Himachal Pradesh High Court
State Of Himachal Pradesh vs Sh. Hemant Kumar on 24 June, 2016
Bench: Sanjay Karol, Ajay Mohan Goel
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No.: 57 of 2009
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Reserved on : 14.06.2016
Date of Decision: 24.06.2016
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State of Himachal Pradesh .....Appellant.
Vs.
Sh. Hemant Kumar .....Respondents
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Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
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Whether approved for reporting?1 Yes.
For the appellant : Mr. V.S. Chauhan, Addl. A.G., with Mr.
Vikram Thakur, Dy. A.G.
For the respondent: Mr. Rakesh Manta, Advocate.
Ajay Mohan Goel, J. :
By way of present appeal, the State has challenged judgment dated 13.06.2008 passed by the Court of learned Additional Sessions Judge, Fast Track Court, Shimla, Camp at Rohru in Sessions Trial No. 9- R/7 of 2008 vide which, the learned trial Court has acquitted the accused for offences under Sections 363, 366, 376 and 506 of the Indian Penal Code.
Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 15/04/2017 20:40:46 :::HCHP 22. The case of the prosecution was that a written complaint Ex.
PW-10/B was lodged on 24th April, 2002 by Sh. Surinder Gupta, father of .
the prosecutrix with Station House Officer, Police Station, Rohru to the effect that he was a resident of Rohru and used to reside near Ram Leela Ground. He was father of two children and was having one daughter and one son. His daughter (prosecutrix) was about 16 years of age and her of date of birth was 16.11.1985. On 29th April, 2002 at around 4-5 p.m., the prosecutrix had gone to Rohru Bazar for shopping. However, she did not return back in the evening. The complainant and his relatives rt searched for her in the evening. On 23rd April in the evening, the prosecutrix and accused Hemant Kumar rang him up from an unknown place and conveyed that they had tied the nuptial knot. The prosecutrix was minor and she had been enticed away by the accused. Accordingly, he requested that culprit be brought to book and action be taken against him.
3. On the basis of the said complaint, FIR No. 60 of 2002 Ex.
PW-10/A was registered. The prosecutrix returned to her parental house.
On 25.04.2002, she made a statement before the police under Section 161 Cr. P.C. that on 20.04.2002 in the evening, she had gone to the shop of the accused to make certain purchases. Accused allured her to marry him and took her to his room where they stayed for the night. Next day, i.e. on the morning of 21.04.2002, accused took her in a Van to Shimla, ::: Downloaded on - 15/04/2017 20:40:46 :::HCHP 3 from where they went to Hotel Daily Darbar, Naldehra, which belongs to a friend of the accused. Accused and the prosecutrix stayed in the said .
Hotel on 21st and 22nd April, 2002. On both these days, the accused had coitus with her on the promise of marriage. In the afternoon on 23rd April, 2002, accused took her to the house of Maenka in village Mehali, Shimla.
The prosecutrix rang her parents from the house of Maenka and informed of them that she had married the accused. In the evening of 23rd April, 2002, Smt. Heena (wife of the accused) reached the house of Maenka and all of them stayed there during the night of 23rd April, 2002. On rt 24.04.2002, the accused and his wife brought the prosecutrix to the house of her parents and when they dropped her at Rohru, the accused proclaimed that in case she made any statement with the police, he will kill her.
4. The prosecutrix was got medically examined by the police and the accused was arrested. The Van in which the accused allegedly took the prosecutrix to Shimla was also taken into possession by the police. Certificates pertaining to the date of birth of the prosecutrix were also collected by the police. After completion of the investigation, final report for the trial of the accused was prepared and the same was presented before the Court.
5. As a prima facie case was found against the accused, he was charged for having committed offences under Sections 363, 366, 376 and ::: Downloaded on - 15/04/2017 20:40:46 :::HCHP 4 506 of the Indian Penal Code, to which he pleaded not guilty and claimed to be tried.
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6. Learned trial Court on the basis of the material produced before it by the prosecution, came to the conclusion that it appeared that the prosecutrix had accompanied the accused of her own accord and free volition and her statement did not inspire confidence and on these basis, of the learned trial Court held that it will not be safe to hold the accused guilty on the basis of the dubious and effete evidence led by the prosecution and accordingly, it acquitted the accused of the offence rt charge against him.
