Himachal Pradesh High Court
State Of Himachal Pradesh vs Nanha on 5 December, 2016
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.478 of 2008 Date of Decision : 05.12.2016 .
State of Himachal Pradesh ...Appellant.
Versus
Nanha ...Respondent.
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Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge. The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
rt Whether approved for reporting? Yes For the Appellant :
1M/s M.A. Khan and Varun Chandel, Additional Advocate Generals.
For the Respondent : Mr. N.S. Chandel with Mr.Dinesh Thakur , Advocate.
Accused in the custody of HHC Sant Ram No.1106 and HHC Ghanshyam No. 891, Police Line, Kaithu, Shimla.
Sanjay Karol, Judge State has appealed against the judgment dated 26.4.2008, passed by learned Sessions Judge, Hamirpur, Himachal Pradesh, in Sessions Trial No.16 of 2007, titled as State v. Nanha, challenging the acquittal of respondent Nanha (hereinafter referred to Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 21:40:47 :::HCHP
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as the accused), who stands charged for having committed an offence punishable under the provisions .
of Section 376 of the Indian Penal Code.
2. It is the case of prosecution that on 8.6.2007, Pat to Devi (PW.2) lodged a complaint to the effect that accused Nanha had subjected her daughter, of i.e. the prosecutrix (PW.3) to sexual assault. In relation to the said crime, on 8.6.2007 at 2.30 AM, FIR No. 238/2007 (Ex.PW.2/A) under the provision of Section rt 376 of IPC came to be registered at Police Station, Hamirpur. The alleged incident took place at about 1.30 AM, in the night intervening 7 th & 8th June, 2007.
Inspector Anjni Jaswal (PW.12), SHO of the concerned Police Station, who conducted the investigation , got the prosecutrix medically examined from Dr. Rajneesh Thakur (PW.1), who issued MLC (Ex.PW.1/B). Accused was also got medically examined from Dr. Rajesh Sharma (PW.4), who issued MLC (Ex.PW.4/B). For corroboration, certain incriminating articles so recovered, were sent for chemical analysis and report of the Chemical Analyst (Ex.PX) taken on record. Police ::: Downloaded on - 15/04/2017 21:40:47 :::HCHP ...3...
also took on record proof with regard to age of the prosecutrix (Certificates Ex.PW.8/B and PW.9/B).
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3. 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.
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4. Accused was charged for having committed an offence punishable under the provisions of Section 376 of the Indian Penal Code to which he did not plead rt guilty and claimed trial.
5. In order to establish its case, prosecution examined as many as 12 witnesses and statement of the accused , under the provisions of Section 313 of the Code of Criminal Procedure, was also recorded, in which he took up the following defence:
"I am innocent. A false case has been foisted against me at the instance of the prosecutrix and her mother. On the day of occurrence, Pato Devi had invited me to her residence in the absence of her husband. I treat Nitu as my cousin."
6. Trial Court has acquitted the accused on the following grounds: (a) testimony of the prosecutrix was ::: Downloaded on - 15/04/2017 21:40:47 :::HCHP ...4...
h ighly improbable; (b) element of her tutoring was not ruled out; and (c) possibility of the accused having .
been falsely implicated on account of his having illicit relationship with the mother of the prosecutrix could not be ruled out.
7. Having heard learned counsel for the of parties as also perused the record, we are of the considered view that the trial Court has seriously erred in coming to such conclusions and returning findings of rt acquittal of the accused. Reasoning adopted is bordering perversity, for it is not based on correct and complete appreciation of testimony of the prosecutrix as also other relevant/material witnesses. In fact, we are of the considered view that the trial Court adopted an extremely insensitive approach, in presupposing certain facts, while arriving at its conclusion. It presupposed that the prosecutrix had caught her mother and the accused in a compromising position, which resulted into concoction of false story and implication.
8. At this juncture, one may only observe the suggestion put by the accused , of his having alleged ::: Downloaded on - 15/04/2017 21:40:47 :::HCHP ...5...
illicit relationship with the mother of the prosecutrix at least 3 -4 years prior to the incident. It is not that the .
accused and the mother of the prosecutrix had allegedly developed physical intimacy/relationship on the night of the incident itself and as such, out of fear, or alleged threats, mother used her daughter to save of herself.
