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State Of Himachal Pradesh vs Rajender Kumar And Another on 7 December, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. Appeal No. 4038 of 2013
Reserved on: 30.11.2018

.

Decided on: 07.12.2018

_

State of Himachal Pradesh
…..Appellant

Versus
Rajender Kumar and another
……Respondents
_
Coram

The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge.
The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.

1

Whether approved for reporting? No.

For the appellant:

Mr. Vikas Rathore and Mr. Narender
Guleria, Additional Advocates General
with Mr. Kunal Thakur, Deputy
Advocate General.

For the respondents: Mr. N.S. Chandel, Advocate.

Chander Bhusan Barowalia, Judge.

The present appeal has been preferred by the

appellant-State of Himachal Pradesh, laying challenge to

judgment, dated 30.03.2013, passed by learned Additional

Sessions Judge, Sirmaur District at Nahan, H.P., in Sessions

Trial No. 1-N/7 of 2011, whereby the accused/respondents

(hereinafter referred to as “the accused persons”) were

acquitted for the offence punishable under Sections 376 (2)

(g) and 506 (II), 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

2. Succinctly, the facts giving rise to the present

appeal, as per the prosecution story, are that on 28.03.2010,

.

the prosecutrix and her husband stayed in the house of Tara

Devi at village Kafota (friend of the prosecutrix). At about

8.30/9.00 p.m., when Tara Devi was preparing meal in the

kitchen and husband of the prosecutrix was sitting with Surat

Ram (husband of Tara Devi), the prosecutrix went outside in

the field for answering the nature’s call. Suddenly, accused

persons came there. Accused No. 2 caught hold the

prosecutrix from the arms, while accused No. 1 untied the

string of her salwar and committed rape upon her. After

committing rape, accused persons absconded from the spot.

Thereafter, the prosecutrix disclosed the entire incident to her

husband and they left the house, so as to chase the accused

persons. However, they could not find the accused persons

and stayed in the house of the maternal uncle of the

prosecutix at village Shillai. Subsequently, the matter was

reported to the SHO, Police Station Shillai. After registration of

the case, the investigation ensued. During the course of

investigation, the spot was photographed. The medical

examination of the prosecutrix was conducted at CHC, Shillai.

The Medical Officer retained vaginal smear slides, cervical

smear slide, sample of pubic hair and salwar of the prosecutrix

for the purpose of chemical examination, which were later on

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3

got analyzed from SFSL, Junga. During further investigation,

on 06.04.2010, accused No. 1 produced his pants, shirt and

.

vest, which he worn at the time of occurrence. He was

medically examined and found capable of committed sexual

act. After completion of investigation, challan was presented

in the Court.

3. The prosecution, in order to prove its case,

examined as many as sixteen witnesses. Statements of the

accused persons were recorded under Section 313 Cr.P.C.,

wherein they denied having committed rape upon the

prosecutrix. In a nutshell they pleaded themselves to be

innocent. However, the accused persons did not lead any

defence evidence.

4. The learned Court, vide impugned judgment dated

30.03.2013, acquitted the accused persons for the offence

punishable under Sections 376 (2) (g) and 506 (II), read with

Section 34 IPC, hence the present appeal.

5. The learned Additional Advocate General has

argued that the learned Trial Court has failed to appreciate the

fact that it was the accused persons, who have committed

rape upon the prosecutrix. He has further argued that the

learned Trial Court has ignored the evidence, as led by the

prosecution and acquitted the accused persons on the basis of

surmises and conjectures, so the judgment passed by learned

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4

trial Court, which is based upon wrong appreciation of the

evidence, be set aside and after re-appreciating the evidence,

.

the accused persons be convicted. On the other hand,

learned counsel for the respondents has argued that the

accused persons are innocent, as there is nothing against

them which could connect them with the alleged offence, so

the well reasoned judgment of acquittal, passed by learned

Trial Court, needs no interference and the present appeal be

dismissed.

6. In order to appreciate the rival contentions of the

parties, we have gone through the record carefully and in

detail.

7. First of all the statement of the prosecutrix is

taken into consideration, who has appeared in the witness box

as PW-14 and deposed that on 28.03.2010, she was in the

house of her friend Tara Devi at village Kafota. At around

8.00/8.30 p.m., when she went out of the house in order to

reply nature’s call in the field, accused persons appeared

there and while accused No. 2 caught hold her from the arms,

accused No. 1 untied the string of her salwar and committed

sexual act with her, without her consent. She tried to raise

cries, but accused No. 1 put his hands on her mouth and

threatened her to do away with her life. After committing rape,

accused persons absconded from the spot. Thereafter, she

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5

returned to the house of her friend and narrated the entire

incident to her husband and she alongwith her husband then

.

