Himachal Pradesh High Court
State Of Himachal Pradesh vs Santosh Kumar on 2 August, 2016
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.208 of 2010 Judgment reserved on: 19.7.2016 .
Date of Decision: August 2, 2016 State of Himachal Pradesh ...Appellant.
Versus
Santosh Kumar ...Respondent.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
of The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting? Yes. 1For the Appellant rt : Mr. V.S. Chauhan, Additional Advocate General and Mr. Vikram Thakur, Deputy Advocate General.
For the Respondent : Mr. N.K. Thakur, Senior Advocate,
with Ms Jamuna Thakur,
Advocate.
Sanjay Karol, Judge
State has appealed against the judgment dated 8.10.2009, passed by learned Additional Sessions Judge, Fast Track Court, Chamba District, Chamba, Himachal Pradesh, in Sessions Trial No.12/2009, titled as State of Himachal Pradesh v. Santosh Kumar, challenging the acquittal of respondent Santosh Kumar (hereinafter referred to as the accused), who stands charged for Whether reporters of the local papers may be allowed to see the judgment?
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having committed an offence punishable under the provisions of Section 376 of the Indian Penal Code.
2. Prosecutrix, who was born on 10.5.2004, .
allegedly was subjected to forceful sexual assault by the accused, on 10.9.2008. Trial Court has acquitted the accused on the following grounds: (a) Statement of the prosecutrix (PW-6) is self-contradictory and uninspiring in of confidence, (b) she was tutored by her father (PW-3) to depose against the accused, (c) medical evidence did not rt reveal any corresponding injuries on the person of the accused, (d) injury sustained by the prosecutrix on her private parts, even as per the Expert (PW-11; Ex.PW-
11/A), could be as a result of her falling on a wooden plank, and (e) report of the Chemical Examiner (Ex.PX) belies the version of the prosecution of semen noticed on the body(legs) of the prosecutrix.
3. Correctness of the findings retuned by the trial Court is the subject matter of the present appeal.
4. Having heard learned counsel for the parties as also perused the record, we are of the considered view that the trial Court seriously erred in correctly and completely appreciating the testimonies of the ::: Downloaded on - 15/04/2017 20:56:30 :::HCHP ...3...
prosecution witnesses, resulting into serious miscarriage of justice. We may not be misunderstood to substitute our view with that of the trial Court, for in our considered .
view the trial Court got swayed with that part of the testimony of the prosecutrix which benefitted the accused, and all this after ignoring the other part of her testimony duly corroborated by her parents and uncle.
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5. A Constitution Bench of the Hon'ble Supreme Court of India in M.G. Agarwal v. State of Maharashtra, rt AIR 1963 SC 200, has held that in dealing with an appeal against the judgment of acquittal, the appellate Court should normally be slow in disturbing the findings of fact recorded by the trial Court. However, there is a caveat.
Such findings have to be based on proper and complete appreciation of evidence. Jurisdiction and the power of the appellate Court is also to reappreciate the evidence but with caution. The Court is not to substitute its own opinion with that of the trial Court.
6. In Madan Gopal Makkad v. Naval Dubey and another, (1992) 3 SCC 204, the Apex Court held the scope of the Court in an appeal against acquittal in the following manner:
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"26. In Wilayat Khan v. State of U.P., AIR 1953 SC 122; this court while examining the scope of S. 417 and 423 of the old Code pointed out that even in appeals against acquittal, the powers of the High court are as wide as in appeals from .
convictions. See also (1) Surajpal Singh v. State, AIR 1952 SC 52, (2) Tulsiram Kanu v. State, AIR 1954 SC 1, (3) Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217, (4) Radha Kishan v. State of U.P., AIR 1963 SC 822, holding that an appeal from acquittal need not be treated different from an appeal from conviction; (5) Jadunath Singh v. State of U.P., (1971) 3 SCC 577, (6) Dharam Das v. State of U.P., (1973) 2 of SCC 216, (7) Barati v. State of U.P., (1974) 4 SCC 258, and (8) Sethu Madhavan Nair v. State of Kerala, (1975) 3 SCC 150."
7. rt Age of the prosecutrix (five years) is not in dispute. In any case, it stands established through the testimony of Shri Dinesh Singh (PW-7).
8. It is a matter of record, as has come in the testimony of Constable Bimla (PW-5), ASI Hans Raj (PW-
12) and Inspector Pritam Singh (PW-13), the Investigating Officers, who conducted the investigation, that prosecutrix was got medically examined from Dr. Kavita Gupta (PW-11), who found the following injuries on her private part:
"There is laceration seen on right side of labia majora. Pain and tenderness was present.
Laceration was seen on fossa,
navicularis.
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Conjestion was present on vaginal
introitus. Bleeds on touch."
