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Judgment
Deepak Gupta, Judge
This appeal by the State is directed against the judgment dated 5.8.2004, delivered by the learned Sessions Judge, Chamba Division, Chamba, H.P., whereby respondent No. 1 has been acquitted of having committed offences punishable under Sections 376, 451, 323 and 506-II IPC read with Section 34 IPC and other three respondents have been acquitted of having committed offences punishable under Sections 451, 323 and 506-II read with Section 34 IPC. The prosecution story, in brief, is that the prosecutrix is a married lady. Her husband, PW-2, was employed as Beldar in the Public Works Department at Chamba. Since he was posted away from his village, he used to visit his home only on holidays or on Sundays about once in a month. It is also admitted case of the parties that accused and the victim are co-villagers and their houses are adjacent to each other.
The prosecutrix states that on 5.12.2001 at about 11 am when she was alone in her house, since her husband was at Chamba and her children had gone to school, respondent No. 1 trespassed into her house. Thereafter, he had forcible sexual intercourse with the prosecutrix and threatened her that in case she disclosed this incident to anybody, he would kill her. It is alleged that though the prosecutrix struggled but to no avail and respondent No. 1 took off her salwar and subjected her to sexual intercourse. When the prosecutrix raised a hue and cry, her mouth was gagged with a shawl. After committing the act of rape, respondent No. 1 left the house of the prosecutrix and threatened her that in case she disclosed this fact to anybody, he would kill her.
According to the prosecutrix, during the struggle, her bangles were broken and her hair band was also removed. Her children returned back from school in the evening. She told her son PW-3 Manoj Kumar and daughter Seema (not examined) about the incident and complained to them that she had been raped by respondent No. 1. Thereupon, her son got angry and went to the house of respondent No. 1 and asked him why he had committed such a heinous offence against his mother. Manoj Kumar returned back to his home and thereafter, at about 5:30 pm, all the accused persons, i.e. Rattan Chand @ Ratto, his father Jarmo, his mother Dumni Devi and his wife Dillo Devi came to the house of the prosecutrix and beat the prosecutrix and her son Manoj Kumar. On the next day i.e. 6.12.2001, the prosecutrix along with her son Manoj Kumar went to Chamba and told her husband about the entire incident. Thereafter, they went to the Police Station to lodge the complaint with the police and on the basis of the statement of the prosecutrix, FIR Ext. PA was lodged.
Thereafter, the police swung into action. The prosecutrix was got medically examined. The other codal formalities such as preparation of site plan etc. were completed. The shawl, Ext. P-1, which was alleged to be used to gag the mouth of the prosecutrix, pieces of bangles and hair band were taken into possession in the presence of the witnesses. One iron pipe Ext. P-7, which had been allegedly used by the respondents to beat Manoj Kumar, was also taken into possession on the alleged disclosure statement made by Jarmo, respondent No. 2. Manoj Kumar was also subjected to medical examination. On this basis, the accused/respondents were made to face the trial of having committed the offences punishable under Sections 376, 451, 323 and 506-II read with Section 34 IPC. After trial, all the accused/respondents have been acquitted. Hence, this appeal by the State.
At the outset, we may note that the genesis of the entire incident, which can be divided into two parts, is the alleged rape on the prosecutrix. It is this rape which led to the later incident, which occurred in the evening, wherein the prosecutrix and her son were allegedly beaten up by the rapist and his family members. The prosecutrix was examined on 6.12.2001. It would be pertinent to refer to the statement of PW-10 Dr. Amit Gupta. The relevant portion of the statement is as follows:
Local Inspection
Pubic hair are sparse (not matted). No apparent seminal or blood stains seen. Labia Majora, Labia Minora normal, hymen ramanent seen.
P/S Examination
T.V. discharge positive. Cervix is downward and forward.
P/V Examination
Uterus is retroverted multiparous size, firm, mobile. Vaginal is roomy admits three fingers easily.
The Doctor had taken the samples of pubic hair and vaginal swab of the prosecutrix. The same were sent for forensic examination. The report of the Forensic Laboratory is Ext. PX. As per report of the Forensic Laboratory, though human blood was found on the salwar of the prosecutrix, no semen was found. On the shirt worn by the prosecutrix and her pubic hair and on the pant of respondent No. 1, neither blood nor semen was found. As far as the Endo Cervical Swab, Uretheral Swab and Post Fornix Swab of the prosecutrix are concerned, though blood was found, no semen was found.
On this basis, the Doctor opined that the prosecutrix had not been subjected to sexual intercourse within last 48 to 72 hours. This, therefore, totally negatives the case of the prosecution and the very genesis of the entire occurrence becomes not only extremely doubtful, but it is apparent that a false case of rape was cooked up. Furthermore, the prosecutrix has stated that there was no enmity between the two families, but her husband has clearly admitted that the relations between two families were strained and they were not on talking terms for the last about two years prior to the incident.
As far as injury caused to Manoj Kumar is concerned, the Doctor opined that it was only a simple injury which could have been caused due to fall. Even otherwise, the story of the prosecutrix is not believable. The allegation of the prosecution is that when the prosecutrix told her son that she had been raped by respondent No. 1, Rattan Chand, not only he, but his parents and his wife came to attack the prosecutrix and her son. If somebody makes an allegation of rape against a person, definitely the wife and mother would not join the rapist in attacking the victim. Therefore, this story does not appear to be plausible. In view of the above discussion and observations, we are of the view that the prosecution has failed to prove its case. Accordingly, the present appeal is dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged.