Himachal Pradesh High Court
State Of H.P vs Of on 21 June, 2016
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 440 of 2010.
Reserved on : 23rd May, 2016.
.
Date of Decision: 21st June, 2016.
State of H.P. .....Appellant.
Versus
of
Dheeraj Kumar ....Respondent.
Coram rt
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the Appellant: Mr. M.A. Khan, Additional A.G. For the Respondents: Mr. Dheeraj K. Vashisht, Advocate.
_______________________________________________________ Sureshwar Thakur, Judge The instant appeal stands directed by the State of H.P. against the judgment of the learned Additional Sessions Judge, Ghurmarwin, District Bilaspur, Himachal Pradesh, rendered on 10.06.2010 in Sessions Trial No. 14/7 of 2009, whereby, the latter Court acquitted the accused/respondent of the offences ::: Downloaded on - 15/04/2017 20:37:46 :::HCHP 2 punishable under Sections 376 and 506 of the Indian Penal Code.
2. The facts relevant to decide the instant case .
are that during the year 2009, the prosecutrix, aged 14 years, was studying in 8 th standard in middle school at Bari Majerwan. Accused Dheeraj was his neighbour and known to the prosecutrix since her childhood. About of four months prior to the occurrence the accused called the prosecutrix in the bath room of her paternal aunt rt Kamali Devi and committed rape on her. Thereafter, the accused repeated sexual act with her on regular intervals. On 16.2.2009 at about 7.00 p.m. accused Dheeraj called her to the bathroom of her aunt Kamli Devi at 8.00 p.m. by making a call on mobile phone No.92187-49628 belonging to her mother. The prosecutrix went there and the accused committed sexual act with her. After short while when her mother called her she went to her house. On being questioned by her mother initially the prosecutrix did not say anything but when her mother thrashed her she told her that she was called to the bathroom by accused Dheeraj where he had sexual intercourse with her. Thereafter, ::: Downloaded on - 15/04/2017 20:37:46 :::HCHP 3 the parents of the prosecutrix visited the house of the accused but he was not present there. Then the prosecutrix visited Police Station, Ghumarwin along with .
her parents and lodged report about this occurrence on the basis of which FIR No.36 of 17.2.2009 was registered at 12.30 a.m. against the accused. The police carried out the investigation in the case and completed all the of codal formalities.
3. On conclusion of investigations, into the rt offences, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court.
4. The accused was charged by the learned trial Court for his committing offences punishable under Sections 376 and 506 of the IPC. In proof of the prosecution case, the prosecution examined 17 witnesses. On conclusion of recording of the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded by the trial Court, in which the accused claimed innocence and pleaded false implication. However, he has not led any defence evidence.
::: Downloaded on - 15/04/2017 20:37:46 :::HCHP 45. On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused/respondent herein.
.
6. The State of H.P. stands aggrieved by the judgment of acquittal recorded by the learned trial Court. The learned Addl. Advocate General has concertedly and vigorously contended qua the findings of of acquittal recorded by the learned trial Court standing not based on a proper appreciation of the evidence on rt record, rather, theirs standing sequelled by gross mis-
appreciation of material on record. Hence, he contends qua the findings of acquittal being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of conviction.
7. On the other hand, the learned defence counsel has with considerable force and vigour, contended qua the findings of acquittal recorded by the Court below standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating interference, rather theirs meriting vindication.
::: Downloaded on - 15/04/2017 20:37:46 :::HCHP 58. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record.
.
9. Initially it is incumbent upon this Court to rest the prime factum of the prosecutrix at the stage contemporaneous to the ill-fated occurrence having or having not arrived at the age of majority for gauging of therefrom hers holding an empowerment to mete consent to the accused for his perpetrating upon her the rt penal misdemeanors as stand ascribed to him by the prosecutrix or to not mete to him the apposite consent.
