Himachal Pradesh High Court
Vikram Singh Alias Vicky vs State Of Himachal Pradesh on 2 April, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 367 of 2016 .
Reserved on: 26.03.2018.
Date of decision: 02.04.2018
Vikram Singh alias Vicky ...Appellant
Versus
State of Himachal Pradesh ...Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. Aman Sood, Advocate, Legal-
aid-Counsel.
For the respondent : Mr. Vinod Thakur and Mr. Sudhir Bhatnagar, Addl. A.Gs. with Mr. Bhupinder Thakur, Dy. A.G. Justice Tarlok Singh Chauhan, Judge This appeal by the appellant seeks to challenge the judgment and order of conviction passed by the learned Special Judge, Sirmaur District at Nahan, H.P., whereby the appellant was convicted and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5000/- and in default of payment of fine, to undergo simple imprisonment for one month under Section 376(1) IPC and further directed to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. ::: Downloaded on - 03/04/2018 22:58:13 :::HCHP 2 5,000/- and in default of payment of fine to undergo simple imprisonment for one month under Section 3(1)(xi) of the SC ST .
Act.
2. Briefly stated the case of the prosecution is that the father of the prosecutrix PW2 Satya Ram came to the police station and got registered FIR No. 46 of 2014 on 18.12.2014, alleging therein that prosecutirx aged about 16 years, who was studying in 8th class had left home alongwith some unknown person on 16.12.2014 and thereafter her whereabouts were not known and he suspected that she may have been kidnapped by someone after giving allurement. It was further stated that he had received a telephonic call from his elder daughter Pooja (PW3) that she had received a phone call from the prosecutrix, who was weeping and this call was made from Mobile No.080532-05738.
3. The police swung into action and traced the location of the mobile phone near Ismailabad, District Kurukshetra, Haryana. After constituting a police team, the prosecutrix alongwith the appellant were recovered at Ismailabad on 20.12.2014. It was revealed during investigation that the prosecutrix alongwith her friend PW8 Miss Pariksha and her younger sister Anjana took tea in Sonu hotel at Dadahu bazar, where Miss Pariksha made a telephonic call to the appellant who ::: Downloaded on - 03/04/2018 22:58:13 :::HCHP 3 came there and kidnapped the prosecutrix and took her in a bus to Jamta where they stayed in the house of PW7 Prem Chand.
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Next day they came to Naraingarh by bus and there the appellant took her to the house of his aunt (Bua) and they stayed there for the night. Thereafter they went to the house of maternal uncle of the appellant by jeep where the appellant introduced her as his sister and later the friend of the appellant, namely Kailash took them to his quarter on the motor cycle where they stayed for night. She stated that in the night they slept together in one cot and was sexually assaulted. The next day, she was taken to Ismailabad from where she called her sister and thereafter the appellant came to be arrested.
4. After completion of the investigation, the appellant was sent to face trial for having committed offences punishable under Sections 363, 366A, 376 IPC, Section 4 of Protection of Children from Sexual Offences Act, 2012 (herein after referred to as POCSO Act) and Section 3(1)(xi) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as SC/ST Act).
5. The learned Special Judge after recording the evidence and evaluating the same has acquitted the appellant for the offences punishable under Sections 363, 366A IPC and Section 4 of the POCSO Act, however, the appellant has been ::: Downloaded on - 03/04/2018 22:58:13 :::HCHP 4 convicted for the offence punishable under Section 376(1) IPC and Section 3 of the SC ST Act, as aforesaid.
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6. Aggrieved by the judgment of conviction and sentence passed by learned Special Judge, the appellant has filed the instant appeal.
7. It is vehemently argued by Mr. Aman Sood, learned Legal-aid-Counsel for the appellant that the findings recorded by
8.
r to the learned Court below are perverse and, therefore, deserve to be set aside.
On the other hand, learned Additional Advocate General would argue that the judgment rendered by learned Court below is based upon the correct appreciation of evidence and passed strictly in accordance with law, therefore, the same calls for no interference.
I have heard learned counsel for the parties and have gone through the records of the case.
