Himachal Pradesh High Court
State Of Himachal Pradesh vs Devinder Kumar And Another on 25 September, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
Neutral Citation No. ( 2024:HHC:9093 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Criminal Appeal No.174 of 2014.
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Reserved on: 18.09.2024.
Date of decision: 25.09.2024.
State of Himachal Pradesh ...Appellant.
Versus Devinder Kumar and another ...Respondents.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting? No For the Appellant : Mr. Yashwardhan Chauhan, Senior Additional Advocate General with Mr. Navlesh Verma, Ms. Sharmila Patial, Additional Advocates General and Mr. Raj Negi, Deputy Advocate General.
For the Respondents: Mr. Manoj Pathak and Mr. Harsh Sharol, Advocates, for respondent No.1.
Mr. Ajay Kochhar, Senior Advocate with Mr. Vivek Sharma, Advocate, for respondent No.2.
Tarlok Singh Chauhan, Judge Aggrieved by the acquittal of the respondents for the offence punishable under Sections 363 and 376(2)(g) of the Indian Penal Code (for short ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 2 Neutral Citation No. ( 2024:HHC:9093 ) 'IPC') read with Section 34 IPC vide judgment dated 29.11.2013 passed by the learned Additional Sessions .
Judge-I, Shimla, H.P., the State has filed the instant appeal.
2. The case of the prosecution, in a brief, is that on 12.06.2012, Poonam elder sister of the prosecutrix informed police that prosecutrix along with her mother was away to the house of her maternal aunt and while on 11.06.2012, when they were returning, then prosecutrix went to school but did not return to home by evening time. The complainant along with her brother searched prosecutrix here and there at Shoghi but was not traceable and then on 12.06.2012, a missing report was lodged with the police at Police Station, Boileauganj, Shimla.
3. It was alleged that on 12.06.2012 when they were coming to home from Police Station, Boileauganj, then at about 7.00 p.m., the prosecutrix was noticed at Mohari near Railway Station by the complainant and her brother. The prosecutrix was weeping and, on being asked, she told to complainant that she was taken away by two persons with them in a pickup ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 3 Neutral Citation No. ( 2024:HHC:9093 ) towards Shimla side. It was told by the prosecutrix that she neither saw said two persons earlier nor they were .
known to her and she did not even remember the number of the vehicle. It was further alleged that the prosecutrix was not telling anything to her family members but stated that she had been raped.
Thereafter, the complainant went back to Police Station, Boileauganj and lodged this case.
4. It is further the case of the prosecution that after registration of the case, investigation was carried out and during the investigation, medical examination of the prosecutrix was got done on 12.06.2012 itself, however, Medical Officer ('M.O.') reserved final opinion which was to be given on receipt of FSL report. Vaginal swab, slide, 'salwar' of the prosecutrix was taken in possession by the M.O. along with pubic hair and preservatives were handed over to police to be sent for chemical examination. It was alleged that the prosecutrix was frightened and was not telling anything and due to that reason her statement was recorded on 30.06.2012 under Section 161 Cr.P.C. in which she stated that while on 11.06.2012, she was waiting for ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 4 Neutral Citation No. ( 2024:HHC:9093 ) her friend at about 4.00 p.m. at Shoghi, then a person having photographer shop met her and took her .
towards Railway Station ahead in the jungle and raped her. It was stated that the person, who raped her was Devinder and after committing rape, he called Abhishek by telephone and he also committed rape on her. It was also alleged that thereafter both the aforesaid persons took her towards Ghanahatti in the pickup and there again they committed rape on her and from Ghanahatti, she was taken to Kullu and on 12.06.2012, she was left at Shoghi near stairs and threatened not to disclose anything to any one.
5. During investigation, the Investigating Officer ('I.O.') prepared spot map of place Shoghi where rape was committed on the prosecutrix and also of the place from where she was recovered by the complainant. Respondents were arrested and interrogated and respondent Devinder while in custody on 03.07.2012 made a disclosure statement in the presence of witnesses that he could show the place where he had kept condom at 'Soleh Meel' near Ghanahatti and got recovered the pieces of condom ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 5 Neutral Citation No. ( 2024:HHC:9093 ) and the same were put inside a 'dibbi' and was sealed in a parcel and thereafter taken into possession vide .
recovery memo. The I.O. prepared photographs and spot map of the said place.
6. The prosecutrix was again examined on 10.08.2012 and her statement was recorded through videography. The respondents were also got medically examined, their clothes, blood sample, public hair, semen etc. were taken for the purpose of chemical examination.
7. The vehicle used in the commission of the offence was recovered from Sadhupul and the same was taken into possession along with its documents vide separate memo prepared to this effect. Pubic hair, clothes, semen, blood sample, vaginal swab and slide in sealed parcel were deposited with MHC and the same were sent for chemical examination and reports were received and stains of human blood and semen were found on the 'salwar' of the prosecutrix and the M.O. on perusal of the said FSL reports gave opinion that there is evidence of recent sexual intercourse.
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8. During investigation, the spots were also got verified from the respondents. During the course of .
trial, the prosecution was asked about DNA report which was awaited but it was stated that in this case nothing was sent for DNA analysis and it was inadvertently mentioned in the challan.
9. After completion of the entire codal formalities, the challan was filed by the police before the Court of learned Chief Judicial Magistrate, who assigned the same to Learned Judicial Magistrate 1 st Class (4), Shimla, who then committed the case to the Court of learned Sessions Judge, Shimla.
