Kishori Lal vs State Of Himachal Pradesh on 2 December, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

Cr. A No. 493 of 2016.

Decided on: 2.12.2017.

.

Kishori Lal ……Appellant.
Versus

State of Himachal Pradesh …….Respondent.

Coram

The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge.
Whether approved for reporting? 1.Yes.

For the appellant: Mr. Virender Singh Rathore, Advocate, Legal Aid
Counsel.

For the respondent: Mr. Parmod Thakur, Addl. AG.

——————————————————————————————–
Justice Dharam Chand Chaudhary, J (Oral).

Appellant Kishori Lal (hereinafter referred to as the accused)

was booked by the police of Police Station Tissa, District Chamba for the

commission of offence punishable under Sections 323, 341, 376 506 IPC

vide FIR No. 24/2014 with the allegation that on 21.2.2014 around 11:00

AM at a place, namely, Village Dogru, he restrained the prosecutrix (name

withheld) from going to her house at Village Birmohi, Tehsil Churah,

District Chamba on way back from the shop of PW-5 Chuhdu Ram situated

at Village Bahnota and dragged her inside the bushes where she was

subjected to sexual intercourse against her will and without her consent.

In this process, she also received multiple injuries on her person. On the

completion of the investigation and filing report under Section 173 Cr.P.C.,

learned trial Judge has proceeded to frame charge for the offence

punishable under Sections 323, 341, 376 506 IPC against him. The

accused was tried for the offence he allegedly committed in the Court of

learned Addl. Sessions Judge, Chamba and convicted for the commission

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

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of offence under Sections 323, 341 376 IPC, however, no case under

Section 506 IPC was found to be made out against him, hence acquitted of

the charge so framed against him. Consequently, he has been sentenced

.

to undergo rigorous imprisonment for 7 years under Section 376 IPC with

fine in the sum of Rs. 5,000/-, simple imprisonment for a period of 3

months under Section 323 IPC and simple imprisonment for a period of

one month under Section 341 IPC vide impugned judgment dated

28.7.2016. Presently, he is lodged in jail and undergoing the sentence.

2. Aggrieved by the impugned judgment, the accused has

questioned the legality and validity thereof on the grounds, inter alia that

for want of cogent and reliable evidence, no findings of conviction could

have been recorded against him. The sole testimony of the prosecutrix

relied upon against him is not reliable and rather false which in the given

facts and circumstances of this case could have not been made basis to

record findings of conviction against him. The prosecutrix had relations

with him which were known to each and everyone in the village. There was

no question of she having been subjected to sexual intercourse by him

without her consent and against her will. PW-2 Jagdei has categorically

deposed that the prosecutrix was having relations with the accused. Her

testimony has erroneously been brushed aside. The alleged place of

occurrence is 2 km. from the house of the prosecutrix and as such she

could have not been taken to such a distance forcibly by dragging. The

prosecutrix was consenting party to sexual intercourse with him and the

matter was reported by her to the police falsely when her husband came to

know about it. The version of the prosecutrix that after purchasing

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household articles from the shop of PW-5 Chuhdu Ram she was on the way

to her house, hardly inspire any confidence as the I.O. while in the witness

box has stated that she was subjected to sexual intercourse at a place 2

.

km. away, that too in opposite direction from the house of the prosecutrix.

The prosecution is stated to have failed to prove cogent and reliable

evidence to connect the accused with the commission of the offence and

the findings to the contrary have been recorded on the basis of conjectures

and surmises.

3. The grouse of the accused, therefore, in a nut shell, is that

learned trial Court has erroneously relied upon the sole testimony of the

prosecutrix which hardly inspire any confidence. The findings of

conviction recorded against the accused are stated to be perverse, hence

not legally sustainable.

4. The nature of the offence the accused allegedly committed is

not only heinous but also grievous because he has not only restrained the

prosecutrix from going to her house but also dragged her inside the bushes

where she was subjected to sexual intercourse against her will and without

her consent. The sexual assault has been committed upon the prosecutrix

in the manner as claimed by the prosecution or not is, however, a question

which need adjudication on appreciation of the facts and circumstances of

this case and also the evidence available on record.

5. Before coming to the factual matrix and also the evidence

produced by the prosecution, it is desirable to take note as to under what

circumstances the offence punishable under Sections 323, 341 376 IPC

can be said to be made out against an offender. An offence punishable

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under Section 323 IPC can be said to be made out if it is pleaded proved

that the accused has voluntarily caused hurt, simple in nature, on the

person of the victim of the occurrence. An offence punishable under

.

Section 341 IPC can be said to be made out if it is proved that someone

restrained any person wrongfully in such a manner so as to prevent that

person from proceeding beyond certain circumscribed limits.