10. Evidence which stands adduced by the prosecution qua the prosecutrix at the time contemporaneous to the occurrence being a minor hence rendering her incapacitated to purvey consent to the accused to his perpetrating penal misdemeanors upon her, stands displayed in Ex.PW5/A with a disclosure occurring therein of the prosecutrix standing admitted on 1.5.2000 in Primary School, Bari Majnerwan, District Bilaspur, H.P. by her grandmother Smt. Sukh Devi, who at the time of initiation of investigations by the Investigating Officer was not ::: Downloaded on - 15/04/2017 20:37:46 :::HCHP 6 surviving thereat. A perusal thereof also discloses of its manifesting the date of birth of the prosecutrix being 2.10.1994. Also a perusal of the abstract of the Parivar .
Register of the family of the father of the prosecutrix comprised in Ex.PW7/A wherein the name of the prosecutrix occurs makes a vivid disclosure of the prosecutrix being born on 2.10.1994. Moreover, the of birth certificate of the prosecutrix borne on Ex.PW 7/B records the factum of the prosecutrix being born on rt 2.10.1994. Even though there exists in the cross-
examination of PW-7 Madan Lal a communication qua the name of the prosecutrix standing scribed in Ex.PW7/B on 4.5.2009 yet the factum of the name of the prosecutrix standing scribed on 4.5.2009 in Ex.PW7/B whereas the apposite entry qua hers being born on 2.10.1994 standing recorded in the apposite record on 7.10.1994 would not beget any inference of EX.PW7/B with revelations occurring therein of the prosecutrix standing recorded therein to be born on 2.10.1994 being unrelatable to her, as Ex.PW7/A, the abstract of Parivar Register of the family of the father of the prosecutrix wherein the name of the prosecutrix occurs displays the ::: Downloaded on - 15/04/2017 20:37:46 :::HCHP 7 factum of the prosecutrix being born on 2.10.1994 hence is in conformity with the date of her birth recorded in Ex.PW7/B. In sequel, even if, in Ex.PW7/B .
the name of the prosecutrix remains unscribed against the apposite entry therein qua the date of her birth, the omission of the recording of the name of the prosecutrix against the apposite entry made in the records of concerned displaying hers being born on 2.10.1994 would not render 2.10.1994 to stand unrelated qua the rt prosecutrix significantly when for reiteration in Ex.PW7/A, exhibit whereof comprises the abstract of the Parivar Register of the family of the father of the prosecutrix wherein the name of the prosecutrix occurs, makes a disclosure in tandem with the disclosure in Ex.PW7/B of the prosecutrix being born on 2.10.1994.
Necessarily, hence, omission aforesaid in the apposite record by the official concerned at the time of his scribing therein the date of birth of the prosecutrix being 2.10.1994, to scribe the name of the prosecutrix against the aforesaid entry qua the date of her birth would not foster any conclusion from this Court of the said entry qua the date of birth of the prosecutrix being ::: Downloaded on - 15/04/2017 20:37:46 :::HCHP 8 unrelatable to her. Consequently, it has to be held with aplomb of the prosecutrix at the time contemporaneous to the ill-fated occurrence being a minor hence standing .
incapacitated to purvey her consent to the accused for his perpetrating penal misdemeanors upon her.
11. This Court having rested the factum of the prosecutrix at the time contemporaneous to the ill-fated of occurrence being a minor hence standing incapacitated to mete consent to the accused for his perpetrating rt penal misdemeanors upon her, it is imperative to allude to her testimony for fathoming therefrom qua her testimony bespeaking therein the perpetration of the alleged penal misdemeanors by the accused upon her person being inspiring as well as credible. The sole testimony of the prosecutrix per se holds immense fomidability besides clout to thereupon sway this Court to sustain findings of conviction against the accused.