10. On finding a prima facie case, the respondents were charged for the offence punishable under Sections 376(2)(g) and 363 IPC read with Section 34 IPC to which they pleaded not guilty and claimed to be tried.
11. In order to prove its case, the prosecution examined as many as 16 witnesses in all. Thereafter, on closure of the prosecution evidence, statements of the respondents were recorded under Section 313 Cr.P.C. wherein they pleaded their innocence. The ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 7 Neutral Citation No. ( 2024:HHC:9093 ) respondents were afforded an opportunity to lead evidence, however, no evidence in defence was led.
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12. It is vehemently argued by the learned Additional Advocate General that the findings recorded by the learned Special Judge are absolutely perverse and, therefore, deserve to be set aside.
13. On the other hand, learned counsels for the respective respondents have supported the judgment and would contend that the findings rendered by the learned Additional Sessions Judge are based upon the evidence that was available on record.
14. We have heard the learned counsel for the parties and have also gone through the material available on record.
15. At the outset, we would reiterate the principles laid down by the Hon'ble Apex Court, governing the scope of interference by the High Court in an appeal filed by the State for assailing the acquittal of the accused, on the findings recorded by the learned trial Court.
16. In Rajesh Prasad vs. State of Bihar and another (2022) 3 SCC 471, a three Judge Bench of the ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 8 Neutral Citation No. ( 2024:HHC:9093 ) Hon'ble Apex Court encapsulated the legal position governing the field after considering various earlier .
judgments and held as under:-
"29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words:
(Chandrappa v. State of Karnataka (2007) 4 SCC 415, SCC p. 432, para 42) "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 9 Neutral Citation No. ( 2024:HHC:9093 ) curtail the power of the court to review the evidence and to come to its own conclusion.
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(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law.
Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed r and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
17. Further, in case titled as H.D. Sundara and others vs. State of Karnataka (2023) 9 SCC 581, the Hon'ble Apex Court summarized the principles governing the exercise of Appellate jurisdiction, while dealing with an appeal against acquittal under Section 378 Cr.P.C.
The relevant paragraphs No. 8 to 10 of the judgment are reproduced as under:-
"8. In this appeal, we are called upon to consider the legality and validity of the impugned judgment rendered by the High Court while deciding an appeal against acquittal under Section 378 of the Code of Criminal Procedure, ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 10 Neutral Citation No. ( 2024:HHC:9093 ) 1973 (for short, 'Cr.P.C.'). The principles which govern the exercise of appellate jurisdiction .
while dealing with an appeal against acquittal under Section 378 of Cr.P.C. can be summarised as follows:-
8.1. The acquittal of the accused further strengthens the presumption of innocence;
8.2. The Appellate Court, while hearing an appeal against acquittal, is entitled to re-
appreciate the oral and documentary evidence;
8.3. The Appellate Court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the Trial Court is a possible view which could have been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the Appellate Court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The Appellate Court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.
9. Normally, when an Appellate Court exercises appellate jurisdiction, the duty of the Appellate Court is to find out whether the verdict which is under challenge is correct or incorrect in law and on facts. The Appellate Court normally ascertains whether the decision under challenge is legal or illegal. But while dealing with an ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 11 Neutral Citation No. ( 2024:HHC:9093 ) appeal against acquittal, the Appellate Court cannot examine the impugned judgment only to .
find out whether the view taken was correct or incorrect. After re-appreciating the oral and documentary evidence, the Appellate Court must first decide whether the Trial Court's view was a possible view. The Appellate Court cannot overturn acquittal only on the ground that after re-appreciating evidence, it is of the view that the guilt of the accused was established beyond a reasonable doubt. Only by recording such a conclusion an order of acquittal cannot be reversed unless the Appellate Court also concludes that it was the only possible conclusion. Thus, the Appellate Court must see whether the view taken by the Trial Court while acquitting an accused can be reasonably taken on the basis of the evidence on record. If the view taken by the Trial Court is a possible view, the Appellate Court cannot interfere with the order of acquittal on the ground that another view could have been taken.
10. There is one more aspect of the matter. In many cases, the learned Trial Judge who eventually passes the order of acquittal has an occasion to record the oral testimony of all material witnesses. Thus, in such cases, the Trial Court has the additional advantage of closely observing the prosecution witnesses and their demeanour. While deciding about the reliability ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 12 Neutral Citation No. ( 2024:HHC:9093 ) of the version of prosecution witnesses, their demeanour remains in the back of the mind of .
the learned Trial Judge. As observed in the commentary by Sarkar on the Law of Evidence, the demeanour of a witness frequently furnishes a clue to the weight of his testimony. This aspect has to be borne in mind while dealing with an appeal against acquittal."
18. Thus, it is beyond the pale of doubt that the scope of interference by an Appellate Court for reversing the judgment of acquittal rendered by the learned trial Court has to be exercised within the four-corners of the following principles:-
a) That the judgment of acquittal suffers from patent perversity;
b) That the same is based on misreading/omission to consider material evidence on record;
c) That no two views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
d) The Appellate Court in order to interference with the judgment of acquittal would have to record pertinent findings on the above factors, if it is inclined to reverse the judgment of acquittal rendered by the trial Court.
