Himachal Pradesh High Court
State Of H.P vs Ranvir Kumar & Others on 16 March, 2018
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 167 of 2010 Reserved on: 09.03.2018 Decided on: .03.2018 .
__________________________________________________________ State of H.P. .....Appellant.
Versus Ranvir Kumar & others. ......Respondents.
__________________________________________________________ Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? No. __________________________________________________________ For the appellant: Mr. Vinod Thakur, Additional Advocate General with Mr. J.S. Guleria and Mr. Bhupinder Thakur, Deputy Advocates General.
For respondents: Ms. Sheetal Vyas, Advocate, vice Mr. Anoop Chitkara, Advocate.
Chander Bhusan Barowalia, Judge.
The present appeal is maintained by the appellant/State, laying challenge to judgment dated 22.10.2009, passed by learned Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P., in Sessions Trial No. 4/7 of 2007, whereby the accused/respondents (hereinafter referred to as "the accused persons") were acquitted for the commission of offence punishable under Section 376(ii)(g) read with Section 34 of Indian Penal Code, 1860) (hereinafter referred to as "IPC").
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 16/03/2018 23:27:26 :::HCHP 22. The background facts, as projected by the prosecution, can succinctly be summarized as under:
On 24.11.2006, the prosecutrix had gone to the house of .
her sister, Smt. Anita Devi, at Badhaghat and on 26.11.2006, on her return journey, she took bus from Badhaghat and alighted at Nihari.
Therefrom she took lift in the vehicle of Nikku, who was her acquaintance, and came to Dangar. At Dangar she went to sewing centre for her enrolment. Thereafter, she started to her village on foot and when she was walking on kacha road a jeep, having registration No. HP23A-4344, was parked there. Accused Sanjiv @ Pappi was sitting on the driver seat and accused Ranvir and Manohar Lal were also sitting in the jeep. Accused, Ranvir Kumar, whom the prosecutrix knew, offered lift to the prosecutrix and told her that they are going towards Patta side. The prosecutrix took lift, but accused persons instead of going towards Patta went towards Nihari side. The prosecutrix objected and accused Ranvir Kumar gagged her mouth. She was taken to Ballu nallah, a secluded place.
Accused Ranvir Kumar dragged the prosecutrix to the nearby nallah and the other accused persons acted as watchmen. Accused Ranvir Kumar raped the prosecutrix. As per the story of the prosecution, while accused was doing sexual intercourse with the prosecutrix, Smt. Jai Devi, was working in her field and she saw the accused coming in the vehicle. Subsequently, Smt. Jai Devi also saw accused ::: Downloaded on - 16/03/2018 23:27:26 :::HCHP 3 Ranvir Kumar coming upward and he was being followed by the prosecutrix. The prosecutrix and accused Ranvir Kumar were also spotted by Shri Tilak Raj, Smt. Panno Devi, Smt. Geetan Devi and .
Smt. Kamla Devi. Shri Tilak Raj got injured in an attempt to apprehend accused Ranvir Kumar. When the prosecutrix was being inquired by Shri Tilak Raj, Smt. Kamla Devi, Smt. Geetan Devi and Smt. Jai Devi, the accused persons fled away from the spot. The prosecutrix divulged to Smt. Pano Devi the entire incident. Shri Tilak Raj telephoned Shri Purshotam Ram and Shri Purshotam Ram took the prosecutrix to his house. Shri Purshotam Ram telephonically informed Shri Krishan Chand, brother of the prosecutrix. When the brother of the prosecutrix came there, the prosecutrix narrated the incident to him. In the interregnum, the parents of the prosecutrix got worried and started inquiring about the prosecutrix. They alongwith one Shri Bishan Dass went towards Dangar, where they met the prosecutrix and Shri Krishan Chand, who narrated the incident to them. Thereafter, the prosecutrix alongwith her parents went to police station and lodged a case.
