Himachal Pradesh High Court
Bihari Lal vs State Of H.P on 9 March, 2017
Bench: Sanjay Karol, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.200 of 2016 Reserved on : March 4, 2017 Date of Decision : March 9, 2017 .
Bihari Lal ...Appellant.
Versus
State of H.P. ...Respondent.
Coram:
of
The Hon'ble Mr. Justice Sanjay Karol, Judge. The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? Yes. 1
For the Appellant
rt : Mr. Satyen Vaidya, Senior
Advocate, with Mr. Vivek Sharma,
Advocate.
For the Respondent : Mr. V.S. Chauhan, Additional
Advocate General.
Sanjay Karol, Judge
Accused Bihari Lal (Accused No.1), with the allurement of marriage, took the prosecutrix (PW-14) from Thoeg to Bilaspur (H.P.), where in a hotel he subjected her to criminal assault and thereafter entrusted her custody to accused Suresh Kumar (Accused No.2 and accused Bindra Devi (accused No.4), for solemnization of her marriage with their son Sandeep Kumar (accused No.3) (residents of Hamirpur, H.P.). In crux, this is the case of prosecution.
Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:59:39 :::HCHP...2...
2. All the accused were charged for having committed offences punishable under Sections 363, 366, read with Section 120-B of the Indian Penal Code.
.
Additionally, accused Bihari Lal was charged for having committed an offence punishable under Section 376 of the Indian Penal Code.
3. Finding the prosecution not to have fully of established its case, through the testimonies of 22 prosecution witnesses, while acquitting accused Suresh Kumar (accused No.2), Sandeep Kumar (accused No.3) rt and Bindra Devi (accused No.4), on all counts, trial Court convicted only accused Bihari Lal (accused No.1), for having committed offences under Sections 363, 366 and 376 of the Indian Penal Code and sentenced him as under:
Accused Bihari Lal Offence Sentence Section 363 IPC Rigorous imprisonment for a period of two years and fine of `5,000/- and in default thereof to further undergo simple imprisonment for a period of six months. Section 366 IPC Rigorous imprisonment for a period of two years and fine of `5,000/- and in default thereof to further undergo simple imprisonment for a period of six months. Section 376 IPC Rigorous imprisonment for a period of ten years and fine of `40,000/- and in default thereof to further undergo simple imprisonment for a period of one year.::: Downloaded on - 15/04/2017 21:59:39 :::HCHP
...3...
Amount of fine, on realization, has been ordered to be paid to the prosecutrix, as compensation.
4. Undisputedly, no appeal against the .
judgment of acquittal stands filed by the State or the complainant.
5. Convict Bihari Lal alone has assailed the findings of his conviction as also sentence, so rendered of by the trial Court, in terms of impugned judgment dated 20.1.2016/25.2.2016, passed by Additional Sessions Judge-cum-Special rt Judge (CBI), Shimla, Himachal Pradesh, in Sessions Trial No.33-T/7 of 2013/12, titled as State of H.P. v. Bihari Lal and others.
6. Having carefully perused the entire evidence, we find the prosecution case resting on the following circumstances:
(a) As on the date of commission of offence, prosecutrix, resident of village Hulli, was a minor and studying in the 9th standard at a school at Gumma.
(b) On 4.4.2012, on the asking of Sanjay Kumar (PW-20), she travelled from Gumma to Theog, where she spent some time with him.
(c) There she spent the night, in the house of Khema Nand Brakta (PW-2).
(d) In the morning of 5.4.2012, accused Bihari Lal, finding the prosecutrix alone ::: Downloaded on - 15/04/2017 21:59:39 :::HCHP ...4...
at the Bus Stand, Theog, on the allurement of her marriage, made her travel with him to Bilaspur, where they spent the night in Hotel Banyal. There he subjected her to sexual assault.
.
(e) On 6.4.2012, Bihari Lal telephonically contacted accused Sandeep Kumar, who alongwith his parents, accused Suresh Kumar and Smt. Bindra Devi, came to Bilaspur, where custody of the prosecutrix was entrusted to them.
