Himachal Pradesh High Court
Mohit Kumar vs State Of H.P on 28 September, 2015
Bench: Sanjay Karol, P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeals No.395 of 2011 Reserved on : September 1, 2015 .
Date of Decision : September 28, 2015 Mohit Kumar ...Appellant.
Versus
State of H.P. ...Respondent.
Coram:
of
The Hon'ble Mr. Justice Sanjay Karol, Judge. The Hon'ble Mr. Justice P.S. Rana, Judge. Whether approved for reporting?
rt 1For the Appellant : Mr. Anoop Chitkara, Advocate. For the Respondent : Mr. Ashok Chaudhary, Mr. V.S. Chauhan, Additional Advocates General and Mr. J.S. Guleria, Assistant Advocate General.
Sanjay Karol, Judge Appellant-convict Mohit Kumar, hereinafter referred to as the accused, has assailed the judgment dated 27.9.2011/28.9.2011, passed by Sessions Judge, Una, Himachal Pradesh, in Sessions Trial No.13-VII-2010, titled as State of Himachal Pradesh v. Mohit Kumar, whereby he stands convicted for having committed an offence punishable under the provisions of Section 376(2)(g) of the Indian Penal Code, and sentenced to Whether reporters of the local papers may be allowed to see the judgment?
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undergo rigorous imprisonment for a period of ten years and to pay fine of `10,000/- and in default thereof to further undergo simple imprisonment for a period of three .
months.
2. It is the case of prosecution that on 5.3.2011 at about 7.30 p.m., prosecutrix (PW-1), resident of village Bidarwal, had gone to the fields to answer the of call of nature. Accused Mohit and co-accused Sahil forcibly took away the prosecutrix on the motorcycle. In rt his farm house (Bara), accused Mohit Kumar subjected the prosecutrix to sexual assault. After the incident, prosecutrix returned home and narrated the incident to her family members. Complaint (Ex. PW-1/A) was lodged, on the basis of which FIR No.47 dated 6.3.2011 (Ex. PW-6/A), for an offence under the provisions of Section 376(G) of the Indian Penal Code, was registered at Police Station, Haroli, District Una, Himachal Pradesh.
ASI Prem Lal (PW-5) and SI Baldev Ram (PW-6) conducted the investigation. Prosecutrix was got medically examined from Dr. Sonia (PW-7), who issued MLC (Ex. PW-7/A). With the completion of investigation, which prima facie revealed complicity of the accused in ::: Downloaded on - 15/04/2017 19:01:05 :::HCHP ...3...
the alleged crime, challan was presented in the Court for trial against accused Mohit Kumar. Co-accused Sahil, being minor, proceedings against him were initiated .
under the provisions of the Juvenile Justice (Care and Protection fo Children) Act, 2000.
3. Accused Mohit Kumar was charged for having committed an offence punishable under the of provisions of Section 376(g) of the Indian Penal Code, to which he did not plead guilty and claimed trial.
4. rt In order to establish its case, prosecution examined as many as seven witnesses and statement of the accused, under the provisions of Section 313 of the Code of Criminal Procedure, was also recorded, in which he took the following defence:
"The prosecutrix was my class-fellow.
She came to the school only for two months in 10+1 class. The prosecutrix used to ring me up time and again. She used to pressurize me to marry her. When I spurned the marriage proposal, she got a false FIR registered. I am innocent."
Accused chose to lead evidence in defence and tendered in evidence document (Mark D-1), a certificate issued by Adda Incharge, HRTC. Una, Himachal Pradesh.
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5. Based on the testimonies of witnesses and the material on record, trial Court convicted accused Mohit Kumar of an offence punishable under the .
provisions of Section 376(2)(g) of the Indian Penal Code and sentenced him as aforesaid. Hence, the present appeal by the accused.
