Himachal Pradesh High Court
Cr. A. No. 414/202 vs State Of Himachal Pradesh on 29 December, 2023
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. As. No. 414 & 415/2020 Reserved on: 27.12.2023 Decided on : 29.12.2023
1. Cr. A. No. 414/2020 Ajeeb Shah @ Kala .....Appellant Versus State of Himachal Pradesh ....Respondent
2. Cr. A. No. 415/2020 Imran Khan @ Mithu ....Appellant Versus State of Himachal Pradesh ....Respondent Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 Yes For the Appellants: Ms. Anjali Soni Verma, Advocate.
For the Respondent: Mr. I.N. Mehta, Sr. Additional
Advocate General with Mr.
Navlesh Verma Ms. Sharmila
Patial, Addl. A.Gs. and Mr. J. S.
Guleria, Dy.A.G.
__________________________________________________________________ Justice Tarlok Singh Chauhan, Judge The appellants/convicts have filed the instant appeals against the judgment and order, dated 24.9.2020 respectively passed by the learned Special Judge, Chamba, 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.2
whereby appellant Imran Khan @ Mithu has been convicted and sentenced to undergo - rigorous imprisonment for 3 years and to pay a fine of Rs.20,000/- and in default of payment of fine, simple imprisonment for 2 months under Section 363 of the Indian Penal Code (for short, "IPC"); rigorous imprisonment for 3 years and to pay a fine of Rs.20,000/- and in default of payment of fine, simple imprisonment for 2 months under Section 366 of IPC; rigorous imprisonment for 10 years and to pay a fine of Rs.40,000/- and in default of payment of fine, simple imprisonment for 4 months under Section 376 of IPC; rigorous imprisonment for 10 years and to pay a fine of Rs.40,000/- and in default of payment of fine, simple imprisonment for 4 months under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, "POCSO Act"); whereas appellant Ajeeb Shah @ Kala has been convicted and sentenced to undergo - rigorous imprisonment for 3 years and to pay a fine of Rs.20,000/- and in default of payment of fine, simple imprisonment for 2 months under Section 363 IPC and rigorous imprisonment for 3 years and to pay a fine of Rs.20,000/- and in default of payment of fine, simple imprisonment for 2 months under Section 366 of IPC. 3 The substantive sentences of imprisonment, as imposed against each of the appellants, were ordered to run concurrently.
2 Since both the appeals arising out of the same judgment, therefore, they were taken up together for consideration and are being disposed of by common reasoning.
3 Brief facts of the case are that on 30.7.2016, PW2 Raj Kumar, complainant, reported to the police that his daughter (victim), aged about 17 ½ years, was found missing from her residential house on 15.7.2016. She had gone to sleep after taking her meal, however in the morning, she was not found in the room. Her whereabouts were traced, but despite extensive search, it was not known where she had gone. On 16.7.2016, at about 9.00 P.M., his wife had received a phone call from his daughter, who disclosed that she had solemnized marriage with the appellant Imran Khan and thereafter phone call got disconnected and the mobile phone was later found to be switched off. In search of the victim, when he along with his wife reached the house of his father- in-law, Sikandar, he informed him that appellant Imran Khan 4 had kidnapped the victim to solemnize marriage with her. It was further stated that victim was minor and her date of birth was 16.11.1988 and action be taken against him. 4 After the investigation, charge sheet was filed and the matter was committed to the court of sessions, where charges, as aforesaid, were framed against the appellants. 5 The prosecution examined as many as 24 witnesses in support of its case. Statements of the appellants under Section 313 of Cr.P.C. were recorded, wherein they denied all the incriminating circumstances put to them. 6 The learned Special Judge, after evaluating the oral as well as documentary evidence convicted and sentenced the appellants, as aforesaid and hence, the instant appeals. 7 It is vehemently argued by Ms. Anjali Soni Verma, Advocate, that the findings recorded by the learned Special Judge to the effect that the victim was minor on the date of alleged incident are clearly perverse and further findings that she had been raped are also erroneous as it is clearly a case of "consensual sex".
8 On the other hand, Mr. Navlesh Verma, Additional Advocate General, would argue that the findings recorded by 5 the learned Special Judge are in tune with the oral as well as documentary evidence and given the fact that victim was minor and had been raped, the learned Special Judge has rightly convicted and sentenced appellants and the same warrants no interference.
