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Kartar Singh Alias Ajeet vs State Of Himachal Pradesh on 11 March, 2020

1

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 405 of 2018

.

Judgment reserved on : January 01, 2020
Date of Decision : March 11 , 2020

Kartar Singh alias Ajeet …Appellant.
Versus
State of Himachal Pradesh …Respondent.

Coram:

The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge.
The Hon’ble Mr. Justice Anoop Chitkara, Judge.

Whether approved for reporting?1 Yes.

For the appellant : Mr. Vinay Thakur, Advocate, for the appellant.
For the respondent : Mr. R.R. Rahi, Deputy Advocate General for the
respondent/State.

Per: Anoop Chitkara, Judge.

The present appeal has been filed by convict Kartar Singh @

Ajeet, under Section 374(2) of the Code of Criminal Procedure, assailing

the judgment dated Aug 18, 2018/Aug 20, 2018, passed by the Additional

Sessions Judge (III), Kangra at Dharamshala, Camp at Baijnath, HP, in

Sessions Case No. 02-D/VII/2014, whereby he has been convicted for

having committed an offence punishable under Section 376(2)(j) of the

Indian Penal Code, and sentenced to undergo rigorous imprisonment for

a period of ten years years and pay a fine of INR 20,000/-, and in case of

default of payment to fine to further undergo rigorous imprisonment for

1
Whether reporters of Local Papers may be allowed to see the judgment?

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two months. The period for which, the convict already remained in

custody, was also set off by giving him the benefit of Section 428 CrPC.

.

2. The gist of the facts apposite to arrive at a just conclusion, are as

follows:

(a) On Aug 1, 2013, the mother of the victim, Nimmo Devi
(PW-1) visited Police Station Mcleodgang, District Kangra,
HP and informed them that she alongwith her husband and

two daughters stay at Deepdhaar and teather cattle. On
Jul 27, 2013, she had gone to another village along with
her husband to attend the wedding of her niece and had

deputed her elder daughter Naino Devi (PW-2) to come to

Deepdhaar to stay with the prosecutrix and also graze the
cattle. She and her husband returned from the wedding on
Jul 29, 2013. On the next day i.e. Jul 30, 2013 when her

husband had gone to cut the grass then in his absence
her elder daughter Naino Devi (PW-2) told her that on Jul

27, 2013, Ajeet Kumar (appellant herein) had committed
bad act with her younger daughter (sister of Naino Devi,

PW-2). Naino Devi (PW-2) further explained to her mother
that on Jul 27, 2013 at around 10.30 a.m., when she had

reached near her hutment at Deepdhaar then she did not
find the victim present there. On this, she started searching
for the victim and called her but she did not reply. After
that she went to search her towards the “goath” (where
the animals are kept) and on the way towards the “Goath”
when she had walked around 300 to 400 meters, she
noticed that Ajeet Kumar had laid down the victim on earth
and was committing bad act with her. She further noticed
that the accused was committing bad act with the victim

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after removing her salwaar and his trousers. The moment
he reached closure, he immediately ran away. After this
complainant Nimmo Devi (PW-1) who is the mother of the

.

victim, informed her husband about the occurrence.
Consequently they contacted the Pradhan of the area
namely Soma Devi (PW-15) on which the Pradhan told

them to report the matter to the police. Thereafter, on Aug
1, 2013, the matter was reported to the police. The
complainant further told the police that the victim had also

suffered abrasions and injuries on her face. She further
clarified that at the time of the incident the clothes which
the victim was wearing had been kept by her at home. She

cautioned that although the age of the victim was 23 years

but she is a person of low intelligence, illiterate and of shy
nature and that she hardly speaks.

(b) On this information, the Investigating Officer found a
prima facie case under Section 376 and 323 IPC to have
been made out and, hence, he registered FIR No. 66 of

2013, dated Aug 01, 2013 (Ext. PW-1/A), at Police

Station, Mcleodgang, Distt. Kangra, HP.

(c) After that, the police took the victim for her medical

examination on that day itself at 3.25 p.m., where Dr.
Anupama Kapoor (PW-7) examined the victim vide MLC
(Ext. PW-7/B). The Doctor opined that she did not notice
any external injury on the victim and there was one injury
on the nose which according to the mother of the victim
was self inflictory. On examining the privates of the victim
the Doctor specifically mentions “hymen not torn”.
Pregnancy test also resulted into negative. The Doctor
collected the pubic hair, vaginal swab and vaginal slides

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of the victim and handed over the same to the police for
chemical examination through Forensic Science
Laboratory. Vide report (Ext. PW-18/C) the Regional

.

