IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Appeal No. 167 of 2010
Reserved on: 09.03.2018
Decided on: .03.2018
.
_
State of H.P. …..Appellant.
Versus
Ranvir Kumar others. ……Respondents.
_
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.
1 Whether approved for reporting? No.
_
For the appellant: Mr. Vinod Thakur, Additional
Advocate General with Mr. J.S.
Guleria and Mr. Bhupinder Thakur,
Deputy Advocates General.
For respondents: Ms. Sheetal Vyas, Advocate, vice Mr.
Anoop Chitkara, Advocate.
Chander Bhusan Barowalia, Judge.
The present appeal is maintained by the appellant/State,
laying challenge to judgment dated 22.10.2009, passed by learned
Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P., in
Sessions Trial No. 4/7 of 2007, whereby the accused/respondents
(hereinafter referred to as “the accused persons”) were acquitted for
the commission of offence punishable under Section 376(ii)(g) read
with Section 34 of Indian Penal Code, 1860) (hereinafter referred to
as “IPC”).
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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2. The background facts, as projected by the prosecution,
can succinctly be summarized as under:
On 24.11.2006, the prosecutrix had gone to the house of
.
her sister, Smt. Anita Devi, at Badhaghat and on 26.11.2006, on her
return journey, she took bus from Badhaghat and alighted at Nihari.
Therefrom she took lift in the vehicle of Nikku, who was her
acquaintance, and came to Dangar. At Dangar she went to sewing
centre for her enrolment. Thereafter, she started to her village on
foot and when she was walking on kacha road a jeep, having
registration No. HP23A-4344, was parked there. Accused Sanjiv @
Pappi was sitting on the driver seat and accused Ranvir and
Manohar Lal were also sitting in the jeep. Accused, Ranvir Kumar,
whom the prosecutrix knew, offered lift to the prosecutrix and told
her that they are going towards Patta side. The prosecutrix took lift,
but accused persons instead of going towards Patta went towards
Nihari side. The prosecutrix objected and accused Ranvir Kumar
gagged her mouth. She was taken to Ballu nallah, a secluded place.
Accused Ranvir Kumar dragged the prosecutrix to the nearby nallah
and the other accused persons acted as watchmen. Accused Ranvir
Kumar raped the prosecutrix. As per the story of the prosecution,
while accused was doing sexual intercourse with the prosecutrix,
Smt. Jai Devi, was working in her field and she saw the accused
coming in the vehicle. Subsequently, Smt. Jai Devi also saw accused
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Ranvir Kumar coming upward and he was being followed by the
prosecutrix. The prosecutrix and accused Ranvir Kumar were also
spotted by Shri Tilak Raj, Smt. Panno Devi, Smt. Geetan Devi and
.
Smt. Kamla Devi. Shri Tilak Raj got injured in an attempt to
apprehend accused Ranvir Kumar. When the prosecutrix was being
inquired by Shri Tilak Raj, Smt. Kamla Devi, Smt. Geetan Devi and
Smt. Jai Devi, the accused persons fled away from the spot. The
prosecutrix divulged to Smt. Pano Devi the entire incident. Shri
Tilak Raj telephoned Shri Purshotam Ram and Shri Purshotam Ram
took the prosecutrix to his house. Shri Purshotam Ram
telephonically informed Shri Krishan Chand, brother of the
prosecutrix. When the brother of the prosecutrix came there, the
prosecutrix narrated the incident to him. In the interregnum, the
parents of the prosecutrix got worried and started inquiring about
the prosecutrix. They alongwith one Shri Bishan Dass went towards
Dangar, where they met the prosecutrix and Shri Krishan Chand,
who narrated the incident to them. Thereafter, the prosecutrix
alongwith her parents went to police station and lodged a case.
