Himachal Pradesh High Court
Vinod Kumar vs State Of Himachal Pradesh on 30 November, 2023
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A. No. 670/2019 Reserved on: 22.11.2023 Decided on : 30.11.2023 Vinod Kumar .....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 No. For the Appellant: Ms. Anjali Soni Verma, Advocate.
For the Respondent: Mr. I.N. Mehta, Sr. Additional
Advocate General with Ms.
Sharmila Patial, Addl. A.G. and Mr.
J. S. Guleria, Dy.A.G.
____________________________________________________________________ Justice Tarlok Singh Chauhan, Judge The appellant/convict has filed the instant appeal against the judgment and order, dated 29.11.2019 passed by the learned Additional Sessions Judge-III, Kangra at Dharamshala, whereby he has been convicted and sentenced to undergo - rigorous imprisonment for a period of 5 years with a fine of Rs.10,000/- and in default of payment of fine, simple imprisonment of 1 year under Section 458 of the Indian Penal 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.2
Code (for short, "IPC"); rigorous imprisonment of 10 years with a fine of Rs.50,000/- and in default of payment of fine, simple imprisonment of 1 year under Section 376 IPC; rigorous imprisonment of 6 months with a fine of Rs.500/- and in default of payment of fine, simple imprisonment of 2 months under Section 323 IPC; rigorous imprisonment of 2 yearw with a fine of Rs.10,000/- and in default of payment of fine, simple imprisonment of 6 months under Section 506 IPC. All the sentences were ordered to run concurrently. 2 Briefly stated the case of the prosecution is that the prosecutrix, aged 30 years, was in her house on 13.1.2014 when at about 6.45 P.M., the appellant entered the kitchen of the house of the prosecutrix through a window and asked her to fulfil his desire. The prosecutrix refused and told the appellant to go to his house. However, the appellant forcibly caught the prosecutrix and thereafter committed rape with her. The appellant thereafter left the place and while doing so, he threatened the prosecutrix to do away with her life in case she disclosed about the incident to anyone. The prosecutrix made a telephonic call firstly to her husband, but the same could not be connected and thereafter she called one Rakesh Sharma, 3 employer of her husband on mobile No.98160- 92476 informing him about the incident. Thereafter, the prosecutrix also informed one Raju on his mobile No. 82620- 89019 about the incident. After some time, husband of the prosecutrix and Rakesh Sharma, his employer, reached at the house of prosecutrix and then, the prosecutrix disclosed about the entire incident. In the meanwhile, Surekha Katoch, Pradhan Gram Panchayat, Majherna also reached there and the prosecutrix disclosed about the incident to her also. It was then that the Pradhan gave information to Police Station, Baijnath on 13.1.2014 at about 8.45 P.M. about the incident. 3 On receiving information, Rapat No.44(A) dated 13.1.2014 Ext. PW18/A was entered at Police Station, Baijnath and then, ASI Kesar Singh, Investigating Officer, reached the spot where the prosecutrix made her statement Ext.PW1/A under Section 154 of the Code of Criminal Procedure (for short, Cr.P.C.).
4 On the basis of such statement, an FIR Ext. PW17/A came to be registered against the appellant at Police Station, Baijnath. Initial investigation was conducted by ASI Kesar Singh and thereafter by Inspector Rajinder Pal. On 14.1.2014, spot of 4 the occurrence was inspected and the site plan Ext.PW20/A was prepared. Statements of the prosecution witnesses were recorded. On 16.1.2014, statement of the prosecutrix Ext.PW1/B under Section 164 of the Cr.P.C. was recorded before the learned Judicial Magistrate 1st Class. Medical examination of the prosecutrix was also got conducted and her Medico Legal Certificate Ext.PW7/A was obtained. On 14.1.2014, the appellant was arrested and his medical examination was got conducted.
5 The parcels containing Salwar and vaginal swabs of the prosecutrix and wearing apparels, blood sample and pubic hair of the appellant so preserved were sent to RFSL Dharamshala and chemical examiner's report Ext. PW20/F was obtained.
6 On conclusion of investigation, challan was submitted and on finding prima facie case, charges under sections 458, 376, 323 and 506 IPC were framed against the appellant, to which he pleaded not guilty and claimed to be tried.
7 The prosecution examined as many as 20 witnesses in support of its case. Statement of the appellant under Section 5 313 of Cr.P.C. was thereafter recorded, wherein he denied the entire prosecution case and an opportunity was given to him to lead evidence in his defence. He accordingly examined DW1 Prince Tandon and also tendered in evidence copy of order Ext.D1, copy of comments Mark-D1, the copy of letter Mark-D2 and copy of affidavit Mark-D3. The defence taken by the appellant was that a false case has been fastened upon him because he had refused to work with Rakesh Kumar, employer of husband of the prosecutrix and that he was innocent and was not there at the place of the incident as he along with his wife had gone to Pathankot while driving the vehicle of DW1 Prince Tandon.
8 The learned trial court, after evaluating the oral as well as documentary evidence convicted and sentenced the appellant, as aforesaid and hence, the instant appeal. 9 It is vehemently argued by Ms. Anjali Soni Verma Advocate, for the appellant, that her client has been falsely implicated in the instant case and thereafter has wrongly been convicted and sentenced by the learned trial court. 10 On the other hand, Mr. I. N. Mehta, learned Senior Additional Advocate General would argue that the learned trial 6 court has, after great pains by evaluating all the material on record, rightly convicted and sentenced the appellant and the same warrants no interference.
