Himachal Pradesh High Court
Om Prakash vs State Of Himachal Pradesh on 5 July, 2019
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 517 of 2016 .
Judgment reserved on: 10.6.2019
Date of Decision: July 5 , 2019
Om Prakash ...Appellant.
Versus
State of Himachal Pradesh ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 Yes.
Presence:
Amicus Curiae : Mr. Shrawan Dogra, Senior Advocate as Amicus Curiae with Mr. Karan Singh Kanwar, Advocate.
For the appellant : Mr. Amrinder Singh Rana, Advocate, as Legal Aid Counsel, for the appellant.
For the respondent : Ms. Divya Sood, Deputy Advocate General for the respondent/State.
Anoop Chitkara, Judge.
The present appeal has been filed by convict Om Prakash, under Section 374 of the Code of Criminal Procedure, assailing the judgment dated 22.6.2016, passed by the Additional Sessions Judge, Hamirpur, H.P., in Sessions Trial No. 19 of 2014, whereby he has been convicted for having committed an offence punishable under Section 376 of the Indian Penal 1 Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 29/09/2019 00:25:22 :::HCHP 2
Code, and sentenced to undergo rigorous imprisonment for a period of seven years and pay a fine of INR 20,000/-, and in case .
of default of payment to fine to further undergo simple imprisonment for three months. The trial Court further ordered that out of the amount of fine so imposed upon the convict, an amount of INR 15,000/- be paid to the victim as compensation, on its realization. The period for which, the convict already remained in custody, was also set off by giving him the benefit of Section 428 CrPC.
2. The gist of the facts apposite to arrive at a just conclusion, are as follows:
(a) One Rajesh Kumar (who appeared during the trial as PW-1), made a written complaint to the SHO Police Station Talai, Distt. Bilaspur, H.P. on 17 th March 2014. He informed the police that his wife has left her matrimonial home without informing him (She is the victim and her name is being withheld because of Section 288-A CrPC, and starting now she would be referred to as the 'victim').
(b) He further stated that around 7-8 months before, he had entered into a love marriage with the victim, which was registered in the Court of Ghumarwin, Bilaspur, HP. The couple was living happily at his house. On 15-03-2014, the victim left home by saying that she was going to Jhandutta, for filling a form (Kaushal Grant Form). After that, ::: Downloaded on - 29/09/2019 00:25:22 :::HCHP 3 in the evening, when he reached home, then his mother told him that the victim has gone to Jhandutta. Thereupon he made a telephonic call to .
her on Mobile Number No. 82619-79926 but could not contact her. He suspected that somebody might have lured her and taken her away.
(c) On this information, the Investigating Officer found a prima facie case under Section 366 of IPC to have been made out and, hence, he registered FIR No. 22/2014 (Ext. PW-15/A), at Police Station- Talai, District- Bilaspur, HP, on 17.03.2014.
(d) After that, the police swung into action and tried to find out the whereabouts of the missing lady. During such inquiry, SHO Hem Raj (PW-18), received telephonic information from Pradhan Savita Devi of Gram Panchayat, Patta (PW-8) that a girl has been brought to his house by Om Prakash (Convict). On receiving such information, he incorporated entry No. 12(A) in the daily station diary on 24.04.2014 at 8:15 hours. During the trial, this daily diary entry was tendered in evidence as Ext. PW-15/B.
(e) After that, Inspector Hem Raj (PW-18) visited the house of Pradhan Smt. Savita Devi (PW-8) and gave protection to the victim. The father of the victim Sh. Kali Ram (PW-9) also reached the house of Pradhan Savita Devi (PW-8).
(f) At that place, the victim made a statement to Lady Constable Anjana Kumari (PW-17) which she recorded under Section 154 of CrPC. (Ext. PW-7/A), ::: Downloaded on - 29/09/2019 00:25:22 :::HCHP 4 vide entry incorporated in the daily diary (Ext. PW- 15/C), at 7.05 p.m.
3. The victim (PW-7) in her statement under Section 154 .
CrPC. (Ext. PW-7/A) mentioned her age as 18 years and stated to be the wife of one Rajesh Sharma (PW-1) stated as follows:
(a) On 15.3.2014, out of her free will, she left her matrimonial home and went to the house of one Mukesh Kumar resident of Village Patta, Tehsil Bhoranj, Distt. Hamirpur (Not examined during trial).
(b) From that date, she had been residing in the house of Mukesh Kumar. In the evening of 23.4.2014, when she was present in his home, then Om Prakash (convict), whose house is in the vicinity, came along with Dhani Ram, father of Mukesh Kumar, to his house. He asked her to accompany him to his home because he apprehended that the police might raid the premises. After that Shakuntala Devi (PW-11), mother of Mukesh Kumar also told the same thing.
Shakuntala Devi (PW-11) further assured the victim that Om Prakash (convict) is known to them, and it would be safe to go with him. She stated that, that is why she agreed to accompany to the house of Om Prakash (convict) and went along with him.
(c) On reaching the house of Om Prakash (convict), she asked him to provide drinking water to her. After drinking water, she ran away from his house and reached the house of Mukesh Kumar. She further stated that she did so because while ::: Downloaded on - 29/09/2019 00:25:22 :::HCHP 5 accompanying Om Prakash to his home, on the way he had molested her.
