Himachal Pradesh High Court
State Of Himachal Pradesh vs Gurmit Singh And Others on 10 January, 2017
Author: Ajay Mohan Goel
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr. Appeal No. 275 of 2012
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Reserved on 12.12.2016.
Decided on: 10.01.2017.
State of Himachal Pradesh ....Appellant.
of
Makhan Singh ... Accused/respondent.
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Coram rt
The Hon'ble Mr. Justice Sanjay Karol, Judge.
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes
For the appellant. : Mr. V.S. Chauhan, Addl. Advocate General with
Mr. Vikram Thakur & Mr. Puneet Rajta, Dy.
Advocate Generals.
For the respondent. : J.R. Poswal, Advocate.
Ajay Mohan Goel, J.
By way of this appeal, the State has challenged the judgment passed by the Court of learned Sessions Judge, Solan in Session Trial Court No. 2NL/7 of 2010 dated 19.11.2011 vide which, learned trial court has acquitted the accused for commission of offences punishable under 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:53:03 :::HCHP 2Sections 363, 366-A, 376 and 506 of the Indian Penal Code (in short 'IPC').
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2. The case of the prosecution was that on 19.8.2009 victim accompanied by her father and aunt (sister of her father) reported at Police Station, Nalagarh that she was learning tailoring for the last 03 months at Tailoring Centre Gulabpura and used to proceed to the said place from her house at around 9:30 a.m and return back after 2:30 p.m. On 18.8.2009 she of went to the Centre along with her cousin Taro Devi by bus at 10:30 a.m as she was late and when she reached bus stop Gulabpura at around 2:30 p.m. rt on her way back to her house a Qualis vehicle bearing registration No. HP-
12-C-0370 which was being driven by Makhan Singh (hereinafter referred to as 'the accused') came. Accused stopped the said vehicle in front of her and told her that since he was going towards Naina Devi he could give lift to her. Further as per prosecution, accused was known to the victim as she had earlier also come in the said vehicle along with his (accused) mother to the Centre from her house, therefore, she took lift in the vehicle of accused.
As per prosecution when she reached at Soban Majra, the vehicle was taken by accused towards Jogon side and when victim asked as to where he (accused) was taking the vehicle, accused threatened her and asked her to keep quite. Victim remained in the vehicle out of fear and she was forcibly taken in the vehicle to Swarghat and Naina Devi. On Naina Devi road, accused stopped the vehicle at a secluded place and started behaving indecently but victim did not come out from the vehicle because it was a ::: Downloaded on - 15/04/2017 21:53:03 :::HCHP 3 secluded place. Thereafter victim was taken by accused to Naina Devi and there in the room of a hotel accused committed bad act with her against her .
consent and will, by threatening her with dire consequences. Next day, victim was brought by accused in his vehicle from Naina Devi and left her at Bharatgarh from where she came by bus to the house of her Bua, (father's sister) Smt. Kuldeep Kaur, where she changed her clothes, took wash and disclosed the entire incident to her Bua to the effect that accused of had taken her to Naina Devi and had committed bad act against her consent.
Further as per prosecution after registration of FIR, medical examination of rt the victim was conducted and opinion of the doctor was taken and as per opinion of the doctor there was nothing to suggest that the victim was not subjected to sexual intercourse. Birth certificate of the victim was obtained from Gram Panchayat and certificate of matriculation examination was also obtained, as per which her date of birth was found as 16.2.1992, thus on the date of incident of the occurrence, victim was found to be the age of 17 years and 6 months. The clothes worn by victim were taken into possession. Victim identified the places of occurrence and bed sheet from the bed in the room of Mayur Guest House, Naina Devi i.e. Room No. 111.
On 18.8.2009, the vehicle along with documents was also taken into possession. Accused was got medically examined. Report of SFSL opined detecting of human semen over the bed sheet.
3. After completion of investigation, challan was filed and as a prima facie case was found against the accused, he was charged for ::: Downloaded on - 15/04/2017 21:53:03 :::HCHP 4 commission of offences punishable under Sections 363, 366-A, 376 and 506 IPC, to which accused pleaded not guilty and claimed trial.
