Himachal Pradesh High Court
Anjana Devi @ Anju vs State Of Himachal Pradesh on 24 June, 2016
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Criminal Appeal No. 165 of 2015 a/w
Criminal Appeal No. 170 of 2015 and
Criminal Appeal No. 184 of 2015.
Judgment Reserved on : 16.06.2016
Date of Decision : June 24 , 2016
of
1. Cr. Appeal No. 165 of 2015
Anjana Devi @ Anju
rt ...Appellant
Versus
State of Himachal Pradesh ...Respondent
2. Cr. Appeal No. 170 of 2015
Joginder Singh @ Jeen & another ...Appellants
Versus
State of Himachal Pradesh ...Respondent
3. Cr. Appeal No. 184 of 2015
Lekh Raj @ Lekhu ...Appellant
Versus
State of Himachal Pradesh ...Respondent
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
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Whether approved for reporting? 1
Yes.
For the appellant : Mr. Vikas Rathore, Advocate, for the appellant
.
in Cr. Appeal No. 165 of 2015.
Mr. N. S. Chandel, Advocate, for the appellants
in Cr. Appeal No. 170 of 2015.
Mr. Anoop Chitkara, Advocate, for the appellant
in Cr. Appeal No. 184 of 2015.
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For the respondent : Mr. R. S. Verma and Mr. Ram Murti Bisht, Addl.
Advocate Generals for the respondent-State in
all the appeals.
Sanjay Karol, J.
rt It is a matter of record that in connection with F.I.R. No. 151 of 2012, dated 26.6.2012 (Ext. PW-17/A), registered at Police Station Sadar Chamba, Distt. Chamba, H.P., nine persons were charged for having committed the following offences:-
Name of Accused Offences under which accused stands charged Anjana Devi @ 120-B IPC; 363, 365 and Anju(Accused A-1) 366-A IPC read with 120-B IPC; 5 of The Immoral Traffic (Prevention) Act, 1956; and 506 IPC Lekh Raj @ Lekhu 376 IPC (Accused A-2) Jaswant Singh 376 IPC (Accused A-3) Pawan Kumar 376 IPC; and 5 of The (Accused A-4) Immoral Traffic (Prevention) Act, 1956.
Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:40:03 :::HCHP 3Hans Raj (Accused 5 of The Immoral Traffic A-5) (Prevention) Act, 1956.
Anil Kumar @ 120-B IPC; and 5 of The . Thapu (Accused Immoral Traffic (Prevention) A-6) Act, 1956.
Joginder Singh @ 120-B IPC; 376/511 IPC read Jeen (Accused A-7 with 120-B IPC; and 5 of The Immoral Traffic (Prevention) Act, 1956.
Shoukat Ali @ 120-B IPC; 354 IPC read with Shoki (Accused A- 120-B IPC; and 5 of The of
8) Immoral Traffic (Prevention) Act, 1956.
Anita @ Neeto 120-B IPC; 342 IPC read with (Accused A-9) 120-B IPC; and 5 of The rt Immoral Traffic (Prevention) Act, 1956.
2. It is also a matter of record that in order to establish the aforesaid charges, in all, prosecution examined as many as 22 witnesses and statements of the accused under Section 313 of the Code of Criminal Procedure came to be recorded, in which they took common plea of innocence, false implication and denial.
3. Appreciating the material placed on record by the prosecution, though the trial Court in terms of impugned judgment dated 31.3.2015/6.4.2015, passed by Sessions Judge, Chamba, District Chamba, H.P., in Sessions Trial No. 58 of 2013, titled as State of H.P. vs. Anjna Devi @ Anju & others, acquitted accused Jaswant Singh (Accused A-3), Pawan Kumar (Accused A-4), Hans Raj (Accused A-5), Anil ::: Downloaded on - 15/04/2017 20:40:03 :::HCHP 4 Kumar @ Thapu (Accused A-6) and Shoukat Ali @ Shoki (Accused A-8) in relation to all the charged offences, but .
however convicted Anjana Devi @ Anju (Accused A-1 & appellant in Cr. A. No. 165 of 2015), Lekh Raj @ Lekhu (Accused A-2 & appellant in Cr. A. No. 184 of 2015), Joginder Singh @ Jeen (Accused A-7 & appellant in Cr.A. No. of 170 of 2015) and Anita @ Neeto (Accused A-9 & appellant in Cr. A. No.170 of 2015) and sentenced as under:-
rt Name of Sections Sentence accused Anjana Devi 120-B read Rigorous Imprisonment for a @ Anju (A-1) with 376 period of seven years and to pay IPC a fine of `10,000/- and in default of payment thereof to further undergo simple imprisonment for a period of two months.