7. Feeling aggrieved by the said judgment of acquittal, the present appeal has been preferred by the State.
8. We have heard the learned counsel for the parties and also gone through the records of the case.
9. In order to substantiate its case, the prosecution in all examined 14 witnesses.
10. The prosecutrix deposed as PW-1. Her statement was recorded in Camera. As per PW-1, she knew accused Hemant Kumar, who ran a shop at Bus Stand, Rohru in the name and style of 'Hinna Garments'. She stated that she used to go to his shop as a customer and that is how she knew him. On 20.04.2002, she had gone to his shop and there were some other customers also at the shop at that time. After ::: Downloaded on - 15/04/2017 20:40:46 :::HCHP 5 those customers left, she made her purchases. The accused earlier disclosed to her that he was distantly related to them (the prosecutrix).
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After she purchased the goods, he offered her cold drink. While she was drinking the same, she started feeling giddy. Accused advised her to take rest for some time and promised her that he would drop her at her house.
Accused also told her that he will get a chance to see her grand mother, of who was related to him. After some time, she and the accused came out of the shop and walked up to State Bank. There the accused arranged a vehicle and they proceeded on Chirgaon road. Accursed dropped her at rt his house in Rohru Bazaar beyond Ayurvedic Hospital and asked her to take rest in his house. He said that his mother and other persons were present in the house. There he started using force against her. He closed her mouth with her chuni and thereafter committed rape. Accused then came out of the room and asked him to sit in the room and not to make any hue and cry. He also threatened her that in case she will make any hue and cry, he would not spare her. After some time, accused made her to sit in a vehicle and took her towards a Petrol Pump. From Pertol pump, accused brought her back to his house and again had sexual intercourse with her against her wish. He kept her at his house for the night. On 21.04.2002, he took her in the morning to Baldiyan. There he kept her in Delhi Darbar Hotel for two days, i.e. on 21st and 22nd April, 2002. During these two days also, he forced her to have physical relations with him.
::: Downloaded on - 15/04/2017 20:40:46 :::HCHP 6There under threat, he obtained a writing from him to the effect that she voluntarily accompanied him and he had not abducted her. She further .
deposed that he also threatened to cause harm to her parents. On 23.04.2002, accused took her to Mehli in a girl's home whom he knew.
The accused left the room saying that he was going to bring his wife. After some time, he also brought his wife. While accused was taking her from of Rohru, on her way at Mashobra, she was made to make a phone call from the STD booth to her father informing him that she had voluntarily accompanied the accused and that no FIR would be lodged against him.
rt From Mehli also, that is from the house of the girl named Menka, the accused had asked her to make a similar call. She further deposed that on 24.04.2002, the brother of the accused and 2-3 other persons came at Mehli and she was taken to Samli near Rohru and was made to sit in the inner room while they were sitting in the outer room. Due to fear, she did not run away. Then, they brought her to the house of Hari Nand, which was near to the Police Station. From there, they took her to her house.
The mother of the accused also came with her. There the accused offered to settle the matter amicably, but her father was not ready with any such settlement because for marriage she was under age and the accused was already married. Thereafter, when settlement could not take place, accused left the house and threatened them (prosecutrix) that he had done what he wanted to do and that they (prosecutrix) could do nothing.
::: Downloaded on - 15/04/2017 20:40:46 :::HCHP 7Thereafter, her father lodged FIR against the accused. In her cross-
examination, the said witness has deposed that she was born on .
16.11.1985. She was admitted for the first time in Rohru in Balbharti, but she did not remember the date, month or year of the said admission.
She stated that she studied in Balbharati for one year and thereafter, she was admitted in Monal Public School Sanjauli, Shimla for one year.
of Thereafter, she was admitted in S.D.A. Mission School, Rohru. According to her, she was not aware whether birth certificate Ex. PW-1/A was obtained by the police from Nagar Panchayat, Rohru or her father rt procured it and handed over it to the police. She denied the suggestion that she was more than 18 years old when her father lodged FIR. She stated that she did not remember whether she had a talk with her father on 24.04.2002 before the FIR was lodged. She admitted that at the Petrol Pump, she did not speak to anyone about her abduction nor she made any telephonic call to anyone. She volunteered that she was threatened by the accused. She deposed that she had visited the shop of the accused person 3-4 times. She has denied the suggestion that she wanted to marry the accused and when she came to know that he was already married, a false case was planted against the accused. She also stated the following in her cross-examination:
"It is correct that I talked to my father about marriage, but I do not remember if I told my father that we had ::: Downloaded on - 15/04/2017 20:40:46 :::HCHP 8 contracted the marriage. Volunteered, I went on stating what the accused dictated to me."