Upon registration of FIR, police investigation ensued and on 27.11.2006 police visited the spot. From the spot an used condom and two pieces of its wrapper were recovered. Condom was taken into possession in presence of Shri Bishan Dass and Shri Balwant Singh and the spot was photographed. Spot map was prepared and ::: Downloaded on - 16/03/2018 23:27:26 :::HCHP 4 accused Ranvir Kumar was arrested and medically examined. Blood samples of the accused were taken and his underwear was preserved and handed over to the police. The prosecutrix was also medically .
examined and her salwar, shirt, sweater, under vest, underwear and "dupta" were handed over to the police by the doctor. Vaginal swab and pubic hair of the prosecutrix were also taken by the doctor and handed over to the police. On 27.11.2006, in presence of Shri Balwant Singh and Shri Bishan Dass, police took into possession vehicle, having registration No. HP23A-4344, alongwith its documents and driving license of accused Sanjeev. On 28.11.2006, accused Ranvir Kumar made a disclosure statement in presence of Shri Om Parkash and HHC Amrit Lal and consequent upon that disclosure statement he led the police to his house where a polythene bag was kept, which contained belongings of the prosecutrix, viz., lipstick, lip liner, photographs, currency notes and coins. The polythene bag was taken into possession. Record qua date of birth of the prosecutrix was obtained from the school and from the concerned panchayat. Accused Sanjiv Kumar handed over the garments, which accused Ranvir Kumar, was wearing during the incident and the same were taken into possession. After conclusion of investigation, challan was presented in the Court.
3. The prosecution, in order to prove its case, examined as many as twenty two witnesses. Statements of the accused persons ::: Downloaded on - 16/03/2018 23:27:26 :::HCHP 5 were recorded under Section 313 Cr.P.C., wherein they pleaded not guilty. Accused Raniv Kumar took the defence that prosecutrix was in love with him and they wanted to marry. He has produced letters .
Mark D-1 to Mark D-2, which, according to accused Ranvir Kumar, were written by the prosecutrix. He has also produced photograph, Ex. DA, wherein he and the prosecutrix are together. However, the accused persons did not lead any defence evidence.
4. The learned Trial Court, vide impugned judgment dated 22.10.2009, acquitted the accused persons for the offence punishable under Section 376(ii)(g) read with Section 34 IPC, hence the present appeal preferred by the appellant/State.
6. The learned Additional Advocate General has argued that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt, as he has forcibly taken away the prosecutrix and thereafter after putting condom on his private part committed forcible sexual intercourse with the prosecutrix behind the bushes after dragging her for some distance from the road, where his other two accomplices were sitting in the vehicle. He has further argued that the evidence of the prosecution is clear and points out towards the guilt of the accused persons, but the learned Trial Court ignored the evidence and acquitted the accused persons.
Conversely, the learned vice counsel appearing on behalf of the accused persons argued that the prosecution has failed to prove the ::: Downloaded on - 16/03/2018 23:27:26 :::HCHP 6 guilt of the accused persons as the statement of the prosecutrix is not inspiring confidence. She has further argued that the statement of the doctor shows that no sexual intercourse, as alleged by the .
prosecution, took place. There is no medical evidence suggestive of sexual intercourse, as pointed out by the prosecution. She has argued that the prosecutrix was habitual of sexual intercourse and no semen etc. were found and even otherwise also all the independent witnesses have gone hostile, so the judgment of acquittal needs no interference.
7. In rebuttal, the learned Additional Advocate General has argued that accused persons can be convicted on uncorroborated testimony of the prosecutrix and minor contradictions are not fatal to the prosecution case.