9 We have heard the learned counsel for the parties and have also gone through the records of the case carefully. 10 The first and foremost question is whether the victim was a minor on the alleged date of incident. 11 The prosecution in order to prove its case examined the victim as PW1, who deposed her date of birth to be 16.11.1998. The prosecution has further relied upon certificate, Ext. PW22/A issued by the Central Head Teacher, Government Primary School, Tundi and certificate of date of birth of the victim, Ext. PW3/A. 12 It is on the strength of aforesaid documents and the statement of the prosecutrix that the prosecution would claim the victim to be minor on the date of alleged incident i.e. 15.7.2016, which would indicate that she was less than 18 years of age on the date of alleged incident. However, the moot 6 question is whether the certificates relied upon the prosecution pertain or can be connected with the victim. 13 Why we observe so is that in case date of birth certificate, Ext. PW3/A is perused, then it would be noticed that name of mother recorded in the said certificate is Chhano Devi and likewise, in the certificate, Ext. PW22/A, the name of mother of the victim is reflected as Meenakshi, whereas name of the mother of the victim admittedly is Sahani Devi, as stated by her while appearing as PW6.
14 That apart, father of the victim while appearing as PW2 in his cross-examination has clearly admitted that name of his wife is Sahani Devi, whereas Meenakshi and Chhano Devi are not his wives.
15 It also needs to be noticed that the date of birth in the register of her school would otherwise not have any evidentiary value without the testimony of the person making entry or the person giving date of birth, as held by the Hon'ble Supreme Court in Birad Mal Singhvi vs. Anand Purohit (1988) Supp. SCC 604, as reiterated in Manak Chand @ Mani vs. the State of Haryana, 2023 (14) SCALE 895, wherein it was observed as under:-
7
9. This Court in Birad Mal Singhvi v. Anand Purohit (1988) Supp SCC 604 had observed that the date of birth in the register of a school would not have any evidentiary value without the testimony of the person making the entry or the person who gave the date of birth.
"14. ...The date of birth mentioned in the scholar's register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar's register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value."
In our opinion, the proof submitted by the prosecution with regard to the age of the prosecutrix in the form of the school register was not sufficient to arrive at a finding that the prosecutrix was less than sixteen years of age, especially when there were contradictory evidences before the Trial Court as to the age of the prosecutrix. It was neither safe nor fair to convict the accused, particularly when the age of the prosecutrix was such a crucial factor in the case.
Secondly, we cannot lose sight of the fact that since age was such a crucial factor in the present case, the prosecution should have done a bone ossification test for determination of the age of the prosecutrix. This has not been done in the present case. On the other hand, as per the clinical examination of the prosecutrix which was done by PW-1, Dr. Kulwinder Kaur on 28.10.2000 and which has also been referred to in the preceding 8 paragraph of the present judgment, we find that the secondary sex characteristics of the prosecutrix were well developed. The doctor in her report mentions that the prosecutrix is a "well built adult female". At another place it mentions "well developed pubic hair" and "external genitalia were fully developed and normal". It then records her age as sixteen years as told to her by the mother of the prosecutrix. The report records that there were no external marks of injury over her breast, neck, face, abdomen and thigh. The report then concludes, inter alia, about her age as under:
"At the time of medical examination of the patient, no force seems to have been used against her. I cannot opine about the age of the patient on the basis of development of her pubic hairs and genitalia etc. The patient was habitual to sexual intercourse because her labia minora was hypertrophied and hymen admitted two fingers."
The doctor has refrained from giving an opinion herself as to the age, but in the same report the age is recorded as sixteen years. Under the facts and circumstances of the case, what was required to be done was a bone ossification test in order to come to some reliable conclusion as to the age of the prosecutrix. This has evidently not been done.
Moreover, it has also come in evidence that the mother of the prosecutrix too had said that her daughter was sixteen years of age."
916 In the given facts and circumstances of the case, we are of the considered view that as regards age of the victim, no definite conclusion can be made given the fact that the doctor (PW20), who had medically examined the victim, had not carried out any ossification test to determine the age of the prosecutrix. Thus, it can conveniently be held that the prosecution has not successfully proved that the victim was less than 18 years of age on the date of alleged commission of crime. Therefore, the benefit ought to have been given to the appellants on the same analogy as given in Manak Chand's case (supra). It shall be apt to reproduce para 11 thereof, which reads as under:-
"11. Under these facts, and on the weight of the evidence placed before the Trial Court, we are of the considered opinion that as regarding the age of the prosecutrix, no definite conclusion could have been made. The prosecution has not successfully proved that the prosecutrix was less than sixteen years of age at the time of the alleged commission of the crime, and therefore the benefit ought to have been given to the appellant. Secondly, as to the factum of rape itself, we are not convinced that an offence of rape is made out in this case as it does not meet the ingredients of Rape as defined under Section 375 of the IPC, as we do not find any 10 evidence which may suggest that the appellant, even though had sexual intercourse with the prosecutrix, it was against her will or without her consent."
