Allowed

Hoshiar Singh v. State

Himachal Pradesh HC3 Sept 2012CR.A/481/2004

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court of Himachal Pradesh set aside the appellant's conviction for rape and related offences. The Court held that the conviction could not be safely based solely on the prosecutrix's statement due to an unexplained seven-day delay in lodging the FIR and lack of medical evidence of rape.

What did the court decide?

Conviction of the accused set aside; bail bonds furnished by the appellant discharged.

Hoshiar Singh Vs State — Criminal Trial and Appeal | Himachal Pradesh HC (2012)

¶1

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

¶2

¶3

Cr.A. No. 481 of 2004.

¶4

Judgment Reserved on:21.8.2012.

¶5

Date of Decision:3.9.2012.

¶6

Hoshiar Singh S/o Sh.Jagdish Singh, Resident of Riyori Chandoh, Police Station Bharari, Tehsil Ghumarwin, District Bilaspur, H.P.

…Appellant.

Versus.

State of H.P.

.….Respondent.

Coram:

Hon’ble Mr. Justice Dev Darshan Sud, Judge .

¶13

Whether approved for reporting1?. Yes.

¶14

For the Appellant: For Respondents:	Mr.N.S.Chandel, Advocate. Mr.P.K.Sharma, Addl. Advocate General.

¶15

Dev Darshan Sud, J.

¶16

This appeal has been preferred by the appellant-

¶17

accused against his conviction under Sections 342, 354, 506, 376 read with Section 511 I.P.C. The sentences imposed under

¶18

each of the sections are as under:

¶19

Sr.No.	Under Section:
1.	342 I.P.C.	Rigorous imprisonment for three months and pay fine of Rs.1,000/-. In default of payment of fine, the convict shall further to undergo simple imprisonmentfor fifteendays.

¶20

Whether reporters of the Local papers are allowed to see the judgment?yes.

¶21

¶22

2.	376 I.P.C.	Rigorous imprisonment for four years and to pay fine of Rs.2,000/-. In default of payment of fine, convict shall further undergo simple imprisonmentforonemonth.
3.	506 I.P.C.	Rigorous imprisonment for one year and fine of Rs. 2000/-. In default of payment of fine, convict shall further undergo simple imprisonment for one month. The sentence of imprisonment on all the three counts shall run concurrently.

¶23

The prosecution case is that the victim PW2, who was a minor girl (name withheld), was returning home from school on 6^th July, 2000 when she met the appellant-accused, who asked her to accompany him to his house to collect newspaper of her brother which had been kept inside the room. When she went inside, the accused bolted the door from inside and took off his trouser and the salwar of the victim. He forced her to lie down on a cot and he also lay on top of her. At this, she raised a hue and cry on which grand mother of the accused rushed to the spot and rescued her from the clutches of the accused. The case is that when the grand mother of the accused knocked the door, accused put on his trouser and fled from the scene. He threatened her that he would kill both of them in case they disclose the occurrence to anyone. It was for this reason that the First Information Report was lodged after seven days of the occurrence. On 14^th July, 2000, the prosecutrix along with her paternal uncle Ranjeet Singh (PW4) went to Police Station, Bharari, where F.I.R. Ext.PW2/A was recorded. The prosecutrix was examined by Dr. T.S.Chandel, who issued M.L.C. Ext.PW6/A. The accused after arrest was medically examined and M.L.C. Ext.PW6/B was recorded by PW6 Dr. T.S.Chandel,

¶24

¶25

Medical Officer, C.H.C.Bharari, District Bilaspur. The accused was arraigned for offences under Sections 342, 354, 506 and 376 I.P.C. He was sentenced to undergo rigorous imprisonment as noted supra. The learned trial Court, on the entirety of the evidence held the appellant guilty of the offences and sentenced him to various terms of imprisonment. The appellant now challenges his conviction.