(f) Thereafter, she remained with them till of 12.4.2012, when they dropped her at Gumma, on the pretext of procuring her school leaving certificate.
rt(g) Information that prosecutrix had returned was passed on to her parents on 12.4.2012, on whose asking, the following day, i.e. 13.4.2012, prosecutrix lodged a report at Police Station, Kotkhai.
(h) On 6.4.2012, Mehboob (PW-15), father of the prosecutrix had lodged a missing report with the police.
(i) During the course of investigation, so conducted by ASI Chering Dorje (PW-
22), (i) prosecutrix and accused Bihari Lal were got medically examined, (ii) prosecutrix identified the accused and place(s) of occurrence of the incident,
(iii) proof of her age and other incriminating material pertaining to telephonic conversation inter se the accused were taken on record.
7. Trial Court convicted the accused, holding (a) the testimonies of the prosecutrix (PW-14), her father Mehboob (PW-15) and uncle Roshan Deen (PW-3) to be ::: Downloaded on - 15/04/2017 21:59:39 :::HCHP ...5...
inspiring in confidence; (b) prosecution to have established the factum of accused Bihari Lal and the prosecutrix having spent the night of 5.4.2012, in a hotel .
by the name of Banyal Hotel, Bilaspur, owned by Vijay Kumar (PW-19); (c) despite there being no corroborative medical evidence, testimony of the prosecutrix per se establishing the case against accused Bihari Lal, more so of with regard to his identity, and despite the prosecutrix having named Rajinder in her initial version so recorded by the police, to have been subjected to sexual assault;
rt and (d) the prosecutrix having no reason to falsely implicate the accused.
8. From the perusal of the material so placed on record and the evidence, ocular and documentary, so led by the parties, certain undisputed facts have emerged on record:
(a) On the date of alleged commission of crime, prosecutrix was a minor. She was less than 15 years of age.
(b) Prosecutrix, a resident of village Hulli, was studying in the 9th standard in a School, at place known as Gumma.
(c) On 4.4.2012, prosecutrix travelled from Gumma to Theog, where she spent the night in the house of Khema Nand Brakta (PW-2).::: Downloaded on - 15/04/2017 21:59:39 :::HCHP
...6...
(d) Both, the prosecutrix and her parents, were having mobile phones. Also she was independently using her mobile phone.
.
(e) Accused Bihari Lal (accused No.1) did not indulge in the trade of human trafficking.
(f) No money ever came to be passed on by the other accused to Bihari Lal.
(g) Both, the prosecutrix and accused Bihari
Lal, were subjected to medical
of
examination.
9. From the medical evidence, corroborative in nature, it is evidently clear that Dr. Anita Negi (PW-7), rt affirmatively, did not opine that prosecutrix was subjected to sexual assault. In the MLC (Ex.PW-7/A), she opined that:
"From above finding there is nothing to suggest that recent sexual intercourse has taken place. However there was evidence of fresh rupture of Hymen."
However, in Court, it stands clarified that the word "fresh" would mean within 24-48 hours.
10. It is a settled position of law that in a case of sexual assault, medical evidence is only corroborative in nature. And in a given case may not be even relevant.
::: Downloaded on - 15/04/2017 21:59:39 :::HCHP...7...
11. Also, there is no other evidence of scientific nature, on record, establishing the factum of sexual assault.
.
12. Hence, under these circumstances, one has to only look into the ocular evidence. Before we deal with the same, we find that in the instant case, there is one disturbing feature, with regard to the conduct of of investigation. But then, it is also a settled principle of law that faulty investigation or any irregularity would not itself vitiate the trial, entitling the accused for an rt acquittal.
13. In the instant case, Investigating Officer, who incidentally is no more in the land of living, which fact we got ascertained from the learned Public Prosecutor, did not take into possession the mobile phone of the prosecutrix. Also, he did not place on record the call details of the conversation, which the prosecutrix had had, if any, during the course of occurrence of the incident(s). Also, he only took into possession the cell phone alongwith the SIM used by accused No.1 (Bihari Lal), but did not obtain the call details and the tower locations. Well, what is its effect, we shall consider herein later.
::: Downloaded on - 15/04/2017 21:59:39 :::HCHP...8...
14. Record reveals that on 13.4.2012, prosecutrix, in the presence of her father (PW-15) and uncle (PW-3) got recorded her statement under Section .
