Allowed

Roop Basant v. State

Himachal Pradesh HC1 Jul 2013CR.A/222/2012

Case brief

AI extract

What is this about?

The appeal against a conviction for rape under IPC Section 376 was allowed. The High Court quashed the conviction, holding the prosecution failed to prove the case beyond reasonable doubt due to contradictory testimony, lack of forensic support, and unestablished presence of the accused at the crime scene.

What did the court decide?

The impugned judgment is set aside, the conviction is quashed, and the accused is ordered to be set free forthwith.

Roop Basant Vs State — Murder and Culpable Homicide | Himachal Pradesh HC (2013)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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Cr. Appeal No.222 of 2012-B

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Decided on: July 1, 2013.

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Roop Basant …Appellant. Versus State of H.P. … Respondent.

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Coram

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

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Whether approved for reporting?¹ Yes

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For the petitioners : Mr. Ambika Kotwal, Advocate. For the respondents: Mr. D.S. Nainta and Mr. Virender Verma, Addl. Advocate Generals with Mr. Pushpender Jaswal, Dy. Advocate General.

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Dharam Chand Chaudhary, J . (Oral):

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Aggrieved by his conviction under Section 376 of the Indian Penal Code vide judgment dated 28.3.2012, passed by learned Additional Sessions Judge, Solan, in Sessions Trial No.4NL-7/2011, the appellant, hereinafter referred to as the accused, has preferred this appeal for quashing the same.

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2. The challenge to the impugned judgment is on the grounds, inter alia, that on the basis of the evidence on record, no case for the commission of alleged offence is made out against him and that the findings of conviction are based on surmises and

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1 Whether the reporters of local papers may be allowed to see the judgment?.Yes

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conjectures. The evidence produced by the prosecution has been claimed to be tainted and contradictory and as such should have not been relied upon. No legal and acceptable evidence has come on record, suggesting that the accused has subjected the prosecutrix to coitus. Neither any injury on the private part of the prosecutrix nor on the penis of the accused was detected during their medical examination.

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3. In a nutshell, the allegations against the accused are that on 6.11.2010, around 8 p.m., at Bhud Malpur, he subjected the prosecutrix (name withheld), a minor girl aged 5 years, to sexual intercourse in the Jhugi (hut) where she used to reside with her parents and two younger sisters. On hearing cries of the prosecutrix, PW-2 Smt. Shakuntla Devi, her aunt, followed by her mother PW-1 Smt. Bishna Devi, entered the Jhugi and noticed that the accused was lying on the prosecutrix and subjecting her to sexual intercourse. They noticed him having put off his pants upto knee level and the underwear of the prosecutrix lying on the cot. PW-2 Smt. Shakuntla caught hold of the accused and pushed him aside and picked up the prosecutrix in her lap. PW-2 found the blood oozing out from the private part of the prosecutrix, which she cleaned with her Sari. The other persons assembled there and caught hold of the accused. He was handed over to PW-4 Chander Pal, who managed to detain him in the office of Brick Kiln during the night and handed over to the police on the following morning.

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4. Matter was reported to the police of Police Station, Baddi, District Solan, on 7.11.2010 at 9.30 a.m. Ultimately, FIR Ext.PW1/A came to be registered. Investigating Officer PW-17 Keshav Singh took into possession one blood stained quilt Ext.P2, vide memo. Ext.PW1/B and one pink colour Sari Ext.P3 vide memo. Ext.PW2/A. The prosecutrix was got medically examined and handed over to her mother PW-1 Bishna Devi vide memo. Ext.PW1/C. The case property was deposited in the Malkhana and on the completion of investigation; report under Section 173 Cr. P.C. filed in the Court against the accused.

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5. The accused has been charge-sheeted, tried and convicted by learned trial Court for the commission of offence, punishable under Section 376 IPC. He has been sentenced to undergo rigorous imprisonment for seven years and to pay Rs.5000/ as fine. The accused right from the date of registration of this case is in custody. During the pendency of the trial he was in judicial custody and now after his conviction, serving out the sentence imposed upon him.