19. Equally settled is the proposition that it is not the duty of the Appellate Court when it agrees with ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 13 Neutral Citation No. ( 2024:HHC:9093 ) the view of the trial Court on the evidence to repeat the narration of the evidence or to reiterate the reasons .
given by the trial Court, expression of general agreement with reasons given by the Court, the decision of which is under appeal, would ordinarily suffice.(Refer: Girijanandini Devi and others vs. Bijendra Narain Choudhary AIR 1967 SC 1124).
20. Now, adverting to the prosecution evidence.
The prosecutrix (PW1) deposed that in the year 2012, she was studying in Govt. Senior secondary School Shoghi and she knew respondents Devinder and Abhishek present in the court. She deposed that respondent Abhishek was not known to her before the incident. PW1 further deposed that during last summer, she along with her mother was away to the house of her maternal aunt and while returning back, she went to school and from school she went to Shoghi dispensary and thereafter to Shoghi Bazar and was waiting there for her friend Kiran. Respondent Devinder met her on stairs at Shoghi. These stairs led to railway station. Respondent Devinder took her to forest in the side of railway track and raped her. Thereafter ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 14 Neutral Citation No. ( 2024:HHC:9093 ) respondent Devinder rang up respondent Abhishek present in the court and he came in his pickup and also .
raped her. The respondents used condom at the time of rape. The respondents thereafter took her to Ghanahatti in the pickup and near Ghanahatti in jungle both the respondents again committed rape on her. The respondents at Ghanahatti purchased 'Churi' (bangles) and 'Bindi' from market and thereafter took her to Kullu in the same pickup. The pickup was loaded with Plums.
Respondent Abhishek raped her at Kullu in jungle.
Respondents consumed liquor at Kullu. They all took meals there. The respondents brought her back to Shoghi on next day in the same vehicle and dropped her near pulia(small bridge). Respondent Abhishek slapped her and told her not to tell anything to any one regarding the incident and he also gave her Rs.50/-.
Abhishek threatened to kill her if she narrated the incident to any one. While the respondents were carrying her in the vehicle, she was asked not to raise an alarm and she got frightened by the threats. She told about the incident to her sister later on. She gave her statement to police and identified the places where ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 15 Neutral Citation No. ( 2024:HHC:9093 ) she was raped by the respondents and also the place from where she was taken by respondent Devinder to .
forest through railway track. She also identified Abhishek at Sadhupul along with vehicle. She was medically examined. PW1 was declared hostile to the effect that she was not supporting the case of the prosecution so far her supplementary statement was concerned but when cross-examined by the learned P.P., then she stated that her statement was recorded through mobile also. Respondent Devinder used to stare at her as and when she used to cross from his shop at Shoghi. At the time of her medical examination, 'salwar' was taken into possession by M.O. and 'salwar' Ex.P4 is the same.
21. On being cross-examined, PW1 stated that respondent Devinder was not known to her. She stated that she knew that Devinder was photographer but again told that she could not tell from what time this fact was in her knowledge. She deposed that she told the police that respondent Devinder was known to her from the last one year. PW1 stated that when she returned back then told her sister Poonam that she was ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 16 Neutral Citation No. ( 2024:HHC:9093 ) taken away by some unknown person and she had not seen the said persons earlier. PW1 stated that she had .
seen Devinder earlier to occurrence in his shop at Shoghi.
22. PW1 further stated that she had not told M.0.
during her medical examination about rape. Her statement for the first time was recorded on 30.06.2012. She was taken to Police Station on 12.06.2012 by her sister Poonam but on that day she had not told to police about rape with her. The respondents were not got identified from her during investigation. She deposed that near the stairs, Railway Station, Shoghi, there was a busy path and people used to come and go through the said path.
23. PW1 stated that she herself accompanied respondent from stairs. It was further stated that at Railway Station towards Solan, there were number of houses and she made no complaint to any one there, though people were present there. The distance between Shoghi and Kaithlighat was about 5 kilometers.
During this period she also made no complaint to any one. They remained at Subzimandi Shimla for one and ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 17 Neutral Citation No. ( 2024:HHC:9093 ) half hours and there also she had made no complaint.
24. PW1 deposed that when they stopped at .
Ghanahatti, again no complaint was made about alleged occurrence and when respondent Devinder made her to wear bangles, then she had raised no noise.
25. PW1 further stated that at the time of sexual intercourse at Shoghi and Ghanahatti, she neither raised noise nor tried to push the respondents in order to resist them. They remained at Ghanahatti for one hour. At Kullu where they took meal, people were present at the 'dhaba' but she made no complaint to any one. At Subzimandi, Kullu, where Plums were unloaded, people were there, but she had made no complaint to them.
26. PW1 also deposed that at the time of alleged sexual intercourse, she received no injury on her person. When, she was taken for medical examination by her sister Poonam, she initially refused for medical examination. PW1 denied the suggestion that she had not shown the alleged place of occurrence to the police.
She also denied the suggestion that respondents have ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 18 Neutral Citation No. ( 2024:HHC:9093 ) been falsely implicated in this case. She further stated that the respondents had not threatened her at any .
point of time. PW1 denied the suggestion that she had improved her statement and was deposing falsely against the respondents.
27. PW2 Poonam is the complainant and sister of the prosecutrix. She deposed that on 11.06.2012, prosecutrix along with her mother was returning from the house of maternal uncle. While on the way, the prosecutrix went to school but did not return till 6.00 p.m. Thereafter, she along with her brother searched the prosecutrix here and there at Shoghi but was not found. PW2 further deposed that on the next day, she went to school of the prosecutrix and came to know that she was not present in the school on previous day.
