IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Criminal Appeal No.340 of 2012
Date of Decision : November 16, 2016
State of Himachal Pradesh …Appellant.
.
Versus
Suraj @ Surjit Singh and another …Respondents.
Coram:
The Hon’ble Mr. Justice Sanjay Karol, Judge.
The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? Yes. 1
For the Appellant : Mr. R.M. Bisht, Additional Advocate
General and Mr. Puneet Rajta,
Deputy Advocate General.
For the Respondents : Mr. N.K. Thakur, Senior Advocate
with Mr. Divya Raj Singh, Advocate,
r for respondent No.1.
Mr. Jeevesh Sharma, Advocate, for
respondent No.2.
Sanjay Karol, Judge
In relation to FIR No.94, dated 9.11.2008,
registered at Police Station, Nirmand, District Kullu,
Himachal Pradesh, accused Suraj and Hari Singh,
hereinafter referred to as the accused, were charged to
face trial, for having committed offences, punishable
under Section 376(g) of the Indian Penal Code; and
Sections 341 and 506-II, both read with Section 34 of the
Indian Penal Code.
Whether reporters of the local papers may be allowed to see the judgment?
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2. Finding the prosecution not to have
established its case, through the testimonies of 12
witnesses, trial Court, vide judgment dated 25.4.2012,
.
passed by Additional Sessions Judge, Kinnaur at Rampur,
Himachal Pradesh, in Sessions Trial No.25-AR/7 of
2009/11, titled as State of Himachal Pradesh v. Suraj @
Surjit Singh another, has acquitted both the accused on
all counts.
3. Prosecution case primarily rests upon the
testimonies of prosecutrix (PW-1) as also her husband
Durga Dass (PW-2).
4. It is not in dispute that prosecutrix is a
married lady. Allegedly, she was subjected to sexual
assault by both the accused on 26.9.2008. This was in a
secluded path, while she was on way to her parental
house at a place known as Lagora, accused Suraj caught
her by her arm and after committing sexual assault,
called his co-accused Hari Singh on telephone, who also
committed the said act. Such incident of assault never
came to be reported by her to anyone, purely on account
of threats extended by these two persons. However,
subsequently prosecutrix realized that she was pregnant,
as such, on 8.11.2008, she disclosed the incident to her
husband, who immediately reported the matter to the
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police, which led to the registration of FIR, referred to
supra. Prosecutrix was got medically examined and
report of the doctor (Ex.PW-4/B Ex.PW-4/C) taken on
.
record. During the course of investigation, so conducted
by ASI Kanwar Singh (PW-8) and SI Dulo Ram (PW-9),
prosecutrix gave birth to a child. Police got conducted
test of DNA profiling, which revealed accused Suraj to be
the biological father of the child.
5. When we peruse the testimonies of the
prosecutrix and her husband, we find the prosecution not
to have established its case. Testimonies of the
witnesses cannot be said to be inspiring in confidence
and their version believable. We find testimony of the
prosecutrix to be self contradictory. Also, there are
improvements, exaggerations and embellishments on
record, which not only remain unexplained but further
renders their version to be doubtful. In our considered
view, delay of more than 1½ month in lodging the FIR
also remains unexplained. Also, if the version of
prosecutrix and her husband is to be believed, then it
remains unexplained as to how, either they or the
Investigating Officer, was able to reach up to the accused
at the first instance, for in the FIR, identity of the accused
remained undisclosed. In fact, there is nothing disclosed
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herein, which would even remotely link, only the accused
to the crime.
6. Perusal of the FIR reveals that prosecutrix
.
was subjected to sexual assault on 26.9.2008. At the
time of lodging of the FIR, she only disclosed that one
person, whose name she is not aware, but whom she can
identify, for he plies a bus as a driver on Tharla-Ani route,
had subjected her to rape, and whereafter, on telephone,
he called the Conductor of the Bus, who also subjected
her to rape. She further narrates that purely on account
of shame, she could not disclose the incident to anyone.
Only when she realized that she had conceived a child,
which cannot be that of her husband, for he had already
undergone operation of sterilization, did she disclose the
incident to her husband on 8.11.2008.
7. Quite apparently, the Investigating Officers
did not conduct the Test Identification Parade. There is
nothing on record to establish as to how police reached
to the accused. No doubt, in Court, prosecutrix and her
husband have identified the accused to be the persons
who allegedly committed the crime, but however, the
question which arises for consideration is as to how, at
the first instance, did the police reach to the accused and
got conducted their medical examination during the
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course of investigation. Police was not aware of the
identity of the accused, which also never came to be
disclosed either by the prosecutrix or her husband. Bus
.
driven by the accused was not the only one plied on the
said route. Certainly, police has not recorded the whole
truth. We clarify that this fact has not weighed with us at
all, while deciding the present appeal.
8. Prosecutrix wants the Court to believe that
out of shame and alleged threats, she did not disclose the
incident to anyone, muchless her parents or her husband.
But we do not find this version of hers to be inspiring in
confidence. In fact, the alleged threats never came to be
disclosed by her either to her husband or to the police.