6. Now, if coming to the commission of an offence punishable

under Section 376 IPC since the prosecutrix herein is major, therefore, the

prosecution was required to plead and prove beyond all reasonable doubt

that alleged sexual act with her was committed by the accused against her

will and without her consent.

7. Now if coming to the legal principles attracted in a case of this

nature, in State of Punjab Vs. Gurmeet Singh and others, AIR 1996 SC

1393, the Apex Court has held that the own statement of the prosecutrix if

inspires confidence is sufficient to bring the guilt home to the accused.

The apex Court in order to ensure that an innocent person is not

implicated in the commission of an offence of this nature, while taking note

of the judgment in Gurmeet Singh’s case supra has however diluted the

ratio thereof in Ranjit Hazarika Vs. State of Assam, (1998) 8 SCC 635

and held that the statement of prosecutrix cannot be universally and

mechanically applied to the facts of every case of sexual assault, as in its

opinion, in such cases, the possibility of false implication can’t also be

ruled-out. Similar was the view of the matter taken again by the apex

Court in Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. and

another, (2003) 3 SCC 175. While placing reliance on this judgment and

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the law laid down by the Apex Court in the judgment supra, this Court in

Criminal Appeal No. 481 of 2009 titled State of Himachal Pradesh V.

Negi Ram, decided on 27th May, 2016 has held as under:

.

“15. Therefore, the legal position as discussed supra

makes it crystal clear that irrespective of an offence of
this nature not only grievous but heinous also, the Court

should not got swayed merely by passion and influence
only on account of the offence has been committed
against a woman and rather keep in mind the cardinal
principle of criminal administration of justice, that an

offender has to be believed to be innocent unless and
until held guilty by the Court after satisfying its judicial
conscience on the basis of given facts and circumstances
rof each case as well as proper appreciation of the

evidence available on record.”

8. Now, if coming to the factual matrix, while the prosecutrix

belongs to village Birmohi, the accused is resident of Village Padhar. Their

area, however, falls under the same Tehsil i.e. Churah and even the police

station i.e. Tissa is also the same. The prosecutrix in her statement Ext.

PW-1/B recorded by Judicial Magistrate Ist Class, Chamba under Section

164 Cr.P.C. has disclosed two instances when she allegedly was subjected

to sexual intercourse by the accused against her will and without her

consent. One of the incident as she disclosed pertains to 5-6 months prior

to recording of her statement Ext. PW-1/B, on 9.4.2014 when one Jagdei

(PW-2) called the prosecutrix to her house in the same village for night stay

as her husband was out of station. The prosecutrix acceded to the request

of said Jagdei. After having meal she came outside the house along with

Jagdei to answer the call of nature in open. Outside the house, they

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allegedly went towards different directions to answer the call of nature.

The place where she had been urinating, the accused allegedly hiding

inside the bushes came out and caught hold of her from back. She picked

.

up a stone, however, the accused twisted her arm and as a result thereof,

the stone fell down. He gagged her mouth and forcibly subjected her to

sexual intercourse. She was threatened not to disclose the incident to

anyone and if she did so, would be done away with. Thereafter, he fled

away from the spot. She also came inside the house and asked Jagdei as

to why she ran away. Jagdei told that “I bind you in the name of your kids,

if you disclose anything about the incident to anyone”. Accordingly, she

had not disclosed the incident to anyone.

9. It has also come on record in Ext. PW-1/B that about 1-1/2-2

months of the first incident, around 11-12:00 noon, on way back from the

shop of PW-5 Chuhdu Ram situated at village Bahnota. When she reached

at Bahnota Nallah, the accused appeared all of a sudden and restrained

her from moving ahead. He asked her to sit with him. When she denied,

he caught hold of her arm and took her inside the bushes by dragging from

the path. She reminded him about the earlier incident and also that she

pardoned him at that time and warned him not to indulge in any unlawful

activity with her again. When she tried to contact her husband over cell

phone, accused allegedly snatched her cell phone and threw the same. He

threatened her and also administered beatings. In this process her clothes

were torn and lost ‘koka’ (nose pin) which fell there. She was forcibly

subjected to sexual intercourse by him again. On the advise of former

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Pradhan, namely, Khem Singh (PW-7), she accompanied by her husband

reported the matter to the police.

10. In her statement the first occurrence according to her was in

.

“Bhado” i.e. in the month of July. The occurrence with her on the second

occasion was on 10th day of “Falgun” which corresponds to February-

March. Therefore, as per her testimony, she firstly was subjected to sexual

intercourse in the month of July, 2010 and thereafter in the month of

Feburary, 2011. The date of occurrence in the FIR Ext. PW-1/A is

21.2.2014. Anyhow, in her statement under Section 164 Cr.P.C., Ext. PW-

1/B, she has neither disclosed that firstly she was subjected to sexual

intercourse in the month of “Bhado” and on the second occasion in the

month of “Falgun” and her version to this effect for the first time came in

her statement recorded by learned trial Court.