9. It is a settled principle of law that if testimony of the prosecutrix itself is found to be rt inspiring in confidence, one need not look for corroborative evidence, medical or otherwise.
However, it is also a settled principle of law, that in a case of child witness, only as a matter of abundant caution, Court may look for evidence, corroborative in nature and that too, only to satisfy its conscience and lend assurance to the otherwise inspiring version of the prosecutrix.
10. The law on this point is now well settled.
11. In State of Rajasthan versus Om Prakash, (2002) 5 SCC 745, the Apex Court has held that:-
"Cases involving sexual molestation and assault require a different approach - a sensitive approach and not an approach which a court may ::: Downloaded on - 15/04/2017 21:40:47 :::HCHP ...6...
adopt in dealing with a normal offence under penal laws."
"Child rape cases are cases of perverse lust .
for sex where even innocent children are not spared in pursuit of sexual pleasure. It is a crime against humanity. In such cases, responsibility on the shoulders of the courts is more onerous so as to provide proper legal protection to these children. Their physical and mental immobility calls for such protection. Children are the natural resource of our country. They are the country's future. Hope of tomorrow rests on them. In our of country, a girl child is in a very vulnerable position and one of the modes of her exploitation is rape besides other modes of sexual abuse. These factors point towards a different approach rtrequired to be adopted. It is necessary for the courts to have a sensitive approach when dealing with cases of child rape. The effect of such a crime on the mind of the child is likely to be lifelong. A special safeguard has been provided for children in the Constitution of India in Article
39."
12. Prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. If for some reason Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. If the totality of the circumstances ::: Downloaded on - 15/04/2017 21:40:47 :::HCHP ...7...
appearing on the record of the case disclose that prosecutrix does not have a strong motive to falsely .
involve the person charged, Court should ordinarily have no hesitation in accepting her evidence. [State of Maharashtra versus Chandraprakash Kewalchand Jain, (1990) 1 SCC 550].
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13. In Golla Yelugu Govindu vs. State of AndhraPradesh (2008) 16 SCC 769, the Apex Court has reiterated its earlier view and has held as under:-
rt"11. 6.Indian Evidence Act, 1872 (in short the 'Evidence Act') does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, diseasewhether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer J in Wheeler v. United States (159 U.S.
523). The evidence of a child witness is not required to be rejected per se; but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. (See Surya Narayana v. State of Karnataka (2001 (1) Supreme 1).
14. In Dattu Ramrao Sakhare v. State of Maharashtra (1997 (5) SCC 341) it was held as follows:
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'5. .....A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of .
a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the answers thereof.
The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the Court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no of likelihood of being tutored'. The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession rtor lack of intelligence, and said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher Court if from what is preserved in the records, it is clear his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make beliefs. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."
15. In State of Himachal Pradesh vs. Suresh Kumar (2009)16 SCC 697, the Apex Court was dealing with a case where the prosecutrix was ravished by the accused on 15.3.2000 which incident was narrated by the prosecutrix to her sister later during the day. She ::: Downloaded on - 15/04/2017 21:40:47 :::HCHP ...9...
also narrated the incident to her parents the following day and to the Doctors after the incident. Court .
accepted the statement of the sister, the parents and the doctors while holding the accused guilty.
Importantly, the Apex Court reversed the finding recorded by the High Court wherein it was held that the of statement of the prosecutrix being minor was not worthy of credence.
16. rtSarkar on Evidence (Fifteenth Edition) summarises the law relating to applicability of Section 6 of the Evidence Act thus :
"1. The declarations (oral or written) must relate to the act which is in issue or relevant thereto;
they are not admissible merely because they accompany an act. Moreover the declarations must relate to and explain the fact they accompan y, and not independent facts previous or subsequent thereto unless such facts are part of a transaction which is continuous.
2. The declarations must be substantially contemporaneous with the fact and not merely the narrative of a past.
3. The declaratio n and the act may be by the same person, or they may be by different persons, e.g., the declarations of the victim, assailant and b y-standers. In conspiracy, riot &c. the declarations of all concerned in the common object are admissible.
