AMARJOT BHATTI, J.

1. The appellant - Raman Kumar has filed the instant appeal against the judgment of conviction dated 07.09.2021 and order of sentence dated 08.09.2021 in FIR No.136 dated 23.09.2016 under Section 376 of IPC, Police Station Maqsudan, District Jalandhar vide which he has been convicted and sentenced under Section 376 IPC to undergo Rigorous Imprisonment for a period of 7 years and to pay fine of Rs.50,000/- and in default of payment of fine to further undergo Rigorous Imprisonment for a period of 6 months and under Section 457 IPC to undergo Rigorous Imprisonment for a period of 5 years and to pay fine of Rs.10,000/- and in default of payment of fine to further undergo Rigorous Imprisonment for 6 months.

2. The brief facts of the case are that the prosecutrix gave her statement to the police that she was residing as tenant in street Pehalwan Randhawa, village Masanda, PS Maksoodan, District Jalandhar. She was a dancer by profession. She got married 10 years ago with Mangat Ram.

However, due to matrimonial dispute she started residing separately along with her daughter for the last about 3-4 years. On 21.09.2016 at about 10.30 PM she was present in the house along with her daughter Navyya when Raman, who was also working as dancer with her, came to her house along with his friend in drunkard condition. He was turned out of the house. Thereafter she slept in the room along with her daughter. On 22.09.2016 at about 1.30 am (midnight) Raman Kumar along with his friend entered her house by scaling the wall. His friend took her daughter to the roof top of the house and Raman forcibly committed rape with her. She could not raise alarm as her mouth was closed while he raped her. Due to fear she could not raise her voice later-on. Thereafter, she narrated this incident to her friend Varinderjit Kaur. The prosecutrix along with her friend lodged the complaint and prayed for action against Raman Kumar. The investigation was handed over to SI Atamjit Singh. On the basis of this complaint present FIR was registered. Later-on the prosecutrix gave her supplementary statement that on 21/22.09.2016 only Raman Kumar had come and raped her. Raman Kumar was arrested on 07.02.2017. The entire investigation was completed. The medical record was collected.

3. After completion of investigation, the challan was prepared and copy thereof was supplied to the accused Raman Kumar. The offence under Section 376 IPC was exclusively triable by the Court of Sessions, therefore, vide order dated 06.04.2017 the case was committed to the Court of learned Sessions Judge, Jalandhar. After hearing arguments advanced by learned Additional Public Prosecutor and learned counsel for the accused the chargesheet was initially framed under Section 376 IPC on 01.06.2017 and subsequently the amended chargesheet was framed under Sections 376 and 457 IPC on 14.11.2018.

4. In order to prove the facts of the case the prosecution examined Bharti - mother of the prosecutrix as PW1, the prosecutrix herself as PW2, Amrit Lal landlord of the prosecutrix as PW3, Dr. Sukhwinder Singh, Emergency Medical Officer who medically examined the accused as PW 4, Dr. Birinder Kaur Medical Officer who medically examined the prosecutrix as PW-5, the Investigating Officer SI Atamjit Singh as PW-6, ASI Rajinder Kumar the carrier of parcel as PW-7, ASI Gurjit Singh who handed over the sealed parcels to HC Rajinder Kumar as PW8, Ms. Parminder Kaur, Judicial Magistrate 1* Class who recorded the statement of victim under Section 164 Cr.P.C. as PW9, Lady Constable Baljit Kaur as PW-10, ASI Manjit Singh as PW-11, Navya minor daughter of the prosecutrix as PW12, Varinderjit Kaur friend of the prosecutrix as PW13 and closed the prosecution evidence.

5. The statement of the accused was recorded under Section 313 Cr.P.C. vide which the entire incriminating evidence was put to him to which he denied and took the stand that he was innocent and he did not commit any offence. He is falsely implicated in this case at the instance of Rajesh Kumar with whom the prosecutrix was having physical relations and she wanted to marry him. The parents of Rajesh Kumar did not agree to this marriage. The said Rajesh Kumar was known to him and he told the prosecutix that he (accused) instigated the parents of Rajesh Kumar not to agree with this marriage proposal. Therefore, he was falsely involved in this criminal case.

The accused did not lead any evidence in defence.

