Himachal Pradesh High Court
Pankaj vs State Of Himachal Pradesh on 5 September, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal Nos. 251, 257 and 258 of 2018 Reserved on : 29.08.2019 Decided on : 05 .09. 2019.
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1. Cr. Appeal No. 251 of 2018 Pankaj .....Appellant Versus State of Himachal Pradesh. ....Respondents
2. Cr. Appeal No. 257 of 2018 Shiv Singh alias Lambu ....Appellant Versus State of Himachal Pradesh ...Respondent.
3. Cr. Appeal No. 258 of 2018 Rakesh Kumar r ....Appellant Versus State of Himachal Pradesh ....Respondent.
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 Yes For the appellant(s): Ms. Sheetal Vyas and Ms. Manika Mittal, Advocates.
For the respondent: Mr. Hemant Vaid, Mr. Vinod Thakur, Addl. Advocate Generals, with Mr. Bhupinder Thakur, Dy.
Advocate General and Mr. Ram Lal Thakur, Asstt. Advocate General.
_____________________________________________________________ Tarlok Singh Chauhan, Judge It is on account of the diversion views and conclusions drawn by the Hon'ble Members of the Division Bench that the present appeals have been assigned to this Court for disposal.1
Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 29/09/2019 03:11:01 :::HCHP ...2...
2. The instant appeals are directed against the judgment .
dated 01.11.2017, rendered by the learned Additional Sessions JudgeI, Kangra at Dharamshala, District Kangra (H.P), in Session Case No. 8I/VII/2015, whereby, the learned trial Court convicted, and, sentenced the appellants/accused to (a) undergo rigorous imprisonment for a period of two years, and, to pay a fine of Rs.2,000/ and in default of payment of fine to further undergo rigorous imprisonment for a period of three months, for commission of offence, punishable under Section 452 readwith Section 34 of the IPC, (b) undergo rigorous imprisonment for a period of two years, and, to pay a fine of Rs.2,000/ and in default of payment of fine to further undergo rigorous imprisonment for a period of three months, for commission of offence, punishable under Section 365 read with Section 34 of the IPC, (c) undergo rigorous imprisonment for a period of twenty years, and, to pay a fine of Rs.5,000/ and in default of payment of fine to further undergo rigorous imprisonment for a period of one year, for commission of offence, punishable under Section 376D readwith ::: Downloaded on - 29/09/2019 03:11:01 :::HCHP ...3...
Section 34 of the IPC. All the sentences were ordered to run .
concurrently.
3. Brief facts of the case are that the husband of the prosecutrix was working as a labourer at Lali stone Crusher, DhanguMazra Road. The prosecutrix was residing with her husband, and, a three years old son in a quarter near the Lali stone crusher. On 24.3.2015 at about 7.008.00 P.M. accused Shiv Singh alias Lambu, Rakesh and Pankaj, who were working at Pathania Stone Crusher came to the quarter of the prosecutrix, and, consumed liquor with the husband of the prosecutrix, and, left after about half an hour. At about 11.0011.30 P.M when the prosecutrix, her husband, and, their son, were sleeping, the accused persons entered the quarter of the prosecutrix and gagged her mouth and lifted her from her bed and took her to a quarter that was lying vacant and raped her one by one. The prosecutrix tried to raise alarm but the accused Shiv Singh alias Lambu gagged her mouth. After committing rape, the accused persons lifted the prosecutrix, and, left her near her quarter. The prosecutrix informed her husband, who took her to Saroj, the ::: Downloaded on - 29/09/2019 03:11:01 :::HCHP ...4...
chowkidar of the stone crusher. Saroj informed the police, and, .
accordingly police came at Lali Stone Crusher, where the statement of the prosecutrix under Section 154 of Cr.P.C was recorded by ASI Mohinder Kumar. On the basis of the said statement, formal FIR was registered, and, on conclusion of the investigation into the offences, allegedly committed by the accused, final report under Section 173 of the Code of Criminal Procedure was prepared and presented in the Court.
4. The accused persons were charged by the learned trial Court for theirs having committed offences punishable, under Sections 452, 365 and under section 376D readwith Section 34 of IPC, to which they pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution examined 26 witnesses. On closure of the prosecution evidence, the statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded wherein they pleaded innocence and claimed false implication. They did not choose to lead, any evidence in defence.
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6. On appraisal of the evidence on record, the learned .
trial Court returned findings of conviction against the accused/appellants.
7. It is vehemently argued by Ms. Sheetal Vyas, learned counsel for the appellants that the findings recorded by the learned Courts below are absolutely perverse inasmuch as there is no legally admissible evidence against the accused, more particularly, accused Pankaj. She further argued that even if the prosecution case is accepted as it is, even then at best it can be a case of consensual sex and not to rape and, therefore, also the judgment passed by the learned Court below deserves to be set aside.
