Himachal Pradesh High Court
State Of H.P vs Shashi Pal on 17 August, 2018
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 409 of 2012 Reserved on: 09.08.2018 Decided on : 17.08.2018.
.
State of H.P. .....Appellant
Versus
Shashi Pal ....Respondent
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 No. For the Appellant:
r to Mr. Vinod Thakur and Mr. Sudhir Bhatnagar, Addl. A.Gs. with Mr. J. S. Guleria and Mr. Bhupinder Thakur, Dy.
A.Gs.
For the respondent: Mr. Arjun K. Lall, Legal-aid-Counsel. _______________________________________________________________ Justice Tarlok Singh Chauhan, Judge State aggrieved by the judgment of acquittal passed by the learned Additional Sessions Judge (II), Kangra at Dharamshala, Distt. Kangra, H.P. in Sessions Trial No. 44 of 2011, on 07.05.2012 , whereby the respondent has been acquitted of the offences punishable under Sections 376 and 506 of the Indian Penal Code, has filed the instant appeal.
2. The prosecution story, in brief, is that the prosecutrix was studying in 10+1 in KFC School Model Town, Pathankot. On 22.08.2009, at 2: 00 p.m., when the prosecutrix coming from her school was called by her aunt as her aunt was unwell. The 1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 17/08/2018 23:03:21 :::HCHP ...2...
respondent was also present there when the aunt of the prosecutrix .
asked her to clean utensils. It was alleged that respondent took the prosecutrix inside the room and committed forcible sexual intercourse with her. The respondent had been promising the prosecutrix to marry her and under this pretext he had been committing sexual intercourse with her for the past quite some time.
After committing sexual intercourse with the prosecutrix, the respondent threatened her to do away with her life and also beat her. The prosecutrix narrated the occurrence to her mother and consequently the matter was reported to the police and the FIR was registered. The medical examinations of the prosecutrix as well as the respondent were got conducted by the police.
3. During investigation, the clothes, vaginal slide and pubic hair etc. were sent to chemical examination. The birth certificate of the prosecutrix was obtained from the school. The spot map of the place where the respondent alleged to have committed the offence was prepared. The police also recovered one bed-sheet and took photographs of the room, which was got identified from the respondent.
4. On conclusion of the investigation, police presented challan and on finding a prima facie case, the respondent was charged with the offence punishable under Sections 376 and 506 of the IPC.
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5. The prosecution examined as many as 13 witnesses and .
thereafter the statement of the respondent under Section 313 Cr.P.C. was recorded wherein he pleaded innocence and stated that prosecutrix wanted to marry her and since he refused, he has been falsely implicated in this case. Opportunity was given to respondent to lead evidence and in his defence he produced one certificate from the school of the prosecutrix to show that on the date of alleged incident the name of the prosecutrix had been struck off from the rolls of the school.
6. The learned trial Court after evaluating the evidence available on record, acquitted the respondent of the offences punishable under Sections 376 and 506 of the Indian Penal Code vide judgment dated 07.05.2012, constraining the State to file the instant appeal.
We have heard the learned counsel for the parties and have gone through the record of the case carefully.
7. 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 Singh (1996) 2 SCC 384, State of ::: Downloaded on - 17/08/2018 23:03:21 :::HCHP ...4...
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.
8. 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 incident happened and that ordinarily such a witness would not tell a lie as to the actual ::: Downloaded on - 17/08/2018 23:03:21 :::HCHP ...5...
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."
9. 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 ::: Downloaded on - 17/08/2018 23:03:21 :::HCHP ...6...
improbable and belies logic, would be doing violence to the .
very principles which govern the appreciation of evidence in a criminal matter. We are of the opinion that story is indeed improbable. ....."
10. 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."
11. 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 - 17/08/2018 23:03:21 :::HCHP ...7...
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."
12. 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 witness, the status of the witness would be immaterial and ::: Downloaded on - 17/08/2018 23:03:21 :::HCHP ...8...
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 correlation with each and everyone of other supporting 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 - 17/08/2018 23:03:21 :::HCHP
...9...
13. In State of Madhya Pradesh vs. Munna alias .
Shambhoo Nath (2016) 1 SCC 696, the Hon'ble Supreme Court held that consensual sex by a girl, who is more than 16 years of age, cannot be termed to be rape.
14. Now, reverting back to the facts, it would be noticed that the prosecution in this case was above 16 years and that fact stands duly established on record. In fact, the prosecutrix herself stated that her date of birth to be 22.04.1992, which means that at the time of alleged incident she was more than 16 years of age.
15. The prosecution has examined PW6 Dr. Raman Sharma, who conducted the X-ray of the prosecutrix vide films Ex.P/1 to Ex.P/6 and opined that the radiological age of the prosecutrix was 16 ½ to 17 ½ years as per his opinion Ex.PW6/A. He also admitted that the radiological age made differ to the extent of two years on either side. So the prosecutrix could be more than 18 years at the relevant time.
16. Now one thing is clear that the prosecutrix definitely was more than 16 years on the alleged date of occurrence. Since the age of the prosecutrix stands determined to be more than 16 years, then as per the ratio of the judgment rendered by the Hon'ble Supreme Court in Munna alias Shambhoo Nath's case (supra), wherein it is held that in case there is consensual physical ::: Downloaded on - 17/08/2018 23:03:21 :::HCHP ...10...
relationship between the prosecutrix and the respondent, then the .
same cannot be termed to be rape.