Forensic Science Laboratory did not find any evidence of
blood or semen on any of these articles.

(c) The police also took the victim to Psychiatric

Department, Zonal Hospital, Dharamshala on Aug 2, 2013,
from where she was referred to RPGMC Tanda for I.Q.
Assessment vide report (Ext. PW-8/A). As pert report (Ext.

PW-9/A) issued by Dr. Sukhjeet Singh (PW-9) the victim
had a very low I.Q. of 33 and suffered from Mental
Retardation (severe).

(d) The police arrested the accused on Aug 4, 2013 and

also got his medical examination conducted through Dr.
Anuradha Chaudhary (PW-6) according to whom the

accused was capable of performing sexual intercourse,
vide MLC (Ext. PW-6/A).

(e) On Nov 1, 2013 the police produced the victim before

the Judicial Magistrate, 2nd Class, Dharamshala for

recording her statement under Section 164 CrPC. As per
the said statement (Ext. PW-17/B), the Magistrate did not

find the victim to be capable of understanding the meaning
of Oath, as such, she proceeded to ask questions without
Oath. In response to her questions, the victim stated like a
child that wrong thing had been done to her by Jeet and
he caught hold of her from arm and unstring her salwar.

3. The Investigating Officer also procured the birth certificate (Ext.

PW-5/A) of the victim according to which she was born on Nov 30, 1988.

Therefore, the fact of the victim, above 18 years of age is undisputed.

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4. On this evidence, the SHO filed a report under Section 173

CrPC, in the Court of Judicial Magistrate who committed the same to the

.

Sessions Court, Kangra at Dharamshala. In compliance with the

provisions of Section 207 CrPC., the Trial Court provided the complete

copies of challan (Police report) to the accused/convict. Vide order dated

Sep 3, 2014, the trial Court, as per the mandate of Sections 211 and 214

CrPC, framed charges against the accused for the commission of offence

under Section 376 IPC. However, vide subsequent order dated Jul 22,

2017, the Trial Court reframed the charges against the accused and

charged him for the commission of offence punishable under Section

376(2)(j) IPC which reads in the following terms:-

“That on 27-07-2013 at about 10.30 AM, at place Deepdhar,

P.S. Mcleodgang, you committed rape on the proxecutrix, who
was incapable of giving consent due to mental retardation and
thereby you committed an offence punishable u/s 376(2)(J)

IPC and within the cognizance of this Court.”

The accused, who at the time of the commission of the offence

was 24 years of age,, did not plead guilt and claimed trial.

5. After the examination of the prosecution witnesses, in

compliance with Section 313 CrPC, the trial Court put the incriminating

evidence to the accused, to which he denied.

6. The Court offered the accused to bring any evidence in support

of his defence. However, he did not avail of his legal rights.

Consequently, the trial Court closed the evidence. The accused also did

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not file any written submissions as contemplated under Section 314

CrPC.

.

7. After hearing the arguments, the learned Addl. Sessions Judge

(III), Kangra at Dharamshala, HP, accepted the prosecution evidence and

convicted the accused for the charged offence and sentenced as

aforesaid. Hence the present appeal.

8. We have heard Mr. Vinay Thakur, Advocate, for the

9.

r to
appellant/accused and Mr. R.R. Rahi, learned Deputy Advocate General,

for the respondent/State. We have also waded through the entire record.

After careful reading of the entire evidence, application of law

and judicial precedents, our reasoning is as follows:-

10. Smt. Nimmo Devi, mother of the prosecutrix, testified in Court

as PW-1 and stated that her elder daughter Naino Devi (PW-2) had told

her what she had noticed and after that she informed the Pradhan,

whereafter, she went to the police station and registered FIR (Ext. PW-1/

A) against the accused.

11. The only eye witness Naino Devi, sister of the prosecutrix,

appeared in Court as PW-2. She stated on oath that on Jul 27, 2013, her

parents had gone from Deepdhaar to Dhanoli to attend a marriage and

deputed her to come to Deepdhaar to stay with the prosecutrix and also

to graze the cattle. She stated that she reached Deepdhaar at about

10.30 a.m. and when she had reached near her hutment at Deepdhaar

then she did not find the victim present there. On this, she started

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searching for the victim and called her but she did not reply. After that,

she went in search of her towards the “goath” (where the animals are

.

kept) and on the way towards the “goath” when she had walked for

around 10 minutes, she noticed that Ajeet Kumar had laid down the victim

on earth and was committing bad act with her. She further noticed that

the accused was committing bad act with the victim after removing her

salwaar and his trousers. She further stated that on her asking the

accused as to what he was doing with her sister, who was mentally

retarded and could not understand the act and consequence, the accused

put his clothes and ran away towards his hutment. She further stated that

her parents returned home from the wedding after two days of the

occurrence but she could not tell about the occurrence on that day as she

was ashamed of telling the same in front of her father. She further told

that next day when her father had gone to cut the grass then, in his

absence, she narrated the incidence to her mother, who in turn told him

about the incident.