Necessarily, in case her testimony unfolds of her communications therein qua the perpetration by the accused of the alleged penal misdemeanors upon her person not holding any intrinsic worth or innate truth arising from hers deposing in Court an embellished and ::: Downloaded on - 15/04/2017 20:37:46 :::HCHP 9 an improved version vis-a-vis her previous statement recorded in writing besides unfoldments upsurging on an incisive reading of her testimony in her cross-
.
examination of hers hence contradicting her deposition qua the occurrence/occurrences constituted in her examination-in-chief whereupon her testimony would stand stained with a vice of inter se contradictions of rendering it to be incredible besides uninspiring, hence, constraining this Court to oust her creditworthiness.
rt
12. An endeavour on a keen discernment of her testimony recorded before the learned trial Court for gauging her truthfulness begets a sequel of apparently rife embellishments also stark improvements qua the alleged penal misdemeanors perpetrated upon her person by the accused vis-a-vis her previous statement recorded in writing making a stark emergence. The blatant embellishments or improvements as emerge in her testification qua the occurrence before the learned trial Court vis-a-vis her previous statement recorded in writing stand constituted in the factum of hers therein disclosing of hers being a virgin and of hers not holding sexual intercourse with anybody. However, on hers ::: Downloaded on - 15/04/2017 20:37:46 :::HCHP 10 standing re-examined by the learned Public Prosecutor, she acquiesces to the factum of the accused holding her to sexual intercourse. The aforesaid ditherings on her .
part embedded in the factum of hers initially deposing of none holding her to sexual intercourse whereas subsequent thereto hers naming the accused to be the person who subjected her to forcible sexual intercourse of marks her testimony to stand bereft of coherence. Her wavering communications in her testification before the rt learned trial Court qua the ill-fated occurrence when hence replete with incoherence is a vivid display of hers not holding with assurance a firm view of the accused holding her to forcible sexual intercourse. Only when she with forthrightness bereft of any vice of waverings whereuon her inculpation of the accused when hence devoid of any vice of incoherence would cajole this Court to conclude with invincibility of her testimony qua hers incluplating the accused, holding veracity.
Contrarily with vacillations occurring in her testification qua hers fastening an inculpatory role to the accused, she is to be construed to be unsure of the accused subjecting her to forcible sexual intercourse. In ::: Downloaded on - 15/04/2017 20:37:46 :::HCHP 11 aftermath, an unsure inculpation of the accused by the prosecutrix cannot render her testimony to be credible and inspiring qua the inculpatory role as stands ascribed .
by her to the accused.
13. The effect of the aforesaid vacillations is of theirs staining her testimony with a vice of improvements vis-a-vis her previous statement recorded of in writing. Moreover, with hers in her cross-examination disowning the rt contents of the FIR comprised in Ex.PW1/A has the concomitant effect of her testimony qua the occurrence loosing its creditworthiness significantly when she makes a communication therein of the police obtaining her signatures thereon even when she had not communicated to them the recitals qua the occurrence recorded therein rather hers echoing qua the recitals occurring therein standing purveyed to the police official concerned by 6 to 7 persons accompanying her, hence, renders the recitals comprised in FIR Ex.PW1/A to stand not scribed thereon at her instance rather the recitals qua the ill-fated occurrence occurring therein standing purveyed to the police official concerned by the persons accompanying ::: Downloaded on - 15/04/2017 20:37:46 :::HCHP 12 her. With the aforesaid deduction emanating from the prosecutrix in her cross-examination, hence, dislodging the recitals embodied in FIR Ex.PW1/A renders the .
version qua the occurrence recorded therein to suffer enfeeblement. Also the effect of the aforesaid disownings by her of the recitals constituted in FIR Ex.PW1/A is of hers denying the recitals qua the of occurrence embedded therein whereupon the prosecution cannot with any vigour make any espousal rt of its succeeding in its endeavour to prove the charge against the accused. Furthermore, when she also testifies in Court of hers inculpating the accused for the first time in Court also emaciates the vigour of the recitals qua the ill-fated occurrence comprised in FIR Ex.PW1/A. She has testified of hers not making any disclosure qua the occurrence even to PW-3 Dr. Poonam Garg, who subjected her to medical examination whereas PW-3 contradicts her and deposes in Court of the prosecutrix disclosing to her the entire occurrence at the time when she held her to medical examination.