9. Though the doctor could not certify that the .
injuries were as a result of sexual assault committed by the accused, but did not rule out the possibility of the prosecutrix being subjected to rape. But then the doctor has also not ruled out the possibility of the victim sustaining injuries as a result of fall on a wooden plank.
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10. For proving the charge of rape, prosecution seeks reliance upon the testimonies of prosecutrix (PW-
rt
6), her mother Smt. Gujari (PW-2), father Shri Prehlad (PW-3) and uncle Shri Chatro (PW-1).
11. At this stage, it would be appropriate to discuss the defence taken by the accused. Jagdev (DW-
1) stands examined to establish strained relationship between the family of the accused and the prosecutrix.
The cause being, pendency of litigation, both civil and criminal. Such defence also stands put to the witnesses.
12. Now significantly, none of the witnesses have disclosed either the number or the place where such litigation is pending. Also what is the subject matter of dispute, remains a closely guarded secret. Prosecution witnesses have denied any hostility/animosity/pendency ::: Downloaded on - 15/04/2017 20:56:30 :::HCHP ...6...
of any litigation. There is not even an iota of evidence to such effect. Accused wants the Court to believe that Lachho Ram, father of Prehlad, was involved in a murder .
case, in which Paras Ram, father of Gian Chand (father of the accused), had testified against Lachho Ram. Even such fact has not been proven on record. When did such murder take place? Whether the case pertained to the of period prior or subsequent to the incident in question?
and what did the witness depose? remain undisclosed.
13. rtHence, defence of false implication, account of prior hostility, cannot be said to have been on probablized, even remotely, on record.
14. Well, this fact would not be sufficient enough to hold the accused guilty for the offence in question.
15. What needs to be considered is as to whether the prosecutrix and her close relatives have deposed the truth in Court and as to whether their testimonies are inspiring in confidence. Also, whether such witnesses are reliable and worthy of credence.
16. Smt. Gujari categorically states that on the date of the incident, after leaving her daughter with Chatro (grandfather in relation), she had gone for ::: Downloaded on - 15/04/2017 20:56:30 :::HCHP ...7...
collecting vegetables from the field. Her husband Prehlad (PW-3) had gone to the jungle for collecting fuel wood. At about 4 p.m., when she returned home, she .
noticed blood oozing out from the private parts of the prosecutrix. Also stains of semen were found on her legs.
Prosecutrix disclosed that while she was playing, accused took her inside his cattle shed, where, after laying her on of a wooden plank, sexually assaulted her. The matter came to be reported to the police with the return of her
17. rt husband, at about 6 p.m. From her cross-examination, it is evidently clear that the parties are neighbours. This witness was confronted with her previous statement (Ex.PW-12/D), wherein the factum of prosecutrix having been subjected to rape by the accused is not so recorded. To this extent, one can find there is an improvement, but then the factum of the prosecutrix, left with Chatro remains undisputed, which version also stands corroborated by him. Absence of narration of fact in her previous statement can clearly be attributed to the Police official, for we find such version to have been corroborated by ::: Downloaded on - 15/04/2017 20:56:30 :::HCHP ...8...
other contemporaneous material and ocular version on record.
18. Importantly, Chatro has also testified, that .
prosecutrix narrated the incident. He is categorical, and about such fact there is no contradiction, that when he called for the prosecutrix, accused brought her, holding her in his arms from his cowshed. She was crying and of blood was oozing out from her private parts. Also there is reference of semen on her legs. He clarifies that when rt Gujari returned at about 4 p.m., the incident was narrated to her.
19. Prehlad, father of the prosecutrix, also corroborates the version of Gujari, by stating that at about 6 p.m., when he returned from the jungle, he learnt about the incident and immediately went to lodge the report.
20. This Court cannot ignore the fact that the incident took place in the remotest corner of the State.
Parties are rustic villagers and had to travel long distance for reporting the matter. They are not familiar with the procedures of law.
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21. Significantly, when we peruse the first statement so recorded by the police, we notice the facts, as narrated in the Court, to have been disclosed at the .
first instance. FIR No.73/08, dated 10.9.2008 (Ex. PW-
3/A), registered at Police Station Kihar, District Chamba, Himachal Pradesh, is on record to this effect. There is neither any contradiction, improvement, discrepancy nor of variation in the narration of facts so disclosed to the police and as stated in Court. The FIR came to be rt registered at 7.30 p.m. and it is not the suggested case of the accused that there was either pre-determination or prior consultation before the report came to be lodged.
22. Prosecutrix is a child. It is now well settled that testimony of a child witness can be referred to and relied upon for bringing home the guilt of the accused.
23. We may add that the Court itself had recorded its satisfaction and satisfied the test and principles laid down under Section 118 of the Evidence Act. Test laid down by the Apex Court in Rameshwar vs. The State of Rajasthan (AIR 1952 SC 54) stands fully satisfied in the instant case.
