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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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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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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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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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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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 82per 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 changedunderwear since then. Blood stains present on
the underwear.
Menstrual history:- 6-7 days per cycle regular
menstrual flow, she has one child six monthsold, 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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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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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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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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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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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 exerciseof 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 notintended 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,11/12/2018 22:56:20 :::HCHP
17the 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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