6. Assailing the judgment, Mr. Anoop Chitkara, of learned counsel for the accused, has made the following submissions:
rti) Prosecutrix is a highly unreliable witness, her testimony is unbelievable and the Court below erred in correctly and completely appreciating the same, and reliance thereupon, has only resulted into passing of an illegal judgment, seriously prejudicing the accused as also resulting into perversity of justice.
ii) Version of the prosecutrix stands contradicted by the doctor and in any case, is full of exaggerations and improvements.
iii) In any event, such version is improbable, rendering the genesis of the prosecution case to be false.
iv) Version of the prosecutrix is not corroborated by any medical opinion.
Minor abrasions on the left thigh of the prosecutrix are no indication of forcible sexual assault.
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v) Evidence produced on record is untrustworthy, false, frivolous and not based on ground realities and the genesis of the prosecution story is highly improbable.
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vi) At best, prosecutrix can be said to be a consenting party and since prosecutrix is not a minor, conviction is bad in law.
7. Learned Additional Advocates General appearing on behalf of the State have supported the of judgment of conviction and sentence so passed by the trial Court, for the reasons assigned therein.
8. rtIt is the settled principle of law the prosecutrix is not an accomplice to a crime. It is equally settled that uncorroborated version of the prosecutrix, if otherwise, is fully inspiring in confidence, is sufficient to convict the accused, for the charged offence.
9. In Indian Woman Says Gang-Raped on Orders of Village Court Published in Business and Financial News Dated 23.10.2014, In Re, (2014) 4 SCC 786, the Apex Court has highlighted the need for having an effective State police machinery for curbing the menace of rape, for such crime is not only in contravention of the domestic laws, but is also in direct breach of obligations under International Law, treaties whereof stand ratified by the ::: Downloaded on - 15/04/2017 19:01:05 :::HCHP ...6...
State, which is under an obligation to protect its women from any kind of discrimination.
10. The Apex Court has highlighted the need for .
prompt disposal of cases of crime against women and children. (Rajkumar v. State of Madhya Pradesh, (2014) 5 SCC 353).
11. In Shyam Narain v. State (NCT of Delhi), (2013) of 7 SCC 77, the Apex Court held as under:
"27. Respect for reputation of women in the rtsociety shows the basic civility of a civilised society. No member of society can afford to conceive the idea that he can create a hollow in the honour of a woman. Such thinking is not only lamentable but also deplorable. It would not be an exaggeration to say that the thought of sullying the physical frame of a woman is the demolition of the accepted civilized norm, i.e., "physical morality". In such a sphere, impetuosity has no room. The youthful excitement has no place. It should be paramount in everyone's mind that, on one hand, the society as a whole cannot preach from the pulpit about social, economic and political equality of the sexes and, on the other, some pervert members of the same society dehumanize the woman by attacking her body and ruining her chastity. It is an assault on the individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men. Rape is a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a woman and the soul of the society and such a crime is aggravated by the manner in which it has been committed. We have emphasised on the manner because, in the present case, the victim is an eight year old girl who possibly would be deprived of the dreams of "Spring of Life" and might be psychologically compelled to remain in ::: Downloaded on - 15/04/2017 19:01:05 :::HCHP ...7...
the "Torment of Winter". When she suffers, the collective at large also suffers. Such a singular crime creates an atmosphere of fear which is historically abhorred by the society. It demands just punishment from the court and to such a .
demand, the courts of law are bound to respond within legal parameters. It is a demand for justice and the award of punishment has to be in consonance with the legislative command and the discretion vested in the court."
12. In Narender Kumar v. State (NCT of Delhi), (2012) 7 SCC 171, the apex Court has cautioned the Court of to adopt the following approach:
"The courts while trying an accused on the charge of rape, must deal with the case with rt utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of the witnesses which are not of a substantial character."
13. The Apex Court in Munna v. State of Madhya Pradesh, (2014) 10 SCC 254, has reiterated the principle that testimony of prosecutrix is almost at par with an immediate witness and can be acted upon without corroboration.