11 We have heard the learned counsel for the parties and have also gone through the records of the case carefully. 12 In order to appreciate rival contentions of the parties, one would have to refer to the evidence that has come on record.
13 The prosecutrix appeared as PW-1 and stated that her husband is a bus conductor in a private bus. She is having two children aged about 7 years and 3 years. On 13.1.2014 at about 6.00 P.M., she was in her house and was cooking in the kitchen, which was in the first floor of the house. The appellant came inside the kitchen from the window and pushed her and asked her to fulfil his desire. The appellant was his neighbour and his wife was her 'kangan' sister. On this, she stated that she would tell everything to her husband, but the appellant pushed her on the floor and committed forcible sexual intercourse against her will and without her consent. When she tried to escape from his clutches, he put her both hands behind and under her back. Her daughter was also present there and 7 she was weeping and requested the appellant to leave her mother. When the prosecutrix cried, the appellant put his arm on her neck and because of that, she was not to able to breath properly and gasped. On this, appellant wore his pants and underwear and run away from the spot. The appellant thereafter threatened her to kill her, if she disclosed the incident to any one or family. She further stated that the appellant ran from the door after unlocking the main door. Thereafter, she made a telephonic call from her mobile No. 8894401559 to her husband but his phone was found to be switched off. Thereafter she made a telephonic call to the employer of her husband namely Rakesh, whose phone number was 98160-42476 and requested him to send her husband immediately to the house and she also disclosed the incident to the employer. Thereafter, she also telephoned one Raju, her husband's friend and asked him that if her husband was with him, then send him immediately and also informed him about the incident. At about 6.40 P.M., Raju reached her house and after few minutes, her husband and his employer also reached there. At that time, she had already worn her Salwar. Thereafter, they brought her to the ground floor. Her husband's employer thereafter telephoned his brother, who 8 was Pradhan of Paprola, who, in turn informed Pradhan of Majherna village. After some time, Pradhan of Gram Panchayat Majherna came to her house and informed the police about the incident. After some time, the police came there and recorded her statement Ex. PW1/A and after that the police took her to the hospital but since no lady doctor was available in the hospital in the night, therefore, she was again taken to hospital for medical examination on the next morning. The police came on the spot and took photographs of spot Mark A to E with scattered vegetables, which were scattered while she resisted the sexual assault. The police also videographed the statements. The doctor took into possession her salwar and handed over the same to the police. At the time of incident, no one came as on that day, it was Lohri and neighbours had put the speakers of the television sets on high volume and as such, they could not hear her voice. Her statement was also recorded before the Magistrate.
14 On being cross-examined, the prosecutrix admitted that there were about 20-25 houses around her house. She also admitted that houses of Behmi Kumar and Pritam Kumar were just adjoining to her house, but voluntarily stated that the 9 same were about 10-20 mts. away. She admitted that there were no stairs (should have been ladder) outside the house. She voluntarily stated that there was a window below the window of first floor, from where a person could climb easily. She admitted that when the appellant was forcibly doing wrong act, her clothes were not torn and the string was not broken. She voluntarily stated that the appellant had blocked her both hands behind her back and therefore, he could easily open the string. She admitted that her hands were not tied with a rope, but she voluntarily stated that the appellant was a strong and stout person and he had caught her. She admitted that she did not run away when the appellant was removing his pants and underwear. She voluntarily stated that she was under him at the relevant time. She admitted that the appellant used to come to her house often and they, in turn, would also go to his house often. She admitted that she had called her husband and had not called any neighbour or police. She denied the suggestion that the appellant used to come to her house often and he had an affair with her. She denied the suggestion that the SIM was given to her by the appellant.
1015 PW-2 Rakesh Kumar is the employer of husband of the prosecutrix namely Khem Raj. He deposed that he knew Khem Raj as he was working as a Conductor in his bus. On 13.1.2014, around 6.30 P.M., the prosecutrix telephonically called him and asked about her husband as his phone was not working. On this, he disclosed to her that Khem Raj was not there. Then at about 7.00 P.M., the prosecutrix again called him telephonically on his mobile number 98160-42476 and disclosed that the appellant had entered her house and forced her to do wrong act and asked the witness to send her husband to home. On this, he went to Paprola in his vehicle and Khem Raj met him there. He asked Khem Raj to go to his house and then he took Khem Raj to his house in his vehicle. He also telephonically informed his younger brother, who was Pradhan of Gram Panchayat Paprola and asked him to send the Pradhan of Gram Panchayat Majherna to the house of Khem Raj. When they reached house of Khem Raj, one Raj Kumar also came there. When they rushed to first floor, they saw the prosecutrix weeping and one small child was with her. When they asked the prosecutrix she disclosed that when she was cooking in the kitchen then the appellant came inside it from the window and 11 forced her to do wrong act and told her to fulfil his desire; and when she refused, he threatened her, removed her clothes and committed wrong act with her. Thereafter, the appellant ran from the main door. In the meantime, Sureka Pradhan of Gram Panchayat Majherna also reached the spot. The prosecutrix disclosed the incident to Surekha. Thereafter, Surekha telephonically informed the police, which came to the spot and statement of the prosecutrix was recorded by the police. Spot was photographed and thereafter prosecutrix was got medically examined.