Thereafter, rapat was lodged at Police Station, Boileauganj that prosecutrix was not traceable. PW2 also deposed that when on 12.06.2012 she was coming back from Police Station, then at about 7.00 p.m. found the prosecutrix near railway station just below her house and she was weeping.
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28. It was stated by PW2 that on asking initially prosecutrix did not tell anything and continued weeping .
but later on told that two boys had dropped her there and they had committed wrong act with her and at that time condition of prosecutrix was bad. Her clothes were dirty and she was a little bit frightened. PW2 also deposed that in the evening, she and her brother took prosecutrix tor Police Station, Boileauganj. The prosecutrix was got medically examined. The complaint lodged by her with the police is Ex.PW2/A which bore her signatures. The date of birth of prosecutrix is 15.02.1995.
29. On being cross-examined, PW2 stated that when prosecutrix met her then she told that neither she knew nor had seen the persons earlier who had taken her with them. She further stated that statement of prosecutrix was recorded on 12.06.2012. It was also stated by PW2 that prosecutrix told her that Devinder was known to her but she made no complaint against Devinder by name to the police. This witness was confronted with the statement Ex.PW2/A regarding the condition of prosecutrix and her clothes when she met ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 20 Neutral Citation No. ( 2024:HHC:9093 ) on 12.06.2012 in the evening time. She denied the suggestion that no statement of prosecutrix was .
recorded on 12.06.2012. She also denied the suggestion that statement of prosecutrix was recorded for the first time on 30.06.2012. She was not present at the time of medical examination of prosecutrix though had accompanied her upto hospital. She denied the suggestion that she was deposed falsely.
30. The other witness PW3 Manohar Thakur is Secretary of Gram Panchayat, Anandpur and has proved the date of birth of the prosecutrix vide birth certificate Ext. PW3/A and copy of the 'Parivar' register Ext. PW3/B.
31. PW4 H.C. Yograj has proved on record the deposit of the case property and thereafter the same being sent for analysis to FSL, Junga.
32. PW5 S.I. Naroop Singh Guleria has proved on record taking into possession the vehicle bearing registration No. HP-13-1339 from Sadhupul vide memo Ext. PW5/A.
33. PW6 Dr. Anita Negi deposed that on 12.06.2012 at about 11.25 p.m., the police moved an ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 21 Neutral Citation No. ( 2024:HHC:9093 ) application Ext. PW6/A for medical examination of prosecutrix. Prosecutrix disclosed to her that she was .
kidnapped by two unknown persons and taken to Shimla. As per medical examination, no injury on any part of breast, abdominal, inner part of thigh and perineum were found. No injury of laceration was present on walls of vagina, however, hymen was ruptured. No fresh tears were r present and vagina admitted two fingers with slight pain. No bleeding was present. The vaginal smear slides were taken for spermatozoa but the same was not found. The medical examination was done with the consent of the prosecutrix. The 'salwar' which the prosecutrix was wearing was taken into possession and was preserved for chemical examination. As per this witness, at the time of medical examination, there was nothing suggestive that recent intercourse had taken place with the prosecutrix but reserved her final opinion till the reports of FSL. Two slides parcel containing 'salwar' with sample were handed over to police. PW6 deposed that she advised ultrasound but the prosecutrix and her relatives were not willing for the same. On receipt of ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 22 Neutral Citation No. ( 2024:HHC:9093 ) FSL report, she gave final opinion Ext. PW6/B as human blood and semen were detected on the 'salwar' of the .
prosecutrix. MLC Ext. PW6/C bore her signatures. As per this witness, 'salwar' Ext. P4 was the same and bruises, scratches and abrasions on the body of the prosecutrix were 24 to 48 hours old.
34. On being cross-examined, PW6 stated that at the time of medical examination, the prosecutrix did not disclose that she had been raped by some person and, except abrasions, bruises and scratch marks, no other injuries were found on any part of the body of the prosecutrix. She admitted that there were no struggle marks present on the body of the prosecutrix and the injuries mentioned in Ext.PW6/C were old. She admitted that her opinion that prosecutrix was subjected to sexual intercourse recently was based on the fact that the blood and semen were found on the 'salwar' as per FSL report. She further admitted that semen and blood on 'salwar' could be for other reasons other than sexual intercourse. PW6 deposed that live spermatozoa could be found in the private part of victim within 24 to 48 hours and dead upto 72 hours. She admitted that ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 23 Neutral Citation No. ( 2024:HHC:9093 ) scratch marks were not possible by itching. She deposed that scratch marks on the back were on the .
lower part of the prosecutrix. She admitted that measurement of scratch marks was not mentioned in the MLC. She also deposed that age and group of semen found on 'salwar' were not mentioned in the FSL reports. PW6 denied that she had given final opinion simply to support the prosecution case.
35. PW7 L.C. Sneh Lata took the prosecutrix for her medical examination when she was accompanied by her sister. She moved an application Ext. PW6/A to the M.O. and got the prosecutrix medically examined.
After her medical examination, M.O. handed over to her three sealed parcels along with sample seal and she handed over the same to MHC Yograj on 13.06.2012. On being cross-examined, PW7 stated that when she asked the prosecutrix about the incident, she told that she had been raped by some persons and she had told this fact at the time of medical examination and she (PW7) had told the I.O. that the prosecutrix had also told her that she was raped by some person, however, her statement was not recorded and volunteered to state ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 24 Neutral Citation No. ( 2024:HHC:9093 ) that she was not aware of that, but did not disclose the name of the person.
