IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 367 of 2016
.
Reserved on: 26.03.2018.
Date of decision: 02.04.2018
Vikram Singh alias Vicky …Appellant
Versus
State of Himachal Pradesh …Respondent.
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 No.
For the petitioner : Mr. Aman Sood, Advocate, Legal-
aid-Counsel.
For the respondent : Mr. Vinod Thakur and Mr. Sudhir
Bhatnagar, Addl. A.Gs. with Mr.
Bhupinder Thakur, Dy. A.G.
Justice Tarlok Singh Chauhan, Judge
This appeal by the appellant seeks to challenge the
judgment and order of conviction passed by the learned Special
Judge, Sirmaur District at Nahan, H.P., whereby the appellant was
convicted and sentenced to undergo rigorous imprisonment for
seven years and to pay a fine of Rs.5000/- and in default of
payment of fine, to undergo simple imprisonment for one month
under Section 376(1) IPC and further directed to undergo
rigorous imprisonment for two years and to pay a fine of Rs.
1
Whether the reporters of the local papers may be allowed to see the Judgment? Yes.
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2
5,000/- and in default of payment of fine to undergo simple
imprisonment for one month under Section 3(1)(xi) of the SC ST
.
Act.
2. Briefly stated the case of the prosecution is that the
father of the prosecutrix PW2 Satya Ram came to the police
station and got registered FIR No. 46 of 2014 on 18.12.2014,
alleging therein that prosecutirx aged about 16 years, who was
studying in 8th class had left home alongwith some unknown
person on 16.12.2014 and thereafter her whereabouts were not
known and he suspected that she may have been kidnapped by
someone after giving allurement. It was further stated that he
had received a telephonic call from his elder daughter Pooja
(PW3) that she had received a phone call from the prosecutrix,
who was weeping and this call was made from Mobile
No.080532-05738.
3. The police swung into action and traced the location
of the mobile phone near Ismailabad, District Kurukshetra,
Haryana. After constituting a police team, the prosecutrix
alongwith the appellant were recovered at Ismailabad on
20.12.2014. It was revealed during investigation that the
prosecutrix alongwith her friend PW8 Miss Pariksha and her
younger sister Anjana took tea in Sonu hotel at Dadahu bazar,
where Miss Pariksha made a telephonic call to the appellant who
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3
came there and kidnapped the prosecutrix and took her in a bus
to Jamta where they stayed in the house of PW7 Prem Chand.
.
Next day they came to Naraingarh by bus and there the
appellant took her to the house of his aunt (Bua) and they stayed
there for the night. Thereafter they went to the house of
maternal uncle of the appellant by jeep where the appellant
introduced her as his sister and later the friend of the appellant,
namely Kailash took them to his quarter on the motor cycle
where they stayed for night. She stated that in the night they
slept together in one cot and was sexually assaulted. The next
day, she was taken to Ismailabad from where she called her
sister and thereafter the appellant came to be arrested.
4. After completion of the investigation, the appellant
was sent to face trial for having committed offences punishable
under Sections 363, 366A, 376 IPC, Section 4 of Protection of
Children from Sexual Offences Act, 2012 (herein after referred to
as POCSO Act) and Section 3(1)(xi) of Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter
referred to as SC/ST Act).
5. The learned Special Judge after recording the
evidence and evaluating the same has acquitted the appellant
for the offences punishable under Sections 363, 366A IPC and
Section 4 of the POCSO Act, however, the appellant has been
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4
convicted for the offence punishable under Section 376(1) IPC
and Section 3 of the SC ST Act, as aforesaid.
.
6. Aggrieved by the judgment of conviction and
sentence passed by learned Special Judge, the appellant has filed
the instant appeal.
7. It is vehemently argued by Mr. Aman Sood, learned
Legal-aid-Counsel for the appellant that the findings recorded by
8.
r to
the learned Court below are perverse and, therefore, deserve to
be set aside.
On the other hand, learned Additional Advocate
General would argue that the judgment rendered by learned
Court below is based upon the correct appreciation of evidence
and passed strictly in accordance with law, therefore, the same
calls for no interference.
I have heard learned counsel for the parties and have
gone through the records of the case.
9. At the outset, it may be observed that the manner in
which the learned Court below is proceeded to evaluate the
evidence is not at all satisfactory. The learned Court below has
formed a very firm opinion that the prosecutrix was simpleton
and, therefore, even if she had sexual intercourse with the
appellant, the same could not be termed to be consensual. This
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5
is clearly evident from para-42 of the judgment which reads
thus:-
.
