Himachal Pradesh High Court
Rahul Kumar vs State Of Himachal Pradesh on 29 April, 2022
Bench: Sabina, Satyen Vaidya
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 29th DAY OF APRIL, 2022
.
BEFORE
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CRIMINAL APPEAL No.78 of 2019
Between:-
RAHUL KUMAR
S/O SHRI RAKESH KUMAR,
RESIDENT OF VILLAGE HADDAL,
TEHSIL & P.S. NURPUR,
DISTRICT KANGRA, H.P.
AGE 24 YEARS.
.... APPELLANT
(BY MR. ARUN SEHGAL, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
....RESPONDENT
(BY MR. VIKRANT CHANDEL,
DEPUTY ADVOCATE GENERAL)
RESERVED ON : 21st APRIL, 2022.
DECIDED ON : 29th APRIL, 2022
This appeal coming on for pronouncement of judgment
this day, Hon'ble Ms. Justice Sabina, delivered the following:
JUDGMENT
Appellant had faced trial under Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 and has been ::: Downloaded on - 02/05/2022 20:05:33 :::CIS 2 convicted and sentenced by the trial Court vide its Judgment/Order dated 04.08.2018, as under :-
.
Section 6 of Protection : Rigorous imprisonment for ten years and to of Children from pay a fine of `50,000/- (Rs. fifty thousand Sexual Offences Act, only). In default of payment of fine, he 2012 shall further undergo simple imprisonment for one year.
Hence, the present appeal by the appellant.
2. Prosecution story was set in motion on the basis of complaint Ex.PW-2/A, moved by the prosecutrix. It was alleged in the complaint that prosecutrix was a student of +2 and was studying in Government Senior Secondary School, Aund. Shivani, a friend of prosecutrix, was also studying in +2 class, but had left the school for the last about one month. However, prosecutrix used to visit the house of Shivani. Appellant was the son of maternal aunt of Shivani and was plying a vehicle. Appellant used to tell the prosecutrix that he wanted to perform marriage with her. Prosecutrix told him that he should talk to her parents. On 19th September, 2015, appellant forcibly took the prosecutrix to his residence and told her that he would talk to her parents about their marriage. Appellant took the prosecutrix to a room and at about 10.30 p.m., he committed the offence of rape. Appellant told the prosecutrix that she should go home and he would talk to his parents regarding marriage. Prosecutrix narrated the incident to her ::: Downloaded on - 02/05/2022 20:05:33 :::CIS 3 friend Shivani. On 29th October, 2015, the prosecutrix went to the house of Shivani, at about 5.00 p.m. to give her articles on the festival .
of 'Karva Chauth', and she stayed for the night in the house of Shivani.
At about 10.00 p.m., appellant came to the room where the prosecutrix was sleeping and under the pretext of marriage, he committed sexual intercourse with her. Thereafter, prosecutrix narrated the incident to her mother Pushpa Devi and her maternal aunt Sagri Devi. Mother of the prosecutrix narrated the incident to her father.
complaint was filed before the police.
3.
r Thereafter, the On the basis of the complaint, formal FIR No.351 dated 31st October, 2015 was registered at Police Station, Nurpur, District Kangra, H.P., under Sections 376 and 506 of the Indian Penal Code.
4. After completion of investigation and necessary formalities, challan was presented against the appellant under Sections 376, 506 Indian Penal Code and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012.
5. In order to prove its case, during trial, prosecution examined 14 witnesses.
6. Appellant when examined under Section 313 of the Code of Criminal Procedure, 1973, after the close of prosecution evidence, prayed that he was innocent.
7. Appellant did not examine any witness in his defence.
::: Downloaded on - 02/05/2022 20:05:33 :::CIS 48. Learned counsel for the appellant has submitted that the prosecution had failed to prove its case. No reliance could be placed .
on the testimony of the prosecutrix with regard to the commission of the alleged offence by the appellant. The version of the prosecutrix was not supported by her friend Shivani, PW-4. Medical evidence also did not corroborate the prosecution story with regard to the commission of alleged offence by the appellant. Learned counsel has also submitted that no offence could be said to have been committed by the appellant under the POCSO Act as the prosecutrix was a major at the time of incident.