16 On being cross examined, the witness was not in a position to tell about the phone number from which he had received the phone call, but stated that the same was made by the prosecutrix. He further stated that he had called his brother while driving the vehicle to Paprola. He denied the suggestion that the height of the window was 12 ft., but voluntarily stated that it was 7 ft. He denied the suggestion that a person could not climb up to the window in the absence of a ladder. He denied all the other suggestions that were put to him. 17 Pradhan, Gram Panchayat Majherna, Surekha Katoch, was examined as PW-3, who stated that in the year 12 2014, though date and month she did not remember, but at about 7.15 P.M., when she was in her house, Pradhan, Gram Panchayat, Paprola telephonically informed her that the appellant had entered the house of Khem Raj and on this information she went to the house of Khem Raj. On reaching the house of Khem Raj, she found one Raj Kumar, Rakesh and husband of the prosecutrix to be present there. She asked the prosecutrix about the incident, who disclosed that in the evening when she was cooking in the kitchen, the appellant entered the kitchen from the window and started forcing her and tried to remove her salwar. Nothing more was disclosed by the prosecutrix on that day, but on the next day when the police came, then she disclosed that the appellant had committed rape on her.
18 At this stage, the witness was declared hostile and was permitted to be cross-examined by the Public Prosecutor. On her cross-examination she admitted that the incident had taken place on 13.1.2014. However, she denied that the prosecutrix had disclosed her that the appellant had come in the kitchen and started forcing her to commit wrong act and told her to fulfil his desire. She denied that the prosecutrix had 13 disclosed that despite her refusing and resisting, the appellant had forcibly removed her salwar and committed rape with her. She voluntarily stated that the prosecutrix told this fact on the next day. She denied the suggestion that all the above facts had been disclosed by the prosecutrix to her on 13.1.2014. She admitted that the prosecutrix told her that it was Lohri on that day and loud music was being played in the neighbourhood and as such, her cries could not be heard by anyone. She admitted that she had informed the police about the incident. Police had come to the spot and recorded the statement of the prosecutrix. She admitted that police had taken the prosecutrix to the hospital for her medical examination and had also taken photographs of the spot. She admitted that when her statement was videographed, she had stated that the prosecutrix had told her that on 13.1.2014 the appellant had told the prosecutrix to fulfil his wish and committed rape with her.
19 On being cross-examined by the defence counsel, she stated that she reached the house of the prosecutrix at about 8-8.30 P.M. She could not tell the height of the window which, according to her, would be about 10 ft. She admitted that there were 5-7 houses near the house of the prosecutrix. 14 She admitted that when she reached the spot nothing was scattered on the spot. She admitted that the clothes of the prosecutrix were also not torn at that time. She admitted that she had not received any other such like complaint against the appellant. She admitted that the photography and videography was done on the next day. She admitted that the police had not recovered any ladder from the spot.
20 PW-4 Raj Kumar stated that on 13.1.2014 around 7.00 to 7.15 P.M., the prosecutrix had called him on his mobile to come to her house, but since he could not hear the call properly due to noise being emanated from the loud speaker on account of Lohri festival, he straight away reached the house of the prosecutrix and found husband of the prosecutrix and PW-2 Rakesh Kumar to be there. When they went to kitchen, then the prosecutrix disclosed that the appellant had entered the kitchen from the window and tried to force her to stop. Nothing more was disclosed in front of him. 21 At this stage, the witness was declared hostile and permitted to be cross-examined by the Public Prosecutor. In his cross-examination, he denied the suggestion that the prosecutrix had disclosed in his presence that when the 15 appellant forced her, he told her to fulfil his desire and when she refused, he threatened her and forcibly removed her salwar and committed rape with her. He also denied the suggestion that the prosecutrix had also disclosed that after committing rape the appellant ran from the spot after opening the main door. However, he admitted that at that time his phone number was 8262089019. He admitted that since morning he was sitting with the appellant alongwith his wife outside the court. 22 On being cross-examined by the defence counsel, he admitted that there were other houses near the house of the prosecutrix. He also admitted that when he reached the house of the prosecutrix there was no noise of Television sets etc. He admitted that he did not see scattered utensils on the spot in the kitchen. He further admitted that the window of the kitchen was at the height of 10-12 ft. He further admitted that one could reach the window only with the help of ladder. He also denied that Rakesh had threatened him when he had reached the spot, but he voluntarily stated that he had simply asked him (witness). He admitted that the prosecutrix had not told anything to him telephonically or personally. 16 23 PW-5 Mukesh Kumar, Pradhan, Gram Panchyat Paprola, stated that on 13.1.2014 at about 7.00-7.15 P.M he had received a telephonic call from his brother Rakesh Kumar, who had disclosed him that he had received a telephonic call from the prosecutrix informing him that the appellant had entered her house and had been doing wrong acts with her and requested to send her husband to home. He further deposed that Rakesh Kumar asked him to inform telephonically Gram Panchayat Majherna about this incident and that he and Khem Raj were going to the house of Khem Raj. On this, he telephonically informed Pradhan Gram Panchayat Majherna and disclosed all the above facts. He had requested the Pradhan to go to the house of Khem Raj.
24 On being cross examined, nothing material could be extracted from his deposition save and except that he admitted that Majherna was about 5-7 Kms away from Paprola. 25 PW-6 Reshma stated that she did not know anything about this case and was declared hostile. On being cross-examined by the Public Prosecutor, she denied the suggestion that on 13.1.2014 she was present in the house and that at about 6.30 P.M., when she was at her house, she 17 noticed the appellant going towards the house of Khem Raj. She further denied that around 8.00 P.M, she came to know that the appellant had entered the house of Khem Raj and committed rape with the wife of Khem Raj.