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36. PW8 Constable Brahama Nand took the sealed parcels containing underwear of each of the respondents, another sealed parcel containing semen sample of respondent Devinder, sealed parcel containing pubic hair of Devinder, another sealed parcel containing pubic hair of Abhishek, two separate sealed parcels containing blood samples of both the respondents, a sealed parcel containing condom, sample seals of "T", "CMOs", four envelopes, docket, copy of FIR and a memo which he deposited at FSL, Junga on 07.07.2012 for examination.
37. PW9 Dr. Amitabh Banarjee examined respondent Abhishek and as per his opinion, there was nothing suggestive that he was not competent to perform sexual intercourse.
38. PW10 Dy.S.P. Dinesh Kumar prepared the charge-sheet and filed the same in the Court.
39. PW11 Roshan Lal is the Pradhan of Gram Panchayat, Ghanahatti, who remained associated in the ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 25 Neutral Citation No. ( 2024:HHC:9093 ) investigation of the case and a witness to the recovery of the condom.
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40. PW12 Constable Chanderkant has proved on record handing over of R.C., Insurance, Fitness Certificate, Clearance Certificate, Test Certificate along with key of vehicle No. HP-13-1339 by respondent Abhishek. He is also a witness to the recovery of condom and the photographs alleged to have been taken at the spot.
41. PW13 Smt. Anila Sharma is the lecturer of the school where the prosecutrix had been studying and has proved on record the date of birth certificate of the prosecutrix Ext. PW13/B.
42. PW14 Constable Naveen Kumar on 16.06.2012 took two parcels containing vaginal slide, vaginal swab and clothes of the prosecutrix sealed with seal of 'CMO' along with copy of FIR, sample seal vide R.C. No. 96/2012 and deposited the same at FSL, Junga.
43. PW4 H.C. Yograj, whose statement had been deferred on 26.02.2013, was examined on 23.09.2013 and proved on record registration of the FIR Ext. PW4/A, endorsement in this regard Ext. PW4/B and handing ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 26 Neutral Citation No. ( 2024:HHC:9093 ) over the case file to Dy.S.P. under probation/SHO for investigation. He also proved the entries in the .
'Malkhana' register at Sr. No.818/58/12, R.C. Ext.PW4/C and an abstracts of 'Malkhana' register Ext. PW4/D and Ext. PW4/E. He also proved the deposit of 'dibbi' (small box) containing pieces of condom.
44. PW15 S.I. Gulam Akbar has only deposed regarding obtaining of an abstract of 'Parivar' register and certificate Ext. PW3/A and Ext. PW3/B.
45. PW16 Navdeep Singh Dy.S.P. is the Investigating Officer in this case, who stated that he investigated the case on the basis of the FIR Ext. PW4/A and an application Ext.PW2/A. During investigation, he had recorded the statements of the witnesses and obtained birth certificate of the prosecutrix. On 30.06.2012, he recorded the statement of the prosecutrix, prepared site plan Ext. PW16/PX. He had arrested the respondents on the same day. He deposed that on 03.07.2012, respondent Devinder made a disclosure statement under Section 27 of the Evidence Act in police custody vide Ext. PW11/B in the presence of Roshan Thakur and Constable Chanderkant and on ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 27 Neutral Citation No. ( 2024:HHC:9093 ) the same day identified the spot near Ghanahatti (Jhakaridhar) in their presence. In this regard, memo .
Ext.PW11/A was prepared regarding recovery of condom which was in three parts which was packed in one plastic box and taken into possession in cloth parcel. He identified the parcel and also prepared the site plan. He further deposed that on 05.07.2012, respondent Abhishek r and prosecutrix along with complainant identified the place where the offence was committed and in this regard site plan Ext. PW16/B was prepared. During investigation, he had also taken photographs of the spot Exts. PW16/C-1 to Ext.
PW16/C-3. On 10.08.2012, he recorded the statement of the prosecutrix in DVD vide Ext. PW16/D, medical examination of the respondents was got done and their MLCs are Ext. PW9/B and Ext. PW9/C. Medical examination of the prosecutrix was also got done through LHC Sneh Lata vide MLC Ext. PW6/C. During investigation, he had taken into possession vehicle No. HP-13-1339 along with key and documents vide seizure memo Ext. PW5/A in the presence of Constable Chanderkant and S.I. Naroop Singh. He also recorded ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 28 Neutral Citation No. ( 2024:HHC:9093 ) the statements of the witnesses under Section 161 Cr.P.C. as per their versions. Statement of the .
prosecutrix Ext. PY was recorded as per her version.
Reports Exts. PW16/F and PW16/G were received from FSL, Junga and the same were enclosed with the case file. Certificate Ext. PW16/H was proved by him.
46. On being cross-examined by learned counsel for respondent No.2, PW16 stated that on 12.06.2012 the prosecutrix had come to the Police Station with her sister Poonam, but they neither lodged any complaint nor her statement was recorded on that very day.
