Himachal Pradesh High Court
State Of Himachal Pradesh vs Om Parkash And Anr. on 20 October, 2004
Equivalent citations: 2005CRILJ779
Author: Lokeshwar Singh Panta
Bench: Lokeshwar Singh Panta, Deepak Gupta
JUDGMENT Lokeshwar Singh Panta, J.
1. This appeal by the State of Himachal Pradesh is directed against the judgment of learned Addl. Sessions Judge, Fast Track Court, Shimla dated 10-3-2004 in Sessions Trial No. 6-S/7 of 2003/2001, acquitting the respondents herein of the charges framed against them under Sections 376 and 506 read with Section 34 of the Indian Penal Code (for short I.P.C.)
2. The relevant facts necessary for disposal of this appeal are as under :
PW-14 prosecutrix (name with held by us) is the daughter of Devinder Kumar resident of village Goloo, Tehsil and District, Shimla. During the relevant time, she was studying in 7th class and was above thirteen years of age in the year 1999. She was staying in the house of her maternal uncle PW-7 Binder Kumar at village Badya, Police Station, Dhalli, Shimla in the year 1999. The case of the prosecution was that on 3-1-1999 at about 5 p.m. PW-7 asked the prosecutrix to drive back the cattle from nearby fields. When the prosecutrix reached a link road at Dhalli, a private bus red in colour came being driven by the driver in which one more person was sitting. The bus driver stopped the bus and the second person came down from the bus. He caught hold the prosecutrix from her arm. The prosecutrix was forcibly dragged inside the bus. The driver took the bus towards 'Churathnala' where it was stopped. The second person sitting in the bus asked the prosecutrix to come out of the bus on the plea that she was just like his 'Bhanjee' (niece) and her 'Mamma' (maternal uncle) belongs to their village. The prosecutrix was taken to nearby jungle where the said person started kissing her. The prosecutrix tried to raise alarm but her mouth was gagged. That person opened waist ring of her Salwar and committed forcible sexual intercourse upon her. It was alleged that the rapist had threatened the prosecutrix with dire consequences if she dared to disclose the occurrence to anyone. When the prosecutrix was coming to her Mamma's house, one woman and one man met her who inquired from her as to why she was weeping, she told them that she was the maternal grand daughter of Ratti Ram. Both the said persons took her to the house of her Mamma. On asking by PW-7, in the presence of PW-12 and PW-13 about her late coming to home, she narrated the entire incident to him. At that time, she told that although she did not know the names of the culprits but she could identiy them. PW-7 telephonically informed Devinder Kumar father of the prosecutrix about the occurrence. PW-7 along with one Surya Kant Negi took the prosecutrix to lodge a report in the Police Station, but on the way, PW-15 S. I. Prem Chand met them. PW-7 narrated the entire incident to PW-15 on the way. PW-15 recorded the statement (Ext. PW-4/A) of the prosecutrix under Section 154, Cr.P.C. The said statement was sent to the Police Station for lodging the formal First Information Report. PW-4 Siri Ram who was posted as Station House Officer in Police Station, Dhalli at the relevant time recorded F. I. R. (Ext. PW-4/B). PW-15 vide application (Ext. PW-3/A) sent the prosecutrix to Indira Gandhi Medical College, Shimla for medical examination in the company of a lady constable. PW-3 Dr. Ramesh Chand, Medical Officer referred the prosecutrix for medical examination by a Gynecologist.