26 PW7 Dr. M.K. Rana, who medically examined the prosecutrix, made the following observations:-
1. History of body aches after the assault. On examination body parts tender to feel no external injury.
2. No injury over the private parts. Both breast fully grown. Axillary hair fully grown. Pubic hair were already shaved and could not be taken. Hymen was torn and fully healed. Vagina admit two fingers easily. Vaginal slides and vaginal swab taken and handed over to constable Sushma No. 575. Salwar was also sealed and handed over to police.
In my opinion Recent sexual assault could not be ruled out. After receiving report of the chemical analysis- semen was not detected in the specimens.
Final opinion Chances of sexual assault activity could not be ruled out. I issued MLC Ex. PW7/A, which is in my hand and bears by signatures. My final opinion is in red circle Ex. PW7/B. which is also in my hand and bears my signatures.
27 On being cross-examined, the witness admitted that there were no marks of strangulation on body of the prosecutrix.
1828 PW8 Khem Raj is husband of the prosecutrix, who stated that on 13.1.2014 at around 6.45 p.m., he was at Paprola. His employer Rakesh Kumar told him that he had received a telephonic call from his house that the appellant had tresspassed his house. He alongwith Rakesh Kumar went in his vehicle and reached the house. His wife was in the first floor of the house and was crying, and his daughter was also with her. His wife told him that at around 6.45 p.m. when she was cooking food, the appellant scaled the wall and came inside the kitchen on the upper floor through window. She further told him that the appellant caught her from behind and forcibly opened her salwar and raped her and when she resisted, the appellant put his hand on her mouth and tried to strangulate her neck. She had also told him that she tried to contact him telephonically but his mobile phone was switched off. When she called on the mobile number of Rakesh Kumar, then the appellant ran away from the spot after opening the door. When he alongwith Rakesh Kumar had reached the house, Raju had also come there. Pradhan Gram Panchayat Surekha Katoch also reached there after sometime. Surekha Katoch had informed the police, upon which, the police came to the spot and made 19 inquiries. His wife was taken to civil hospital Baijnath, but her medical examination could not be conducted on the same day, as no lady medical officer was on duty in the hospital. The medical examination of his wife was conducted on the next day. Police had prepared the spot map and the photographs of the spot mark A, B, D and E were also clicked through the photographer. His wife was using mobile SIM No. 8894401559. He had purchased the SIM and given to his wife. 29 On being cross-examined, he admitted that there were houses near his house. He voluntarily stated that there were two houses. He admitted that house of Bahmi Ram was at the distance of 15 to 20 meters from his house. He voluntarily stated that they were not on talking terms with the said family due to some dispute. He denied the suggestion that the house of Pritam was at a distance of 40-50 meters from his house. He voluntarily stated that it was about 70-80 meters away from his house. He denied that there was a path adjacent to his house, which goes to village. He voluntarily stated that there were only three houses and no path goes to the village. He denied that the aforesaid SIM was not purchased by him, but by one Dharmender, who had given it to his wife. He feigned ignorance 20 regarding the aforesaid SIM being in the name of Dharmender. He admitted that when he reached the home, the cloths of his wife were not torn. He voluntarily stated that he could not notice that due to tension.
30 PW9 Ajay Kumar proved on record photographs, Ext. PH1 to Ext.PH5. On being cross-examined, he admitted that these photographs were taken during day time. 31 PW10 Constable Vijay Kumar stated that on 13.1.2014, he was present at Majherna along with ASI Kesar Singh, who in turn had handed over to him Rukka Ex. PW1/A. He had taken the Rukka Ex.PW1/A to Police Station Baijnath and handed over the same to S.I. /SHO Mohan Rawat. The FIR was registered and the case file was handed over to him by the MHC, Police Station Baijnath, which, in turn, he handed over to ASI Kesar Singh at Majherna.
32 On being cross-examined, he admitted that at about 10-11 P.M. they had reached at Majherna. He denied all other suggestions that were put to him.
33 PW11 HHC Suresh Kumar stated that he had taken the appellant for his medical examination and the Medical Officer had handed over to him MLC No. 30/14 pertaining to 21 the appellant, one sealed parcel bearing eight seals Mark 'H' stated to be containing the clothes of the appellant, one vial sealed with seal impression Mark 'H' two in number, to be containing the blood sample of the appellant, one vial sealed with seal impression 'H' two in number, to be containing the pubic hair of the appellant, one sealed envelope with seven seals of impression 'H' and sample seal. He had handed over the MLC of the appellant and the above stated sealed parcels alongwith the sample seal to MHC Police Station Baijnath and identified the same in the court.
34 On being cross-examined, he denied all the conventional suggestions as were put to him. 35 PW12 Dr. Raj Kumar stated that on 14.1.2014, he had medically examined the appellant, who had been brought by the police with alleged history of sexual assault. On examination, no injury mark was found on the body of appellant. However, as per his general physical examination, the appellant was found to be normal and capable of committing sexual assault. He had preserved blood sample, pubic hair and clothes of appellant duly sealed and handed over the same to police for chemical analysis. After chemical analyst's report, 22 Investigating Officer again approached the witness on 28.2.2014 and after going through the report, he opined that the sexual assault could not be ruled out. He had issued MLC Ex. PW12/A. He identified the parcels containing Ex. A1, Pants Ex. A2, underwear Ex. A3 to be the same which were preserved by him.