Statement of the prosecutrix was recorded, for the first time, on 30.06.2012. Prosecutrix herself had not approached the Police Station to get her statement recorded between 12.06.2012 to 30.06.2012 and stated that she was medically examined on 13.06.2012 and was sent for ultrasound examination on 15.06.2012 but the prosecutrix was not willing for the same. He further deposed that the prosecutrix was interrogated by LHC Sneh Lata, but remained silent and did not disclose anything to the police. He further deposed that this fact was also stated in the application Ext. PW6/A ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 29 Neutral Citation No. ( 2024:HHC:9093 ) through which she was sent for medical examination.
When prosecutrix was sent for medical examination, at .
that time, she was not willing to get herself medically examined and did so at the instance of her sister. He also deposed that the prosecutrix did not disclose to M.O. at the time of her medical examination about sexual assault on her person. Initially, the M.O. opined that there wasr nothing to suggest that sexual intercourse had recently taken place. Prosecutrix knew respondent Abhishek only by name and as per her statement, she heard respondent Devinder talking to another person on telephone calling him Abhishek. No identification parade was conducted during the investigation of the case. He admitted the suggestion that prosecutrix in her statement dated 30.06.2012 had not disclosed that sexual intercourse was done with her without her consent, though stated that wrong was done with her. He also admitted that prosecutrix had not disclosed regarding the alleged sexual intercourse or being put to threat while going from Shimla to Kullu and volunteered to state that prosecutrix disclosed that it was only after coming back that she was threatened ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 30 Neutral Citation No. ( 2024:HHC:9093 ) by respondent Abhishek, who asked her not to disclose this fact to anybody. The prosecutrix had not stated in .
her statement Ext. PY that both the respondents had sexual intercourse with her at Kullu. He had not verified the facts stated by the prosecutrix in her statement Ext.
PY qua her stay at Kullu and the things that are stated to have happened there. The place where the prosecutrix was r alleged to have been sexually assaulted was identified on 05.07.2012. He admitted that the statement of the prosecutrix was written after arrest of the respondents on 30.06.2012. The place at Jhakaridhar near Soleh Meel was also identified by the prosecutrix on 05.07.2012. The statement of respondent Devinder Ext. PW11/A was written on 03.07.2012. The place which was identified by the prosecutrix on 05.07.2012 was within the knowledge of this witness as the respondent Devinder had already made statement under Section 27 of the Evidence Act Ext. PW11/A and certain recoveries were made at the instance of respondent Devinder vide memo Ext.
PW11/B. He denied the suggestion that name of ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 31 Neutral Citation No. ( 2024:HHC:9093 ) Roshan Lal Thakur had been added lateron. He denied the other suggestions.
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47. On being cross-examined by learned counsel for respondent No.1, PW16 denied the suggestion that neither disclosure statement was given by respondent No.1 nor identified the place nor any recovery was effected. He admitted that in the photographs Ext.
PW16/C-1 to Ext. PW16/C-3, there was nothing to show that on which date and time, the same had been prepared. However, he stated that witness Roshan Lal had come to the Police Station at about 9.00 to 10.00 a.m. on that day. He stated that DVD Ext.PW16/D was prepared at Shoghi in police picket.
48. At the outset, it needs to be observed that rape is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 32 Neutral Citation No. ( 2024:HHC:9093 ) the victim, and therefore a rape victim is placed on a higher pedestal than an injured witness.
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49. Rape is the most hated crime, which tantamounts to a serious blow to the supreme honour of a woman, and offends both, her esteem and dignity.
It causes psychological and physical harm to the victim, leaving upon her indelible marks.
50. The committal of rape is a beastly act and takes out the life from the life of victim. The scars of rape always remain engraved in her mind and she cannot overcome throughout her life. Rape leaves physical as well as mental scars on the victim. Physical wounds may heal up, but the mental scars, though less visible are more difficult to treat.
51. Rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. "Rape" not only lowers the dignity of a woman but also mars her reputation. The plight of the woman and shock suffered by the victim can be well visualized. The victim of rape grows with traumatic experience and an unforgettable shame haunted by the ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 33 Neutral Citation No. ( 2024:HHC:9093 ) memory of the disaster forcing her to a state of terrifying melancholia. The torment on the victim has .
the potentiality to corrode the poise and equanimity of any civilized society. It has been rightly said that whereas a murderer destroys the physical frame of a victim, a rapist degrades and defiles the soul of a helpless female. The offence of "Rape" is grave by its nature, which warrants a strong deterrent by judicial hand.
52. In State of Punjab vs. Ramdev Singh, AIR 2004 SC 1290, the Hon'ble Supreme Court held as under:-
"This Court dealt with the issue and held that rape is violative of victim's fundamental right under Article 21 of the Constitution. So, the courts should deal with such cases sternly and severely. Sexual violence, apart from being a dehumanizing act, is an unlawful intrusion on the right of privacy and sanctity of a woman. It is a serious blow to her supreme honour and offends her self-esteem and dignity as well. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 34 Neutral Citation No. ( 2024:HHC:9093 ) behind a traumatic experience. A rapist not only causes physical injuries, but .
leaves behind a scar on the most cherished position of a woman, i.e. her dignity, honour, reputation and chastity.
Rape is not only an offence against the person of a woman, rather a crime against the entire society. It is a crime against basic human rights and also violates the most cherished fundamental right guaranteed under Article 21 of the Constitution."