Quite evidently, prosecutrix disclosed the incident and
lodged the complaint only, as is so admitted by her, after
she realized that she had become pregnant, for she
uncontrovertedly states that “I have filed this case as I
got pregnant”. One may only observe that the alleged
threats is a mere exaggeration, for she admits not to
have got recorded the said fact, in her previous
statement, with which she was confronted. Also,
prosecutrix admits that from the spot of crime, she went
to her parents’ house. She admits that closeby, i.e.
within a vicinity of half a kilometer, one JCB machine was
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operating. Alleged incident took place not in the thick of
dark or middle of the night. The alleged crime came to
be committed during broad day light. Prosecutrix walked
.
up to her parental house. Hence, she could have
immediately reported the incident to anyone. She also
admits not to have resisted the acts of the accused. In
fact, she goes to state that she had asked the Driver not
to call the Conductor. Admittedly, this Conductor
reached the spot after five minutes. What all did she do
during this period remains unexplained by her. It is not
her case that alleged threats came to be extended prior
to accused Suraj ravishing her or immediately thereafter.
Her version of having been subjected to sexual assault is
thus rendered uninspiring in confidence.
9. Version of the prosecutrix of accused Suraj
having called, on telephone, his co-accused Hari Singh,
also remains uncorroborated on record. Record of the
telephonic conversation has not been produced in Court.
That apart, this version of the prosecutrix is rendered
doubtful from her admissions made in the cross-
examination part of her testimony, where she admits that
the Bus in question stood parked at village Kalag, which
was at a distance of 4-5 kms from the spot of crime. It is
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humanly impossible to cover such a distance, on foot,
within five minutes.
10. Significantly, she did not make any attempt
.
of finding the identity of the accused. She only states that
later on “I came to know that the name of the Driver was
Suraj and name of the Conductor was Hari”, whom she
identified in Court. On this issue, we find her to have
contradicted herself, for she states that “I had not seen
the accused person prior to this occurrence as they had
never met me before”, but in the very next breath she
states that “it is correct that I had visited Durah two to
four times in the bus of the accused person”. It is not the
case of prosecution that the Bus driven by the accused
was the only one which plies on the Tharla-Ani route. She
admits that after the occurrence, she continued to
conduct her day-to-day affairs in a normal manner. She
had been freely visiting several places, including her
relatives and house of her parents. Hence, her version of
both the accused having subjected her to sexual assault
is absolutely uninspiring in confidence.
11. When we peruse the testimony of Durga Dass
(PW-2), husband of the prosecutrix, we find him not to
have advanced the case of the prosecution any better or
further. He only states that lateron, on enquiry made by
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him, he learnt about the identity of the assailants, but
then from whom and how, he does not disclose.
12. It has come on record that within 2½ months
.
of birth, the child died. To establish the factum of
paternity, our attention is invited to the report of the
Expert (Ex.PW-8/N), which prima facie establishes that
accused Suraj was the biological father of the deceased
baby Satish Kumar. This fact alone itself would not be
sufficient enough to establish complicity of the accused in
the crime. To us, it appears not to be a case of sexual
assault but that of consent, if any.
13. Under what circumstances, Court can direct a
party to undergo DNA test, what is the presumptuous
value of the report of DNA examination, is now well
settled by the apex Court in Dipanwita Roy v. Ronobroto
Roy, (2015) 1 SCC 365; Narayan Dutt Tiwari v. Rohit
Shekhar and antoher, (2012) 12 SCC 554; Sandeep v.
State of Uttar Pradesh, (2012) 6 SCC 107; Selvi and
others v. State of Karnataka, (2010) 7 SCC 263; Patangi
Balarama Venkata Ganesh v. State of Andhra Pradesh,
(2009) 14 SCC 607; Jarnail Singh and others v. State of
Punjab, (2009) 9 SCC 719; Narender G. Goel v. State of
Maharashtra and another, (2009) 6 SCC 65;
Kamalanantha and others v. State of T.N., (2005) SCC
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194; and Banarsi Dass v. Teeku Dutta (Mrs) and another,
(2005) 4 SCC 449.
14. In the given facts and circumstances, one
.
need not dilate thereupon, for the simple reason that in
the instant case testimony of the prosecutrix itself, on the
question of sexual assault, is found to be uninspiring in
confidence.
15. Hence, it cannot be said that prosecution has
been able to prove its case, by leading clear, cogent,
convincing and reliable piece of evidence so as to prove
that the accused persons gang raped the prosecutrix, and
in furtherance of their common intention, they wrongfully
restrained and also criminally intimidated her.
16. For all the aforesaid reasons, we find no
reason to interfere with the judgment passed by the trial
Court. The Court has fully appreciated the evidence so
placed on record by the parties.
17. The accused have had the advantage of
having been acquitted by the Court below. Keeping in
view the ratio of law laid down by the Apex Court in
Mohammed Ankoos and others versus Public Prosecutor,
High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC
94, it cannot be said that the Court below has not
correctly appreciated the evidence on record or that
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acquittal of the accused has resulted into travesty of
justice. No ground for interference is called for. The
present appeal is dismissed. Bail bonds, if any, furnished
.
by the accused are discharged.
Appeal stands disposed of, so also pending
application(s), if any.
( Sanjay Karol ),
Judge.
( Vivek Singh Thakur ),
November 16, 2016(sd) Judge.
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