Himachal Pradesh High Court
State Of Himachal Pradesh vs Ravi Kant Son Of Surya Kant & Others on 22 April, 2016
Bench: Sanjay Karol, P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, AT
.
SHIMLA:
Cr. Appeal No. 732 of 2008.
Judgment reserved on: 15.3.2016.
Date of Judgment: April 22, 2016
________________________________________________________
of
State of Himachal Pradesh ....Appellant.
Vs.
Ravi Kant son of Surya Kant & others
rt ....Respondents
________________________________________________________
Coram
The Hon'ble Mr. Justice Sanjay Karol, J.
The Hon'ble Mr. Justice P.S. Rana, J.
Whether approved for reporting?1 Yes.
____________________________________________________________ For the Appellant: Mr. V.S. Chauhan Additional Advocate General with Mr. Kush Sharma Deputy Advocate General and Mr.J.S.Guleria Assistant Advocate General.
For the Respondents: Mr. Anup Chitkara Advocate.
1Whether Reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 2P.S.Rana, Judge .
JUDGMENT: Present appeal is filed against the judgment passed by learned Sessions Judge Kinnaur Sessions Division at Rampur Bushehr in sessions trial No. 16 of 2005 title State of H.P. versus Ravi Kant and another.
of Brief facts of the case.
2. It is alleged by prosecution that on 12.5.2004 at 1.30 AM night at Ketra (Sangla) accused persons in rt furtherance of common intention trespassed into the house of prosecutrix and committed rape upon the prosecutrix. It is alleged by prosecution that accused persons in furtherance of common intention also attempted to commit rape upon another prosecutrix. It is alleged by prosecution that at the same time date and place accused persons in furtherance of common intention outraged the modesty of prosecutrix. It is alleged by prosecution that accused persons in furtherance of common intention voluntarily caused beatings to both prosecutrix and caused simple hurt to both prosecutrix. It is alleged by prosecution that FIR Ext.PW1/A was recorded and both prosecutrix identified accused persons and photographs Ext.PW19/A-1 to Ext.PW19/A-5 also obtained and site plan ::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 3 Ext.PW20/A also prepared. It is alleged by prosecution that .
one cap Ext.P2 also recovered at the spot and took into possession vide seizure memo. It is alleged by prosecution that MLC of co-accused persons namely Ravi Kant, Shiv Dev and Raj Kumar and MLC of both prosecutrix obtained. It is of alleged by prosecution that co-accused Shiv Dev medically examined by PW5 Dr. Atul Sood and as per MLC Ext.PW5/A accused was found capable of performing sexual intercourse rt and sample of semen of accused took into possession by medical officer and handed over to investigating agency. It is alleged by prosecution that PW6 Dr. Ashish conducted medico legal examination of prosecutrix and found six injuries upon body of prosecutrix in the shape of abrasions,bruise and nature of injuries were simple in nature. It is alleged by prosecution that MLC of prosecutrix is Ext.PW6/A. It is alleged by prosecution that PW6 Dr. Ashish also conducted medical examination of co-accused Ravi Kant and he issued MLC Ext.PW6/B and accused was found capable of performing sexual intercourse. It is alleged by prosecution that PW7 Dr. Parveen Singh conducted medico legal examination of accused Raj Kumar and issued MLC ::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 4 Ext.PW7/A. It is alleged by prosecution that disclosure .
statement of co-accused Shiv Dev Ext.PW8/A under Section 27 of Indian Evidence Act recorded and disclosure statement of co-accused Raj Kumar Ext.PW2/A was also recorded under Section 27 of Indian Evidence Act. It is alleged by of prosecution that disclosure statement of co-accused Ravi Kant under Section 27 of Indian Evidence Act Ext.PW17/A was also recorded. It is alleged by prosecution that chemical rt analyst reports Ext.PA and Ext.PB also obtained.
3. Charge framed by learned Sessions Judge Kinnaur at Rampur Bushehr against accused persons under Sections 452 read with section 34 IPC, 376 read with section 34 IPC and under section 376 IPC read with section 511 IPC, 354 and 323 IPC read with Section 34 IPC on dated 28.4.2007. Accused persons did not plead guilty and claimed trial.
4. Prosecution examined twenty oral witnesses in support of its case and also tendered documentary evidence.
5. Learned trial Court acquitted all accused persons. Feeling aggrieved against the judgment passed by learned trial Court State of H.P. filed present appeal.