8. In order to appreciate the rival contentions of the parties we have gone through the record carefully.
9. As per the prosecution case, accused Ranvir Kumar committed forcibly sexual intercourse with the prosecutrix and his accomplices, other accused persons, were sitting in the vehicle and acting as watchmen. It has further come in the prosecution story that the prosecutrix raised hue and cry and upon hearing her cries Shri Tilak Raj (PW-10), Smt. Jai Devi (PW-11), Smt. Pano Devi (PW-
12), Smt. Kamla Devi (PW-19) and Smt. Geetan Devi (PW-20) saw accused Ranvir Singh and the prosecutrix on the spot. In the wake ::: Downloaded on - 16/03/2018 23:27:26 :::HCHP 7 of above circumstances, statement of the prosecutrix has to be seen in conjunction with the statements of above eye witnesses and the medical evidence.
.
10. The prosecutrix stepped into the witness-box as PW-16.
She has deposed that on 24.11.2006 she went to the house of her sister at Badhaghat and on 26.11.2006 she started back at 12:00 noon. She has further deposed that she came upto Nihari in a bus and therefrom she took lift to Dangar in the vehicle of one Shri Nikku. At Dangar she went to sewing centre and therefrom she started to her house at 04:00 p.m. At Dangar she saw a vehicle parked on the road side and its driver was Pappi (accused Sanjiv Kumar) and other occupants of the vehicle were accused Ranvir Kumar and Manohal Lal. As per the version of the prosecutrix, when she was walking near the vehicle, accused Ranvir Kumar asked her as to where she was going and upon this she replied that she is going to her house. Accused Ranvir Kumar told her that they are going towards Patta side and he offered lift to her. She boarded the vehicle, but the accused persons instead of going towards Patta drove the vehicle towards Nihari. She started crying and upon this accused Ranvir Kumar gagged her mouth with his hand. The accused persons stopped the vehicle at Ballu nallah, which is near to Nihari and accused Ranvir Kumar dragged her to the nearby nallah.
Accused Ranvir Kumar committed forcible sexual intercourse with ::: Downloaded on - 16/03/2018 23:27:26 :::HCHP 8 her and the other accused persons were sitting in the vehicle and acting as watchmen. She has further deposed that she cried and upon hearing her cries two ladies came there and all the accused .
persons fled away from the spot. One more person, who was known as Fattu, also came there and she was taken to his house. Her brother reached there, as he was telephoned by Fattu. When she was being accompanied to home by her brother, her parents and Ward Member met them on the way near Dadhol. Thereafter, they went to the house of Pradhan Gram Panchayat, Padyalag and subsequently to Police Station, Bharari. As per her version, she has reported the matter to the police and FIR was registered. She has further deposed that while she was returning from the house of her sister she was having a plastic bag containing 16 photographs of her sister and brother-in-law and `400/-. That bag was in the vehicle and the accused persons fled with that bag. The police got her medically examined and her medico legal certificate was obtained, which bears her signatures. Her date of birth is 29.03.1988 and on the day of occurrence she was wearing red shirt, cream coloured salwar and blue sweater. She has identified in the Court her clothes and polythen bag, containing her belongings and Rs. 400/-. This witness, in her cross-examination, has deposed that accused Ranvir Kumar was known to her for the last two years from the date of occurrence, as he is brother of her friend Sapna. As per the ::: Downloaded on - 16/03/2018 23:27:26 :::HCHP 9 prosecutrix, the vehicle was a car and there were 4-5 shops where the vehicle was parked. She has further deposed that she sustained no injury when accused Ranvir Kumar gagged her mouth. When she .
was being dragged by accused Ranvir Kumar from the vehicle to the spot where she was raped, her clothes got entangled with the bushes. She sustained scratches on her arm and little blood also oozed. She also sustained scratches on her back and her private part also started bleeding due to sexual intercourse and the blood touched her thighs. She has further deposed that she did not remove the stains of the blood. The accused used condom while doing sexual intercourse.