154 of the Code of Criminal Procedure (Ex. PW-14/A), disclosing that on 4.4.2012, while she was on way to her school at Gumma, Sanjay Kumar (PW-20) called her on phone and asked her to meet him at Theog. After leaving of her school bag with a shopkeeper, at Gumma, she travelled to Theog, where she spent the night with "someone known to her". In the morning of 5.4.2012, at rt about 6 am, while she was alone at the bus stand, "one person" by the name of "Rajinder", "aged about 40 years", after enquiring her whereabouts, on the pretext of getting her married, took her in a bus to "Hamirpur", where after reaching at about 10 pm, they spent the night in a "hotel", where she was subjected to sexual assault by him. The following morning, i.e. 6.4.2012, said "Rajinder" spoke to someone on telephone and soon "one boy" and "two other persons", "one of whom was a lady", came to the hotel, whereafter "Rajinder" entrusted her custody to them. "Rajinder" informed that within 2-3 days these two persons, i.e. the parents would get her marriage solemnized with their son Sandeep. By ::: Downloaded on - 15/04/2017 21:59:39 :::HCHP ...9...
swindling, "Rajinder Kumar" handed over her custody to Sandeep and his parents. She spent 5/6 days at Hamirpur, but lateron was asked by the parents to get .
school leaving certificate. Hence, on 12.4.2012 they brought her in a vehicle to Gumma and left, after sending her to school.
15. Now significantly, at this point in time, she of does not disclose full particulars of Rajinder. There is neither any description nor any detail of place of his residence.
rt She also does not disclose the names of parents of accused Sandeep or their address. She also does not disclose the name of the shop keeper. She does not state that accused extended any threats. She readily agreed to travel with accused Bihari Lal.
16. However, in Court, we find the witness to have disclosed the facts differently. To us, it does not appear to be a mere improvement or exaggeration. The core story of sexual assault qua Bihari Lal (convict) stands altered.
17. In her statement, so recorded on oath, on 19.5.2014, she states that on 4.4.2012, after receiving a call from Sanju, she went to Theog. Prior thereto, she left her school bag with a shopkeeper - identity not disclosed-
::: Downloaded on - 15/04/2017 21:59:39 :::HCHP...10...
at Gumma. Same day, she spent the night with "one uncle at Theog". Next day, at about 6 am, when she came to the Bus Stand, she met the accused (Bihari Lal), .
who stated his name as Rajinder Kumar. On the pretext that he would get her married, he took her to "Bilaspur", where she spent the night with him in a hotel, where he subjected her to sexual assault. Following morning, of Bihari Lal spoke with one boy on telephone and soon he came with his parents, when Bihari Lal asked her to leave with them. Next six days, she spent with them but was rt brought to Gumma and asked to obtain the school leaving certificate, but soon they went away. Accused Bihari Lal took her with himself by alluring that he would get her married and handed her custody to Sandeep and his parents. During investigation, police took her to Bilaspur, for identification of the place, where she had spent the night with accused Bihari Lal and thereafter to Hamirpur for identification of the house of accused Sandeep. She claims to have identified the accused before the police. Well, that is all she states in her examination-in-chief part of the testimony.
18. She is categorical that though she was called by the police several times, but her statement was ::: Downloaded on - 15/04/2017 21:59:39 :::HCHP ...11...
recorded only once. Now significantly, except for statement (Ex.PW-14/A) there is no other proven statement of the prosecutrix on record.
.
19. The question, which arises for consideration is as to how did the police reach to Bihari Lal and who disclosed that he in fact is Rajinder Kumar. The answer, to some extent, lies in the cross-examination part of the of testimony of the prosecutrix and that of the Investigating Officer (PW-22).
20. rt Prosecutrix states that she identified the accused before the police. The Investigating Officer states that at the time of such identification, accused Bihari Lal was already in the Police Station. Again, the question needs to be reiterated is how is it that police reached to this accused and called him to the Police Station, for it is nobody's case that Rajinder/Bihari was otherwise present in the Police Station.