9. At the outset, it may be observed that the manner in which the learned Court below is proceeded to evaluate the evidence is not at all satisfactory. The learned Court below has formed a very firm opinion that the prosecutrix was simpleton and, therefore, even if she had sexual intercourse with the appellant, the same could not be termed to be consensual. This ::: Downloaded on - 03/04/2018 22:58:13 :::HCHP 5 is clearly evident from para-42 of the judgment which reads thus:-
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"42.As discussed earlier, the accused had not taken any defence that it was a consented sexual intercourse. Because, the accused had taken away the prosecutrix and as noticed earlier, since the prosecutrix was village simpleton girl, she might have been taken by the accused for taking her out to the cities, without knowing that she may be sexually assaulted. The area from where the prosecutrix hails, is a remote area of this district and the courts have been receiving the cases from such remote areas, where the girls have been sexually assaulted/exploited and even sold in the neighbouring State. Had such an offence been committed with the well educated girl residing in the busy/modern town, then the accused would have pleaded that the girl was a consenting party. But, in this case, no suggestion has been given to the prosecutrix that she was a consenting party and court cannot accept that the prosecutrix was a consenting party in the absence of any such evidence on record. This shows that the girl was sexually assaulted by the accused without her consent and will, when he had taken her to Ismailabad, from where she had been recovered subsequently by the police."
10. The aforesaid observations leave no manner of doubt that it is the so called innocence of the victim that prevailed so much upon the mind of the learned Court below that he proceeded to pass an order of conviction, as would be clear from further discussion.
11. It is the admitted case of the prosecution and is even otherwise disclosed in the testimony of PW1 prosecutrix that she alongwith her friend Miss Pariksha and younger sister had gone ::: Downloaded on - 03/04/2018 22:58:13 :::HCHP 6 to Dadahu bazar where they took tea in Sonu hotel. While they were there Pariksha gave a call to the appellant who came and .
kidnapped her. The prosecutrix herself stated that from Dadhu bazar she boarded a government bus and came to Jamta and stayed at the appellant's aunt (Bua) house for night. After that they proceeded to the house of maternal uncle of the appellant by jeep and then friend of the appellant Kailash took them to his quarter on motorcycle and both of them stayed during the night. She stated that in the night they had slept together on one cot whereas Kailash was not in the room and during the night the appellant sexually assaulted her twice. She further stated that next day, Kailash called the appellant to meet him at his shop and on the way police apprehended them and took them to police station Ismailabad. It was the police party that gave the call to her sister Pooja and after that her brother-in-law (Jija) Desh Raj came to the police station.
12. In order to evaluate the statement of the prosecutirx, it would be necessary to observe here that the learned Court below while acquitting the appellant for the offence under Sections 363, 366A IPC and Section 4 of POCSO Act has categorically held the prosecutrix not to be a minor. However, it has not believed the story of consensual sex only on the ground that the girl happened to be from remote area of the District and, ::: Downloaded on - 03/04/2018 22:58:13 :::HCHP 7 therefore, it was difficult to believe that she was a consenting party. Obviously, such far fetched observations cannot be upheld .
and the evidence otherwise need to be analysed within the well settled legal parameters. Bearing in mind the fact that rape causes distress and humiliation to the victim of the rape, but at the same time the Court has to be mindful to the fact that a false allegations of committing a rape also causes humiliation and damages to the accused and the accused has also rights which are required to be protected and the possibility of false implication has to be ruled out.
13. The Hon'ble Supreme Court in Radhu vs. State of Madhya Pradesh Cr.LJ 2007 (4) 4704 observed as follows:
"5. It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a 'rape', if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches ::: Downloaded on - 03/04/2018 22:58:13 :::HCHP 8 on the victim especially on the forearms, writs, face, breast, thighs and back are indicative of struggle and will support the allegation .
of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case."
14. Adverting to the facts, the prosecutrix in her cross examination clearly stated that she was having Rs.500 whereas Pariksha was not having any money. She further admitted that Pariksha had earlier left her house on various occasions and used to remain out of house even during night. The reports were also lodged regarding this in the police and those matters were later on compromised. She then proceeded to state that she had previously not met the appellant and stated that she boarded the bus with the appellant from Dadahu at 6:00 p.m. She specifically stated that previously she has not gone with any person in such manner. She admitted that she had not raised any alarm while boarding the bus. She admitted that it was the appellant who purchased the tickets and she visited Jamalta for the first time that too at the instance of the appellant. She admitted that when she alighted from the bus at 7:00 p.m. there was many passengers in the bus at Jamta. She stated that the house of the sister of the appellant was adjoining to the bazar at Jamta where ::: Downloaded on - 03/04/2018 22:58:13 :::HCHP 9 a boy and women, later qualified as husband and wife were residing and the house comprised of one room. The couple had .
one child. She further stated that she slept on the bed alongwith the appellant along with the couple with small child. She further stated that from there they boarded bus to Nahan in the morning and from Nahan they boarded another bus to Naraingarh. They reached Naraingarh at around 9:00 a.m. and stayed there for one day and she took bath and had food in the said house. She admitted that she was kept well in the house. From Naraingarh, they went to Ismailabad by car and reached there around 3:00 p.m. and stayed in the house of Kailash, which was single storeyed and having single room. Kailash left the room after leaving them there and during night the appellant had sexually assaulted her for the first time.