8. On the other hand, Mr. Hemant Vaid, learned Additional Advocate General has argued that the findings of conviction recorded by the learned Courts below being based on correct appreciation of the facts and law calls for no interference and therefore, these appeals should be dismissed.
9. In order to appreciate the rival contentions, it would be necessary to refer to the statement of the relevant witnesses.
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10. The prosecutrix appeared as PW1 and deposed that .
she and her husband are labourers by profession and there are three stone crushers. They are working in the stone crusher of Lali situated at Mazra. On 24.3.2015, the accused came to their quarter in the evening and consumed liquor with her husband and thereafter all the accused persons left the house. At 10.00 p.m. she was sleeping in the quarter then 23 persons entered the quarter and gagged her mouth and lifted her outside the quarter. It was dark and therefore, she could not see the faces of those persons.
They took her in a room behind the quarter and committed sexual intercourse with her and thereafter those 23 persons left the room. She disclosed the incident to her husband and thereafter went to the Police Station to lodge a complaint. The police came to the spot and recorded her statement Ex. PW1/A over which she appended her thumb impression. Thereafter, the police got conducted her medical at hospital. She appended her thumb impression on MLC, Mark M1. She also gave her wearing apparels to the doctor at hospital. During the investigation, the Investigating Officer had recovered one clip from the spot which ::: Downloaded on - 29/09/2019 03:11:01 :::HCHP ...7...
belongs to PW1. She further stated that she could not remember .
anything else and could not recognize the persons nor knew their names who had committed sexual intercourse with her.
11. The prosecutrix was declared hostile and was permitted to be crossexamined by the Public Prosecutor. In cross examination, she admitted that the police interrogated and recorded her statement. She also admitted that at 10.00 p.m. her husband after having dinner went to sleep. She admitted that she closed the door of the quarter and went to sleep alongwith her son and husband. She also admitted that after sometime, someone opened the door and came inside and gagged her mouth and lifted her outside the room to Varandah. However, she denied that she disclosed to the police that one of the person was Lambu, who had pressed her mouth. However, she admitted that she had disclosed the names of accused Rakesh, Pankaj and Lambu to be present, who had committed sexual intercourse with her. Further she claimed that she had disclosed their names on the basis of suspicion as they had consumed liquor with her husband prior to the incident. However, she again denied that her mouth had been ::: Downloaded on - 29/09/2019 03:11:02 :::HCHP ...8...
gagged by accused Lambu when she had tried to cry for help. She .
denied that firstly Pankaj, secondly Rakesh and finally Lambu had committed sexual intercourse with her. However, she admitted that after the incident her husband had taken her to the Chowkidar of Crusher Saroj to whom she had narrated the entire incident. She also admitted that Saroj telephoned the police and thereafter the police had come to the spot. She admitted that during investigation, the Investigating Officer had found rubber band in the Varandah and one black colour clip at a distance of 10 meters from Varandah. She also admitted that the Investigating Officer had packed and sealed the rubber band along with clip inside the cloth parcel. She further admitted that the police had produced her before JMIC, Indora where she had got recorded her statement Ex.PW1/D and also acknowledged her thumb impression over the same. She had disclosed to the JMIC that all the accused had committed sexual intercourse with her. However, she again stated that they had not committed sexual intercourse with her. She denied the suggestion that she was deposing falsely as she had compromised the matter with the accused. She denied ::: Downloaded on - 29/09/2019 03:11:02 :::HCHP ...9...
having made the portion of statement A to A, B to B and C to C .
appearing in Ex. PW1/A and claimed that she had made no such statement.
12. The prosecutrix was thereafter crossexamined by the counsel for the accused wherein she admitted that there are 34 crushers in the vicinity of crusher where she alongwith her husband were working. She also admitted that workers of these crushers were residing near the crusher in the quarter situated near their quarter. She admitted that there are 3540 other workers who are working at crushers and are residing there. She admitted that she had bolted the door from inside before she went to sleep. She admitted that her quarter comprised of only one room which was meant for sleeping, cooking etc. She further admitted that the door of her quarter was not broken. She admitted that she was sleeping in the bed along with her son and husband. She admitted that when her mouth was gagged, she made efforts to raise alarm and further admitted that her husband had not woken up. She admitted that accused were frequent visitors to her quarter and due to this reason she ::: Downloaded on - 29/09/2019 03:11:02 :::HCHP ...10...
personally knew their names. She admitted that when she lodged .
the complaint, she was accompanied by her husband and Saroj, Chowkidar of the crusher. She denied having disclosed the names of accused persons as the persons who had committed sexual intercourse with her and claimed to have disclosed the names to the police only because they had consumed liquor with her husband in their quarter. She admitted that the police did not read over her statement Ex. PW1/A and claimed that the police had mentioned the names of these persons of their own. She further denied that she handed over her clip and rubber band to the police and stated that clip and rubber band shown to her in the Court was generally being used by those ladies residing in the vicinity. She admitted that she had made statement before the JMIC as was explained to her by the police. She further admitted that she had received injuries on mouth and neck due to the beatings given by her husband. She also admitted having implicated the accused persons due to misunderstanding.