36 On being cross-examined, he admitted that in MLC Ex. PW12/A there was no specific mention of preserving pants Ex.A2 and underwear Ex.A3. He also admitted that it had not been mentioned in the MLC as to how many days before the examination, the appellant had performed sexual relation. He also admitted that history was written in the MLC as per version of the police.
37 PW13 Constable Sushma had taken the prosecutrix for her medical examination on 14.1.2014 and obtained her MLC Ext. PW7/A. The doctor had also sealed salwar of prosecutrix and also preserved vaginal slides and swab by sealing the same in a plastic container and cloth parcel. 38 On being cross-examined, she admitted that when the prosecutrix was taken to hospital for medical examination, she was conscious.
2339 PW 14 HC Anil Kumar stated that on 15.01.2014, Lady Constable Sushma Devi had deposited with him one parcel sealed with nine seals of impression 'H' containing salwar of prosecutrix, one plastic box sealed with three seals of impression 'H' containing vaginal slide of prosecutrix, two glass vial each sealed with two seal of impression 'H' containing vaginal swab of prosecutrix and one envelop addressed to RFSL Dharamshala sealed with five seals of seal impression 'H'. He proved on record samples that were deposited with him in the malkhana from time to time and taken out from the malkhana from time to time.
40 PW 15 ASI Pawan Kumar stated that he was working as MHC at Police Station, Baijnath at the relevant time as the regular MHC was on leave and proved on record depositing of the sealed parcel containing salwar, vaginal slide and swab of prosecutrix.
41 PW 16 PC Rajinder Kumar proved on record taking of the sealed parcels containing salwar and vaginal swab of the prosecutrix and other other parcels containing clothes, pubic hair etc of the appellant to RFSL Dharamshala. 24 42 PW 17, Inspector Mohan Rawat, stated that on 13.01.2014, he had received statement of prosecutrix Ex.PW- 1/A in the police station through constable Vijay Kumar, on the basis of which, FIR No.9/2014 Ex.PW-17/A came to be registered. He had made an endorsement on the rukka Ex.PW- 17/B. 43 On being cross-examined, he admitted that there was no date mentioned or written with his signature. He voluntarily stated that date was written with the FIR. 44 PW-18 SI Kesar Singh stated that on 13.01.2014, after receiving information on telephone, rapat No.44 Ex.PW- 18/A was entered. On the rapat, he had proceeded to the spot alongwith other police official vide rapat Ex.PW-18/A. On reaching the spot, the complainant had made her statement under section 154 Cr.P.C., which was sent to police station Baijnath through constable Vijay Kumar for registration of an FIR. He had moved an application Ex.PW-13/A for getting the medial examination of the prosecutrix done to Medical Officer CH Baijnath on the same day through LC Sushma. Thereafter, SHO/Inspector Rajinder Singh had come to the spot and 25 further investigation was done by him and file was handed over to him.
45 On being cross-examined, he stated that he had reached the spot at about 09:15 PM on the day of receiving information. He admitted that the spot was 8 km away from the police station. He had gone to the spot in a Government vehicle. Constable Vijay was sent from the spot to the police station at about 10:25 PM. When he reached the spot Pradhan, Gram Panchayat Majherna alongwith some people was present there. He admitted that he did not enquire from anyone nearby and voluntarily stated that at first he had only inquired from the prosecutrix.
46 PW19 Devinder Verma is Nodal Officer Bharti Airtel, Kasumpati, Shimla (HP) and stated that he had received one e- mail from ADGP (CID), Shimla (HP) to provide billing address of mobile No.88944-01559 alongwith call details. He issued call detail (CDR) alongwith billing address of above stated mobile SIM, Ex.PW-19/A (three leaves). He had also received one e-mail from ADGP (CID), Shimla (HP) to provide billing address of mobile No.98160-42476 alongwith call details. He had also 26 issued call detail (CDR) alongwith billing address of above stated mobile SIM, Ex.PW-19/B (three leaves).
47 On being cross-examined, he admitted that SIM No. 88944-01559 was in the name of one Dharmender Singh, son of Lakha Singh. He admitted that from the different cell ID code, it could be gathered that on 13.01.2014, the aforesaid SIM had three different tower locations at different times. 48 PW20 SHO Rajinder Paul stated that he had investigated the case from 14.01.2014 onwards. On 14.01.2014, he had visited the spot and prepared the spot map Ex.PW-20/A and also got clicked photographs of the spot Ex.PH1 to Ex.PH5. He had moved an application Ex.PW-20/B to get the medical examination of the appellant conducted. The statement of prosecutrix was got recorded before the Magistrate under Section 164 Cr.P.C. He further deposed that the statements of witnesses Surekha Katoch Ex.PW-20/C, Raj Kumar Ex.PW- 20/D and Reshma Devi Ex.PW-20/E were got recorded as per their respective versions. He had also recorded the statement of other witnesses in the present case after obtaining the RFSL report from Dharamshala vide Ex. PW-20/F. After completing 27 the investigation, he had presented the challan before the Court.