15. The other witnesses do not happen to be eye witnesses and, therefore, their testimonies are hardly of any avail because it is now well settled principle of law that conviction can be founded on the sole testimony of the prosecutrix, unless there are compelling reasons for seeking corroboration. It is also equally settled that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances. (Refer State of Punjab Vs. Gurmit ::: Downloaded on - 03/04/2018 22:58:13 :::HCHP 10 Singh (1996) 2 SCC 384, State of Himachal Pradesh Vs. Asha Ram AIR 2006 SC 381, Rajinder Vs. State of .
Himachal Pradesh, (2009) 16 SCC 69.) However, it has to be borne in mind that a case of sexual assault has to be proved beyond reasonable doubt as any other case and there is no presumption that the prosecutrix would always tell the entire story truthfully.
16. In Rajoo Vs. State of Madhya Pradesh (2008) 15 SCC 133, the Hon'ble Supreme Court held that the testimony of a victim of rape has to be treated as if she is an injured witness but cannot be presumed to be a gospel truth. It was held that:-
"9. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspect and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the Court. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the ::: Downloaded on - 03/04/2018 22:58:13 :::HCHP 11 incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement .
of such a witness is always correct or without any embellishment or exaggeration. Reference has been made in Gurmit Singh's case to the amendments in 1983 to Sections 375 and 376 of the India Penal Code making the penal provisions relating to rape more stringent, and also to Section 114A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113A and 113B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two Sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualized as the presumption under Section 114A is extremely restricted in its applicability. This clearly shows that in so far as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined."
17. In Tameezuddin @ Tammu Vs. State (NCT of Delhi), (2009) 15 SCC 566, it was held as under:-
"7. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the ::: Downloaded on - 03/04/2018 22:58:13 :::HCHP 12 appreciation of evidence in a criminal matter. We are of the opinion that story is indeed improbable. ....."
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18. In Dinesh Jaiswal Vs. State of MP, (2010) 3 SCC 323, the Hon'ble Supreme Court held as under: "10. Mr. C.D. Singh has however placed reliance on Moti Lal's case (supra) to contend that the evidence of the prosecutrix was liable to be believed save in exceptional circumstances. There can be no quarrel with this proposition (and it has been so emphasised by this Court time and again) but to hold that a prosecutrix must be believed irrespective of the improbabilities in her story, is an argument that can never be accepted. The test always is as to whether the given story prima facie inspires confidence. We are of the opinion that the present matter is indeed an exceptional one."
19. In Abbas Ahmad Choudhary Vs. State of Assam, 2010 (12) SCC 115, the Hon'ble Supreme Court observed that:-
"5. We are however, of the opinion that the involvement of Abbas Ahmad Choudhary seems to be uncertain. It must first be borne in mind that in hery statement recorded on 17th September, 1997, the prosecutrix had not attributed any rape to Abbas Ahmad Choudhary. Likewise, she had stated that he was not one of those who kidnapped her and taken to Jalalpur Tea Estate and on the other hand she categorically stated that while she along with Mizazul Haq and Ranju Das were returning to the village that he had joined them somewhere along the way but had still not committed rape on her. It is true that in her statement in court she has attributed rape to Abbas Ahmad Choudhary as well, but in ::: Downloaded on - 03/04/2018 22:58:13 :::HCHP 13 the light of the aforesaid contradictions some doubt is created with regard to his involvement. Some corroboration of rape could have been found if Abbas Ahmad Choudhary .
too had been apprehended and taken to the police station by P.W. 5 -Ranjit Dutta the Constable. The Constable, however, made a statement which was corroborated by the Investigating Officer that only two of the appellants Ranju Das and Md. Mizalul Haq along with the prosecutrix had been brought to the police station as Abbas Ahmad Choudhary had run away while en route to the police station. Resultantly, an inference can be rightly drawn that Abbas Ahmad Choudhary was perhaps not in the car when the complainant and two of the appellants had been apprehended by Constable Ranjit Dutta. We are, therefore, of the opinion that the involvement of Abbas Ahmad Choudhary is doubtful. We are conscious of the fact that in a matter of rape, the statement of the prosecutrix must be given primary consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully."
