Allowed

Sher Singh v. State

Himachal Pradesh HC2 Jul 2013CR.A/311/2012

Case brief

AI extract

What is this about?

In this criminal appeal against conviction for rape under Section 376 IPC, the High Court reheard the evidence. Finding significant gaps in the investigation, inconsistencies in the prosecution story, and a conflict with the medical report which stated no intercourse occurred, the Court held the sole testimony did not inspire confidence. Consequently, the conviction was set aside, and the appellan

What did the court decide?

Impugned judgment of conviction and sentence quashed; appellant acquitted and set free forthwith.

Sher Singh Vs State — Criminal Trial and Appeal | Himachal Pradesh HC (2013)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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Cr. Appeal No. 311 of 2012. Decided on: 2^nd July, 2013

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Sher Singh .......Appellant.

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Versus

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State of H.P. ….…Respondent.

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Coram

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The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge. Whether approved for reporting?¹ No.

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: For the appellant Mr. Bhupender Ahuja, Advocate. For the Respondent : Mr. D.S. Nainta & Mr. Virender Verma, Addl. Advocate Generals.

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--------------------------------------------------------------------------------------------------- Dharam Chand Chaudhary, J. (oral).

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The appellant, hereinafter referred to as the accused, has been tried, convicted and sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.10,000/- for commission of an offence punishable under Section 376 of the Indian Penal Code vide judgment dated 1.6.2012, passed by learned Sessions Judge, Kullu, in Sessions Trial No.45 of 2011.

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The legality and validity of the impugned judgment of conviction so passed against the accused has been assailed before this Court in the present appeal on several grounds, however, mainly that from the evidence

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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available on record no case against him is made out and he has been convicted and sentenced erroneously. It is submitted that the prosecutrix is not a credible witness and in this case corroboration to her testimony from some independent source was required. She being more than 17 years of age was expected to show all kind of resistance, in case the accused wanted to assault her sexually. Nothing to this effect has come on record and the prosecution case that he made her to drink some liquid and after drinking the same she felt drowsiness and it is under that state of Health, she was subjected to sexual intercourse is not proved at all as according to the accused, no investigation to ascertain the nature of that liquid has been conducted. The medical evidence also does not corroborate the testimony of the prosecution.

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The accused and complainant party are residents of Village and P.O. Larankelo, Tehsil Manali, District Kullu, As a matter of fact, they are neighbours having their houses adjoining to each other. On 12.6.2011, the prosecutrix and her mother happened to meet the accused near his house. The prosecutrix allegedly had white spots on her face, therefore, her mother showed such spots on the face of the prosecutrix to the accused. The accused, who allegedly was practicing

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sorcery in that village proclaimed that he used to treat such white spots with the help of ‘Mantras’ and knife. He told the prosecutrix to come to his house at 7.00 a.m. in the morning with seven lemons for her treatment and that she will have to remain there upto 5.00 p.m.

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Accordingly, the prosecutrix went to the house of accused on 14.6.2011 at 7.00 a.m. and also taken seven lemons with her. The accused made her to sit in a room, where he used to perform ‘pooja’. He made her to drink some liquid offered in a cup. He told her that on drinking the said liquid, she will vomit and will have loose motion also and even pain also in her lower abdomen. After sometime of her having consumed that liquid, she vomited and loose motion also started. She even felt pain also in her lower abdomen and when other organ of her body stopped working, she was taken in a room; the door thereof was bolted by him from inside. At that time no one was present in the house. The accused put off her salwar and inserted his finger into her vagina. He inquired from her as to whether she felt something like tickling or not. When she refused, he told that her uterus was blocked and that he can remove the blockade. Also that he had cured other ladies from such problem. It is at this pretext, he allegedly committed sexual intercourse with

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the prosecutrix and threatened her not to disclose it to anyone else, failing which the white spots will appear on all over her body. The occurrence having taken place in the manner hereinabove finds mention in the application dated 16.6.2011 Ex.PW-8/A, the prosecutrix made to Station House Officer, Police Station, Manali. On the basis of Ex.PW-8/A, FIR Ex.PW-8/B, under Section 376 IPC came to be registered against the accused on 16 hour (4.00 p.m.). The Police during the course of investigation has got the prosecutrix medically examined in Civil Hospital, Manali. The application Ex.PW1/A to this effect was made by the I.O. to the Medical Officer. Her medical examination has been conducted by PW-1 Dr. Usha Sharma vide MLC Ex.PW-1/B. The application Ex.PW-2/A for medical examination of the accused was also made to the Medical Officer, Civil Hospital, Manali on 18.6.2011. He was examined by PW-2, Dr. Sunil vide MLC Ex.PW-2/B. The underwear, pubic hair, vaginal swab and vaginal smear slides taken into possession by PW-1 during the medical examination of prosecutrix were forwarded to Forensic Science Laboratory, Junga for analysis.

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Similarly, pent of the accused and his pubic hair were also preserved by PW-2 for analysis and handed over to the police. The same were also sent to the Forensic Science

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Laboratory for analysis. During the course of investigation the prosecutrix had produced her underwear Ex.P3, Salwar Ex.P8, which were sealed in a parcel and taken into possession vide memo Ex.PW-3/A, in the presence of witnesses Ganga Ram and Padma Negi. The accused allegedly produced his Dhoti Ex.P11, which was also taken into possession in the presence of the same witnesses vide memo Ex. PW-3/C. The matriculation certificate of the prosecutrix Ex.PW-3/F was also taken into possession vide recovery memo Ex.PW-3/E. The date of birth certificate Ex.PW-7/B of the prosecutrix was also obtained from the local Gram Panchayat. The photographs of the house of the accused Ex.PW-12/A-1 to A-3 were also taken. Spot map Ex.PW-12/B was also prepared.