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6. Learned defence counsel, while inviting the attention of this Court to the oral as well as documentary evidence available on record, has forcefully contended that the prosecution witnesses have made self contradictory statements, which go to the very root of the prosecution case. According to him, what to speak of sexual intercourse having been committed by the accused with the

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prosecutrix, even penetration is also not established from the medical evidence relied upon by the prosecution. PW-9 Dr. Anita Sood allegedly based her opinion on surmises and conjectures merely on clinical examination of the prosecutrix. Further according to learned defence counsel, the report received from Forensic Science Laboratory reveals that neither any blood nor semen could be detected on the quilt, tea-shirt, sweater and vaginal swab of the prosecutrix, nor on the underwear and pubic hair of the accused, when analyzed in the laboratory. Further, according to learned defence counsel, blood stains were found on the knickers/underwear of the prosecutrix, which otherwise should have not been there because as per prosecution case itself, at the time of alleged sexual assault, the accused had removed the same and placed in one side on the cot.

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7. On the other hand, learned Additional Advocate General has strenuously contended that the present being a case of ravishment of the prosecutrix, a minor aged 5 years, is a heinous crime on the part of the accused. It is pointed out from the record that the testimony of the mother of prosecutrix PW-1 Biashan Devi, her aunt PW-2 Shakuntla Devi and PW-16 Bhim Sen satisfactorily proves the prosecution case, beyond all reasonable doubt. Reliance has also been placed on the medical evidence as has come on record by way of the testimony of PW-9 Dr. Sunita Sood and MLC Ext.PW9/B.

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8. After having given thoughtful consideration to the rival contentions and also examining the evidence comprising oral as well as documentary, the presence of the accused stands established on the spot. His defence as emerges from the trend of cross-examination of the prosecution witnesses is that he was related to the complainant party and was a usual visitor to them. Even PW-1 Smt. Bishan Devi, mother of the prosecutrix, PW-16 Bhim Sen and for that matter PW-2 Smt. Shakuntla, have also admitted that the accused being in relation of jSh. Kanta Prasad, father of prosecutrix, had been visiting them off and on and on the occasions of festivals. Though PW-1 Smt. Bishan Devi has denied in her cross-examination that on the day next to Diwali, the accused, her husband and brother-in-law had consumed liquor and the accused was pressurized by them to serve more liquor and when he refused to do so, her husband inflicted stick blow on his left leg. However, it is stated by her voluntarily that after the occurrence, people had gathered on the spot and gave beatings to the accused. One thing is, therefore, clear that the accused was not only in relation of the complainant party, but had been visiting their Jhugi (hut) off and on. As per version of PW-1 Smt. Bishan Devi, on the date of occurrence, the accused had taken dinner with them around 7.30 p.m. and thereafter left their Jhugi. However, PW-2 Smt. Shakuntla in her examination-in-chief has stated that the accused had his dinner in the Jhugi of her another brother,

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namely Shyam Pal, but during her cross-examination, turned around and stated that the accused and Bhim Sen had taken dinner in the Jhugi of her brother Kanta Prasad. While PW-1 Smt. Bishan Devi states that when the accused entered their Jhugi again, no one could notice him, PW-2 Smt. Shakuntla states that after having meals in the Jhugi of her brother Shyam Pal he came out and she noticed him entering in the Jhugi of her brother-in-law Sh. Kanta Prasad.

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9. PW-16 Bhim Sen admittedly was residing with his family consisting of his wife and 5-6 children in his Jhugi just opposite to that of Shri Kanta Prasad. While in the witness box, he has stated that his wife and children were inside his Jhugi and its door was open and that the lights were on in all the Jhugis at that time.

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10. In the light of the evidence, as has come on record, this Court is not convinced that the accused had entered in the Jhugi where the prosecutrix was residing with her parents.

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11. Now, if coming to the alleged sexual assault the accused committed on the prosecutrix, as per version of PW-1 Smt. Bishan Devi, she alongwith PW-1 Shakuntla first entered inside the Jhugi on hearing cries of the prosecutrix and noticed that the accused was lying on her and committing rape on her after having removed his pants upto knee level and the underwear of the prosecutrix was lying on the cot. PW-2 Smt. Shakuntla has,

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however, categorically stated that on hearing the cries of prosecutrix, she went inside the Jhugi and found the accused lying on the prosecutrix and subjecting her to sexual intercourse after having put off his pants upto knee level and removing the underwear of the prosecutrix. According to her, she gave beatings to the accused. Meaning thereby that PW-1 Bishan Devi, mother of the prosecutrix entered in the Jhugi at such a stage when the accused was already pushed aside by PW-2 Shakunala. PW-1 Smt. Bishan Devi had thus no occasion to have witnessed the accused while committing sexual intercourse with the prosecutrix by removing her underwear and his pants upto knee level.