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4. Learned trial court on the basis of evidence led by prosecution held that the statement of victim was neither reliable nor trustworthy to the factum of rape having been committed with her against her will and consent. Learned trial court held that accused claimed having enmity between his family and the family of the Bua of the victim. It was of held by learned trial court that victim did not raise any hue and cry right from the time she was allegedly taken in the vehicle by the accused against rt her consent from Gulabpur to Panjehra, Swarghat and Naina Devi on 18.8.2009 and thereafter while she was kept in Guest House in Naina Devi during the entire night and brought on 19.8.2009 from Naina Devi via Kaulawala Toba, Kiratpur and Bharatgarh. Learned trial court also held that in fact victim attended her tailoring classes on 19.8.2009. It further held that when the age of the victim was probable to be of 18 years and there was no threat to her life as claimed by the victim, as accused who was allegedly driving the vehicle was having no weapon of offence so as to put the victim under fear to her life, the statement of the victim was neither reliable nor trustworthy to the factum of accused having committed rape with her against her will and consent, especially when she had failed to raise any hue and cry despite having several opportunities. Learned trial court took note of the fact that doctor has opined that there was nothing to suggest recent intercourse and as per report of SFSL Ext. PW10/A, no ::: Downloaded on - 15/04/2017 21:53:03 :::HCHP 5 blood and semen was detected on pubic hair of the victim and on her clothes. On these bases learned trial court acquitted the accused for .
commission of offences punishable under Sections 363, 366-A, 376 and 506 IPC.
5. We have heard Mr. V.S. Chauhan, learned Additional Advocate General as well as Mr. J.R. Poswal learned counsel for the accused and have also gone through the records of the case as well as of judgment passed by learned trial court.
6. In this case the prosecution, in all, examined 17 witnesses to rt establish its case. Defence also examined 02 witnesses.
7. Victim entered the witness box as PW1 and deposed that her date of birth was 16.2.1992 and after her matriculation she was learning tailoring work at Neelam Silai Centre, Gulabpura. According to her, she used to go to the said Tailoring Centre at 9:30 a.m. and used to come back at 2:30 p.m. by bus. She further deposed that Tara Devi was the daughter of her father's sister. She deposed that on 17.8.2009 Tara Devi come to her house and on 18.8.2009 she went to her Centre along with Tara Devi by bus at 10:30 a.m. as they had missed the earlier bus. She further deposed that she had informed in her house in the morning that she would be going to the house of her Bua in the evening. She further deposed that on 18.8.2009 when she reached the bus stop at around 2:30 p.m. and was waiting for the bus, accused came there in his Quails vehicle bearing registration No. HP12-C-0370 from Nalagarh side and he offered her lift but she refused to ::: Downloaded on - 15/04/2017 21:53:03 :::HCHP 6 take the lift. However, accused insisted that he was going towards the same side and he undertook to drop her at her destination. She further deposed .
that in these circumstances she took lift in the vehicle of the accused, who was known to her, as she had earlier also accompanied the mother of the accused in the vehicle to her Centre. This witness further deposed that from Panjehra accused took the vehicle towards Swarghat but he (accused) did not allow her to alight from the vehicle and threatened her with dire of consequences and asked her to sit quietly. She further deposed that windows of the vehicle were closed and she was frightened with the threats rt of the accused who took the vehicle towards Naina Devi. She further deposed that on the way accused stopped the vehicle near a big bolder and started molesting her which was resisted by her. She also deposed that she tried to get out of the vehicle but as it was a secluded and unknown place, therefore, she did not do so under fear. She further deposed that thereafter accused took her to Naina Devi where accused committed bad act with her against her will and consent. She further deposed that she was raped by the accused against her wish and consent. She further deposed that she was kept in the room during night and in the morning she was brought in the same vehicle and dropped at Bharatgarh at 9:00 a.m. She further deposed that thereafter she took a bus from Bharatgarh and came to the house of her Bua at Aduwal Bothua. She further deposed that when she was washing her clothes which were stained with blood, her Bua came there and made enquiry about the cause of washing and she being frightened narrated the ::: Downloaded on - 15/04/2017 21:53:03 :::HCHP 7 entire incident to her Bua. She further deposed that her parents thereafter came to the house of her Bua .
and thereafter she was taken to Police Post, Dabhota where FIR was got registered and she was sent for medical examination. She also deposed that she was also taken to Naina Devi where she identified the guest house where she was kept by the accused. She also stated that she had also identified the place on the way to Naina Devi where near a big boulder, of vehicle was stopped by the accused. In her cross-examination she stated that she had narrated to the police that accused had kissed her and rt physically molested her. She was confronted with the FIR as well as with her supplementary statement, wherein it was not so recorded. In her cross-
examination she also stated that she had told the police that while she was washing her clothes her Bua came there. She also stated in her cross-
examination that her parents were also there in the house of her Bua. She was again confronted with FIR as well as her supplementary statement wherein it was not so recorded. She admitted it to be correct that she had told her parents on 18.8.2009 that she would not be coming home during night time. She further stated in her cross-examination that at Pujehra where there were 100 shops on the road side. She further stated that there was Upper Panjehra where there were about 20-30 shops on the road side.