6. After hearing arguments advanced by learned Additional Public Prosecutor and learned counsel for the accused, the accused was held guilty under Sections 376 and 457 IPC and he was sentenced as referred above.

7. I have heard the arguments advanced by learned counsel for the appellant and learned counsel representing the State and have gone through the evidence recorded by the trial Court carefully.

8. Learned counsel for the petitioner argued that the trial Court has failed to consider the testimony of prosecutrix examined as PW2 as well as her cross-examination. She has given contradictory version in the application Ex.PW2/A as compared to her version in the supplementary statement dated 07.02.2017 Ex.D1 (wrongly written as 07.02.2014). It is argued that initially it was claimed that Raman Kumar had come along with another boy but subsequently the prosecutrix changed her version by alleging that only Raman Kumar had come to her house and committed rape with her. The house of prosecutrix is situated in thickly populated area. She did not raise any alarm. The version put forward regarding the manner in which offence has been committed is highly improbable. The version of prosecutrix as PW2 as well as her daughter examined as PW12 cannot be safely relied upon as both are interested witnesses being mother and daughter. The other witnesses examined by the prosecutrix is Varinderjit Kaur as PW13 who is also her friend and she is also an interested witness. The prosecutrix changed her version time and again. Therefore, her testimony is unreliable. Learned counsel for the appellant has relied upon the authority of Division Bench of this Hon’ble Court in CRA-D No.148-DB of 2016 (O&M) decided on 02.09.2020 titled as Kamaljeet and others Vs. State of Haryana, “where while dealing with the case under Sections 323, 365, 376D and 34 of IPC it was held that conviction can certainly be based upon sole testimony of prosecutrix. However this can be done only when testimony is so strong that even in absence of any corroborating evidence, conviction is save. Each and every case has to be considered on its own facts and circumstances.” In the case in hand, the testimony of prosecutrix as PW2 is self contradictory, therefore, it cannot be relied upon.

Learned counsel for the appellant further referred to the testimony of Dr. Birinder Kaur as PW5 who medically examined the prosecutrix on 23.09.2016. She admitted that there was no external or internal injury on the body of the victim and as per the history given by the patient the incident of sexual activity was one week prior to the examination. Doctor further confirmed that the possibility of habitual sexual activity cannot be ruled out.

It is argued that the alleged occurrence took place on the intervening night of 21/22.09.2016. However the written complaint was filed by the prosecutrix on 22.09.2016. On the basis of which the present FIR No.136 dated 23.09.2016 was registered. The delay of one day in lodging the FIR had remained unexplained.

It is further pointed out that no proper investigation was carried out by the police. The clothes worn by the prosecutrix at the time of alleged occurrence were never handed over to the police. It is wrongly claimed that the appellant was Dancer by profession. In-fact he is driver by profession and he works on contract basis with the contractor and his duty was with Verka Milk Plant. The Investigating Officer at his own level never tried to find out who was the other person who was allegedly accompanying the present appellant on the day of alleged occurrence. Therefore, the evidence led by the prosecution was not trustworthy. The learned trial Court wrongly relied upon the testimony of prosecutrix and other witnesses examined by the prosecution and he was wrongly held guilty under Sections 376 and 457 of IPC. It is prayed that the judgment of conviction and order of sentence passed by the learned trial Court may be set aside.

9. On the other hand learned counsel representing the State argued that the facts of the case are duly proved on record by the testimony of prosecutrix examined as PW2. She has narrated the manner of occurrence. Her version is supported by her minor daughter who is examined as PW12. The prosecution version is also supported by Varinderjit Kaur PW13 who had accompanied the prosecutrix at the time of recording of FIR. Bharti mother of the prosecutrix is also examined as PW1 to prove the occurrence which took place with her daughter. Amrit Lal PW-3 confirmed that at the time of occurrence the prosecutrix was residing in his house on rent and thereafter she left the house in October, 2016. Dr. Birinder Kaur PW5 has proved the medical record of the prosecutrix, copy of MLR as Ex.PW5/A and the report of Chemical Examiner Laboratory PW5/B according to which spermatozoa was detected on Ex.1 & II tested in Laboratory. Doctor gave her opinion that possibility of sexual activity cannot be ruled out. Similarly Dr. Sukhwinder Singh PW4 proved the medical examination report of the appellant/convict which is Ex.PW4/B. The prosecutrix had given statement before the Magistrate. Ms. Parminder Kaur, Judicial Magistrate 1* Class as PW9 has proved the statement of the prosecutrix recorded by her as Ex.PW2/B. The entire investigation carried out by the police is proved by SI Atamjit Singh PW6 assisted by Lady Constable Baljit Kaur PW10. The convict was arrested on 07.02.2017 by ASI Manjit Singh who is examined as PW11. The link evidence is proved on file by ASI Gurjit PW8 and ASI Rajinder Kumar as PW7. Therefore, the prosecution has examined all the material witnesses to prove the guilt of appellant/convict. The evidence led by the prosecution was rightly appreciated by the trial Court and he was rightly held guilty and sentenced under Sections 376 and 457 IPC. It is prayed that appeal preferred by the appellant/convict may be dismissed.

