In The High Court Of Himachal … vs Roshan Lal … Accused/ on 23 May, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 4069 of 2013
Reserved on 10.4.2017
Decided on:.05.2017.
State of Himachal Pradesh ….Appellant.

.

Versus

Roshan Lal … Accused/respondent.

……………………………………………………………………………
Coram
The Hon’ble Mr. Justice Sanjay Karol, Acting Chief Justice.
The Hon’ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1

Yes.

For the appellant. : Mr. V.S. Chauhan, Addl. Advocate General with
Mr. Vikram Thakur and Mr. Punit Rajta, Deputy
Advocate Generals.

For the respondent. : Mr. Vikas Rathore, Advocate.

Ajay Mohan Goel, J.

By way of this appeal, the State has challenged the judgment

passed by the Court of learned Additional Sessions Judge, Mandi in

Sessions Trial No. 14 of 2011 dated 19.3.2013, vide which learned trial

court has acquitted the accused who was charged for commission of

offences punishable under Sections 452, 376 read with Section 511 of the

Indian Penal Code (in short ‘IPC‘).

2. The case of the prosecution in brief was that on 24.11.2010

one Rajiv Kumar informed Police Post, Dharampur that one Roshan Lal

(accused) had entered the house of his mother-in-law at Kumharda with bad

1
Whether reporters of the local papers may be allowed to see the judgment?

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intent and had tried to sexually molest her. On the basis of said

information, Rapat No. 11 was lodged and Head Constable Jagdish Chand

along with other police officials reached the spot (Upper Kumharda).

.

There he recorded the statement of prosecutrix under Section 154 of

Cr.P.C. who stated that her husband had performed second marriage and

her children were already married and she used to reside separately. Further

as per the prosecutrix on 24.11.2010 at around 6:00 a.m. while she was

sleeping in her bedroom, accused after removing the planks of roof of her

house entered inside the room while she was in deep sleep. After entering

her room accused forcibly caught hold of the prosecutrix and disclosed to

her that he was “Roshan Lal” and she should not raise any noise. The

prosecutrix somehow rescued herself from the clutches of accused and

reached near the door and switched on the light and saw that accused was

completely undressed. When she raised cries, accused caught hold of her

from her mouth and gagged her and also laid her on the floor, in which

process the shirt of the prosecutrix was also torn. Further as per the

prosecutrix she somehow managed to escape herself from the accused and

came outside the room and bolted the door of the said room from outside.

On hearing her noise, Gulabi Devi reached the spot to whom she narrated

the entire incident. Thereafter Ward Panch Ram Saran and Pradhan Gram

Panchayat Sanjay Kumar were also informed who reached the spot. In the

meanwhile, accused had also bolted the door from inside. Thereafter

accused managed to fled away from the roof of the house from where he

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had entered the room. Further as per the prosecutrix accused was seen by

Gauri Prasad, Indira Devi and other persons while he was fleeing away

from the spot. Accused earlier also used to do such activities with the

.

prosecutrix. When her husband came back she narrated the entire incident

to him and thereafter police was informed.

3. On the basis of said information FIR No. 342 of 2010 under

Sections 452, 376 and 511 of IPC was registered at Police Station

Sarkaghat. After the registration of FIR, investigation was carried out, in

the course of which spot map was prepared, photographs of the spot were

taken and shirt of the prosecutrix was also taken into possession.

Prosecutrix refused to get herself medically examined, as a result of which

she could not be subjected to medical examination. The statements of

witnesses were recorded. Accused was arrested but later on released on

bail.

4. After completion of investigation, challan was filed in the

Court and as a prima facie case was found against the accused, he was

charged for commission of offences punishable under Sections 452, 376,

511 of IPC, to which accused pleaded not guilty and claimed trial.

5. Learned trial court on the basis of evidence placed before it

both ocular and documentary by the prosecution held that the prosecution

had not been able to establish the guilt of the accused beyond all reasonable

doubt for commission of offences punishable under Sections 452, 376 read

with Section 511 of IPC. While arriving at the said conclusion, it was held

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by learned trial court that the story of the prosecution from its inception

was confusing and doubtful. Learned trial court held that as per the case of

prosecution, police was informed about the occurrence of alleged incident

.