53. In Jugendra Singh vs. State of UP, (2012) 6 SCC 297, the Hon'ble Supreme Court has held:-
"Rape or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. The consequential death is more horrendous. It is to be kept in mind that an offence against the body of a woman lowers her dignity and mars her reputation. It is said that one's physical frame is his or her temple. No one has any right of encroachment. An attempt for the momentary pleasure of the accused has caused the death of a child and had a devastating effect on her family and, in the ultimate eventuate, on the collective at ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 35 Neutral Citation No. ( 2024:HHC:9093 ) large. When a family suffers in such a manner, the society as a whole is .
compelled to suffer as it creates an incurable dent in the fabric of the social milieu. The cry of the collective has to be answered and respected and that is what exactly the High Court has done by converting the decision of acquittal to that of conviction and imposed the sentence as per law."
54. In Shyam Narian Vs. State (NCT of Delhi) (2013) 7 SCC 77, the Hon'ble Supreme Court has elaborately dealt with the issue as discussed in Madan Gopal Kaakar Vs. Naval Dubey and Anr., (1992) 3 SCC 204, State of Andhra Pradesh Vs. Bodem Sundra Rao, (1995) 6 SCC 230 and State of Karnataka Vs. Krishnappa, (2000) 4 SCC 75 and has held that :
"It is an assault on the individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men. Rape is a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a woman and the soul of the society and such a crime is ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 36 Neutral Citation No. ( 2024:HHC:9093 ) aggravated by the manner in which it has been committed."
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55. Equally settled is the proposition of law that conviction can be based on the sole testimony of the victim of sexual assault without corroboration from any other evidence. The statement of the victim is more reliable than any other witness. Where the testimony of victim of sexual assault instills the confidence in court, the same can be relied upon for conviction of the accused. It is also a well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the victim is not a requirement of law but a guidance to prudence under the given circumstances.
56. In Vijay @ Chinee vs. State of Madhya Pradesh, (2010) 8 SCC 191, the Hon'ble Supreme Court has dealt with the issue and held that :
"Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix if found to be worthy of credence and reliable, requires no corroboration. The Court may convict the accused on the sole testimony of the prosecutrix."::: Downloaded on - 25/09/2024 20:31:47 :::CIS 37
Neutral Citation No. ( 2024:HHC:9093 )
57. There are catena of judgments passed by the Hon'ble Supreme Court wherein it has been held .
that only the deposition of the prosecutrix by itself is also sufficient to record conviction for the offence of rape if that testimony inspires confidence and has complete link of truth.
58. In Md. Ali vs. State of UP, 2015 (3) SCALE 274, the Hon'ble Supreme Court has held that "be it noted, there can be no iota of doubt that on the basis of the sole testimony of the victim, if it is unimpeachable and beyond reproach, a conviction can be based" and in Mohd. Iqbal vs. State of Jharkhand reported in (2013) 14 SCC 481, the Hon'ble Supreme Court has held that "there is no prohibition in law to convict the accused of rape on the basis of sole testimony of the victim and the law does not require that her statement be corroborated by the statements of other witnesses".
59. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A victim ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 38 Neutral Citation No. ( 2024:HHC:9093 ) complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her .
testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness;
a high degree of probability having been shown to exist in view of the subject matter being a criminal charge.
However, if the court finds it difficult to accept the version of the victim on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony.
60. After all, the Court cannot overlook where the victim or a girl is subjected to sexual assault, she is not accomplice to the crime, but is victim of another's lust.
61. It is more than settled that conviction can be based on the sole testimony of the victim if found credit-worthy to be termed as sterling witness whose version can be accepted without corroboration steps in.
It is here that the version of the victim on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 39 Neutral Citation No. ( 2024:HHC:9093 ) 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.
62. In this background, it shall be fruitful to refer to the following observations of the Hon'ble Supreme Court in Rai Sandeep @ Deepu vs. State (NCT of Delhi) (2012) 8 SCC 21:
"15. Keeping the above basic features of the offence alleged against the appellants in mind, when we make reference to the evidence of the so called 'sterling witness' of the prosecution, namely, the prosecutrix, according to her version in the chief examination when the persons who knocked at the door, were enquired they claimed that they were from the crime branch which was not mentioned in the FIR. She further deposed that they made a statement that they had come there to commit theft and that they snatched the chain which she was wearing and also the watch from Jitender (PW-11). While in the complaint, the accused alleged to have stealthily taken the gold chain and wrist ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 40 Neutral Citation No. ( 2024:HHC:9093 ) watch which were lying near the T.V. It was further alleged that the appellant in .
Criminal Appeal No.2486 of 2009 was having a knife in his hand which statement was not found in the complaint. After referring to the alleged forcible intercourse by both the appellants she stated that she cleaned herself with the red colour socks which was taken into possession under Exhibit PW-4/B in the hospital, whereas, Exhibit PW- 4/B states that the recovery was at the place of occurrence. The police stated to have apprehended the appellants at the instance of Jitender (PW-11) who knew the appellant in Criminal Appeal No.2486 of 2009 even prior to the incident, that Jitender (PW-11) also revealed the name of the said accused to her and that, therefore, she was able to name him in her complaint. When the seized watch was shown to her in the Court, the brand name of which was OMEX, she stated that the said watch was not worn by her nephew Jitender (PW-11) as it was stated to be 'TITAN' and the chain was a gold chain having no pendant. She made it clear that that was not the chain which she was wearing and that it did not belong to her and that the watch found in the same parcel which was a women's watch was not ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 41 Neutral Citation No. ( 2024:HHC:9093 ) the one which was worn by Jitender (PW- 11)."
