1. Feeling aggrieved of impugned judgment dated 30.12.2014 passed by learned Sessions Judge, Udhampur, whereby acquitting respondents-accused, namely Sham Singh, Prem Nath, Joginder Singh, Rekha Devi, Vidya Devi & Seema Devi in case FIR No.153/2012 of Police Station Ramnagar registered under Sections 376/323/147/382 RPC, State has filed SLAA No.83/2015 seeking leave to file Cr. Acq. Appeal. Since there is a delay of 79 days in preferring the appeal, State has also filed Condonation Application being Cond.(Cr.) No.68/2015 praying for condonation of said delay.

2. For the reasons mentioned in the condonation application, we are satisfied that a sufficient case for condoning the delay is made out. Delay of 79 days in filing the appeal is condoned. Cond.(Cr.) No.68/2015 is disposed of.

3. For the purpose of grant of leave to appeal, we deemed it appropriate to go through the merits of the appeal. However, in order to satisfy ourselves, we have with the able assistance of learned Addl. AG, gone over the judgment passed by learned trial Court and record of court below.

Prosecution case is that on 23rd of October, 2011 at about 4 PM the prosecutrix was grazing her cattle in her field when the accused came to the field caught hold of the prosecutrix and committed rape upon her. The complainant raised hue and cry when the brother-in-law of the complainant, Rakesh Kumar came on spot and on seeing him the accused Sham Singh fled away from spot. That after an hour of the incident at about 5 PM, the accused Rekha Devi wife of Lala, Vidya Devi wife of Prem Singh, Seema Devi daughter Prem Nath, Joginder Singh, son of Prem Nath, Prem Nath S/o Dhani Ram came to the field of the prosecutrix and started beating the prosecutrix with sticks mercilessly. On raising the hue and cry by the prosecutrix, complainant Chanchalo Devi wife of Purshotam Kumar came on spot to save the prosecutrix but the accused aforementioned beat Chanchalo Devi also; when the inhabitants of the village came on spot, the accused persons fled away from spot.

That the accused also snatched golden nose rings of prosecutrix and Chanchalo Devi and silver ear rings of both the ladies. On this report a case under section 376/323/147/382 RPC under an FIR number 153/2011 was registered, after completing the investigation the charge sheet under Section 323, 376/147 RPC was produced against six accused/respondents before JMIC, Ramnagar on 27.12.2011. It was committed to the Court of Principal Sessions Judge, Udhampur and accordingly the accused Sham Singh was charge sheeted under Section 376 RPC and rest of the accused were charge sheeted under Section 323/147 RPC. The accused denied the accusation and prosecution was directed to produce the evidence.

The brief resume of prosecution witnesses which were produced before the Court below reads as under;

PW Dr. Pankaj Gupta has opined and regarding the injury sustained by Chanchalo Devi, who has stated that he noted a linear bruise on the left side of her back and also stated that her medical examination was conducted on 25th of October, 2011.In cross-examination by the defence counsel the witness has stated that the injury could be self inflicted or possible by fall on at a rough surface.

PW Reno Manhas is the witness who has examined the prosecutrix on 25th of October, 2011 who has stated that there was no mark of any external injury on her body and as per her examination Vagina of the prosecutrix admitted two fingers easily and the prosecutrix was habitual of sexual intercourse and there was no recent evidence of any sexual intercourse and the vaginal fornix did not show any presence of supermatozoa.

PW Shonku Ram has stated that Sunitha Devi and Chanchalo Devi are his daughters in law and on 23rd of October, 2011 he was present on his mili where he was working when Sunitha Devi and Chinchilla Devi reached here at 5:30 PM and told that accused Sham Singh has done wrong thing with prosecutrix and that Chinchilla Devi had received injuries on her back and the other accused had also assaulted her. He has further stated that since it was late so they lodged the report on the next day and the medical examination of the daughters in law was conducted on 25th of October, 2011. He has further stated that the ring with which the trouser of the prosecutrix was sealed had been kept on his superdnama but the same has been lost. However, he identifies his signatures on the exhibit EX TP 5 which is true and correct and the same pertains to the seizure of the trouser and another memo pertains to the superdnama EXTP 5/1. In cross-examination by the defence counsel the witness stated that it takes about three hours to reach police station around in the from the Village Satian. A dispute between him and accused Prem Nath is going on her last more than one year and all the villagers have complained against the accused regarding his occupation of state land from where he has been evicted. It is wrong to suggest that on the date of occurrence the accused Sham Singh had restrained them from driving the cattle into the land was arrested by him where they wanted the cattle to graze on which the case was registered. He has further stated that the trouser which had been warned by the prosecutrix on the date of occurrence was ceased on the same day.

