Himachal Pradesh High Court
Rajinder Sharma @ R.K vs State Of Himachal Pradesh on 18 June, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
1 2024:HHC:3571 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No.434 of 2019 a/w Cr. Appeals No.348, 369, 469 & 580 of 2019 Reserved on : 12.06.2024 Decided on: 18.06.2024 ______________________________________________________
1. Cr. Appeal No.434 of 2019 Rajinder Sharma @ R.K. .....Appellant Versus State of Himachal Pradesh .....Respondent _________________________________________________________
2. Cr. Appeal No.348 of 2019 Mustaq Mohmmad alias Abbu .....Appellant Versus State of Himachal Pradesh .....Respondent _________________________________________________________ 3. Cr. Appeal No.369 of 2019 Ranjit Singh .....Appellant Versus State of Himachal Pradesh .....Respondent _________________________________________________________ 4. Cr. Appeal No.469 of 2019 Som Nath alias Sonu .....Appellant Versus State of Himachal Pradesh .....Respondent _________________________________________________________ 2 2024:HHC:3571 5. Cr. Appeal No.580 of 2019 Uttam Chand .....Appellant Versus State of Himachal Pradesh .....Respondent _________________________________________________________ Coram Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge Hon'ble Mr. Justice Sushil Kukreja, Judge 1 Whether approved for reporting? Yes.
_________________________________________________________ For the Appellant(s): Mr. Ashwani Kaundal, Advocate, for the appellant in Cr. Appeal No.434/ 2019.
Mr. Ajay Kochhar, Senior Advocate with Mr. Bhairav Gupta, Advocate, for the appellant in Cr. Appeal No.348/ 2019.
Ms. Sheetal Vyas, Advocate, for the appellant in Cr. Appeal No.369/2019.
Mr. N.S. Chandel, Senior Advocate with Mr. Vinod Kumar Gupta, Advocate, for the appellant(s) in Cr. Appeals No.469 & 580/2019.
For the Respondent/State: Mr. I.N. Mehta & Mr. Yashwardhan
Chauhan, Senior Additional
Advocates General with Ms. Sharmila
Patial, Additional Advocate General.
Sushil Kukreja, Judge
Since all these appeals emanate from a common judgment rendered by the learned trial Court, therefore, they were 1 Whether reporters of Local Papers may be allowed to see the judgment? 3
2024:HHC:3571 taken up together for consideration and are being disposed of by this judgment.
2. The instant appeals filed under Section 374/374 (2) of the Code of Criminal Procedure (Cr.PC), lay challenge to the judgment of conviction and order of sentence dated 11.06.2019 passed by the learned Special Judge, Hamirpur, H.P., in Sessions Trial No.21 of 2018, titled State of Himachal Pradesh Versus Mustaq Mohammad @ Abbu & others, whereby appellants-accused persons, namely, Mustaq Mohammad alias Abbu, Rajinder Sharma alias R.K., Som Nath alias Sonu and Ranjit Singh were convicted for commission of the offences punishable under Section 376-D read with Section 120-B of Indian Penal Code (IPC) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO Act'), whereas, appellant-accused Uttam Chand was convicted for the commission of offence punishable under Section 376-D read with Section 120-B of IPC and Section 6 of POCSO Act and each of the appellants-accused was sentenced to undergo rigorous imprisonment for a period of 20 years and to pay a fine of Rs.20,000/- and in default, to undergo rigorous imprinsonment for a period of two years for commission of the offence punishable under Section 376-D of IPC.
3. The prosecution story, in brief, is that on 09.02.2018, the complainant, i.e. father of the victim lodged a complaint before the 4 2024:HHC:3571 police about missing of his daughter, i.e. the victim (name withheld) from their house, on which the police tried to trace her but she could not be traced. The complainant informed the police that the victim had taken mobile phone with her and the last call was made from her mobile phone to one Arun Kumar, who disclosed to the police that he had talked to the victim, but he was not aware about her whereabouts. A phone call was received on the mobile phone of said Arun Kumar from the victim, who told him that she was at Hoshiarpur and thereafter HC Karam Singh alongwith the father of victim (name withheld), Abhi- nav Chandel, Arun Kumar and LC Milan Kumari proceeded to Jupiter Service Station, Hoshiarpur, where the victim met them at the Petrol Pump and she disclosed that she was gang-raped and identified the room of accused Uttam Chand.
