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2010 DIGILAW 428 (HP)

STATE OF HIMACHAL PRADESH v. JEET RAN & ONE

2010-03-08

DEEPAK GUPTA, SANJAY KAROL

body2010
JUDGMENT Deepak Gupta, J.(Oral)-This appeal is directed against the judgment dated 31.8.1995 passed by learned Sessions Judge, Bilaspur in Sessions Trial No. 7 of 1992 acquitting both the accused of having committed offences punishable under Section 376 read with Section 34 of Indian Penal Code. 2. The prosecution story is that on 14.4.1991 at about 9.00am a complaint was lodged with the Police Station, Sadar, Bilaspur by the prosecutrix. In this complaint she inter alia stated that she is a resident of Village Nai sarli and lives alongwith her family. On 14.4.1991 her father as usual had gone to work at Bilaspur. Her mother and younger sister were at home. At about 9.00/10.00 am she took her goats for grazing to the Jungle. She was grazing goats at Behnu Nalah. Jeet Ram accused was also grazing his goats on the upper side. At about 12 in the noon accused No. 2 and Raju alias Raj Kumar came to cut grass. Then both the accused talked to each other and thereafter made a plan. They came towards the prosecutrix. Jeet Ram grabbed her arms and pushed her to the ground and then Raj Kumar caught hold of her arms. Jeet Ram opened her salwar, pushed it down and forcibly committed sexual intercourse with her. Thereafter Raju opened his pants and raped her. The prosecutrix then cried loudly and both the accused ran away. She then went home and told her mother about what had happened with her. When her father returned from work the mother informed him and took the prosecutrix to the Police Station where the complaint was lodged. 3. The prosecutrix was got medically examined. The investigation was done. Her clothes as well as the clothes of the accused were taken into possession. The report was filed. The Magistrate committed the case to the Court of Sessions. The accused pleaded not guilty and claimed trial. On completion of the trial they were acquitted. Hence the present appeal. 4. We have heard Mr. Vivek Singh Thakur, learned Additional Advocate General on behalf of appellant and Mr. R.K. Gautam learned Sr. Advocate for the respondents. 5. PW-5 is the Doctor who has examined the prosecutrix. The MLC issued by him is exhibited as Ex. PF. The MLC shows that the clothes are not torn and there was no semen stains on the clothes. Vivek Singh Thakur, learned Additional Advocate General on behalf of appellant and Mr. R.K. Gautam learned Sr. Advocate for the respondents. 5. PW-5 is the Doctor who has examined the prosecutrix. The MLC issued by him is exhibited as Ex. PF. The MLC shows that the clothes are not torn and there was no semen stains on the clothes. There was no swelling or injury on the private parts of the prosecutrix. No spermatozoa was seen. However, opinion given was that the possibility of rape cannot be ruled out. Even after the report of the Chemical Examiner the opinion of the Doctor remains the same. In the Chemical Examiner’s report semen was detected only on the salwar. No spermatozoa was detected on the vaginal smear slide. 6. As per the prosecution the date of birth of the prosecutrix as entered in the school certificate is 23.9.1974 which shows that she was about 17 years old when the incident took place. 7. The onlyevidence against the accused is that of the prosecutrix. There is no doubt that in a rape case, in case the statement of the prosecutrix inspires confidence then the same can be used to convict the accused even without other corroborative evidence. But the statement must inspire confidence. In the present case the statement of the prosecutrix in the Court is totally different to what she stated in her complaint. In the examination-in-chief she only stated that both the accused committed rape on her and thereafter she narrated the incident to her mother. When her father returned from Bilaspur the incident was also narrated to him. Then she was taken to Police Station. In cross examination she admits that Bilaspur Kiratpur road is only 20-25 feet away from where she was grazing her goats. She states that as soon as Nara of her salwar was opened she became unconscious and regained her conscious only after two hours. She thereafter came home. She also states that she was not aware about hat happened during this period of two hours. This is totally contrary to her earlier statement as well as the statements of the parents PWs 2 and 3 who do not make any mention about the prosecutrix becoming unconscious. The version given in the Court is totally contrary to the original version. This is totally contrary to her earlier statement as well as the statements of the parents PWs 2 and 3 who do not make any mention about the prosecutrix becoming unconscious. The version given in the Court is totally contrary to the original version. Whereas in the complaint she stated that she had raised an alarm, while deposing in the Court she stated that she became unconscious. Similarly, in the complaint she had stated that on hearing her cries both the accused ran away and after that she came home but later on changed her stand and stated that she became unconscious. The learned trial Court has rightly held that it is highly improbable that she became unconscious as soon as the nara/ salwar was broken. The prosecutrix is obviously trying to conceal the true facts. Therefore, her statement does not inspire confidence. 8. The medical evidence also does not support the stand of the prosecutrix. She has suffered no injury whatsoever. Though in Court she stated that she had become unconscious but in the initial statement she admitted that she was grazing her goats when the incident took place. She would have suffered some injury if she had actually been forcibly assaulted. The other evidence relied on by the prosecution is the semen stain on the salwar of the prosecutrix. According to the prosecutrix she had handed over her clothes Ex. P-2 to the Police on the first day when she went to the Police Station to lodge the report. However, the Investigating Officer PW-13 Birbal Ram tells a different story. According to him he took the salwar into possession on the next day i.e. 15.4.1991 vide memo Ex. PC in the presence of witnesses. Therefore, the recovery of the salwar itself is doubtful. 9. In view of the above discussions we find no merit in the appeal and the same is dismissed. Bail bonds are discharged.