She further deposed that she did not remember whether there were any shops and bazaar at Swarghat or whether there was a bazaar at Naina Devi.
She further stated that they returned from Naina Devi via Kaulanwala Toba ::: Downloaded on - 15/04/2017 21:53:03 :::HCHP 8 to Bharatgarh without going to Anandpur. She further stated that she disclosed to the police that she was dropped at Bharatgarh from where road .
leads to Panjehra. She further deposed that she came to the house of her Bua from Bharatgarh by bus. She further stated that on 19.8.2009 she attended the Tailoring Centre after reaching there. She further stated that she narrated to the police that accused had taken her to Naina Devi after giving her allurement of marriage. She denied that she demanded Rs. 4 of lacs from the family of the accused.
8. Father of the victim Darbara Singh entered the witness box as rt PW2 and deposed that his daughter used to go for Tailoring Centre at 9:30 a.m. and used to come back at 2:30 p.m. and on 18.8.2009 she had gone to her Tailoring Centre by informing them that in the evening she would be going to the house of her Bua. This witness further deposed that on 18.8.2009 he enquired from his sister about his daughter but his sister informed him that his daughter had not reached her house and thereafter they went to Police Post, Jogon to report the matter. This witness further deposed that on 19.8.2009 when they went to Police Post Jogon they were told that their area falls within the jurisdiction of Police Post Dhabhota. He further deposed that thereafter they came to know that his daughter had come to the house of his sister from where they brought her to Police Station Nalagarh and on enquiry she disclosed that accused had taken her away to Naina Devi where accused raped her. In his cross-examination he stated that he had narrated to the police that the date of birth of the victim ::: Downloaded on - 15/04/2017 21:53:03 :::HCHP 9 was 16.2.1992 but when this witness was confronted with his statement, Mark X2, there it was not so recorded. He further deposed that he .
disclosed to the police that his sister and brother-in-law had come over to his house on 18.8.2009 in the evening. Again he was confronted with his statement Mark X2 where it was not so recorded. He also stated that he had told the police during investigation that accused had taken away his daughter in a vehicle by giving her allurement of marriage. He denied that of on 19.8.2009 he did not telephonically enquire from his sister about his daughter and his sister did not come to his house on the said date. He rt further stated that the distance between the house of his sister and his house was about 8 to 10 kilometers. He denied the suggestion that his sister had instigated him to register a case against accused to falsely implicate him to teach him a lesson. He further stated that his sister had brought his daughter from Tailoring Centre to the house on 19.8.2009.
9. Kuldeep Kaur who entered the witness box as PW3 deposed that Darbara Singh was her brother and victim was the daughter of her brother. She further stated that one and a half years ago her brother enquired telephonically whether his daughter had come to her house and she informed him that victim had not come to her house. She further deposed that thereafter they searched for the victim but she was not traceable so they went to Police Post, Jogon from where they went to the house of her brother. She further deposed that on the next day she along with her husband and brother went to Police Post, Dhabhota and when they ::: Downloaded on - 15/04/2017 21:53:03 :::HCHP 10 were at Police Post Dhabhota they received a message that victim had arrived at her house and they returned to her house, victim was found .
washing her clothes. She further deposed that on enquiry victim initially disclosed that she was experiencing periods but then stated that she was taken away by accused to Naina Devi where he (accused) raped her. She further deposed that she was taken to Police Post, Dabhota from where they came to Police Station, Nalagarh and victim was sent for medical of examination. In her cross-examination this witness deposed that distance between the Tailoring Centre at Gulabpura and her house was 3-4 rt kilometers. She further stated that distance of her house from Bharatgarh was about 10-12 kilometers and there was frequent vehicular traffic on the same. She further deposed that when they went to Police Post Dabhota along with victim they narrated the entire incident to the police. She thereafter stated that she did not go to Police Post Jogon as Ram Kishan, her brother-in-law along with her husband had gone there. She stated that her statement was recorded by the police and she narrated to the police that they had searched for the victim in their relation. This witness was confronted with her statement wherein it was not so recorded. She also deposed that she told the police that on enquiry from victim, she suspected that the version which was narrated/stated by victim was not true in the absence of her using pads. She was again confronted with her statement wherein it was not so recorded.