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12. If coming to the testimony of PW-16 Bhim Sen, when he went to the adjoining Jhugi of Shyam Pal to hand over his mobile set on which the father of said Shri Shyam Pal had made call, the accused was already present in the Jhugi of Kanta Prasad, the father of prosecutrix. He, however, stated in the same breath that when he handed over the mobile set to Kanta Prasad in the Jhugi of his brother Shyam Pal, at that time the accused was not present in the Jhugi of said Sh. Kanta Prashad. According to him, it was Kanta Prasad, who was speaking over cell phone when they heard cries of his daughter from the Jhugi and when he went there, PW-2 Shakuntla told him that accused had killed her daughter. As per his further version, the prosecutrix was weeping and blood was oozing out from her private part. The blood, according to him, was

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also there on the quilt. However, in his cross-examination, he has come forward with a different version that on the way to the Jhugi of Shyam Pal, the accused met him there who was coming out of the Jhugi of Shyam Pal.

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13. Any how, the presence of the accused is established, however, so far his involvement in the commission of alleged offence is concerned, the same is not at all proved beyond all reasonable doubt, as the evidence as has come on record by way of the testimony of PW-1 Smt. Bishan Devi, PW-2 Smt. Shakuntla and PW-16 Sh. Bim Sen, is not satisfactory and rather contradictory in nature.

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14. The presence of blood on the knickers/underwear of the prosecutrix, as is apparent from the report of the Chemical Examiner Ext.PW14/A, belies the prosecution story so as to the ravishment of the prosecutrix for the reason that had her knickers/underwear been removed and kept in one side on the cot, how would it have stained with blood.

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15. No doubt PW-9 Dr. Sunita Sood did not notice fistula on the buttock of the prosecutrix, however, her mother PW-1 Smt. Bishan Devi and aunt PW-2 Smt. Shakuntla both have admitted existence of one fistula on her buttock. The version of the accused that blood might have oozed out from that fistula seems to be nearer to the factual position as it is for this reason that the blood was detected on her underwear, however, not because of her

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ravishment by the accused, but due to the injury on account of fistula. The absence of blood stains on the quilt Ext.P2 also renders the prosecution story highly undependable, as had the blood oozed out on the quilt while the prosecutrix was being subjected to sexual intercourse by the accused, as stated by PW-1 Smt. Bishan Devi and PW-2 Smt. Shakuntla, blood/semen stains would have been there on the quilt. However, nothing of the sort could be detected on the quilt during its analysis in the laboratory.

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16. If coming to the medical evidence, as has come on record by way of MLC Ext.PW9/A, the doctor PW9 Smt. Sunita Sood, who conducted medical examination of the prosecutrix, noticed that there was swelling in labia minora, vagina was red in colour and the victim was also complaining pain. It is only on the basis of such clinical examination, the doctor has given the opinion that sexual intercourse had taken place. She did not care to wait for the report of Forensic Science Laboratory in respect of the analysis of vaginal swab and also the wearing apparels of the prosecutrix sent for analysis. If coming to her statement in crossexamination, she admits that private part of a girl is very delicate and in unhygienic condition, it catches irritation easily. According to her, irrigation cannot be caused simply with dust, but if dust particles go inside vagina, then it may cause irritation. She admits that if scratching is done with fingers in the vagina, then the labia minora will get swelling and pain. She further admits that rupture

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of hymen can be on account of other facts also i.e. jumping and by way of fall etc. She also admits that if scratching of vagina is violently done, then there can be bleeding in its inner walls. Also that if penis penetrates vagina, then rupture of hymen will be lacerated. According to her, discharge is a secretion, however, there cannot be secretion in such a small child. She further admits that if secretion and blood ooze out, then its spots on pubic hair are bound to occur. She further admits that if penis penetrates vagina, then there will be smegma in the vagina wall. No doubt she has denied that her opinion is not based on the medical jurisprudence, however, in the opinion of this Court merely on the basis of clinical examination, PW-9 had no occasion to have opined that sexual intercourse was performed with the prosecutrix.