4. Though admissible to explain or corroborate, or to understand the significance of the act, declarations are not evidence of the truth of the matters stated."::: Downloaded on - 15/04/2017 21:40:47 :::HCHP
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17. This Court in Gentela Vijayavardhan Rao v.State of A. P. [(1996) 6 SCC 241] considering the law .
embodied in Section 6 of the Evidence Act held thus:
(SCC pp.246-47, para 15) "15.The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in of issue, is so connected with the fact in issue "as to form part of the same transaction" becomes relevant by itself. This rule is, roughly speaking, in e xception to the general rule that hearsay rtevidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae."
18. In another judgment in Rattan Singh v.
State of H. P., (1997) 4 SCC 161 this Court examined the applicability of Section 6 of the Evidence Act to the statement of the deceased and held thus (SCC p.167, para 16) ".....................The aforesaid statement of Kanta Devi can be admitted under Section 6 of the Evidence Act on account of its proximity of time to the act of murder. Illustration 'A' to Section 6 makes it clear. It reads thus:
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'(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the b y-standers at the beating, or so shortly before or after it as to form part of the transaction, is a .
relevant fact.' (Emphasis supplied) Here the act of the assailant intruding into the courtyard during dead of the night, victim's identification of the assailant, her pronouncement that appellant was standing with a gun and his firing the gun at her, are all circumstances so intertwined with each other by proximity of time and space that the statement of the deceased of became part of the same transaction. Hence it is admissible under Section 6 of the Evidence Act."
19. In Rameshwar v. The State of Rajasthan, rt AIR 1952 SC 54, the Supreme Court has held that the previous statement of the raped girl to her mother, immediately after the occurrence, is not only admissible and relevant as to her conduct, but also constitutes corroboration of her statement under the provisions of section 157 of the Evidence Act. In order to come to the aforesaid conclusions, illustration (j) to section 8 of the Evidence Act was relied upon. In that case, the victim, named Purni, was 7/8 years old. She was not administered oath, but was held to be competent witness and, therefore, duly examined and believed.
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20. The Apex Court in State of Punjab versus Gurmit Singh and others, (1996) 2 SCC 384 has held .
that:-
"... ...The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved of in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on rt the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains ::: Downloaded on - 15/04/2017 21:40:47 :::HCHP ...13...
of rape or sexual molestation, be viewed with doubt, disbelief or suspicion ?
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"21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but rtinevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female.
The Court, therefore, shoulder a great responsibility while trying an accused on charges o f rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fa tal nature, to throw out an otherwise reliable prosecution case." ... ...
(Emphasis supplied)
21. Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy ::: Downloaded on - 15/04/2017 21:40:47 :::HCHP ...14...
or varian ce in evidence will not make the prosecution's case doubtful. In order to ascertain as to whether .
d iscrepancy pointed out is minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in of which such witness is making the statement. [State of H.P. versus Lekh Raj and another (2000) 1 SCC 247].
22. rt In the aforesaid decision itself the Court reiterated its earlier view taken in State of Punja b versus Jagir Singh (1974) 3 SCC 277 wherein it was held that:-
"A criminal trial is not like a fairy tale wherein one is free to give fight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an e vent in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the Court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses . Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the Courts should not at the same ::: Downloaded on - 15/04/2017 21:40:47 :::HCHP ...15...
time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures."
.
(Emphasis supplied)
23. The Apex Court in State of Rajasthan versus N. K. THE ACCUSED (2000) 5 SCC 30 has held that:-
"... ...It is true that the golden thread which runs throughout the cobweb of criminal of jurisprudence as administered in India is that nine guilty may escape but one innocent should not suffer. But at the same time no guilty should rtescape unpunished once the guilt has been proved to hilt. An unmerited acquittal does no good to the society. If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the Court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or b y assuming doubts and giving benefit thereof where none exists. A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on prowl for easy prey, more so when the victims of crime are helpless females. It is the spurt in the number of unmerited acquittals recorded by criminal Courts which gives rise to the demand for death sentence to the rapists. The Courts have to display a greater sense of responsibility and to be more sensitive ::: Downloaded on - 15/04/2017 21:40:47 :::HCHP ...16...
while dealing with charges of sexual assault on women."
(Emphasis supplied) .
24. In State of M.P. v. Dharkole alias Govind S ingh and others, (2004) 13 SCC 308 the Apex Court has held that:-
"9. ... Eye witnesses' account would require a careful independent assessment and evaluation of for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the rttest of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit- worthy; consistency with the undisputed facts; the 'credit' of the witnesses; their performance in the witness -box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative e valuation."