13. PW2 Chandesher is the husband of the prosecutrix, who stated that in the year 2015 the accused had come to his ::: Downloaded on - 29/09/2019 03:11:02 :::HCHP ...11...
quarter where they had consumed liquor at 56 p.m. and .
thereafter they left the quarter. He had drunk so he went to sleep.
At about 2.00 a.m. in the midnight my wife told him that 23 persons had come inside the room and lifted her nearby quarter and committed sexual intercourse with her. Thereafter, he took his wife before Chowkidar Saroj of stone crusher where his wife narrated the incident to him. Saroj telephonically called the police on the spot, which apprehended the accused and took them to Police Post. They also went to the Police Post, however, no proceedings were recorded there and further stated that even his wife had not disclosed the names of the persons who had committed sexual intercourse with her nor did she identify them as it was dark.
14. The witness was declared hostile and permitted to be crossexamined by the Public Prosecutor. In crossexamination, he admitted that the police had interrogated him and recorded his statement. He also admitted that he had disclosed to the police that at 2.30 a.m. midnight when his wife came to the quarter her hair were not in order and lips were swollen. He admitted that ::: Downloaded on - 29/09/2019 03:11:02 :::HCHP ...12...
she was little bit nervous. He admitted that he disclosed to the .
police that my wife told me that at 11/11.30 p.m. when the light had gone someone had entered inside the quarter and gagged her mouth and thereafter lifted her out of the room to the Varandah.
However, he denied that his wife had further disclosed to him that she had found three persons who had lifted her and one of them she recognized as Lambu, who had gagged her mouth. He further denied that his wife told him that the accused had committed sexual intercourse with her inside the quarter. He further denied that his wife told him that she was trying to cry for help but Lambu had gagged her mouth. He further denied that Pankaj, Rakesh and Lambu had committed sexual intercourse with his wife. However, he admitted that his wife had disclosed to him that all the three persons had run away from the spot after committing sexual intercourse. He admitted that the police had recorded the statement of his wife on the spot and had also conducted the photography and videography and other proceedings on the spot.
However, he denied that he was deposing falsely as he had compromised the matter with the accused. He further denied that ::: Downloaded on - 29/09/2019 03:11:02 :::HCHP ...13...
having made portion A to A, B to B and C to C of his statement .
Mark X1 recorded under Section 161 Cr. P.C. He admitted that the accused persons were his very good friends. He admitted that the police had read over and explained the statement made by his wife and thereafter she had appended her thumb impression upon the same.
15. to The witness was thereafter crossexamined by the learned counsel for the accused wherein he admitted that his wife had disclosed the names of accused as the persons who had consumed liquor with him and not as the persons who had committed sexual intercourse with her. He admitted that the accused had been apprehended due to suspicion.
16. The statement of PW3 Anil Saini is only relevant to the extent that husband of the prosecutrix Chandesher alongwith his family shifted the quarter from the earlier place as the persons residing there used to tease the prosecutrix.
17. PW4 Rajesh Kumar and PW5 Ram Lal, are the witnesses of recovery of clip Ex.P1, rubber band Ex.P2 and ::: Downloaded on - 29/09/2019 03:11:02 :::HCHP ...14...
parcel Ex.P3, which were taken into possession vide memo .
Ex.PW1/B.
18. PW6 Dr. Shalini Dhiman was posted as Medical Officer, Civil Hospital, Nurpur and stated that on 25.3.2015 she received an application Ex.PW6/A for medical examination of the prosecutrix. On the same day at about 2.50 p.m., she examined the prosecutrix, who was brought to her with alleged history of sexual assault and according to victim, three accused had sexually assaulted her on the previous night around 12.30 a.m. on 25.3.2015. She did not know whether condom was used during sexual assault. On medical examination, she found small multiple abrasion present above lips, below chin and over the neck. Lymph and blood dried up leaving a bright scab, well heal scar of tubectomy that had been conducted one year back was present over lower abdomen. No injury marks were found over external genitalia. Hymen torn multiple side along circumference old heal tags present, the prosecutix was found to be menstruating.
Vaginal swabs were taken on four slides. Injuries found were simple in nature and were of duration of 12 to 24 hours. She ::: Downloaded on - 29/09/2019 03:11:02 :::HCHP ...15...
proved MLC Ex. PW6/B and thumb impression of the victim over .
the same. She also stated that blood sample of the victim had taken on the FTA card for chemical analysis and proved her report Ex.PW6/C. FSL report is Ex.PA and based upon the report of FSL, she opined that sexual intercourse had taken place, however, exact duration of sexual intercourse could not be given.