3. On 4-1-1999 at about 7 a.m. PW-1 Dr. Kushla Pathania, Medical Officer, Kamla Nehru Hospital, Shimla, medically examined the prosecutrix. On the same day, PW-2 Dr. Jatinder Jhingta, Registrar Radiology posted in Indira Gandhi Medical College, Shimla on the basis of radiological determination opined vide report (Ext. PW-2/B) that the age of the prosecutrix was below 14 1/2 years. PW-15 inspected the spot on 4-1-1999 and prepared spot map (Ext. PW-15/A). He recorded the statements of PW-7, PW-11 Karam Chand, PW-12 and PW-14. Om Parkash-respondent No. 1 herein also belongs to the village of PW-7. On 4-1-1999 when he was seen coming home, the prosecutrix identified him to be the culprit and accordingly he was arrested by PW-15. PW-15 took into possession pant (Ext. P-1) shirt (Ext. P-2), underwear (Ext. P-3) and under waist (Ext. P-4) from Om Parkash Respondent. He obtained the birth certificate of the prosecutrix from PW-10, Surinder Singh Secretary, Gram Panchayat, Chari. Salwar (Ext. P-5), Shirt (Ext. and Sweater (Ext. P-7) belonging to the prosecutrix and recovered cloths of Om Parkash-respondent were sent to Chemical Examiner Forensic Science Laboratory, Junga. PW-8 Sub-Inspector Jagdish Chand partly inspected the case. He recorded the statements of PW-6 Constable Suresh Kumar and PW-5 Head Constable Suresh Kumar and arrested Nokhi Ram-respondent No. 2 on 26-4-1999. On completion of the investigation and receipt of the report of the Chemical Examiner (Ext. PW-9/B), PW-4 laid the chargesheet against the respondents in the Court.
4. The learned sessions Judge, Shimla assigned the trial of the case to learned additional sessions Judge, Shimla, but the trial was subsequently transferred by the High Court to the Court of Addl. Sessions Judge, Fast Track Court, Shimla.
5. Both the respondents were charge-sheeted by the Fast Track Court for offence under Sections 376 and 506 read with Section 34 of the Indian Penal Code. The respondents pleaded not guilty to the charges and claimed trial.
6. In support of its case, the prosecution examined as many as fifteen witnesses. The respondents in their statements recorded under Section 313, Cr.P.C. denied the allegations levelled against them. They pleaded false involvement in the case and claimed to be iocent The learned trial Court after elaborate consideration of the matter came to the conclusion that the prosecution has failed to prove the charges against the respondents beyond reasonable doubt and accordingly acquitted them.
7. Being aggrieved, the State is in appeal. Mr. D. S. Nainta, learned Deputy Advocate General contended that the learned trial Court has not appreciated the evidence of the prosecutrix corroborated by PWs-7 and 12 in its right perspective ignoring the well-settled proposition of law that the sole testimony of the victim of sexual offence is sufficient to base conviction of the respondents.
8. Per contra, Mr. G. D. Verma, learned Senior Advocate appearing on behalf of Om Parkash-respondent contended that the evidence of the prosecutrix as found by the learned trial Court was not reliable and worthy of credence to inspire confidence in the mind of the Court to hold the respondent guilty of the offences. He also contended that the prosecution has failed to lead any cogent and convincing evidence to prove the age of the prosecutrix as her parents were not examined nor the birth register of the Panchayat was produced.
9. Mr. Virender Verma, amicus curiae appearing on behalf of Nokhi Ram-respondent submitted that the prosecution has not proved on record that Nokhi Ram was driving the bus on the relevant day nor the respondent was identified by the prosecutrix prior to his trial. The learned counsel for the respondents have supported the finding and reasoning of the learned trial Court and contended that this Court will not interfere with the well reasoned judgment of the learned trial Court in an appeal against the acquittal of the respondents.
10. We have carefully considered the above submissions of the learned counsel for the parties. It is by now well settled that the conviction of a person for the commission of rape, can be based on the sole testimony of the prosecutrix provided the evidence of the prosecutrix is cogent, reliable and inspiring confidence. In case the evidence of the prosecutrix is not so and there is no other independent and reliable evidence to lend assurance to the truthfulness of the evidence of the prosecutrix, it will be unsafe to base a conviction of her non-confidence inspiring evidence.
11. In Dilip v. State of M. P., 2002 SCC (Cri) 592 the Hon'ble Supreme Court in para 12 held as follows :
"12. The law is well-settled that the prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon and made the basis of conviction unless corroborated in material particulars. However, the rule about the admissibility of corroboration should be present to the mind of the Judge. In State of H. P. v. Gian Chand (2001 Cri LJ 2548) on a review of decisions of this Court, it was held that conviction for an offence of rape case based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc., if the same is found to be natural, trustworthy and worth being relied on."