14. Incident in question took place at 7.30 p.m. on 5.3.2011; FIR stood registered on 6.3.2011; as on the date of alleged offence, age of prosecutrix was 16 years and 8 months, are the undisputed facts which have emerged on record. The incident took place in the cow-
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shed (Bara) of accused Mohit Kumar, situated in Village Bhadiara. This is the case of the prosecution.
15. Age of the prosecutrix is not in issue before .
this Court. From the uncontroverted testimony of the prosecutrix, it also stands established that both she and convict Mohit Kumar were classmates. Parties were known to each other. When we peruse the testimony of of the prosecution witnesses, we find that consensual sex was not the defence taken by the accused. Be that as it rt may, it is always open for the accused to urge the same before this Court. However, having perused the testimony of the prosecutrix and her aunt Neeru (PW-2), we do not find it to be a case of consensual sex.
16. On careful appreciation of testimony of these witnesses, as also corroborated by medical evidence, i.e. testimony of Dr. Sonia, we find the prosecution to have established its case, beyond reasonable doubt.
17. Parties hail from a rural background and testimonies of the witnesses have to be appreciated in such background.
18. Prosecutrix states that on 5.3.2011 at about 7.30 p.m., when she went to answer the call of nature in ::: Downloaded on - 15/04/2017 19:01:05 :::HCHP ...9...
the fields, accused Mohit caught her by hand and after gagging her mouth, forcibly made her sit on a motorcycle. She was taken to the cow-shed (Bara) in .
village Bhadiara, where co-accused Sahil caught her by arms and accused Mohit Kumar sexually assaulted her by using force. She suffered injuries and scratch marks on her left knee. She cried for help, but Mohit Kumar of threatened to kill her. She was asked not to raise any alarm. After completion of the act, accused dropped rt her back. Immediately, she narrated the incident to her mother Smt. Kirna Devi and aunts Smt. Neeru Devi (PW-
2) and Smt. Darshana Devi. When her father Ashok Kumar, who is a driver, returned home, complaint was lodged with the police. This is what she has deposed in her examination-in-chief.
19. When we examine the cross-examination part of her testimony, we find her initial version not to have been shattered or contradicted at all. Her credit cannot be said to have been impeached. She is clear and consistent in her deposition. She was explained that though there is a latrine and bathroom adjacent to her house, she went to the fields to ease out herself.
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Well, there is nothing unusual about the same.
Normally, in the villages, people do go out to ease out themselves in an open area. It is a village with not .
much habitation. It stands explained that the fields, below the road, are just adjoining to her house. She categorically denies having any relationship with Luv Kumar and Rishi. She has explained the reason for not of raising any hue and cry, for her mouth stood gagged by Mohit Kumar. She denies having filed a false complaint, rt on the asking of the police. Why would she do so? She has explained that both Mohit Kumar and Sahil were studying in her school and as such she was aware of their identity. She denies having any proximity with them.
20. No doubt, in the complaint (Ex.PW-1/A), there is no reference of the accused having threatened to kill her, but however, this fact alone would not be sufficient to render her version to be false or uninspiring in confidence. This is the only pointed exaggeration in her version. One cannot lose sight of the fact that prosecutrix, who was just a child, had to undergo trauma of being forcibly taken away on the motorcycle ::: Downloaded on - 15/04/2017 19:01:05 :::HCHP ...11...
and then subjected to rape. In Court, she has clarified about the threats extended by accused Mohit Kumar, which we find to be true.
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21. Accused wants the Court to believe that though prosecutrix was in relationship with Lov Kumar and Rishi, yet she wanted to marry him, which we find to have been categorically denied by the prosecutrix. In of our view, defence set up by the accused is only sham and concocted.
22. rt We find version of the prosecutrix to have been materially corroborated by her aunt Smt. Neeru (PW-2), who has also deposed that from the time prosecutrix went to the fields to answer the call of nature, she was found to be missing. On her return at about 1 a.m., prosecutrix disclosed that after gagging her mouth, she was forcibly taken away by two motorcyclists and subjected to rape in the Bara at village Bhadiara. She is categorical that accused Mohit Kumar committed sexual intercourse.
