State Of Himachal Pradesh vs Suraj @ Surjit Singh And Another on 16 November, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Criminal Appeal No.340 of 2012
Date of Decision : November 16, 2016

State of Himachal Pradesh …Appellant.

.

Versus

Suraj @ Surjit Singh and another …Respondents.

Coram:

The Hon’ble Mr. Justice Sanjay Karol, Judge.
The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? Yes. 1

For the Appellant : Mr. R.M. Bisht, Additional Advocate
General and Mr. Puneet Rajta,
Deputy Advocate General.

For the Respondents : Mr. N.K. Thakur, Senior Advocate
with Mr. Divya Raj Singh, Advocate,
r for respondent No.1.

Mr. Jeevesh Sharma, Advocate, for
respondent No.2.

Sanjay Karol, Judge

In relation to FIR No.94, dated 9.11.2008,

registered at Police Station, Nirmand, District Kullu,

Himachal Pradesh, accused Suraj and Hari Singh,

hereinafter referred to as the accused, were charged to

face trial, for having committed offences, punishable

under Section 376(g) of the Indian Penal Code; and

Sections 341 and 506-II, both read with Section 34 of the

Indian Penal Code.

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

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…2…

2. Finding the prosecution not to have

established its case, through the testimonies of 12

witnesses, trial Court, vide judgment dated 25.4.2012,

.

passed by Additional Sessions Judge, Kinnaur at Rampur,

Himachal Pradesh, in Sessions Trial No.25-AR/7 of

2009/11, titled as State of Himachal Pradesh v. Suraj @

Surjit Singh another, has acquitted both the accused on

all counts.

3. Prosecution case primarily rests upon the

testimonies of prosecutrix (PW-1) as also her husband

Durga Dass (PW-2).

4. It is not in dispute that prosecutrix is a

married lady. Allegedly, she was subjected to sexual

assault by both the accused on 26.9.2008. This was in a

secluded path, while she was on way to her parental

house at a place known as Lagora, accused Suraj caught

her by her arm and after committing sexual assault,

called his co-accused Hari Singh on telephone, who also

committed the said act. Such incident of assault never

came to be reported by her to anyone, purely on account

of threats extended by these two persons. However,

subsequently prosecutrix realized that she was pregnant,

as such, on 8.11.2008, she disclosed the incident to her

husband, who immediately reported the matter to the

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police, which led to the registration of FIR, referred to

supra. Prosecutrix was got medically examined and

report of the doctor (Ex.PW-4/B Ex.PW-4/C) taken on

.

record. During the course of investigation, so conducted

by ASI Kanwar Singh (PW-8) and SI Dulo Ram (PW-9),

prosecutrix gave birth to a child. Police got conducted

test of DNA profiling, which revealed accused Suraj to be

the biological father of the child.

5. When we peruse the testimonies of the

prosecutrix and her husband, we find the prosecution not

to have established its case. Testimonies of the

witnesses cannot be said to be inspiring in confidence

and their version believable. We find testimony of the

prosecutrix to be self contradictory. Also, there are

improvements, exaggerations and embellishments on

record, which not only remain unexplained but further

renders their version to be doubtful. In our considered

view, delay of more than 1½ month in lodging the FIR

also remains unexplained. Also, if the version of

prosecutrix and her husband is to be believed, then it

remains unexplained as to how, either they or the

Investigating Officer, was able to reach up to the accused

at the first instance, for in the FIR, identity of the accused

remained undisclosed. In fact, there is nothing disclosed

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herein, which would even remotely link, only the accused

to the crime.

6. Perusal of the FIR reveals that prosecutrix

.

was subjected to sexual assault on 26.9.2008. At the

time of lodging of the FIR, she only disclosed that one

person, whose name she is not aware, but whom she can

identify, for he plies a bus as a driver on Tharla-Ani route,

had subjected her to rape, and whereafter, on telephone,

he called the Conductor of the Bus, who also subjected

her to rape. She further narrates that purely on account

of shame, she could not disclose the incident to anyone.

Only when she realized that she had conceived a child,

which cannot be that of her husband, for he had already

undergone operation of sterilization, did she disclose the

incident to her husband on 8.11.2008.

7. Quite apparently, the Investigating Officers

did not conduct the Test Identification Parade. There is

nothing on record to establish as to how police reached

to the accused. No doubt, in Court, prosecutrix and her

husband have identified the accused to be the persons

who allegedly committed the crime, but however, the

question which arises for consideration is as to how, at

the first instance, did the police reach to the accused and

got conducted their medical examination during the

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course of investigation. Police was not aware of the

identity of the accused, which also never came to be

disclosed either by the prosecutrix or her husband. Bus

.

driven by the accused was not the only one plied on the

said route. Certainly, police has not recorded the whole

truth. We clarify that this fact has not weighed with us at

all, while deciding the present appeal.

8. Prosecutrix wants the Court to believe that

out of shame and alleged threats, she did not disclose the

incident to anyone, muchless her parents or her husband.

But we do not find this version of hers to be inspiring in

confidence. In fact, the alleged threats never came to be

disclosed by her either to her husband or to the police.