::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 56. Court heard learned Additional Advocate General .
appearing on behalf of the appellant and learned Advocate appearing on behalf of the respondents and also perused the entire record carefully.
7. Following points arises for determination in the of present appeal:-
Point No. 1Whether judgment of learned Trial Court is rt perverse and based upon non appreciation of oral and documentary evidence properly as mentioned in memorandum of grounds of appeal?Point No. 2
Final Order.
8.Findings on point No.1 with reasons.
8.1. PW1 prosecutrix aged 50 years has stated that she lived in village Gangarang along with her daughter and three grandsons who are minors aged about 6/7 years. She has stated that her husband is living in U.P. and further stated that there was temporary electricity connection in Dhara (Residential room). She has stated that she is illiterate and about three years back she and her family members slept at about 9 PM. She has stated that at about 11/11.30 ::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 6 PM when she was sleeping on the ground and when her .
daughter was sleeping on the cot then two persons came and one of them entered into the Dhara (Residential room) through door and other person remained standing just at the entrance door of residential room. She has stated that she of woke up and her daughter tried to switch on the electric bulb. She has stated that in the light she saw co-accused.
She has stated that co-accused Shiv Dev caught hold her rt daughter and threw her daughter outside the Dhara (Residential room). She has stated that co-accused caught hold of her from neck and made her to lay on the ground and thereafter raped her forcibly. She has stated that co-accused who committed rape upon her in the room is co-accused Ravi Kant. She has stated that co-accused who was standing at the entrance of door was co-accused Shiv Dev. She has stated that she saw that co-accused Shiv Dev caught hold of her daughter from throat and forced her to lay on ground.
She has stated that she caught hairs of co-accused Shiv Dev and pulled him. She has stated that co-accused Shiv Dev was attempting to commit rape upon her daughter. She has stated that co-accused Shiv Dev had given her fist blow ::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 7 which hit her and by that time her daughter ran away from .
the place for help to the house of Basant Ram. She has stated that thereafter she went in search of her daughter and thereafter co-accused Shiv Dev caught hold of her and committed rape upon her. She has stated that she received of injuries upon whole body and her daughter also received injuries on whole body. PW1 also identified co-accused Shiv Dev in Court. She has stated that broken bangles and cap rt took into possession vide memos Ext.PW1/B and Ext.PW1/C. She has stated that thereafter she was also medically examined in District Hospital Rekong Peo. She has stated that investigating agency took into possession one woolen shirt and trouser. She has stated that photographs also took into possession by investigating agency. She has denied suggestion that she does not know the names of accused persons. She has denied suggestion that cap Ext.P2 is belonging to her son-in-law. She has denied suggestion that co-accused Ravi Kant and co-accused Shiv Dev did not commit any sexual intercourse with her.
8.2 PW2 co-prosecutrix aged 28 years has stated that on 11.5.2004 she was living in house of her mother ::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 8 along with her three sons. She has stated that she and her .
family members slept at about 9 PM. She has stated that at 11/11.30 PM during night there was sound of door opening.
She has stated that she immediately woke up and tried to switch on the electric light. She has stated that when light of was on then in light she saw that one co-accused was standing at the door and another co-accused entered into residential room. She has stated that co-accused who rt entered into the room caught hold her and threw her outside the residential room. She has stated that co-accused Ravi Kant pounced upon her mother and caught hold her from her neck inside the Dhara (Residential room). She has stated that co-accused Shiv Dev tried to strangulate her. She has stated that co-accused Shiv Dev intended to commit rape upon her and tried to remove her clothes. She has stated that after 5-10 minutes her mother came and caught hold of co-accused Shiv Dev. She has stated that thereafter co-
accused Shiv Dev had given fist blow to her mother and in the meantime she rescued herself from clutches of co-
accused Shiv Dev and ran towards the house of Basant Ram and knocked the door of Basant Ram but he did not open the ::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 9 door. She has stated that thereafter co-accused Shiv Dev .
came and tried to drag her and she sustained injuries in her hand. She has stated that thereafter co-accused Shiv Dev dragged her upto field. She has stated that thereafter co-
accused Shiv Dev had placed his hands in her mouth and of was trying to commit the criminal offence but in the meanwhile his hands slipped from her mouth and she cried and thereafter her mother had scuffled with co-accused Shiv rt Dev and thereafter she was rescued and thereafter she went to the house of Lama. She has stated that thereafter she knocked the door of Lama and told the Lama to open the door and thereafter Lama opened the door and she told Lama about incident and also told Lama that her mother was caught by accused. She has stated that thereafter she searched her mother and found her mother in field and further stated that thereafter accused left the place. She has stated that she sustained injuries upon her knee and other parts of body. She has stated that co-accused Shiv Dev told that he would murder her. She has stated that she identified co-accused Shiv Dev from his face, clothes and voice. She has stated that co-accused Shiv Dev intended to commit rape ::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 10 upon her person. She has stated that her mother disclosed .