::: Downloaded on - 15/04/2017 21:53:04 :::HCHP 1110. PW4, Rajesh Kumar stated that he was running Mayur Guest House at Naina Devi and as per entry of Register, Ext. PW4/A, accused .
(Makhan Singh) had stayed in the Guest House on 18.8.2009 and had left the Guest House on 19.8.2009 and that he was accompanied by a girl. In his cross-examination he admitted that as per entries in the Guest Register, Room No.111 was booked and a guest had stayed on 16.8.2009 and 17.8.2009.
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11. Smt. Neelam who entered the witness box as PW5 deposed that she was running Tailoring Centre at Gulabpura for the last 5-6 years rt and victim used to attend her Centre and on 18.8.2009 victim had attended her class. In her cross examination she admitted it to be correct that on 19.8.2009 victim had come to the Centre and she was taken by her Bua from the Centre.
12. PW6, Radhe Shyam, Secretary Gram Panchayat Barecha proved on record the birth certificate of the victim as per which date of birth of the victim was 16.2.1992.
13. Dr. Upasna who entered the witness box as PW11 deposed that victim was brought by the police on 19.8.2009 who sought medical examination of her with the alleged history of sexual assault on 18.8.2009.
She further stated that as per her final opinion the age of the victim was 17 to 19 years and further as per her opinion there was nothing to suggest that victim was not subjected to sexual intercourse. However, in her cross ::: Downloaded on - 15/04/2017 21:53:04 :::HCHP 12 examination she admitted it to be correct that there was no definite finding that victim had sexual intercourse.
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14. This is primarily the evidence on the strength of which the prosecution wants the conviction of the accused.
15. The Hon'ble Supreme Court has held in State of Punjab Vs. Gurmit Singh and others, (1996) 2 Supreme Court Cases 384 as under:-
"x x x x x x x x x x The courts must, while evaluating evidence, remain of alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even rt discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not over-look. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl of a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. 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 given circumstances. It must not be over-looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another persons's lust and it is improper and ::: Downloaded on - 15/04/2017 21:53:04 :::HCHP 13 undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a .
casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable. In State of Maharashtra Vs. Chandraprakash Kewalchand Jain (1990 (1) SCC 550) Ahmadi, J. (as the Lord Chief Justice then was) speaking for the Bench summarised the position in the following words: (SCC p. 559, para 16) "A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime.
of The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of rt physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more.
What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration
(b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecurtix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction of her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. "::: Downloaded on - 15/04/2017 21:53:04 :::HCHP 14
16. The Hon'ble Supreme Court in Radhu Vs. State of Madhya Pradesh, (2007) 12 Supreme Court Cases 57 held as under:-
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" 6. 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 of 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 rt rape by the victim. Bruises, abrasions and scratches 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."
17. In Narender Kumar Vs. State (NCT of Delhi), (2012) 7 Supreme Court Cases 171, the Hon'ble Supreme Court held as under:
"20. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under 1 Page 12 the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case.
21. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her ::: Downloaded on - 15/04/2017 21:53:04 :::HCHP 15 testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may .
search for evidence, direct or substantial, which may lend assurance to her testimony. (Vide: Vimal Suresh Kamble v. Chaluverapinake Apal S.P and Vishnu v. State of Maharashtra).
22. Where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance of can be placed upon her evidence. (Vide: Suresh N. Bhusare & Ors. v. State of Maharashtra.
23. In Jai Krishna Mandal & Anr. v. State of Jharkhand, this Court while dealing with the issue held: (SCC p. 535, para 4) rt "4.......the only evidence of rape was the statement of the prosecutrix herself and when this evidence was read in its totality, the story projected by the prosecutrix was so improbable that it could not be believed."
18. The Hon'ble Supreme Court of India in Manoharlal Vs. State of Madhya Pradesh, (2014) 15 Supreme Court Cases 587 held as under:-
"8. Though as a matter of law the sole testimony of the prosecutrix can sufficiently be relied upon to bring home the case against the accused, in the instant case we find her version to be improbable and difficult to accept on its face value. The law on the point is very succinctly stated in Narender Kumar v. State (NCT of Delhi), to which one of us (Dipak Misra, J). was a party, in following terms: (SCC p. 178, paras 29 and 21) "20. It is a settled legal proposition that once the statement of the prosecutrix inspires confidence 4 Page 5 and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case.::: Downloaded on - 15/04/2017 21:53:04 :::HCHP 16
21. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having .
been shown to exist in view of the subject-matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial which may lend assurance to her testimony."