49 On being cross-examined, he admitted that there were other houses located near the house of prosecutrix. He also admitted that there was path near the house of prosecutrix. He admitted that none of the neighbours, whom he had interrogated, had been cited as witness in the case. He voluntarily stated that the neighbours had stated during the interrogation that they were busy in their household and other chores. He admitted that neighbours of the prosecutrix had not heard any hue and cry. He voluntarily stated that it had been stated by the prosecutrix during investigation that the television set of neighbours was switched on and loud noise was emanating therefrom. He admitted that he had not noticed any outer stair case or ladder, with which a person could go to the upper storey of the house. He voluntarily stated that the appellant had gone to the upper storey after scaling the wall of the house with the help of window which was located on the ground floor of house of the prosecutrix. He admitted that it had come in his investigation that the prosecutrix and the wife of appellant were God sisters. He also admitted that the house of 28 appellant was at some distance from the house of prosecutrix. He admitted that the telephone SIM with which the prosecutrix had called was issued in the name of one Dharmender. He voluntarily stated that it had been submitted by the prosecutrix that from the last two years the SIM was being used by her. He denied that Dharmender had entered the house of prosecutrix and had committed wrong act(rape) with her. He also denied that FIR was got recorded at the behest of Rakesh Sharma (employer of Khem Raj). Rest of the conventional suggestions that were put to him were denied by the witness. 50 The appellant examined one Prince Tandon as DW1, who stated that the appellant used to work as Driver with him till 2014. The appellant was driver on vehicle No.HP53- 8755 which was a Canter (MITSUBISHI). On 13.01.2014, the appellant had gone with aforesaid vehicle to Pathankot for getting bricks in the vehicle. He called him on 14.01.2014 and the appellant informed him that there was a police case against him and that he was about to reach Baijnath. Thereafter the appellant met him at Baijnath Police Station on 14.01.2014. 51 On being cross-examined, the witness stated that the appellant was not now driver with him, but he had worked 29 as a driver with him for 3 years. He admitted that his vehicle had a log book. He also admitted that entries were being made in the log book regarding the movement of the vehicle being mandatory. He stated that Pathankot is nearly 130-140 kms away from Baijnath and if a vehicle is loaded it would take more than six hours and if it is empty it would take nearly 4 hours to reach Baijnath. He admitted that there was a toll tax at the entry to Pathankot. Entry in the log book was made by the Driver. He admitted that he had not made any counter sign or verified as to whether the entry in the log book was right or wrong.
52 Defence counsel had also tendered in evidence copy of the comments submitted by SDPO Baijnath to S.P. Kangra at Dharamshala, Mark D1, a letter written by Nodal Officer Bharti Airtel to S.P. Kangra, Mark D2, copy of order, Ext. D1, containing also affidavit of S.P. Kangra, copy of affidavit, Mark D3.
53 At the outset, it needs to be observed that rape is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim. While a murderer destroys the physical frame of the 30 victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim, and therefore a rape victim is placed on a higher pedestal than an injured witness.
54 Rape is the most hated crime, which tantamounts to a serious blow to the supreme honour of a woman, and offends both, her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks. Gang rape is all the more a serious and heinous offence. 55 The committal of rape is a beastly act and takes out the life from the life of victim. The scars of rape always remain engraved in her mind and she cannot overcome throughout her life. Rape leaves physical as well as mental scars on the victim. Physical wounds may heal up, but the mental scars, though less visible are more difficult to treat.
56 Rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. "Rape" not only lowers the dignity of a woman but also mars her reputation. The plight of the woman and shock 31 suffered by the victim can be well visualized. The victim of rape grows with traumatic experience and an unforgettable shame haunted by the memory of the disaster forcing her to a state of terrifying melancholia. The torment on the victim has the potentiality to corrode the poise and equanimity of any civilized society. It has been rightly said that whereas a murderer destroys the physical frame of a victim, a rapist degrades and defiles the soul of a helpless female. The offence of "Rape" is grave by its nature, which warrants a strong deterrent by judicial hand.
57 In State of Punjab vs. Ramdev Singh, AIR 2004 SC 1290, the Hon'ble Supreme Court held as under:-
This Court dealt with the issue and held that rape is violative of victim's fundamental right under Article 21 of the Constitution. So, the courts should deal with such cases sternly and severely. Sexual violence, apart from being a dehumanizing act, is an unlawful intrusion on the right of privacy and sanctity of a woman. It is a serious blow to her supreme honour and offends her self-esteem and dignity as well. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries, but leaves behind a scar on the most cherished position of a woman, i.e. her dignity, honour, reputation and chastity. Rape is not only 32 an offence against the person of a woman, rather a crime against the entire society. It is a crime against basic human rights and also violates the most cherished fundamental right guaranteed under Article 21 of the Constitution."
58 In Jugendra Singh Vs. State of UP, (2012) 6 SCC 297, the Hon'ble Supreme Court has held:-
"Rape or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. The consequential death is more horrendous. It is to be kept in mind that an offence against the body of a woman lowers her dignity and mars her reputation. It is said that one's physical frame is his or her temple. No one has any right of encroachment. An attempt for the momentary pleasure of the accused has caused the death of a child and had a devastating effect on her family and, in the ultimate eventuate, on the collective at large. When a family suffers in such a manner, the society as a whole is compelled to suffer as it creates an incurable dent in the fabric of the social milieu. The cry of the collective has to be answered and respected and that is what exactly the High Court has done by converting the decision of acquittal to that of conviction and imposed the sentence as per law."