went in search of the accused towards the direction they

absconded. However, the accused persons were not met them

and on return, they stayed in the house of her maternal uncle

at Shillai. After the said occurrence, she, her husband and her

uncle went to the Police Station, Shillai and submitted written

complaint regarding the incident to the SHO. In the next

morning she was taken to CHC Shillai, where she was

medically examined. The Investigating Officer visited the spot

and she pointed out the place of occurrence to him. The police

prepared the site plan and spot was photographed. The

prosecutrix, in her cross-examination, has deposed that before

marriage she used to reside at village Nehra in her parental

house. The accused persons are the resident of village

Dugana and are real brothers. The distance between Nehra

and Dugana is about 10-15 kilometers. She further deposed

that she studied in Government School Kafota uptill 8 th

Standard and knows Kamalu, brother of the accused persons,

as he used to impart her tuition of maths. She deposed that

on the day of occurrence, she went to reply nature’s call about

half kilometer away from the house of Tara Devi in the field.

The accused persons appeared on the spot after 2-3 minutes,

when she reached there. As per this witness, the string of her

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6

salwar was not broken, but untied by accused No. 1, whereas

accused No. 2 through out caught hold her arms. The rape

.

was committed in doggy position. She further deposed that

after the said occurrence, she did not change the original

wearings in her house. She admitted that she did not produce

the salwar to the police in her parental house. Self stated that

she went to the police station in the same clothes. She further

admitted that the Doctor had taken into possession the same

salwar, which she was wearing at the time of occurrence. She

denied that she used to talk with accused No. 1 over phone.

Mobile No. 97299-03582 was the number of her husband. She

feigned ignorance about mobile No. 98163-39451. She

admitted that mobile No. 93556-56110 is also the number of

her husband. Again stated that earlier number, i.e. 97299-

03582 is not of her husband. As per the prosecutrix, she has

no separate mobile. She admitted that after the occurrence,

no injury was sustained by her on her knee caps or elsewhere.

The rape process lasted for about 10-15 minutes. They left the

house of Tara Devi at 9.30 p.m. and reached Shillai at 12.30

a.m. The house of her uncle is situated at Shillai bazar and

Police Station Shillai is at a distance of one kilometer from

there. She deposed that after the occurrence, she had not

answered the call of nature and she eased out next day after

medical examination. She denied that on 28.03.2010, she

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7

called accused No. 1 over the mobile. She further denied that

she used to talk from accused No. 1 over her own mobile. Self

.

stated that accused No. 1 used to talk with her husband on

mobile. She also denied that as her husband came to know

that she used to talk with accused No. 1, he then planned to

implicate him in a false case.

8. Now the statement of the prosecutrix is required

to be gone into alongwith the statements of other material

witnesses. PW-1, Surat Singh, has deposed that on

28.03.2010, his wife Tara Devi told her that some guests are

coming to their house and asked him to bring vegetables from

the bazar. At about 7.30/8.00 p.m., when he reached from the

bazar, the prosecutrix and her husband had come to his

house. Around 8/8.30 p.m., while his wife was preparing meal

in the kitchen and he was sitting with the husband of the

prosecutrix, the prosecutrix went out to ease the call of

nature. She took with her the mobile phone of his wife, as it

was dark outside and there was light in the phone of his wife.

She returned after about 10-15 minutes. She put the mobile

phone on the door of the house and made a signal to her

husband to come out from the room. Thereafter, they told that

they will not take the meal and left the house. On the next

day, police came to his house and associated him and his wife

in the investigation. This witness, in his cross-examination,

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has deposed that when prosecutrix and her husband left the

house, they have not told them anything about the

.

occurrence, but only told that they are going back and will not

take food. He further deposed that at the place of occurrence,

neither there were any marks of struggle, nor there were any

broken bangles. He feigned ignorance whether accused No. 1

was confined to bed due to fracture on his leg or not.

9. PW-2, Dr. Seema Raghav, Medical Officer, CHC

Shillai, has deposed that she examined the prosecutrix, who

was brought to her with the alleged history of sexual assault

and opined that:

General physical examination:-

She was conscious, cooperative and well
oriented to time, place and person. Pulse rate 82

per minute, B.P. 116/80 milimeter of mercury,
chest NAD, CVS NAD per abdomen NAD (no
abnormality detected).

Last menstrual period 20.03.2010. Most recent

coitus with husband was on 17.03.2010 without
using any condom. She has not passed urine or
defecated after assault. She has not changed

underwear since then. Blood stains present on
the underwear.

Menstrual history:- 6-7 days per cycle regular
menstrual flow, she has one child six months

old, no external injury present or complained.
Local examination:- No signs of struggle seen.
External genitalia, no injury seen, no stains
present.

Per vaginal examination:-

1) Vagina admitting two fingers easily.

2) Uterus normal in size.

3) Slight bleeding per vagina present.