12. The only difference in the statement of Naino Devi (PW-2) and

that of the FIR (Ext. PW-1/A), is that in her statement on oath she stated

that she had asked the accused that what was he doing with her sister

and on this he ran away. Therefore, only this part that she had

questioned the accused was not mentioned in the FIR and because the

FIR was registered by her mother (PW-1) and not by this witness (PW-

2), as such, the possibility of her forgetting this part cannot be ruled out.

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13. It is pertinent to mention here that in cross examination of both

Nimmo Devi (P-1) and Naino Devi (PW-2) the accused did not take the

.

plea of false implication on some reasons or some enmity. It is a case

where the accused relied upon the failure of the prosecution, instead of

discharging the burden which had shifted upon him once the eye witness

had testified before the Court.

14. Even if the defence counsel did not cross examine the

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complainant (PW-1) and her daughter (PW-2), still the testimony of Naino

Devi (PW-2) explicitly states that she had seen the accused Ajeet lying

on her sister (prosecutrix) and at that time he was not wearing his

trousers and her sister was not wearing her salwaar. She further clarified

that when she reached the spot they noticed each other and on this she

asked the accused that what he was doing with his sister on which he put

on his clothes and belt and ran away. Naino Devi (PW-2) specifically

stated that she made her sister wear salwaar which stood removed.

15. This clinching evidence proves the presence of the accused

with the victim, who had the Intelligence Quotient (I.Q.) of just 33 and

suffered from mental retardation (severe). In view of this the absence of

injuries on her body becomes meaningless because resistance would not

occur to her, which would happen as a reflex action when force is applied.

But finding her alone accused would be caressing her to which she

would understand as an act of pure love and not lust. Consequently, there

was no question of her resistance.

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16. The crucial question which arises for consideration is that

whether the accused was able to penetrate, even slightly, so that the

.

offence falls within the definition of Section 375 IPC which stood

amended prior to the date of the incident. The Doctor (PW-7) who

examined the victim did not find any injury over her privates. She

specifically noticed that her hymen was intact and swabs collected from

her privates and clothes did not find any traces of semen by the Forensic

Science Laboratory. Therefore, there is no scientific evidence to prove

that the act had resulted into penetration or ejaculation. In fact, the

scientific evidence did not prove coitus at all.

17. It is significant to mention that when Naino Devi (PW-2) noticed

the accused lying over the victim she did not explain any further. Even

otherwise when she would have noticed the accused then the accused

was in prostrate position because the victim was in supine position so

PW-2 must have noticed the accused from back and not front position.

Since the victim was a severe mentally challenged person, as such, only

evidence to make out whether there was any penetration or not would be

scientific evidence. Possibility cannot be ruled out that the moment the

accused started to lay over the victim, at that very moment PW-2

arrived at the spot. Undoubtedly, timely arrival of PW-2 saved the victim

from the accused from certain sexual assault. On one hand the trauma

faced by the victim was extreme but simultaneously it was her good

fortune that her sister reached there well in time. In case she had not

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reached there then there was nothing to stop the accused from

committing coitus. Be that as it may, mere assumption will not make it a

.

case of rape, but a case of attemptive rape where it is punishable with the

aid of Section 511 IPC. The evidence is sufficient to prove that attempt to

commit rape was made. This being the position, commission of the

offence under Section 376(2)(j) is required to be altered to an offence

under Section 376(2)(j) read with Section 511 IPC.

18.

For the foregoing reasons, the appeal succeeds in part and

accordingly it is partly allowed and the conviction and sentence passed

by the trial Court is set aside and is altered to conviction under Section

376(2)(j) read with Section 511 IPC and the appellant/accused is

sentenced to five years, to be counted from the date of arrest and set off

u/s 428 CrPC. Registry is directed to prepare fresh warrants accordingly.

Registrar (Judicial) to ensure compliance.

19. Records of the Court below be immediately sent back.

20. The appeal stands partly allowed in the terms mentioned

above. All pending applications, if any, are also closed.

(Dharam Chand Chaudhary),
Judge.

(Anoop Chitkara),
Judge.

March 11 , 2020 (PK)

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