10. I have considered the arguments advanced before me and I have also gone through the record of trial Court carefully. The present FIR has been registered on the written complaint of the prosecutrix dated 22.09.2016 addressed to SHO Police Station Maksudan. As per this complaint the prosecutrix alleged that she got married 10 years ago with Mangat Ram but due to matrimonial dispute she started residing separately along with her minor daughter for the last 3-4 years. On 21.09.2016 at about 10.30 pm when she was present in the house along with her daughter. Raman Kumar who was also working as dancer in their group came to her house along with his friend in drunkard condition but they were expelled from the house. Thereafter, she went to sleep along with her daughter in the Room. In the intervening night of 21/22.09.2016 at about 1.30 am Raman Kumar along with his friend entered in her house by scaling the wall. The friend of Raman Kumar took her daughter on the roof and Raman Kumar committed forcible rape with her. She could not raise alarm as her mouth was closed and she was threatened by the accused. She disclosed about this occurrence to her friend Varinderjit Kaur and in the morning on her arrival she came to the Police Station to file this complaint. The written complaint filed by the prosecutrix is Ex.PW2/A. The statement of prosecutrix was recorded by the Magistrate on 23.09.2016 which is Ex.PW2/B in which she confirmed her previous version naming Raman Kumar and other boy. The statement of prosecutrix was recorded in the Court as PW2 where she confirmed this version. However, during cross examination the prosecutrix was confronted with her supplementary statement recorded by the police on 07.02.2017 (wrongly written as 07.02.2014) Ex.D1 where she claimed that Raman Kumar came to her house alone. This fact is also confirmed from the copy of challan report where it is mentioned that the supplementary statement of prosecutrix was recorded and accordingly the investigation was carried out only against Raman Kumar accused. There is no investigation carried out by the police regarding the other boy who allegedly came to the house of prosecutrix nor his name has been disclosed by the prosecutrix at any stage. The initial version of prosecutrix was supported by her minor daughter who is examined as PW12. Apart from these witnesses obviously there is no other witness to the said occurrence. The cross-examination of prosecutrix as PW2 is also material where she confirmed that she is residing in a rented house which is situated in thickly populated Mohalla. Even then the prosecutrix did not raise any alarm when Raman Kumar along with another boy came to her house in drunkard condition on 21.09.2016 at 10.30 PM nor she raised alarm when they entered her house by scaling the wall in the midnight at 1.30 am. She during her cross-examination categorically stated that she did not made any complaint to the landlord or any other respectable or police authority against the accused regarding the incident of 21.09.2016. The prosecutrix admitted that she had bolted the main gate of her house from inside and did not raise any alarm on the intervening night of 21/22.09.2016. It is highly improbable that despite the alleged incident of 21.09.2016 at 10.30 pm the prosecutrix along with her minor daughter slept in the room without bolting the door from inside. So far as the testimony of Bharti mother of the prosecutrix PW1 is concerned she did not see the accused entering the house. She admitted that she has given her version as told by the prosecutrix. Similarly, Varinderjit Kaur as PW13 has narrated the occurrence as told by her friend ie., the prosecutrix. Therefore, the testimony of these two witnesses does not help the case of the prosexutrix in any manner.