4. During the course of investigation, the police prepared the site plan, clicked photographs of the room of accused Uttam Chand. The victim identified the bed-sheet and towel of the room of accused, which were put in a cloth parcel and sealed with nine seals of seal impression 'A'. Sample of seal was also taken on a separate piece of cloth and the seal after use was handed over to witness Subhash Chand. Accused Uttam Chand was arrested on 10.02.2018. Thereafter, the medical examinations of victim as well as accused Uttam Chand were conducted on 11.02.2018. The statement of victim 5 2024:HHC:3571 was recorded under Section 161 Cr.PC, Thereafter, her statement was also recorded under Section 164 Cr.PC by the learned ACJM, Court No.1, Hamirpur. The police obtained birth certificate of the victim, wherein her date of birth was shown to be 28.10.2002. In her statements recorded under Sections 161 & 164 Cr.PC, the victim disclosed that on 09.02.2018 she was taken by accused persons Abbu and Sonu in a Tempo from Jahu. They parked the tempo at place Manoh and thereafter accused persons Rajinder Sharma alias R.K. and Ashwani Kumar also came there in their vehicle and all of them parked their vehicles on the roadside and consumed liquor. Accused Ashwani Kumar was driving the vehicle bearing No.HP-66-9065 and she (victim) was also sitting therein. He asked her name and address and also asked her to marry him, but she declined and thereafter he got down from the vehicle at place Bhota and went towards Nadaun in his vehicle. Accused persons Mustaq alias Abbu and Rajinder Sharma alias R.K. committed rape upon her in the vehicle bearing registration No.HP-66-9065 near Bumblu bridge and accused Som Nath alias Sonu also committed rape upon her at a place Galu ahead of Barsar in the said vehicle, whereas, accused Ranjit Singh alias Mota had committed rape upon her in his vehicle bearing registration No. HP66A-3717 at an isolated place near Una. Accused Mustaq alias Abbu took her in his Tempo and dropped her at Jahankhelan and paid her Rs.20/- by telling 6 2024:HHC:3571 her to meet his friend Uttam Chand alias Neelu. Then, the victim went to Hoshiarpur in the Auto, where she met accused Uttam Chand, who also committed rape upon her in his room. The prosecution story further reveals that during investigation, accused persons Mustaq Mohammad, Som Nath alias Sonu and Rajinder Sharma alias R.K. were arrested on 14.02.2018 and their medical examinations were got conducted. On 18.02.2018, the team of RFSL, Mandi examined the Tempo bearing registration No.HP66-9065 and collected hair, comb, seat cover, towel, handkerchief, shirt, steering wheel cover and newspapers from the said vehicle and thereafter the hair and comb were put in a cloth parcel and sealed with six seals of seal impression 'T' and the remaining articles were also put in a plastic bag which was sealed with one seal of impression 'T'. Sample of seal was separately taken on a piece of cloth, which was handed over to Ram Pal after use. During further investigation, ASI Ten Singh recovered Scooty bearing registration No.PB-02-AD-2497 alongwith its documents. The police moved an application for conducting the Test Identification Parade (for short, 'TIP') of the accused persons before the learned ACJM, and during the course of TIP, the victim identified accused persons, namely, Mustaq, Sonu and Rajinder Sharma alias R.K. The police also seized vehicles bearing registration No.PB08CB-6415 & HP66A-3717 alongwith the documents and one Mahinder Kumar, owner of vehicle 7 2024:HHC:3571 No.HP66-9065 produced the said vehicle before the police, which was also seized. Thereafter, accused persons Ashwani and Ranjit were also arrested on 27.02.2018 and their medical examinations were conducted and during the course of TIP, they were duly identified by the victim. The team of RFSL Mandi inspected the vehicle bearing registration No.HP-66A-3717 and collected hair, piece of pistachio, seat cover, foot-mat, towel, cushion and blanket from the said vehicle and thereafter the hair and piece of pistachio were kept in a paper packet and sealed in a cloth parcel with four seals of seal impression 'C' and the remaining articles were put in a bag and sealed with one seal of seal impression 'C'. One Sunil Kumar, owner of vehicle bearing registration No.HP-66A-3843 produced the said vehicle before the police, which was seized alongwith its documents. The call details record of mobile phone No.8824020255 was procured by the police and the victim identified four places at Jahu, Bumblu, Galu and Bankhandi and the police prepared the site plans. On the completion of the investigation, the charge-sheet was prepared and presented before the Court.
5. Vide order dated 11.07.2018, the charges were framed by the learned trial Court against the accused persons under Sections 363, 376, 376-D read with Section 120-B of IPC and Sections 4 & 6 of POCSO Act, to which, they did not plead guilty and claimed trial. 8
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6. In order to prove its case, the prosecution examined as many as 42 witnesses. Statements of the accused persons were recorded under Section 313 Cr.P.C., wherein they denied all set of incriminating evidence led by the prosecution against them. However, they did not examine any witness in their defence.
7. On the basis of evidence led on record by the prosecution, the learned trial Court convicted the accused persons (appellants herein), vide the impugned judgment and sentenced them as per the description given hereinabove.
8. Being aggrieved and dissatisfied with the judgment of con- viction and order of sentence passed by the learned trial Court, the ap- pellants/accused persons approached this Court by way of instant ap- peals, praying therein for their acquittal after setting aside the aforesaid judgment of conviction and order of sentence.