On the basis of aforesaid examination, she opined that there is

nothing to suggest that sexual intercourse has not been

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performed. She denied having any signs of trauma. She

admitted that on examination of the prosecutrix, it can be said

.

that no violence or force was used. She further deposed that

on completion of medical examination, she issued MLC, Ext.

PW-2/B, which bears her signatures.

10. PW-3, Tara Devi, has deposed that on 28.03.2010,

at about 6.30 p.m., the prosecutrix and her husband reached

at her house. At about 8/8.30 p.m., when she was preparing

meal in the kitchen, the prosecutrix told her that she wanted

to go outside to ease the call of nature. Since, she was

preparing meal, she told the prosecutrix to go alone. She gave

her phone to the prosecutrix, as it was dark outside. When the

prosecutrix came back, she put her mobile on the door and

made a signal to her husband to come out. Thereafter, they

told us that they will not take the dinner and around 9.30 p.m.

they left the house. This witness, in her cross-examination,

has deposed that the prosecutrix returned after 20 to 25

minutes, however neither she talked to her nor came inside

the house. She simply called her husband from outside and

thereafter left the house.

11. PW-6, Deep Chand, has deposed that on

06.04.2010, accused No. 1 handed over a pants, a full sleeve

shirt, vest, which were put in a cloth parcel and sealed with

seal impression ‘S’ and taken into possession vide memo, Ext.

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PW-6/A. He and HC Sukh Dev Singh put their signatures on the

same as witnesses. The seal after use was handed over to

.

him. This witness, in his cross-examination, has deposed that

when accused No. 1 handed over his clothes to the police, he

was having plaster due to fracture in his leg.

12. PW-7, HHC Sukhdev Singh, No. 340, has deposed

that on 06.04.2010, accused No. 1 handed over his clothes to

the police, which he worn at the time of occurrence. These

clothes were put in a cloth parcel and sealed with seal

impression ‘S’ at seven places and were taken into possession

vide memo, Ext. PW-6/A. On the same day, accused No. 1 was

medically examined at CHC Shillai and MLC mark-A was

obtained. The samples of pubic hair and underwear, which

were preserved by the Medical Officer, CHC Shillai, were also

taken by him and the same were handed over in the police

station. In cross-examination, he deposed that when he took

accused No. 1 for his medical examination, accused was

having plaster on his leg and he was not in a position to walk.

13. PW-11, ASI Partap Singh, has deposed that on

29.03.2010, at about 8.30 a.m., he alongwith the prosecutrix,

her husband, Lady Constable Kusum Lata and other police

officials went to the spot at Kafota. At the instance and

demarcation of the prosecutrix, the spot was inspected and

spot map, Ext. PW-11/A was prepared. The spot was also

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photographed. The statements of the prosecutrix, her

husband Ramesh, Tara Devi and Surat Singh were recorded as

.

per their versions. During investigation, on 06.04.2010,

accused No. 1 handed over to him a pants, T-shirt and vest,

which he has worn on 28.03.2010. The clothes of the accused

were put in a cloth parcel and sealed with seal impression ‘S’

at seven places and were taken into possession vide memo,

Ext. PW-6/A. The sample of seal, Ext. PY was taken separately

on a piece of cloth. The seal after use was handed over to

Deep Chand. Memo was signed by Deep Chand and HHC Sukh

Dev Singh as witnesses. This witness, in his cross-

examination, has deposed that during investigation he did not

notice any marks of struggle on the grass where occurrence

took place, nor the bangles of the prosecutrix were found

broken on the spot. He further deposed that mobile No.

93556-56110 was of the husband of the prosecutrix and

mobile No. 98163-39451 was of accused No. 1, whereas,

mobile No. 97299-03582 was of the prosecutrix.

14. PW-13, Dr. A.V. Raghav, SMO, CHC Shillai, has

deposed that on 06.04.2010, on an application, Ext. PW-12/C,

moved by the police, he conducted the medical examination

of accused No. 1. On examination, the person was found fit for

sexual intercourse and there was nothing to suggest that he is

incapable of doing sexual intercourse. He issued MLC, Ext. PW-

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12

13/A, which bears his signatures. During examination, he

preserved pubic hair and underwear of the accused.

.

15. PW-15, Ramesh Kumar (husband of the

prosecutrix), has deposed that on 28.03.2010, he and his wife

were in the house of Tara Devi. While Tara Devi was preparing

meal in the kitchen and her husband was sitting with him, his

wife went outside the house to answer the nature’s call. After

15 minutes, when she came from outside, she signaled him to

come out. When he went outside the house, he saw her wife

weeping and on asking, she told him that when she had gone

to ease out in the field, two persons committed rape upon her.

Thereafter, he asked her about those persons and they

proceeded to trace them, but they were not found. Then he

gave a ring to maternal uncle of his wife and told him about

the incident, who asked them to come to his house.