She further proved the final opinion Ex.PW6/D. Her cross examination was then deferred at the request of Public Prosecutor as the clothes of the victim that were taken into possession by the witness were not available in the Malkhana as the same had not been received back from FSL, Junga after DNA profiling.
Examination was deferred and the same thereafter was resumed on 15.7.2016. However, since this witness has only stated about the result of DNA profiling and her statement could not be of much assistance at this stage as the relevant witness from the FSL has not been examined by the prosecution to prove the report and the same shall be referred to at a later stage.
19. On being crossexamined by the defence counsel, the witness denied that the alleged history of occurrence was ::: Downloaded on - 29/09/2019 03:11:02 :::HCHP ...16...
disclosed to her by the police. However, she admitted that the .
prosecutrix had not disclosed the name of any culprit. She also admitted that there was no injury marks on the private part of the prosecutrix. She further admitted the suggestion that the abrasions which were mentioned in MLC were possible by beating. She admitted that being married the prosecutrix was exposed to sexual intercourse. However, she denied that for preserving the vaginal swab refrigeration is required and further denied that the samples were not sealed.
20. PW7 Dr. Rakesh Purohit, Medical Officer, CHC, Indora has stated that he examined all the accused persons and opined that they were capable of performing sexual intercourse.
21. PW8 Rakesh Kumar stated that he was Foreman in Pathania Stone Crusher and on 25.4.2015 the crusher was closed being holiday. He stated that he went to the quarter of Chandesher and all the three accused came to the quarter where they consumed liquor. After consuming liquor, he returned at
11. 00 p.m., whereas the accused remained in the quarter. On the next day, husband of the prosecutrix told him that the accused ::: Downloaded on - 29/09/2019 03:11:02 :::HCHP ...17...
had committed rape with his wife in the night. In cross .
examination, he stated that for the first time, he had gone to consume the liquor in the quarter of Chandesher on that date.
22. PW9 SI Mast Ram, registered FIR Ex.PW9/A on receiving rukka Ex.PW1/A. He also proved an endorsement on rukka Ex. PW9/B. After registration of the case, he sent the file along with copy of FIR to the Investigating Officer on the spot through PW15 LHC Arjun Singh.
23. PW10 Satwinder Singh is the owner of S. S. Stone Crusher, Dhangu Mazra Road, Damtal and he had given his quarter to PW3 Anil Saini, who, in turn, had given the quarter to Chandesher with his permission in the year 2015.
24. PW11 Roshan Lal, Photographer photographed and videographed the spot and proved the photographs, CD and certificate.
25. PW12 Saroj Kumar is the Chowkidar of Lali Stone Crusher, who deposed that on the intervening night of 24/25.3.2015 at about 3.203.00 a.m. Chandesher, who was also working at Lali Stone Crusher, came to him and asked to give the ::: Downloaded on - 29/09/2019 03:11:02 :::HCHP ...18...
telephone number of Lali Stone Crusher. He was upset. This .
witness was declared hostile as he did not support the case of the prosecution and was crossexamined by the Public Prosecutor, where he denied that Chandesher disclosed to him that the accused persons had taken his wife from the house to the adjoining room and then raped her. He denied that the prosecutrix was also accompanying her husband. He denied to have informed the police about the incident. He admitted that he has good relations with the accused persons, who too, met him in the court complex when his statement was recorded. He denied the suggestion that he was deposing falsely in order to protect the accused persons.
26. PW13 Ranjeet Singh is the owner of the Happy Stone Crusher, Dhangu Mazra and did not support the prosecution and was thus declared hostile. On being crossexamined by the Public Prosecutor, he denied that the accused persons used to tease the prosecutrix and he also warned them. He denied that Chandesher disclosed to him on 25.3.2015 that the accused had raped his wife.
He further denied that during investigation, accused persons had ::: Downloaded on - 29/09/2019 03:11:02 :::HCHP ...19...
given demarcation of the spot where they had raped the .
prosecutrix and to this effect memo Ex. PW3/A was prepared.
Even though, he admitted his signatures on the memo, but clarified that his signatures were obtained in the office of his stone crusher. He admitted that his statement was recorded by the police. He denied that due to good relations with the accused persons, he was deposing falsely.
27. PW14 HHC Mohinder Singh handed over the case property at FSL, Junga.
28. PW15 HHC Arjun Singh, PW16 HHC Ashok Kumar and PW17 HHC Shashi Pal, got medically examined the accused Shiv Singh, Pankaj and Rakesh Kumar and thereafter handed over the three parcels each bearing seal impression "+" which they in turn, had handed over to PW23 HC Chain singh, MHC, Police Station, Indora.
29. PW18 HHC Kewal Kumar, proved rapat Ex.
PW18/A.
30. PW19 Shamsher Singh, Munshi of Pathania Stone Crusher, Dhangu Mazra was on duty on 24.3.2015 during night ::: Downloaded on - 29/09/2019 03:11:02 :::HCHP ...20...
hours and stated that he saw the accused persons near the stone .
crusher at 12.00 O'clock. He asked the accused persons to go to their quarters and on this, the accused persons disclosed that they had come to drink water from the water tank. He deposed that he had heard in the morning that a lady had been raped.