506 IPC Rigorous Imprisonment for a
period of six months and pay fine
of `1000/- and in default of
payment thereof to further
undergo simple imprisonment for
a period of 15 days.
5 of The Rigorous Imprisonment for a
Immoral period of three years and pay fine
Traffic of `5000/- and in default of
(Prevention) payment thereof to further
Act, 1956. undergo simple imprisonment for a period of one month.
All the sentences awarded shall run concurrently.
Lekh Raj @ 376 IPC Rigorous Imprisonment for a
Lekhu period of seven years and pay
(Accused A-2) fine of `25,000/- and in default of
payment thereof to further
undergo simple imprisonment for
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a period of three months.
Joginder 354 IPC Rigorous Imprisonment for a
.
Singh @ period of one year and pay fine of
Jeens `10,000/- and in default of
(Accused A-7) payment thereof to further
undergo simple imprisonment for
a period of two months.
Anita @ 120-B read Rigorous Imprisonment for a
Neeto with 354 period of one year and pay fine of
(Accused A-9) IPC `10,000/- and in default of
of
payment thereof to further
undergo simple imprisonment for
a period of two months.
rt 342 IPC Rigorous Imprisonment for a
period of six months and pay fine
of `1000/- and in default of
payment thereof to further
undergo simple imprisonment for
a period of 15 days.
5 of The Rigorous Imprisonment for a
Immoral period of three years and pay fine
Traffic of `5000/- and in default of
(Prevention) payment thereof to further
Act, 1956. undergo simple imprisonment for a period of one month.
All the sentences awarded shall run concurrently.
4. It is a matter of record that no appeal against the judgment of acquittal of any one of the accused stands filed by the State.
5. Cr. A. No. 165 of 2015 stands filed by Anjana Devi @ Anju, Cr. A. No. 184 of 2015 by Lekh Raj @ Lekhu ::: Downloaded on - 15/04/2017 20:40:03 :::HCHP 6 and Cr. A. No. 170 of 2015 by Joginder Singh @ Jeen & Anita @ Neeto.
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6. Hence in these appeals preferred only by the convicts, legality and propriety of the findings returned by the trial Court, in terms of the impugned judgment is required to be considered by this Court.
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7. In short, it is the case of the prosecution that on 26.6.2012 Bablu (PW-2), a dhaba owner, noticed the rt prosecutrix sitting alone, on a parapet, at a place known as Bagga. On being questioned, she disclosed of being subjected to sexual assault, at different places, over a period of time. Police was informed and on the strength of her statement so recorded under the provisions of Section 154 Cr. P.C. (Ext. PW-1/A), F.I.R. No. 151/2012, dated 26.6.2012 (Ext. PW-17/A) came to be registered at Police Station Sadar Chamba, Distt. Chamba, H.P., under the provisions of Sections 376, 354, 342,, 506 and 120-B of the Indian Penal Code.
8. Investigation carried out by ASI Vinod Singh (PW-
20), Inspector Kailash Walia (PW-21) and Inspector Mathura Dass (PW-22) revealed that the prosecutrix (PW-1), aged 16 ::: Downloaded on - 15/04/2017 20:40:03 :::HCHP 7 years, was residing with her sister Asha Devi (PW-3) in Mugla Mohalla, Chamba (H.P.). On 17.6.2012, prosecutrix .
visited the house of Anita, where Joginder Singh @ Jeen tried to sexually molest her. Some how she was able to rescue herself and return to her sister's house. The following day i.e. on 18.6.2012, prosecutrix travelled in a of vehicle to Khajjiar with Lekh Raj @ Lekhu, Anil Kumar @ Thapu and Anjana Devi @ Anju, where in a hotel she was rt sexually assaulted by Lekhu. On 19.6.2016 she again went with them to Dalhousie where also she was sexually assaulted by the said accused. After spending the night at Dalhousie, they returned to Chamba from where prosecutrix returned to her sister's house. From there she went to Chamunda, Pathankot and returned on 24.6.2012. On 25.6.2012, Anju called her to her house where she found accused Shoukat Ali having drinks. Shaukat Ali tried to molest her but after rescuing herself she took a lift in a taxi.