"10. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to 'proof' is an exercise particular to each case?
"The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to ::: Downloaded on - 15/04/2017 21:40:47 :::HCHP ...17...
be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are .
generally dependent. A junior may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions and guilty rathe r than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other."
of "11. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law rtcannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and commonsense.
It must grow out of the evidence in the case."
[Emphasis supplied]
25. We shall now discuss the evidence in view of the aforesaid settled proposition of law.
26. Certain facts are not in dispute:
(a) That on 07.06.2007, the date of alleged incident, prosecutrix was minor. She was born on 03.01.1998, which fact, in any event, stands established through ::: Downloaded on - 15/04/2017 21:40:47 :::HCHP ...18...
the testimony of PW.8 and PW.9, who have proved on record birth certificate (Ex.PW.9/B);
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(b) Accused was not only known to, but was on visiting terms with the family of the prosecutrix. In fact, he is a c lose relative which fact also stands established through the unrebutted testimonies of of PW.2, PW.3 and PW.6. He is the cousin of the prosecutrix .
(c) On the fateful day, father (PW.6) of the rt prosecutrix was not at home, for he had gone for some work to a nearby place.
(d) Same day, accused had come to spend the night in the house of the prosecutrix. Her younger brother and mother were also at home.
(e) After having meals at night, prosecutrix, her brother and mother slept on the cot and in the same room, accused also slept on the floor.
27. With these admitted and undisputed facts, we now proceed to examine the testimony of the prosecution witnesses.
28. Prosecutrix who was competent to understand the sanctity of oath, in Court, has deposed that on 07.06.2007, after having meals , she alongwith ::: Downloaded on - 15/04/2017 21:40:47 :::HCHP ...19...
her brother and mother went off to sleep on the double bed (cot) whereas accused slept on the ground. Her .
brother was sleeping towards the side of the wall and she was sleeping towards the side of the accused , and in between was her mother. Sometime in the middle of n ight, when all were asleep, accused who after of applying saliva on his fingers, inserted them in her private parts. This was so done twice. Also accused inserted his private par t on her private parts , as a rt result of which she felt pain and cried. Hearing the same, her mother got up and switched on the lights.
When enquired, accused ran away, stating that nothing had happened. Soon her mother went to the house of neighbour Manoj Gupta and telephonically informed her father. Thereafter, prosecutrix was tak en to the Police Station, where the matter came to be reported.
29. From the cross -examination part of her testimony, we do not find credit of this witness to have been impeached in any manner. We also do not find her to have been tutored in making such a s tatement in Court. In fact, she has bravely withstood the test of cross-examination, which by all standards is extremely ::: Downloaded on - 15/04/2017 21:40:47 :::HCHP ...20...
bold , if not shocking. She is categorical that her father was away for work and the accused, of his own came to .
their residence. After consuming meals he slept with them. Her mother had asked the accused to leave but he stayed over. When questioned, on her knowledge of the accused having applied saliva, she explained it to of be on the basis of her observation, finding the body part to have salivary sensation. She is categorical that it was only on the second occasion that she woke up rt her mother. On first brush there appears to be little contradiction, but then, on a careful reading of testimony of both the witnesses, it is evidently clear that mother got up only when the child cried, which was at the time of the second attempt by the accused.
She is also clear that prior to her mother having switched on the lights, accused had tried to insert his male organ into her vagina. Categorically she has denied , having noticed her mother and accused to be in a compromising position, on the fateful night. We do find that in cross-examination, she does state that "accused was trying to insert his male organ meant for urinating" but then in the examin ation in chief, she is ::: Downloaded on - 15/04/2017 21:40:47 :::HCHP ...21...
categorical that accused had started "inserting" the same. Hence in our considered view offence under the .
provisions of Section 376 of IPC is clearly made out. It is not a case of attempt, but an act of rape. It is a case where the male organ came in contact with the vagina.
On this count, our attention is invited to the medical of record (Ex.PW.1/B). The version, so narrated by the prosecutrix stands recorded therein. No doubt, doctor d id not find any injury on the vaginal par t of the rt prosecutrix, but then he is categorical that there is no evidence to suggest that "rape has not been committed" and that "I finally opined that sexual intercourse has not taken place, but rape cannot be ruled out".