9. Learned Deputy Advocate General, on the other hand, has opposed the appeal and has submitted that the prosecutrix has supported the prosecution case during trial. Statement of the prosecutrix was duly corroborated by the medical evidence.
10. Prosecutrix while appearing in the witness-box has deposed as per the contents of the complaint. In her cross-
examination, she deposed that her friend Shivani had got two sisters and one brother and her parents. She belongs to scheduled caste category, whereas, the appellant was a 'Rajput'. She admitted that her brother Suresh was elder to her by three years. She admitted that when her statement was recorded before the Magistrate, at that time her relatives including her father were present with the police. She also ::: Downloaded on - 02/05/2022 20:05:33 :::CIS 5 admitted that in the house of the appellant, his parents and his younger sister were also residing. The house of the appellant had two rooms .
along with kitchen. She could not convey to the parents of the appellant that he had brought her forcibly as he had shut her mouth with his hand. Appellant had dropped her near her house during the same night. She had not raised any alarm in the house of Shivani at the time when appellant had come to her room.
11. PW-4 Shivani deposed that prosecutrix was her friend and she used to visit her house. When the prosecutrix had visited her house, a day prior to the festival of 'Karva Chauth', she had slept with her in a room and had not disclosed anything to her on the next day.
Thus, PW-4 did not support the prosecution case during trial. Rather in her cross-examination, she deposed that prosecutrix wanted to get married to the appellant, but he had refused to perform marriage with her due to difference in their castes.
12. PW-3 Hans Raj, father of the prosecutrix, deposed that on the day of 'Karva Chauth' his daughter had gone to the house of her friend Shivani. It was probably 29th October, 2015 or 30th October, 2015. When he returned home on the night of Karva Chauth, his wife told him that appellant had forcibly committed sexual intercourse with the prosecutrix in the house of her friend Shivani. He reported the matter to the police. In his cross-examination, he deposed that ::: Downloaded on - 02/05/2022 20:05:33 :::CIS 6 appellant wanted to marry his daughter. He also admitted that marriage of the appellant could not be performed with the prosecutrix .
due to difference in their castes. He also admitted that in the Police Station, SHO had directed the appellant to get married to the prosecutrix and he had refused to do so on the ground that his parents would not agree due to difference in their castes. He further admitted that thereafter the report was lodged against the appellant. He also
13.
r to admitted that his eldest son Suresh was three years older than the prosecutrix.
PW-10, Pushpa Devi, mother of the prosecutrix, deposed that on 29th October, 2015, prosecutrix had gone to the house of her friend Shivani to give 'Karva Chauth', articles. Prosecutrix returned home on 30th October, 2015 at about 7.00 a.m. and told her that on the night of 29th October, 2015, appellant had forcibly committed sexual intercourse with her in the house of Shivani and had threatened her that he would kill her in case she disclosed the mater to anybody. Then she narrated the incident to her husband and they had all gone to the Police Station to report the incident. In her cross-examination she deposed that her son Suresh was three years elder to the prosecutrix.
She also admitted that prosecutrix had got married at the time when the appellant was in Jail. She admitted that they belong to scheduled caste category, whereas, the appellant was a Rajput.
::: Downloaded on - 02/05/2022 20:05:33 :::CIS 714. PW-1 Dr. Neelam Verma, deposed that on 31 st October, 2015, she had medically examined the prosecutrix and had observed .
as under:-
On general physical examination:- Conscious, cooperative, well oriented to time, place and person, Pulse rate 76/ p.m., B.P. 110/80 mm hg, RR-22/ per minute. Systemic examination within normal limit.
Injuries:
1. Small abrasion 1x 0.5 cm present on right side of nose reddish brown scab present.
2) Abrasion around 1.5 cm present in front of left ear.
Reddish brown scab present.
3) Bruise 2x2 cm present over right hip joint region bluish in colour.
4) Bruise lower lip present.
Examination of Genitalia:
1) Secondary sexual characters well developed. Breasts
well developed. Pubic and axillary hairs present. External genitalia normal. Vulva normal.
2) Hymen torn. Old healed tags present. White discharge present around hymen. Swabs taken from vagina and 4 slides prepared from them.