“42.As discussed earlier, the accused had not taken any
defence that it was a consented sexual intercourse. Because,
the accused had taken away the prosecutrix and as noticedearlier, since the prosecutrix was village simpleton girl, she
might have been taken by the accused for taking her out to the
cities, without knowing that she may be sexually assaulted.
The area from where the prosecutrix hails, is a remote area ofthis district and the courts have been receiving the cases from
such remote areas, where the girls have been sexually
assaulted/exploited and even sold in the neighbouring State.
Had such an offence been committed with the well educatedgirl residing in the busy/modern town, then the accused would
have pleaded that the girl was a consenting party. But, in this
case, no suggestion has been given to the prosecutrix that she
was a consenting party and court cannot accept that the
prosecutrix was a consenting party in the absence of any suchevidence on record. This shows that the girl was sexually
assaulted by the accused without her consent and will, when
he had taken her to Ismailabad, from where she had beenrecovered subsequently by the police.”
10. The aforesaid observations leave no manner of doubt
that it is the so called innocence of the victim that prevailed so
much upon the mind of the learned Court below that he
proceeded to pass an order of conviction, as would be clear from
further discussion.
11. It is the admitted case of the prosecution and is even
otherwise disclosed in the testimony of PW1 prosecutrix that she
alongwith her friend Miss Pariksha and younger sister had gone
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to Dadahu bazar where they took tea in Sonu hotel. While they
were there Pariksha gave a call to the appellant who came and
.
kidnapped her. The prosecutrix herself stated that from Dadhu
bazar she boarded a government bus and came to Jamta and
stayed at the appellant’s aunt (Bua) house for night. After that
they proceeded to the house of maternal uncle of the appellant
by jeep and then friend of the appellant Kailash took them to his
quarter on motorcycle and both of them stayed during the night.
She stated that in the night they had slept together on one cot
whereas Kailash was not in the room and during the night the
appellant sexually assaulted her twice. She further stated that
next day, Kailash called the appellant to meet him at his shop
and on the way police apprehended them and took them to
police station Ismailabad. It was the police party that gave the
call to her sister Pooja and after that her brother-in-law (Jija)
Desh Raj came to the police station.
12. In order to evaluate the statement of the prosecutirx,
it would be necessary to observe here that the learned Court
below while acquitting the appellant for the offence under
Sections 363, 366A IPC and Section 4 of POCSO Act has
categorically held the prosecutrix not to be a minor. However, it
has not believed the story of consensual sex only on the ground
that the girl happened to be from remote area of the District and,
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therefore, it was difficult to believe that she was a consenting
party. Obviously, such far fetched observations cannot be upheld
.
and the evidence otherwise need to be analysed within the well
settled legal parameters. Bearing in mind the fact that rape
causes distress and humiliation to the victim of the rape, but at
the same time the Court has to be mindful to the fact that a false
allegations of committing a rape also causes humiliation and
damages to the accused and the accused has also rights which
are required to be protected and the possibility of false
implication has to be ruled out.
13. The Hon’ble Supreme Court in Radhu vs. State of
Madhya Pradesh Cr.LJ 2007 (4) 4704 observed as follows:
“5. It is now well settled that a finding of guilt in a case of rape,
can be based on the uncorroborated evidence of the prosecutrix.
The very nature of offence makes it difficult to get directcorroborating evidence. The evidence of the prosecutrix should not
be rejected on the basis of minor discrepancies and contradictions.
If the victim of rape states on oath that she was forcibly subjected
to sexual intercourse, her statement will normally be accepted,even if it is uncorroborated, unless the
material on record requires drawing of an inference that there was
consent or that the entire incident was improbable or imaginary.
Even if there is consent, the act will still be a ‘rape’, if the girl is
under 16 years of age. It is also well settled that absence of
injuries on the private parts of the victim will not by itself falsify the
case of rape, nor construed as evidence of consent. Similarly, the
opinion of a doctor that there was no evidence of any sexual
intercourse or rape, may not be sufficient to disbelieve the
accusation of rape by the victim. Bruises, abrasions and scratches03/04/2018 22:58:13 :::HCHP
8on the victim especially on the forearms, writs, face, breast, thighs
and back are indicative of struggle and will support the allegation.
of sexual assault. The courts should, at the same time, bear in
mind that false charges of rape are not uncommon. There have
also been rare instances where a parent has persuaded a gullible
or obedient daughter to make a false charge of a rape either to takerevenge or extort money or to get rid of financial liability. Whether
there was rape or not would depend ultimately on the facts and
circumstances of each case.”