11. After elaborately discussing the statement of the prosecutrix, medical evidence assumes significance. PW-15, Dr. Bharti Ranaut, medically examined the prosecutrix. As per her version the clothes of the prosecutrix were not torn but slightly soiled with mud. The clothes were not stained with blood, seminal stains or loose hair. She did not notice any scratches, contusion or injury marks on the person of the prosecutrix. As per this witness, the finger nails of the prosecutrix were not damaged or contained any debris, viz., skin or blood clots. There was nothing suggestive that a recent vaginal penetration took place. She noticed no sign of struggle on the body of the prosecutrix. This witness preserved underwear, salwar, kameez, sweater and dupta of the prosecutrix for ::: Downloaded on - 16/03/2018 23:27:26 :::HCHP 10 chemical examination and handed over the same to the police. She has further deposed that on 05.02.2007 police put before her chemical examination report, Ex. PW-15/A, whereupon she gave her .
final opinion that there are signs of vaginal penetration, but there was no evidence suggesting recent penetration. As per report, Ex.
PW-15/A, no semen was found on the clothes or vaginal slides of the prosecutrix. This witness, in her cross-examination has deposed that she found no scratch mark on the back of the prosecutrix. She also did not find any stains of semen on the body of the victim.
12. Now, the statement of Dr. Bharti Ranaut (PW-15) clearly rules out any recent sexual intercourse. The statement of PW-15 stands fortified by chemical examination report, Ex. PW-15/A. Thus, the medical evidence does not match with the testimony of the prosecutrix. Another point which emanates from the testimony of the prosecutrix is that she raised hue and cry and owing to that two ladies and a person came on the spot and all the accused persons fled away from the spot. As per the prosecution story, accused Ranvir Kumar and the prosecutrix were spotted by Shri Tilak Raj (PW-10), Smt. Pano Devi (PW-12), Smt. Kamla Devi (PW-19) and Smt. Geetan Degi (PW-20). All the above eye witness did not support the prosecution case and they have been declared hostile, as they have resiled from their previous statements. Therefore, the statement of the prosecutrix firstly lacks corroboration from medical evidence and ::: Downloaded on - 16/03/2018 23:27:26 :::HCHP 11 secondly the key prosecution witnesses, who allegedly saw the occurrence, did not support the story as portrayed by the prosecutrix.
.
13. In the facts and circumstances of the case, as the alleged eye witnesses have not supported the prosecution case and the medical evidence is not in consonance with the statement of the prosecutrix, resultantly, statement of the prosecutrix lacks support from any of the alleged prosecution eye witnesses and also from the medical evidence. The prosecutrix has categorically stated that blood oozed from her private part when sexual intercourse was done.
She has further deposed that she did not remove the blood, but no blood was found by the doctor on her private part or on her clothes.
The prosecutrix has further deposed that semen was there and she did not remove or clean the same with cloth etc., however, no semen was found by the doctor (PW-15), who medically examined the prosecutrix. Another contradiction in the prosecution story is that as per the prosecutrix accused Ranvir Kumar put condom on his private part and also gagged the mouth of the prosecutrix, but it is unbelievable. As per the prosecutrix, when she was being taken forcibly in the vehicle accused Ranvir Kumar gagged her mouth to this extent her statement seems worthy of credence, but when she states that accused Ranvir Kumar put condom on his private part, it seems highly improbable that there was an occasion when accused ::: Downloaded on - 16/03/2018 23:27:26 :::HCHP 12 was putting condom on his private part, during that time she could have raised alarm and tried to free herself from the accused. Next contradiction is that no injury was found on the person of the .
prosecutrix. However, the own case of the prosecutrix is that she was forcibly taken in the bushes by accused Ranvir Singh and during that process her clothes got entangled with the bushes and she also sustained scratches on her arms. However, PW-15, Dr. Bharti Ranaut, did not find any scratch marks on the person of the prosecutrix. PW-15, has opined that no recent sexual intercourse took place with the prosecutrix. In the above mentioned circumstances coupled with the fact that key prosecution witnesses, i.e., Shri Tilak Raj (PW-10), Smt. Jai Devi (PW-11), Smt. Pano Devi (PW-12), Smt. Kamla Devi (PW-19) and Smt. Geetan Devi (PW-20), have not supported the prosecution case, we find that upon the sole uncorroborated testimony of the prosecutrix, the accused persons cannot be convicted.