11. As rightly argued by Mr. V.S.Rathore, Advocate, learned

counsel representing the accused, it is only the own statement of the

prosecutrix which has been relied upon by the prosecution and taken into

consideration by learned trial Court while recording the findings of

conviction against the accused. In the considered opinion of this Court,

the same hardly inspires any confidence, hence on the basis thereof no

findings of conviction could have been recorded against the accused for the

reason that Jagdei (PW-2) has not at all supported the prosecution case to

the effect that she was with her during that night and subjected to sexual

intercourse by the accused at such a stage when went outside for urination

in open. Therefore, the manner in which the prosecutrix was subjected to

sexual intercourse on the first occasion in the manner as claimed by the

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prosecution is not at all proved on record. On the other hand, the version

of Jagdei while in the witness box as PW-2 that the prosecutrix had affair

with the accused has not been considered by learned trial Judge and

.

rather brushed aside without recording any reason therefor. As per further

version of PW-2 the affair of the prosecutrix and accused was known to

everyone in the village. Not only this, but the accused used to visit the

house of the prosecutrix in the absence of her husband during night time.

She admitted that her house is surrounded by houses of Mohan Lal,

Madho and Naklu Ram. Therefore, the prosecution story that the

prosecutrix had gone to the house of PW-2 Jagdei during that night when

subjected to sexual intercourse by the accused for the first time cannot be

believed to be true by any stretch of imagination.

12. Interestingly enough, not only the house of Jagdei is

surrounded by the houses of Mohan Lal, Madho and Naklu Ram but as per

own version of the prosecutrix her daughter was also present in the house

who was cooking food. Therefore, when the daughter of Jagdei was present

in the house, it can reasonably be believed that she was not in need of

company of the prosecutrix in the so called absence of her husband from

the house. As per the own admission of the prosecutrix in village Birmohi,

there exists 7-8 residential houses and the population is 40-50 persons.

She admits that there exists street lights, absolutely in order at village

Birmohi. The house of Jagdei is adjacent to the road. Though, she denied

the existence of toilet and bath room inside the house of Jagdei, however,

the later while in the witness box as PW-2 has stated that the toilet and

bath rooms are inside the house itself. The prosecutrix also volunteered

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that the toilet is down the house of Jagdei. The possibility of the toilet was

available in the house itself cannot therefore be ruled out and as such,

there was no occasion to the prosecutrix or Jagdei to have gone out to

.

answer the call of nature in open.

13. The accused in support of his defence that prosecutrix having

affairs with him used to give missed calls over his cell phone and in

February, 2014, she gave 36 missed calls which includes 9 on the day of

alleged occurrence i.e. 21.2.2014, questioned her in the cross-examination

that her cell number is 82630 36816. The said question was answered by

her in affirmative. She, however, expressed her ignorance that the cell

number of the accused was 98178 71144. Anyhow, since the record

pertaining to calls so made has not been produced and proved in

accordance with law, therefore, her cross-examination to this effect is not

of much help to the defence. However, in view of own conduct of the

prosecutrix that the first instance was not reported by her to anyone, when

allegedly subjected to sexual intercourse by the accused forcibly lead to the

only conclusion that she had affair with the accused and therefore, the

possibility of she had been giving missed calls to him also cannot be ruled

out. Though, it is denied that in the village each and every one was well

aware about their illicit relations, however, the plea so raised by the

accused in his defence find corroboration from the testimony of PW-2

Jagdei. The evidence as has come on record reveals that she was subjected

to sexual intercourse at a distance of 2 kms from her house which is in

different direction from that of the shop of PW-5 Chuhdu Ram. It is so

stated by the I.O. PW-14 Insp. Sharif Mohd. Even PW-5 Chuhdu Ram, the

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shop keeper has admitted that while coming from village Birmohi to his

shop one has to take a turn from Suli mor. The other turn from Suli mor

leads to village Dogru (the place of alleged sexual assault) which is situated

.

2-1/2 km.from Suli mor. If it is so and the prosecutrix was coming back to

her house from the shop, she could have not been dragged by the accused

to Dogru from Suli mor nor she had any occasion to take that other turn

which otherwise would have not taken her to the house and rather to

village Dogru (the place of occurrence) in different direction. Therefore, the

possibility of she having accompanied the accused to have sexual

intercourse with him at that place cannot be ruled out. It is proved that

Police post is at Nakrod, which is nearer to the house of the prosecutrix

than Tissa. It is not known as to why the information was not given to

Police of police post Nakrod.