14. Adverting to the facts, the prosecutrix in her cross
examination clearly stated that she was having Rs.500 whereas
Pariksha was not having any money. She further admitted that
Pariksha had earlier left her house on various occasions and used
to remain out of house even during night. The reports were also
lodged regarding this in the police and those matters were later
on compromised. She then proceeded to state that she had
previously not met the appellant and stated that she boarded the
bus with the appellant from Dadahu at 6:00 p.m. She specifically
stated that previously she has not gone with any person in such
manner. She admitted that she had not raised any alarm while
boarding the bus. She admitted that it was the appellant who
purchased the tickets and she visited Jamalta for the first time
that too at the instance of the appellant. She admitted that
when she alighted from the bus at 7:00 p.m. there was many
passengers in the bus at Jamta. She stated that the house of the
sister of the appellant was adjoining to the bazar at Jamta where
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a boy and women, later qualified as husband and wife were
residing and the house comprised of one room. The couple had
.
one child. She further stated that she slept on the bed alongwith
the appellant along with the couple with small child. She further
stated that from there they boarded bus to Nahan in the morning
and from Nahan they boarded another bus to Naraingarh. They
reached Naraingarh at around 9:00 a.m. and stayed there for one
day and she took bath and had food in the said house. She
admitted that she was kept well in the house. From Naraingarh,
they went to Ismailabad by car and reached there around 3:00
p.m. and stayed in the house of Kailash, which was single
storeyed and having single room. Kailash left the room after
leaving them there and during night the appellant had sexually
assaulted her for the first time.
15. The other witnesses do not happen to be eye
witnesses and, therefore, their testimonies are hardly of any
avail because it is now well settled principle of law that
conviction can be founded on the sole testimony of the
prosecutrix, unless there are compelling reasons for seeking
corroboration. It is also equally settled that corroboration as a
condition for judicial reliance on the testimony of the prosecutrix
is not a requirement of law but a guidance of prudence under the
given circumstances. (Refer State of Punjab Vs. Gurmit
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10
Singh (1996) 2 SCC 384, State of Himachal Pradesh Vs.
Asha Ram AIR 2006 SC 381, Rajinder Vs. State of
.
Himachal Pradesh, (2009) 16 SCC 69.) However, it has to be
borne in mind that a case of sexual assault has to be proved
beyond reasonable doubt as any other case and there is no
presumption that the prosecutrix would always tell the entire
story truthfully.
16.
In Rajoo Vs. State of Madhya Pradesh (2008)
15 SCC 133, the Hon’ble Supreme Court held that the testimony
of a victim of rape has to be treated as if she is an injured
witness but cannot be presumed to be a gospel truth. It was held
that:-
“9. The aforesaid judgments lay down the basic principle
that ordinarily the evidence of a prosecutrix should not be
suspect and should be believed, the more so as herstatement has to be evaluated at par with that of an injured
witness and if the evidence is reliable, no corroboration isnecessary. Undoubtedly, the aforesaid observations must
carry the greatest weight and we respectfully agree withthem, but at the same time they cannot be universally and
mechanically applied to the facts of every case of sexual
assault which comes before the Court. It cannot be lost
sight of that rape causes the greatest distress and
humiliation to the victim but at the same time a false
allegation of rape can cause equal distress, humiliation and
damage to the accused as well. The accused must also be
protected against the possibility of false implication,
particularly where a large number of accused are involved.
It must, further, be borne in mind that the broad principle is
that an injured witness was present at the time when the03/04/2018 22:58:13 :::HCHP
11incident happened and that ordinarily such a witness would
not tell a lie as to the actual assailants, but there is no
presumption or any basis for assuming that the statement.
of such a witness is always correct or without any
embellishment or exaggeration. Reference has been made
in Gurmit Singh’s case to the amendments in 1983 toSections 375 and 376 of the India Penal Code making the
penal provisions relating to rape more stringent, and also to
Section 114A of the Evidence Act with respect to a
presumption to be raised with regard to allegations ofconsensual sex in a case of alleged rape. It is however
significant that Sections 113A and 113B too were inserted
in the Evidence Act by the same amendment by which
certain presumptions in cases of abetment of suicide anddowry death have been raised against the accused. These
two Sections, thus, raise a clear presumption in favour of
the prosecution but no similar presumption with respect to
rape is visualized as the presumption under Section 114A is
extremely restricted in its applicability. This clearly showsthat in so far as allegations of rape are concerned, the
evidence of a prosecutrix must be examined as that of an
injured witness whose presence at the spot is probable butit can never be presumed that her statement should,
without exception, be taken as the gospel truth. Additionallyher statement can, at best, be adjudged on the principle
that ordinarily no injured witness would tell a lie or implicatea person falsely. We believe that it is under these principles
that this case, and others such as this one, need to be
examined.”