17 Now coming to the question regarding the case being one of consensual sex and not rape, what is required to be borne in mind in cases of instant kind has been eloquently set out in Manak Chand's case (supra) and the relevant observations, as contained in para 5 thereof, read as under:-
"5. The evidence of a prosecutrix in a case of rape is of the same value as that of an injured witness. It is again true that conviction can be made on the basis of the sole testimony of the prosecutrix. All the same, when a conviction can be based on the sole testimony of the prosecutrix, the courts also have to be extremely careful while examining this sole testimony as cautioned in State of Punjab v. Gurmit Singh, (1996) 2 SCC 384:
"If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."11
This was reiterated by this Court in Sadashiv Ramrao Hadbe v. State of Maharashtra and Another (2006) 10 SCC 92:
"It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix."
Both the prosecutrix as well as the accused have a right for a fair trial, and therefore when the statement of the prosecutrix does not inspire confidence and creates a doubt, the court must look for corroborative evidence. Relying upon the case of Gurmit Singh (supra) this court in Raju and others v. State of Madhya Pradesh (2008) 15 SCC 133 held as under:
"10. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the court.
11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be 12 protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."
18 Now, the moot question is whether the testimony of the prosecutrix in the instant case inspires confidence. 19 The victim appeared as PW1 and deposed that she knew both the appellants. Appellant Imran Khan had met her in the hospital at Sulyali, where she had gone about 5-6 months ago to get medicines along with her maternal aunt. Imran Khan had taken her mobile number and then they started talking to each other over the mobiles. She further deposed that the appellant Imran Khan had been proposing her for marriage, but at that time, she had not completed 18 years of age. According to her, she was already engaged with one Manish and her marriage was fixed in the month of November 2016. She further deposed that on 5.7.2014, she was called by the appellant Imran Khan on the road at village 13 Bharadi. She had gone there around 11.00 P.M. The appellant Imran Khan was accompanied by his brother-in-law Ajeeb Shah and both of them had come on motorcycle. She then accompanied both of them on the motorcycle to the house of Imran Khan at village Aund. On that very night, after hiring vehicle, both the appellants had taken her to village 32 Miles where they had stayed at the house of appellant Ajeeb Shah. They stayed there for about 15-16 days and there the appellant Imran Khan is stated to have done "wrongful act" with her, but she stated that she had not disclosed this fact to anyone as she had been asked not to do so by the appellant Imran Khan. Thereafter, both the appellants had taken her to Ludhiana where they had stayed in the quarter. There also, the appellant Imran Khan had done "wrongful act" with her. 20 On being cross-examined, she has an entirely a different story to narrate when she stated that the appellants had come in a van along with her, there were 3-4 other persons sitting in the van. She further stated that along with Imran Khan, his mother and sister were also in the van. She admitted that while she remained in the house at 32 Miles, there were a number of houses adjacent to the house where 14 she had stayed and further admitted that while going to Ludhiana they had stopped in between for having food and tea. She further admitted that there was one old lady accompanying the appellants while going to Ludhiana. She further stated that she had been residing at Sadwan and house of her maternal grant parents was nearby the house of appellant Ajeeb Shah where she had been residing . 21 Now, since the statement of the victim does not inspire much confidence as she has given entirely a different version, therefore we will have to look for corroboration. 22 Raj Kumar, who is father of the victim, appeared as PW2 and did not support the prosecution's case and was in fact declared hostile. He only supported the case of the prosecution to the extent that his daughter had gone missing on 15.7.2016 and then he had searched for her and was told by his in-laws that the victim had gone with the appellant Imran Khan. He further stated that he had not suspected anyone for having kidnapped the victim. On being cross- examined, this witness admitted that on 16.7.2016, he had received a phone call from the victim that she had solemnized marriage with the appellant Imran Khan.
1523 Likewise, mother of the victim, Sahani Devi, who appeared as PW6, did not support the case of the prosecution and was declared hostile. She only supported the case of the prosecution to the extent that her daughter had gone missing and left the room with two boys during the night time and further stated that on that night, her daughter had been sleeping with her younger brother namely Anil. In her cross- examination, she admitted that house of the appellant Ajeeb Shah was nearby the house of her parents in village Sadwan. 24 Let us now turn to the testimony of younger brother of the victim, who appeared as PW12 and he too supported the case of the prosecution only to the extent that on the relevant day, when his sister (victim) had gone missing, he had been sleeping with her in the room. On the next day, he woke up and found that the victim was not in the room and he accordingly informed the parents. Even brother of the victim was thereafter declared hostile and did not support the case of the prosecution. He even did not identify the appellants in the Court.