(d) On reaching back to the home of Mukesh .
Kumar, she told the father of Mukesh Kumar that his friend is not a good man and that she will not go to his house. On this, the father of Mukesh Kumar told her to sleep there itself in his home. After about ten minutes, Om Prakash (convict) again visited the house of Mukesh Kumar and forcibly dragged her to his house.
(e) She further stated that in the house of Om Prakash (convict) he gave her milk to drink and he consumed liquor. Then he asked the victim to provide the phone number of her father and he made her speak with him. Her father told her that he would visit the next morning and take her back.
(f) The victim further stated that during the night, Om Prakash (convict) indulged in forcible coitus with her without her consent.
(g) On the next morning, at about 4.00 a.m., Om Prakash (convict) received a phone call on his mobile, and then he told the caller that he has entrapped one female pigeon (kabootari) and that he has to sell her.
(h) For whole night Om Prakash (convict) slept in the same room with her, and in the morning Om Prakash on his own brought her to the house of Pradhan of Gram Panchayat, Patta (PW-8). There, on the arrival of the police, she got her statement recorded.
::: Downloaded on - 29/09/2019 00:25:22 :::HCHP 6(i) Consequently, the police found an offence punishable under Section 376 of the Indian Penal Code, prima facie, to have been made out and .
registered F.I.R. No.64/2014, dated 24.4.2014 (Ext. PW-13/C) against the accused at Police Station Bhoranj, Distt. Hamirpur, H.P.
4. The Police of Police Station, Talai, did not further investigate the previous FIR No. 22/2014 (Ext.PW-15/A), dated 17.03.2014 and it stood merged with the new FIR No.64/2014 (Ext. PW-13/C), registered against the accused at Police Station Bhoranj, Distt. Hamirpur, H.P., on 24.4.2014.
5. On the next date i.e., 25.4.2014, the Investigating Officer produced the victim in the Court at Hamirpur, where the Judicial Magistrate recorded her statement under Section 164 CrPC. (Ext. PW-7/C). In the said statement, the victim reiterated some facts but made some additions and omissions from FIR (Ext. PW-13/C). In her statement (Ext. PW-7/C), the victim stated as follows:
(a) On 15.3.2014, she left the house of her in-laws, without telling them, and went to the home of Shakuntala Devi (PW-11) where her son Mukesh and son-in-law Vipin Sharma were also present.
There was one other person who had a vehicle, but she could not remember his name.
(b) She stated that Shakuntala Devi (PW-11) declared and accepted her as her daughter-in-law ::: Downloaded on - 29/09/2019 00:25:22 :::HCHP 7 in front of the entire village and she started living there in her house for about one and half month.
(c) After that father of Mukesh Kumar and his .
friend Om Prakash came there to take her away.
(d) She stated that when the police came to the village, Patta and Shakuntala Devi (PW-11) made her climb the roof of the house. Along with them were her son Parkash and daughter Nisha Sharma. Then the police raided the premises.
(e) After that, Shakuntala Devi (PW-11) asked her to jump from the roof, and the moment she jumped, she fell on her left side and received injuries on her foot and arm. She stated that Nisha then helped her and took her to reach near the bamboo grove. With great difficulty, she reached Patta, where Vipin Sharma also entered the house at 7.30 p.m. and gave her medicine. After that at around 9 - 9.30 p.m., father of Mukesh, Shakuntala Devi and Om Prakash (convict) reached at her house at Patta. At that time, Shakuntala Devi came towards the kitchen, and Om Prakash (convict) and father of Mukesh went to a different room. Then Om Prakash went to the kitchen, and he lifted her and took her to another room. Om Prakash told her that he has three daughters, and she is like them. After that, Om Prakash took her to his house.
(f) On the way to his home, Om Prakash (convict) expressed his gratitude to the fate that she met him. He asked her why she fell into the trap of these people (actual word withheld because the said word is offensive, under the Scheduled Castes ::: Downloaded on - 29/09/2019 00:25:22 :::HCHP 8 and Scheduled Tribes (Prevention of Atrocities), Act. Om Prakash told her that he would get her married to some other person. After that, she .
reached the house, Om Prakash.
(g) On reaching the house of Om Prakash, she demanded water to drink and then returned to her home. On entering the house of Mukesh Kumar, she told his father not to send her there.
(h) After half an hour, Om Prakash (convict) visited the house of Mukesh Kumar and gave her beatings with kicks and fist blow. However, he did not say anything to Mukesh or his family members. After that, the convict again took her to his home, and on the way to his home started molesting her.
(i) On reaching his home, Om Prakash (convict) asked his wife to bring milk for the victim, and he kept a glass for taking drinks. After grabbing drinks, the convict asked her to make a phone call to her father. The victim further stated that then Om Prakash spoke with her father and asked him that has his daughter gone missing. He also told the father of the victim to take her back at 4.00 a.m. After that, the victim told her father to rescue her. After this, he disconnected the phone call and committed rape upon her, against her will and consent. He kept on committing rape with her for half an hour.