Upon registration of FIR, police investigation ensued and on
27.11.2006 police visited the spot. From the spot an used condom
and two pieces of its wrapper were recovered. Condom was taken
into possession in presence of Shri Bishan Dass and Shri Balwant
Singh and the spot was photographed. Spot map was prepared and
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accused Ranvir Kumar was arrested and medically examined. Blood
samples of the accused were taken and his underwear was preserved
and handed over to the police. The prosecutrix was also medically
.
examined and her salwar, shirt, sweater, under vest, underwear and
“dupta” were handed over to the police by the doctor. Vaginal swab
and pubic hair of the prosecutrix were also taken by the doctor and
handed over to the police. On 27.11.2006, in presence of Shri
Balwant Singh and Shri Bishan Dass, police took into possession
vehicle, having registration No. HP23A-4344, alongwith its
documents and driving license of accused Sanjeev. On 28.11.2006,
accused Ranvir Kumar made a disclosure statement in presence of
Shri Om Parkash and HHC Amrit Lal and consequent upon that
disclosure statement he led the police to his house where a
polythene bag was kept, which contained belongings of the
prosecutrix, viz., lipstick, lip liner, photographs, currency notes and
coins. The polythene bag was taken into possession. Record qua
date of birth of the prosecutrix was obtained from the school and
from the concerned panchayat. Accused Sanjiv Kumar handed over
the garments, which accused Ranvir Kumar, was wearing during the
incident and the same were taken into possession. After conclusion
of investigation, challan was presented in the Court.
3. The prosecution, in order to prove its case, examined as
many as twenty two witnesses. Statements of the accused persons
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were recorded under Section 313 Cr.P.C., wherein they pleaded not
guilty. Accused Raniv Kumar took the defence that prosecutrix was
in love with him and they wanted to marry. He has produced letters
.
Mark D-1 to Mark D-2, which, according to accused Ranvir Kumar,
were written by the prosecutrix. He has also produced photograph,
Ex. DA, wherein he and the prosecutrix are together. However, the
accused persons did not lead any defence evidence.
4. The learned Trial Court, vide impugned judgment dated
22.10.2009, acquitted the accused persons for the offence
punishable under Section 376(ii)(g) read with Section 34 IPC, hence
the present appeal preferred by the appellant/State.
6. The learned Additional Advocate General has argued that
the prosecution has proved the guilt of the accused beyond the
shadow of reasonable doubt, as he has forcibly taken away the
prosecutrix and thereafter after putting condom on his private part
committed forcible sexual intercourse with the prosecutrix behind
the bushes after dragging her for some distance from the road, where
his other two accomplices were sitting in the vehicle. He has further
argued that the evidence of the prosecution is clear and points out
towards the guilt of the accused persons, but the learned Trial Court
ignored the evidence and acquitted the accused persons.
Conversely, the learned vice counsel appearing on behalf of the
accused persons argued that the prosecution has failed to prove the
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guilt of the accused persons as the statement of the prosecutrix is
not inspiring confidence. She has further argued that the statement
of the doctor shows that no sexual intercourse, as alleged by the
.
prosecution, took place. There is no medical evidence suggestive of
sexual intercourse, as pointed out by the prosecution. She has
argued that the prosecutrix was habitual of sexual intercourse and
no semen etc. were found and even otherwise also all the
independent witnesses have gone hostile, so the judgment of
acquittal needs no interference.
7. In rebuttal, the learned Additional Advocate General has
argued that accused persons can be convicted on uncorroborated
testimony of the prosecutrix and minor contradictions are not fatal
to the prosecution case.
8. In order to appreciate the rival contentions of the parties
we have gone through the record carefully.
9. As per the prosecution case, accused Ranvir Kumar
committed forcibly sexual intercourse with the prosecutrix and his
accomplices, other accused persons, were sitting in the vehicle and
acting as watchmen. It has further come in the prosecution story
that the prosecutrix raised hue and cry and upon hearing her cries
Shri Tilak Raj (PW-10), Smt. Jai Devi (PW-11), Smt. Pano Devi (PW-
12), Smt. Kamla Devi (PW-19) and Smt. Geetan Devi (PW-20) saw
accused Ranvir Singh and the prosecutrix on the spot. In the wake
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of above circumstances, statement of the prosecutrix has to be seen
in conjunction with the statements of above eye witnesses and the
medical evidence.