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11. She also deposed that she was medically examined on 25th or 26th April, 2002 and her maternal uncle and father were present at the hospital. They were also present when her statement was recorded at the Police Station. She admitted that at Hari Nand's quarter, she did not tell of anyone that the accused had used force against her. She also stated that she was married to Rajeev Sharma of Garli Paragpur, who was living in Rohru for the last 20-22 years.
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12. PW-2 Rajinder Chauhan deposed that prosecutrix was his niece and on 22.04.2002, the father of the prosecutrix telephonically called him to Rohru. He remained at the house of the father of the prosecutrix from 21.04.2002 to 24.04.2002. He further stated that on 22.04.2002, accused Hemant telephonically informed Surinder Gupta that prosecutrix was with him. According to him, Hemant also stated that they had committed a mistake. Prosecutrix was brought to her father's house by the mother, wife and maternal aunt of accused on 23rd or 24th April, 2002. As per him, the mother and maternal aunt of the accused were saying that the children had committed a blunder, but let them be married. Hemant's wife was ready to divorce him. According to him, age of the prosecutrix was 16 years and she was a student of 10th class. He further deposed that her parents and grand parents declined the offer of ::: Downloaded on - 15/04/2017 20:40:46 :::HCHP 9 marriage. According to him, thereafter accused came out of the house threatening to see the complainant party and threatened that he would .
destroy the entire family of the prosecutrix. As per him, prosecutrix disclosed that accused took her to Shimla on the pretext of marrying her.
She also disclosed that accused threatened her not to disclose this to anyone or she would be killed by throwing out of the vehicle. He also of deposed that prosecutrix had disclosed that she was forcibly taken away and raped by the accused.
13. PW-3 rt Constable Kamal Dass has deposed that on 02.05.2002, he went to Shimla alongwith Additional SHO, Rohru and in his presence Additional SHO took into possession of the vehicle of the accused.
14. PW-4 Menka has deposed that she was working as Clerk in H.P. Secretariat and the accused had come to her quarter in Mehli in the year 2002. She further deposed that he had come alone and no girl was accompanying him. She was declared as a hostile witness and in her cross-examination, she stated that prosecutrix had come to her on that very evening, but she had come alone. According to her, she did not know the prosecutrix, who stated to her that she had some business with Hemant, who was her God brother. She stayed with her for the night and left in the morning.
::: Downloaded on - 15/04/2017 20:40:46 :::HCHP 1015. PW-5 Surat Singh has deposed that he was working as Secretary, Nagar Panchayat, Rohru and that he had brought the family .
register of Liaq Ram and in this register, Shikha Gupta, daughter of Surinder Kumar was shown to have been born on 16.11.1085.
16. PW-6 Shanti Kumar Tiru, Principal, St. Josphs School, Rohru has deposed that as per admission register, the prosecutrix was of admitted in St. Josphs School, Rohru on 23.05.1994 and in the said register, her date of birth was mentioned as 16.11.1985.
17. HHC Kuldeep Singh has deposed as PW-7 and stated that he rt was working as a driver in the office of SDPO, Rohru and on 9th May, 2002, Additional SHO, Police Station Rohru handed over a Maruti Van to its owner Hemant Kumar on Sapurdari, which was signed by him.
18. PW-8 Sh. Bihari Lal Justa, Radiographer has deposed that he took X-rays of Shikha Gupta (prosecutrix). PW-9 Constable Nihal Singh has deposed with regard to handing over of the parcels at FSL, Junga.
PW-10 Ram Saran has deposed that the FIR was registered by him at the instance of Surinder Gupta which bears his signature. PW-11 HC Mohan Singh has deposed that he had handed over the case property to Nihal Singh to be deposited at FSL, Junga and Nihal Singh handed over the RC to him.