21. Events unfurling from the testimony of the Investigating Officer are to the effect that with the lodging of the complaint by the prosecutrix on 13.4.2012, he took over the investigation. By tracing the location of the prosecutrix from her call records, which are not placed on record, he travelled first to Bilaspur and then to ::: Downloaded on - 15/04/2017 21:59:39 :::HCHP ...12...
Hamirpur. Investigation revealed that Bihari Lal had subjected the prosecutrix to sexual assault in Hotel Banyal at Bilaspur. As such, Bihari Lal was called to .
Police Station, Kotkhai, where he was identified by the prosecutrix on 15.4.2012, and arrested same day. But the version about the date of such identification stands materially contradicted by the father of the prosecutrix of (PW-15), who, in no uncertain terms, states that on 12.4.2012, when prosecutrix was brought home, matter was immediately reported to the police at Police Station, rt Kotkhai and that prosecutrix identified accused Bihari Lal on 12.4.2012 at 6 p.m., in the Police Station. Such version also stands materially corroborated by Roshan Deen (PW-3), uncle of the prosecutrix.
22. To be doubly sure that there is no typographical error in the recording of the date as 12.4.2012, we cross-checked the statements of the witnesses so recorded in the vernacular language. It is certainly not a typographical error. In any event, the fact that prosecutrix identified the accused in the Police Station on 12.4.2012 also stands corroborated by Roshan Deen as also Mehboob, who, in no uncertain terms, state that it was the police who brought the prosecutrix from ::: Downloaded on - 15/04/2017 21:59:39 :::HCHP ...13...
the school and the very same day, the matter was reported to the police, by visiting the Police Station.
23. It is a settled principle of law that if the .
testimonies of the witnesses were to inspire confidence, identity of the accused in the Court itself can be considered to be an established fact. (Satwantin Bai v.
Sunil Kumar and another, (2015) 8 SCC 478).
of
24. However, in the instant case, one cannot forget that no Test Identification Parade was ever got conducted by the police.
rt It may not have been necessary, but for the fact that the name of the person and his description, in terms of age, so disclosed by the prosecutrix in her statement (Ex.PW-14/A), is totally different and other than the present accused. Record does not reveal as to whether "Rajinder Kumar" and "Bihari Lal" are one and the same person. That "Bihari Lal" impersonated himself as "Rajinder" is only the stand of the Investigating Officer and he admits that prosecutrix was personally not known to the accused.
25. The issue, therefore, which arises for consideration is as to how did the police reach to accused Bihari Lal, by concluding that he and Rajinder are one and the very same person.
::: Downloaded on - 15/04/2017 21:59:39 :::HCHP...14...
26. It is a matter of record that the Investigating Officer had not obtained the tower location of the phone used by Bihari Lal. Why so? is not clear. Be that as it .
may, his admission is also categorical to the effect that the tower location of the cell phone used by the prosecutrix did not reflect any presence at Bilaspur.
Judicial notice can be taken of the fact that Bilaspur and of Hamirpur are two distinct and different places and at a distance of approximately 60 kms. None of the witnesses have disclosed, in Court, the relationship or proximity of rt Bihari Lal with the other accused persons. Also, who disclosed the identity of Bihari Lal to be the very same person who took the prosecutrix from Theog to Bilaspur/ Hamirpur is not clear. It has also not come in the testimony of the Investigating Officer, prosecutrix and her father, that during the course of investigation on way to Bilaspur and then Hamirpur, either of the co-accused had first disclosed that Bihari Lal is the very same person, who handed over custody of the prosecutrix to them.
One cannot ignore the version of the Investigating Officer as also the prosecutrix that from Kotkhai, police first went to Bilaspur and then to Hamirpur and only on return from there did they collect papers from the owner of the hotel.
::: Downloaded on - 15/04/2017 21:59:39 :::HCHP...15...
27. On the basis of case diaries of the Investigating Officer, it is vehemently contended by the Learned Additional Advocate that the accused were in .
touch with each other. Since Sandeep was to get married, his parents had requested accused Bihari Lal to look for a suitable match. Finding the prosecutrix, he got in touch with them and handed over her custody to them.
of But, significantly there is no evidence to such effect. It is also not the prosecution case. Witnesses are conspicuously silent with regard to the same.
rt
28. It is a settled principle of law that case diary is per se not evidence. It is no more than an aid and that too for a limited purpose, which in the instant case would be of no use, for the simple reason that the Investigating Officer never came to be confronted with the same, nor was any opportunity afforded to the accused, for confronting the Officer with the same. (Shamshul Kanwar v. State of U.P., (1995) 4 SCC 430; and Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1).