that first co-accused Ravi Kant had committed rape upon her mother in Dhara (Residential room) and thereafter co-
accused Shiv Dev committed rape upon her mother. She has stated that investigating agency visited the Dhara of (Residential room) and broken bangles and cap were found inside Dhara (Residential room). She has stated that cap was worn by co-accused Ravi Kant at the relevant time. She has rt stated that there were also hairs in cap and same were took into possession by police vide seizure memos Ext.PW1/B and Ext.PW1/C which bears her signatures. She has stated that cap Ext.P2, hair Ext.P1 and broken bangles Ext.P3 were took into possession by police. She has denied suggestion that co-
accused Raj Kumar had also dragged her. She has denied suggestion that co-accused Raj Kumar had tried to commit rape upon her person. She has denied suggestion that she intended to save co-accused Raj Kumar. She has denied suggestion that cap Ext.P2 belongs to her husband. She has denied suggestion that accused did not come to her house.
She has denied suggestion that she had scuffled with her husband in the house of her mother on the date of incident.
::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 11She has denied suggestion that no rape was committed upon .
her mother and her mother had received injuries by way of fall in courtyard.
8.3 PW3 Basant Ram has stated that in the year 2004 at about 1.30 AM he was sleeping in his house and he of could not open the door immediately. He has stated that when he opened the door then he saw PW1 prosecutrix near the door. He has stated that PW1 told that her daughter was rt taken away by some persons. He has stated that thereafter he told PW1 that who would search her daughter in night. He has stated that he did not see any injury upon body of PW1 due to darkness. PW3 Basant Ram was declared hostile. He has denied suggestion that PW1 told him that accused persons have raped her. He has denied suggestion that he has deposed falsely in order to save accused persons.
8.4 PW4 Rajinder has stated that in the year 2004 he remained associated in investigation of case. He has stated that investigating agency took into possession from the room pieces of bangles, one cap and one hair. He has stated that investigating officer told that bangles were of PW1 and cap was of co-accused Ravi Kant. He has denied ::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 12 suggestion that he did not visit the spot. He has denied .
suggestion that he has deposed falsely. He has stated that PW1 told that bangles belonged to her and cap belonged to co-accused Ravi Kant.
8.5 PW5 Dr. Atal Sood has stated that he was of working as medical officer in CHC Sangla in 2004. He has stated that he medically examined co-accused Shiv Dev and observed as follows. He has stated that co-accused who was rt medically examined was conscious, cooperative and well oriented to time place and person. He has further stated that pulse of co-accused Shiv Dev was 70 per minutes and respiratory rate was 14 per minute and pupils bilaterally reacting to light. He has stated that co-accused was capable of performing sexual intercourse as both testis and penis appeared grossly normal and well developed. He has stated that genital organs were physically well developed. He has also stated that semen sample of accused was obtained and handed over to investigating agency and hair sample of co-
accused also obtained and handed over to investigating agency. He has stated that as per chemical analyst report the semen and hair samples were that of human being. He has ::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 13 stated that he has issued MLC Ext.PW5/A which bears his .
signatures and writing.
8.6 PW6 Dr. Ashish Chaba has stated that he remained posted as medical officer in CHC Sangla w.e.f.
1996 to April 2007. He has stated that on 13.5.2004 at 3 PM of he medically examined co-prosecutrix and observed. (1) Abrasion of the skin of right third terminal phalanx. (2) Abrasion on the dorsal aspect of the right hand about 1 cm rt in length. (3) Abrasion on the left wrist planter aspect.(4) Abrasion multiple on the sacral region. (5) Bruise on the coccyx (sacral region) about 3 inches in length and 4 inches in breadth. (6) Bruise on the right thigh about 6 CM in length. Shape of bruise was linear. Length was about 6 cm.
