Himachal Pradesh High Court
Sudesh Kumar vs State Of Himachal Pradesh on 26 May, 2015
Bench: Sanjay Karol, P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.21 of 2012 Reserved on : 5.5.2015 .
Date of Decision : May 26, 2015
Sudesh Kumar ...Appellant.
Versus
State of Himachal Pradesh ...Respondent.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge. The Hon'ble Mr. Justice P.S. Rana, Judge. Whether approved for reporting? Yes. 1 For the Appellant : Mr. S.D. Gill, Advocate.
For the Respondent : Mr. Ashok Chaudhary, Mr. V.S. Chauhan, Additional Advocates General, and Mr. J.S. Guleria, Assistant Advocate General.
Sanjay Karol, Judge Appellant-convict Sudesh Kumar, hereinafter referred to as the accused, has assailed the judgment dated 31.12.2011, passed by Additional Sessions Judge-I, Kangra at Dharamshala, Himachal Pradesh, in Sessions Trial No.62-D/2010, titled as State of Himachal Pradesh v.
Sudesh Kumar, whereby he stands convicted of the offences, punishable under the provisions of Sections Whether reporters of the local papers may be allowed to see the judgment?
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341, 506 and 376 of the Indian Penal Code and sentenced as under:
Section Sentence
.
341 IPC Rigorous imprisonment for a period of one month and fine of `500/- and in default of payment thereof to further undergo simple imprisonment for a period of one month.
506 IPC Rigorous imprisonment for a period of one year and fine of `2,000/- and in default of payment thereof to further undergo simple imprisonment for a period of three months.
376 IPC Rigorous imprisonment for a period of ten years and fine of `20,000/- and in default of payment thereof to further undergo simple imprisonment for a r period of six months.
All the sentences have been ordered to run concurrently.
Out of the fine amount, so imposed by the trial Court, an amount of `15,000/-, on realization, has been ordered to be paid, as compensation, to the prosecutrix.
2. It is the case of prosecution that prosecutrix (PW-14), resident of Jhikar, was running a tailoring and beauty parlour in village Gharoh. On 21.8.2010, after closing her parlour, while she was returning home, at about 6.15 p.m., accused met her at Murad Gohar and disclosed his liking for her. Also, he prevented her from going home and on the spot forcibly subjected her to sexual intercourse. Finding the prosecutrix not to have returned home, since it was raining heavily, her mother ::: Downloaded on - 15/04/2017 18:15:11 :::HCHP ...3...
Reeta Devi (PW-2) and father Prem Chand came to search for her. On way, they met the prosecutrix, who disclosed the entire incident to them. The matter was .
immediately brought to the notice of Pradhan Urmila (PW-
1), who called the accused and his parents. Though accused did not come, but his father and brother came and expressed their regrets. The matter was immediately brought to the notice of the police. On the basis of complaint (Ex. PW-14/A), police registered FIR No.208, dated 22.8.2010 (Ex. PW-15/A), under the provisions of Section 376/341/506 of the Indian Penal Code, at Police Station Dharamshala. Prosecutrix was got medically examined at the Government Hospital, Dharamshala. Dr. Shalini Gautam (PW-7), who conducted the medical examination, issued MLC (Ex. PW-7/B).
Investigating Officer, Narain Singh (PW-15), conducted investigation on the spot. He took into possession clothes of the prosecutrix as also other incriminating articles. Report of the Forensic Science Laboratory, with respect to the vaginal swab and the clothes was obtained by the police. With the completion of investigation, which, prima facie, revealed complicity of the accused in ::: Downloaded on - 15/04/2017 18:15:11 :::HCHP ...4...
the alleged crime, challan was presented in the Court for trial.
3. Accused was charged for having committed .
offences, punishable under the provisions of Sections 341, 506 and 376 of the Indian Penal Code, to which he did not plead guilty and claimed trial.
4. In order to establish its case, prosecution examined as many as 15 witnesses and statement of the accused, under the provisions of Section 313 of the Code of Criminal Procedure, was also recorded, in which he pleaded innocence and took the following defence:
"PW 1 Urmila Katoch Pradhan and parent of the prosecutrix have prepared a false case. Because the parents of Prosecutrix are working in the house of Pradhan.