30. Absence of blood, rashes, sperms or bruises on the vital part of the prosecutrix, in itself, cannot be a ground for disbelieving her . We also find that the investigating agencies had been extremely cautious in coming to the conclusion, of involvement of the accused in the crime. They took opinion of the doctor thrice. On the last occasion, the doctor opined (Ex.DA) that even mere penetration itself would amount to ::: Downloaded on - 15/04/2017 21:40:47 :::HCHP ...22...
sexual assault. Significantly, the doctor has not ruled its possibility.
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31. We further find version of the prosecutrix to have been absolutely corroborated by her mother Patto Devi (PW.2). Even she is categorical that at about 1.30 AM, after hearing cries of her daughter, she got up and of switched on the lights. The accused ran away from the spot and on her asking , the entire incid ent came to be narrated by the prosecutrix to her. Pants of the rt accused were down and the underwear of the prosecutrix was lying on the floor. Even she has withstood the test of cross-examination and we also do not find her to have either deposed falsely or falsely implicated the accused in the alleged crime.
32. It is not that the accused was not known to the family. He was cousin of the prosecutrix . Hence his presence in the house is totally explainable. It has also come on record, as also stands established through the testimony of Dr. Rajesh Sharma (PW.4) who has proved MLC (Ex.PW.4/B), that the accused was under
the influence of alcohol.::: Downloaded on - 15/04/2017 21:40:47 :::HCHP
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33. It is contended that the story propounded by the prosecutrix "sounds to be unreasonable and .
improbable". Such contention only merits rejection.
We find the room, where the parties were sleeping to be big enough. Even the cot was big enough to accommodate two adults and two children. Assuming of hypothetically that the mother was caught in a compromising position by the child, even then , we see no reason for the mother to have falsely involved her rt children and that too her daughter, in the alleged crime, for it only tarnishes her image and mars her future prospects. One cannot isolate the socio -
economic status of th e parties.
34. The defence of the accused of false implication also stands falsified from the fact that the incident came to be reported to the police immediately after the occurrence of crime.
35. To impeach the credit of the prosecution witnesses, more particularly that of the prosecutrix and her mother, our attention is invited to medical record in MLC (Ex.PW-1/B). No doubt, it records that prosecutrix was got medically examined on 8.6.2007 at 11.45 a.m., ::: Downloaded on - 15/04/2017 21:40:47 :::HCHP ...24...
however the fact of the matter, as is evident from the testimony of the prosecutrix as also police officials, is .
that prosecutrix was taken to the hospital immediately after lodging of the report. In fact, we also find the accused to have been arrested and medically examined, same day and that too in the morning of hours. Hence, possibility of error in recording the exact timing in the MLC cannot be ruled out, attention of which, in any event, was never brought to the notice of rt the doctor.
36. Court below, seriously erred in correctly and completely appreciating the testimonies of the prosecution witnesses as also the law as aforesaid.
37. 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.
38. From the material placed on record, it stands established by the prosecution witnesses that the accused is guilty of having committed the offence charged for. There is sufficient, convincing, cogent and ::: Downloaded on - 15/04/2017 21:40:47 :::HCHP ...25...
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. It cannot be said that accused is innocent or not guilty or that he has of been falsely implicated or that his defence is probable or that the evidence led by the prosecution is inconsistent, rt unreliable, untrustworthy and unbelievable.
39. Thus, in our considered view, findings returned by the trial Court cannot be said to be based on correct and complete appreciation of material on record, which are reversed. The appeal is allowed and we hold the accused guilty of having committed offence, punishable under the provisions of Section 376 of the Indian Penal Code, for having committed rape on prosecutrix.
40. For the purpose of hearing the accused-
convict on the quantum of sentence, the appeal be listed on 06.12.2016, as jointly prayed for. He be ::: Downloaded on - 15/04/2017 21:40:47 :::HCHP ...26...
produced in the Court on the said date. Copy of the judgment be supplied to th e accused, free of cost.
.
41. No other point urged.
Appeal stands disposed of, so also pending application(s), if any.
of ( Sanjay Karol ), Judge.
( Ajay Mohan Goel ), rt December 5, 2016 (Purohit) Judge.
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