(7) Abrasion on the right knee joint. He has stated that nature of injuries was simple. He has stated that probable duration was less than 72 hours from examination. He has stated that he issued MLC Ext PW6/A which bears his signature. He has stated that above stated injuries could be caused in scuffle or by fall. He has stated that on the same day he also medically examined co-accused Ravi Kant. He has stated that co-accused Ravi Kant was conscious, ::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 14 cooperative and oriented to time place and pulse was 80 per .
minute. He has stated that genital organs were well developed and both testis were normal in size and penis was normal. He has stated that from physical development of genital organs it could be presumed that co-accused Ravi of Kant was capable of performing sexual act. He has stated that pubic hairs were present and specimen of pubic hair preserved and handed over to police official for chemical rt analysis. He has stated that there was no injury visible on the body of co-accused Ravi Kant. He has stated that there was no smegma present on the cornel sulcus. He has stated that he issued MLC Ext PW6/B which bears his signature.
He has stated that injuries mentioned in Ext PW6/A could be caused by way of fall or while performing agriculture work.
8.7 PW7 Dr.Praveen Singh has stated that he was posted as medical officer in CHC Sangla since 2003. He has stated that on 3.9.2004 at 9.30 PM on the request of police and with the consent of co-accused Raj Kumar he medically examined co-accused Raj Kumar. He has stated that co-
accused Raj Kumar was conscious, cooperative and well oriented to time place. He has stated that penis of co-
::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 15accused Raj Kumar was well developed. He has stated that .
testis were normal and secondary sexual characters were well developed. He has stated that pubic hair of co-accused Raj Kumar preserved and handed over to police for chemical analysis. He has stated that semen of co-accused Raj Kumar of preserved and handed over to police. He has stated that no evidence of any injury was seen on the body of co-accused Raj Kumar. He has stated that he issued MLC Ext PW7/A rt which bears his signature.
8.8 PW8 Sh Tanzin Dorje has stated that about two years ago he was associated in the investigation by SHO police station Sangla. He has stated that in his presence co-
accused Shiv Dev located path leading to the house and door of prosecutrix and investigating officer prepared memo Ext PW8/A which bears his signature. He has stated that co-
accused Shiv Dev has not given any statement under section 27 of Evidence Act in his presence.
8.9 PW9 Sh Shishi Ram has stated that on 16.5.2004 he was on patrolling duty. He has stated that co-
accused Ravi Kant has not given any disclosure statement in his presence. Witness was declared hostile. He has denied ::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 16 suggestion that co-accused Ravi Kant has given disclosure .
statement in his presence. He has stated that he signed disclosure statement in police station. He has stated that he does not know what was written in written statement.
8.10 PW10 Vinay Singh has stated that he remained of posted as constable in police station Sangla w.e.f. 2002 to 2005. He has stated that on 14.11.2004 he took report of FSL Junga to Sangla police station bearing No. 3156 dated rt 17.11.2004.
8.11 PW11 Constable Rakesh Kumar has stated that during year 2004 he was posted in police station Sangla. He has stated that he brought report of FSL Junga to police station Sangla in a sealed cover.
8.12 PW12 Hans Raj has stated that during year 2004 he was posted as MHC police station Sangla. He has stated that on 13.5.2004 constable Kuldeep Kumar and constable Naresh Kumar deposited nine parcels sealed with seal 'MO'.
He has stated that on 14.5.2004 LC Shanti Devi deposited five parcels sealed with seal 'MO'. He has stated that on 25.7.2004 SI Chander Singh deposited three parcels sealed with seal 'T' with him and on 4.9.2004 constable Rajesh ::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 17 Kumar deposited two sealed parcels sealed with seal 'MO'. He .
has stated that he entered these parcels in his register No. 19 and on 16.8.2004 he sent parcels to constable Sanjay Kumar to FSL Junga for analysis vide RC No. 20/2004. He has stated that on 2.10.2004 he sent two sealed parcels of sealed with seal 'MO' to FSL Junga through constable Rakesh Kumar vide RC No. 39/2004. He has stated that case property remained intact in his custody.
rt 8.13 PW13 Tanzin Thille has stated that on 11.5.2004 at late night he heard some cries and after 5-10 minutes his door was knocked. He has stated that when he opened door he saw that PW2 prosecutrix was standing in front of his door and she was weeping. He has stated that prosecutrix PW2 told that someone entered in her house and she asked to save her. He has stated that PW2 prosecutrix requested him to accompany her but he refused as there was darkness and her house was at a distance of 18-20 metres away from his house. He has stated that PW2 did not disclose name of any person. He has stated that PW2 is living with her mother and children in her house. He has denied suggestion that PW2 did not come to his house in the night period.
