Himachal Pradesh High Court
State Of Himachal Pradesh vs Manjeet Singh on 14 October, 2015
Bench: Sanjay Karol, P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.567 of 2008 Reserved on : 6.10.2015 .
Date of Decision : October 14, 2015.
State of Himachal Pradesh ...Appellant.
Versus
Manjeet Singh ...Respondent.
of
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge. The Hon'ble Mr. Justice P.S. Rana, Judge.
rt
Whether approved for reporting? No. 1
For the State : Mr. Kush Sharma, Deputy
Advocate General and Mr. J.S.
Guleria, Assistant Advocate
General.
For the Respondent : Mr. Ramakant Sharma, Senior
Advocate, with Mr. Basant Pal
Thakur, Advocate.
Sanjay Karol, Judge
State has appealed against the judgment, dated 21.11.2006, passed by Additional Sessions Judge (Presiding Officer, Fast Track Court), Solan, Camp at Nalagarh, in Case No.1FTN/7 of 2006, titled as State of H.P. v. Manjeet Singh, whereby accused-appellant Manjeet Singh (hereinafter referred to as the accused) Whether reporters of the local papers may be allowed to see the judgment?
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stands acquitted for having committed the offence punishable under the provisions of Sections 366 and .
376 of the Indian Penal Code.
2. It is the case of prosecution that on 20.9.2005, prosecutrix (PW-2), on the asking of the accused, went to the house of his sister at Amritsar, where he subjected her to rape. On 21.9.2005, he took of her to an Advocate at Taran Taran and got prepared documents for solemnizing Court marriage, however, rt which she refused to sign. Thereafter, on 22.9.2005, he took her to Malakpur, where again she was subjected to rape. On 23.9.2005, police recovered her and took her home, where her statement (Ex.PW-2/A) was recorded, on the basis of which FIR No.201/05, dated 23.9.2005 (Ex.PW-9/A), for commission of offence, punishable under the provisions of Sections 363,366, 376, 506 of the Indian Penal Code, was registered at Police Station, Nalagarh. Prosecutrix was got medically examined from Dr. Sunita Sood (PW-1), who issued MLC (Ex. PW-1/B). For determining the age of the prosecutrix, her radiological age was got determined and proof of her date of birth taken on ::: Downloaded on - 15/04/2017 19:12:02 :::HCHP ...3...
record. During investigation prosecutrix refused to give specimen signatures or her handwriting for .
comparison. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.
3. Accused was charged for having committed of offences, punishable under the provisions of Sections 366 and 376 of the Indian Penal Code, to which he did rt not plead guilty and claimed trial.
4. In order to establish its case, prosecution examined as many as 13 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:
"The parents of Radha wanted to marry her away somewhere else. In order to see that no obstruction is created by me they foisted this false case on me."
5. Based on the testimonies of the witnesses and the material on record, trial Court acquitted the accused of the charge offences. Hence, the present appeal by the State.
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6. We have heard Mr. Kush Sharma, learned Deputy Advocate General and Mr. J.S. Guleria, learned .
Assistant Advocate General, on behalf of the State as also Mr. Ramakant Sharma, learned Senior Advocate, ably assisted by Mr Basant Pal Thakur, Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other of documentary evidence so placed on record by the prosecution. Having done so, we are of the considered rt view that no case for interference is made out at all.
We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.
7. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution ::: Downloaded on - 15/04/2017 19:12:02 :::HCHP ...5...
has failed to establish essential ingredients so required to constitute the charged offence.
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8. In Prandas v. The State, AIR 1954 SC 36, Constitution Bench of the apex Court, has held as under:
"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High of Court has no power under S. 417, Criminal P.c., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice.
rt In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in - 'Sheo Swarup v. Emperor', AIR 1934 PC 227 (2) at pp.229, 230 (A), in these words:
"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in ::: Downloaded on - 15/04/2017 19:12:02 :::HCHP ...6...
disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act .
in accordance with rules and principles well known and recognized in the administration of justice." "
9. Prosecution has to prove its case beyond reasonable doubt and cannot take support from the of 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 rt 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.