25 Thus, what is clearly evident from the testimony of the prosecutrix as well as her family members i.e. father, 16 mother and brother of the victim is that the victim was not kidnapped, but she of her own free will and volition had left with the appellants and thereafter stayed with the appellant Imran Khan at different places from 15.7.2016 upto 28.8.2016 when the appellants came to be arrested.
26 Even while she was residing in the house of the appellant Ajeeb Shah, she made no effort to reach her maternal grandparents, who were residing nearby in the same village. The victim did not complain enroute or even for that matter, at Ludhiana, which clearly establishes that she after voluntarily having accompanied both the appellants had resided at different places with appellant Imran Khan and the physical relations, if at all established, cannot be termed to be "rape". For it is well settled that consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side.
27 There is a clear distinction between "rape" and "consensual sex" and going by the facts and circumstances of the instant case, physical relations established between the 17 appellant Imran Khan and the prosecutrix over a period of about 40 days without there being protest or complain from the victim's side can, by no stretch of imagination, be termed as "rape".
28 Even here, we may enter a caveat that when the victim was medically examined by PW20 Dr. Minakshi on 29.8.2016, the victim had got recorded her history of indecent assault. According to her, the appellant Imran Khan had taken her away on 15.7.2016 and she remained with him from 15.7.2016 to 28.8.2016 and during this period, he sexually assaulted her many times and lastly on 27.8.2016. She further disclosed that she had not changed her clothes and taken bath since then.
29 Now when she was medically examined, specimen of vaginal swabs, vaginal slides, clothes worn by her were handed over to the police after sealing in a parcel for chemical analysis and later on when the RFSL report was produced before PW20, it was found that no human blood or semen was detected in the specimen taken vide Ext. PW20/C. 30 On being cross-examined, PW20, as observed above, clearly stated that she had not conducted any test of 18 the victim for age determination and she also admitted that there were chances of injury in case anyone had committed penetrative sexual assault forcibly.
31 In the instant case, no injury, wound or scratch were seen anywhere on the person of the victim, which in the given facts and circumstances, clearly belies the case of the prosecution given the fact that the victim remained with appellant Imran Khan from 15.7.2016 to 28.8.2016. 32 Thus, we are not at all convinced that offence of rape is made out in the instant case as it has not met the ingredients of rape as defined in Section 375 IPC and as we do not find any evidence, which may suggest that the appellant Imran Khan (though may be assumed to have sexual intercourse with victim) had raped the victim. 33 As regards allegations of kidnapping, it was the victim, who of her own accord had left her house and accompanied the appellants and stayed at various places without any complain or protest.
34 In view of the aforesaid discussions and in the given facts and circumstances, it can conveniently be held that the prosecution has not been able to prove its case against the 19 appellants beyond reasonable doubt. Therefore, the impugned judgment and order of conviction and sentence passed by the learned Special Judge are set aside. Consequently, the appellants, in the instant case, are ordered to be released immediately, if not required in any other case. 35 The Registry is directed to prepare release warrant of the appellant. In view of the provisions of Section 437A Cr.P.C., each of the appellants is directed to furnish personal bond in the sum of Rs.25,000/- with one surety of the like amount to the satisfaction of the learned trial court, which shall be effective for a period of six months with a stipulation that in an event of an SLP being filed against this judgment or on grant of the leave, the appellant on receipt of notice thereof shall appear before the Hon'ble Supreme Court. 36 The instant appeal is allowed in the aforesaid terms. Pending application(s), if any, also stands disposed of.
KALYAN Digitally signed by KALYAN CHAND AWASTHI DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL CHAND PRADESH SHIMLA, Phone=068e8173504da3a6d6e56308707033e63c 7253b4e6eb0f2a8f0285cdb5737f49, PostalCode=171001, S=Himachal Pradesh, (Tarlok Singh Chauhan) SERIALNUMBER=7fe19e609f07c9899a24f7f6174 AWASTH 4de9a7a35cc62f67431d8415b71bf186fbd4f, CN=KALYAN CHAND AWASTHI Reason: I am approving this document Location:
Judge Date: 2023-12-29 11:26:50 I (Satyen Vaidya) 29.12.2023 Judge (pankaj)