29. At this juncture, we may only observe that record pertaining to the telephonic conversation inter se the accused, so produced through the testimony of Minoo ::: Downloaded on - 15/04/2017 21:59:39 :::HCHP ...16...
Rana (PW-10) and Shashi Kant Verma (PW-11), is without proper authorization, as is so required under Section 65A of the Indian Evidence Act. It is not admissible evidence.
.
In any event, it only establishes link between accused No.1 (Bihari Lal) and accused No.3 (Sandeep Kumar).
There is no record pertaining to the call log of the phone used by the prosecutrix, her parents or Sanju.
of
30. As on 13.4.2012, prosecutrix had not revealed the description of the place or the hotel, where she spent the night with the accused on 5.4.2012. The rt Investigating Officer states that he reached Bilaspur in the morning of 15.4.2012 at 8.30. Prior to this date, no supplementary statement of the prosecutrix, ever came to be recorded. It is not the case of prosecution or that of the prosecutrix, that she was familiar with the area or terrain. Then how is it that police first went to Bilaspur, for in the complaint (Ex.PW-14/A), prosecutrix had stated the name of the place as "Hamirpur". It is also not their case that on way to Hamirpur, prosecutrix was able to identify the place, i.e. Bilaspur or the hotel.
31. But then, these factors have not totally weighed with us in arriving at a conclusion, other than the one trial Court has held.
::: Downloaded on - 15/04/2017 21:59:39 :::HCHP...17...
32. To us, version of the prosecutrix itself is found to be uninspiring in confidence. No doubt, she is minor but then, to us she appears to be a courageous, .
bold and socially compatible person. She does not appear to be a rustic, gullible villager. She fully understands the consequences of her actions.
33. Her version that she went to Theog, on the of asking of Sanju, whom she claims to be her classmate and known to her for the last 3-4 months, stands materially contradicted by the very same person, i.e. rt Sanjay Kumar @ Sanju (PW-20), who is categorical that prosecutrix is not known to him, save and except for one single conversation, which he had had with a girl, on 1.4.2012, who had disclosed her name as Priya, whom, in any case, he had not known. This girl had told him that she was in love with him, to which he responded that he was not even known to her, hence where was the question of any love. The very same girl, again contacted him on 4.4.2012, desiring to meet him at Theog Bus Stand, where he went. The girl is the prosecutrix. After meeting her, he asked her to go home.
34. Further, version of the prosecutrix that she spent the night in the house of her uncle at Theog is not ::: Downloaded on - 15/04/2017 21:59:39 :::HCHP ...18...
only self contradictory, but also stands materially contradicted by the person, namely Khema Nand Brakta (PW-2), with whom she had spent the night of 4.4.2012.
.
In her examination-in-chief, she refers to him as her uncle, but in the cross-examination states that he was known to her. Yet lateron, she goes on to state that he was not her relative and that he was a Hindu. On the of other hand this witness (PW-2) states that on 4.4.2012 at about 7.15 p.m., when he enquired from a girl sitting alone on the bench at Bus Stand, Theog, she disclosed rt that she was waiting for her brother who was to come from Shimla. On her request, he made her spend the night with him in his house and the following day, she left at 6 a.m. Further, when we peruse her first statement, which the prosecutrix got recorded with the police, she is categorical of having spent the night with "someone known to her", which fact stands materially contradicted by Khema Nand Brakta, who, in no uncertain terms, states that he was not knowing the girl from before. In fact, uncontrovertedly he deposes of having learnt from the police that the girl (prosecutrix) had not only disclosed her name incorrectly but also lied that her ::: Downloaded on - 15/04/2017 21:59:39 :::HCHP ...19...
brother, purportedly staying at Shimla, was to come to Theog that evening.