::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 188.14 PW14 Constable Sanjay Kumar has stated that .
on 16.8.2004 he was posted at police station Sangla. He has stated that MHC Hans Raj handed over to him eighteen sealed parcels to be deposited in FSL Junga vide RC No. 30/2004. He has stated that he took parcels and deposited of same in the office of FSL Junga. He has stated that parcels remained intact during his custody. He has stated that receipt was handed over to MHC on return.
rt 8.15 PW15 SI Bhim Singh has stated that he remained posted as SHO in police station Sangla since November 2004 to September 2005 and conducted part of investigation of present case. He has stated that he recorded the statements of constable Vinay Kumar, Rakesh Kumar and Tanzin Thilley and prepared charge-sheet and presented the same in Court.
8.16 PW16 Dr.Anita Negi has stated that she remained posted as medical officer at District hospital Reckong Peo w.e.f. January 1994 to May 2004. She has stated that on 12.5.2004 police moved application for conducting medical examination of prosecutrix. She has stated that she conducted medical examination of PW1 ::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 19 prosecutrix. She has stated that there were no marks of .
struggle and there was no injury on any part of abdomen.
She has stated that there was no injury on any part of thigh and there was no scratch marks on left side of knee joint.
She has stated that there was no injury on labia majora and of labia minora. She has stated that there was no external injury. She has stated that vagina admitted two fingers. She has stated that no spermatozoa was seen. She has stated rt that as per chemical analyst report there was no spermatozoa on vaginal smear and there was no semen on clothes. She has stated that there was nothing to suggest that recent sexual intercourse was took place. She has stated that injury mentioned in MLC could be caused while performing agriculture work.
8.17 PW17 Mohan Lal has stated that he remained posted as investigating officer in police post Karchham in the year 2004. He has stated that he conducted part of investigation of present case. He has stated that he recorded statement of co-accused Ravi Kant under section 27 of Evidence Act. He has stated that statement is Ext PW17/A which bears his signature. He has stated that on the basis of ::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 20 disclosure statement co-accused Ravi Kant took investigating .
agency where incident took place. He has stated that he recorded statements of witnesses under Section 161 Cr.PC.
He has stated that after recording statements of Chaman Lal and prosecutrix he handed over case file to SI Chander Lal of for further investigation.
8.18 PW18 constable Rakesh Kumar has stated that he remained posted as constable in police station Sangla rt w.e.f. June 2002 to 2005. He has stated that he was deputed by investigating officer to take accused persons to hospital for medical examination. He has stated that four sealed parcels were handed over to him by medical officer which he deposited with MHC. He has stated that case property remained intact in his custody.
8.19 PW19. Kishori Lal has stated that he is photographer by profession. He has stated that on 12.5.2004 he visited the spot at the instruction of investigating officer and took five photographs of the spot from different angles.
He has stated that photographs are Ext PW19/A1 to Ext PW19/A5 and its negatives are Ext PW19/A6 containing five negatives.
::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 218.20 PW20 Chander Singh has stated that he .
remained posted as SHO in police station Sangla during year 2003 to November 2004. He has stated that on 12.5.2004 prosecutrix along with her daughter came to police station Sangla to report matter that rape committed upon her. He of has stated that he recorded FIR as per version of complainant. He has stated that FIR is Ext PW1/A. He has stated that thereafter he moved an application Ext PW6/A for rt medical examination of prosecutrix and obtained MLC Ext PW16/B. He has stated that he visited the spot. He has stated that he inspected the spot and prepared site plan Ext PW20/A. He has stated that photographs Ext PW19/A1 to Ext PW19/A5 took at the spot. He has stated that he recovered one cap Ext P2 from spot which was lying on cot.
He has stated that cap was identified by daughter of prosecutrix which was of co-accused Ravi Kant. He has stated that pieces of bangle were took into possession. He has stated that co-accused Ravi Kant was medically examined and MLC Ext PW20/C obtained. He has stated that prosecutrix and her daughter were medically examined and MLC obtained. He has stated that co-accused Shiv Dev ::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 22 has given disclosure statement Ext PW8/A under Section 27 .
of Evidence Act. He has stated that co-accused Raj Kumar was arrested and he has given disclosure statement Ext PW2/A under section 27 of Evidence Act. He has admitted that no recovery was effected from accused persons. He has of denied suggestion that no disclosure statement given by accused persons. He has stated that as per investigation all three accused persons attempted to commit rape upon rt prosecutrix. He has denied suggestion that he has filed a false case against accused persons in collusion with prosecutrix. He has denied suggestion that he had fabricated false documents in police station.