(j) In the morning, Om Prakash (convict) brought her to the house of Pradhan, and she apprised the Pradhan of the entire incident.
::: Downloaded on - 29/09/2019 00:25:22 :::HCHP 96. The Investigating Officer ASI Jai Chand (PW-19) arrested accused Om Prakash on 24.4.2014 at 11.30 p.m., and daily diary .
entry to that effect was made vide Ext. PW19/D.
7. Before the recording of the statement of the victim under Section 164 CrPC, she was medically examined by Dr. Sapna Dhiman (PW-4) at CHC Bhoranj, Distt. Hamirpur. During the trial, Dr. Sapna Dhiman (PW-4) tendered in evidence MLC of the victim (Ext. PW-4/B). The examining Doctor took samples of thick whitish fluid from the posterior fornix and vaginal walls. She further opined that the possibility of sexual intercourse could not be ruled out. During the investigation, the police also took into possession one mattress lying on the bed from the house of accused Om Prakash on which he had raped the victim.
8. Subsequently, the Investigating Officer sent this sample to the Regional Forensic Science Laboratory, Mandi on 27.4.2014.
Vide report dated 28.4.2014, Ext. PW-19/P, the Laboratory vide notified detection of human blood of group 'O,' on blood sample as well as on the salwar of the victim. The Laboratory also discovered semen on the salwar as well as on the mattress, seized during the investigation. FSL also detected human blood of group 'B' on the blood sample of Om Prakash (convict). The other findings of the Regional Forensic Science Laboratory are not material to conclude the present case.
::: Downloaded on - 29/09/2019 00:25:22 :::HCHP 109. During the investigation, the Investigation Officer also got the medico-legal examination of Om Prakash (convict) .
conducted and the MLC rendered in evidence as Ext. PW-5/B;
seized one mobile phone of Lava KKT-341 Black from Om Prakash on 24.4.2014 vide Ext. PW-8/A; prepared site plan Ext. PW-19/A, recorded statements of the witnesses under Section 161 CrPC;
and also took the call details of the mobile phone No. 98826- 08231 of Om Prakash vide Ext. PW-19/Q to 19/T.
10. The Investigating Officer also procured the birth certificate (Ext. PW-3/B) of the victim according to which she was born on 16.8.1995. Therefore, the fact of the victim, above 18 years of age is undisputed.
11. On this evidence, the SHO filed a report under Section 173 CrPC, in the Court of Sessions Judge, Hamirpur. In compliance with the provisions of Section 207 CrPC., the Trial Court provided the complete copies of challan (Police report) to the accused/convict. The trial Court as per the mandate of Sections 211 and 214 CrPC framed charges against the accused/convict for the commission of an offence under Section 376 IPC vide order dated 9.12.2014, to which he did not plead guilty and claimed trial.
12. It is pertinent to mention here that the charge stated the age of the victim as 18 years.
::: Downloaded on - 29/09/2019 00:25:22 :::HCHP 1113. During trial, prosecution though examined all the material witnesses. However, it did not examine (i) Mukesh .
Kumar with whom she was staying; (ii) Dhani Ram (father of Mukesh Kumar), who had allegedly sent her to the house of Om Prakash (convict); (iii) Nisha who had climbed with her on the roof as mentioned in statement under Section 164 CrPC. (Ext.
PW-7/C); and (iv) Vipan Sharma who had provided first aid to her.
14. Accused could not afford to engage a lawyer at his expenses. Hence, the Trial Court provided him with the services of a lawyer, at the costs of the State. After the completion of the prosecution evidence, the learned Sessions Judge put the incriminating circumstances appearing against the accused to him as per the requirement of Section 313 Cr.P.C. The accused has taken a specific plea in answer to question No. 65 in his statement under Section 313 Cr.PC in the following terms:
"Q.65. Why the witnesses have deposed against you?
Ans. When Dhani Ram and Shakuntla left (victim) with me, then I rang up father of (victim). Due to this reason he got annoyed and deposed against me falsely."
15. The accused was allowed to lead defence evidence which he did not avail, and consequently, the trial Court closed the evidence. The accused also did not file any oral arguments or memo of arguments as contemplated under Section 314 CrPC.
::: Downloaded on - 29/09/2019 00:25:23 :::HCHP 1216. After hearing the arguments, the learned Sessions Judge accepted the prosecution evidence and convicted the .
accused for the charged offence and sentenced as aforesaid.
Hence the present appeal.
17. The accused/convict could not engage any private lawyer and requested the H.P. State Legal Services Authority to provide a lawyer at State expenses. Accordingly, Mr. Amrinder Singh Rana, Advocate, was appointed as a Legal Aid Counsel to file the appeal in this Court, under Section 374 CrPC, against the judgment of conviction.
18. On 10.6.2019, during the final hearing of the matter, this Court found it appropriate to seek the assistance of some Senior Advocate on the proposition of law and passed the following order:
"During the course of arguments, this Court is of the considered opinion that on the proposition of law that when the accused does not specifically take the plea of consent either in cross examination or in his statement under Section 313 Cr.P.C. and then without affording an opportunity to the prosecutrix, can she be fastened with her conduct of any sexual intercourse as a willing and consenting party."