.
10. The prosecutrix stepped into the witness-box as PW-16.
She has deposed that on 24.11.2006 she went to the house of her
sister at Badhaghat and on 26.11.2006 she started back at 12:00
noon. She has further deposed that she came upto Nihari in a bus
and therefrom she took lift to Dangar in the vehicle of one Shri
Nikku. At Dangar she went to sewing centre and therefrom she
started to her house at 04:00 p.m. At Dangar she saw a vehicle
parked on the road side and its driver was Pappi (accused Sanjiv
Kumar) and other occupants of the vehicle were accused Ranvir
Kumar and Manohal Lal. As per the version of the prosecutrix, when
she was walking near the vehicle, accused Ranvir Kumar asked her
as to where she was going and upon this she replied that she is
going to her house. Accused Ranvir Kumar told her that they are
going towards Patta side and he offered lift to her. She boarded the
vehicle, but the accused persons instead of going towards Patta
drove the vehicle towards Nihari. She started crying and upon this
accused Ranvir Kumar gagged her mouth with his hand. The
accused persons stopped the vehicle at Ballu nallah, which is near to
Nihari and accused Ranvir Kumar dragged her to the nearby nallah.
Accused Ranvir Kumar committed forcible sexual intercourse with
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her and the other accused persons were sitting in the vehicle and
acting as watchmen. She has further deposed that she cried and
upon hearing her cries two ladies came there and all the accused
.
persons fled away from the spot. One more person, who was known
as Fattu, also came there and she was taken to his house. Her
brother reached there, as he was telephoned by Fattu. When she
was being accompanied to home by her brother, her parents and
Ward Member met them on the way near Dadhol. Thereafter, they
went to the house of Pradhan Gram Panchayat, Padyalag and
subsequently to Police Station, Bharari. As per her version, she has
reported the matter to the police and FIR was registered. She has
further deposed that while she was returning from the house of her
sister she was having a plastic bag containing 16 photographs of her
sister and brother-in-law and `400/-. That bag was in the vehicle
and the accused persons fled with that bag. The police got her
medically examined and her medico legal certificate was obtained,
which bears her signatures. Her date of birth is 29.03.1988 and on
the day of occurrence she was wearing red shirt, cream coloured
salwar and blue sweater. She has identified in the Court her clothes
and polythen bag, containing her belongings and Rs. 400/-. This
witness, in her cross-examination, has deposed that accused Ranvir
Kumar was known to her for the last two years from the date of
occurrence, as he is brother of her friend Sapna. As per the
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prosecutrix, the vehicle was a car and there were 4-5 shops where
the vehicle was parked. She has further deposed that she sustained
no injury when accused Ranvir Kumar gagged her mouth. When she
.
was being dragged by accused Ranvir Kumar from the vehicle to the
spot where she was raped, her clothes got entangled with the
bushes. She sustained scratches on her arm and little blood also
oozed. She also sustained scratches on her back and her private
part also started bleeding due to sexual intercourse and the blood
touched her thighs. She has further deposed that she did not
remove the stains of the blood. The accused used condom while
doing sexual intercourse.
11. After elaborately discussing the statement of the
prosecutrix, medical evidence assumes significance. PW-15, Dr.
Bharti Ranaut, medically examined the prosecutrix. As per her
version the clothes of the prosecutrix were not torn but slightly
soiled with mud. The clothes were not stained with blood, seminal
stains or loose hair. She did not notice any scratches, contusion or
injury marks on the person of the prosecutrix. As per this witness,
the finger nails of the prosecutrix were not damaged or contained
any debris, viz., skin or blood clots. There was nothing suggestive
that a recent vaginal penetration took place. She noticed no sign of
struggle on the body of the prosecutrix. This witness preserved
underwear, salwar, kameez, sweater and dupta of the prosecutrix for
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chemical examination and handed over the same to the police. She
has further deposed that on 05.02.2007 police put before her
chemical examination report, Ex. PW-15/A, whereupon she gave her
.
final opinion that there are signs of vaginal penetration, but there
was no evidence suggesting recent penetration. As per report, Ex.