The prosecutrix whose statement was recorded on 24th of September, 2012 well has stated in her examination in chief that on 23th of October, 2011 she had gone into her field along with her cattle at 4 PM when the accused Sham Singh came who started driving out her cattle from the field. She objected. He dragged her. He brought down her trousers and committed rape upon her forcibly. She started weeping. Meanwhile, her brother-in-law, Rakesh came and when he saw her naked the accused Sham Singh ran way. On seeing him Rakesh went to call her sister in law who brought trousers from her home and gave it to her and thereafter the other accused Prem Nath with their Devi, Seema Devi, Rekha Devi, Joginder came on spot and assaulted and also beat both, her and Chanchalo Devi. Thereafter they went to the father in law on his mill. He took the chowkidar. By that time it was dark. Next day they went to Ramnagar. They moved an application before the Court. Thereafter they went to Police Station. Thereafter they were medically examined. Her trouser was seized by Police. She has gone through the contents of seizure memo EXTP1/1 and EXTP1/2 . Her statement was recorded on spot. In cross-examination by the defence counsel, the witness stated that when she had gone to graze her cattle she had gone on the own land. The land of the accused is situated at our place. Accused Sham Singh had driven and out her cattle. He had driven them forcibly. Her home is near the place of occurrence and there is no other house situated nearby. It is wrong to suggest that there is dispute between them and the accused were land. Before this occurrence the accused had not assaulted them. She has not mentioned in her report that the accused want to drive her out from the village. First of all she had narrated about the occurrence to her father in law and the place of occurrence is visible from the home. Her trouser was torn. There was no injury on her body. She tried to save herself and struggled for 15 minutes and her brother in law was seeing her struggle from his home. Why the accused Sham Singh had come on spot for driving the cattle out she does not know. Her trouser was not torn, however, its string had been broken by the accused. Sham Singh did wrong thing with her and thereafter left. Something had come out of his pennis after doing the act. Her brother-in-law had seen this act. She did not call any other person on spot. It takes about one hour to reach from the place of occurrence to the mill where her father in law was working. First information report was got written by her father in law. What was mentioned in the same, she does not know. However, she had narrated about the occurrence to police. Had the accused not assaulted them that they would not file a case against them.

PW Rakesh Kumar whose statement was recorded on 24th of September, 2012 has stated in his examination in Chief that he knows the prosecutrix and the accused also. The prosecutrix is his sister in law. On 23rd of October, 2011 he was standing outside his house when at 4 PM and alarm was raised. He went on spot towards the direction from where the alarm was being raised. The accused had opened in the trousers of the prosecutrix and had committed a wrong thing with her. On seeing the same he returned to his house and send Chinchilla Devi there. He did not go to save his sister in law. Because he was ashamed as to why the same thing had happened with the prosecutrix. In cross-examination by the defence counsel the witness stated that he continued to see the occurrence for about 3 to 4 min. at a distance of about 10 yards from the place. He had told Chinchilla Devi that they were being defamed. He had asked her to go and bring the prosecutrix with her. There is no dispute with the accused. They are on talking terms with the accused.

PW Godawari Devi has expressed ignorance about the occurrence and she has been turned hostile who has stated in cross-examination that when she reached on spot, the quarrel had ended.

PW Kuldeep Kumar has stated that on 23rd of October, 2011 the father-in-law of the prosecutrix had come to him at 6 PM who had told him that a quarrel took place between the accused and the ladies. He asked him to come on spot. He had gone on spot and there was no one. He was declared hostile. He has stated that it is wrong to suggest that say that had told him that accused has committed rape with the prosecutrix.

PW Sarnu has stated that on 23rd of October, 2011 Rakesh told him that the accused Sham Singh has insulted the prosecutrix and that he had seen the accused fleeing away. At that time the prosecutrix was in bushes, who was weeping. In cross-examination by the defence counsel he has stated that he has got no relationship with the prosecutrix, however, Rakesh is the son of his aunt.

PW Mohammad Farooq has been given up.

PW Subash Komar, Naib Tehsildar, is the witness of resealing and sending of authority letter to the Forensic Science Laboratory.

PW Rattan Chand has stated that he knows the parties and on the day of occurrence he was going to his field and when he reached near he heard the alarm of the prosecutrix. He was declared hostile. In cross-examination by Public Prosecutor, he has stated that he had recorded in his statement before the Police that the prosecutrix told him that accused Sham Singh has done wrong with her. In cross-examination by the defence counsel, he stated that he is an illiterate. Police had taken his thumb impression on papers. He does not know as to why the prosecutrix and accused are having dispute over land.

4. On appreciating the evidence on record, the Trial Court has acquitted all the accused by observing that victim has stated that the accused Sham Singh came first of all, who drove out the cattle out of the field, and she objected the accused, all of sudden, pulled down her trouser and committed rape upon her. Then her brother in law (Jeth) Rakesh came on spot who saw the occurrence and on seeing him he (the accused) left, then the other accused also came who assaulted her and her sister-in-law Chanchlo Devi; that she was pulled rather dragged by the accused at some distance and she tried to resist the act of rape committed upon her by the accused and she could not save herself.