59 In Shyam Narian Vs. The State of NCT Delhi , (2013) 7 SCC 77, the Hon'ble Supreme Court has elaborately dealt with the issue as discussed in Madan Gopal Kaakar Vs. 33 Naval Dubey and Anr., (1992) 3 SCC 204, State of Andhra Pradesh Vs. Bodem Sundra Rao, AIR 1996 SC 530 and State of Karnataka Vs. Krishnappa, (2000) 4 SCC 75 and has held that :
"It is an assault on the individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men. Rape is a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a woman and the soul of the society and such a crime is aggravated by the manner in which it has been committed."
60 Equally settled is the proposition of law that conviction can be based on the sole testimony of the victim of sexual assault without corroboration from any other evidence. The statement of the victim is more reliable than any other witness. Where the testimony of victim of sexual assault instills the confidence in court, the same can be relied upon for conviction of the accused. It is also a well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the victim is not a requirement of law but a guidance to prudence under the given circumstances. 34 61 In Vijay @ Chinee vs. State of Madhya Pradesh, (2010) 8 SCC 191, the Hon'ble Supreme Court has dealt with the issue and held that :
"Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix if found to be worthy of credence and reliable, requires no corroboration. The Court may convict the accused on the sole testimony of the prosecutrix."
62 There are catena of judgments passed by the Hon'ble Supreme Court wherein it has been held that only the deposition of the prosecutrix by itself is also sufficient to record conviction for the offence of rape if that testimony inspires confidence and has complete link of truth.
63 In Md. Ali Vs. State of UP, 2015 (3) SCALE 274, the Hon'ble Supreme Court has held that "Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the victim, if it is unimpeachable and beyond reproach, a conviction can be based and in Mohd. Iqbal v. State of Jharkhand reported in (2013) 14 SCC 481, the Hon'ble Supreme Court has held that "there is no prohibition in law to convict the accused of rape on the basis of sole testimony of the 35 victim and the law does not require that her statement be corroborated by the statements of other witnesses". 64 Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A victim complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the victim on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony.
65 After all, the Court cannot overlook where the victim or a girl is subjected to sexual assault, she is not accomplice to the crime, but is victim of another's lust.
66 Bearing in mind the aforesaid exposition of law, it would be noticed that the prosecutrix, who appeared as PW-1, has specifically stated that the appellant had entered the first floor of her house from the window and thereafter committed rape with her, that too, in the presence of her minor daughter 36 and this act of the appellant had been resisted by her and she had even tried to make telephonic calls to her husband. 67 It has further come on record that before proceeding to commit the alleged sexual act, the appellant had single handedly tried and removed the salwar of the prosecutrix and at the same time he had also completely undressed himself. 68 In such circumstances, now the conviction of the appellant is to be tested on the testimony of the prosecutrix when the requirement of the law is that the testimony of the victim must be creditworthy to be termed as sterling witness whose version can be accepted without corroboration. It is here that the version of the victim on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.
69 In this background, it shall be fruitful to refer to the following observations of the Hon'ble Supreme Court in Rai Sandeep @ Deepu vs. State (NCT of Delhi) (2012) 8 SCC 21:- 37
15. Keeping the above basic features of the offence alleged against the appellants in mind, when we make reference to the evidence of the so called 'sterling witness' of the prosecution, namely, the prosecutrix, according to her version in the chief examination when the persons who knocked at the door, were enquired they claimed that they were from the crime branch which was not mentioned in the FIR. She further deposed that they made a statement that they had come there to commit theft and that they snatched the chain which she was wearing and also the watch from Jitender (PW-11). While in the complaint, the accused alleged to have stealthily taken the gold chain and wrist watch which were lying near the T.V. It was further alleged that the appellant in Criminal Appeal No.2486 of 2009 was having a knife in his hand which statement was not found in the complaint. After referring to the alleged forcible intercourse by both the appellants she stated that she cleaned herself with the red colour socks which was taken into possession under Exhibit PW-
4/B in the hospital, whereas, Exhibit PW- 4/B states that the recovery was at the place of occurrence. The police stated to have apprehended the appellants at the instance of Jitender (PW-11) who knew the appellant in Criminal Appeal No.2486 of 2009 even prior to the incident, that Jitender (PW-11) also revealed the name of the said accused to her and that, therefore, she was able to name him in her complaint. When the seized watch was shown to her in the Court, the brand name of which was OMEX, she stated that the said watch was not worn by her nephew Jitender (PW-11) as it was stated to be 'TITAN' and the chain was a gold chain having no pendant. She 38 made it clear that that was not the chain which she was wearing and that it did not belong to her and that the watch found in the same parcel which was a women's watch was not the one which was worn by Jitender (PW-
11).
15. In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of 39 circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.
70 The credit worthiness of the testimony of the victim has already been discussed in the earlier part of the judgment. The victim when put to test as laid down in Rai Sandeep Deepu case (supra), fails the test of being sterling witness of a high quality and caliber whose version should therefore be unassailable and such quality should be in a position to accept it on face value without any hesitation.
71 Having perused the complete statement of the prosecutrix, we really do not find the same to be trustworthy and rather the same does not inspire confidence at all. 40 72 It is the admitted case of the prosecution, as stated by the prosecutrix herself, that the wife of the appellant was her 'kangan' sister and they had been frequently visiting each others' houses, then why would the appellant enter the house of the prosecutrix through the window, that too, of the first floor. 73 Another question, which remains completely unanswered, is that why the prosecutrix did not run or make an endeavour to run when the appellant was taking off his clothes. After all, it is not the case of the prosecution that the appellant was in any way armed.
74 What is still further intriguing is that if the alleged rape had been witnessed by the daughter of the prosecutrix, then why daughter was not examined and further why daughter was not asked to inform the neighbours or raise hue and cry.