17. In order to determine this question, it would be necessary to first advert to the specific case set up by the prosecution. Prosecutrix while appearing as PW7 deposed that on 22.08.2009, when she was coming from her school, where she was claiming to be studying in 10+1, her aunt called her. On the other hand, the specific case set up by the respondent was that on the relevant date the prosecutrix was not even studying in the school as her name had already struck off from the rolls of the school. To this effect the respondent has produced in evidence the certificate Ext.
DX issued by the Principal of the school, which reveals that the name of the prosecutrix was struck off from the rolls of the school on 20.08.2009.
18. In the given circumstance, we really fail to understand as to why and how the prosecutrix had been coming back from the school on 22.08.2009 when the occurrence is alleged to have been taken place. Therefore, in such circumstances, the testimony of the prosecutrix becomes highly doubtful. However, even this aspect of the case is ignored, there is sufficient evidence available on record to indicate that the prosecutrix had already established physical contact with the respondent much prior to the incident.
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19. The prosecutrix in her cross-examination has candidly .
admitted that she had gone several times to the house of the respondent, where the respondent had been committing sexual intercourse with her under promise to marry her.
20. Not only this, she further deposed that once she even got pregnant and it was the respondent who had got her abortion done from Dr. Vinay Sharma at Pathankot. Though there is no convincing evidence on record, as rightly observed by the learned Sessions Judge, with regard to the abortion, but nonetheless the fact remains that the prosecutrix and respondent were involved in physical relationship. According to the prosecutrix, she wanted to marry the respondent but the respondent was having friendship with some other girl. The prosecutrix had admitted that she had written letters Ext. D1 and Ext. D2 to the respondent. The contents whereof disclose that the prosecutrix was in love with the respondent and, therefore, entered into physical relationship with him. Learned Sessions Judge has found the prosecutrix to be mature enough at the time of the incident, having full capacity to understand the nature of the act and, thus, arrived at a conclusion that the physical relationship between the prosecutrix and the respondent was consensual and, therefore, did not amount to rape.
21. We really see no reason to differ from the said finding for the simple reason that not only the prosecutrix and the ::: Downloaded on - 17/08/2018 23:03:21 :::HCHP ...12...
respondent had been indulging in consensual sex, even if the story .
of the prosecution, as has been set out in this case, is to be believed, there is no reason forth coming as to why the prosecutrix did not raise any hue and cry in order to attract the attention of the neighbour, especially when the occurrence is alleged to have been taken place at 2:00 p.m. in broad day light, that too, when her aunt was very much in the house.
22. In addition thereto, even the medical evidence proves that there was no injury on any parts of the body of the prosecutrix including the private part.
23. As regards the case of the prosecution with respect to criminal intimidation, as discussed above, the evidence on record clearly not only suggest but clearly proves that the prosecutrix remained in the company of the respondent out of her free will and volition, therefore, there is no question of any intimidation on the part of the respondent.
24. As regards the other witnesses examined in this case, it would be noticed that PW8 and PW9 are the parents of the prosecutrix and their testimonies being based on hearsay is really of no value.
25. PW2 Dr. Tina Gupta has medically examined the respondent vide MLC Ex. PW2/B to prove that at the relevant time the respondent was capable of performing sexual act. However, the ::: Downloaded on - 17/08/2018 23:03:21 :::HCHP ...13...
medical officer did not find any evidence of recent sexual .
intercourse.
26. PW4 MHC Vinod, Police Station, Indora, proved that he had sent the three sealed parcels to FSL, Junga, through HHC Rakshpal and this fact was also deposed by HHC Rakshpal, who appeared as PW11. PW5 HC Rajesh Kumar, who is the other MHC deposed that LC Anjana Kumari has deposited with him one sealed parcel alongwith one envelope addressed to FSL Junga. He further deposed that on 23.08.2009, S.I. Chattar Singh had deposited with him two other sealed parcels. PW10 Balwinder Singh proved the recoovery of bed-sheet Ex.P2 vide recovery memo Ext.PW7/B.
27. Investigating Officer Chatter Singh appeared as PW12 and deposed that on 22.08.2009 FIR Ext.PW7/A was registered in this case. He had moved an application Ext.PW1/A for medical examination of the prosecutrix and sent prosecutrix with L.C. Anjna Kumari for medical examination and obtained her MLC.
28. The other witnesses are mainly government servants, however, their testimonies are not at all relevant as we have already concluded that no offence of rape is made out. We have already held that the instant is a case of consensual sex and therefore, cannot be termed to be rape.
29. That apart, we have already observed that since the prosecutrix had remained in the company of the respondent out of ::: Downloaded on - 17/08/2018 23:03:21 :::HCHP ...14...
her free will and volition, therefore, no case of criminal intimidation .
is also made out.
30. Lastly, we were informed at the Bar that as a matter of fact, the prosecutrix and respondent after the alleged incident have, in fact, got married to each other and the prosecutrix is now expecting her child. In the given circumstances, any further discussion in the matter, would only amount to embarrassing the prosecutrix and the respondent who appeared to be happily married.
31. Having said so, we find no merit in this appeal and the same is accordingly dismissed. Bail bonds, if any, furnished by the respondent are ordered to be discharged.
(Tarlok Singh Chauhan) Judge (Chander Bhusan Barowalia) Judge 17.08.2018 (sanjeev) ::: Downloaded on - 17/08/2018 23:03:21 :::HCHP