9. Learned Senior Counsel as well as learned counsel for the respective appellants contended that the charges against the accused persons have not been proved beyond reasonable doubt. They further contended that the version of the victim is not believable and the trial Court did not appreciate the statement of the prosecutrix at the touch stone of probabilities and it brushed aside the significance of non- resistence by the prosecutrix on pure surmises that she was under
shock, hence, could not resist the illegal activities of the 9 2024:HHC:3571 appellants/accused persons. They also submitted that the medical evidence does not corroborate the evidence of the victim as there were no injuries and no signs of forcible sexual intercourse. They further submitted that the prosecution had withheld the SFSL reports with respect to the medical examination of the victim as well as the accused persons and also with respect to the articles seized from the vehicles allegedly involved in the commission of the offence. They also submitted that apart from these aspects, the identity of the accused persons is seriously disputed as the procedure for conducting test identification parade was not proper. The victim was not knowing the persons who had committed rape upon her and the prosecution has not established identity of the appellants beyond reasonable doubt.
10. On the other hand, the learned Senior Additional Advocate General supported the judgment of the learned trial Court and contended that since the charges against the accused persons have been duly proved by the prosecution beyond all reasonable doubt, the learned trial Court has rightly convicted them on the basis of proper appreciation of evidence.
11. We have heard learned Senior Counsel/counsel for the appellants as well as the learned Senior Additional Advocate General for the State and also gone through the record carefully. 10
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12. As far as age of the victim is concerned, we do not find any infirmity whatsoever in the evidence of PW-17. He produced on record the birth certificate of victim Ext. PW17/B, according to which, her date of birth was recorded as 28.10.2002. During cross- examination of the victim, on the suggestion given to her by Mr. Ashish Sharma, learned defence counsel, she had specifically stated that her date of birth was 28.10.2002, which corroborates the entry in the birth and death register of the concerned Gram Panchayat, brought by PW-17. Thus, the evidence led by the prosecution is conclusive to prove that the date of birth of the victim was 28.10.2002. Therefore, on the date of incident i.e. on 09.02.2018 she was about 15 years and 5 months of age.
13. 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. In Jugendra Singh Vs. State of UP, (2012) 6 SCC 297, Hon'ble Apex Court has held:-
"49. 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 11 2024:HHC:3571 decision of acquittal to that of conviction and imposed the sentence as per law."
14. It is a settled principle of law that conviction can be based on the sole testimony of the victim of sexual assault without corroboration from any other evidence. The prosecutrix complaining of having been a victim of the offence of rape is not accomplice of the crime and there is, no rule of law that her testimony cannot be acted without corroboration on material particulars. Her testimony has to be appreciated on the principles of probabilities just as the testimony of any other witness and if the Court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence direct or circumstantial which would lend assurance to her testimony.
15. The Hon'ble Supreme Court has observed in a catena of decisions that the Court should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature to throw out an otherwise reliable prosecution case. If the statement of the prosecutrix is of sterling quality and inspires confidence, then corroboration from other evidence need not be sought, but where the statement of the prosecutrix is shaky and does not inspire confidence then corroboration should be sought from other evidence collected during investigation.
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16. In State of Himachal Pradesh Vs. Gian Chand, (2001) 6 SCC 71, it was held that it is now well settled that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc. if the same is found to be natural, trustworthy and worth being relied on.
17. In the case of Vijay @ Chinee Vs. State of Madhya Pradesh, (2010) 8 SCC 191, it was held 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. Paras 9 to 14 of the judgment are reproduced as under:-
"9.In State of Maharashtra v. Chandraprakash Kewalchand Jain AIR 1990 SC 658, this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under:-
"16.A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar 13 2024:HHC:3571 to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.
10. In State of U.P. v. Pappu @ Yunus and Anr. AIR 2005 SC 1248, this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under:-
12. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.
11. In State of Punjab v. Gurmit Singh and Ors.: AIR 1996 SC 1393, this Court held that in cases involving sexual harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration 14 2024:HHC:3571 unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under:
"8...The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix.... The courts must, while evaluating evidence remain alive to the fact that in a case of rape, no self- respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case.... Seeking corroboration of her statement before replying upon the same as a rule, in such cases, amounts to adding insult to injury.... Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances...
** ** ** **
21....The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be 15 2024:HHC:3571 sensitive while dealing with cases involving sexual molestations.
12. In State of Orissa v. Thakara Besra and Anr. AIR 2002 SC 1963, this Court held that rape is not mere a physical assault, rather it often distracts the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.
13. In State of Himachal Pradesh v. Raghubir Singh (1993) 2 SCC 622, this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. placing reliance on an earlier judgment in Rameshswar v. State of Rajasthan.
14. 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"
18. Coming to the facts of the present case, the first point involved for consideration in these appeals is whether evidence adduced by the prosecution, particularly testimony of victim PW1 is trustworthy, credible and worthy of reliance.