19. The Court found it appropriate to request Sh. Shrawan Dogra, learned Senior Advocate, who is the former Advocate General of the State of Himachal Pradesh, to assist the Court as ::: Downloaded on - 29/09/2019 00:25:23 :::HCHP 13 an Amicus and also requested Sh. Karan Singh Kanwar, Advocate to assist him in this proposition. After that the learned counsel .
for the parties were heard at length and Sh. Shrawan Dogra, learned Senior Counsel assisted by Sh. Karan Singh Kanwar, Advocate, also rendered valuable assistance by explaining the proposition of law to the full satisfaction of the Court.
19. After careful reading of the entire evidence, application of law and judicial precedents, my reasoning is as follows:-
20. During the trial, the victim appeared as PW-7.
Undisputedly, at the time of the alleged occurrence, she was a major, well above eighteen years of age and a married lady. Her testimony, on oath, leads to the following material facts, some of which on the face of it are credible, some needs corroboration and some are contradicted by other evidence.
(a) The victim testified that she was married to Rajesh Kumar (PW-1) in August 2013. It was a love marriage. Until 15.3.2014, she was staying with her husband in her matrimonial home. This fact finds mention from the statements of her husband, Rajesh Kumar (PW-1) and father Kali Ram (PW-9).
(b) It appears that the victim was known to Mukesh Kumar (not examined in Court), his mother Shakuntala Devi (PW-11), Nisha and Seema (both not tested in Court). On 15.3.2014, the victim went to the house of Mukesh Kumar, without informing her husband or any member of his family. In her cross-
::: Downloaded on - 29/09/2019 00:25:23 :::HCHP 14examination, she admitted that she had gone with Mukesh Kumar to his house.
(c) When Rajesh Kumar (PW-1), husband of the .
victim realized that she is missing, then he informed the police, which registered FIR No. 22/2014 (Ext. PW- 15/A), at Police Station- Talai, District- Bilaspur, H.P. on 17.03.2014, under Section 366 of the Indian Penal Code.
(d) Rajesh Kumar (PW-1) in his testimony, stated that he had tried to contact his wife (victim) on her mobile number 82619-79926. Even the victim does not deny that she was having a mobile phone with her when she left her matrimonial home.
(e) On receipt of information about the missing of a young lady, the police swung into action. SI - Hem Raj (PW-18) took over the investigation. During the investigation, police based on the tower location zeroed her location to village Patta. HC - Rajesh Kumar (PW-15), who was also part of this investigating team, inquired from one Dinesh Kumar (PW-2) of village Patta, who informed him that the missing girl was present in the house of Savita Minhas (PW-8), Pradhan of Village Patta. HC-Rajesh Kumar (PW-15) further testified in his examination-in- chief that Dinesh Kumar mentioned above, also told him that Om Prakash (accused) had brought the victim to the house of Savita (PW-8).
(f) The Pradhan Savita Minhas (PW-8) testified that at around 7 a.m. of 24.4.2014, accused Om Prakash brought one girl to her house, and she identified such girl to be the victim. When she made an inquiry from ::: Downloaded on - 29/09/2019 00:25:23 :::HCHP 15 the victim then apart from other details, she also told her that during the previous night, the accused made the victim speak to her father on the phone.
.
(g) Savita Minhas (PW-8) in her cross-examination stated that the victim was staying in the house of Mukesh Kumar for the last 1 ½ months.
(h) She further stated that accused resides in his house with his wife and three daughters and the eldest of whom was a student of Class X.
(i) When the police visited the house of Savita Minhas (PW-8) and rescued the victim, they communicated about the tracing of the victim to her husband who was the informant of the FIR No. 22/14 (Ext. PW-
15/A).
(j) When the police party headed by SI Hem Raj (PW-
18) was trying to trace the victim, then they contacted Dinesh Kumar (PW-2) of village Patta. This Dinesh Kumar testified that on 23.4.2014, SHO Police Station, Shahtalai, approached and told him that from the tower location of the phone of the victim she is likely to be present in and around village Patta. He further testified that after that he, along with the police, visited the house of Dhani Ram, father of Mukesh Kumar, where only his wife and children were found present. The SHO inquired from them about the missing girl; however, the police could not trace her in the said house. In his cross-examination, Dinesh Kumar (PW-2) stated that when the police had visited the home of Dhani Ram then around fifteen villagers were present there and the said villagers ::: Downloaded on - 29/09/2019 00:25:23 :::HCHP 16 told the police that the victim had run away from the house of Dhani Ram.
(k) Dinesh Kumar (PW-2) in his cross-examination .
stated that three other homes surround the house of accused Om Prakash.
(l) In the house of Pradhan Savita Minhas (PW-8), the victim gave information to the police that on the intervening night of 23rd and 24th April 2019 accused had committed rape upon her. On receiving such information, the police team thought it appropriate that FIR is registered at Police Station Bhoranj, Hamirpur and accordingly they called ASI Jai Chand (PW-19) from the said police station.