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17. On the other hand, the prosecutrix was residing in a Jhugi nearby Brick Kiln where her parents used to work as labourers and as such exposed to dust and unhygienic atmosphere. The existence of fistula on her private part may have added to it and ultimately resulted in irritation. In such a situation, the possibility of scratching of vagina by the prosecutrix with fingers cannot be ruled out. The swelling and pain in the vagina, therefore, so noticed by PW-9, might have caused due to scratching of private part exposed to unhygienic condition and dust etc,. by the prosecutrix herself. Had there been penetration, smegma would have been there on the male organ. Matting of pubic hair was also

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bound to be there had the prosecutrix been subjected to sexual intercourse by the accused. PW-9 Dr. Sunita Sood admits that if penetration is there, injury on the glans is bond to occur, however, PW-11 Dr. Naveen Kataria, who examined the accused, did not notice any injury or scratches on the penis of the accused. The presence of smegma should have also been there had there been sexual intercourse with the prosecutrix, because the accused had not taken the bath after the incident. Therefore, neither the expert evidence as has come on record by way of report Ext.PW14/A nor the medical evidence is suggestive of the fact that the prosecutrix was subjected to sexual intercourse by the accused.

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18. Otherwise also, a fully grown up male like the accused cannot perform sexual intercourse with a minor girl aged 5 years, that too without causing any injury in her vagina. True it is that mere penetration is sufficient to constitute the offence of sexual intercourse, however, in view of the evidence discussed hereinabove, the penetration is also not established in this case beyond all reasonable doubt.

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19. On the other hand, during medical examination of the accused, as many as ten injuries were detected on his person. His defence is that such injuries were inflicted on his person by Shri Kanta Prasad, the father of the prosecutrix and her uncle Shri Shyam Pal. No doubt the prosecution has made an effort to show that after the incident the accused was thrashed by the people

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gathered there and it is in that process, he received injuries, however, PW-1 Smt. Bishan Devi nowhere stated that beatings were given to the accused by the people gathered there. PW-2 Smt. Shakuntla no doubt has stated in her examination-in-chief that on seeing the accused ravishing the prosecutrix, she gave him beating, however, he could have not received so many injuries on his person in case beaten up by her. PW-16 Bhim Sen no doubt has also stated that the accused was thrashed by the people gathered there, however, by whom, he has not disclosed anything. PW-3 Shyam Pal, the uncle of the prosecutrix has only stated that the accused was caught hold of by him and handed over to Chander Pal.

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20. True it is that as per the version of PW-4 Chander Pal and PW-8 Krishan Chaudhary, the accused was apprehended by the complainant party and handed over to Chander Pal, who detained him in the office of Brick Kiln during late night, however, this is not a circumstance to conclude that the accused has committed the alleged offence.

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21. The other evidence, as has come on record by way of testimonies of the police witnesses could have been used as link evidence, had the prosecution been otherwise able to prove its case against the accused beyond all reasonable doubt.

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22. In such circumstances, the possibility of the accused having been beaten up by Shri Kanta Prasad, the father of the

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prosecutrix and her uncle Shyam Pal, when quarrel had taken place between them while consuming the liquor, cannot be ruled out and the defence of the accused that he has been falsely implicated in this case seems to be plausible and nearer to the factual position.

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23. True it is that normally no one would like to put the honour and reputation of one’s own daughter at stake, however, it cannot be taken as straight jacket formulae as in exceptional circumstances, owing to illiteracy, social background, enmity and under the circumstances, as in the case in hand, emerge from the trend of cross-examination of the witnesses, sometime possibility of false implication of the accused cannot also be ruled out. It is held so in by a Division Bench of this Court in State of H.P. Vs. Narender Kumar, 2010 Cri. L.J. 3545 , which reads as under:

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“23. The sole testimony of the prosecutrix cannot be said to be natural, trustworthy and worth being relied upon. No implicit reliance can be placed thereupon. It is true that no person would risk her reputation putting her honour and prestige at stake to falsely implicate a person and that too in a case of sexual offence but as noticed herein-earlier, prosecutrix and the accused were known to each other since long and may have developed intimacy during the course of their interaction and under pressure from the family deposed falsely.”

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24. In such a scenario, the defence of the accused that he had visited the police station to register the case against the complainant party, however, instead of lodging his complaint, he has been falsely implicated in this case, appears to be plausible.

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25. The re-appraisal of the evidence available on record leads to the only conclusion that the prosecution has failed to prove that the accused has subjected the prosecutrix to sexual intercourse and thereby committed an offence, punishable under Section 376 IPC. This Court, therefore, is not in agreement with the findings of conviction recorded against the accused.

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26. In view of what has been stated hereinabove, the present appeal is accepted and the impugned judgment set aside. Consequently, the conviction of the accused is also quashed and set aside. He is ordered to be set free forthwith, if not required in any

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other case.

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July 1, 2013. (Dharam Chand Chaudhary ) (ss) Judge

Roop Basant v. State

Case brief

What is this about?

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Roop Basant v. State

Case brief

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