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24. The Apex Court in Gentela Vijayavardhan Rao & Anr. vs. State of A.P. (1996) 6 SCC 241 has held thus:-
"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 issue, is so connected with the fact in issue "as to form part of the same transaction" becomes relevant by itself. This of rule is, roughly speaking an exception to the general rule that hearsay evidence is not rtadmissible. The rationale in making certain statement on 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 part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or atleast 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."
25. In Golla Yelugu Govindu vs. State of Andhra Pradesh (2008) 16 SCC 769, the Apex Court, while reiterating its earlier view, held that the Indian Evidence ::: Downloaded on - 15/04/2017 20:56:30 :::HCHP ...11...
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 of questions, because of tender years, extreme old age, disease- whether of mind, or any other cause of the same rt kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. It further held that:
"....It further held that 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)."
(Emphasis supplied)
26. In Dattu Ramrao Sakhare v. State of Maharashtra (1997 (5) SCC 341) it was held as follows:
"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 ::: Downloaded on - 15/04/2017 20:56:30 :::HCHP ...12...
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 of competent witness and there is no likelihood of being tutored."
27. rtIn State of Rajasthan vs. Om Parkash (2002) 5 SCC 745, the Apex Court held that:-
".......Cases involving sexual molestation and assault require a different approach-a sensitive approach and not an approach which a court may adopt in dealing with a normal offence under penal laws....."
(Emphasis supplied)
28. In the very same decision, the Court observed that child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of the sexual pleasure. There cannot be anything more obscene than this. It is a crime against humanity. Many such cases are not even brought to light because of social stigma attached thereto. Children need special care and protection. In such cases, responsibility on the ::: Downloaded on - 15/04/2017 20:56:30 :::HCHP ...13...
shoulders of the courts is more onerous so as to provide proper legal protection to these children. Their physical and mental immobility call for such protection. Children .
are the natural resource of our country. They are country's future. Hope of tomorrow rests on them. In our country, a girl child is in a very vulnerable position and one of the modes of her exploitation is rape besides other of mode of sexual abuse. These factors point towards a different approach required to be adopted.
29. rtIn 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 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.
30. In Radhakrishna Nagesh v. State of Andhra Pradesh, (2013) 11 SCC 688, the apex Court held that:
"33. It will be useful to refer to the judgment of this Court in the case of O.M. Baby v. State of Kerala, (2012) 11 SCC 362, where the Court held as follows:-::: Downloaded on - 15/04/2017 20:56:30 :::HCHP
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"17. ..... '16. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says .
that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the of case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in rt the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the 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. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court ::: Downloaded on - 15/04/2017 20:56:31 :::HCHP ...15...
should ordinarily have no hesitation in accepting her evidence.
18. We would further like to observe that while appreciating the evidence of the prosecutrix, .
the court must keep in mind that in the context of the values prevailing in the country, particularly in rural India, it would be unusual for a woman to come up with a false story of being a victim of sexual assault so as to implicate an innocent person. Such a view has been expressed by the judgment of this Court in the case of State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 and has found reiteration in a of recent judgment in Rajinder @ Raju v. State of H.P., (2009) 16 SCC 69, para 19 whereof may be usefully extracted:
rt '19. In the context of Indian culture, a woman - victim of sexual aggression - would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the courts must always keep in mind that no self-respecting woman would put her honour at stake by falsely alleging commission of rape on her and therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for. But for high improbability in the prosecution case, the conviction in the case of sex crime may be based on the sole testimony of the prosecutrix. It has been rightly said that corroborative evidence is not an imperative component of judicial credence in every case of rape nor the absence of injuries on the private parts of the victim can be construed as evidence of consent.' "
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31. In Indian Woman Says Gang-Raped on Orders of Village Court Published in Business and Financial News Dated 230102014, In Re, (2014) 4 SCC 786, the Apex .
Court has highlighted the need for having an effective State police machinery for curbing the menace of rape, for such crime is not only in contravention of the domestic laws, but is also in direct breach of obligations of under International Law, treaties whereof stand ratified by the State, which is under an obligation to protect its
32. rt women from any kind of discrimination.
The Apex Court has highlighted the need for prompt disposal of cases of crime against women and children. (Rajkumar v. State of Madhya Pradesh, (2014) 5 SCC 353).
33. In Narender Kumar v. State (NCT of Delhi), (2012) 7 SCC 171, the apex Court has cautioned the Court to adopt the following approach:
"The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of the witnesses which are not of a substantial character."
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34. The Apex Court in Munna v. State of Madhya Pradesh, (2014) 10 SCC 254, has reiterated the principle that testimony of prosecutrix is almost at par with an .
immediate witness and can be acted upon without corroboration.