It was further held :
"14..........The Court is finding it difficult to accept the truthfulness of the version of the prosecutrix that any sexual assault as alleged was committed on her in view of the fact that her narration of the incident becomes basically infirm on account of being contradicted by the statement of her own aunt and medical evidence and the report of the Forensic Science Laboratory. The defence has given suggestion in cross-examination for false implication of the accused persons which, however, have not gone beyond being suggestions merely. It is not necessary for us to dwell upon further to find out the probability of truth contained in the suggestions because we are not satisfied generally of the correctness of the story as told by the prosecutrix. We find it difficult to hold the prosecutrix in the case as one on whose testimony an implicit reliance can be placed."
12. In State of Punjab v. Gurmit Singh, AIR 1996 SC 1393 their Lordships held as under :
"7. The testimony of victim in cases of sexual offences 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. What should the evidence of a girl or 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 person's lust and it is improper and 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....................
13. Again in Sudhansu Sekhar Sahoo v. State of Orissa (2002) 10 SCC 743, their Lordships have reiterated that the sole testimony of the victim of sexual offence can be a basis for conviction provided it is safe, reliable and worthy of acceptance reasonable to assume that no woman would falsely implicate a person in sexual offence as the honour and prestige of that woman also would be at stake.
14. In Aman Kumar v. State of Haryana, (AIR 2004 SC 1497), their Lordships reiterated as under:
"5. It is well-settled 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 without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the Court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would suffice."
15. In Bhupinder Sharma v. State of Himachal Pradesh, AIR 2003 SC 4684) their Lordships emphasized the same view.
16. In the light of the above settled proposition of law, we have re-examined and re-, appraised the evidence of the prosecutrix and other material on record. Bare perusal of the statement of the prosecutrix clearly shows that her evidence is not inspiring confidence and reliable. She has identified Nokhi Ram respondent for the first time in the Court on 4-4-2003 when her statement was recorded by the learned trial Court. Ext. PW-4/A is the statement of the prosecutrix on the basis of which F.I.R. Ext. PW-4/B was recorded in the Police Station, Dhalli. It has come in the statement of the prosecutrix that when her version was recorded by PW-15 at the house of PW-7, Om Parkash respondent was present there and he was known to her for quite long time prior to the alleged crime. Her version suffers from material infirmities and inconsistencies. If, Om Parkash respondent committed sexual intercourse with the prosecutrix it was her first and foremost obligation to have named him as rapist to PW-15 at the time of r cording of her statement Ext. PW-4/A. She had not named any of the respondent in her statement Ex. PW-4/A on the basis of which F.I.R. Ex. PW-4/B was lodged in the Police Station. Her version to the extent that Ex.PW-4/A was recorded her Mamma's house is in contradiction to the evidence of PW-15 who specifically stated that when prosecutrix along with her relatives was going to the Police Station to lodge a report, he had met them in village Badyan where the police party was on patrol duty. He is very clear and specific in his deposition that statement Ext. PW-4/A of the prosecutrix was recorded by him when she met the police party on her way to the Police Station. PW-7 deposed that the police party had met them on the National High Way towards Dhalli bus stop and they had accompanied them to the Police Station and thereafter they came back to his house. He further stated that although no report was lodged in the Police Station at that time but the police had taken an application from PW-7 in regard to the incident which was written by one Govind Ram who at the relevant time was posted in the Reporting Room of the Police, The Mall, Shimla. This part of the statement of PW-7 has not been corroborated by PW-15.