Later on she was found by Bablu (PW-2) at a place known as Bagga.
9. Investigation further revealed that at the time of commission of crime, prosecutrix was minor. Her medical ::: Downloaded on - 15/04/2017 20:40:03 :::HCHP 8 examination so conducted by Dr. Richa Gupta (PW-10) revealed that prosecutrix was subjected to sexual assault.
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10. During investigation accused were arrested and on the basis of disclosure statement (Ext. PW-7/A) police recovered certain incriminating articles. Investigation further revealed that prosecutrix was subjected to sexual of assault at Darshan Guest House, Sahil Cottage, Hotel Chamunda View and Gautam Guest House wherefrom police rt also recovered certain incriminating articles.
11. In the instant case, based on the evidence (ocular and documentary) led by the parties, trial Court, convicted the appellant-accused by returning the following findings:
(i) As on the date of alleged incident, prosecutrix had crossed the age of discretion and was more than 18 years of age.
(ii) Accused Anjana Devi @ Anju was indulging in the trade of trafficking and as against the alleged demand of `50,000/-, had received `5,000/- from accused Lekh Raj.
(iii) Accused Anjana Devi, Lekh Raj, Joginder Singh and Anita after hatching a conspiracy ::: Downloaded on - 15/04/2017 20:40:03 :::HCHP 9 had forcefully pushed and subjected the prosecutrix in to the flesh trade.
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(iv) For which purpose prosecutrix was also confined at different places.
12. Having heard learned counsel for the parties as also perused the record, Court is of the considered view that the reasoning adopted by the trial Court in convicting the of appellants-accused is perverse. Judgment in question is not based on correct and complete appreciation of evidence rt and the material placed on record, causing serious prejudice to the appellants-accused, resulting into miscarriage of justice.
13. In Shivaji Sahabrao Bobade and another Versus State of Maharashtra, (1973) 2 SCC 793, the apex Court, has held that:
".......Lord Russel delivering the judgment of the Board pointed out that there was "no indication in the Code of any limitation or restriction on the High Court in the exercise of its powers as an appellate Tribunal", that no distinction was drawn "between an appeal from an order of acquittal and an appeal from a conviction", and that "no limitation should be placed upon that power unless it be found expressly stated in the Code". .... ....
(Emphasis supplied)
14. The apex Court in Lal Mandi v. State of W.B., (1995) 3 SCC 603, has held that in an appeal against ::: Downloaded on - 15/04/2017 20:40:03 :::HCHP 10 conviction, the appellate Court is duty bound to appreciate the evidence on record and if two views are possible on the .
appraisal of evidence, benefit of reasonable doubt has to be given to the accused.
15. Also it is a settled position of law that graver the punishment the more stringent the proof and the obligation of upon the prosecution to prove the same and establish the charged offences.
rt
16. The first question which arises for consideration is as to whether findings returned by the trial Court with regard to the age of the prosecutrix are borne out from the record or not. It is a matter of record that in Court, prosecutrix disclosed her age, at the time of the commission of the offence, to be of 19 years which fact stands corroborated by ASI Vinod Singh (PW-20). On 26.6.2012 prosecutrix was medically examined by Dr. Richa Gupta (PW-10), to whom she also disclosed similar age. MLC (Ext.
PW-10/C) clearly records such fact. It is also a matter of record that ossification test conducted revealed the radiological age of the prosecutrix to be between 17 and 19 years.
::: Downloaded on - 15/04/2017 20:40:03 :::HCHP 1117. Tilak Raj (PW-8) is the Secretary of the Gram Panchayat who has proved on record certificate of age .
(Ext. PW-8/B) which records the date of birth of the prosecutrix to be 10.2.1997. But then this certificate, as per the witness has been issued on the basis of pariwar register and not under the provisions of the Registration of Births of and Deaths Act, 1969. Be that as it may, significantly, pariwar register is not even certified or paginated by the rt concerned/appropriate authority. Also there is over-writing against the name and date of birth of prosecutrix as is so admitted by the witness, thus rendering its authenticity to be doubtful.
18. In the school record, as per certificate (Ext. PW-
12/A) sought to be proved by Nisha (PW-12), no doubt date of birth of the prosecutrix is recorded as 10.2.1997, but then as is so admitted by the witness, such entries came to be incorporated on the basis of pariwar register but by whom, is not clear. On this issue, testimony of father of the prosecutrix (PW-4) is relevant. He could not deny that the age reflected in the school leaving certificate is wrong. In ::: Downloaded on - 15/04/2017 20:40:03 :::HCHP 12 fact even he did not get the entries recorded in the record maintained by the school.