(emphasis in original)
9. Having found it difficult to accept her testimony on its face value, we searched for support from other material but find of complete lack of corroboration on material particulars. First, the medical examination of the victim did not result in any definite opinion that she was subjected to rape. Secondly, Riyaz who was like a brother to the victim and thus a close confidant, has not supported the case of the prosecution and has completely denied rt having met her when she allegedly narrated the incident to him. Thirdly the person who was 5 Page 6 suffering from fever and to whose house she was first taken by the appellant was not examined at all. Fourthly, the policeman who the victim met during the night was also not examined. Fifthly, neither the brother nor any of the parents of the victim were examined to corroborate the version that she had come from the village of her brother and alighted around 10:00 P.M. at Bajna bus stand. Lastly, the sequence of events as narrated would show that she had allegedly accompanied the appellant to various places. In the circumstances, we find extreme difficulty in relying upon the version of the victim alone to bring home the charge against the appellant. We are inclined to give benefit of doubt to the appellant."
19. It is also relevant to refer to the judgment of the Hon'ble Supreme Court in Tilak Raj Vs. State of Himachal Pradesh, AIR 2016 Supreme Court 406, in which the Hon'ble Supreme Court held as under:-
"19. We have carefully heard both the parties at length and have also given our conscious thought to the material on record and relevant provisions of The Indian Penal Code (in short "the IPC"). In the instant case, the prosecutrix was an adult and mature lady of around 40 years at the time of incident. It is admitted by the prosecutrix in her testimony before the trial court that she was in relationship with the appellant for the last two years prior to the incident and the appellant used to stay overnight at her residence.::: Downloaded on - 15/04/2017 21:53:04 :::HCHP 17
After a perusal of copy of FIR and evidence on record the case set up by the prosecutrix seems to be highly unrealistic and unbelievable.
23. From the aforesaid, it is clear that the evidence of the .
prosecution is neither believable nor reliable to bring home the charges leveled against the appellant. We are of the view that the impugned judgment and order passed by the High Court is not based on a careful re-appraisal of the evidence on record by the High Court and there is no material evidence on record to show that the appellant is guilty of the charged offences i.e., offence of cheating punishable under Section 417 of IPC and offence of criminal intimidation punishable under Section 506 part I of IPC. "
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20. Coming to the facts of the present case, when we compare the rt statements of PW1, PW2 and PW3 one thing which is apparent and evident is this that there are material contradictions and inconsistencies in the statements of these three witnesses. Father of the victim PW2, Darbara Singh, deposed that victim had gone to Tailoring Centre on 18.8.2009 after informing the family that in the evening she would be going to the house of her Bua and when he enquired from his sister whether victim has reached in her house, his sister told him that victim had not reached there. He further deposed that his sister and her husband after searching the victim had gone to Police Post, Jogon to report the matter and thereafter they came to his house. He further deposed that on 19.8.2009 they all went to Police Post Jogon where they were told that their area falls within the jurisdiction of Police Post Dabhota. He further deposed that thereafter they came to know that victim had reached the house of his sister and from there they brought ::: Downloaded on - 15/04/2017 21:53:04 :::HCHP 18 her (victim) and came to Police Station Nalagarh where on enquiry she (victim) revealed that accused had taken her to Naina Devi and raped her.
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21. In the light of what was stated by PW2, Darbara Singh, when we peruse the statement of PW3, Kuldeep Kaur, as per her version on the fateful day when her brother enquired from her whether victim had reached her house and she informed him that she (victim) had not reached her house and then she searched for her and her husband also went to Police Station of and from there she went to the house of the victim. She further deposed that on the next day she along with her husband and brother went to Police rt Post and where they came to know that victim had arrived at her house. She further deposed that when victim was washing her clothes, she confronted the victim and she subsequently revealed that accused had taken her to Naina Devi and had committed rape with her and thereafter they took the victim to Police Post Dabhota from where there they came to Police Station Nalagarh.
22. Whereas as per PW2 after they came to know that victim had reached the house of his sister, they brought her to Police Station, Nalagarh where on enquiry she (victim) disclosed that accused had taken her to Naina Devi and raped her, however, the version of PW3 is to the effect that when she confronted the victim who was washing the clothes in her house it is there that victim had disclosed her that accused had taken her to Naina Devi and raped her and thereafter she took the victim to Police Post Dabhota and from there she was taken to Police Station, Nalagarh.