11. Learned counsel for the appellant pointed out that there is delay of one day in lodging the report to the police. As per the facts of the case the occurrence took place on 22.09.2016 at about 1/1.30 am whereas the FIR was lodged on 23.09.2016 at 1.40 hours on the basis of written complaint to SHO which is dated 22.09.2016 signed by the prosecutrix as well as attested by her friend Varinderjit Kaur PW13. The prosecutrix as PW2 in her cross-examination claimed that on the day of alleged occurrence i.e. 22.09.2016 she informed her friend Varinderjit Kaur and the landlord and also lodged the report to the police on telephone No.100. She further alleged that police came to her house at 7 am in the morning and made inquiry from her. Her statement was not recorded by the police but she had disclosed the name of the accused to the police. She further alleged that police did not call any respectable of the locality to confirm the occurrence. She further claimed that police had prepared the site plan of the place of occurrence on 22.09.2016 at 7 am. The perusal of file shows that site plan was prepared on 22.09.2016 after receiving the written complaint of the prosecutrix and thereafter the investigation was started.

12. The medical record of the prosecutrix is proved in the testimony of Dr. Birinder Kaur examined as PW5. As per the testimony of Dr. Birinder Kaur the prosecutrix gave history of alleged sexual assault one week back. She was brought to the Hospital on 23.09.2016 and was medically examined whereas the alleged occurrence took place on the intervening night of 21/22.09.2016. The medical record further shows that there was no injury mark anywhere on the body of the person. Therefore, there is no sign of force used on the person of prosecutrix while committing the alleged act of rape by the appellant/accused. The prosecutrix as PW2 during her cross-examination conceded that she did not handover her clothes and undergarments worn at the time of alleged occurrence to the police, as they never asked for the same. There is Chemical Examiner Report Ex.P5/B which shows that spermatozoa was detected on Ex.I and II tested in Laboratory and it was opined by the Doctor that the possibility of sexual activity cannot be ruled out. On this point the cross-examination of prosecutrix as PW2 is again material where she herself conceded that she had physical relations with Rajesh Kumar with whom she wanted to marry. In this case, there is no DNA test report to confirm that the spermatozoa detected on Ex.1 & II matched with the appellant/convict who is facing trial in this case.

13. The prosecution version is that the appellant/convict was working as a dancer in the group of prosecutrix who committed rape with her on the intervening night of 21/22.09.2016. There is cross-examination of prosecutrix as PW2 which indicates that she was having enmity towards the present appellant/convict. The prosecutrix during her crossexamination conceded that boy Rajesh Kumar with whom she was having relationship, was known to Raman Kumar appellant/convict. She further admitted that Rajesh Kumar told her that Raman Kumar instigated his parents for not agreeing to their marriage. Therefore, the prosecutrix is having very strong motive against the present appellant.

It is settled proposition of law that conviction can be based on sole testimony of the prosecutrix but at the same time it is required that the version of prosecutrix is reliable and trustworthy. In the case in hand, the prosecutrix changed her version by giving supplementary statement alleged that only one person had entered her house ie. the appellant/convict who allegedly raped her. The prosecutrix was having very strong motive to implicate the appellant/convict in this case as according to her he created hurdle in her marriage proposal with Rajesh Kumar. The conduct of prosecutrix is also highly improbable as she never raised any alarm when she was allegedly raped by the appellant/convict, even though her house was situated in thickly populated area. The medical record cannot be safely relied upon as there was no mark of internal or external injury on the body of the prosecutrix. She herself conceded that she was having physical relations with the other person Rajesh Kumar with whom she wanted to marry. There is no DNA test report. The aforesaid facts of the case were not considered by the trial Court. On this point there is an authority of Hon’ble Supreme Court of India cited in 2020 (2) R.C.R. (Criminal) 58 titled as Santosh Prasad @ Santosh Kumar Vs. State of Bihar which is fully applicable to the facts of the present case. It was concluded in that case that ‘the statement of prosecutrix did not inspire confidence and failed to pass the test of sterling witness as there was variation in her version about filing of complaint. There was delay in the FIR and the medical report did not support her case.’ The onus was on the prosecution to prove the guilt of the appellant/convict beyond the shadow of reasonable doubt which the prosecution has failed.

Considering the facts and circumstances of the case, the appeal preferred by the appellant/convict is accepted and the judgment of conviction dated 07.09.2021 and order of sentence dated 08.09.2021 passed by the learned Additional Sessions Judge, Jalandhar is set aside and he is acquitted of the charges framed against him under Sections 376 and 457 IPC by giving him the benefit of doubt. The accused be released from the custody, if not required in any other case.