Mahesh Bhagwati, J.
1. Ratan Lal, the appellant herein, was put to trial before Additional District and Sessions Judge, Kishangarhbas District Alwar who vide judgment dated 23rd July, 1987 convicted him in the offence under Section 376 read with Section 511 of IPC and sentenced him to Rigorous Imprisonment for two and half years and fine of Rs. 500/-; in default of payment of fine to further suffer Rigorous Imprisonment for three months.
2. The prosecution case, in brief, is that on 12th June, 1986 at about 10.00 p.m. the prosecutrix was sitting in her house made of thatch and cutting unripe mangoes. In the meantime, the accused appellant Ratan Lal came there and asked about her husband as to where was Ramesh The prosecutrix waived her hand indicating that he was not in the house. Thereafter he entered inside and caught hold of by hair and made her to lie on the ground. It is alleged that he bite her right cheek and suddenly sat on her. It is further alleged that the accused broke the string of her petticoat and after lifting his trouser endeavoured to commit rape, but she suddenly changed the side. Then the accused bite the wrist of her right hand by mouth. She screamed but the accused threatened her. In the meantime her husband Ramesh came and the accused fled from their. The prosecutrix lodged the FIR Ex. P/l with Police Station Tijara where upon the Police commenced investigation.
3. The Investigating Officer prepared the site plan Ex. P/2, recorded the statements of the witnesses Under Section 161 of Cr. P.C. got the prosecutrix medically examined, arrested the accused Ratan Lal vide arrest Memo Ex. P/7, got him also medically examined and after usual investigation put the accused to trial before the Court.
4. The accused was indicted for the offence under Section 376 read with Section 311 of IPC, who pleaded not guilty and claimed trial. In order to further its version, the prosecution examined in all seven witnesses. In his statements under Section 313 of Cr. P.C. the accused claimed to be innocent. After completion of trial, he was convicted and sentenced as indicated hereinabove.
5. Heard the learned Counsel for the appellant as also the learned Public Prosecutor appearing for the State-respondent and carefully perused the relevant material on record.
6. The learned Counsel for the appellant in the process of assailing the impugned finding made following submissions:
(i) That, the statement of prosecutrix P.W. 1 Indrawati is false in toto and not worth relying as she lodged the FIR Ex. P/1 in the offence under Section 376/511 of IPC, whereas during trial, she improved her case altogether converting it into an offence of rape.
(ii) Both the prosecutrix and her husband stated before the Police that the accused attempted to commit rape upon her but during trial both the witnesses deposed that the accused ravished her without her consent and against her will.
(iii) The prosecution case is full of contradictions, exaggerations and embellishments in material particulars.
(iv) The learned trial Judge did not take serious note of all these relevant facts, which demolishes the whole prosecution case.
(v) That the statement of prosecutrix does not stand corroborated by the medical evidence also, as she did not sustain any injury of teeth bite on her right cheek.
7. Learned Public Prosecutor, however, supported the impugned Judgment and canvassed that the testimony of prosecutrix was rightly believed by the trial Court. Having scanned the material on record and considering the statements of the prosecutrix as also all other witnesses, the fact situation emerges in this case as under:
(i) The prosecutrix stated before the Police that she was sitting in her house under a thatch and the accused appellant suddenly came, asked about her husband and finding her alone, attempted to commit rape upon her whereupon the case was registered in the offence under Section 376/511 of IPC; by police.
(ii) The prosecutrix changed the entire story during the trial and deposed before the Court that the accused ravished her without her consent.
(iii) The prosecutrix before the police stated that the accused lifted his trouser and endeavoured to commit rape but during the trial she deposed that the accused took off his trouser and then ravished her. She further deposed that the accused penetrated his penis into her vagina.
(iv) The prosecutrix stated before the Police that the accused bite her right cheek, whereas the fact of biting her right cheek is not supported by the medical evidence.
(v) P.W. 6 Dr. R. K. Malik medically examined the prosecutrix and found abrasion teeth bite oval in shape over left side of cheek.
(vi) No other injury was found on any part of the body of the prosecutrix.
8. The accused appellant in his explanation under Section 313 of Cr. P.C. stated that the appellant had animus with her brother-in-law. Since he intervened between them, the prosecutrix falsely implicated him.
9. The testimony of prosecutrix in the instant case is vital, since she is married and the medical evidence in no way corroborates the charge. It is well settled in law that conviction for offence of rape or attempt to commit rape can be based on the sole testimony of the prosecutrix, provided that it is found reliable, unimpeachable and it is without any infirmity. The testimony of the prosecutrix is required to be appreciated in the back ground of entire case. The onus to prove that the accused committed sexual intercourse or attempted to commit rape with the prosecutrix sans her consent and against her will, as laid in Section 375 of IPC, is on the prosecution.
10. The law is well settled that the prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon and made basis of conviction unless corroborated in material particulars. However, the rule about the admissibility of corroboration should be present to the mind of the Judge. In State of H.P. v. Gain Chand : (2004) 6 SCC 71 : 2001 Cri LJ 2548. on a review of decisions of the Apex Court, it was held that conviction for an offence of rape could be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc. if the same is found to be natural, trustworthy and worth being relied on.