¶26

Learned counsel appearing for the appellant submits that the judgment cannot be sustained as the evidence on record does not anywhere indicate that the appellant was remotely connected with the offence. He refers to the statement of PW1 Dr.D.S.Gurang, Medical Officer, I.G.M.C., Shimla, H.P. He stated that he was posted as Medical Officer at Community Hospital, Ghumarwin where the prosecutrix remained admitted from 7.7.2000 to 12.7.2000 for treatment of Pyrexia with abdomen pain. He proved on record Ext.PW1/A which is the medical certificate issued by him certifying that the prosecutrix had been admitted in hospital on 7.7.2000 and was discharged on 12.7.2000. He proved from the record that she was admitted in hospital for this period and was assigned indoor bed ticket No.1339/OPD No.26486 on 7.7.2000. She was treated for fever with abdomen pain. In his cross-examination, he states that the prosecutrix was fully conscious and did not display any signs of fear. He attended her for about 6/7 days regularly. She never made any complaint about sexual harassment/assault etc. In these circumstances, learned counsel for the appellant submits that this is the testimony of an independent witness which

¶27

¶28

totally falsifies the narration of facts put forth by the prosecution to establish the offences as charged.

¶29

PW2, who is the prosecutrix, was examined by the Court in order to ascertain her maturity and understanding the meaning of oath etc. It was thereafter that her statement was recorded. She states that on 6.7.2000 at around 4.30 p.m. when she was returning from school, the accused was present in his house and asked her to take news-paper of her brother which was kept inside the house. When she did so, he bolted the door of the house, opened the salwar of the prosecutrix and forced her to lie down on the cot. Thereafter he took off his trouser and lay down on her. He was playing a tape-recorder at a very high pitch. She started crying loudly at which grand mother of the accused rushed to the spot and started banging the door. At this, he put on his trouser and she put on her salwar. He threatened her that he would kill her in case she discloses the matter to anyone. She was crying at that time. When she was asked by the grand mother of the accused, she narrated the whole occurrence to her on which she (grand mother) got incensed and abused the accused. She states that she was suffering from pain in the stomach and on the next day she was taken to the hospital at Ghumarwin by her mother. She remained admitted in the hospital for 5/6 days. When she was discharged from the hospital, she came home and on the next day she narrated the entire incident to her mother as well as to her uncle PW4 Ranjit Singh. They proceeded to Ghumarwin where report Ext.PW2/A was lodged. In crossexamination, she admits that 3/4 houses are situated next to

¶30

¶31

the house of accused Hoshiar Singh and about 10/20 persons reside there. Nobody came to the spot when she raised hue and cry but grand mother of the accused reached there and abused the accused. She says that she reached home late but did not inform her mother about anything. She did not narrate this fact to anybody from 12^th July, 2000 after discharge from the hospital. When number of villagers came to inquire about her welfare, she narrated the entire incident to her mother and PW4 Ranjit Singh on the evening of 13^th July, 2000 and on the next morning she accompanied by PW4 Ranjit Singh went to the Police Station to lodge the report. She then states that she had only narrated this incident to her mother, who then confided to Ranjit Singh (PW4). She admits that at that time one of her maternal uncle was posted as Home Guard and second was posted as driver in Police Station, Bharari. She did not think it fit to inform both of them.

¶32

PW3 Smt. Meera Devi, mother of the prosecutrix, who corroborates the prosecutrix on the point that she reached late from school on the day when she was allegedly assaulted by the accused. When she inquired from the prosecutrix as to why she was late, she (prosecutrix) told her that she was playing on the way. At around 10/11.00 p.m. on the same day, she informed her mother that she suffering from headache and stomach pain etc. Next day, she was taken to the dispensary of the village where after she was referred to the hospital at Ghumarwin for treatment where she remained admitted for six days. She then states that when they came home after discharge from hospital, next day at around 3.00 pm, the

¶33

¶34

prosecutrix started crying out of fear. At that time she was administering medicine to the prosecutrix. When she asked her what was the cause of fear and crying she narrated the entire incident to her. She says that when the grand mother of the accused heard her cries for help she rushed to the spot and abused the accused who threatened her that he would kill her in case she discloses this fact to anyone. She disclosed the incident to her brother-in-law Ranjit Singh and called the mother of the accused who admitted that it is the accused who had committed the act. She (mother of the accused) again visited the house of the prosecutrix and requested that no report etc. be lodged and to hush up the matter. Thereafter, report was lodged with the police and the prosecutrix and the accused were medically examined. In her cross-examination, she admits that the prosecutrix had remained admitted in hospital for about six days. Her relatives and other people visited the hospital to inquire about the welfare of the prosecutrix. She (prosecutrix) did not disclose this incident to anybody.