19. PW-12 Lok Nath Gupta deposed that Shikha Gupta was his grand daughter and that on 20.04.2002 at about 5:00 p.m., she had gone ::: Downloaded on - 15/04/2017 20:40:46 :::HCHP 11 to the market to make some purchases. She did not return home in the evening. She was residing with them. They searched for her throughout .
night, but she was not traceable. In the morning, he rang his son Surinder Gupta, who lived in village Dhara. Then, Surinder Gupta came to Rohru and searched for his daughter, but in vain. Thereafter, Surinder Gupta went to Police Station and lodged a complaint Ex. PW-10/B. When of prosecutrix returned home, he (PW-12) did not had any talk with her as to how and under what circumstances she left the house. She had a talk in this regard with her father. In his cross-examination, he stated that he rt used to look after Shikha as she was residing with them and he was her guardian. He further deposed that Police Station, Rohru was very near to his house. He denied the suggestion that in the evening they did not search for Shikha.
20. PW-13 Prakash Dutt has deposed that he was posted as SI/Additional SHO, Police Station, Rohru. He recorded the statement of Shikha as per her version and also sent her for medical examination.
Accused was arrested by him. The Van which was used in the commission of the crime was also taken into possession by him. He also recorded the statement of Menka Ex. PW13/B. After investigation, he handed over the file to Inspector/SHO Ram Saran for preparation of challan. He also recorded the statement of Sanjeev Sharma, son of Sh.
Rattan Chand. He also deposed that statement of Rajeev Sharma, brother ::: Downloaded on - 15/04/2017 20:40:46 :::HCHP 12 of Sanjeev was not written by him. The name of Sanjeev was wrongly written by him as Rajeev since Surinder Gupta (complainant) told him the .
name of Sanjeev as Rajeev. He denied the suggestion that he had recorded the statements of the witnesses as per his own convenience.
21. PW-14 Sanjeev Sharma deposed that the house of the complainant was near to their house. On 24.04.2002, he had gone to the of house of Surinder Gupta. The wife and mother of the accused came there and remarked that a mistake had been committed by accused and marriage of accused and Shikha be performed. He further deposed that rt the marriage could not be solemnized as accused was already married.
Wife of the accused offered to divorce him. After some time, accused and Shikha also came there and then hot exchanges took place between both the families. Thereafter, accused remarked that he is ready to face the consequences. In his cross-examination, he has deposed that Shikha was married to his younger brother Rajeev and they knew prosecutrix from her birth. He denied the suggestion that no talks relating to the case took place in his presence.
22. This is the entire evidence which has been led by the prosecution to substantiate its case. Ex. PW1/A is the copy of birth register of the prosecutrix, as per which, the date of birth of the prosecutrix is 16.11.1985. The alleged incident has taken place on 20.04.2002. It is but obvious that if the alleged incident has taken place ::: Downloaded on - 15/04/2017 20:40:46 :::HCHP 13 on 20.04.2002, the quietus took place only on or after 20.04.2002.
Taking the date of birth of the prosecutrix to be 16.11.1985, it is evident .
that as on 20.04.2002, she was more than 16 years of age. The age of the prosecutrix as on 20.04.2002 was more than 16 years and 5 months.
23. FIR was lodged by Surinder Gupta, father of the prosecutrix.
Incidentally, Suridner Gupta has not entered into the witness box. FIR of was lodged on 24.04.2002, whereas the prosecutrix was missing as per her father from evening of 20th April, 2002. It is recorded in the FIR that on 23rd April, 2002 in the evening, his daughter and Hemant Kumar rt called him on phone and they told him that they had got married. It is further mentioned in the FIR that his daughter was minor and therefore, action be taken in this regard against the accused. As already mentioned above, the prosecutrix went missing w.e.f. 20.04.2002. However, the FIR was lodged only on 24.04.2002 by the father and that too after as per his version he received a telephone call of his daughter and accused Hemant Kumar informing him that they had married. In other words, since 20th April, 2002, the factum of the prosecutrix being missing was not brought into the notice of the police by her family. The FIR has been lodged after a delay of four days. There is no cogent explanation as to why there was such a long delay in lodging the FIR when as per the grand father (PW-
12) of the prosecutrix, Police Station, Rohru was quite near to his house.