23. Prem Lal (PW-5) has explained that the distance between village Badarwara and Bhadiara is 5-6 kms and during night there is not much traffic on the ::: Downloaded on - 15/04/2017 19:01:05 :::HCHP ...12...
road and also there is no abadi near the road. The witness has also explained that Bara of Bhisham Singh, which is adjoining to the Bara of accused Mohit Kumar, .
remains closed and the house of Kanta Devi does not face the Bara. This only corroborates the prosecution version that none other than the accused was present from whom the prosecutrix could have sought help or of who could have witnessed the incident in question.
24. We find version of the prosecutrix to have rt been corroborated by Dr. Sonia (PW-7), who also recorded history of the prosecutrix being taken away forcibly on a motorcycle and then assaulted by one of them in the Bara at village Bhadiara. According to the doctor, possibility of sexual intercourse could not be ruled out. Superficial scratches were present on the ventral aspect of left thigh above the knee, which was reddish brown in colour. Hymen was torn and two fingers could be easily inserted. Absence of spermatozoa in the report of the Forensic Science Laboratory stands explained by the doctor as it is not a matter of rule that in every case and all the time, for it not to be present on the vaginal swab. Suggestion put ::: Downloaded on - 15/04/2017 19:01:05 :::HCHP ...13...
to the doctor of the prosecutrix being habitual to sex, would in no manner, render version of the prosecutrix to be false.
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25. Any sex without consent of a woman and with or without use of force, would amount to rape.
26. We do not find testimony of the prosecutrix to be unbelievable. Also, her conduct does not create of doubt about the truthfulness of her version. The prosecutrix was found missing for 3½ yours. Neeru (PW-
rt
2) has explained that they did search for her. As her classmate accused knew the prosecutrix. It is a matter of record that village of accused Mohit Kumar is different than that of the prosecutrix, but it also stands proven on record, beyond reasonable doubt, that it was accused Mohit Kumar, who took away the prosecutrix on a motorcycle. Whether accused Mohit Kumar was keeping watch on the prosecutrix or not is not a relevant fact in issue. What is relevant is that she was forcibly taken away and subjected to sexual intercourse by the said accused.
27. Submission that prosecutrix could have easily tried to destabilize the motorcycle only merits ::: Downloaded on - 15/04/2017 19:01:05 :::HCHP ...14...
rejection. Considering the conduct of the accused and the timing of the incident, nothing more is expected of a child, who is overawed by the acts of her classmates.
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28. The only other alleged contradiction pointed out is with regard to the number of times accused had coitus with the prosecutrix. Prosecutrix disclosed to the doctor that coitus took place 3-4 times. Prosecutrix is of silent on this aspect. Such fact may not have been corroborated but certainly there is no contradiction.
This fact rt would also not render version of the prosecutrix to be doubtful.
29. Decisions rendered in Rai Sandeep alias Deepu v. State (NCT of Delh), (2012) 8 SCC 21;; Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130;
Abbas "Ahmad Choudhary v. State of Assam, (2010) 12 SCC 115; DineshJaiswal v. State of Madhya Pradesh, (2010) 3 SCC 232; Radhu v. State of Madhya Pradesh, (2007) 12 SCC 57; and Dilip and another v. State of M.P., (2001) 9 SCC 452, are inapplicable in the given facts and circumstances.
30. Thus, in our considered view, prosecution has been able to establish the guilt of the accused, ::: Downloaded on - 15/04/2017 19:01:05 :::HCHP ...15...
beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence.
31. For all the aforesaid reasons, we find no .
reason to interfere with the well reasoned judgment passed by the trial Court. The Court has fully appreciated the evidence placed on record by the parties. There is no illegality, irregularity, perversity in of correct and/or in complete appreciation of the material so placed on record by the parties. Hence, the appeal is dismissed.
rt Appeal stands disposed of, so also pending application(s), if any.
( Sanjay Karol ), Judge.
( P.S. Rana ),
September 28, 2015(sd) Judge.
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