9. Following documentary evidence produced by prosecution. (1) Ext PW1/A is FIR No. 7 of 2004 dated 12.5.2004 registered under sections 452, 376, 323 and 34 IPC.(2) Ext PW1/B is recovery memo of two bangles. (3) Ext PW1/C is recovery memo of cap. (4) Ext PW2/A is disclosure statement of co-accused Raj Kumar. (5) Ext PW2/B is disclosure statement of co-accused Shiv Dev (6) Ext PW2/C is disclosure statement of co-accused Ravi Kant under Section 27 of Evidence Act. (7) Ext PW5/A is MLC of co-
::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 23accused Shiv Dev (8) Ext PW6/A is MLC of Bishmma Devi (9) .
Ext PW6/B is MLC of co-accused Ravi Kant (10) Ext PW7/A is MLC of co-accused Raj Kumar. (11) Ext PW8/A is disclosure statement of co-accused Shiv Dev under Section 27 of Evidence Act. (12) Ext PW16/A is application filed by of police official for medical examination of prosecutrix. (13) Ext PW16/B is MLC of prosecutrix aged 50 years. (14) Ext PX1 is disclosure statement of co-accused Ravi Kant under Section rt 27 of Evidence Act. (15) Ext PW19/A-1 to Ext PW19/A-5 are photographs along with negatives. (16) Ext PW20/A is site plan (21) Ext PW20/B is information relating to arrest of accused. (22) Ext PW20/C is application filed by investigating officer before medical officer for medical examination of co-accused Ravi Kant. (23) Ext PW20/D is application filed by I.O for medical examination of prosecutrix. (24) Ext PW20/E is disclosure statement given by co-accused Raj Kumar. (25) Ext PA and Ext PB chemical analyst reports.
10. Statement of accused persons recorded under Section 313 Cr.PC. Accused persons have stated that they ::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 24 have been falsely implicated in present case. Accused .
persons did not adduce any defence evidence.
11. Submission of learned Additional Advocate General appearing on behalf of appellant that judgment of learned trial Court is perverse and based upon non-
of appreciation of oral as well as documentary evidence is rejected being devoid of any force for the reasons hereinafter mentioned. It is the case of prosecution that co-accused Ravi rt Kant and co-accused Shiv Dev have raped prosecutrix on dated 12.5.2004 during night period at 1.30 AM at place Ketra (Sangla) District Kinnaur HP. It is proved on record that prosecutrix was medically examined immediately on the day of incident by medical officer i.e. PW16 Dr. Anita Negi.
PW16 has specifically stated that there were no marks of struggle and no injury found on the part of abdomen of prosecutrix. PW16 has stated in positive manner that there was no injury upon any parts of thigh of prosecutrix. PW16 Dr. Anita Negi has specifically stated in positive manner that there was no injury on labia majora and labia minora. PW16 has stated in positive manner that there was no injury on vaginal walls. PW16 has stated in positive manner that there ::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 25 was no spermatozoa on vaginal smear. PW16 has stated in .
positive manner that there was no semen upon clothes of prosecutrix. PW16 has stated in positive manner that no recent sexual intercourse took place. PW16 has specifically stated in positive manner that injuries mentioned in MLC of could be caused while performing agriculture work. In the present case oral testimony of prosecutrix and opinion of medical officer placed on record contradicts each other. In rt view of contradiction between the testimony of prosecutrix and medical officer we are of the opinion that it is not expedient in the ends of justice to convict accused persons.
12. Submission of learned Additional Advocate General appearing on behalf of State that testimonies of PW1 and PW2 prosecutrix inspire confidence and there is no reasons to disbelieve the testimonies of PW1 prosecutrix and PW2 co-prosecutrix and on this ground appeal filed by State be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. We are of the opinion that testimonies of PW1 and PW2 prosecutrix are not corroborated by medical evidence. It is proved on record that prosecutrix was examined immediately on the day of incident ::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 26 and medical officer has given opinion that there was no .
recent sexual intercourse with prosecutrix. In view of the testimony of PW16 Dr. Anita Negi placed on record doubt is created in the mind of Court. It is well settled law that when two views are possible then view favourable to accused of should be adopted.
13. Submission of learned Additional Advocate General appearing on behalf of State that both prosecutrix rt PW1 and PW2 are victims of criminal offence of rape, molestation and beatings and on this ground appeal filed by State be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. In view of the opinion of PW16 Dr. Anita Negi that no recent sexual intercourse committed upon prosecutrix we are of the opinion that it is not expedient in the ends of justice to convict accused persons in present case.