31. PW20 Niranjan Singh, Judicial Magistrate, Indora recorded the statement of the prosecutrix Ex.PW1/D under Section 164 of Cr.P.C. on 26.3.2015 and deposed that he had recorded the statement of prosecutrix as per her version wherein she had stated that rape had been committed by the accused at 12.00 midnight on 24.3.2015. According to this witness, the prosecutrix made this statement voluntarily and to this effect, he proved his certificate Ex. PW20/D. During crossexamination by the counsel for the accused persons, he deposed that the prosecutrix volunteered for the statement, as such, she was given time for reflection and thereafter the statement of the prosecutrix was recorded after one hour. He denied that the prosecutrix did not disclose the names of the accused persons.
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32. PW21 LHC Ranjana Sharma got conducted the .
medical examination of the prosecutrix at Civil Hospital, Nurpur and deposed that after medical examination, the Medical Officer had handed over two cloth parcels sealed with seal impression "M", three plastic vials sealed with seal impression "M" and one envelope addressed to RFSL, Dharamshala, which was handed over to PW23 MHC Chain Singh. On 26.3.2015, she accompanied the prosecutrix to Civil Hospital, Nurpur for obtaining her DNA sample and after obtaining the same, the Medical Officer handed over one plastic vial sealed with seal impression "M", one envelope sealed with seal impression "M" and the sample seal, which she handed over to PW23 MHC Chain Singh, P.S., Indora.
33. PW22 SI Chain Singh prepared the chargesheet.
34. PW23 HC Chain Singh, P.S. Indora, received the case property and entered the same in Malkhana Register and thereafter sent the same to FSL, Junga through PW14 HHC Mohinder Singh vide R.C. Ex. PW14/A. He also proved the CIPA Certificate Ex.PW23/B. During crossexamination by the learned counsel for the accused persons, he denied that the parcels which ::: Downloaded on - 29/09/2019 03:11:02 :::HCHP ...22...
he received were not sealed. He denied that the parcels were .
tampered with when these were in his possession.
35. PW24 ASI Mohinder Kumar conducted investigation being Investigating Officer and deposed that it was surfaced in the investigation that during intervening night of 24/25.3.2015 the accused persons entered into the house of the prosecutrix, dragged her to the place of occurrence and committed forcible sexual assault on her. During crossexamination by the learned counsel for the accused persons, he deposed that on receiving information, he reached Lali Stone Crusher within half an hour where the prosecutrix, her husband and Saroj, the Chowkidar of the Lali Stone Crusher, were present. He recorded the statement of the prosecutrix under Section 154 of Cr.P.C. at Lali Stone Crusher. He denied that in her statement the prosecutrix did not disclose the name of any of the accused persons. According to him, the distance of the spot from the house of the prosecutrix was about 25 meters and there was no other house in the locality where the prosecutrix was residing. He however, could not tell that there was some tussle between the owners of Lali Stone ::: Downloaded on - 29/09/2019 03:11:02 :::HCHP ...23...
Crusher and Happy Stone Crusher and owing to such tussle, the .
owner of Lali Stone Crusher got manipulated a false case against the accused persons. He deposed that neither window nor door of the house of the prosecutrix was found broken. He denied that he tutored the prosecutrix about the statement to be recorded by the JMIC, Indora. He further denied that the samples had been tampered with. He denied that the accused persons had not committed sexual intercourse with the prosecutrix.
36. PW25 Inspector Tilak Raj received the DNA Report Ex.PW7/D and prepared and presented the supplementary challan.
37. PW26 Dr. Arun Sharma, Director of Forensic Science Laboratory, Himachal Pradesh, proved the DNA Report Ex.PW7/D, wherein it was concluded that mixed DNA profile was obtained from Ex.1(vaginal swabs of prosecutrix) from which three DNA profiles could be identified. Of the mixed DNA profile;
one DNA profile matched with the DNA profile obtained from Ex.11 (blood sample on FTA card, Shiv Singh), second DNA profile matched with the DNA profile obtained from Ex.14 (blood sample ::: Downloaded on - 29/09/2019 03:11:02 :::HCHP ...24...
on FTA card, Rakesh Kumar) and the third DNA profile matched .
with the DNA profile obtained from Ex.5 (blood sample of prosecutrix) This is the entire evidence led by the prosecution.
38. The law is wellsettled that prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon and made basis of conviction unless corroborated in material particulars. However, the rule about the admissibility of corroboration should be present to the mind of the Judge. It has to be borne in mind that rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very should of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape.
The must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not ::: Downloaded on - 29/09/2019 03:11:02 :::HCHP ...25...
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.