19. In order to test the veracity of the deposition of victim/PW1, it needs to be discussed threadbare. She was examined on oath in Court during trial where she deposed that on 09.02.2018. her mother scolded her and she left her home towards Jahu after taking the mobile phone of her mother at about 6.30 PM. She had contacted her friend Arun telephonically and asked him for help as she had left the house, who asked her to return home and told that he was towards Bhareri side. At that time she (victim) had reached near Green Valley School, 16 2024:HHC:3571 where two boys were standing near a Dhaba with their Tempo and she told them that she wanted to go to Shimla. They said that they would take her to Shimla and she boarded their Tempo. They went towards Bhota side instead of Shimla. She asked them to drop her at Bhota, but they did not allow her to get down from the Tempo. The names of said two boys were Abbu and Sonu as they were talking with each other using these names. They had stopped their Tempo at place Manoh. Both of them got down from the tempo and locked her inside the tempo. Two more vehicles also came from backside in which two persons were in their vehicles as drivers and all these four persons consumed liquor there and thereafter Sonu and another driver Ashwani sat in the tempo and proceeded towards Bhota side, Abbu was driving the vehicle of Ashwani. On the way, accused Ashwani asked her to marry him, but she refused and thereafter, accused Ashwani de- boarded from the tempo at Bhota and Abbu again boarded the said tempo and on the way, accused Abbu stopped the tempo at Bumbloo near a water source (Bowri) and another vehicle also came from backside and stopped there. Accused Abbu had done wrong act with her in the tempo in presence of accused Sonu, then accused Sonu went outside the tempo and another person named R.K. came in the tempo, who had also done wrong act with her in the tempo in the presence of accused Abbu and thereafter accused R.K. left the spot in 17 2024:HHC:3571 his vehicle. Accused Sonu once again boarded the tempo and they started their tempo and accused Abbu was driving the same. Accused Abbu stopped the tempo at place Galu after crossing Barsar and then he (accused Sonu) had done wrong act with her in presence of accused Abbu. Accused Abbu was talking on his mobile phone with another person that they would meet after crossing Una and thereafter accused Abbu started his tempo and proceeded towards Una side. Accused Sonu alighted from the tempo at Una and accused Abbu again telephonically contacted the person and asked him to stop at a lonely place after crossing Una. He stopped the tempo at a lonely place after crossing Una after half an hour on Una-Hoshiarpur road and another person came with his Jeep Traula and stopped the same near the tempo. She asked accused Abbu that she wanted to go to washroom and when she got down from the vehicle, accused locked the vehicle from inside and the person came out of his Jeep traula and gagged her mouth with his hand and took her to his vehicle and had also done wrong act with her in his Jeep and then he left the spot after de-boarding her from his Jeep. Thereafter, she came near the tempo o f accused Abbu and awaken him and boarded the tempo and they left the spot. After half an hour drive, accused Abbu stopped the tempo and gave her Rs.20/- and told her to meet his friend named Uttam @ Neelu near petrol pump, who was a resident of Kangra district and told her that he would 18 2024:HHC:3571 return after 2-3 hours and would drop her at her home. Accused Abbu had threatened her not to disclose the incident otherwise, he would do away with her life and he dropped her on the way, thereafter, she saw a dhabha, went there and inquired about the place from the owner of Dhabha, who told her the name of place as Jahankhelan, then offered her a cup of tea and told her that it was not a safe place for her, so he asked her to go Hoshiarpur as she had pretended to go Jallandhar. Then Dhabha owner had sent her to Hoshiarpur in an auto and she got down from the auto near petrol pump at Hoshiarpur, where Uttam @ Neelu met her. She asked him to charge the battery of her mobile phone, which was charged by him in the office of the Petrol Pump and after that Uttam offered her tea twice and told her to take rest in his room, but when she refused to visit his room, he took her forcibly on his scooty to his room, where he had done wrong act with her. Thereafter, accused Uttam had given her mobile phone and told her to call him whenever she wanted to return to her home. He locked her in his room and returned to the Petrol Pump. She telephonically contacted her friend Arun and asked him to take her from Hoshiarpur, who told her that he alongwith others were coming to take her back and then she contacted accused Uttam @Neelu to take her from the room as her brother was coming there. When accused Uttam @ Neelu came to his room to take her, he again did wrong act with her and brought her to 19 2024:HHC:3571 the Petrol Pump on his scooty and after dropping her, he returned to his room. While she was standing at the petrol pump, Arun alongwith her father, police and her relatives reached there after 15-20 minutes and then she disclosed about accused Uttam @ Neelu to her father and the police.
20. Statement of victim under Section 164 Cr.P.C. Ex. PW1/B was recorded on 13.02.2018. However, the same is not in consistence with her deposition before the Court. In her statement under Section 164, Cr.PC, she stated that when the truck driver had dropped her from the truck, a police man came there and made inquiries from her,whereas, in her deposition before the Court, she did not utter even a single word about the fact that some police man had met her, rather she denied the suggestion in cross-examination that when she got down from truck, one police person also reached there.