14. According to the prosecutrix, the injuries were received by her

on foot and legs. The doctor while in the witness box as PW-3 has,

however, noticed the injuries in the nature of abrasions over lower back

region at level L-1 and L-2, Sacro illiact joint and 1 to 2 abrasions present

over coxyc; single abrasion was there over her right knee, therefore, the

medical evidence belies the version of the prosecutrix that she had received

injuries on her legs and feet. The doctor in her cross-examination has

rather stated that no injuries were there on the foot of the prosecutrix.

Though, as per her version blood was oozing out of the injuries she

received, however, in the opinion of the doctor, the injuries were in the

shape of abrasions, bluish in colour.

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15. Now, if coming to the medical evidence, as has come on record

by way of the testimony of PW-3, in her opinion the prosecutrix was

subjected to sexual intercourse. There is no dispute about it because the

.

accused has also admitted the same to be true and correct, however,

according to him, the prosecutrix was a consenting party to such an

arrangement. This witness in her cross-examination conducted on behalf

of the accused has admitted that as per the history disclosed to her by the

prosecutrix she herself was involved in sexual intercourse with the accused

and it was not forcible sexual intercourse. True it is that as per the MLC

Ext. PW-3/B, the prosecutrix has disclosed the history of forcible sexual

intercourse with her by the accused. However, in the above referred

statement PW-3 Dr. Suruchi Chauhan, in her cross-examination, has

belied such recitals in the MLC. Therefore, the medical evidence is also not

suggestive of that the present is a case of commission of forcible sexual

intercourse with the prosecutrix.

16. True it is that Chuhdu Ram PW-5 and his wife Smt. Sito, both

tells us that on 21.2.2014, during day time, the prosecutrix came to their

shop and purchased household articles. Since Chuhdu Ram was not

present in the shop and he was informed by his wife about the visit of

prosecutrix to the shop, therefore, his evidence is hearsay. Interestingly

enough, as per the version of the prosecutrix she had purchased pulses

etc. from the shop whereas PW-6 Sito in her cross-examination has stated

that the prosecutrix had purchased Ghee and sugar (gur). Otherwise also,

even if it is believed to be true that the prosecutrix had visited the shop of

PW-5 and purchased household articles, the same could have not been

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believed to arrive at a conclusion that on the way, accused prevented her

from moving ahead and rather dragged her inside the bushes and

subjected her to sexual intercourse.

.

17. The another material witness is PW-7 Khem Raj Ex-Pradhan of

Gram Panchayat Lahsui. Though, he tells us that when on 21.2.2014

around 2:30 PM, the prosecutrix came to him and disclosed that the

accused committed wrong act, torn her shirt. However, any such

statement was made by him before the police, he expressed his ignorance

about it in his cross-examination. Also that in his cross-examination, he

avoided to answer the suggestions put to him by simply expressing his

ignorance. His reply should have been either in “Yes” or “No”. Ignorance to

the suggestions put to him shown by him lead to the only conclusion that

he avoided to answer the suggestions so put to him intentionally and

deliberately to the reasons best known to him. Therefore, the possibility of

he having deposed falsely for some extraneous consideration cannot be

ruled out.

18. The remaining prosecution witnesses i.e. PW-8 Pritam Singh,

Secretary Gram Panchayat, PW-9 LC Nirmala Kumari, PW-10 HC Hakam

Singh, PW-11 Const. Jamshed Beg, PW-12 HC Ashwani Kumar, PW-13 ASI

Jagdish Chand and PW-14 Insp. SHO Sharif Mohd., are formal as their

testimony would have provided link evidence had the prosecution otherwise

been able to bring guilt home to the accused beyond all reasonable doubt.

Being so, elaboration of the evidence as has come on record by way of their

testimony would be nothing but overloading of the judgment unnecessarily.

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19. In view of the reappraisal of given facts and circumstances of

this case and also the evidence available on record, in the considered

opinion of this Court, the prosecution has failed to prove its case against

.

the accused beyond all reasonable doubt. Learned trial Court has misread,

misconstrued and mis-appreciated the sole testimony of the prosecutrix

while recording the findings of conviction against the accused. The

impugned judgment has rather been based upon conjectures, hypothesis

and surmises, hence perverse. The accused in the given facts and

circumstances and the evidence available on record could have not been

convicted for the commission of the alleged offence.

20. In view of what has been said hereinabove, this appeal

succeeds and the same is accordingly allowed. Consequently, no case

against the accused is made out under Sections 323, 341 376 IPC. He,

therefore, is acquitted of the charge under Sections 323, 341 376 IPC.

He is in jail and serving out the sentence. He be set free forthwith, if not

required in any other case.

December 02, 2017, ( Dharam Chand Chaudhary ),
Judge.

(karan)

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