35. At this juncture, we may take note of .
admission of the prosecutrix that she was in the company of Sanju till 5 O'clock and that even thereafter, buses to her village were available. But, why is it that she did not return home, more so when advised, remains of unexplained. All these, not being minor contradictions, render her version to be absolutely uninspiring in confidence.rt
36. Her further version of accused Bihari Lal having induced her to travel with him, on the pretext of getting her marriage solemnized, cannot be said to be inspiring in confidence. Firstly, she disclosed the name of the person as Rajinder, aged 40 years, whereas age of the accused at the time of commission of alleged offence was approximately 70 years. She does not state as to with whom the marriage was to be solemnized. Her version of having travelled with a stranger, whose particulars are also not known to her, appears to be unbelievable, more so in the light of her earlier version of having travelled to Theog, on the asking of her alleged acquaintance, who was a young boy of 27 years, to whom ::: Downloaded on - 15/04/2017 21:59:39 :::HCHP ...20...
she had already expressed her affection and love. Hence, her statement on this count is also uninspiring in confidence.
.
37. It is not the case of the prosecution that accused was indulging in the trade of human trafficking or made any material promise, alluring the prosecutrix of getting her married to a person of particular standing or of stature in the society.
38. Her further version that in the night of 5.4.2012, she was subjected to sexual assault by accused rt Bihari Lal in a hotel at Bilaspur is also uninspiring in confidence. It is not her case that threats of any nature were ever extended to her or that she was frightened or under intimidation or fear. She is categorical that the hotel is located in a residential area. She raised no hue and cry. She chose not to resist the alleged overt acts.
She wants the Court to believe that in the hotel workers were present, yet chose not to report the incident to anyone of them. Her version that she was not allowed to leave the hotel is only an exaggeration, for such fact not to have been recorded in her previous statement (Ex.PW-
14/A), with which she was confronted.
::: Downloaded on - 15/04/2017 21:59:39 :::HCHP...21...
39. It is not a case of consent, but that of the testimony of witness, on this count, not worthy of credence, rendering her testimony to the uninspiring in .
confidence.
40. Further, she chose not to disclose the incident either to the boy, with whom her marriage was to be solemnized, or his parents. She spent more than of 5/6 days with them and travelled all the way back to Gumma for obtaining the school leaving certificate, yet remained silent, not revealing anything. She herself, as rt is so revealed by her father, had taken the school leaving certificate, establishing proof of age. Even in school she did not reveal anything. Also, her father is categorical that she did not narrate the incident of rape to him, but to his wife, who incidentally remains unexamined in Court.
41. At this juncture, we may also take into account testimony of Roshan Deen (PW-3), who states that prior to 15.4.2012, prosecutrix never disclosed to him that she had been subjected to sexual assault, nor was he aware of such fact. However, one cannot ignore the fact that presence of this very person is recorded in statement (Ex.PW-14/A) dated 13.4.2012, which led to ::: Downloaded on - 15/04/2017 21:59:39 :::HCHP ...22...
the registration of the FIR, the very same day, wherein it is categorically recorded that one "Rajinder" "aged 40 years" had subjected her to sexual assault in a hotel at .
"Hamirpur".
42. Further, in her initial complaint, prosecutrix did not disclose that she spent 5/6 days in the house of relative of accused Sandeep. It came to be disclosed by of her only in Court. To such effect, there is testimony of Chanchala Devi (PW-21), who simply states that one girl, who disclosed her name as 'X' (real name not revealed), rt aged 16-17 years, spent 5/6 days with her. It is not the case of prosecution that in fact prosecutrix is 'X'. Also, prosecutrix was not got identified from this witness.
43. While contending that the evidence, more particularly that of the prosecutrix, with dissection, totally inspiring confidence and corroborating the prosecution version, on the aspect of guilt of Bihari Lal, learned Additional Advocate General invites our attention to the decisions rendered by the apex Court in Kamla Kant Dubey v. State of Uttar Pradesh and others, (2015) 11 SCC 145; and State of Karnataka v. Suvarnamma and another, (2015) 1 SCC 323.
::: Downloaded on - 15/04/2017 21:59:39 :::HCHP...23...