35. In the light of the aforesaid analysis of law, we proceed to examine the testimony of the prosecutrix.
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36. After interacting with the prosecutrix, the trial Court found the prosecutrix competent to depose in rt Court. For better appreciation, we deem it appropriate to reproduce her testimony in toto:
"My mother had gone to bring potato from the fields. My father had gone to collect fuel wood. I was in the house of my grand father. I do not know the name of my grand father but he is Bittu's father. Santosh, accused present in the court took me to the cattle shed. He made me to lay on the wooden plank and thereafter he did nothing. The witness is indicating towards her private part and saying that the accused laid on me. I felt pain on my private part. Blood started oozing from my private part.
XX XX (By Shri Sai Singh, Adv. counsel for accused) On that day Anju was playing with me. Anju was not accompanying me when the accused allegedly had taken me to cattle shed. Suman was not with me on that day as she was not feeling well on that day and she was at Chamba. Both Anju and Anu had gone with their cows. Annu who was playing with me had ::: Downloaded on - 15/04/2017 20:56:31 :::HCHP ...18...
left the place and I do not know where she had gone. My mother had returned to house after taking potato. I used to sleep with my father. I obey my father. My papa had told me to make statement in the court today. I have given .
statement in the court today at the instance of my father. It is correct that blood started oozing when I had fallen while playing.
At this stage, the learned PP says that he wants to reexamine the witness. Request is allowed. Re-examination by the learned PP. XX XX (By learned PP for the State) of Q How did you sustain injury on your private part?
Ans Accused Santosh caused injury to me on rtmy private part as he laid on me.
XX XX (Shri Jai Singh, Adv. counsel for accused) I had fallen on the date of incident also. I had fallen on the wooden plank on that day.
Q Where did you sustain injury when you had fallen?
Ans The witness is indicating towards her private part."
(Emphasis supplied)
37. We do not find the prosecutrix to be a tutored witness. She is a child, who had to be brought to the Court by her family members. Her statement in Court so made is at the instance of the father. Well this would not mean that she is a tutored witness. Her father brought her to the Court. She had to be told the purpose for the same. Her statement had to be recorded. Her statement ::: Downloaded on - 15/04/2017 20:56:31 :::HCHP ...19...
has to be understood and construed in this backdrop.
She does not categorically state that prior to recording of such statement, her father had told her to state what she .
has deposed. Truthfully, she has disclosed everything in the most natural manner. All that transpired on the fateful day stands narrated by her.
38. She is categorical that the accused took her of inside the cattle shed, where, after laying her on a wooden plank laid on her, as a result of which she rt sustained injuries. Also blood started oozing out. In her cross-examination, no doubt, she also admits that she sustained injuries when she fell on a wooden plank, but then both events are of the same day and the witness is telling the truth. Injuries sustained are as a result of rape and falling on the wooden plank. At best, her version of oozing of blood can be an exaggeration or improvement, but then her version of the accused having laid her on a wooden plank and then himself laid on her cannot be said to be false or shattered in any manner. We are dealing with a case of a child, where mere exertion of pressure against the private part itself can result into an injury.
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Hence, statement of the prosecutrix cannot be said to be self-contradictory.
39. One cannot lose sight of the fact that .
prosecutrix had to be carried all the way from her village to the hospital. Semen may have been wiped off from her legs. Absence of semen on the vaginal swab, so collected by the doctor, cannot be a ground to disbelieve of the prosecution case.
40. It is not the requirement of law that as a rt result of the sexual act, accused must also suffer corresponding injuries on his private part.
41. Also, on chemical examination, blood was found on the pyjama (lower) of the accused. As per medical examination of the accused, there being no injury on any part of his body, he has failed to explain the presence of blood on his pyjama.
42. Thus, 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 reliable evidence on record to this effect. The circumstances stand conclusively proven by unbroken ::: Downloaded on - 15/04/2017 20:56:31 :::HCHP ...21...
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 stands falsely implicated or that his defence is probable or that the evidence led by the prosecution is inconsistent, unreliable, untrustworthy and unbelievable. It cannot be of said that the version narrated by the witnesses in Court is in a parrot-like manner and hence is to be disbelieved. In rt fact, witnesses are reliable and their testimonies inspiring in confidence.
43. Hence, 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.
44. Thus, the 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 and convict him for having committed offence, punishable under the provisions Section 376 of the Indian Penal Code, for having committed rape on a minor girl.
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45. Bail bonds furnished by the accused-convict stand cancelled. For the purpose of hearing him on the quantum of sentence, the appeal be listed on 29.8.2016.
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He be produced in the Court on the said date. Copy of the judgment be supplied to the accused, free of cost.
List on 29.8.2016.
of (Sanjay Karol), Judge.
rt (Ajay Mohan Goel),
August 2, 2016(sd). Judge.
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