Consequently, they recorded, FIR No.64/2014, dated 24.4.2014 (Ext. PW-13/C), against the accused at Police Station Bhorang, Distt. Hamirpur, H.P. under Section 376 of the Indian Penal Code. Police also transferred the earlier FIR (Ext. PW-15/A) to Police Station Bhoranj.
21. After the registration of the FIR, the police got the victim medically examined at CHC Bhoranj, Distt. Hamirpur, from Dr. Sapna Dhiman.
(a) Dr. Sapna Dhiman, Medical Officer, CHC Bhoranj, examined the victim on 24.4.2014 and recorded her observations and opinion in MLC (Ext. PW-4/B). During the trial, the said Doctor appeared as PW-4 and has proved the MLC and her medical observations. Before the examination, she inquired from the victim and was narrated the history of sexual assault and beaten by shoes.
::: Downloaded on - 29/09/2019 00:25:23 :::HCHP 17(b) On examination of the victim, she noticed the following injuries. Four small sized abrasions/scratch marks on the left forearm and .
elbow; one abrasion of size 1cm X 2 cm on the left forearm; a small-sized scratch on the right forearm; a bruise of size 2cm X 3 cm on the left knee with swelling of left foot; and three small size scratch marks on the neck.
(c) The Doctor noticed that the hymen of the victim was not intact (nulliparous). On examination, per speculum, the Doctor noticed thick whitish colored fluid in posterior fornix and also took the swab. The Doctor did not found any injury on any portion of her vagina, labia majora, labia minora, clitoris, and fornix.
(d) Regarding injuries, the examining Doctor observed that bruises of size 2cm X 3 cm on the left knee with swelling of the left foot were possible due to falling while running. The Doctor further stated in her cross-examination that the injuries mentioned at Sr. No. 1, 2, and 4 are not possible on account of fall while running.
(e) The Investigating Officer sent the swab to the laboratory for analysis.
(f) The Investigating Officer tendered in evidence, the report of Regional Forensic Science Laboratory, Mandi as Ext. PW-19/P. Because of the provisions of Section 297 CrPC, the statement is per se admissible. The laboratory detected human semen on salwar of the victim. Apart from that, the laboratory also identified human blood on bra and ::: Downloaded on - 29/09/2019 00:25:23 :::HCHP 18 salwar of the victim and human blood group 'O' on the blood sample of the victim. The laboratory also detected semen and blood group 'B' on the .
mattresses as well as blood group 'B' on the blood sample of Om Prakash (accused).
(g) The convict, Om Prakash was proved to be a married person, and the presence of semen on the mattress is not conclusive that this semen is not because of his cohabiting with his wife.
(h) Surprisingly the Investigating officer did not seek DNA examination of the semen collected from the swab of the victim and her clothes. Since the laboratory could not detect any semen, from the vaginal swabs collected from the posterior fornix, as such, no conclusive finding can be given that she had any coitus with the convict. Regarding the presence of human semen on the salwar of the victim, in the absence of DNA examination, it cannot be said with certainty that the semen connects with convict Om Prakash.
(i) Furthermore, it has also come in evidence that the victim was staying in the house of Mukesh Kumar for the last 1 ½ months. The Investigating Officer was well aware of this fact. Therefore, to ensure that the semen found on her bra and salwar was that of the accused alone and none else, it was only possible by getting it examined through DNA test.
::: Downloaded on - 29/09/2019 00:25:23 :::HCHP 19(j) In Krishan Kumar Malik v. State of Haryana, 2011 (7) SCC 130, Supreme Court holds, .
"44. Now, after the incorporation of Section 53-A in the Criminal Procedure Code, w.e.f. 23.06.2006, brought to our notice by learned counsel for the Respondent-State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in the Criminal Procedure Code prosecution could have still resorted to this procedure of getting the DNA test or analysis and matching of semen of the Appellant with that found on the undergarments of the prosecutrix to make it a r fool proof case, but they did not do so, thus they must face the consequences."
(k) According to the victim, convict forced himself upon her during the night. The victim was a married lady hence, must have experienced sexual intercourse. She would have sufficient information about the fallouts of sex. She did not say that the rapist had used any condoms or that he did not ejaculate inside her vaginal canal. On the next day at 3.45 p.m., around 16 - 17 hours or so, the doctor medically examined her and collected swabs. Despite, such a short interval, the laboratory could not detect any semen. Given this scientific evidence, simply because the laboratory found semen on her salwar, it is not sufficient to fasten or connect the said salwar with the accused and none else.
(l) The victim did not attribute to the convict, the three small scratch marks on the neck as ::: Downloaded on - 29/09/2019 00:25:23 :::HCHP 20 well as any of the injuries received by her, at the time of the sexual assault. Her case is that she had received all these injuries when she had jumped from .
the roof of the house of Shakuntala Devi. To the contrary, while giving the history to the Doctor, she further stated that the convict had beaten her with shoes, in the home of Shakuntala Devi. Therefore, the prosecution failed to prove that she received these injuries at the time of the sexual assault by the convict.