Quite evidently, prosecutrix disclosed the incident and

lodged the complaint only, as is so admitted by her, after

she realized that she had become pregnant, for she

uncontrovertedly states that “I have filed this case as I

got pregnant”. One may only observe that the alleged

threats is a mere exaggeration, for she admits not to

have got recorded the said fact, in her previous

statement, with which she was confronted. Also,

prosecutrix admits that from the spot of crime, she went

to her parents’ house. She admits that closeby, i.e.

within a vicinity of half a kilometer, one JCB machine was

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operating. Alleged incident took place not in the thick of

dark or middle of the night. The alleged crime came to

be committed during broad day light. Prosecutrix walked

.

up to her parental house. Hence, she could have

immediately reported the incident to anyone. She also

admits not to have resisted the acts of the accused. In

fact, she goes to state that she had asked the Driver not

to call the Conductor. Admittedly, this Conductor

reached the spot after five minutes. What all did she do

during this period remains unexplained by her. It is not

her case that alleged threats came to be extended prior

to accused Suraj ravishing her or immediately thereafter.

Her version of having been subjected to sexual assault is

thus rendered uninspiring in confidence.

9. Version of the prosecutrix of accused Suraj

having called, on telephone, his co-accused Hari Singh,

also remains uncorroborated on record. Record of the

telephonic conversation has not been produced in Court.

That apart, this version of the prosecutrix is rendered

doubtful from her admissions made in the cross-

examination part of her testimony, where she admits that

the Bus in question stood parked at village Kalag, which

was at a distance of 4-5 kms from the spot of crime. It is

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humanly impossible to cover such a distance, on foot,

within five minutes.

10. Significantly, she did not make any attempt

.

of finding the identity of the accused. She only states that

later on “I came to know that the name of the Driver was

Suraj and name of the Conductor was Hari”, whom she

identified in Court. On this issue, we find her to have

contradicted herself, for she states that “I had not seen

the accused person prior to this occurrence as they had

never met me before”, but in the very next breath she

states that “it is correct that I had visited Durah two to

four times in the bus of the accused person”. It is not the

case of prosecution that the Bus driven by the accused

was the only one which plies on the Tharla-Ani route. She

admits that after the occurrence, she continued to

conduct her day-to-day affairs in a normal manner. She

had been freely visiting several places, including her

relatives and house of her parents. Hence, her version of

both the accused having subjected her to sexual assault

is absolutely uninspiring in confidence.

11. When we peruse the testimony of Durga Dass

(PW-2), husband of the prosecutrix, we find him not to

have advanced the case of the prosecution any better or

further. He only states that lateron, on enquiry made by

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him, he learnt about the identity of the assailants, but

then from whom and how, he does not disclose.

12. It has come on record that within 2½ months

.

of birth, the child died. To establish the factum of

paternity, our attention is invited to the report of the

Expert (Ex.PW-8/N), which prima facie establishes that

accused Suraj was the biological father of the deceased

baby Satish Kumar. This fact alone itself would not be

sufficient enough to establish complicity of the accused in

the crime. To us, it appears not to be a case of sexual

assault but that of consent, if any.

13. Under what circumstances, Court can direct a

party to undergo DNA test, what is the presumptuous

value of the report of DNA examination, is now well

settled by the apex Court in Dipanwita Roy v. Ronobroto

Roy, (2015) 1 SCC 365; Narayan Dutt Tiwari v. Rohit

Shekhar and antoher, (2012) 12 SCC 554; Sandeep v.

State of Uttar Pradesh, (2012) 6 SCC 107; Selvi and

others v. State of Karnataka, (2010) 7 SCC 263; Patangi

Balarama Venkata Ganesh v. State of Andhra Pradesh,

(2009) 14 SCC 607; Jarnail Singh and others v. State of

Punjab, (2009) 9 SCC 719; Narender G. Goel v. State of

Maharashtra and another, (2009) 6 SCC 65;

Kamalanantha and others v. State of T.N., (2005) SCC

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194; and Banarsi Dass v. Teeku Dutta (Mrs) and another,

(2005) 4 SCC 449.

14. In the given facts and circumstances, one

.

need not dilate thereupon, for the simple reason that in

the instant case testimony of the prosecutrix itself, on the

question of sexual assault, is found to be uninspiring in

confidence.

15. Hence, it cannot be said that prosecution has

been able to prove its case, by leading clear, cogent,

convincing and reliable piece of evidence so as to prove

that the accused persons gang raped the prosecutrix, and

in furtherance of their common intention, they wrongfully

restrained and also criminally intimidated her.

16. For all the aforesaid reasons, we find no

reason to interfere with the judgment passed by the trial

Court. The Court has fully appreciated the evidence so

placed on record by the parties.

17. The accused have had the advantage of

having been acquitted by the Court below. Keeping in

view the ratio of law laid down by the Apex Court in

Mohammed Ankoos and others versus Public Prosecutor,

High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC

94, it cannot be said that the Court below has not

correctly appreciated the evidence on record or that

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acquittal of the accused has resulted into travesty of

justice. No ground for interference is called for. The

present appeal is dismissed. Bail bonds, if any, furnished

.

by the accused are discharged.

Appeal stands disposed of, so also pending

application(s), if any.

( Sanjay Karol ),
Judge.

( Vivek Singh Thakur ),
November 16, 2016(sd) Judge.

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