Consequently, the aforesaid intra se contradictions vis-
a-vis the testimony of the prosecutrix and PW-3 ingrains ::: Downloaded on - 15/04/2017 20:37:46 :::HCHP 13 the former's testimony with a shroud of doubt whereupon it cannot be held of her testimony qua the occurrence being credible besides inspiring rather with .
hers by the aforesaid stains constituted in her testifications in Court qua the occurrence, hence eroding the intrinsic truth qua the occurrence comprised in FIR Ex.PW1/A, weans a conclusion from this Court of of her testimony holding no truth.
14. rt Be that as it may, the prosecutrix deposes qua her clothes standing taken into possession after 3 to 4 days since the occurrence, factum whereof stands contradicted by her mother PW-2, who deposes of the clothes of the prosecutrix standing taken into possession by the doctor in hospital, contradiction aforesaid is also supportive of an inference of no vigour hence standing acquired qua the genesis of the prosecution case. PW-3 Dr. Poonam Garg on the anvil of the report of FSL comprised in Ex.PW3/E rendered an opinion of the possibility of the prosecutrix standing recently subjected to sexual intercourse being not overruleable. The report of the FSL comprised in Ex.PW3/E is communicative of human semen standing ::: Downloaded on - 15/04/2017 20:37:46 :::HCHP 14 detected on the Salwar of the prosecutrix. However, the revelations in Ex.PW3/E of human semen standing detected on the Salwar of the prosecutrix would not ipso .
facto sway a conclusion from this Court of the semen occurring thereon belonging to the accused unless the Investigating Officer had with the aid of the doctor concerned who held the accused to medical of examination secured the semen of the accused for its standing dispatched to the FSL concerned for rt on its standing compared by the expert concerned with the human semen found on the salwar of the prosecutrix facilitating him to record a befitting conclusive opinion of the semen found on the salwar of the prosecutrix belonging to the accused. However, for lack of concerts by the Investigating Officer besides with the FSL concerned hence standing defacilitated to compare the human semen found on the salwar of the prosecutrix with the semen of the accused, also its concomitantly standing disabled to conclusively record an opinion qua the semen found on the salwar of the prosecutrix belonging to the accused would obviously constrain this Court to conclude of the mere existence of human ::: Downloaded on - 15/04/2017 20:37:46 :::HCHP 15 semen on the salwar of the prosecutrix not constituting firm and conclusive evidence of it belonging to the accused. In aftermath, the opinion of PW-3 of the .
prosecutrix standing recently subjected to sexual intercourse cannot be concluded to be evidence for hence connecting the accused with the aforesaid pronouncement by her.
of
15. Be that as it may even if the accused had refused to render the apposite cooperation to the rt Investigating Officer concerned besides to the doctor concerned who held him to medical examination, yet his refusal to render the apposite cooperation to them may yet have attracted an adverse inference against him, nonetheless, omissions on the part of the Investigating Officer concerned to make the apposite efforts coaxes a conclusion from this Court of neither the accused refusing to render his apposite cooperation to the Investigating officer concerned or to the doctor concerned nor hence any adverse inference from his apposite refusal in regard aforesaid is drawable against the accused.
::: Downloaded on - 15/04/2017 20:37:46 :::HCHP 1616. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court below has appraised the entire evidence on record in a .
wholesome and harmonious manner apart therefrom the analysis of material on record by the learned trial Court does not suffer from any perversity or absurdity of mis-
appreciation and non appreciation of evidence on of record.
17. Consequently, there is no merit in the instant rt appeal and it is accordingly dismissed. Records be sent back forthwith.
(Rajiv Sharma), Judge (Sureshwar Thakur) 21 June, 2016 st Judge.
(jai) ::: Downloaded on - 15/04/2017 20:37:46 :::HCHP