(Refer: State of Punjab vs. Gurmeet Singh (1996) 2 SC 384).
39. It is now well settled principle of law that conviction can be founded on the sole testimony of the prosecutrix, unless there are compelling reasons for seeking corroboration. It is also equally settled that 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 the given circumstances.
(Refer: State of Punjab Vs. Gurmit Singh (1996) 2 SCC 384, State of Himachal Pradesh Vs. Asha Ram AIR 2006 SC 381 and Rajinder Vs. State of Himachal Pradesh, (2009) 16 SCC
69.) However, it has to be borne in mind that a case of sexual assault has to be proved beyond reasonable doubt as any other case and there is no presumption that the prosecutrix would always tell the entire story truthfully.
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40. In Rajoo Vs. State of Madhya Pradesh (2008) 15 .
SCC 133, the Hon'ble Supreme Court held that the testimony of a victim of rape has to be treated as if she is an injured witness, but cannot be presumed to be a gospel truth. It was held that: "9. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspect and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the Court. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration. Reference has been made in Gurmit Singh's case to the amendments in 1983 to Sections 375 and 376 of the India Penal Code making the penal provisions relating to rape more stringent, and also to Section 114A of the Evidence Act with respect to a presumption to be raised with regard to allegations of ::: Downloaded on - 29/09/2019 03:11:02 :::HCHP ...27...
consensual sex in a case of alleged rape. It is however significant that Sections 113A and 113B too were .
inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two Sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualized as the presumption under Section 114A is extremely restricted in its applicability. This clearly shows that in so far as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined."
41. In Tameezuddin @ Tammu Vs. State (NCT of Delhi), (2009) 15 SCC 566, it was held as under: "7. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. We are of the opinion that story is indeed improbable. ....."
42. In Dinesh Jaiswal Vs. State of MP, (2010) 3 SCC 323, the Hon'ble Supreme Court held as under: ::: Downloaded on - 29/09/2019 03:11:02 :::HCHP ...28...
"10. Mr. C.D. Singh has however placed reliance on Moti Lal's case (supra) to contend that the evidence of the .
prosecutrix was liable to be believed save in exceptional circumstances. There can be no quarrel with this proposition (and it has been so emphasised by this Court time and again) but to hold that a prosecutrix must be believed irrespective of the improbabilities in her story, is an argument that can never be accepted. The test always is as to whether the given story prima facie inspires confidence. We are of the opinion that the present matter is indeed an exceptional one."
43. In Abbas Ahmad Choudhary Vs. State of Assam, 2010 (12) SCC 115, the Hon'ble Supreme Court observed that: "5. We are however, of the opinion that the involvement of Abbas Ahmad Choudhary seems to be uncertain. It must first be borne in mind that in hery statement recorded on 17th September, 1997, the prosecutrix had not attributed any rape to Abbas Ahmad Choudhary.
Likewise, she had stated that he was not one of those who kidnapped her and taken to Jalalpur Tea Estate and on the other hand she categorically stated that while she along with Mizazul Haq and Ranju Das were returning to the village that he had joined them somewhere along the way but had still not committed rape on her. It is true that in her statement in court she has attributed rape to Abbas Ahmad Choudhary as well, but in the light of the aforesaid contradictions some doubt is created with regard to his involvement. Some corroboration of rape could have been found if Abbas Ahmad Choudhary too had been apprehended and taken to the police station by P.W. 5 Ranjit Dutta the Constable. The Constable, however, made a statement which was corroborated by the Investigating Officer that only two of the appellants Ranju Das and Md. Mizalul Haq along with the ::: Downloaded on - 29/09/2019 03:11:02 :::HCHP ...29...
prosecutrix had been brought to the police station as Abbas Ahmad Choudhary had run away while en route .
to the police station. Resultantly, an inference can be rightly drawn that Abbas Ahmad Choudhary was perhaps not in the car when the complainant and two of the appellants had been apprehended by Constable Ranjit Dutta. We are, therefore, of the opinion that the involvement of Abbas Ahmad Choudhary is doubtful. 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."
44. In Rai Sandeep @ Deepu Vs. State of NCT of Delhi (2012( 8 SCC 21, the Hon'ble Supreme Court commented about the quality of the sole testimony of the prosecutrix, which would be made basis to convict the accused and it was held: "15. In our considered opinion, the sterling witness should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the ::: Downloaded on - 29/09/2019 03:11:02 :::HCHP ...30...
case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The .
witness should be in a position to withstand the cross examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have correlation with each and everyone of other supporting such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a sterling witness whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
45. Reverting back to the facts, it would be noticed that the prosecutrix has resiled from her earlier statement and has not corroborated the one as recorded under Section 164 Cr.P.C. and ::: Downloaded on - 29/09/2019 03:11:02 :::HCHP ...31...
she has not supported the case of the prosecution. As regards the .
statement given by her under Section 164 Cr.P.C., the objective behind recording the same is that it is for an assurance that the investigation is going on in right direction, it is going against a right person(s) and, a belief that it will instill a sense of feeling in the mind of the deponent that later she should not resile from it.