21. On a careful analysis of the testimony of the prosecutrix, we find a large number of contradictions, inconsistencies and improvements, which casts a shadow of doubt and led us to find it difficult to rely upon her version. As per the version of the victim, a series of rape was committed on her which had started from 09.02.2018 and ended on 10.02.2018. The victim, as per her own version, travelled a long distance in the company of accused persons throughout the night and had many opportunities to disclose her fate to 20 2024:HHC:3571 the world at large, especially when she met a Dhaba owner, driver of the Auto with whom she allegedly reached Hoshiarpur and the persons available at the Petrol Pump at Hoshiarpur. It is highly improbable that about 16 years old girl will not make any effort to save herself from the clutches of accused persons for such a long period, more so, when she got enough opportunities for the same which casts a cloud of suspicion regarding her credibility. She had not raised any alarm and had not sought help from others throughout her journey from the place from where she was taken away till the time she was recovered. As per her own version, she got down from the vehicle, but the accused locked the vehicle from inside and another person came out of his jeep, who gagged her mouth with his hand and took her to his vehicle and he also committed rape upon her. Thereafter, he left the spot after deboading her from his jeep. There is no explanation as to why she had again boarded the tempo of accused Abbu. Thereafter she saw a dhaba and inquired about the place from the owner of the dhaba. However, she did not disclose the incident to the owner of the dhaba. As per own version of the victim, accused Abbu stopped the tempo and dropped her on the way, gave her Rs.20/- and asked her to meet his friend Uttam alias Neelu at petrol pump. However, she has failed to explain as to why she had met accused Uttam Chand @ Neelu at petrol pump on the mere asking of accused Abbu, especially in view of the fact tha t at that time she had 21 2024:HHC:3571 enough opportunity to escape from the clutches of the accused persons. As per her statement recorded under Section 164, Cr.PC, a police man met her at some place at Una-Hoshiarpur road. However, she had not disclosed anything to the police man also. This conduct of the victim is unusual. The time and opportunities which the prosecutrix had, to report the matter to the police or any other person by raising an alarm when she was forced to undergo the trauma of rape is un- explainable.
22. Having discussed the testimony of the victim in detail, it is significant to examine whether the other evidence adduced by the prosecution finds support from the oral testimony of the victim
23. So far as medical evidence is concerned, PW-29 Dr. Seema Bhardwaj deposed that on 11.02.2018, she conducted the medical examination of the victim and gave her initial opinion which reads as under:-
"There are signs of vaginal penetration. There are signs of sexual intercourse, however, possibility of recent sexual activity can not be ruled out. There are signs of general physical injuries. The signs are consistent with the history given and there were no other sign of struggle except those mentioned earlier."
24. Thereafter, the doctor has given her final opinion as under:-
"As FTA card was not available at the time of examination. Kindly provide FTA card for DNA analysis of above mentioned sample. There are signs of vaginal penetration, however, potability of recent sexual activity cannot be ruled out."22
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25. It has come on record that during medical examination of the victim, following articles were sent to FSL:-
1. Blood in 2 tubes for serology and grouping + urine sample.
2. Finger nails scrapping
3. Cut pubic hair
4. Vaginal material for spermatozoa.
5. 2 slides
6. Cervical material for gonorrhea.
7. Per rectal swab.
8. Oral mucosa swab.
9. Clothes and undergarments.
10. Vaginal cotton swab-(1) Semen typing (ii) Acid Phosphate."
26. PW-36 LC Anuradha deposed that on 21.02.2018, she took the victim for her medical examination to CH Bhoranj. The medical officer handed over one sealed parcel with three seals of seal impression 'X' and one sealed Khakhi envelope, addressed to Director RFSL, Mandi, which was sealed with three seals of seal impression 'X' and one MLC to her. She handed over all the articles to MHC Rakesh Kumar.
27. During investigation, the accused persons were also got medically examined and their pubic hair, vest, pants, undergarments sample, nail, urine sample etc. were taken into possession and after depositing the same in the Malkhana, the same were sent to FSL.
28. It has also come in evidence on record that during investigation, the vehicles allegedly involved in the commission of the crime were seized and got inspected from the team of RFSL, Mandi, 23 2024:HHC:3571 who recovered hair, comb, seat cover, towel, handkerchief, shirt, steering wheel cover, newspapers, etc. from the vehicles and those articles were deposited in the Malkhana and thereafter, the same were sent to RFSL, Mandi
29. PW-35 HC Rakesh Kumar sent all the aforesaid articles to SFSL, Junga for examination. However, the SFSL reports with respect to the medical examination of the victim as well as the accused persons and also with respect to the articles seized from the vehicles were never produced before the Court. PW-29 Dr. Seema Bhardwaj, Medical Officer, had given the final opinion in the absence of SFSL report and she, in her cross-examination, admitted that the final opinion was issued without going through the report of DNA analysis. Therefore, in the absence of FSL report and report of DNA analysis, it cannot be said that those were the accused persons alone and no one else who had committed rape upon the victim. In order to connect the accused persons with the commission of the crime, the FSL report with respect to the medical examinations of the victim and accused persons as well as the articles seized from the vehicles was a significant piece of evidence, however, for the reasons best known to the prosecution, the FSL reports were withheld, as such, an adverse inference has to be drawn against the prosecution.
