State of H.P. vs Dalip Singh @ Rikhi

R.B. Misra, J.—The present criminal appeal has come-up for consideration after leave to appeal u/s 378(3) of the Code of Criminal Procedure has been granted, in reference to the impugned judgment dated 1.9.1997, passed by learned Sessions Judge, Shimla, H.P. in Sessions Trial No. 23-S/7 of 1997, acquitting the respondent-accused for the offence, u/s 376 of the Indian Penal Code.

The prosecution case is that on 22.4.1997, at about 1.30 P.M., when victim Smt. Champa Devi, wife of Bhup Ram, was alone had switched on her radio set and was setting right an audio cassette, respondent-accused Dalip Singh, who is resident of the same village, went there and after making enquiry from her as to where her husband had gone and when would he be back and finding her alone, sexually assaulted her. After investigation, the respondent-accused was charged for offence u/s 376 of the Indian Penal Code and the case was committed to Sessions Court.

In order to prove its case, the prosecution examined as many as six witnesses, whereas, the accused through his statement u/s 313 Cr.P.C. denied the prosecution case.

The prosecutrix/victim was medically examined and on examination her age was assessed about 24 years and no external mark or injury was found on her person.

The prosecutrix examined as PW-1, has stated that when she was in her house on 22.4.1997, the respondent-accused came there around 1.30 P.M. and enquired as to where her husband had gone and when he was likely to return and that on her telling him that he had gone to earn his livelihood and would be back in the evening, he squatted on the door of her room and demanded a kiss of her. She has further stated that the respondent-accused then entered her room and closed the room and when she got up to open the door, he grabbed her, then grappled with her and ultimately threw her on the ground and raped her. The deposition of the prosecutrix does not inspire confidence. It is true that no corroboration to the testimony of the prosecutrix is required but the testimony should be quite convincing and should not suffer from any intrinsic falsity if the conviction is to be based thereon. In the present case, the testimony of the prosecutrix is self contradictory and inconsistent. Her conduct is also quite unnatural. She has stated in the cross-examination that when the respondent-accused allegedly raped her, her mother-in-law was present in the adjoining room of the same building. She has stated that she went to the police station after changing her Salwar without informing anybody, including her mother-in-law about the incident. This conduct of her is quite un-natural. She is a young woman of 24 and has a stout built. She has admitted in cross-examination that she does all sorts of agricultural jobs, including collection of fuel wood, grass etc. and can carry 30 to 40 Kgs. grass at a time on her head. The respondent-accused is young a lad of only 18. She could have very easily thwarted his attempts and advances towards her had she intended so. She has stated that she grappled with the respondent-accused for about 15 to 20 minutes before he overpowered her and raped her. But the Doctor, namely Suman Shekhar, who conducted her medico legal examination, found no abrasions or other marks of struggle on her person during the course of her medical examination. It may be stated here that the medical examination of the prosecutrix was conducted on the very day of the occurrence and had she in fact struggled with the respondent-accused for 15 to 20 minutes, some abrasions or other marks of struggle must have appeared on her body and the Doctor PW-4, Suman Shekhar, would have noticed the same, Doctor Suman Shekhar has stated this fact in her cross-examination. Further, the prosecutrix has though stated that her bangles which she was wearing were broken when she put up resistance and that the pieces of those bangles were taken into possession by the police, no marks of injuries caused by breaking of bangles were noticed on her person by the Doctor, who conducted her medico legal examination, namely PW-4 Suman Shekhar. The Doctor has stated in the cross-examination that in the event of breaking of bangles, injuries were supposed to have appeared on her wrist or on the fore-arm of the prosecutrix. Further, the prosecutrix has admitted in the cross-examination that when the respondent-accused was arrested by the police, all the residents of the village had gathered and half of them said that the case was false and the respondent''s-accused arrest was not justified. She has also admitted that the parents, Mama and Mami of the respondent-accused and the Pradhan of the Panchayat Smt. Satya, had said at the time of the arrest of the respondent-accused by the police, that she (the prosecutrix) was a lady of easy virtue and had spoiled many lads.

On the analysis of the prosecution witnesses, materials on record and medical evidence, we find that major lady, though was sexually assaulted but the prosecution witnesses were not inspiring confidence. The testimony of prosecutrix PW-1 itself is not inspiring confidence for existence of large improbabilities, inconsistencies and contradictions. As such, in the facts and circumstances, learned Sessions Judge has rightly arrived at the finding that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view also, prosecution has failed to bring home the guilt of the accused. Accordingly, the appeal, being devoid of any merit is, therefore, dismissed.

Bail bonds, furnished by the respondent-accused are hereby discharged.