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19. In similar circumstances this Court has already held such certificate not to have established the correct date of birth. [State of H.P. v. Narender Kumar alias Hira and others, 2010 Cri.L.J. 3545].
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20. The Apex Court in Birad Mal Singhvi v. Anand Purohit, (1988) Supp. 1 SCC 604 has held that "To render a rt document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record;
secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded." [Emphasis supplied] ::: Downloaded on - 15/04/2017 20:40:03 :::HCHP 13 .
21. The principle stands reiterated in Ravinder Singh Gorkhi vs. State of U.P, (2006) 5 SCC 584 and Ram Suresh Singh vs. Prabhat Singh, (2009) 6 SCC 681.
22. As such, not much credence can be lent to the of certificates more so when it has not come on record as to who got these entries recorded at the time of admission of rt the child in the school. Consequently certificates (Ext.PW-
8/B and Ext.PW-12/A) cannot be accepted to be legal evidence proving the factum of date of birth of the prosecutrix.
23. Thus, it can safely be held that the findings returned by the Court below qua the age of the prosecutrix are totally borne out from the record.
24. When the Doctor (PW-10) clinically examined the prosecutrix, noticeably no signs of marks/injury/abrasion were found on any part of her body. In fact, according to the Doctor, prosecutrix never disclosed that she had been subjected to sexual assault. From the medical record (Ext.
PW-10/C), it is evident that prosecutrix was habitual to sexual intercourse. Two finger test was found positive.
::: Downloaded on - 15/04/2017 20:40:03 :::HCHP 14Significantly medical record does not conclusively establish the prosecutrix to have been subjected to forcible sexual .
assault.
25. It is a settled proposition of law that in a case of rape, even in the absence of any corroboration of medical evidence, accused can be held guilty on the basis of sole of testimony of the prosecutrix, if it is found to be fully inspiring in confidence. In fact, it need not be corroborated rt by any evidence, substantive or otherwise.
26. Before dealing with the testimony of the prosecutrix, it would be appropriate to discuss other evidence placed on record by the prosecution.
27. It has come in the testimony of Krishan Kumar (PW-6), Lakhvir Singh (PW-7) and Rajinder Rana (PW-13) that during the investigation police had recovered certain incriminating articles in the shape of bed sheets, clothes etc. Now incidentally, when these recovered articles were sent for chemical analysis, no sign of blood or semen were found, save and except on the bed sheet (Ex.P-2), recovered from Gautam Guest House. But then there is nothing further to link this fact to anyone of the accused ::: Downloaded on - 15/04/2017 20:40:03 :::HCHP 15 persons. The Guest House was open for all and recovery of the bed sheet stood effected after a period of six days.
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There is no evidence on record to establish that within this period, none else occupied or used the room or linen never came to be changed.
28. Much emphasis is laid on the disclosure of statement (Ex.PW.7/A) allegedly made by accused Lekhu on 7.7.2012. In terms whereof he got recovered Maruti-800 rt vehicle, allegedly used for taking the prosecutrix from Chamba to Khajjiar and then to Dalhousie. But then does such fact really advance the case of the prosecution? In my considered view, no, for nothing incriminating was found in the vehicle linking anyone of the accused to the alleged crime, more so, when prosecutrix herself did not reveal the make or name of the vehicle in which she travelled.
29. Further, questions which arise for consideration are as to whether the prosecutrix was subjected to wrongful confinement by the accused/convicts at Chamba, Dalhousie, and Khajjiar? Whether Jeen used criminal force and assaulted the prosecutrix with an intent of outraging her modesty? Whether she was criminally intimidated by the ::: Downloaded on - 15/04/2017 20:40:03 :::HCHP 16 accused/convicts over a continuous period of time at different places? Whether she was subjected to forceful .
sexual assault by Lekh Raj at Khajjiar and Dalhousie? and whether the accused/convicts hatched a criminal conspiracy and procured or induced the prosecutrix into the business of flesh trade and subjected her to sexual assault or not?
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30. The answer to these questions lies in the testimony of only four witnesses i.e. prosecutrix (PW.1), her rt sister Asha Devi (PW.3), father Dharam Chand (PW.4) and the dhaba owner Bablu (PW.2).