on 24.11.2010 at around 12:30 p.m. and pursuant to this Rapat Ext. PW8/A

was lodged. Learned trial court held that said information was given by

PW2, Rajiv Kumar, and in the Rapat it was mentioned that accused had

already left the spot. Learned trial court further held that, however, when

one peruses the evidence on record, the same demonstrates that prosecutrix

as PW1 had deposed that she waited for her husband to come and when he

came to her house thereafter she narrated the entire incident to him and

thereafter the police was informed about the occurrence of the incident by

her husband. Learned trial court further held that Krishan Lal, PW3,

husband of the prosecutrix on the other hand stated that when he reached

the spot he noticed the accused inside the room from the window. Learned

trial court also held that incidentally neither PW1 nor PW3 had deposed

that either they asked PW2 their son-in-law to inform the police about the

occurrence of the alleged incident or that in fact PW2 had also reached the

spot. Learned trial court also held that as per the case of prosecution,

accused had entered inside the room from the rooftop after removing the

planks, however, it was not clear from the evidence placed on record by the

prosecution as to whether said planks were removed by the accused or same

were broken. Learned trial court also took note of the fact that PW8

Investigating Officer had admitted that he had not taken into possession

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pieces of wood or any plank. Learned trial court also took note of the fact

that Investigating Officer had also admitted that there was no approach to

reach the rooftop from outside of the house of the prosecutrix. On these

.

bases it was concluded by learned trial court that evidence regarding entry

of accused from rooftop by removing planks was not satisfactory. In

addition it was held by learned trial court that even the story put forth by

prosecutrix about her being physically molested by accused once he

allegedly entered the room by pinning her down on earth and undressing

himself remained unsubstantiated, as prosecutrix in her evidence admitted

that she had put quilt and blanket due to cold. Learned trial court further

held that it was nowhere stated by prosecutrix that accused had firstly

removed the quilt and then blanket and thereafter physically molest her.

Learned trial court held that the case of the prosecution was that when in

fact accused entered the room prosecutrix was in deep sleep and on account

of this she did not hear any noise of removing planks. On these basis it was

concluded by learned trial court that this means that when accused entered

inside the room prosecutrix was in fact sleeping with quilt and blanket

cover, however it had nowhere come on record that accused had undressed

prosecutrix and had attempted to sexual molest her. Besides this learned

trial court also took note of the fact that as per the prosecution apart from

prosecutrix other persons had also reached the spot and there was enough

time and opportunity to catch accused, but no efforts were made to nab the

accused. Learned trial court held that no doubt the version of the

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prosecutrix was that accused bolted the door from inside and thereafter fled

away from the rooftop, but even then efforts could have had been made to

nab the accused. Learned trial court also held that prosecutrix incidentally

.

suffered no injuries on her person though the allegedly molestation of her

by accused continued for about 10 minutes. Besides this learned trial court

held that when Investigating Officer reached the spot, the room where the

alleged incident took place was open and accused had already left the place

and as per the versions of prosecutrix and other persons, it had not come in

the deposition of anyone that efforts were made to nab the accused but

despite that he fled away. On these bases it was concluded by learned trial

court that neither the statement of prosecutrix nor other evidence produced

on record by prosecution was sufficient to prove the case of prosecution

that at around 6:00 a.m on 24.11.2010 accused had attempted to commit

rape on prosecutrix and had also committed house trespass by entering into

the house of prosecutrix used as residence with an intent to commit rape

upon her. Learned trial court thus acquitted the accused by holding that the

prosecution had not been able to prove its case beyond all reasonable

doubts against the accused and thus accused was entitled for benefit of

doubt.

6. Feeling aggrieved by the judgment so passed by the learned

trial Court, the State has filed this appeal.

7. We have heard Mr. V.S. Chauhan, learned Additional

Advocate General for the State as well as Mr. Vikas Rathore learned

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counsel for the accused and have also gone through the records of the case

as well as judgment passed by the learned trial court.

8. It is settled law that in a case under Section 376 of IPC,

.

conviction can be based on the sole testimony of prosecutrix and if the

Court finds the testimony of prosecutrix to be trustworthy, truthfulness and

reliable then there is no need to look for any further corroboration. In this

background, before proceeding any further, we would like to refer to the

statement of prosecutrix who entered the witness box as PW1. Prosecutrix

deposed in the court that her husband had contacted two marriages and that

she had two sons who were married. This witness further deposed that she

was staying alone in her house. She further deposed that on the fateful day

when she was sleeping at around 6:00 a.m., accused entered her room from

the rooftop after breaking the same and removed his clothes and tried to pin

her down. She further deposed that accused grabbed her from her chest and

when she confronted him as to what he was doing then accused disclosed to

her that he was “Roshan Lal”. This witness further deposed that she pushed

the accused. It was still dark and she ran out from the room and in the said

process her shirt was torn. She further deposed that she bolted the door of

her room from outside and shouted for help, as a result of which her son-in-

law Raju reached there. She further deposed that she called Member Ram

Chander. Indira and Gouri Parshad also reached the spot. She further

deposed that accused had also bolted the door and when Members who had

gathered at the spot asked the accused as to why he had come there, he ran

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away from the spot by again using the rooftop as a passage. She further

deposed that her husband also reached there to whom she disclosed the

entire story and thereafter they informed the police who reached the spot. In

.