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30. Furthermore, the prosecution has also failed to produce on record the CCTV footage from the CCTV camera installed in the petrol pump at Hoshiarpur, which was allegedly taken in a pen drive by the investigating agency. It has come in the statement of PW-4 Sukhpal Singh, owner of the petrol pump, that during investigation the police had taken footage of CCTV camera installed in the petrol pump at Hoshiarpur in the name of Jupiter Service Station and they had taken the CCTV footage in a pen drive. PW-35 stated in his deposition before the Court that he had copied CCTV footage on the pen drive. However, the said CCTV footage has also not been produced in the Court for the reasons best known to the prosecution, as such, an adverse inference has to be drawn against the prosecution.
31. The learned counsel for the appellants next contended that the test identification parade was not conducted in accordance with the guidelines laid down by the Hon'ble Apex Court as the photographs of the accused persons were taken by the Investigating Officer and pasted on the conviction slip prior to the holding of TIP and there is every possibility that the photographs of accused persons were shown to the victim prior to the test identification parade as such this circumstance cannot be made a ground to hold the accused persons guilty.
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32. It is the settled principle of law regarding the Test Identification Parade that it is not a substantive piece of evidence and such tests are meant for the purpose of helping the investigating agency in order to ensure that their progress with the investigation into the offence is proceeding in the right direction. The Test Identification Parade is not a substantive evidence but it can only be used in corroboration of the statements in Court as held in the matter of Musheer Khan Alias Badshah Khan and another Vs. State of Madhya Pradesh, reported in (2010) 2 SCC 748, wherein the Hon'ble Supreme Court has observed at paragraphs 24, 25 & 26 as under:-
"24. It may be pointed out that identification test is not substantive evidence. Such tests are meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on right lines. (See Matru v. State of U.P., - 1971(2) SCC 75 at p. 83, para 17.)
25. It is also held by this Court that identification test parade is not substantive evidence but it can only be used in corroboration of the statements in court. (See Santokh Singh v. Izhar Hussain, - (1973) 2 SCC 406 at p. 412, para 11.)
26. Recently in Amitsingh Bhikamsingh Thakur v. State of Maharashtra - (2007) 2 SCC 310, this Court held on a consideration of various cases on the subject that the identification proceedings are in the nature of tests and there is no procedure either in Cr. P.C., 1973 or in the Evidence Act,1872 for holding such tests. The main object of holding such tests during investigation is to check the memory of witnesses based upon first impression and to enable the prosecution to decide whether these witnesses could be cited as eye witnesses of the crime. It has also been held that the evidence of the identification of the accused for the first time is inherently weak in character and the Court has held that the evidence in test identification parade does not constitute substantive evidence and these parades are governed by Section 162 of the Code of Criminal Procedure and the weight to be attached to such identification is a matter for the courts."26
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33. In Vijay @ Chinee's case (supra), the Hon'ble Supreme in para-15 held as under:-
"15. Holding of the Test Identification Parade is not a substantive piece of evidence, yet it may be used for the purpose of corroboration; for believing that a person brought before the Court is the real person involved in the commission of the crime. However, the Test Identification Parade, even if held, cannot be considered in all the cases as trustworthy evidence on which the conviction of the accused can be sustained. It is a rule of prudence which is required to be followed in cases where the accused is not known to the witness or the complainant. (Vide State of H.P. Vs. Lekh Raj)".
34. In Rajesh alias Sarkari and another Vs. State of Haryana, (2021) 1 SCC 118, the Hon'ble Supreme Court has held as under:-
"43.1. The purpose of conducting a TIP is that persons who claim to have seen the offender at the time of the occurrence identify them from amongst the other individuals without tutoring or aid from any source. An identification parade, in other words, tests the memory of the witnesses, in order for the prosecution to determine whether any or all of them can be cited as eye- witness to the crime;
43.2. There is no specific provision either in the CrPC or the Indian Evidence Act, 1872, which lends statutory authority to an identification parade. Identification parades belong to the stage of the investigation of crime and there is no provision which compels the investigating agency to hold or confers a right on the accused to claim a TIP.
43.3. Identification parades are governed in that context by the provision of Section 162 of CrPC.
43.4. A TIP should ordinarily be conducted soon after the arrest of the accused, so as to preclude a possibility of the accused being shown to the witnesses before it is held.
43.5. The identification of the accused in court constitutes substantive evidence.
43.6. Facts which establish the identity of the accused person are treated to be relevant under Section 9 of the Evidence Act.
43.7. A TIP may lend corroboration to the identification of the witness in court, if so required.
43.8. As a rule of prudence, the court would, generally speaking, look for corroboration of the witness' identification of the accused in court, in the form of earlier identification proceedings. The rule of prudence is subject to the exception 27 2024:HHC:3571 when the court considers it safe to rely upon the evidence of a particular witness without such, or other corroboration.
43.9. Since a TIP does not constitute substantive evidence, the failure to hold it does not ipso facto make the evidence of identification inadmissible.
43.10. The weight that is attached to such identification is a matter to be determined by the court in the circumstances of that particular case.