14. Submission of learned Additional Advocate General appearing on behalf of State that prosecutrix have identified accused persons namely co-accused Ravi Kant and co-accused Shiv Dev and on this ground appeal filed by State be accepted is rejected being devoid of any force in view of ::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 27 the opinion of PW16 Dr. Anita Negi that no recent sexual .
intercourse was committed upon prosecutrix.
15. Submission of learned Additional Advocate General appearing on behalf of State that in view of disclosure statement given by accused persons appeal filed of by State be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. We have carefully perused disclosure statement of accused persons. As per rt prosecution case co-accused Shiv Dev has given disclosure statement Ext PW8/A in the presence of PW8 Tanzin Dorje and one Chand Dev. PW8 Tanzin Dorje has specifically stated that co-accused Shiv Dev did not give disclosure statement in his presence. PW8 Tanzin Dorje did not support prosecution case relating to disclosure statement of co-
accused Shiv Dev as alleged by prosecution. Testimony of PW8 has created doubt in the mind of Court relating to disclosure statement Ext PW8/A given by co-accused Shiv Dev placed on record. Prosecution did not examine another marginal witness namely Chand Dev in present case when PW8 Tanzin Dorje was declared hostile by prosecution.
::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 2816. As per prosecution case disclosure statement Ext .
PW17/A of co-accused Ravi Kant was recorded. As per Ext PW17/A marginal witness of disclosure statements are Shishi Ram and Chaman Lal. Sh Shishi Ram appeared in witness box as PW9 who has stated in positive manner that of co-accused Ravi Kant did not give any disclosure statement in his presence. PW9 Shishi Ram was declared hostile by prosecution. Prosecution did not examine another marginal rt witness of disclosure statement Sh Chaman Lal in the present case. In view of the testimony of PW9 Shishi Ram doubt is created in the mind of Court in present case qua disclosure statement of co-accused Ravi Kant recorded under Section 27 of Evidence Act.
17. Submission of learned Additional Advocate General appearing on behalf of State that cap along with hairs of co-accused Ravi Kant found in the residential house of prosecutrix proved beyond reasonable doubt and on this ground appeal filed by State be accepted is rejected being devoid of any force for reasons hereinafter mentioned. We have carefully perused chemical analyst report Ext PB placed on record. As per chemical analyst report Ext PB placed on ::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 29 record hairs found upon the cap of co-accused Ravi Kant .
were insufficient for analysis purpose. As per chemical analyst report Ext PB placed on record it is not proved on record that hairs found on the cap was of co-accused Ravi Kant. Hence it is held that co-accused Ravi Kant is not of connected with the hairs found in the cap recovered from residential house of prosecutrix.
18. Submission rt of learned Additional Advocate General appearing on behalf of State that as per chemical analyst report Ext PB placed on record and other corroborative evidence proved beyond reasonable doubt that accused persons have committed offence as alleged by prosecution is rejected being devoid of any force for the reasons hereinafter mentioned. As per chemical analyst report blood clots found in the vaginal slide of prosecutrix were not sufficient for chemical examination and as per chemical analyst report no blood and semen found upon pubic hairs of prosecutrix, upon shirt of prosecutrix, upon penis of co-accused Ravi Kant and upon pubic hairs of co-
accused Ravi Kant. As per chemical analyst report no semen was found on the salwar of prosecutrix. As per chemical ::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 30 analyst report five small hairs were of animal and two long .
hairs found were of human but they were not sufficient for comparison with other hairs. In view of above stated chemical analyst report we are of the opinion that it is not expedient in the ends of justice to convict accused persons in of the present case.
19. As per prosecution story co-accused Raj Kumar has also participated in the commission of offence. PW2 rt prosecutrix has stated in positive manner that co-accused Raj Kumar did not drag her and co-accused Raj Kumar did not try to commit rape upon her. In view of the testimony of PW2 prosecutrix doubt is created in the mind of Court and it is not expedient in the ends of justice to convict accused persons.
20. Submission of learned Additional Advocate General appearing on behalf of State that prosecutrix immediately narrated the incident to PW3 Basant Ram who was her neighbour and on this ground appeal filed by State be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. We have carefully perused testimony of PW3 Basant Ram. PW3 Basant Ram did not ::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 31 support prosecution case as alleged by prosecution. PW3 .