::: Downloaded on - 15/04/2017 21:53:04 :::HCHP 1923. Further in this background when we peruse the statement of victim herself, her version is to the effect that on 18.8.2009 she was .
forcibly taken by accused in his Quails vehicle to Naina Devi where he raped her and thereafter on the next day he dropped her at Bharatgarh at 9:00 a.m. from where she came by bus to the house of her Bua and when she was washing her clothes, her Bua came over there and confronted about the cause of washing of the clothes and thereafter victim narrated the entire of incident to her Bua.
24. Now the statement of the victim is totally contradictory what rt has been deposed by PW2 and PW3. As per victim when she reached the house of her Bua, her Bua was there and her parents were already there.
However, as per PW2 and PW3 they came to know that victim had reached the house of PW3 at a Police Post and at that relevant time they were not present in the house of PW3.
25. Besides this another relevant aspect of the matter is that it stands proved on record that victim and the accused were not strangers to each other and were well known to each other, as the victim had herself admitted that she earlier also used to travel in the vehicle of the accused.
There is no cogent explanation given by the victim as to why she did not raise any hue and cry when accused purportedly took her in his Quails van to Naina Devi or when she was staying with the accused at Naina Devi or thereafter when accused left her at Bharatpur and she went to the house of her Bua. There is no cogent explanation coming forth from the version of ::: Downloaded on - 15/04/2017 21:53:04 :::HCHP 20 victim to the effect that when immediately after reaching the house of her Bua she did not narrate the incident to her. All these facts create a serious .
doubt over the case of the prosecution, in fact, the version which has been put forth by the victim and the statement does not seem to be cogent and reliable.
26. Simultaneously, when we assess the statements of PW2 and PW3 vis-à-vis the statement of PW5 who was running a Tailoring Centre at of Gulabpura this witness deposed that in fact on 19.8.2009 victim was at Tailoring Centre and it was from there that she was taken by her Bua, PW3 Kuldeep Kaur.
rt
27. These major contradictions in the statements of PW2 and PW3 who are closely related to the victim create serous doubt over the story of the prosecution. Their testimonies neither seem to be cogent nor reliable nor do they seem to be truthful. On the other hand the statement of PW5 inspires confidence.
28. It is settled law that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. This is for the reason that the prosecutrix stands at a higher pedestal than an injured witness. However, the fact still remains that the testimony of the prosecutrix on the face of it has to be acceptable. {See State of U.P. Vs. Pappu alias Yunus and another (2005) 3 Supreme Court Cases 594}.
::: Downloaded on - 15/04/2017 21:53:04 :::HCHP 2129. In the present case, the statement of the prosecutrix on the face of it does not seem to be acceptable nor does it seem to be trustworthy .
so as to be made basis for the conviction of the accused.
30. Though it is settled law that corroboration is not sine qua non for conviction in a rape case, however, it is relevant to refer to the judgment of Hon'ble Supreme Court in Rameshwar Vs. State of Rajasthan AIR 1952 SC 54, in which it has been observed as under:
of "The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense rt with it, must be present to the mind of the judge...."
31. It is settled law that in cases under Sections 363, 366, 376 and 506 of the Indian Penal Code, the conviction of the accused can be based on the sole testimony of the prosecutrix, but for that the testimony of the prosecutrix has to be cogent, reliable, trustworthy and truthful. In our considered view, in the facts and circumstances of the present case, none of the above mentioned ingredients are present in the testimony of the prosecutrix. Neither her statement is cogent nor the same is reliable or trustworthy. On the contrary, it is apparent from the perusal of her statement that she had willfully eloped with the accused and she was not kidnapped by the accused as has been alleged by the prosecution.
Therefore, on the basis of the material on record, in our considered view, the prosecution has miserably failed to prove a case under Section 363, 366-A, 376 and 506 of the Indian Penal Code against the ::: Downloaded on - 15/04/2017 21:53:04 :::HCHP 22 accused beyond reasonable doubt. All these aspects of the matter have also been dealt with in detail by the learned trial Court and in our considered .
view, there is neither any perversity nor any infirmity with the judgment of acquittal and the findings returned in this regard by the learned trial Court.
Accordingly, we uphold the said judgment passed by the learned trial Court and dismiss the present appeal being devoid of any merit.
of
(Sanjay Karol)
Judge
rt (Ajay Mohan Goel)
Judge
10th January, 2017.
(Guleria)
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