11. The Hon'ble Apex Court further held that:
12. ...If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations....
13. In Madan Gopal Kakkad v. Naval Dubey : (1992) 3 SCC 204 : 1992 AIR SCW 1480 this Court has held (vide para 23) that lack of oral corroboration to that of a prosecutrix does not come in the way of a safe conviction being recorded provided the evidence of the victim does not suffer from any basic infirmity, and the probabilities factor' does not render it unworthy of credence, and that as a general rule, corroboration cannot be insisted upon, except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected t6'be forthcoming.
12. Now adverting to the facts of the instant case, it is noticed that the police registered the case in the offence under Section 376/511 of IPC. The prosecutrix in her report Ex.P/1 stated that she was cutting the unripe mangoes under a thatch where she was sitting alone. There the appellant came, made her to lie on the ground, sat on her, lifted his trouser and attempted to commit rape, but since she suddenly took the side, the appellant could not succeed in committing rape. Her statement before the trial Court is alarming and shocking. Before the trial Court she deposed that the accused suddenly came and asked about her husband as to where was he. When she waived her hand indicating that he was not in the house, the appellant caught hold of by her hair and made her to lie straight on the ground. He bite her right cheek. She wept and screamed but the accused sat on her. He broke the string of her petlcoat, took off his trouser and forcibly penetrated his penis into her vagina. When she wept and struggled, the accused bite wrist of her right hand and threatened her to keep quiet. Having quenched his wild lust, he fled from there. We find a sea change in the statements of prosecutrix given before the police while lodging the FIR Ex. P/1 and the statements given before the trial Court. The prosecutrix seems to have not only improved upon her earlier statement but she is found to have totally changed her statements before the Court. The fact as narrated before the police constitute an offence under Section 376/511 of IPC, but the evidence led by her in the Court discloses an offence under Section 376 of IPC. Thus, we find an errie change, improvements and contradictions in the statements of the prosecutrix herself in material particulars. Similarly, her husband PW/2 Ramesh also took 'U' turn before the Court and improved his earlier statement given before the police.
13. There is one material contradiction with regard to teeth bite on her cheek. The prosecutrix repeatedly stated that the accused bite her right cheek. The SHO P.S. Tijara also in police proceedings scribbled beneath the report FIR Ex. P/1 that he physically inspected the body of prosecutrix and found a teeth bite on her right cheek and the wrist of right hand, whereas PW/6 Dr. Malik stated that on 14th June, 1986 he examined Ms. Indrawati w/o Ramesh and found abrasion (teeth bite) 3 cm x 2 cm, oval in shape over left side op cheek. Thus, as per the medical examination report Ex. P/6, P.W. 6 Dr. Malik found a teeth bite on the left cheek of the prosecutrix, whereas the prosecutrix herself deposed that the appellant bite her right cheek and surprisingly PW/7 Rajendra Singh the then SHO Police Station Tijara also on physical examination of her body found a teeth bite on right cheek of prosecutrix, a mention of which has been made in 'Karyavahi Police' scribed on FIR Ex. P/l. These two contradictory statements with regard to the teeth bite on the cheek of the prosecutrix, lead the Court to infer that either the medical examination report Ex. P/6 of prosecutrix Indrawati and the statements of PW/6 Dr. Malik are false or the prosecutrix, her husband and PW/7 Rajendra Singh SHO have given false statements. As already stated that it is well settled law that conviction in offence of rape can be based on the sole testimony of the prosecutrix if it is reliable, unimpeachable and there is no infirmity. But, if the statement of the prosecutrix is found to be unnatural, untrustworthy and unreliable, then the whole prosecution case can be abandoned.
14. In the above back drop, the evidence of the prosecutrix when read as a whole, is found to be full of discrepancies, improvements and exaggerations and does not inspire confidence. The gaps in the evidence, several discrepancies in the evidence of prosecutrix and PW/6 Dr. Malik, the exaggerated version of the prosecutrix and other surroundings circumstances make it highly improbable that such an incident ever took place. The story of rape as unfolded by the prosecutrix is not found to be correct and the statement of the prosecutrix did not lend any assurance. The Court finds it difficult to accept the version of the prosecutrix that any sexual assault as alleged was committed on her in view of the fact that her narration of incident before the Police and thereafter before the trial Court becomes basically infirm on account of there being contradictions, improvements, exaggerations and embellishments in material particulars and further on account of there being medical evidence with regard to teeth bite on cheek, contrary to the statement of the prosecutrix.
15. The impugned judgment seems to be perfunctory in the circumstances, I am of the considered opinion that the prosecution miserably failed to establish the charge against the accused appellant in the offence under Section 376 read with Section 511 of IPC. The learned trial Judge did not take serious note of all these discrepancies, contradictions, exaggerations and embellishments emerging in the statements of the witnesses, including the prosecutrix recorded by the trial Court. The impugned judgment rendered by the learned trial Court is found to be sketchy and perverse and is not found sustainable.
16. For these reasons, the criminal appeal is allowed. The appellant stands acquitted for the offence punishable under Section 376/511 of IPC. The conviction of the appellant in the offence under Section 376/511 of IPC and sentence as awarded to him vide impugned judgment are set aside. The bail bonds of the accused appellant are discharged.