20. In Rai Sandeep @ Deepu Vs. State of NCT of Delhi (2012( 8 SCC 21, the Hon'ble Supreme Court commented about the quality of the sole testimony of the prosecutrix which would be made basis to convict the accused and it was held:-
"15. In our considered opinion, the sterling witness should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a ::: Downloaded on - 03/04/2018 22:58:13 :::HCHP 14 witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant .
would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-
examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a sterling witness whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."::: Downloaded on - 03/04/2018 22:58:13 :::HCHP 15
21. Now, in case the testimony of prosecutrix is tested on the aforesaid exposition of law, it would be evident that the .
version put forth by the prosecutrix was that she was initially kidnapped by the appellant and thereafter alleged to have been raped, but surprisingly she did not choose to raise hue and cry or make a complaint or lodge any protest with any person or authority. Even when the prosecutrix had been recovered she was in the company of the appellant, yet did not raise hue and cry. This prolonged silence on the part of the prosecutrix, in fact, speaks volume or else why a girl who is alleged to have been kidnapped and thereafter subjected to forcible sexual intercourse would keep mum even in public place(s).
22. This assumes significance because the prosecutrix is emphatic that she did not know the appellant earlier and had met him for the first time at Dadahu bazar from where he kidnapped her. Even though, no exception can be taken to the fact that the prosecutrix had been subjected to sexual intercourse, but from the sequence of events as have been enumerated above and have, in fact, been stated by the prosecutrix herself, leave no manner of doubt that she was a consenting party to the sexual intercourse and she of her own will and volition had accompanied the appellant from Dadahu to various places as mentioned aforesaid.
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23. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act .
of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex. The physical relations between the parties had clearly developed with the consent of the prosecutrix. There was no case of any resistance nor had she raised any complaint with any person or authority.
24. Now, in case the history of MLC is seen, it would be noticed that in the history it is recorded therein that the prosecutrix had been staying with the appellant w.e.f. 16.12.2014 to 19.12.2014 with history of multiple sexual intercourse with her, however, there was no marks of external or internal injury and the last sexual intercourse had taken place on 19.12.2014 at around 11:00 a.m.
25. The mere fact that prosecutrix belongs to remote area has no relevance whatsoever, afterall the rape is a rape and the most morally and physically reprehensible crime in a society as it is an assault on the body, mind and privacy of the victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female shakes the very core of her life. That is why by no means can a rape victim ever be called an accomplice. Rape leave a permanent ::: Downloaded on - 03/04/2018 22:58:13 :::HCHP 17 scar on the file of the victim and, therefore, a rape victim is placed on a high pedestal then an injured witness. Rape is a .
crime against the entire society and violates the human rights of the victim. Being the most hated crime, rape tantamounts to a serious blow to the supreme honour of a woman, and offends both her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks.
26. Rape does not distinguish between class, creed, forwardness or backwardness of the victim and it is on this count that in matters of rape, the statement of the prosecutrix must be primary consideration, but at the same time the broad principles that prosecutrix has to prove its case beyond reasonable doubt, apply equally to a case of rape and there can be no presumption that prosecutrix would always tell the entire story truthfully.
27. In the light of aforesaid discussion, this Court is of the firm opinion that even though the prosecutrix has been able to establish that the appellant had committed sexual intercourse with her, however, the said act was not committed forcefully, as claimed by her, rather there is overwhelming evidence on record to show that the same was consensual and since the prosecutrix is a major, therefore, no offence against the appellant on account of consensual sex is made out. Once the prosecution has failed ::: Downloaded on - 03/04/2018 22:58:13 :::HCHP 18 to prove the allegation of rape, then no offence whatsoever is made out under Section 3(1)(xi) of the SC ST Act.
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28. In view of the aforesaid discussion, I find merit in this appeal and the same is accordingly allowed and the appellant is honourably acquitted from the aforesaid offences. Registry is directed to prepare release warrants forthwith and send the same to the concerned Jail Superintendent.
April 2, 2018
(Sanjeev)
r to (Tarlok Singh Chauhan)
Judge
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