44. We have carefully gone through the ratio of law laid down therein. As a proposition of law, there cannot be any dispute, but the whole question which .
arises for consideration, is as to whether testimony of the prosecutrix vis-à-vis conduct of accused Bihari Lal is inspiring in confidence or not. We have already, in detail, discussed the manner in which we have found her version of to be otherwise.
45. Prosecutrix got identified the hotel where she was subjected to sexual assault, but then, save and rt except her testimony, which we do not find to be worthy of credence, there is nothing on record to prove such fact.
46. Also, for establishing the fact that Bihari Lal spent the night with the prosecutrix in the hotel at Bilaspur, attention is invited to the testimony of Vijay Kumar (PW-19), owner of the hotel, where the alleged sexual assault took place. Significantly, he does not identify the prosecutrix to be the very same girl, by the name of 'X' (real name not revealed), who allegedly spent the night with one Bihari Lal, entry pertaining to which is recorded in Register (Ex.PW-15/A), so maintained by him. His testimony as also the record, allegedly ::: Downloaded on - 15/04/2017 21:59:39 :::HCHP ...24...
maintained by him, is also not free from blemish. His version of maintaining six rooms hotel, all by himself, by not employing anyone else, stands materially .
contradicted by the prosecutrix. That apart, whether 'X' (real name not revealed), whose name is reflected at Serial No.13 of the entry, is the prosecutrix, remains unproven. Initially, he claims to have himself recorded of the entries in the register, but when confronted, admitted entries No.8 to 12 to have been made by someone else.
Hence, it cannot be said, with certainty, that the entry in rt question, is either scribed by this witness or that signatures of the hirer of the room are that of accused Bihari Lal.
47. On this issue, while relying upon Paulmeli and another v. State of Tamil Nadu through Inspector of Police, (2014) 13 SCC 90, it is contended on behalf of the State that no question about the same came to be put to the prosecution witnesses by the accused. Well, then it is for the prosecution to have established its case, beyond reasonable doubt, and not the other way round.
Prosecution has to link all the established facts.
Observation made by the Court in Para-16, to which our attention is invited, is, entirely in a different context, ::: Downloaded on - 15/04/2017 21:59:39 :::HCHP ...25...
where the accused wanted the Court to believe a fact which never came to be put to the expert in the witness box.
.
48. Significantly, father of the prosecutrix had himself lodged a missing report. This was on 6.4.2012.
Outcome of such report and the investigation conducted, if any, thereupon remains a shrouded mystery. Though of such fact shall have no bearing, but the fact of the matter, is as is so disclosed by Roshan Deen that police got to know about the whereabouts of the prosecutrix, for rt they brought her back from the school at Gumma.
49. It has come in the testimony of the prosecutrix that her father was literate. Undisputedly, when there was no pressure on the prosecutrix or her parents or uncle from any quarter, then what was the reason for lodging the FIR after a gap of one day, remains unexplained on record. Such fact acquires significance in view of uncontroverted and clear version of Mehboob (PW-15) that the accused stood identified by the prosecutrix in the police station on 12.4.2012 at 6 p.m. Significantly, on 13.4.2012, she did not disclose the name of the accused as Bihari Lal. Mehboob admits the name ::: Downloaded on - 15/04/2017 21:59:39 :::HCHP ...26...
of the person disclosed to him by the prosecutrix was Rajinder. Certainly, it was not Bihari Lal.
50. It is a settled principle of law that delay .
cannot be a ground for disbelieving the testimony of the prosecutrix. The apex Court in State of Himachal Pradesh v. Sanjay Kumar alias Sunny, (2017) 2 SCC 51 has elaborately dealt with the manner in which testimony of of the prosecutrix and that too a minor, is required to be appreciated by the Courts. Entire matter is to be examined in the backdrop in which the offence came to rt be committed, by taking into consideration the realities of life, which prevail in the Indian social milieu. Testimony of the victim, in cases of sexual assault itself inspires confidence. And unless there are compelling reasons, which necessitate corroboration, Courts should find no difficulty in accepting such version in convicting the accused on such solitary evidence. Only if Court finds it difficult to accept her version, it can seek corroboration from some evidence, lending assurance to the same. It further clarified that seeking corroboration to an otherwise inspiring statement would only amount to adding insult to an injury. Victim of rape is not an accomplice and her evidence can be acted upon without ::: Downloaded on - 15/04/2017 21:59:39 :::HCHP ...27...
corroboration. She stands at a higher pedestal than any other injured witness. But then, it stands clarified that "no doubt, her testimony has to inspire confidence".
