, the appeal is allowed. The judgment of conviction and sentence dated 2.3.2009 passed by learned Addl. Sessions Judge, Sirmaur District at Nahan in Sessions Trial No.21-N/7 of 2007 is set aside. The appellant/accused is acquitted of the charge under Section 376 IPC. The appellant/accused be released immediately, if not required in any other case. November 24, 2009. (Kuldip Singh), (sks) Judge.