10. 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).
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11. It is a settled principle of law that once the prosecution is able to establish commission of sexual .
intercourse, without consent, which fact can be proven through the sole testimony of prosecutrix, the Court is entitled to draw presumption against the accused, under the provisions of Section 114-A of the Evidence Act. (Deepak v. State of Haryana, (2015) 4 SCC 762).
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12. The Courts while trying an accused on the charge of rape, must deal with the case with utmost rt 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.
13. 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 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 ::: Downloaded on - 15/04/2017 19:12:02 :::HCHP ...8...
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 of accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. (Vide: Tukaram rt & Anr. v. The State of Maharashtra, (1979) 2 SCC 143;
and Uday v. State of Karnataka, (2003) 4 SCC 46.
14. The Court is duty bound to appreciate the evidence in the totality of the background of the entire 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 ::: Downloaded on - 15/04/2017 19:12:02 :::HCHP ...9...
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.
21. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has of 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 rt 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 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 ::: Downloaded on - 15/04/2017 19:12:02 :::HCHP ...10...
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 of necessary."
The court however, further observed:
rt "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."
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."
15. In the aforesaid backdrop we proceed to discuss the evidence.
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16. As per MLC (Ex.PW-1/B), prosecutrix was medically examined on 23.9.2005. As per version of .
the doctor PW-1), no marks of injury were found on her (prosecutrix) body. Also, there were no marks of resistance on thighs etc. As per opinion of the doctor, prosecutrix was subjected to sexual assault. The doctor has clarified the same to mean that prosecutrix of was subjected to sexual intercourse.
17. rt From the testimony of mother of the prosecutrix (PW-4) and uncle Shri Ram Dass (PW-3), it is evident that with effect from 20.9.2005, prosecutrix was found to be missing from her house and was recovered by the police on 23.9.2005. Well that is about all.
18. In Court, prosecutrix states that on 20.9.2005, while she was going to school, accused met her and asked her to accompany him to Amritsar and bring certificates of Classes 5th and 8th. On his asking, she went to Ropar, from where they went to Amritsar and stayed in the house of sister of the accused.
Which one? What is her name? What is her address?
She does not state. Same day, accused subjected her ::: Downloaded on - 15/04/2017 19:12:02 :::HCHP ...12...
to rape. Next day, i.e. 21.9.2005, accused took her to an Advocate at Taran Taran, for the purpose of .
solemnizing their marriage. Certain papers were prepared but she refused to sign. Thereafter, accused took her to the house of his brother-in-law at Malakpur.
Even there she was subjected to sexual assault.
19. Can it be said that the version of of prosecutrix is inspiring in confidence, in the light of the findings returned by the trial Court? Having minutely rt examined her testimony, we find it not to be so. Her cross-examination reveals her to be a wholly unreliable witness and testimony to be uninspiring in confidence and unbelievable, also her version being highly improbable.
20. Apart from the fact that there is documentary evidence to show that prosecutrix was actually in love with the accused and there was intimacy between the two, we do not find her testimony to be inspiring in confidence at all. In Court, prosecutrix admits of having known the accused from before. She left with him for Anandpur Sahib, and travelled by way of a public transport. This was on ::: Downloaded on - 15/04/2017 19:12:02 :::HCHP ...13...
20.9.2005. Why did she leave? It is not that she was under any threat, undue influence or coercion.
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Voluntarily, she went with him to Amritsar, where allegedly she was subjected to sexual assault. She stayed in the house of sister of the accused, but never disclosed such fact to her or anybody else. Also, it is not that she was confined to a room or could not have of escaped from the place where she was staying. Not only that, she went to meet an Advocate at Taran rt Taran. Even there, she did not disclose that she was subjected to sexual assault. In fact, accused had wanted to marry her and as such also got necessary papers prepared. The matter does not rest here. She went to the house of brother-in-law of the accused, whose name she does not disclose.