All these facts create doubt over the story of the prosecution.
::: Downloaded on - 15/04/2017 20:40:46 :::HCHP 1424. Now, in this background when we peruse the statement of the prosecutrix, the same neither inspires any confidence nor the same .
seems to be trustworthy. The version which has been put forth by the prosecutrix in her statement does not seems to be cogent or reliable.
According to her, she went to the shop of the accused to make certain purchases and he offered her cold drink and during the process of of consuming the same, she felt giddy. Thereafter, it is her case that the accused asked her to take rest at his house on the pretext that he will later on drop her at her residence. She further stated that she went to the rt house of the accused where accused kept her for the entire night and sexually abused her against her wishes.
25. It is not the case of the prosecutrix that the house of the accused was situated at a secluded place or that there was neither any person residing in the house of the accused at the relevant time or no other person was there in the vicinity of the house of the accused. No cogent explanation has been given by her as to why she did not raise any hue and cry in case she was kidnapped by the accused and when she was also sexually assaulted against her wishes by the accused. She in fact in her statement has admitted that while at the Petrol Pump she did not raise any hue and cry. Her further version that it was under duress of the accused that she went with him in a Hotel Daily Darbar, Naldehra and thereafter to the residence of one Menka at Mehli again under duress ::: Downloaded on - 15/04/2017 20:40:46 :::HCHP 15 of the accused is also not believable. This Court cannot presume that everyone was pitted against the prosecutrix and was hand in glove with .
the accused in the matter of kidnapping and sexually assaulting the prosecutrix. Her further version that the telephonic calls were made by her to her father as were dictated to her by the accused also do not inspire any confidence.
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26. In fact, this possibility cannot be ruled out at all that she willfully ran away with the accused and thereafter returned back after 3-4 days. It is for this reason that as the family of the prosecutrix was aware rt that she had willfully ran away that no FIR etc. was immediately lodged with the police also. This factum further gains credence from the statement of PW-2 Rajinder Chauhan as well as that of PW-14 Sanjeev Sharma and the prosecutrix, who in unison have stated that after the prosecutrix returned back alongwith the accused, there were talks of marrying her with the accused, but the same did not materialize as the parents of the prosecutrix refused for this settlement as the accused was already married.
27. 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, ::: Downloaded on - 15/04/2017 20:40:46 :::HCHP 16 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}.
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.
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28. 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 rt Rajasthan AIR 1952 SC 54, in which it has been observed as under:
"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 with it, must be present to the mind of the judge...."
29. Despite the fact that the accused inter alia has been charged for committing an offence under Section 376 of the Indian Penal Code, the prosecution has not examined the doctor who medically examined the prosecutrix and issued the MLC. In the absence of this, it is not understood as to how the prosecution could have had proved the charges of rape against the accused.
::: Downloaded on - 15/04/2017 20:40:46 :::HCHP 1730. It has been held by the Hon'ble Supreme Court in State of M.P. Vs. Dayal Sahu (2005) 8 Supreme Court Cases 122 that non-
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examination of doctor and non-production of doctor's report would not be fatal to the prosecution case, if the statements of the prosecutrix and other prosecution witnesses inspire confidence. In the present case, we have already held that the testimony of the prosecutrix and other of prosecution witnesses do not inspire any confidence whatsoever.
Therefore, in these circumstances, non-examination of the doctor, which has also resulted in the M.L.C. report not being placed on record as an rt exhibited document, also does not helps the case of the prosecution.
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.
32. A perusal of the statement which was initially recorded by the police of the prosecutrix under Section 161 of the Code of Criminal ::: Downloaded on - 15/04/2017 20:40:46 :::HCHP 18 Procedure, demonstrates that the prosecutrix has narrated a totally different story while in the witness box. No cogent explanation whatsoever .
has been given by her as to why she did not raise any hue and cry both at the time of her alleged kidnapping or when she was sexually assaulted.
All these facts taken together make it apparent that the prosecutrix accompanied the accused of her own accord and free volition. Therefore, of 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, 376 and 506 of the Indian Penal Code against the accused beyond rt 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.
(Sanjay Karol) Judge (Ajay Mohan Goel) Judge June 24, 2016 (bhupender) ::: Downloaded on - 15/04/2017 20:40:46 :::HCHP