43.11. Identification of the accused in a TIP or in court is not essential in every case where guilt is established on the basis of circumstances which lend assurance to the nature and the quality of the evidence.
43.12. The court of fact may, in the context and circumstances of each case, determine whether an adverse inference should be drawn against the accused for refusing to participate in a TIP. However, the court would look for corroborating material of a substantial nature before it enters a finding in regard to the guilt of the accused."
35. In Gireesan Nair and others Vs. State of Kerala, (2023) 1 SCC 180, the Hon'ble Supreme Court has held in paras 29 to 33 as under:-
"29. TIPs belong to the stage of investigation by the police. It assures that investigation is proceeding in the right direction. It is a rule of prudence which is required to be followed in cases where the accused is not known to the witness or the complainant (Matru v. State of U.P. (1971) 2 SCC 75; Mulla v. State of U.P. (2010) 3 SCC 508 and C. Muniappan v. State of T.N. (2010) 9 SCC 567). The evidence of a TIP is admissible under Section 9 of the Evidence Act. However, it is not a substantive piece of evidence. Instead, it is used to corroborate the evidence given by witnesses before a court of law at the time of trial. Therefore, TIPs, even if held, cannot be considered in all the cases as trustworthy evidence on which the conviction of an accused can be sustained (State of H.P. v. Lekh Raj (2000) 1 SCC 247 and C. Muniappan v. State of T.N.).
30. It is a matter of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that a TIP is held without avoidable and unreasonable delay after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses before the test identification parade. This is a very common plea of the accused, and therefore, the prosecution has to be cautious to ensure that there 28 2024:HHC:3571 is no scope for making such an allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution. But reasons should be given as to why there was a delay (Mulla v. State of U.P. (2010) 3 SCC 508 and Suresh Chandra Bahri v. State of Bihar).
31. In cases where the witnesses have had ample opportunity to see the accused before the identification parade is held, it may adversely affect the trial. It is the duty of the prosecution to establish before the court that right from the day of arrest, the accused was kept "baparda" to rule out the possibility of their face being seen while in police custody. If the witnesses had the opportunity to see the accused before the TIP, be it in any form i.e. physically, through photographs or via media (newspapers, television, etc.), the evidence of the TIP is not admissible as a valid piece of evidence (Lal Singh v. State of U.P. (2003) 12 SCC 554 and Suryamoorthi v. Govindaswamy).
32. If identification in the TIP has taken place after the accused is shown to the witnesses, then not only is the evidence of TIP inadmissible, even an identification in a court during trial is meaningless (Sk. Umar Ahmed Shaikh v. State of Maharashtra (1998) 5 SCC 103). Even a TIP conducted in the presence of a police officer is inadmissible in light of Section 162 of the Code of Criminal Procedure, 1973 (Chunthuram v. State of Chhattisgarh (2020) 10 SCC 733 and Ramkishan Mithanlal Sharma v. State of Bombay).
33. It is significant to maintain a healthy ratio between suspects and non-suspects during a TIP. If rules to that effect are provided in Prison Manuals or if an appropriate authority has issued guidelines regarding the ratio to be maintained, then such rules/guidelines shall be followed. The officer conducting the TIP is under a compelling obligation to mandatorily maintain the prescribed ratio. While conducting a TIP, it is a sine qua non that the non-suspects should be of the same age-group and should also have similar physical features (size, weight, colour, beard, scars, marks, bodily injuries, etc.) to that of the suspects. The officer concerned overseeing the TIP should also record such physical features before commencing the TIP proceeding. This gives credibility to the TIP and ensures that the TIP is not just an empty formality (Rajesh Govind Jagesha v. State Of Maharashtra and Ravi v. State)."
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36. Reverting back to the case in hand, where it emerges from the evidence available on record that the Test Identification Parade was not conducted in accordance with the guidelines laid down in the aforesaid decisions of the Hon'ble Apex Court. PW-40 Vikrant Kaundal, the then ACJM, Court No.1, Hamirpur, deposed that the accused persons stated before him that the police had taken their photographs with the help of mobile in the police station. The SHO was asked about the taking of photographs to which he stated that the photographs were taken for the purpose of record. PW-42 SI Rajiv Kumar, who was the Investigating Officer, admitted in his cross- examination that he had taken the photographs of the accused persons on his mobile phone for the purpose of same being pasted on the conviction slip. To the Court question as to what was the necessity to affix the photograph of the accused persons on the conviction slip, he replied that there was no necessity to affix their photographs. He further admitted in cross-examination that when the accused persons were produced before the ACJM, the photographs of the accused persons were annexed to the conviction slip. Thus the possibility of the victim having seen the photographs of accused persons during their custody with the police and also subsequently before the TIP can not be ruled out. In addition, there is a clear circumstance proved on 30 2024:HHC:3571 record which is sufficient to have suspicion on the veracity of the TIP as during the second round, only the accused persons were made to wear jackets distinguishable from the apparels worn by other persons allegedly called for the purpose of said parade. PW-40 deposed that during second round, each accused was given a jacket to put on. There is no record to suggest that non-suspected selected for the parade were of the same age, height, general appearance and position as that of the accused persons. Moreover, there is a delay in conducting the TIP as admittedly, the accused persons were taken in custody on 13.02.2018, but the application for conducting of TIP was moved by the Investigating Officer on 16.02.2018, which delay the prosecution has failed to explain. Furthermore, PW-2, father of the victim, in his cross-examination, admitted that a lady police having two stars on her shoulders, was also present at the time of TIP.