75 Admittedly, scene of the alleged crime was videographed on the next day of the incident and the same has been clearly created by the police so as to give it as resemblance of resistance on the part of the prosecutrix, whereas in her medical examination, no injuries have been found on her person 41 including her throat, which was alleged to have been pressed by the appellant resulting in gagging.
76 What still remains mystery is as to why the prosecutrix did not raise an alarm and why such alarm was not heard by the neighbours when the locality, where the prosecutrix was residing, is inhabited one. 77 Apart from the above, it is the specific case of the prosecutrix that she tried to contact her husband over the telephone and having failed to do so, she then contacted employer of her husband (PW-2) at around 6.00-6.30 P.M., however, the phone details produced on record by PW-19 Devinder Verma completely belie the version put forth by the prosecution.
78 A perusal of the phone calls details Ex. PW 19/A would go to indicate that it was the prosecutrix who had received a telephonic call from PW-2 on 13.1.2014 at 6.08.03 and it was thereafter that the prosecutrix called PW-2. 79 What is still intriguing is that just prior to the call received and thereafter subsequent to the call received from PW- 2, the prosecutrix had been talking to various other persons which calls would be within the close proximity of the alleged 42 offence, but none of such persons have been examined by the prosecution.
80 Moreover, the story put forth by the prosecutrix that at the time, when the appellant was committing the alleged wrong act, she had tried to contact her husband, has also not been proved on record. Further, it is intriguing to note that the prosecutrix very well knew that her husband, who was the conductor with the bus, was on duty and would not be readily available to reach the house, then why she made no attempt to call her immediate neighbours, who could have rescued her from the clutches of the appellant and why she did not even ask her daughter to call the immediate neighbours especially her 'kangan' sister who was residing in the neighbourhood. 81 What is still worse is that none from the locality was examined to prove that there was indeed noise on the said date on account of celebration of Lohri festival, that too near the house of the prosecutrix.
82 Why this assumes importance is that it has specifically come in the cross examination of the Investigating Officer that the neighbours of the prosecutrix had not heard any hue and cry. Even PW4 Rajkumar, who was the one who had 43 reached firstly house of the prosecutrix, stated that when he reached there, there was no noise around of T.V etc, and he had not seen the utensils scattered at the spot in the kitchen. 83 The statement of the prosecutrix otherwise has not been corroborated from and by the other evidence or other material on record.
84 There is no doubt that rape causes great distress and humiliation to the victim of rape but at the same time false allegation of committing rape also causes humiliation and damage to the accused. An accused has also rights which are to be protected and the possibility of false implication has to be ruled out.
85 Here it shall be apt to refer to the judgment of the Hon'ble Supreme Court in Radhu vs. State of Madhya Pradesh (2007) 12 SCC 57, wherein it was observed as under:-
"The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a person has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case."44
86 In Raju v. State of Madhya Pradesh (2008) 15 SCC 133, the Hon'ble Supreme Court has held that testimony of the victim of a rape cannot be presumed to be a gospel truth and observed that false allegations of rape can cause equal distress, humiliation and damage to the accused as well, such sentiments have been recorded in para 11 of the judgment, which reads as under:-
"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 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."
87 In Abbas Ahmed Choudhary Vs. State of Assam :
(2010) 12 SCC 115, the Hon'ble Supreme Court has held that:
"We are conscious of the fact that in a matter of rape, the statement of the prosecutrix must be given primary 45 consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully."
88 Bearing in mind the aforesaid exposition of law, the testimony of victim has to be consistent and natural in line with the case of the prosecution and free from infirmities which inspire confidence in the Court. It cannot be presumed that the statement of the victim is always true or without any embellishment.
89 As observed above, prosecution story is completely and totally improbable and rather impossible and we are clearly of the view that the appellant has been falsely implicated in the instant case. Unfortunately, the learned court below has not at all appreciated what has been discussed by us and simply has been swayed by irrelevant considerations.
90 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 appellant beyond reasonable doubt. Therefore, the impugned 46 judgment and order of conviction and sentence passed by the learned trial court are set aside. Consequently, the appellant, in the instant case, is ordered to be released immediately, if not required in any other case.
91 The Registry is directed to prepare release warrant of the appellant. In view of the provisions of Section 437A Cr.P.C., the appellant is directed to furnish a personal bond in the sum of Rs.25,000/- with one surety of the like amount to the satisfaction of the learned Registrar (Judicial) of this 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. 92 The instant appeal is allowed in the aforesaid terms. Pending application(s), if any, also stands disposed of. Digitally signed by KALYAN CHAND AWASTHI
KALYAN DN: C=IN, O=HIGH COURT OF
HIMACHAL PRADESH, OU=HIGH COURT
OF HIMACHAL PRADESH SHIMLA,
Phone=068e8173504da3a6d6e563087070
CHAND 33e63c7253b4e6eb0f2a8f0285cdb5737f49,
PostalCode=171001, S=Himachal Pradesh,
SERIALNUMBER=7fe19e609f07c9899a24f
(Tarlok Singh Chauhan)
AWASTHI
7f61744de9a7a35cc62f67431d8415b71bf1
86fbd4f, CN=KALYAN CHAND AWASTHI
Reason: I am approving this document
Judge
Location:
Date: 2023-11-30 17:02:45
(Satyen Vaidya)
30.11.2023 Judge
(pankaj)