Therefore they alongwith police have prepared false case."
5. Based on the testimonies of the witnesses and the material on record, trial Court convicted the accused of the charged offences and sentenced him, as aforesaid.
6. Learned counsel for the appellant has assailed the judgment on the following counts, (i) accused and the prosecutrix were known from before and the act is consensual in nature, (ii) prosecution has concealed relevant material from the Court, as call logs of ::: Downloaded on - 15/04/2017 18:15:11 :::HCHP ...5...
the mobile number of the prosecutrix would have revealed proximity between the two, and (iii) testimony of the prosecutrix is absolutely uninspiring in confidence.
.
In fact, she has falsely deposed before the Court and as such accused only merits acquittal. He has referred to the following decisions:
1. Vinod Kumar v. State of Kerala, (2014) 5 SCC 678;
2. Amar Bahadur Singh v. State of U.P., (2011) 14 SCC 671;
3. Narayan alias Naran v. State of r Rajasthan, (2007) 6 SCC 465;
4. Deelip Singh alias Dilip Kumar v. State of Bihar, (2005) 1 SCC 88; and
5. Balasaheb v. The State of Maharashtra, 1994 CLJ 3044.
7. Learned Additional Advocate General has supported the findings of fact and judgment, so rendered by the trial Court.
8. Having heard learned counsel for the parties, we are of the considered view that no case for interference is made out.
9. We find the testimony of the prosecutrix to be absolutely inspiring in confidence. In this backdrop, we do not find any merit in the submission of learned counsel that the investigating agencies had concealed ::: Downloaded on - 15/04/2017 18:15:11 :::HCHP ...6...
relevant material from the Court. In any case, plea is based on suspicion and not fact, much less proven. Call logs would have only revealed proximity between the .
accused and the prosecutrix. Assuming hypothetically that they knew each other from before, or for that matter were even in love with each other, that fact would not be construed to be a licence to sexually assault the victim.
Prosecution, through reliable and creditable piece of r to evidence is duty bound to establish the incident of sexual assault. If testimony of the prosecutrix is found to be inspiring in confidence, evidence of call logs would pale into insignificance. In any event, accused has not led any evidence in his defence to establish such fact. On the contrary, accused has tried to impeach the character of the prosecutrix, as is evident from the cross-examination of the prosecution witnesses.
10. In Court, prosecutrix states that on 21.8.2010, while she was returning from village Murad Gohar to Jhikar, accused met her near the Pulli (culvert) at Murad Gohar. He enquired and she replied that she was going home. He asked her to stop. Accused, who was drunk, said that he liked her and wanted to marry her, to which she responded that she would talk lateron ::: Downloaded on - 15/04/2017 18:15:11 :::HCHP ...7...
and asked him to let her go. However, for about 15-20 minutes, accused prevented her from going home. She got frightened and took out her mobile phone from her .
bag, which was also thrown away by the accused. When she raised hue and cry, accused caught her from the throat and also started intimidating her. He threatened to kill her. Accused took her to the bushes and raped her. Thereafter, he threatened her not to disclose the r to incident to anyone. Since she had got late, her parents came searching for her, whom she met on the way and disclosed the entire incident. Thereafter, they went to the house of the Pradhan, who called the accused and his father. Though accused did not come, but his father and brother came and felt sorry. On her asking complaint (Ex.PW-14/A) was lodged with the police. This is all that she states in her examination-in-chief.
11. It is a 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 Babu Meena, (2013) 4 SCC 206).
12. The Court is duty bound to appreciate the evidence in the totality of the background of the entire ::: Downloaded on - 15/04/2017 18:15:11 :::HCHP ...8...
case. It is also 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 r 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.
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. & Anr., (2003) 3 SCC 175; and Vishnu v. State of Maharashtra, (2006) 1 SCC 283.
22. Where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix ::: Downloaded on - 15/04/2017 18:15:11 :::HCHP ...9...
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.
r 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."
The 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:
"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 r 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.
27. 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.
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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 which are not of a substantial character.
29. However, even in a case of rape, the onus is always on the prosecution to prove, 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 r 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 ::: Downloaded on - 15/04/2017 18:15:11 :::HCHP ...12...
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 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 r 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 determinative factor and the court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of."