22. Regarding missing of the victim from the house, her husband, Rajesh Kumar (PW-1) had informed the father of the victim Kali Ram (PW-9). Kali Ram corroborates this fact. He testified during the trial that on 23.4.2014, he spoke on the phone with convict Om Prakash, who told him that his daughter is with him. Om Prakash further said to him that he must take his daughter back by 4.00 a.m.; otherwise he will not be responsible for her. Kali Ram further testified that after that Om Prakash made him speak with the victim, who requested him to take her back. Next day, he also reached the house of Pradhan of village Patta where he found his daughter to be present.
23. Shakuntala Devi (PW-11), the mother of Mukesh Kumar, contradicted the victim by stating that she had visited their house on her own. She further testified that the victim told them that she had left her husband's home after getting fed up ::: Downloaded on - 29/09/2019 00:25:23 :::HCHP 21 from the beatings administered by him upon her. After that, the victim sought their permission to stay in their house, and such, .
they give their consent. On the face of it, this statement is not at all credible, and she is trying to save her son and her involvement. The victim certainly had a place to go, to her father in case she was fed up with the behavior and cruelty of her husband. The version of the victim appears to be more probable that she had left her husband's home on her own free will and had accompanied Mukesh son of Shakuntala Devi to his house also on her free will and her accord. Shakuntala Devi further stated that on 23.4.2014 police from police station Shah Talai visited her home. Police took away Mukesh Kumar on the charges of abducting the victim. This part of the statement has not been rebutted by the prosecution, and the Public Prosecutor did not seek the permission of the Court to declare this witness as a hostile witness. It means that the case of the prosecution is also the same. It is pertinent to mention that Shakuntala Devi (PW-11) did not reveal the whereabouts of the victim to the police. She stated that in the night accused Om Prakash visited her house, and as per her the accused told them that he would take the victim to his own home and after that would drop her at, the house of her parents. On this assurance, they sent the victim with the accused. She further stated that after some time, the ::: Downloaded on - 29/09/2019 00:25:23 :::HCHP 22 victim returned to their home and told them that she is afraid of the accused and refused to accompany him. During the night at .
around 11.00 p.m., accused again visited their house and after giving threats to them took the victim with him. Shakuntala Devi in her cross-examination admitted that during that time the victim was staying in their home, she was free to move around where ever she wanted. She further revealed that the victim on her own had gone with accused Om Prakash. Shakuntala Devi also in her cross-examination stated that there are lots of houses near the house of accused Om Prakash and further pointed out that around 20 - 25 people reside there.
24. Ramesh Chand (PW-14) was examined by the prosecution to prove the occupation of the accused. He stated that the accused is doing menial work of serving water in the marriages. He said that on 24.4.2014 he had called the accused Om Prakash and asked him whether he would like to work in a wedding on which Om Prakash declined. This witness did not support the prosecution case and was declared hostile. When a leading question was put to him by the Public Prosecutor under Section 138 of the Indian Evidence Act, 1872, he stated that the convict/accused told him on the phone that he has lured one female (kabootari) and that he wants to sell her. Now prosecution ::: Downloaded on - 29/09/2019 00:25:23 :::HCHP 23 did not lead any evidence that why would accused disclose this intention to Ramesh Chand.
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25. In Hanuman Govind Nargundkar v State of M.P., AIR 1952 SC 343, Supreme Court observed that It is settled law that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him. An admission must be used either as a whole or not at all.
26. It is difficult to believe this admission. What advantage the accused would derive by conveying this information to him. It is not the case of the prosecution that Ramesh Chand (PW-14) was dealing with the trafficking of women. The prosecution also did not lead any evidence to prove what kind of relationship accused was sharing with this witness.
It shall be highly unsafe to rely upon the extra-judicial confession and that too by way of leading questions put by the Public Prosecutor. Therefore, it shall be highly insecure to place any reliance on such a weak type of evidence.
27. The victim testified that on 24.4.2014, during day time, the police from Police Station Shahtalai visited village Patta, where she was staying. She further stated that Mukesh Kumar, his mother Shakuntala Devi (PW-11) and other members of the family, made her hide in the upper floor of the house.
Nisha, who is the sister of Mukesh Kumar, pushed her from the ::: Downloaded on - 29/09/2019 00:25:23 :::HCHP 24 balcony of the house. Because of this push, she fell and received injuries in her left leg and due to which she found it difficult to .
walk. In cross-examination, the victim stated that Nisha gagged her mouth. It is unbelievable. Even it is not possible to forcibly make someone hide. She was also aware that the police is trying to search for her. In her cross-examination, she stated that before that she was made to conceal in the houses of different people. It is shocking that when the police had come to rescue her then instead of cooperating with the police, she sided with Mukesh and his family members and successfully concealed herself from the police. There is no allegation that Shakuntala, Mukesh, and Nisha, made her hide forcibly. There is also no allegation that when she was made to conceal, they gagged her mouth and tied her feet and arms. Her not seeking help from the police lends assurance of the fact that she was willing to stay in the house of Mukesh. In the light of this analysis, the answer given by the accused in his statement under Section 313 Cr.P.C.
assumes great significance. The plea of the accused is that it was he who had informed the father of the victim on the phone, and because of which Mukesh and his family members were extremely annoyed with him. This conduct of Om Prakash lends corroboration from the proved fact that it was the convict Om Prakash who had taken her to the house of Pradhan Savita ::: Downloaded on - 29/09/2019 00:25:23 :::HCHP 25 Minhas (PW-8). Had the accused raped the victim, then there was no occasion for him to himself take her to the home of the .