31. In Court, Bablu simply deposes that on 26.06.2012, at about 6.15 AM, he noticed the prosecutrix standing below the highway on the banks of river Ravi. She felt like jumping in the river. However he persuaded her not to do so. After bringing her to his dhaba and making her drink water, he informed the police. He does disclose that prosecutrix was in a pensive mood, but then most significantly, nothing about the incident in question ever came to be disclosed to him by the prosecutrix. Why so?
remains unexplained. He does not in any manner point only finger of guilt against any one of the accused/convicts.
::: Downloaded on - 15/04/2017 20:40:03 :::HCHP 1732. It is a matter of record that Bagga is at a distance of approximately 25 kms from Chamba, where .
both the prosecutrix and accused Anju and Anita reside. But how did the prosecutrix reach there? For establishing such fact, prosecution wants the Court to believe that prosecutrix travelled in a taxi. Now significantly except for the ocular of version of the prosecutrix, which shall be dealt herein later, prosecution never examined the driver or owner of the taxi rt in which she travelled up to this place. What was the name of the driver, make and number of the vehicle remains a mystery.
33. It is not the case of prosecution that either on 25.06.2012 or 26.06.2012, accused raped the prosecutrix or during her alleged travel to Bagga, she was in an unconscious or semiconscious state of mind. Prosecutrix is an able bodied adolescent and mature enough to take decisions and understand its consequences.
34. On perusal of the testimony of Dharam Chand one finds that the incident never came to be narrated to him by his daughter. He is a witness to the recovery of various articles recovered by the police from different ::: Downloaded on - 15/04/2017 20:40:03 :::HCHP 18 places and does not in any manner corroborate the version of the prosecutrix.
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35. Close scrutiny of the testimony of Asha Devi also reveals that the incident of molestation or sexual assault never came to be disclosed to her by the prosecutrix. All that the witness states is that on 24th, but of which month or of year she does not disclose, prosecutrix came to stay with her when she narrated her "tale of woe". Now what is that rt "tale of woe", is again a mystery for want of disclosure. She qualifies by stating that during her stay prosecutrix did disclose that "some persons had met her". But then, she is categorical that their names never came to be disclosed to her, though she met them through accused Anju. It is not her case that prosecutrix never knew or ever revealed their names. She further states that "next day", after receiving the call from Anju, prosecutrix left with her clothes. Despite her asking, prosecutrix did not return in the evening, though same day, Anju had called her on phone and inquired about the prosecutrix when she was told that the prosecutrix had not returned. Significantly despite the same this witness did not take any action or express concern for finding the ::: Downloaded on - 15/04/2017 20:40:03 :::HCHP 19 whereabouts of her sister. She further states that next day, she received the call from the wife of Bablu (PW.2) that .
prosecutrix had tried to jump from the hill towards a river.
On receiving such call, she rushed to Bagga and found the prosecutrix under stress and her clothes mutilated with human excreta. The matter came to be reported to the of police. In her presence police got recovered currency notes of `5000/- from the house of accused Anju.
rt
36. Her statement is absolutely vague and unspecific. She does not disclose, much less establish complicity of the accused to the crime. Version of this witness of having received a phone call and then gone to Bagga, is not corroborated by any material evidence. In fact, it stands falsified from the version of Bablu (PW.2).
Who is this wife of Bablu, remains a mystery. Also it is not the case of the prosecution that the clothes of the prosecutrix were mutilated with human excreta, which fact was also not found by the doctor, who examined the prosecutrix. It is not the case of any one of the witnesses that the clothes of the prosecutrix came to be changed.
Assuming that this witness did go to Bagga, but then, ::: Downloaded on - 15/04/2017 20:40:03 :::HCHP 20 significantly even there, prosecutrix never narrated any one of the incident(s) to her. Her testimony is rendered to be .
doubtful from the fact that when prosecutrix did not return home, she did not make any inquiry from the relatives, Anju or report the matter to the police. Even in Court, she does not state that prosecutrix was either illegally confined of or subjected to prostitution by anyone of the accused persons. Her version of recovery of `5000/-, does not in any rt manner advance the case of the prosecution, for the witness admits the currency notes so taken into possession, not to bear any identification marks. In fact, she goes to contradict herself by deposing that it was the husband of the accused who had brought the currency notes to the Police Station. Prosecution wants the Court to believe that recovery of currency notes was effected pursuant to disclosure statement (Ex.PW.3/C), made by accused Anju in the presence of this witness. But then one finds the witness to have contradicted such fact, for she admits "that Anju had not disclosed before me that she had kept the money underneath the pillow". The witness was declared hostile on ::: Downloaded on - 15/04/2017 20:40:03 :::HCHP 21 this count and cross-examined by the Public Prosecutor, yet nothing fruitful could be elicited from her testimony.