37. Thus, it cannot be said the the TIP was conducted in accordance with the guidelines laid down in the aforesaid decisions of the Hon'ble Apex Court, as such, it cannot be held to be sustainable in the eyes of law and, based upon the aforesaid principles, no reliance could be placed upon the Test Identification Parades conducted, vide Ext.PW21/A to Ext. PW21/C. 31 2024:HHC:3571
38. In Ankush Maruti Shinde and others Vs. State of Maharashtra, (2019) 15 SCC 470, the Hon'ble Supreme Court has held as under:-
" 9.1 ..........At this stage, it is required to be noted that though the charge is of the rape and murder, there is no forensic evidence corroborating the prosecution case...........
9.7. As observed hereinabove, except the deposition of PW1 & PW8 and they identified the accused in the TI parade and/or before the Court (which for the reasons stated hereinabove, the conviction cannot rest on such identification), there is no other evidence, either scientific and/or other, corroborating the prosecution case. There is no forensic evidence corroborating the prosecution case............"
39. In the instant case also, there is no forensic and scientific evidence in order to corroborate the version of the victim. As observed earlier, the prosecution has withheld the CCTV footage, SFSL reports with respect to the medical examinations of the victim as well as the accused persons and also with respect to the articles which were seized from the vehicles allegedly involved in the commission of the crime to connect the accused persons with the commission of the offence. As observed earlier, the testimony of the victim is not natural and consistent with the case of the prosecution. Her version has no correlation with other supporting material being medical / scientific evidence as well as the reports of TIP. After re-scanning the entire case in its right perspective, we are of the firm view that if the evidence of the prosecutrix is read and considered in totality of the circumstances alongwith the other evidence on record, in which the 32 2024:HHC:3571 offence is alleged to have been committed, her deposition does not inspire confidence. The version of the victim has not been corroborated with other evidence and the same does not inspire confidence.
40. 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 a 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. The Supreme Court in Radhu vs. State of Madhya Pradesh, reported in 2007 Cri.L.J. 4704 had in this context noted as follows:-
"5.....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."
41. In Abbas Ahmed Choudhary Versus State of Assam, (2010) 12 SCC 115, the Hon'ble Supreme Court has held in para-11 that:-
"11.We are conscious of the fact that in a matter of rape, the statement of the prosecutrix must be given primary 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."
42. Keeping in view the overall facts and circumstances of the case, we are of the opinion that the prosecution has failed to establish 33 2024:HHC:3571 its case against the appellants/accused persons beyond reasonable doubt. Learned trial Court fell in error in ordering the conviction of the appellants and the reasons given by the learned trial Court in its judgment/order for convicting the appellant are perverse and not at all sustainable. Hence, all these appeals are allowed and the impugned judgment of conviction and order of sentence dated 11.06.2019, passed by learned Sessions Judge, Hamirpur, HP, in Sessions Trial No.21 of 2018, titled State of Himachal Pradesh Vs. Mustaq Mohammad @ Abbu & others, are set aside. The appellants are acquitted of the charges framed against them.
43. The appellants be set at liberty forthwith, if not required in any other case. Fine amount, if deposited by the appellants, be refunded to them. Release warrants be prepared forthwith.
44. The appellants are directed to furnish personal bonds in the sum of Rs.50,000/-each with one surety each in the like amount to the satisfaction of the Registrar (Judicial) of this Court, strictly in terms of provisions of Section 437-A of Cr.PC.
45. The appeals are accordingly disposed of, so also the pending miscellaneous application(s), if any.
46. Before parting with the case, we are pained to observe that the investigation in the case was conducted in a casual and perfunctory manner. As observed earlier, the prosecution has withheld the CCTV 34 2024:HHC:3571 footage, SFSL reports with respect to the medical examinations of the victim as well as the accused persons and also with respect to the articles which were seized from the vehicles allegedly involved in the commission of the crime in order to connect the accused persons with the commission of the offence. Therefore, the Director General of Police, State of Himachal Pradesh is directed to take appropriate disciplinary and departmental inquiry against the erring police officials for having conducted a shoddy investigation, that eventually led to the acquittal of the appellants herein.
47. Let a copy of this judgment be forwarded immediately to Director General of Police, State of Himachal Pradesh as well as to the Superintendent of Police, Hamirpur for necessary action.
( Tarlok Singh Chauhan )
Judge
( Sushil Kukreja )
June 18, 2024 Judge
(VH)
Digitally signed by VIRENDER BAHADUR
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