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63. As regards creditworthiness of the prosecutrix, it would be noticed that in her initial version, she had not named the respondents as the perpetrators of the crime and then waited for 18 days and gave statement, for the first time, on 30.06.2012.
Even, in her statement recorded on 30.06.2012, she had not disclosed that sexual intercourse was done with her without her consent and against her wish, as admitted by the Investigating Officer PW16 Navdeep Singh.
64. It would be noticed that the prosecutrix, who appeared as PW1 was aged about 17 years and 4 months on the date of incident and had, thus, reached the age of discretion. The occurrence is alleged to have taken place on 11.06.2012, yet, the statement of the prosecutrix was recorded on 30.06.2012. Even though, she visited the Police Station on 12.06.2012 and thereafter 2-3 times before 30.06.2012, but her statement was not recorded and came to be recorded only on 30.06.2012.
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65. There is no explanation whatsoever offered by the prosecution for not recording the statement over .
a period of 18 days. It is amply clear from the records that the prosecutrix infact did not want to depose anything at all and it has been so recorded even by the learned Additional Sessions Judge while examining the prosecutrix. Furthermore, even when the prosecutrix had deposed, she had not named the respondents and infact did not know one of the respondents and in such circumstances the test identification parade would have been necessary given the fact that only respondent Devinder was known to the prosecutrix.
66. It also needs to be noticed that when the prosecutrix was initially medically examined by the M.O. (PW6), she opined that there was nothing to suggest that recent sexual intercourse has taken place with the prosecutrix. It is only after the receipt of FSL report that she opined that there was evidence of recent sexual intercourse with the prosecutrix that too solely on the basis of there being stains of semen and blood found on the 'salwar' of the prosecutrix, which, in ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 43 Neutral Citation No. ( 2024:HHC:9093 ) our considered opinion, could not be sufficient to hold that the prosecutrix had been raped by the .
respondents.
67. Furthermore, even the conduct of the prosecutrix is relevant as she had ample amount of opportunity to raise an alarm and to have complained to the persons present at Shoghi, Subzimandi Shimla, Ghanahatti and Kullu, but, she neither raised any alarm nor made any complaint through people, who were stated to be present at the places mentioned above.
Thus, keeping in view the age and conduct of the prosecutrix, it can conveniently be held to be a case of consent.
68. Now, adverting to the offence under Section 363 IPC for having kidnapped the prosecutrix by the respondents. But, there is no such evidence led by the prosecution and it is otherwise not the case of the prosecutrix herself. As observed above, the prosecutrix had attained the age of discretion and had voluntarily accompanied the respondents and had not been taken away and enticed by the respondents to leave the ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 44 Neutral Citation No. ( 2024:HHC:9093 ) lawful guardianship of her lawful guardians. Hence, the prosecution has not been able to prove the charge of .
kidnapping against the respondents.
69. As regards the offence under Section 376 IPC, as already observed above, the prosecutrix had attained the age of discretion and there is nothing on record to suggest that the prosecutrix had been put to any kind of threat by the respondents. There is further nothing on record to show that prosecutrix had been subjected to sexual intercourse against her will and her statement was supported even by doctor PW6, who medically examined the prosecutrix on 12.06.2012 and found no evidence of sexual intercourse. Further, that semen was found on the 'salwar' of the prosecutrix, this by itself cannot be sufficient to convict the respondents given the fact that no grouping of semen has been done in this case and further there is nothing on record to suggest that the prosecutrix was subjected to sexual intercourse without her consent and against her will and rather the cross-examination of the prosecutrix suggests that she was a consenting party.
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70. In Hem Raj vs. State of Haryana (2014) 2 SCC 395, the prosecution had brought on record FSL .
report which showed that human semen was detected on the 'salwar' of the prosecutrix and on the underwear of the accused. Yet, the Hon'ble Supreme Court held that it was difficult to infer from this that the prosecutrix had been raped by the accused and the accused therein was given the benefit of doubt.
71. The presence of injuries on the body of the victim is not a sine qua non to prove the charge of rape.
However, in Ravindra vs. State of Madhya Pradesh AIR 2015 SC 1369, the Hon'ble Supreme Court was dealing with a case where the the medical examination of the prosecutrix was done on the same day on which the alleged offence was committed and no injuries were found on her person, going by the medical examination report and the statement of PW3, it is held that it was highly improbable that rape was committed.
72. It needs to be noticed that in the aforesaid case PW3 Dr. Smt. Vandana Sarkanungo had not found any injury on the internal and external part of the ::: Downloaded on - 25/09/2024 20:31:47 :::CIS 46 Neutral Citation No. ( 2024:HHC:9093 ) prosecutrix (PW1) and opined that the prosecutrix was habitual to sexual intercourse and, like in the instant .
case, she had not given any definite opinion about rape being committed on the prosecutrix and there were no injuries on her private and other parts of her body though as per the statement of the prosecutrix, rape had been committed in the fields having standing crops, 5 feet high 'Jawar' crop and 4 feet high 'Moong' crop. No injuries were found either on the prosecutrix or on the accused.
73. In view of the aforesaid discussion and for the reasons stated here-in-above, we find no merit in this appeal and the same is dismissed.
74. Send down the records.
(Tarlok Singh Chauhan) Judge (Sushil Kukreja) 25 September, 2024.
th Judge (krt) ::: Downloaded on - 25/09/2024 20:31:47 :::CIS