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37. It is settled principle of law that testimony of prosecutrix is sufficient enough to convict the accused if it inspires confidence. (See: Rajesh Patel Versus State of Jharkhand, (2013) 3 SCC 791 and State of Rajasthan Versus of Babu Meena, (2013) 4 SCC 206).
38. The Court is duty bound to appreciate the rt evidence in totality of the background of the entire case. It is also a settled proposition of law that in case evidence read in its totality and the story projected by the prosecutrix is found to be improbable, her version is liable to be rejected. The apex Court in Narender Kumar Versus State (NCT of Delhi), (2012) 7 SCC 171, has 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 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 20:40:03 :::HCHP 22
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 substantial, which may lend assurance to her testimony. (Vide: Vimal Suresh Kamble v. Chaluverapinake Apal S.P. & of Anr., (2003) 3 SCC 175; and Vishnu v. State of Maharashtra, (2006) 1 SCC 283.
22. Where evidence of the prosecutrix is found suffering rt 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 can be placed upon her evidence. (Vide: Suresh N. Bhusare & Ors. v. State of Maharashtra, (1999) 1 SCC 220.
23. In Jai Krishna Mandal & Anr. v. State of Jharkhand, (2010) 14 SCC 534, this Court while dealing with the issue held:
"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."
24. In Rajoo & Ors. v. State of Madhya Pradesh, (2008) 15 SCC 133, this Court held: (SCC p. 141, para 10) "10....that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on par with that of an injured witness and if the evidence is reliable, no corroboration is necessary."
::: Downloaded on - 15/04/2017 20:40:03 :::HCHP 23The court however, further observed:
"11.......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.....
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."
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25. In Tameezuddin @ Tammu v. State (NCT of Delhi), (2009) 15 SCC 566, this Court held has under:
rt "9. 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 improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter."
26. Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference of the victim being a woman of "easy virtues" or a women of "loose moral character" can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated. (Vide: State of Maharashtra & Anr. v. Madhukar Narayan Mardikar, (1991) 1 SCC 57; State of Punjab v. Gurmit Singh & Ors., (1996) 2 SCC 384; and State of U.P. v. Pappu @ Yunus & Anr., (2005) 3 SCC 594.
::: Downloaded on - 15/04/2017 20:40:03 :::HCHP 2427. In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken .
into consideration at all.
28. The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of witnesses of which are not of a substantial character.
29. However, even in a case of rape, the onus is always on the prosecution to prove, rt affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. (Vide: Tukaram & Anr. v. The State of Maharashtra, (2979) 2 SCC 143; and Uday v. State of Karnataka, (2003) 4 SCC 46.
30. The prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case ::: Downloaded on - 15/04/2017 20:40:03 :::HCHP 25 the court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the .
prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected.
31. The court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. Even if the prosecutrix is of easy virtue/unchaste woman that itself cannot be a of determinative factor and the court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of."
39. rt Keeping in view the aforesaid legal position Court proceeds to examine the testimony of the prosecutrix.
From her lengthy statement running into 19 pages, one finds the witness to have self-contradicted. Her testimony is absolutely uninspiring in confidence and the witness wholly unreliable and not worthy of credence. Apart from the fact that witness was declared hostile on the question of age and the incident of alleged rape so committed by the accused who stand acquitted, at Chamunda and Pathonkot, one finds her version to be absolutely unbelievable and unconvincing.
40. She states that in the year 2012, she was staying with her sister at Chamba. At that time she developed acquaintance with Anju. One day, about which she is not ::: Downloaded on - 15/04/2017 20:40:03 :::HCHP 26 certain, when she went to the house of Anita, she saw both Anju and Anita taking drinks with Jeen who tried to outrage .
her modesty but when she raised hue and cry, daughter of Anita opened the door. At that, Jeen wore his clothes and returned to the quarter of Anju. Significantly she did not report this incident either to Anju, Anita, neighbours or her of sister. Why is it that she did not go back to her sister's house, she does not disclose. What prompted her to go to rt the house of Anju and spend the night there, is also not clear. Who is this daughter of Anita also she does not disclose. Neither has prosecution bothered to examine such person in Court. Significantly, even with regard to the place where she was subjected to molestation by Jeen, there is material contradiction. In Court, she states the house to be at a place known as Ballu. Whereas, in the FIR (Ex.PW.17/A), she gets it recorded as Sultanpur and in the spot map (Ex.PW.22/A), it is reflected as Galu.