Pradhan. Had the accused intended to rape her, then he would not have made her speak to her father on the phone. Both these facts stand proved during the trial, and it dents the credibility of the prosecutrix to the hilt.
28. The irrationality in the conduct of the victim is writ large. She was trying to conceal herself from the police. She never wanted to go back either to her husband or her father.
Therefore, the possibility cannot be ruled out that to show her annoyance with accused Om Prakash she leveled allegation of rape against him. She would have discerned the presence of police, and in turn, she had the determination to keep on staying in the home of Mukesh Kumar.
29. The victim testified that, after she had fallen from the balcony, she was given first aid by Anu Sharma, who was the son-in-law of Shakuntala Devi. She further stated that Dhani Ram and Shakuntala Devi also reached there and told that Police had taken their son Mukesh Kumar along with them. They requested her to go to Shahtalai and make a statement to save Mukesh Kumar. However, she refused to do so and asked her to take her back to their parental home. Now, this action again impeaches the credibility of the prosecutrix as well as of the Investigation ::: Downloaded on - 29/09/2019 00:25:23 :::HCHP 26 team. The prosecution did not associate said Mukesh Kumar as a witness. This statement also reveals that Police had also used its .
usual tactics of putting pressure. Prosecutrix resisted leaving the house of Mukesh Kumar to such an extent that she did not care that Police had taken Mukesh Kumar to the police station. So finally, when the convict Om Prakash brought her to the house of Pradhan (PW-8), she had all the reasons for getting angry with him. It is quite possible that intending to take revenge; she falsely implicated the accused Om Prakash. The victim testified that around 9.30 p.m., convict Om Prakash visited the house of Mukesh Kumar. Impliedly by that time, the police had left the village. She says that after that, Dhani Ram asked her to accompany Om Prakash to his house. Understandably, the police might come again during the night so to keep her safe they sent her with Om Prakash. The conduct of the victim is suspicious when she says that when she was going to the house of Om Prakash, he had molested her on the way. After that, she returned to the home of Mukesh Kumar. Consequently, she says that the convict came there again, dragged her from her braid, and gave her kick blows and took her to his house. This conduct is highly doubtful. It has come in the evidence that at least three houses are surrounding the home of Om Prakash and 15 to 20 people who live nearby his house. As per the victim, Convict Om ::: Downloaded on - 29/09/2019 00:25:23 :::HCHP 27 Prakash had beaten her in the presence of family members of Mukesh Kumar. She said that she had accompanied Om Prakash .
to his house.
31. According to the victim (PW-7), in the house of Om Prakash, his wife and daughters were there. She says that when the accused was trying to do coitus with her when she told her that she is like his daughter on which he replied that he did not care of his daughters. The prosecution did not dispute the presence of the daughters of Om Prakash, in the house at that very time.
Now there is a wife and three daughters, one of whom is in Class-X and must have been sixteen years old at that time. There is no evidence of how many rooms are there in the house of the accused. There is no evidence that even if there were more than one room in the house, whether the voice was audible from one place to another. It assumes significance because Ramesh Chand (PW-14) with whom accused was working testified that he is working to offer water during marriages. Accused was an unskilled worker. This Court shall not hesitate to take Judicial notice of the financial status of the convict. The Trial Court, as well as this Court, provided him legal aid counsel to him. Therefore, his house cannot be said to be expansive from where noise would not be audible from one room to another. It is challenging to believe that a person would rape a ::: Downloaded on - 29/09/2019 00:25:23 :::HCHP 28 young girl in his own house and when his wife and daughters are present there.
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32. Moreover, the victim was aware of the presence of these persons. Neither did she seek their help to rescue her, nor did she raise any cries. In cross-examination, she admits that there was no weapon with the accused. She also admits that none gagged her mouth nor anyone intimidated her. She did not make any effort to resist sexual advances and rape. She was a matriculate and was a grown-up married lady. She would certainly know what coitus means. In case such a thing would happen, she was expected to offer some resistance. It impeaches her credibility.
33. In Dilip & another vs. State of M.P., 2001 (9) SCC 452, Supreme Court observed, "14. The age of the prosecutrix was around 16 years, may be a little more. The fact remains that she was not just a child who would have surrendered herself to a forced sexual assault without offering any resistance whatsoever. Without going into testing truthfulness of the explanation offered by the prosecutrix that because of being over-awed by the two accused persons she was not able to resist, the fact remains that the 'probabilities factor' operates against the prosecutrix. The gang rape is alleged to have been committed at about 2 p.m., in her own house situated in a populated village by the side of ::: Downloaded on - 29/09/2019 00:25:23 :::HCHP 29 the main road where people were moving on account of Holi festival. The prosecutrix did raise hue and cry to the extent she could and yet none was attracted .