.
51. In the instant case, on several counts and for various reasons, assigned supra, we have found the testimony of prosecutrix to be wholly and fully uninspiring in confidence, even qua the alleged acts of attributed to accused Bihari Lal. Even otherwise, by way of corroboration, there is nothing on record to substantiate such fact.
rt
52. It is next contended that defect in the investigation would ipso facto not vitiate trial and singularly, be a reason good enough, to acquit the accused. To such effect, our attention is invited to the decisions rendered by the apex Court in. Suvarnamma (supra); and V.K. Mishra and another v. State of Uttarakhand and another, (2015) 9 SCC 588.
53. Even on this proposition of law, there cannot be any dispute. We have, in our earlier part of the judgment, already observed that our view, in arriving at a different conclusion, is not based on the illegality or irregularities committed by the Investigating Officer during the course of investigation, more particularly with ::: Downloaded on - 15/04/2017 21:59:39 :::HCHP ...28...
regard to non-conduct of the Test Identification Parade or not placing on record the call details of the mobile phones so taken into custody by the Investigating Officer, .
or not taking into possession the mobile phone of the prosecutrix, but on the fact that the genesis of the prosecution story remains unproven on record by leading evidence worthy of credence.
of
54. It is in this backdrop, we find the Court below not to have correctly and completely appreciated the testimony of the prosecution witnesses. The Court below rt seriously erred in coming to the conclusion that testimony of the prosecution witnesses remained unshattered during the course of cross-examination. In fact, we find the Court below not to have discussed the evidence at all. It presupposed and presumed correctness of the prosecution story and as such proceeded with such assumption. Testimony of the witnesses was accepted as a gospel truth. There is no appreciation or analysis. The Court below erred in holding the abstract of register (Ex.PW-15/A) to have been proven as evidence, worthy of credence. It presumed the signatures hereupon were that of accused Bihari Lal and 'X' (identity not revealed) was the ::: Downloaded on - 15/04/2017 21:59:39 :::HCHP ...29...
prosecutrix, who spent the night in the hotel. The court below found the version of the witnesses against the other accused to be not "much serious". It did not deal .
with the aspect of proper identity of the person who allegedly took the prosecutrix from Theog. It did not deal with the contradictions in the version of the prosecutrix.
Perhaps, what weighed with the Court was the fact that of prosecutrix had no reason to falsely implicate the accused, but then, this fact alone cannot be a reason to convict the accused, on the basis of mere suspicion, more rt so in the absence of any credible evidence.
55. Yes, prosecutrix is a minor and the Courts while dealing with cases of sexual assault have to deal with the statements of the witnesses with sensitivity, but then Court also cannot ignore the contradictions which are glaring, rendering the version to be absolutely uninspiring in confidence, bordering falsehood.
56. Thus, findings of conviction and sentence, returned by the Court below, cannot be said to be on the basis of any clear, cogent, convincing, legal and material piece of evidence, leading to an irresistible conclusion of guilt of accused Bihari Lal.
::: Downloaded on - 15/04/2017 21:59:39 :::HCHP...30...
57. Hence, for all the aforesaid reasons, the appeal is allowed and the judgment of conviction and sentence, dated 20.1.2016/25.2.2016, passed by .
Additional Sessions Judge-cum-Special Judge (CBI), Shimla, Himachal Pradesh, in Sessions Trial No.33-T/7 of 2013/12, titled as State of H.P. v. Bihari Lal and others is set aside and accused Bihari Lal is acquitted of the of charged offences. He be released from jail, if not required in any other case. Amount of fine, if deposited rt by the accused, be refunded to him accordingly. Release warrants be immediately prepared.
Appeal stands disposed of, so also pending application(s), if any.
( Sanjay Karol ), Judge.
( Vivek Singh Thakur ),
March 9, 2017(sd) Judge.
::: Downloaded on - 15/04/2017 21:59:39 :::HCHP