¶35

PW4 Ranjit Singh states that on 13.7.2000 in the evening, he had gone to visit the house of his brother Rattan Singh (father of the prosecutrix). When he reached there, his ‘Bhabi’ (mother of the prosecutrix) was crying. When he asked the reason, she informed him that the accused had tried to rape the prosecutrix where upon on the next day, he took her to the hospital for medical examination and lodged report Ext.PW2/A. He did not disclose this incident to anybody.

¶36

¶37

PW6 Dr. T.S.Chandel, Medical Officer, proved M.L.C. Ext.PW6/A to Ext.PW6/B of the prosecutrix and the accused. He stated in his evidence that the prosecutrix had not been raped. This is the entirety of the evidence.

¶38

Learned trial Court on the evidence on record has convicted the accused holding that the delay in lodging the F.I.R. was reasonably explained as both the witnesses i.e. the prosecutrix and the mother of the prosecutrix PW3 Smt. Meera Devi had stated that the prosecutrix was under considerable threat and fear. I find from the judgment that baring summarizing the evidence, the learned trial Court has not considered its overall impact to come to the conclusion as to whether the offences in question have been proved or not. But what I can gather from his judgment (on assumption) is that the evidence of the prosecutrix cannot be brushed aside lightly.

¶39

Learned Additional Advocate General submits that the law is well settled that the statement of the prosecutrix is sufficient for convicting the accused. He submits that this principle now stands established beyond any doubt in Aman

¶40

Kumar and another Vs. State of Haryana, AIR 2004 SC 1497, Naresh Kumar Vs. State of H.P., 2006 Cri.L.J. 1985, State of Himachal Pradesh Vs. Asha Ram, 2006 Cri.L.J. 139 and State of H.P. Vs. Kamal Kishor, 2000 Cr.L.J. 2661. But at the same time I must note the judgment of the Supreme Court in Dinesh Jaiswal Vs. State of M.P., 2010 Cri. L.J. 1917 and Abbas Ahmad Chuoudhary Vs. State of Assam, 2010 Cri. L.J. 2060 that there can be no presumption that the prosecutrix is always telling the entire story truthfully

¶41

¶42

and that corroboration though not a sine qua non has to be sought where some doubts are raised regarding the veracity of the statement of the prosecutrix.

¶43

Adverting to the submissions made by the learned counsel appearing for the appellant, I find force in the submission made by him. I do find it strange that the First Information Report has been lodged after a considerable amount of delay which has not been satisfactorily explained. There is nothing on the record to show how this fear and expression of grief suddenly corps-up after seven days on the evening of 13^th July, 2000 and she narrated the entire incident to her mother. It is strange that she was interacting with all and sundry i.e. doctor treating her, the relatives and all other well wishers but did not state anything about the alleged sexual assault. Even assuming that she was under fear, nobody stopped her from narrating this incident to her mother (who was with her during the entire hospitalization) which she ultimately did after seven days. In this eventuality, it is only the statement of the prosecutrix which would assume importance and which would be the sole basis for the conviction of the accused. In the sequence of events as considered by me, I do not find it safe to rely upon her statement nor I do find it prudent to base the conviction of the accused solely on her statement. I am aware of the principle that the statement of the prosecutrix can form the sole basis of conviction in sexual offences but the veracity of such statement has to be scrutinized carefully more especially when the doctor treating her in hospital. PW1 Dr.D.S.Gurang says that he detected no

¶44

¶45

fear in her. As noticed by me, seven days have not been explained by the prosecution. In this eventuality, it would not be safe to pass any sentence and base the conviction on the sole statement of the prosecutrix.

¶46

In these circumstances, this appeal is allowed. The conviction of the accused is set aside. Bail bonds furnished by the appellant are discharged.

¶47

(Dev Darshan Sud), Judge.

¶48

September 3, 2012(R)

Hoshiar Singh v. State

Case brief

What is this about?

What did the court decide?

Hoshiar Singh v. State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Baru Vs Fateh Singh

Pyare Lal Mehta Vs Rajinder Singh

Kuldeep Singh Vs State

Tulsan Vs State

Biri Singh Vs Kamal Dev

Sukhdev Singh Vs State