Basant Ram has specifically stated that prosecutrix did not inform him that she was raped by accused persons. PW3 Basant Ram has stated in positive manner that he did not see accused persons running away. PW3 Basant Ram has of stated in positive manner that he did not give any statement from portion 'A' to 'A of mark PY. The house of PW3 Basant Ram is situated at a distance of twenty five feet away from rt the residential house of prosecutrix. PW3 has stated that house of one Lama is fifty feet away from his house and there is also a house of Zair Singh. PW3 did not support prosecution case as alleged by prosecution. In view of testimony of PW3 Basant Ram doubt is created in the mind of Court.
21. Submission of learned Additional Advocate General appearing on behalf of State that in view of corroborative testimony of other oral witnesses appeal filed by State be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. We are of the opinion that corroborative witnesses are not eye witness of the incident. Testimonies of other witnesses are only ::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 32 corroborative in nature. In view of the fact that corroborative .
witnesses are not eye witness of the incident and in view of the fact that there is contradiction between the testimonies of PW1 and PW2 prosecutrix and medical evidence placed on record it is held that doubt is created in the mind of Court of and it is not expedient in the ends of justice to convict accused persons solely on the testimonies of PW1 and PW2.
Testimonies of PW1 and PW2 are contradictory to testimony rt of PW16 medical officer Dr. Anita Negi relating to commission of criminal offence of rape.
22. It is well settled law that rape is not only a crime against the victim but it is a crime against entire society which destroys the entire psychology of woman and pushes the woman into deep emotional crisis. It is crime against basic human right and it is also violative of victim fundamental right granted under Article 21 of Constitution of India. See AIR 1996 S.C. 922 title Bodhisattwa Gautam Vs. Miss Subhra Chakraborty.
23. It was held in case reported (2005) 9 SCC 765 title Anjlus Dungdung Vs. State of Jharkhand that suspicion however strong cannot take place of proof. It was held in case ::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 33 reported in (2010) (3) Recent Criminal report 549 (SC) title .
Nanhar Vs. State of Haryana that prosecution must stand or fall on its own leg and it cannot derive any strength from the weakness of the defense.
24. It is well settled principle of law (i) That appellate of Court should not ordinarily set aside a judgment of acquittal in a case where two views are possible. (ii) That while dealing with a judgment of acquittal the appellate Court must rt consider entire evidence on record so as to arrive at a finding as to whether views of learned trial Court are perverse or otherwise unsustainable (iii) That appellate Court is entitled to consider whether in arriving at a finding of fact, learned trial Court failed to take into consideration any admissible fact (iv) That learned trial court took into consideration inadmissible evidence. See Balak Ram and another Vs. State of UP AIR 1974 SC 2165, See Allarakha K. Mansuri Vs. State of Gujarat (2002) 3 SCC 57, See Raghunath Vs. State of Haryana (2003) 1 SCC 398, See State of U.P Vs. Ram Veer Singh and others AIR 2007 SC 3075, See S.Rama Krishna Vs. S.Rami Raddy (D) by his LRs. & others AIR 2008 SC 2066. See Sambhaji Hindurao Deshmukh and others Vs. ::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 34 State of Maharashtra, (2008) 11 SCC 186, See Arulvelu and .
another Vs. State (2009) 10 SCC 206, see Perla Somasekhara Reddy and others Vs. State of A.P (2009) 16 SCC 98, see Ram Singh @ Chhaju Vs. State of Himachal Pradesh) (2010) 2 SCC 445 .
of
25. It is well settled law that moral conviction however strong or genuine cannot amount to legal conviction under criminal law. See 1979 SC 1382 title State Vs. rt Gulzarilal. See AIR 1983 SC 906 title Bhagdomal Vs. State of Gujarat. It is held that testimonies of PW1 and PW2 require corroboration in present case. It is held that it is not expedient in the ends of justice to convict accused persons in present case on sole testimonies of PW1 and PW2 prosecutrix. In view of above stated facts point No.1 is answered in negative.
Point No.2 (Final order)
26. In view of the above stated findings appeal filed by State of HP is dismissed. Benefit of doubt is given to accused persons. Records of learned trial Court along with certified copy of judgment be sent back forthwith. Appeal is ::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 35 disposed of. Pending application(s) if any are also disposed .
of.
(Sanjay Karol), Judge.
of (P.S.Rana), Judge.
April 22,2016 rt ms/(R) ::: Downloaded on - 15/04/2017 20:09:29 :::HCHP 36 .
of rt ::: Downloaded on - 15/04/2017 20:09:29 :::HCHP