Section 164 Cr.P.C. enables recording of statement of witnesses by the Magistrate and confession from the accused.
46. With regard to the value to be given to her statement recorded under Section 164 Cr.P.C., the Hon'ble Supreme Court in Ram Kishan Singh vs. Harmit Kaur and another, AIR 1972 S.C. 468 held as under:
"8. A statement under Section 164 of the Code of Criminal Procedure is not substantive evidence. It can be used to corroborate the statement of a witness. It can be used to contradict a witness. ..."
47. Although, the statement of a witness recorded under Section 164 Cr.P.C. during investigation is also a previous statement like a statement recorded under Section 161 Cr.P.C., ::: Downloaded on - 29/09/2019 03:11:02 :::HCHP ...32...
but, it has some higher value than the statement recorded under .
Section 161 Cr.P.C. by the police since it was recorded by a Magistrate.
48. In Ram Prasad vs. State of Maharashtra, 1999 Cri. L.J. 2889 (SC), the Hon'ble Supreme Court while dealing with Section 164 Cr.P.C. observed as follows:
"15. Be that as it may, the question is whether the Court could treat it as an item of evidence for any purpose.
Section 157 of the Evidence Act permits proof of any former statement made by a witness relating to the same fact before any authority legally competent to investigate the fact but its use is limited to corroboration of the testimony of such a witness. Though a police officer is legally competent to investigate, any statement made to him during such an investigation cannot be used to corroborate the testimony of a witness because of the clear interdict contained in Section 162 of the Code. But a statement made to a Magistrate is not affected by the prohibition contained in the said section. A Magistrate can record the statement of a person as provided in Section 164 of the Code and such a statement would either be elevated to the status of Section 32 if the maker of the statement subsequently dies or it would remain ::: Downloaded on - 29/09/2019 03:11:02 :::HCHP ...33...
within the realm of what it was originally. A statement .
recorded by a Magistrate under Section 164 becomes usable to corroborate the witness as provided in Section 157 of the Evidence Act or to contradict him as provided in Section 155 thereof."
49. Thus, what is evidently clear from the aforesaid exposition of law is that the statement of a witness under Section 164 Cr.P.C. cannot be treated as substantive piece of evidence as the statement of the witness is recorded where the accused have hardly any occasion to crossexamine him. It can be used only to corroborate the statement of witness or to contradict him.
50. The questions arising for consideration in such like cases would be: whether the prosecution story, as alleged, inspires confidence of the Court on the evidence adduced? Whether the prosecutrix, is a witness worthy of reliance? Whether the testimony of a prosecutrix who has been in victim of rape stands in need of corroboration and, if so, whether such corroboration is available in the facts of the present case? What was the age of the prosecutrix? Whether she was a consenting party to the crime?
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Whether there was unexplained delay in lodging the FIR? (Refer:
.
State of Rajasthan vs. N.K. The Accused (2000) 5 SCC 30).
51. Bearing in mind the aforesaid exposition of law, it would be noticed that the prosecutrix while appearing as PW1 did not support the case of the prosecution regarding rape having been committed by the accused. As a matter of fact, she stated that she did not remember anything and could not recognize the persons who had committed sexual intercourse with her. She resiled from her earlier statement that it was Lambu, who had gagged her mouth. The prosecutrix further stated that she had made statement under Section 164 Cr.P.C. as was explained to her by the police.
52. Be that as it may, the presence and identity of all the accused at the relevant time and at the relevant place is duly established from the overwhelming evidence available on record.
Their presence is not only duly established from the statement of the prosecutrix herself, but even her husband PW2 Chandesher.
PW8 Rakesh Kumar and PW19 Shamsher Singh, Munshi at Pathania Stone Crusher, who clearly stated that he had seen the ::: Downloaded on - 29/09/2019 03:11:02 :::HCHP ...35...
accused persons near the stone crusher at about 12 O'clock in the .
intervening night of 24/25.3.2015.
53. DNA report Ex.PW7/A, which has been duly proved by Dr. Arun Sharma, PW26, proves beyond reasonable doubt that accused Shiv Singh and Rakesh Kumar had committed sexual intercourse with the prosecutrix. However, as regards the accused Pankaj, there is hardly any evidence to conclusively prove on record that he had committed sexual intercourse with the prosecutrix.
54. On conjoint reading of statements of PW6, PW7 and PW26 and the relevant documents/exhibits in this regard, it is clearly established that DNA profile obtained from vaginal swabs of prosecutrix, though has matched with the DNA profile obtained from two accused i.e. Rakesh Kumar and Shiv Singh, but it did not match with that of Pankaj.