14. On the other hand, the case, as put up by the defence, is that the accused is from lower caste and that was the reason a false case has been foisted against him, as the parents of the prosecutrix were against the harmonious relationship of the accused and the prosecutrix. In these circumstances, the story as portrayed by the defence, seems quite probable, as the entire prosecution evidence is in contrast to what has been deposed by the prosecutrix and even ::: Downloaded on - 16/03/2018 23:27:26 :::HCHP 13 the scientific evidence, which has come on record, is also not in consonance with the testimony of the prosecutrix. Further PW-15, Dr. Bharti Ranaut, has specifically opined that no recent sexual .
intercourse, as depicted by the prosecution, took place. Now, in view of the fact that accused and prosecutrix had harmonious relationship, as alleged by the defence, the testimony of the prosecutrix assumes significance. PW-16 (prosecutrix) has deposed that she knew accused Ranvir Kumar and when accused Ranvir Kumar saw the prosecutrix walking alone, he offered lift to her, as he alongwith other accused persons, was also going to place, where the home of the prosecutrix situated. Thereafter, as per the story portrayed by the prosecutrix, she boarded the vehicle and accused Sanjeev instead of going towards Patta turned the vehicle towards Nihari. When they reached at Ballu nullah, accused Ranvir Kumar dragged the prosecutrix to the nullah and committed forcible sexual intercourse with her. Now, what the prosecutrix has stated, if examined minutely, it emerges that her testimony is not reliable, as incidents, which happened at Dangar and Ballu nallah overshadows her credibility.
15. It has been held in K. Prakashan vs. P.K. Surenderan (2008) 1 SCC 258, that when two views are possible, appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial Court was ::: Downloaded on - 16/03/2018 23:27:26 :::HCHP 14 neither perverse, nor suffered from any legal infirmity or non consideration/mis-appreciation of evidence on record, reversal thereof by High Court was not justified.
.
16. The Hon'ble Supreme Court in T.Subramanian vs. State of Tamil Nadu (2006) 1 SCC 401, has held that where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt.
17. In Chandrappa vs. State of Karnataka, (2007) 4 SCC 415, the Hon'ble Supreme Court has culled out the following principles qua powers of the appellate Courts while dealing with an appeal against an order of acquittal:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
1. An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
2. The Code of Criminal Procedure, 1873 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
3. Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such ::: Downloaded on - 16/03/2018 23:27:26 :::HCHP 15 phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
.
4. An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law.
Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
5. If two reasonable conclusions are r possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial Court."
18. Having tested the evidence of the prosecutrix (victim), we are not satisfied with the truthfulness of the story projected by the prosecution and we find it difficult to come to a conclusion that the case falls under the category of cases in which conviction can be ordered solely on the basis of the evidence of the prosecutrix. The testimony of the prosecutrix is uncorroborated and untrustworthy not to speak of being of sterling quality capable of inspiring the confidence. Taking into consideration entire facts and circumstances of the case, evidence, including the medical evidence, we are not convinced that the prosecution has been able to prove its case ::: Downloaded on - 16/03/2018 23:27:26 :::HCHP 16 beyond reasonable doubt, as such, it is more than safe to hold that the prosecution has failed to prove the guilt of the accused persons beyond all reasonable doubts and the findings of acquittal, as .
recorded by the learned Trial Court, needs no interference, as the same are the result of appreciating the facts and law correctly and to their true perspective. Accordingly, the appeal, which sans merits, deserves dismissal and is dismissed.
19. In view of the above, the appeal, so also pending application(s), if any, stand(s) disposed of. Bail bonds are cancelled.
(Tarlok Singh Chauhan) Judge (Chander Bhusan Barowalia) Judge 16th March, 2018 (virender) ::: Downloaded on - 16/03/2018 23:27:26 :::HCHP