17. It is the version of the prosecutrix that the Doctor who examined her in Indira Gandhi Medical College, Shimla took her Salwar (Ext. P-5) and shirt (Ext. P-6) into possession. She has admitted in the cross-examination that she did not state to the police the names of the respondents and also the number of the bus. She admitted a suggestion that she did not disclose to the person who met her on the road that Om Parkash respondent committed sexual intercourse with her nor she disclosed the incident to anyone else when she reached at the house of her maternal uncle. She again said that she narrated the incident to PW-7 her maternal uncle but she had no talk with PW-12 Smt. Meena Sharma. It has come in the cross-examination of PW-15 that he did not record statement Ext. PW-4/A of the prosecutrix on 3-1-1999 at the house of PW-7. He admitted the suggestion of the respondents that when he visited the place of occurrence on the next day of the incident i.e. 4-1-1999 the parents of the prosecutrix along with Om Parkash respondent were present there. PW-7 also admitted that Om Parkash respondent was known to the prosecutrix prior to the incident as the prosecutrix has been residing with him in his village to which Om Parkash-respondent belongs. He admitted in the cross-examination that both the respondents accompanied him and the police party from the Police Station to the place of incident on the next day of the occurrence. He has also stated that when statement Ext. PW-4/A was recorded by the police, the parents of the prosecutrix were also present there. He then stated that his statement that both the respondents accompanied them from Police Station, Dhalli to the palce of incident was not correct. The testimony of this witness is not corroborated by the prosecutrix or by the Investigating Officer on material particulars. This witness is not consistent in his version. He has narrated different story at every stage of his statements.
18. PW-11 Karam Chand met the prosecutrix on Mashobra-Dhalli road when he made inquiry from the prosecutrix as to where she was going she told him that she was going to her maternal uncle's house. The prosecutrix did not tell anything else to him. The witness has turned hostile and was cross-examined by the learned Public Prosecutor. In the cross-examination, he stated that the prosecutrix was not weeping when she met him. He handed over the prosecutrix to her maternal uncle. A suggestion that she was forcibly subjected to sexual intercourse by Om Parkash respondent is emphatically denied by him. PW-12 Smt. Meena Sharma is the tenant of Rati Ram the maternal-grand father of the prosecutrix. It is her evidence that on the day of the occurrence the prosecutrix was sent by Rati Ram in the evening to collect his cattle left for grazing by the side of the link road. The prosecutrix did not come back and everybody was worried about her whereabouts. Some persons from the neighbourhood went in search of the prosecurix. She came back weeping to the house of her maternal uncle at about 7.30 p.m. all alone. She was not asked by anyone about her late coming. The police came to the house of Rati Ram on the same night when she (the witness) was asked by the police to find out from the prosecutrix about her late coming to the house. On her inquiry the prosecutrix disclosed that she was taken by a driver towards 'Churathnala' and there he raped her. In the cross-examination, she admitted that Om Parkash-respondent was identified to her by the mother of the prosecutrix on the earlier date of the hearing of the case. She stated that the parents of the prosecutrix did not come to the house of Rati Ram in her presence. She admitted that Smt. Asha Thakur wife of PW-7 one Jagdish, Surya Kant and Govind Ram were also present when inquiry was made by her from the prosecutrix of her late coming to the house. She stated that there are few houses near "Churathnala". She denied portion 'B' to 'B' of her statement marked 'Y' recorded under Section 161, Cr.P.C. by the Police that the prosecutrix had shown Om Parkash-respondent to be the person who committed sexual intercourse with her. She deposed that the police had not taken into possession the clothes of the prosecutrix in her presence. PW-13 Jagdish in the cross-examination stated that he visited the place of incident but his wife PW-12 and the prosecutrix were not with them. On Parkash respondent was in the Police Station at that time.
19. On re-appraisal and re-assessment of the entire evidence of the prosecutrix, we are of the considered view that her sole testimony and it does not inspire confidence to hold the respondents guilty of the charged offences. The prosecutrix has not identified Nokhi Ram-respondent to be the driver of the bus in which she was allegedly carried by the respondents on the day of the occurrence. No identification parade was conducted by the prosecution. Nokhi Ram-respondent was identified for the first time in the Court by all the witnesses produced by the prosecution. There are material and vital discrepancies and contradictions in the statement of PW-7, PW-12 and PW-15 the Investigating Officer in regard to recording of the statement of the prosecutrix Ext. PW-4/A "on the basis of which F.I.R. Ext. PW-4/B was recorded. The prosecution has miserably failed to corroborate the testimony of the prosecutrix to connect the respondents in the commission of the alleged offence.