55. Thus, what stands established on the record is that the accused Shiv Singh and Rakesh Kumar had committed sexual intercourse with the prosecutrix. Yet, the question remains whether the accused had trespassed into the property and ::: Downloaded on - 29/09/2019 03:11:02 :::HCHP ...36...
thereafter forcibly committed sexual intercourse with the .
prosecutrix so as to amount to rape.
56. It has specifically come in the statement of prosecutrix that she had bolted the door from inside and therefore it was she alone who could have opened the same as it has specifically come in the evidence that neither door nor window was broken for gaining entry to the one round quarter of the prosecutrix. It is the case of the prosecution which otherwise is not supported by the prosecutrix that victim i.e. prosecutrix was dragged by the accused, but the medical report does not indicate any sign or injury either internal or external. Even the apparels worn by the prosecutrix at the relevant time were not torn during the incident.
In case the sexual intercourse was being performed by the accused forcibly, then obviously, there would be some struggle in which atleast the clothes worn would not remain safe. That apart, there was no marks of injury found on the private part or any other part of the body of the prosecutrix and small abrasion etc. have been attributed to the beatings given to the prosecutrix by her husband.
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57. It is true that injury is not a sine qua non for deciding .
whether rape has been committed and this question to be decided on the factual matrix of each case. As was observed by the Hon'ble Supreme Court in Pratap Misra and others vs. State of Orissa (1977) 3 SCC 41, where allegation is of rape by many persons and several times but no injury is noticed that certainly is an important factor if the prosecutrix's version is credible, then no corroboration is necessary. But if the prosecutrix's version is not credible then there would be need for corroboration.
58. It would be apposite to refer to the decision of the Hon'ble Supreme Court in Rai Sandeep alias Deepu vs. State (NCT of Delhi) (2012) 8 SCC 21, wherein the quality of the testimony of the prosecutrix which can be made basis to convict the appellant/accused was considered in detail and it was held in paragraph 22 as under:
"22. In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement ::: Downloaded on - 29/09/2019 03:11:02 :::HCHP ...38...
made by such a witness. What would be more relevant would be the consistency of the statement right from the starting .
point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him.
Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
59. As already observed above, leave alone there being the 'sterling witness' of high quality and caliber, the prosecutrix herself has not supported the case of the prosecution. When the testimony of the prosecutrix and her husband are tested on the ::: Downloaded on - 29/09/2019 03:11:02 :::HCHP ...39...
arise of the principles laid down by the Hon'ble Supreme Court, .
then it is evidently clear that they have not supported the case of the prosecution in the court and, that is, what finally matters as is more than established the statement earlier given under Section 161 Cr.P.C. and under Section 164 Cr.P.C. are not substantive purpose.
r to piece of evidence and cannot be relied upon except for a limited
60. Even the conduct of the prosecutrix during the alleged ordeal is also unlike a victim of forcible rape and betrays somewhat submissive and consensual disposition.
61. In State of M.P. vs. Munna @ Shambhu Nath, (2016) 1 SCC 696, it was held by the Hon'ble Supreme Court that if the girl is found to be above 16 years of age, she would be competent to give her consent, thus, question of rape will not arise, if consensual intercourse has been proved.
62. Here, it needs to be clarified that this Court is not oblivious to the provisions of Section 114A of the Indian Evidence Act, 1872, which was inserted by way of amendment, where there is a clear and specific provision that where sexual intercourse by ::: Downloaded on - 29/09/2019 03:11:02 :::HCHP ...40...
the accused is proved and the question is whether it was without .
the consent of the woman alleged to have been raped, and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent.
63. However, this is not the fact situation obtaining in the instant case as the prosecutrix has not at all supported the case regarding she being raped by the accused.
64. It is evidently clear that the accused did not trespass into the quarter of the husband of the prosecutrix, therefore, there was no question of the accused being charged under Section 452 IPC.
65. As regards the forcible sexual intercourse having been committed by the accused persons, the same have also not been conclusively established by the prosecution, and therefore, these appellants/accused are entitled to the benefit of doubt.
66. Unfortunately, the learned Court below did not at all advert to the consensual nature of the Act and simply on the basis of the DNA report, proceeded to convict the accused.
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67. Consequently, the appeals filed by the appellants are .
allowed and they are acquitted of the commission of offences punishable under Sections 452, 365 and 376(D) read with Section 34 of IPC. Resultantly, the appellants, who are presently serving out the sentence, be released forthwith, if not required in any other case, subject to their furnishing personal bond in the sum of Rs.50,000/ each with one surety in the like amount each to the satisfaction of concerned Jail Superintendent, who in turn, will send the same to the learned trial Court, so that in the event of any appeal against this judgment is preferred, their presence in the appellate Court be secured. The bonds so furnished shall, however, remain in force only for a period of six months. Release warrants be prepared accordingly.
68. The appeals are disposed of in the aforesaid terms, so also the pending application(s), if any.
5th September, 2019 (Tarlok Singh Chauhan)
(GR) Judge
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