her cross examination this witness deposed that she was married at the age

of 11 years around 45 years ago. She further deposed that she stayed with

her husband till the time he contacted second marriage. She also deposed

that she was a farmer and had cattle and she used to get up early in the

morning at around 5:30 a.m. She self stated that on the fateful day she had

gone to attend a marriage and had reached late at night. She admitted the

suggestion that there was vacant place on the rooftop which was accessible.

She also stated that she did not hear any noise of planks being removed

from the roof of the room. She further stated that her room was 10 to 15

feet wide and the house of Roop Lal was adjacent to her house. She further

stated that she was sleeping by covering herself by a quilt and blanket as it

was cold. She further deposed that accused had switched on the light and he

was wearing a pant and shirt. She further deposed that she started crying for

help after she had come out of the room and during the entire episode she

had not suffered any injury. According to her the entire episode took place

between 5 to 10 minutes. She also stated that she had raised cries for Indira

when she reached out of the room which she bolted with a lock. She also

deposed that after the said lock was reopened she realized that door was

locked form inside. She stated that she telephonically called her husband.

She further stated that she did not made any attempt to catch the accused as

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she was waiting for the police. She also stated that the residence of her

husband was half an hour away. She also stated that Indira had seen the

accused when accused was running from the roof. She further stated that 40

.

to 50 persons assembled at the spot. She further stated that she had not

given her consent for her medical examination as nothing wrong was

committed with her.

9. Now in our considered view, the testimony of prosecutrix

neither inspires confidence nor the same appears to be cogent, reliable and

trustworthy. It is highly unbelievable that a sexual molestation attempt was

made upon the prosecutrix for about 10 minutes by the accused and she

suffered no injuries. In one breath she stated that it was still dark and she

ran out of the room and bolted the door from outside whereas on the same

breath she has stated that lights were switched on by the accused. Similarly

on one hand this witness has deposed that after the accused entered her

room from the rooftop he removed his clothes and thereafter tried to

commit rape upon her, however, in her cross examination this witness has

deposed that the accused was wearing pant and shirt. Further according to

the prosecutrix though accused allegedly attempted to molest her inside the

room for about 10 minutes, however, no efforts were made by the

prosecutrix to raise any hue and cry as it has come in the testimony of the

prosecution that she raised the alarm after she came out of the room and

locked the door. In addition the factum of this witness deposing that no

efforts were made to nab the accused as she was waiting for the police is

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also highly unbelievable. This witness further deposed in the Court that 40

to 50 people had gathered at the spot and few of them also saw the accused

running from the rooftop but still why no efforts at all were made to nab the

.

accused at the spot have not been satisfactorily explained by the

prosecutrix. In our considered view, the only conclusion which can be

drawn in the absence of there being element of trustworthiness in the

deposition of prosecutrix is that the version which has come forth from the

prosecutrix about the occurrence of alleged incident is not the true and

correct version. Something else seems have had to happened which has

been given colour of the concocted story on the basis of which the FIR was

lodged. Our view is also strengthened from the conduct of the prosecutrix

who also refused to get herself medically examined after the alleged

incident took place.

10. Now in this background, we will also scrutinize the other

relevant evidence placed on record by the prosecution to prove its case.

PW2 Rajiv Kumar son-in-law of the prosecutrix deposed in his examination

in chief that the prosecutrix was his mother-in-law and that on 23.11.2010

he had gone to attend a marriage and had stayed with his friend. He further

deposed that on 24.11.2010 he received a phone call and thereafter he

reached the spot. According to him lot of people had assembled at the spot

and the door was locked from the outside. This witness further deposed that

persons who had assembled outside the house called accused Roshan Lal.

The accused stated that he had done what he had to do and then he ran

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away for the spot. This witness further deposed that thereafter police came

to the spot. In his cross examination this witness has deposed that he

reached the spot in the morning at around 7.00 a.m. He further deposed

.

that his father in law reached at the spot at around 9:10 a.m. He also stated

that no attempt was made to catch the accused. He also stated that he had

not earlier acquainted with Roshan Lal. He further stated that police was

informed about the incident at around 12:30 noon and police reached at the

spot at around 3:30 pm.