Subsequently, he alongwith his wife and her maternal uncle

went to the police station and lodged a complaint. Thereafter,

they remained associated in the investigation. On 17.05.2010,

he again came to the police station to apprise them that his

wife had told him that she was having menstruation at the

time of the incident and the pad being used by her had fallen

on the spot. However, when they went to the spot, no pad was

found there. This witness, in his cross-examination, has

deposed that they did not disclose the incident to Tara Devi

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13

and her husband. He admitted that when police enquired from

him about the call details, he told them that he did not know

.

accused No. 1, nor he ever had any talk with him on mobile.

He denied that he was having suspicion that his wife used to

talk with accused No. 1 over mobile and that is why, he and

his wife involved the accused persons in a false case.

16. PW-16, Dharam Singh (maternal uncle of the

prosecutrix), has deposed that on 28.03.2010, around 9/9.30

p.m., he received a telephonic call from Ramesh Kumar (PW-

15) that his wife was raped by two persons. Thereafter, he

asked him to come to Shillai to lodge report to the police. This

witness, in his cross-examination, has deposed that the

prosecutrix is daughter of his real sister.

17. A perusal of the statement of the prosecutrix,

shows that accused No. 1 committed rape upon her in doggy

position, while accused No. 2 caught hold her arms. In doggy

position, the knees of woman had to be on the ground and

signs of the struggle had to be on her person. However, in the

instant case, neither there was any signs of struggle in the

spot, nor on the person of the prosecutrix. It is own admission

of PW-1, PW-3, PW-11, PW-14 and PW-15 that there was no

marks of struggle on the grass in the field, where occurrence

took place, nor bangles of the prosecutrix were found broken

there. Whereas, PW-2, Dr. Seema Raghav, after examining the

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14

prosecutrix opined that it could not be said that any violence

or force was used. As per PW-2, there were also no signs of

.

trauma, which is inevitable when rape was committed on a

woman. So, in absence of any signs of struggle, the story

putforth by the prosecutrix becomes doubtful. It is the case of

the prosecutrix that on the day of occurrence, she and her

husband stayed in the house of her friend Tara Devi and Surat

Singh. However, as per the deposition of Tara Devi and Surat

Singh, the prosecutrix did not tell them that rape was

committed upon her. This conduct of the prosecutrix to not tell

the said facts to her woman friend, seems unnatural and left

the house without disclosing anything to the persons in whose

house they were staying, creates doubt.

18. Further as per the story putforth by the

prosecutrix, accused No. 1, who raped her, was known to her,

whereas accused No. 2, who helped accused No. 1 in

commission of the rape, was not known to her. It again seems

unnatural that how accused No. 1 and 2 came to know that

the prosecutrix will go the field to reply the nature’s call at

8/8.30 p.m. and they will have an opportunity to rape her. As

per the version of the prosecutrix, she had no relation with

accused No. 1. However, from the call details of accused No. 1

and the prosecutrix, it seems that near the time of occurrence,

the prosecutrix made several calls to accused No. 1 from her

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15

mobile No. 97299-03582, but the prosecutrix and her husband

concealed these facts in their deposition and what was the

.

cause behind making calls to accused No. 1, is unexplained.

19. From the above, it is clear that the prosecutrix

withhold the evidence with regard to telephonic calls made by

her to accused No. 1 on the day of occurrence upto the time of

the alleged offence. Further there were no marks of injuries on

the persons of the prosecutrix. All these facts makes the story

of the prosecution highly doubtful. So, keeping in view the

evidence, which has come on record and also taking into

consideration the testimonies of the witnesses, this Court

finds that it is not reasonably possible to conclude that the

prosecution has proved the guilt of the accused persons

beyond the shadow of reasonable doubt. Even after re-

appreciating the evidence, this Court finds that there is no

reason to interfere with the well reasoned judgment of

acquittal passed by the learned trial Court.

20. 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 neither perverse, nor suffered

from any legal infirmity or non consideration/misappreciation

of evidence on record, reversal thereof by High Court was not

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16

justified.

21. 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.

22. 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 reconsider the

evidence upon which the order of acquittal is
founded.

(2) The Code of Criminal Procedure, 1873 puts
no limitation, restriction or condition 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.
Such phraseologies 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 available to 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,

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the accused having secured his acquittal, the
presumption of his innocence is further
reinforced, reaffirmed and strengthened by the
trial court.

(5) If two reasonable conclusions are possible

.

on the basis of the evidence on record, the

appellate court should not disturb the finding of
acquittal recorded by the trial court.”

23. Keeping in view what has been discussed

hereinabove, the present appeal, which sans merits, deserves

dismissal and is accordingly dismissed. Pending

application(s), if any, stand(s) disposed of accordingly.

(Dharam Chand Chaudhary)
Judge

(Chander Bhusan Barowalia)
Judge
07.12.2018
(raman)

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