13. Now, when we examine the cross-
examination part of her testimony, we find her credit not to be impeached. Her testimony is clear, cogent and consistent. We find her version to be absolutely inspiring in confidence. It has come on record, which fact she also does not deny that her father had lodged a report with the police that she had been found missing from her home, but then, this was in the year ::: Downloaded on - 15/04/2017 18:15:11 :::HCHP ...13...
2006 and not 2010. The fact that she had opened a parlour in village Murad Gohar is not disputed by the accused, which fact is, in any way, evident from her .
testimony. She explains that she was dragged by the accused in a standing position. She clarifies that "the accused had slightly pressed my throat and threatened me. It is incorrect that accused had pressed my throat so I could not speak". This explains the reason of absence of any injury marks on her face or throat or any other part of her back. We find that she did resist the acts of the accused, but eventually under threat of life, gave it up.
14. Painstakingly, Mr. S.D. Gill has taken us through the following part of her testimony to throw light that it is a case of consent:
"...........It is incorrect that I had been asked to state the above things for the first time today in the court. It is correct that after I was laid down on the ground the accused opened the string of my salwar and came near to me. I had not bitten the accused with my teeth or scratched him with my finger, as I was frightened. I cannot tell as to how much time taken by the accused in removing my salwar. The accused had also removed the undergarment. I had not struggled or scratched the accused when he removed my undergarment. Volunteered that I was weeping at that time. It is correct ::: Downloaded on - 15/04/2017 18:15:11 :::HCHP ...14...
that when the accused tried to rape me, I closed my legs together so that accused may not rape. Thereafter, the accused forcefully opened the thighs with his hands. I cannot tell as to how much time accused .
took in forcefully opening the thighs.
Thereafter I did not close my legs. It is correct that I had not given the above facts in detail in my complaint to the police. I cannot tell as to how much time the accused took in committing the rape."
15. We are in total disagreement with the learned counsel on this count. She has explained the reason of not continuing with her resistance. She was weeping and the accused, without her consent, for satisfying his lust and desire, subjected her to sexual intercourse.
16. We find her version to have been corroborated by her mother Reeta Devi (PW-2) as also Pradhan Urmila Katoch (PW-1).
17. Yes, these are main contradictions. We find in the testimony of Reeta Devi, there is denial of lodging of missing report in the year 2006. But then, this fact alone would not shatter the prosecution case or for that matter render the testimony of the prosecutrix, or her mother, to be doubtful. Parties hail from rural background and it is not that the mother had lodged the report. Benefit of loss of memory, on ::: Downloaded on - 15/04/2017 18:15:11 :::HCHP ...15...
account of passage of time, has to be accorded to her.
Also Pradhan Urmila states that the place where the prosecutrix was dragged, bushes were broken, which .
fact the Investigating Officer has not been able to highlight. But then, this fact would not render the prosecution case to be doubtful, for on material aspect, prosecution case stands totally established on record and beyond reasonable doubt.
18. We find that there is no delay in lodging the FIR. The very same day, the incident was reported to the Pradhan and then to the police. It is not a case of due deliberations or false implication. It is also not the case of the accused that the prosecutrix subjected him to blackmail.
19. Dr. Shalini Gautam (PW-7), who examined the prosecutrix, on local examination observed as under and found the following injuries on her body:
"1. Abrasions red in colour multiple in number over wrist forearm right arm right foot,
2. Multiple abrasion seen on the middle part of right side back,
3. One abrasion over upper part of left breast.
Local Examination:::: Downloaded on - 15/04/2017 18:15:11 :::HCHP
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1. Red coloured around 5 c.m. long abrasion present over the left groin.
No other injury mark seen over thighs and private parts.
.
2. Pubic hairs present, pubic hair not matted and pubic hair clipping taken sealed and packed. Dried grass pieces seen over the perineal.
3. P/S (Per speculum) examination showed ton taggs of hymen.
(carunculae hymenalis) Brownish coloured secretions seen in the vagina. Cervix healthy. Swab taken from the vagtina, posterior fornix and cervical canal. Two slides prepared from the vagina and posterior fornix.
4. Per veginal examination: two fingers easily admitted. No local tenderness uterus anteverted normal size and bilateral fornices clear.