11. PW3 husband of the prosecutrix deposed that on 24.11.2010

Bhavana Devi had telephonically informed him that some thieves had

entered his house where the prosecutrix was living. He further deposed that

when he reached the house he found Roshan Lal roaming there naked and

the prosecutrix was standing outside and that her clothes were torn and the

door was locked. He further stated that he informed the Members of the

Panchayat and also telephonically intimated the police. He further stated

that Pradhan Sanjay Kumar and one Member Ram Saran reached the spot

and 2 to 3 villagers were also came there. This witness further deposed that

he asked the accused as to what he was doing there then accused told him

that whatever he had do to do he had done and thereafter he ran away from

the spot. He further stated that though they tried to catch hold of the

accused but could not catch him. In his cross examination this witness

deposed that his house was 20 to 25 minutes away from the house where

prosecutrix was stayed. He further stated that he reached at the spot at

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around 6:20 a.m. He further stated that he was not aware as to whether

PW2 had reached the spot before he reached the spot. This witness also

deposed that he was intimated about the occurrence of incident by his wife

.

after he reached the spot who told him that accused had entered from the

rooftop. He also stated that the clothes of prosecutrix were torn and police

reached the spot at 2:00 p.m.

12. Now when we peruse the statements of PW2 and PW3 who

otherwise are closely related to the prosecutrix, we find that there are lot of

contradictions and discrepancies in the versions which have been given by

the said two witnesses about the alleged incident. According to PW2 he

reached the spot at around 7:00 a.m. whereas his father in law reached at

the spot at around 9:10 a.m. PW2 stated that it was he who had

telephonically intimated the police about the occurrence. This witness

further deposed that no attempt was made to nab the accused when he ran

away from the roof. However, on the other hand PW3 has deposed that he

reached the spot at around 6:20 a.m. and it was he who had telephonically

informed the police about the occurrence of the alleged incident. PW3 also

stated that after he reached the spot he telephonically intimated about the

occurrence of incident to the Pradhan of the Gram Panchayat and one

Member and about 2 to 4 villagers reached at the spot. Incidentally in his

examination in chief this witness stated that Roshan Lal was present when

he reached at the spot and was roaming naked and thereafter he (accused)

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ran away from the rooftop. In his examination in chief this witness has also

stated that they tried to nab the accused.

13. Be that as it may, the fact of the matter still remains that the

.

contradictions and discrepancies in the statements of PW2 and PW3 have

not been satisfactorily explained by the prosecution.

14. Not only this, there are also contradictions and discrepancies

even in the testimonies of PW1 and PW3. According to PW1 after she

came out of the room and locked the door of the room where people had

gathered in front of her house confronted the accused but he ran away from

the rooftop whereas PW3 in his testimony deposed that when he (PW3)

reached the spot accused was still roaming there naked and thereafter when

he confronted accused he ran away from the rooftop. Version of PW3 does

not find corroboration in the testimony of other prosecution witnesses.

15. Similarly the discrepancies as to who intimated the police

whether it was PW2 or PW3 also create doubts about the case of the

prosecution. Though as per the prosecution lot of people had gathered

outside the house of prosecutrix after the alleged incident took place but no

independent witness was examined by the prosecution to prove and

corroborate its case. According to the husband of prosecutrix, the Pradhan

and Gram Panchayat Members reached at the spot but why they were not

examined by the prosecution could not be satisfactorily explained by the

State. Mr. Gouri Prashad who has been examined by the prosecution as

PW4 even does not lends any credibility to the case of the prosecution

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because he was not an eye witness to the incident and further it stands

established that he is the real brother of the prosecutrix. Even the statement

of the Investigating Officer does not lends any credibility to the case of the

.

prosecution and furthermore when this Court is not convinced with the

trustworthiness of the story put forth by the prosecutrix, it is highly unsafe

even otherwise to convict a person on the basis of unreliable and

untrustworthy version put forth by the prosecution.

16. Besides this we have also perused the judgment passed by

learned trial court, a perusal of the same demonstrates that learned trial

court after taking into consideration the entire evidence which was placed

on record by the prosecution had returned the findings of acquittal in favour

of the accused. In our considered view the findings of acquittal so returned

by learned trial court in favour of the accused are duly borne out from the

records of the case and it cannot be said that the findings are perverse.

Therefore as we do not find any infirmity with the judgment

which has been passed by learned trial court, accordingly while upholding

the judgment passed by learned trial court, we dismiss the present appeal

being devoid of merit.

(Sanjay Karol)
Acting Chief Justice

(Ajay Mohan Goel)
Judge
May, 2017
(Guleria)

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