20. It has come in the statement of the prosecutrix that her clothes which she was wearing on the day of the incident were taken into possession by PW-1 Dr. Mrs. Pathania in the hospital. Dr. Mrs. Pathania has not said so in her testimony. The prosecutrix was examined by Dr. Mrs. Pathania at about 7 a.m. on 4-1-1999. Dr. Mrs. Pathania opined that the hymen of the prosecutrix was intact with central circular opening which admits one finger easily and two fingers with difficulty. She said that no tear, redness, injury or struggle marks or semen stains around the external genitalia were noticed by her. Vagina and cervix were found normal. On receipt of the report Ext. PW-9/B of the Chemical Examiner, Dr. Mrs. Pathania opined that there was possibility of sexual intercourse. It has come in the cross-examination of Dr. Mrs. Pathania that on her inquiry, the prosecutrix replied that she had taken bath after the incident. The prosecution has not proved on record as to who took the clothes i.e. salwar (Ext. P-5), sht (Ext. F-6) and sweater (Ext. P-7) belonging to the prosecutrix into possession and how those clothes were sent to the Chemical Examiner for analysis. The medical evidence has not corroborated the ocular version of the prosecutrix to prove that she was sexually assaulted on the day of the occurrence. The Chemical Examiner in his report Ext.PW-9/B found no stains of blood on salwar Ex.P-5. The prosecution has not examined the owner of the bus to prove that Nokhi Ram-respondent was the driver of the said bus and Om Parkash respondent was the cleaner employed by the owner of the said vehicle which was being plied on that route at the relevant time on the day of the occurrence. The prosecution has also not led cogent and convincing evidence to prove the age of the prosecutrix. PW-10 Surender Singh, Secretary, Gram Panchayat, Chari produced on record birth certificate Ext. PW-10/A in which the date of birth of the prosecutrix is mentioned as 15-4-1986. He admitted in the cross-examination that entry of birth and death is recorded in separate register maintained by the Panchayat for the said purpose. He issued the said certificate at the command of the Police. He admitted that the date of birth of the prosecutrix was not recorded by him in the Pariwar register. The aforesaid entry in the family register could not be relevant to prove the persons recorded therein to be the members of a particular family. The Investigating Officer nowhere stated that he ever tried to procure entry of the date of birth of the prosecutrix from the birth and death register of the Panchayat. In the absence of birth entry having been taken into possession by the Police, an adverse inference has to be drawn. So far this entry Ext. PW-10/A was concerned , it will not serve any purpose to prove the actual date of birth of the prosecutrix moreio, beyond all reasonable doubt, PW-2 Dr. Jatinder Jhingta on the basis of radiological Bading opined that the age of the prosecutrix was below 14 and half years. He, however, in the cross-examination admits that it is not a perfect technique/science to ascertain the age of the prosecutrix. Dr. Jhingta said that there is a possibility of two to three years i.e. variation in the age determination on the basis of test. The prosecution has not examined the parents of the prosecutrix to prove her date of birth. On the basis of the medical evidence of Dr. Jhingta. it cannot be safely said that at the time of the commission of the alleged offence, the age of the prosecutrix was about 14 years.
21. It is well settled that the appellate Court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. Every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial Court acquitted him, he would retain that benefit in the appellate Court also. Thus, the appellate Court in appeals against acquittals has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, that the order of acquittal is liable to be interfered with or disturbed. In the present case, on appraisal and scrutiny of the entire evidence on record, we are of the opinion that the trial Court was quite justified in acquitting the respondents for the charges as the view taken was a reasonable one and the order of acquittal cannot be said to be perverse. Thus, we are not inclined to accept the contentions of the learned Deputy Advocate General.
22. For the aforesaid reasons, there is no merit in this appeal and it is accordingly dismissed.
23. Nokhi Ram-respondent is presently in jail. He be set at liberty forthwith, if not required to be detained in any other case. A copy of this judgment shall be sent to Nokhi Ram -respondent through Superintendent of Jail.
24. Before parting with this case, we place on record our appreciation for invaluable assistance rendered to us by Mr. Virtnder Vernia, Amicus Curiae for Nokhi Ram-respondent.