PW-15/A, no semen was found on the clothes or vaginal slides of the
prosecutrix. This witness, in her cross-examination has deposed
that she found no scratch mark on the back of the prosecutrix. She
also did not find any stains of semen on the body of the victim.
12. Now, the statement of Dr. Bharti Ranaut (PW-15) clearly
rules out any recent sexual intercourse. The statement of PW-15
stands fortified by chemical examination report, Ex. PW-15/A.
Thus, the medical evidence does not match with the testimony of the
prosecutrix. Another point which emanates from the testimony of
the prosecutrix is that she raised hue and cry and owing to that two
ladies and a person came on the spot and all the accused persons
fled away from the spot. As per the prosecution story, accused
Ranvir Kumar and the prosecutrix were spotted by Shri Tilak Raj
(PW-10), Smt. Pano Devi (PW-12), Smt. Kamla Devi (PW-19) and Smt.
Geetan Degi (PW-20). All the above eye witness did not support the
prosecution case and they have been declared hostile, as they have
resiled from their previous statements. Therefore, the statement of
the prosecutrix firstly lacks corroboration from medical evidence and
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secondly the key prosecution witnesses, who allegedly saw the
occurrence, did not support the story as portrayed by the
prosecutrix.
.
13. In the facts and circumstances of the case, as the alleged
eye witnesses have not supported the prosecution case and the
medical evidence is not in consonance with the statement of the
prosecutrix, resultantly, statement of the prosecutrix lacks support
from any of the alleged prosecution eye witnesses and also from the
medical evidence. The prosecutrix has categorically stated that
blood oozed from her private part when sexual intercourse was done.
She has further deposed that she did not remove the blood, but no
blood was found by the doctor on her private part or on her clothes.
The prosecutrix has further deposed that semen was there and she
did not remove or clean the same with cloth etc., however, no semen
was found by the doctor (PW-15), who medically examined the
prosecutrix. Another contradiction in the prosecution story is that
as per the prosecutrix accused Ranvir Kumar put condom on his
private part and also gagged the mouth of the prosecutrix, but it is
unbelievable. As per the prosecutrix, when she was being taken
forcibly in the vehicle accused Ranvir Kumar gagged her mouth to
this extent her statement seems worthy of credence, but when she
states that accused Ranvir Kumar put condom on his private part, it
seems highly improbable that there was an occasion when accused
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was putting condom on his private part, during that time she could
have raised alarm and tried to free herself from the accused. Next
contradiction is that no injury was found on the person of the
.
prosecutrix. However, the own case of the prosecutrix is that she
was forcibly taken in the bushes by accused Ranvir Singh and
during that process her clothes got entangled with the bushes and
she also sustained scratches on her arms. However, PW-15, Dr.
Bharti Ranaut, did not find any scratch marks on the person of the
prosecutrix. PW-15, has opined that no recent sexual intercourse
took place with the prosecutrix. In the above mentioned
circumstances coupled with the fact that key prosecution witnesses,
i.e., Shri Tilak Raj (PW-10), Smt. Jai Devi (PW-11), Smt. Pano Devi
(PW-12), Smt. Kamla Devi (PW-19) and Smt. Geetan Devi (PW-20),
have not supported the prosecution case, we find that upon the sole
uncorroborated testimony of the prosecutrix, the accused persons
cannot be convicted.