17. In Tameezuddin @ Tammu Vs. State (NCT of
Delhi), (2009) 15 SCC 566, it was held as under:-
“7. It is true that in a case of rape the evidence of the
prosecutrix must be given predominant consideration, but
to hold that this evidence has to be accepted even if the
story is improbable and belies logic, would be doing
violence to the very principles which govern the03/04/2018 22:58:13 :::HCHP
12appreciation of evidence in a criminal matter. We are of the
opinion that story is indeed improbable. …..”
.
18. In Dinesh Jaiswal Vs. State of MP, (2010) 3 SCC
323, the Hon’ble Supreme Court held as under:
“10. Mr. C.D. Singh has however placed reliance on Moti
Lal’s case (supra) to contend that the evidence of the
prosecutrix was liable to be believed save in exceptional
circumstances. There can be no quarrel with this proposition
(and it has been so emphasised by this Court time and
again) but to
hold that a prosecutrix must be believed irrespective of the
improbabilities in her story, is an argument that can never
be accepted. The test always is as to whether the given
story prima facie inspires confidence. We are of the opinion
that the present matter is indeed an exceptional one.”
19. In Abbas Ahmad Choudhary Vs. State of
Assam, 2010 (12) SCC 115, the Hon’ble Supreme Court
observed that:-
“5. We are however, of the opinion that the involvement of
Abbas Ahmad Choudhary seems to be uncertain. It must
first be borne in mind that in hery statement recorded on17th September, 1997, the prosecutrix had not attributed
any rape to Abbas Ahmad Choudhary. Likewise, she had
stated
that he was not one of those who kidnapped her and taken
to Jalalpur Tea Estate and on the other hand she
categorically stated that while she along with Mizazul Haq
and Ranju Das were returning to the village that he had
joined them somewhere along the way but had still not
committed rape on
her. It is true that in her statement in court she has
attributed rape to Abbas Ahmad Choudhary as well, but in03/04/2018 22:58:13 :::HCHP
13the light of the aforesaid contradictions some doubt is
created with regard to his involvement. Some corroboration
of rape could have been found if Abbas Ahmad Choudhary.
too had been apprehended and taken to the police station
by P.W. 5 -Ranjit Dutta the Constable. The Constable,
however, made a statement which was corroborated by theInvestigating Officer that only
two of the appellants Ranju Das and Md. Mizalul Haq along
with the prosecutrix had been brought to the police station
as Abbas Ahmad Choudhary had run away while en route tothe police station. Resultantly, an inference can be rightly
drawn that Abbas Ahmad Choudhary was perhaps not in the
car when the complainant and two of the appellants had
been apprehended by Constable Ranjit Dutta. We are,therefore, of the opinion that the involvement of Abbas
Ahmad Choudhary is
doubtful. We are conscious of the fact that in a matter of
rape, the statement of the prosecutrix must be given
primary consideration, but, at the same time, the broadprinciple that the prosecution has to prove its case beyond
reasonable doubt applies equally to a case of rape and
there can be nopresumption that a prosecutrix would always tell the entire
story truthfully.”
20. In Rai Sandeep @ Deepu Vs. State of NCT of
Delhi (2012( 8 SCC 21, the Hon’ble Supreme Court commented
about the quality of the sole testimony of the prosecutrix which
would be made basis to convict the accused and it was held:-
“15. In our considered opinion, the sterling witness should
be of a very high quality and caliber whose version should,
therefore, be unassailable. The Court considering the
version of such witness should be in a position to accept it
for its face value without any hesitation. To test the quality
of such a03/04/2018 22:58:13 :::HCHP
14witness, the status of the witness would be immaterial and
what would be relevant is the truthfulness of the statement
made by such a witness. What would be more relevant.
would be the consistency of the statement right from the
starting point till the end, namely, at the time when the
witness makes the initial statement and ultimately beforethe Court. It should be natural and consistent with the case
of the prosecution qua the accused. There should not be
any prevarication in the version of such a witness. The
witness should be in a position to withstand the cross-
examination of any length and howsoever strenuous it may
be and under no circumstance should give room for any
doubt as to the factum of the occurrence, the persons
involved, as well as, the sequence of it. Such a versionshould have co-relation with each and everyone of other
supporting material such as the recoveries made, the
weapons used, the manner of offence committed, the
scientific evidence and the expert opinion. The said version
should consistently match with the version of every otherwitness. It can even be stated that it should be akin to the
test applied in the case of circumstantial evidence where
there should not be any missing link in the chain ofcircumstances to hold the accused guilty of the offence
alleged against him. Only if the version of such a witnessqualifies the above test as well as all other similar such
tests to be applied, it can be held that such a witness canbe called as a sterling witness whose version can be
accepted by the Court without any corroboration and based
on which the guilty can be punished. To be more precise,
the version of the said witness on the core spectrum of the
crime should remain intact while all other attendant
materials, namely, oral, documentary and material objects
should match the said version in material particulars in
order to enable the Court trying the offence to rely on the
core version to sieve the other supporting materials for
holding the offender guilty of the charge alleged.”