21. Be that as it may, she spent the night at Malanpur. Even there, she did not disclose the incident to anyone. She admits to have travelled openly and freely from place to place, during broad day light and never raised any hue and cry. Allegedly, prosecutrix was studying in Class 9th, but quite apparently, she was in love with the accused and of her own volition, left ::: Downloaded on - 15/04/2017 19:12:02 :::HCHP ...14...
her parental house to join the company of the accused and sexual intercourse, if any, cannot be said to be .
forcible, but only consensual in nature. The love letters reveal all.
22. Mother of the prosecutrix (PW-4) only states that finding her daughter not to have returned home, she lodged the report. She does not state that of prosecutrix had disclosed to her of being subjected to forcible intercourse. She admits that "it is correct that rt we never wanted Radha to marry Manjeet as he is 'Choohra' by caste. It is correct that we were settling her marriage somewhere else in our 'Viradari'".
23. Not only that, to the following query, put by the Court, she had not responded, feigning headache:
"Q. Radha left your house as you were not ready to marry her to Manjeet and watned to marry her some where else?
Ans I am feeling headache."
24. The demeanour of the witness stands observed by the Court. Obviously, she is avoiding to answer the question and reveal the truth.
25. This leaves us with the issue of age of the prosecutrix. The doctor found her to be moderately ::: Downloaded on - 15/04/2017 19:12:02 :::HCHP ...15...
built and nourished. Such fact also stands stated by the doctor (PW-1). Prosecutrix states that she was .
born on 4.11.1989, but then this version of hers cannot be said to be believable for when she was medically examined on 23.9.2005, she disclosed her age to be between 17 and 18 years. Not only that, mother of the prosecutrix, who did not disclose the exact date of birth of of the prosecutrix, initially deposed that at the time of commission of offence, prosecutrix was running in her rt 16th year, but subsequently clarified it to be 18th year.
26. The Radiologist Dr. M.R.Verma (PW-5) has opined the age of the prosecutrix to be between 16 and 19 years, as per the skiagram (Ex. PW-5/1 to 5/4) proven by him.
27. Extract of the register (Ex.PW-8/A) maintained by the school of the prosecutrix, recording her date of birth to be 4.11.1989 (which would it make to be less than 16 years), is of no legal consequence, for witness Ms Promila Dogra (PW-8) admits the entries not to have been recorded in her hand. To the following specific Court query, she answers:
"Q. What was the basis of the entry of date of birth in the admission register?::: Downloaded on - 15/04/2017 19:12:02 :::HCHP
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Ans. If she had come from some other school, then the school leaving certificate must have been produced by her. Such certificate contains the .
date of birth. In case she had been studying in this very school then the entry must have been there in the admission register of 6th to 8th classes. Our school is from 6th to 10th."
28. Thus, who made the entry has not come on record. Also, witness admits the register not to have of been properly paginated and maintained. Shri Naresh Kumar, who collected the certificate from the school, rt also has not been produced and examined in Court.
29. There is yet another certificate (Ex.PW-
12/A), recording the date of birth of the prosecutrix to be 4.11.1989. The document can at best be said to be relevant, but then the correctness of the contents thereof stands rebutted not only by the prosecutrix but also prosecution witnesses themselves. While exhibiting this document, witness admits that the register is neither paginated nor correctly and properly maintained. He does not know who recorded the entries in the register. Also, entries appear to have been interpolated.
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30. As such, it cannot be said that prosecution has been able to establish that at the time of .
commission of crime, prosecutrix was below 16 years of age.
31. Hence, it cannot be said that prosecution has been able to prove its case, by leading clear, cogent, convincing and reliable piece of evidence so as of to prove that the accused has committed the offence he has been charged for.
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32. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. The Court has fully appreciated the evidence so placed on record by the parties.
33. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The ::: Downloaded on - 15/04/2017 19:12:02 :::HCHP ...18...
present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.
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Appeal stands disposed of, so also pending application(s), if any.
( Sanjay Karol ), Judge.
of
( P.S. Rana ),
October 14, 2015(sd) Judge.
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