41. She further states that the next day, Anju, Thappu and Lekh Raj took her in a vehicle to Khajjiar, where in a hotel, Lekhu sexually assaulted her. Thereafter, all of them returned to Chamba and she went to the quarter of ::: Downloaded on - 15/04/2017 20:40:03 :::HCHP 27 Anju. Which is that vehicle in which they travelled? Which is that hotel, where she was subjected to sexual assault? and .
why is it that she did not return to her sister and continued to stay with Anju? All this she does not explain. Noticeably, Thappu already stands acquitted by the Court below.
Significantly even at this juncture, she did not disclose the of incident to anyone. It is not her specific case that she was under the influence of any stupefying agent. Judicial notice rt can be taken of the fact that Khajjiar is at a distance of approximately 30 kms from Chamba and the area is pupulated. It is not her case that her hands were tied or mouth gagged. Why is it that on the way, in the hotel or at other public places, she did not raise hue and cry. Also she admits to have carried a mobile with herself. She could have conveniently called anyone for help which she did not do so.
42. She further wants the Court to believe that yet the following day, which would be the third day, she again alongwith Anju, Lekhu and Thappu, went in a car to Dalhousie, where again she was taken to a hotel and subjected to sexual assault by Lekhu. Like the previous ::: Downloaded on - 15/04/2017 20:40:03 :::HCHP 28 visit, she never went back to her sister's house but stayed with Anju. Even then she did not disclose the incident to .
anyone.
43. She admits to have spent the following night with her sister Asha Devi. Yet even then she did not disclose any one of the incident(s) to her.
of
44. She states that again she received a call from Anju and went to her house, where she found Shoukat Ali rt taking drinks and on her asking washed her clothes.
Though Anju had wanted her to stay with her, but when she resisted, Anju gave 2-3 slaps and locked her inside the room. However she was rescued by accused Shoukat Ali and when Anju went to get water, she managed to escape.
After reaching Chamanda temple, she travelled in a taxi and disclosed the entire incident to the driver, who dropped her around 7.30 p.m. at Bagga. She tried to take away her life by jumping down the cliff, but got stuck in a tree and fell unconscious. It was only the following day at about 6.00 a.m., she was rescued by Bablu, who informed the police, whereafter her statement came to be recorded.
::: Downloaded on - 15/04/2017 20:40:03 :::HCHP 2945. Now significantly she does not disclose the name of the taxi driver or the make/type of the vehicle in which .
she travelled up to Bagga. Why would an unknown person make her travel in a vehicle is not clearly borne out from the record. Having reached her own village i.e. Bagga, why is it that she did not straightaway go to house? After all she of is a resident of Bagga. Her version of having attempted to commit suicide and being stuck on a tree, stands materially rt contradicted by Bablu who had seen the prosecutrix standing below the road on the river bank.
46. Crucially this witness, on the point of being taken to Pathankot and Chamunda View Hotel and subjected to sexual assault by accused Jaswant Singh (A-3), Pawan Kumar (A-4) and Hans Raj (A-5), who stand acquitted, was declared hostile.
47. She wants the Court to believe that after returning from Khajjiar, accused Anju demanded `50,000/-
but accused gave `5000/-. Her version is absolutely uninspiring in confidence. It is a mere exaggeration not disclosed to the police during the investigation, apart from the fact that the purpose of such demand or exchange of ::: Downloaded on - 15/04/2017 20:40:03 :::HCHP 30 money is not disclosed by her. It cannot be presumed that it was for the purpose of flesh trade or for gratification.
.
48. From her testimony it is quite apparent that for more than three days i.e. 21.06.2012 to 23.06.2012, her whereabouts were not known to her sister. It is the case of prosecution that after her return from Dalhousie on of 19.06.2012, prosecutrix went to Pathankot and Chamunda and returned to her sister's house in the evening of rt 24.06.2012. Now significantly in Court, prosecutrix does not state where all she stayed during this period. She denies having spent the night at Pathankot and Chamunda.
Crucially even after returning to her sister's house on 24.06.2012 she again went to meet Anju on 25.06.2012.