14. On the other hand, the case, as put up by the defence, is
that the accused is from lower caste and that was the reason a false
case has been foisted against him, as the parents of the prosecutrix
were against the harmonious relationship of the accused and the
prosecutrix. In these circumstances, the story as portrayed by the
defence, seems quite probable, as the entire prosecution evidence is
in contrast to what has been deposed by the prosecutrix and even
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the scientific evidence, which has come on record, is also not in
consonance with the testimony of the prosecutrix. Further PW-15,
Dr. Bharti Ranaut, has specifically opined that no recent sexual
.
intercourse, as depicted by the prosecution, took place. Now, in view
of the fact that accused and prosecutrix had harmonious
relationship, as alleged by the defence, the testimony of the
prosecutrix assumes significance. PW-16 (prosecutrix) has deposed
that she knew accused Ranvir Kumar and when accused Ranvir
Kumar saw the prosecutrix walking alone, he offered lift to her, as he
alongwith other accused persons, was also going to place, where the
home of the prosecutrix situated. Thereafter, as per the story
portrayed by the prosecutrix, she boarded the vehicle and accused
Sanjeev instead of going towards Patta turned the vehicle towards
Nihari. When they reached at Ballu nullah, accused Ranvir Kumar
dragged the prosecutrix to the nullah and committed forcible sexual
intercourse with her. Now, what the prosecutrix has stated, if
examined minutely, it emerges that her testimony is not reliable, as
incidents, which happened at Dangar and Ballu nallah overshadows
her credibility.
15. It has been held in K. Prakashan vs. P.K. Surenderan
(2008) 1 SCC 258, that when two views are possible, appellate
Court should not reverse the judgment of acquittal merely because
the other view was possible. When judgment of trial Court was
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neither perverse, nor suffered from any legal infirmity or non
consideration/mis-appreciation of evidence on record, reversal
thereof by High Court was not justified.
.
16. The Hon’ble Supreme Court in T.Subramanian vs.
State of Tamil Nadu (2006) 1 SCC 401, has held that where two
views are reasonably possible from the very same evidence,
prosecution cannot be said to have proved its case beyond
reasonable doubt.
17. In Chandrappa vs. State of Karnataka, (2007) 4 SCC
415, the Hon’ble Supreme Court has culled out the following
principles qua powers of the appellate Courts while dealing with an
appeal against an order of acquittal:
“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 reconsiderthe evidence upon which the order of
acquittal is founded.
2. The Code of Criminal Procedure, 1873
puts no limitation, restriction orcondition 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. Such16/03/2018 23:27:26 :::HCHP
15phraseologies are more in the nature
of ‘flourishes of language’ to
emphasise the reluctance of an
appellate court to interfere with
acquittal than to curtail the power of
the court to review the evidence and
to come to its own conclusion.
.
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 availableto 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 securedhis acquittal, the presumption of his
innocence is further reinforced,
reaffirmed and strengthened by the
trial Court.
5. If two reasonable conclusions are
r possible on the basis of the evidence
on record, the appellate court shouldnot disturb the finding of acquittal
recorded by the trial Court.”
18. Having tested the evidence of the prosecutrix (victim), we
are not satisfied with the truthfulness of the story projected by the
prosecution and we find it difficult to come to a conclusion that the
case falls under the category of cases in which conviction can be
ordered solely on the basis of the evidence of the prosecutrix. The
testimony of the prosecutrix is uncorroborated and untrustworthy
not to speak of being of sterling quality capable of inspiring the
confidence. Taking into consideration entire facts and circumstances
of the case, evidence, including the medical evidence, we are not
convinced that the prosecution has been able to prove its case
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beyond reasonable doubt, as such, it is more than safe to hold that
the prosecution has failed to prove the guilt of the accused persons
beyond all reasonable doubts and the findings of acquittal, as
.
recorded by the learned Trial Court, needs no interference, as the
same are the result of appreciating the facts and law correctly and to
their true perspective. Accordingly, the appeal, which sans merits,
deserves dismissal and is dismissed.
19. In view of the above, the appeal, so also pending
application(s), if any, stand(s) disposed of. Bail bonds are cancelled.
(Tarlok Singh Chauhan)
Judge
(Chander Bhusan Barowalia)
Judge
16th March, 2018
(virender)
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