Examination of Anal region:
1) Redness present in perianal region. Small fissure present at 12 O'clock position around 0.75 cm long. On P/R examination- Anal tone normal, swabs taken from anal canal and two slides prepared from them."
15. PW-1 further opined that injuries No.1 to 4 were simple in nature. In her opinion, possibility of sexual intercourse could not be ::: Downloaded on - 02/05/2022 20:05:33 :::CIS 8 ruled out. In her cross-examination, she admitted that for recent sexual assault the best evidence was vaginal swabs and vaginal slides. She .
admitted that in this case there was no chemical evidence suggesting recent sexual intercourse. She stated that the prosecutrix had given history of anal intercourse in September and on 29th October, 2015.
She further admitted that redness in anal region reflected in MLC Ex.PW-1/B could be for some other reason also.
16. In order to prove the age of the prosecutrix, PW-7 Gurveer Singh was examined. He proved the copy of Parivar Register Ex.PW-
7/C and birth certificate Ex.PW-7/B. In his cross-examination, he deposed that entry with regard to the birth of the prosecutrix was made on the basis of information given by Ishwar Dass in column No.23 of the birth registration register.
17. As per the prosecution case, prosecutrix was a minor at the time of alleged incident. In this regard, prosecution has placed reliance on testimony of PW-7 Gurveer Singh. The said witness has proved on record Birth Certificate of the prosecutrix Ex.PW-7/B and copy of Pariwar Register Ex.PW-7/C. In his cross-examination, this witness has admitted that in the family register (copy Ex.PW-7/C), the actual date of birth of the prosecutrix has not been mentioned. As per Ex.PW-7/C, prosecutrix was born in the year 1997. Her brother Suresh Kumar was born in the year 1992. PW-7 has stated in his cross-
::: Downloaded on - 02/05/2022 20:05:33 :::CIS 9examination that the birth of the prosecutrix was entered on the information of Ishwar Dass in Column No.23 of the birth registration .
register. He further stated that he could not tell whether Ishwar Dass was not relative of the family of the father of the prosecutrix. He also could not tell, who was Ishwar Dass, who had informed Panchayat about the birth of the prosecutrix.
18. Thus, the entry with regard to date of birth of the prosecutrix has not been recorded in Ex.PW-7/B at the behest of the father of the prosecutrix, but on the basis of information given by Ishwar Dass.
19. As per Pariwar register, the year of birth of the prosecutrix has been recorded as 1997 and that of Suresh Kumar, has been recorded as 1992. Prosecutrix as well as her parents have stated in their statements that Suresh Kumar was elder to the prosecutrix by three years. Thus, the version given by the witnesses, during trial, does not corroborate the entry made in EX.PW-7/C.
20. As per Ex.PW-7/C, there was a gap of five years between the birth of Suresh Kumar and the prosecutrix, whereas, the prosecutrix and her parents have categorically deposed during trial that the age gap between Suresh Kumar and the prosecutrix was three years. Moreover, in the birth certificate, the entry has not been made ::: Downloaded on - 02/05/2022 20:05:33 :::CIS 10 on the basis of the information given by the parents of the prosecutrix, but on the basis of information given by Ishwar Dass.
.
21. PW-10, Pushpa Devi, was examined in the Court on 18 th May, 2017. In her cross-examination, she has admitted it to be correct that on that day her daughter was aged about 21 years. If that be so, it can be inferred that the prosecutrix was born in the year 1995.
22. Therefore, after carefully examining the statements of the witnesses, we are of the opinion that the entries with regard to the date of birth of the prosecutrix in EX.PW-7/B and Ex.PW-7/C are doubtful.
Rather from the testimonies of the material prosecution witnesses, it can be inferred that the prosecutrix was more than 18 years of age at the time of incident, which had occurred in September/October, 2015.
23. Although, while giving history of sexual assault to the doctor at the time of her medical examination, it was stated by the prosecutrix that she had sexual relations, for the first time with the appellant, two years earlier also, but the said fact is neither mentioned in the complaint filed by the prosecutrix Ex.PW-2/A nor has been deposed by the prosecutrix when she was examined during trial.