5. But the doctor who has examined her has opined that there was no apparent external injury on the body of the prosecutrix. Doctor has also stated in cross-examination stated that she did not receive any external injury. So Court of the view that the statement of the victim is not corroborated by the evidence of the doctor.

6. Court below further held that PWs Rattan Chand, Godawari Devi and Kuldeep Kumar have not supported the prosecution version. These witnesses have been turned hostile and the I.O. has also not been produced in the case. Therefore, Court below concluded that there was no material to convict the accused/respondents.

7. We have given thoughtful consideration to whole of the matter and law on the point. It is settled law that the conviction can be based on solitary statement of the prosecutrix. It is easy to level allegations of rape but it is very difficult to prove the same. Because as per Criminal Jurisprudance everything is upon prosecution to prove the case.

8. In AIR 2012 (SC) 2281 [LQ/SC/2012/508] in case titled Narinder Kumar Vs. State (NCET of Delhi), it has been held:-

23. The court while trying an accused on charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of witnesses which are not of a substantial character.

However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in rape case the victim and other witness have falsely implicated the accused.

9. In the present case, we are of the considered opinion that finding of court below is not perverse in nature; as the statement of the prosecutrix if considered along with other attending circumstances, it does not inspire confidence of court, as facts narrated by her are not supported with medical evidence as held by the Court below; bare perusal of certificate of Doctor PW Renu Manhas EXTP-12, it is evident that doctor has categorically stated that there is no definite opinion of recent inter-course as no spermatozoa and no mark of injury on body has been found; further PW Shonku Ram father of prosecutrix has stated nothing substantial incriminating against the accused persons, he has stated that her daughters told that accused has committed has some wrong with prosecutrix; he has also admitted the dispute between him and accused Prem Nath; PWs Kuldeep Kumar and Rattan Chand, have been declared hostile. PW Mohd. Farroq has been given up; PW Goawari Devi has stated nothing, she has deposed that she has no personal knowledge of incident. PW Rakesh Kumar has stated that on 23.10.2011, it was 4 pm;

he was at home; he heard noise and went there and saw Sham Singh has opened string of salwar of victim and committed wrong act; on seeing the same he returned to his house. Bare perusal of conduct of this witness, it is evident that his conduct is strange as instead of rescuing the victim, he came home. Further, statement of prosecution witnesses have been recorded on 25.10.2011 under section 161 Cr.P.C., whereas the statement of prosecutrix under section 164-A Cr.P.C. has been recorded on 17.11. 2011, after more than 20 days of occurrence. The FIR in the case has been sent to Court on 25.10.2011. I/O in the case has not been examined, so delay in sending FIR to court and delay in recording statements of witnesses has been remained unexplained.

10. In SPECIAL LEAVE PETITION (CRL.) NO. 5073/2011, State of Karnataka Vs. Shivanna @ Tarkari Shivanna decided on 25 April, 2014, it has been held as under:-

On considering the same, we have accepted the suggestion offered by the learned counsel who appeared before us and hence exercising powers under Article 142 of the Constitution, we are pleased to issue interim directions in the form of mandamus to all the police station in charge in the entire country to follow the direction of this Court which are as follows:

(i) Upon receipt of information relating to the commission of offence of rape, the Investigating Officer shall make immediate steps to take the victim to any Metropolitan/preferably Judicial Magistrate for the purpose of recording her statement under Section 164 Cr.P.C. A copy of the statement under Section 164 Cr.P.C. should be handed over to the Investigating Officer immediately with a specific direction that the contents of such statement under Section 164 Cr.P.C. should not be disclosed to any person till charge sheet/report under Section 173 Cr.P.C. is filed.

(ii) The Investigating Officer shall as far as possible take the victim to the nearest Lady Metropolitan/preferably Lady Judicial Magistrate.

(iii) The Investigating Officer shall record specifically the date and the time at which he learnt about the commission of the offence of rape and the date and time at which he took the victim to the Metropolitan/preferably Lady Judicial Magistrate as aforesaid.

(iv) If there is any delay exceeding 24 hours in taking the victim to the Magistrate, the Investigating Officer should record the reasons for the same in the case diary and hand over a copy of the same to the Magistrate.

(v) Medical Examination of the victim: Section 164 A Cr.P.C. inserted by Act 25 of 2005 in Cr.P.C. imposes an obligation on the part of Investigating Officer to get the victim of the rape immediately medically examined. A copy of the report of such medical examination should be immediately handed over to the Magistrate who records the statement of the victim under Section 164 Cr.P.C.

11. As per above law, statement of prosecutrix was required to be recorded within 24 hours and in case of fail, the Investigating Officer should record the reasons for the same in the case diary and hand over a copy of the same to the Magistrate. As already held, I/O has not been examined. So, these aspects of the matter have remained unexplained.

12. Resultantly, we decline to grant leave to appeal against the judgment of acquittal earned by the respondents-accused. SLAA No.83/2015 is Dismissed accordingly. Consequently, Cr. Acq. Appeal also Dismissed.