to the place of the incident. The prosecutrix is said to have sustained injuries, also bleeded from her private parts staining her body as also the clothes which she was wearing. This part of the story, is not only not corroborated by the medical evidence, is rather belied thereby. The presence of blood-stains is not confirmed by forensic science laboratory or by the doctors who examined the prosecutrix. Her own maternal aunt to whom the story of sexual assault has been narrated by the prosecutrix gives a version which does not tally with the version of the prosecutrix as given in the court. The learned Counsel for the State relied on Section 114A of Evidence Act, 1872 which provides that in a trial on a charge under Section 376(2)(g) of Indian Penal Code on the prosecutrix stating that she was not a consenting party, the Court shall presume absence of consent of the woman alleged to have been raped. Suffice it to observe that we should not be misunderstood as recording a finding that the prosecutrix was a willing party to sexual intercourse by the accused persons. The court is finding it difficult to accept the truthfulness of the version of the prosecutrix that any sexual assault as alleged was committed on her in view of the fact that her narration of the incident becomes basically infirm on account of being contradicted by the statement of her own aunt and medical evidence and the report of ::: Downloaded on - 29/09/2019 00:25:23 :::HCHP 30 forensic science laboratory. The defence has given suggestion in cross-examination for false implication of the accused persons which however have not .
gone beyond being suggestions merely. It is not necessary for us to dwell upon further to find out the probability of truth contained in the suggestions because we are not satisfied generally of the correctness of story as told by the prosecutrix. We find it difficult to hold the prosecutrix in the case as one on whose testimony an implicit reliance can be placed."
34. Another significant pointer of the credibility of the victim is that in her cross-examination, she stated that police were searching for her desperately, but every time Mukesh Kumar and his family members would make her conceal at different places. As far as five to seven times, she was made to hide in the houses of different people.
35. In the absence of credible testimony of the prosecution, it shall be hazardous to assume that rape had taken place simply because the victim says so. She stands contradicted on almost every aspect. Like the manner, she was made to hide at five to seven locations, and she also appears to have concealed in the house of the accused. It is quite possible that she would have visited the home of the accused to hide there, like five to seven times on earlier occasions. But she was offended when he made ::: Downloaded on - 29/09/2019 00:25:23 :::HCHP 31 her speak to her father and brought her to the house of the Pradhan. Accused Om Prakash defeated her entire exercise of .
concealing from her husband and father. Therefore, intending to take revenge with the accused, she leveled allegations of rape against him.
36. Ld. Amicus Mr. Shravan Dogra, Sr. Advocate ably assisted by Mr. Karan Singh Kanwar, Advocate, rightly contended that it may not be prudent to attribute every act of coitus as consent, in the absence of cross-examination on this score. To substantiate his point, he has placed reliance upon Narender Kumar v. State (NCT of Delhi), 2012(7) SCC 171, which holds as follows:
"28. The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of witnesses which are not of a substantial character.
29. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and ::: Downloaded on - 29/09/2019 00:25:23 :::HCHP 32 cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and .
conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. (Vide: Tukaram & Anr. v. The State of Maharashtra, AIR 1979 Supreme Court 185; and Uday v. State of Karnataka, AIR 2003 Supreme Court 1639).
30. The prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected."
37. Therefore, appreciation of the evidence and application of law cited herein above takes this Court to only one conclusion that the possibility of the accused being innocent cannot be ruled ::: Downloaded on - 29/09/2019 00:25:23 :::HCHP 33 out. The prosecution has failed to prove its case beyond reasonable doubts.
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38. Hence, for all the aforesaid reasons, appeal is allowed and the judgment of conviction and sentence, dated 22.6.2016/23.6.2016, passed by the Additional Sessions Judge, Hamirpur, H.P., in Sessions Trial No. 19 of 2014, is set aside and the accused is acquitted of the charged offence.
39. The Appellant Om Prakash be set at liberty forthwith, if not required in any other case. Amount of fine, if deposited by the appellant, be refunded to him. Release warrants be prepared accordingly.
40. Once the Courts have found the inmates not guilty, then, simply because of noncompliance of Section 437A CrPC, to the effect that sureties are not available, the liberty of an individual cannot be curtailed. Such curtailment on the face of it is, in total violation of Article 21 & 22 of the Constitution of India.
41. The Jail Superintendent and all concerned officers of the jail are directed to release the inmate on the very same date when she/he receives release warrants from this Court. To comply with the provisions of Section 437A of CrPC, he shall only wait until Sunset or when he realizes that the inmate in question is unable to arrange sureties. The concerned officer(s) shall not wait for the sureties beyond the time of closure of the prison. If ::: Downloaded on - 29/09/2019 00:25:23 :::HCHP 34 on the day, the release warrants are received, and sureties are available, then bonds from such sureties may be taken. However, .
if the sureties are not available, then concerned jail official(s) shall release the inmate on furnishing personal bonds for INR 10,000/- (Rupees ten thousand only), and it shall deem compliance of the provisions of Section 437A CrPC.
The appeal stands allowed in the terms mentioned above. All pending applications, if any, are also closed.
r (Anoop Chitkara),
Judge.
July 5 , 2019
(PK)
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