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15
21. Now, in case the testimony of prosecutrix is tested
on the aforesaid exposition of law, it would be evident that the
.
version put forth by the prosecutrix was that she was initially
kidnapped by the appellant and thereafter alleged to have been
raped, but surprisingly she did not choose to raise hue and cry or
make a complaint or lodge any protest with any person or
authority. Even when the prosecutrix had been recovered she
was in the company of the appellant, yet did not raise hue and
cry. This prolonged silence on the part of the prosecutrix, in fact,
speaks volume or else why a girl who is alleged to have been
kidnapped and thereafter subjected to forcible sexual intercourse
would keep mum even in public place(s).
22. This assumes significance because the prosecutrix is
emphatic that she did not know the appellant earlier and had
met him for the first time at Dadahu bazar from where he
kidnapped her. Even though, no exception can be taken to the
fact that the prosecutrix had been subjected to sexual
intercourse, but from the sequence of events as have been
enumerated above and have, in fact, been stated by the
prosecutrix herself, leave no manner of doubt that she was a
consenting party to the sexual intercourse and she of her own
will and volition had accompanied the appellant from Dadahu to
various places as mentioned aforesaid.
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23. Consent may be express or implied, coerced or
misguided, obtained willingly or through deceit. Consent is an act
.
of reason, accompanied by deliberation, the mind weighing, as in
a balance, the good and evil on each side. There is a clear
distinction between rape and consensual sex. The physical
relations between the parties had clearly developed with the
consent of the prosecutrix. There was no case of any resistance
nor had she raised any complaint with any person or authority.
24. Now, in case the history of MLC is seen, it would be
noticed that in the history it is recorded therein that the
prosecutrix had been staying with the appellant w.e.f.
16.12.2014 to 19.12.2014 with history of multiple sexual
intercourse with her, however, there was no marks of external or
internal injury and the last sexual intercourse had taken place on
19.12.2014 at around 11:00 a.m.
25. The mere fact that prosecutrix belongs to remote
area has no relevance whatsoever, afterall the rape is a rape and
the most morally and physically reprehensible crime in a society
as it is an assault on the body, mind and privacy of the victim.
While a murderer destroys the physical frame of the victim, a
rapist degrades and defiles the soul of a helpless female shakes
the very core of her life. That is why by no means can a rape
victim ever be called an accomplice. Rape leave a permanent
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17
scar on the file of the victim and, therefore, a rape victim is
placed on a high pedestal then an injured witness. Rape is a
.
crime against the entire society and violates the human rights of
the victim. Being the most hated crime, rape tantamounts to a
serious blow to the supreme honour of a woman, and offends
both her esteem and dignity. It causes psychological and physical
harm to the victim, leaving upon her indelible marks.
26.
Rape does not distinguish between class, creed,
forwardness or backwardness of the victim and it is on this count
that in matters of rape, the statement of the prosecutrix must be
primary consideration, but at the same time the broad principles
that prosecutrix has to prove its case beyond reasonable doubt,
apply equally to a case of rape and there can be no presumption
that prosecutrix would always tell the entire story truthfully.
27. In the light of aforesaid discussion, this Court is of
the firm opinion that even though the prosecutrix has been able
to establish that the appellant had committed sexual intercourse
with her, however, the said act was not committed forcefully, as
claimed by her, rather there is overwhelming evidence on record
to show that the same was consensual and since the prosecutrix
is a major, therefore, no offence against the appellant on account
of consensual sex is made out. Once the prosecution has failed
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18
to prove the allegation of rape, then no offence whatsoever is
made out under Section 3(1)(xi) of the SC ST Act.
.
28. In view of the aforesaid discussion, I find merit in this
appeal and the same is accordingly allowed and the appellant is
honourably acquitted from the aforesaid offences. Registry is
directed to prepare release warrants forthwith and send the
same to the concerned Jail Superintendent.
April 2, 2018
(Sanjeev)
r to (Tarlok Singh Chauhan)
Judge
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