24. The next question that requires consideration is as to whether the allegations levelled by the prosecutrix against the appellant are established from the evidence on record.
::: Downloaded on - 02/05/2022 20:05:33 :::CIS 1125. Prosecutrix while appearing in the witness-box has deposed to the effect that she had been sexually assaulted by the .
appellant on 19th September, 2015 and 29th October, 2015. Prosecutrix was medically examined on 31st October, 2015.
26. As per the medical examination of the prosecutrix her hymen was found to be raptured and old healed tags were present.
White discharge was present around hymen. However, as per the report of the Forensic Science Laboratory, no blood or semen was detected on the vaginal swabs/slides and pubic hair of the prosecutrix.
Although, when the prosecutrix was medically examined, it was stated that condom had been used at the time of sexual assault, but the said fact has not been alleged by the prosecutrix in her complaint or when she was examined during trial.
27. So far as PW-4 Shivani is concerned, she has not supported the prosecution case during trial.
28. It has also been alleged by the prosecutrix that appellant had performed unnatural sexual intercourse with her. As per the medical examination report of the prosecutrix, redness was present in perianal area and small fissure was present. However, as per the report of Forensic Science Laboratory, no semen or blood was detected in the anal swabs and anal slides of the prosecutrix. PW-1 Dr. Neelam Verma, in her cross-examination, has admitted that redness in ::: Downloaded on - 02/05/2022 20:05:33 :::CIS 12 anal area could be due to some other reason. She also admitted that at the time of medical examination of prosecutrix her relatives were .
present.
29. Prosecutrix has admitted in her cross examination that Shivani has two sisters and one brother and her parents. It is not the case of the prosecutrix that on the day the alleged incident had taken place in the house of Shivani, her parents and her siblings were not present in the house. It is not probable that the appellant could have committed the offence while the parents and siblings of Shivani were also present in the house.
30. Similarly, it is the case of the prosecutrix that in the house of the appellant his parents and younger sister were also residing and there were two rooms in the said house. She also admitted that when she reached the house of the appellant, she was in her senses. It is not believable that she could not convey to the parents of the appellant that he had brought her to the house forcibly because he had shut her mouth with his hand. In case the appellant had put his hand on the mouth of the prosecutrix, the parents of the appellant would have objected to it. It is not the case of the prosecutrix that the parents of the appellant were also helping the appellant to commit the alleged crime.
::: Downloaded on - 02/05/2022 20:05:33 :::CIS 1331. From the cross-examination of the prosecutrix as well as her father, it appears that the dispute arose between the parties as .
appellant had declined to perform marriage with the prosecutrix on the account of difference in their caste. Father of the prosecutrix has admitted in his cross-examination that even in the Police Station, talk regarding performance of marriage of the prosecutrix with the appellant could not materialize and thereafter they had lodged the report.
Hence, keeping in view the totality of circumstances in mind, we are of the opinion that possibility that the appellant might have been falsely involved in this case, as the talks regarding marriage between the prosecutrix and the appellant had failed, cannot be ruled out.
32. Hence, we are of the opinion that the prosecution had failed to establish its case against the appellant beyond the shadow of any reasonable doubt.
33. It is settled preposition of law that an accused is presumed to be innocent till proved guilty. Prosecution is required to establish its case against an accused, by leading cogent and convincing evidence, beyond the shadow of reasonable doubt. Whenever there is doubt in the prosecution story, benefit of the same has to be extended to the accused.
34. Since in the present case prosecution has failed to establish its case against the appellant beyond the shadow of ::: Downloaded on - 02/05/2022 20:05:33 :::CIS 14 reasonable doubt, he is liable to be acquitted of the charges framed against him. Accordingly, the appeal is allowed. The judgment/order .
dated 4.8.2018, passed by the trial Court are set aside. Consequently, appellant is acquitted of the charges framed against him. Appellant be set at liberty forthwith, if not required in any other case.
35. In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellant Rahul Kumar, is directed to furnish a personal bond in the sum of Rs.25,000/-, and a surety in the like amount, before the Registrar (Judicial) of this Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.
(Sabina)
Judge
(Satyen Vaidya)
April 29, 2022 (ps) Judge
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