Had she been subjected to assault, she could have not done so. Though there is nothing on record to establish that she had gone on the asking of Anju. Why is it that either she or her sister did not disclose the incident to anyone? What prompted her to visit the house of Anju on receiving a phone call? she does not disclose. At the cost of repetition, it may only be observed that prosecutrix a well built lady, fully conscious of her acts, voluntarily and knowingly went ::: Downloaded on - 15/04/2017 20:40:03 :::HCHP 31 to the house of Anju. She was fully informed of all her actions and voluntarily visited different places over a .
different period of time.
49. Crucially prosecutrix admits it to be correct that her sister had advised her not to visit the house of Anju for she was not a good lady, yet unrelentlessly she continued of with her visits. She was conscious and informed of her actions. She is not a child but an adolescent. Her version of rt being threatened by Anju during her visit to Khajjiar is absolutely uninspiring in confidence. She admits to have voluntarily travelled to Khajjiar. She admits that while at Khajjiar and Dalhousie she received calls on her mobile from her family members. If that were so, then why is it that she did not immediately report the incident to them. She admits not to have been criminally intimidated or pressurized by Anju, during the period of travel. This witness had ample and numerous opportunities of reporting the incident to anyone, yet she chose not to do so. She chose not to heed to her sister's advice. It is not that Anju was unknown to her. She was in contact with her for the last six months prior to the incident. Chamba is a small town and house of ::: Downloaded on - 15/04/2017 20:40:03 :::HCHP 32 Anju is situate in a thickly populated area. She could have conveniently disclosed the incident(s) to anyone. Her .
version of having been rescued by Shoukat Ali or daughter of Anita is absolutely uninspiring in confidence.
50. Also, in Court, her version is full of improvements. Her version of having been slapped by of accused Anju is nowhere recorded in her previous statement (Ex.PW-1/A) with which she was confronted. Her rt further version of having travelled in a taxi and narrated the incident to the driver is also not recorded in her previous statement with which she was confronted. Her version of having raised hue and cry at the time when Jeen tried to molest her is a mere improvement, not to have been recorded in her previous statement with which she was confronted. Even the factum of sexual assault by accused Lekhu was nowhere recorded in her previous statement with which she was confronted.
51. Significantly the trial Court failed to correctly appreciate the testimony of the prosecutrix. Even qua the convicts her testimony is absolutely shaky, unbelievable and the witness unreliable.
::: Downloaded on - 15/04/2017 20:40:03 :::HCHP 3352. From the material placed on record, prosecution has failed to establish that the appellants-accused are guilty .
of having committed the offence, they have been charged with. The circumstances cannot be said to have been proved by unbroken chain of unimpeachable testimony of the prosecution witnesses. The guilt of the appellants-
of accused does not stand proved beyond reasonable doubt to the hilt. The chain of events does not stand conclusively rt established, leading only to one conclusion, i.e. guilt of the accused. Circumstances when cumulatively considered do not fully establish completion of chain of events, pointing to the guilt of the appellants-accused and no other hypothesis other than the same.
53. Findings returned by the trial Court, convicting the appellants-accused, cannot be said to be based on correct and complete appreciation of testimonies of prosecution witnesses. Such findings cannot be said to be on the basis of any clear, cogent, convincing, legal and material piece of evidence, leading to an irresistible conclusion of guilt of the accused. Incorrect and incomplete appreciation thereof, has resulted into grave miscarriage of justice, ::: Downloaded on - 15/04/2017 20:40:03 :::HCHP 34 inasmuch as appellants-accused stands wrongly convicted for the charged offences.
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54. Hence, for all the aforesaid reasons, all the appeals are allowed and the judgment of conviction and sentence dated 31.3.2015/6.4.2015, passed by the learned Sessions Judge, Chamba, Distt. Chamba, H.P., in Sessions Trial No. 58 of of 2013, titled as State of Himachal Pradesh vs. Anjna Devi @ Anju & others, qua the present appellants is set aside and rt the appellants/accused are acquitted of the charged offences.
55. Accused Anjana Devi @ Anju and Lekh Raj @ Lekhu be released from jail, if not required in any other case.
Release warrants be prepared and issued accordingly. Bail bonds furnished by the accused Joginder Singh and Anita @ Neeto are discharged.
Appeals stand disposed of, so also pending application(s), if any.
(Sanjay Karol), Judge.
June 24 , 2016 (PK)
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