Nature of Injuries:
2. Injuries 1 to 3 were simple in nature, caused approximately more than six hours. Referred for age verification.
...............
Opinion In my opinion it cannot be ruled out that sexual intercourse has not taken place based on physical findings, final opinion to be given after report from FSL."
20. Age of the prosecutrix is between 17 and 19 years, whereas accused was aged 24 years as on the date of commission of crime. On account of intimidation ::: Downloaded on - 15/04/2017 18:15:11 :::HCHP ...17...
and threat to her life, she was not able to resist the overt acts of the accused. Also her body structure is frail, whereas accused is an able bodied man.
.
21. Absence of injury marks on the back side of the prosecutrix would also not render her testimony to be uninspiring in confidence. How a person would respond to the threats would depend from case to case. It is neither the requirement of law nor that of medical r to jurisprudence that in every case of sexual assault, so committed in a jungle/open place, victim must, under all circumstances, sustain injuries. Reaction of a victim is dependent upon various attending circumstances, including the nature of threat to her life. Initially, in the instant case, victim did raise noise, but then none could have come forward to help her, for it is not the case of the accused that there were houses/habitation nearby. It is also not the case of the accused that the path where the alleged offence took place was common and frequently used by passersby.
22. For the benefit of the accused, it be only observed that the scientific evidence does not establish complicity of the accused, but then it is not the law that the accused is to be co acquitted solely on this ground.
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Laboratory could not conclusively establish presence of semen on the vaginal swab, as it was insufficient for examination.
.
23. We find testimony of the prosecutrix to be absolutely inspiring in confidence. There is no prior animosity between the complainant and the accused or a reason sufficient enough for the prosecutrix to have falsely implicated the accused.
24. Alleged immoral character, so imputed from the circumstance of the prosecutrix of having left the house of her parents, way back in the year 2006, by no stretch of imagination, would render the prosecution case to be false or testimony of the prosecutrix to be impeachable.
25. In Vinod Kumar (supra), the Court was dealing with the case where the parties had expressed their desire of getting married and only thereafter they indulged in sexual activity. In Amar Bahadur Singh (supra), the Court was dealing with the case where the prosecutrix was caught, having sexual act, in her own house, in the presence of her children. In Narayan (supra), the Court was dealing with a case where testimony of the prosecutrix was not found to be inspiring ::: Downloaded on - 15/04/2017 18:15:11 :::HCHP ...19...
in confidence. In Deelip Singh (supra), the Court itself has clarified that consent given, under fear or injury, is not consent at all. In fact there is consent between .
"consent" and "submission". The Court clarified that consent or absence of it could be gathered from attending circumstances. Previous, contemporaneous or subsequent act would be relevant.
26. From the material placed on record, it stands established by the prosecution witnesses accused is guilty of having committed the offence charged for. There is sufficient, convincing, cogent and that the reliable evidence on record to this effect. The circumstances stand conclusively proved by unbroken chain of unimpeachable testimony of the prosecution witnesses. The guilt of the accused stands proved beyond reasonable doubt to the hilt. The chain of events stand conclusively established and lead only to one conclusion, i.e. guilt of the accused. Circumstances when cumulatively considered fully establish completion of chain of events, indicating the guilt of the accused and no other hypothesis other than the same. It cannot be said that accused is innocent or not guilty or that he has been falsely implicated or that his defence is probable or that ::: Downloaded on - 15/04/2017 18:15:11 :::HCHP ...20...
the evidence led by the prosecution is inconsistent, unreliable, untrustworthy and unbelievable. It cannot be said that the version narrated by the witnesses in Court is .
in a parrot-like manner and hence is to be disbelieved.
27. In our considered view, prosecution has been able to establish the guilt of the accused, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence.
28. For all the aforesaid reasons, we find no reason to interfere with the well reasoned judgment passed by the trial Court. The Court has fully appreciated the evidence placed on record by the parties. There is no illegality, irregularity, perversity in correct and/or in complete appreciation of the material so placed on record by the parties. Hence, the appeal is dismissed.
Appeal stands disposed of, so also pending application(s), if any.
( Sanjay Karol ), Judge.
( P.S. Rana ),
May 26, 2015(sd) Judge.
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