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On receipt of the report of the Chemical Examiner Ex.PA and obtaining the final opinion of the doctor PW-1 and PW-2, who attended upon the prosecutrix and accused, report under Section 173 Cr.P.C. was filed against the accused.

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Learned trial Court on finding prima facie case under Section 376 IPC having been made out against the accused framed charge against him to which he pleased not guilty and claimed trial.

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The star witnesses produced by the prosecution to bring the guilt home to the accused are the prosecutrix,

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who has stepped into the witness box as PW-9. Another witness is her mother Smt. Uma Devi, PW-10. Besides their evidence, reliance has also been placed on the documentary evidence Ex.PW-1/B, Ex.PW-2/B and also the statement of PW-1 Dr. Usha Sharma and PW-2, Dr, Sunil. PW-12 is SI Paras Ram, who has investigated this case.

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The remaining witnesses are formal as in the presence of Smt. Padma Devi PW-3, the underwear and salwar of the prosecutrix as well as Dhoti of the accused were taken into possession. PW-4 HHC Ajay Kumar had produced the case property before the doctor for medical examination and PW-5, Sher Singh MHC of the Police Station has deposed about the receipt of the case property and subsequently the dispatch thereof to the Forensic Science Laboratory. PW-6 HHC Lal Singh is the witness who had taken the case property to Forensic Science Laboratory, Junga whereas PW-7 Amar Chand is the Secretary, Gram Panchayat, Nathan, who has supplied the certificate Ex.PW-7/B to the Police on the application Ex.PW-7/A made to him. PW-8 Shiv Ram SI/SHO Police Station, Manali has registered the FIR on the receipt of the application Ex.PW-8/A of the prosecutrix, endorsement Ex.PW-8/C on the application Ex.PW-8/A, is also in his hand. PW-11 Lady Constable Meena Kumari had

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produced the prosecutrix before the doctor for her medical examination.

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Learned trial Judge on appreciation of the oral as well as documentary evidence and also hearing learned public prosecutor and learned defence counsel has arrived at a conclusion that the commission of offence punishable under Section 376 IPC is made out against the accused and he has been convicted and sentenced as pointed out at the very outset.

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Shri Bhupender Ahuja, learned counsel representing the accused has vehemently argued that the present is not a case where on the sole testimony of the prosecutrix the findings of conviction could have been recorded against the accused as according to him her testimony neither inspires confidence nor is worthy of credence. In order to buttress such contentions, he has drawn the attention of this court to the surrounding circumstances, the role of investigating agency in not conducting fair investigation in the case. It is, therefore, emphasized that the present is a case, where the accused has been implicated falsely at the behest of one Shri Surender Pal, his neighbour and maternal uncle of the prosecutrix being cousin of her mother.

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On the other hand, learned Additional Advocate

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General submits that as per the settled legal preposition of law, the testimony of the prosecutrix alone is sufficient to bring the guilt home to the accused and also that no corroboration is required.

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Before coming of the rival contentions, it is desirable to take note as to what constitutes the offence punishable under Section 376 IPC. A reference to this effect can be made to the provisions contained under Section 375 IPC, which reads as under:

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375-Rape . - A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: -

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First: - Against her will. Secondly: - without her consent. Thirdly: - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly: - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

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Fifthly: - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

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Sixthly: - With or without her consent, when she is under sixteen years of age.

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Explanation: - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

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Exception: - Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape].

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Now coming to the evidence as has come on record, the prosecutrix is born on 4.8.1994. This fact is proved on record from birth certificate Ex.PW-7/B issued by Shri Amar Chand, Secretary Gram Panchayat, Nathan. Similar is her date of birth finds recorded in her matriculation certificate Ex.PW-3/F. Otherwise also, there is no dispute qua this part of the prosecution case. This case, therefore, is beyond the rigor of 6^th situation below Section 375 IPC referred to hereinabove. The prosecution, however, has made an effort to bring this case within the ambit of Section 375 IPC because it is the case of the prosecution that she was administered some intoxicant in the form of liquid and subjected her to sexual intercourse, which allegedly is a case of her ravishment without her consent.

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Whether the prosecution is succeeded in its attempt to prove so or not, needs reappraisal of the evidence available on record. Learned trial Judge has placed reliance on the sole testimony of the prosecutrix and distinguished the medical opinion given by Dr. Usha Sharma that no sexual intercourse has been committed with the prosecutrix with the

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help of some passages from the book titled Medical Jurisprudence and Toxicology, written by Modi, extracted below para 23 and 26 of the impugned judgment. Learned trial Judge has also taken note of the guidelines in such matters issued by the apex Court in (2011) 2 SCC 550, titled State of Utter Pradesh versus Chhotey Lal as well as in (2011)7 SCC 130 , titled Krishan Kumar Malik versus State of Haryana and has concluded that the sole testimony of the prosecutrix in this case inspires confidence hence convicted the accused. There is no denial to the well settled legal principles that the sole testimony of the prosecutrix, if otherwise inspires confidence is sufficient to bring the guilt home to the accused booked under Section 376 IPC, however, at the same time surrounding circumstances as well as the link evidence also needs to be taken into consideration. The prosecution case whether is probable or not also needs consideration for the reason that the offence punishable under Section 376 IPC is not only heinous in nature, but grave also, for which the law provides for stringent punishment in case the offender is held guilty and as per the well established legal principles that where there is provision of stringent punishment, the degree of the proof to prove the guilt should also be high as the freedom and liberty of a

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person cannot be curtailed merely on the basis of hypothesis, exaggeration and on the basis of the evidence not worthy of credence.

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The apex Court in Rajoo and others Vs. State of M.P., 2009 AIR (SC) 85 has held in Para 9 of this judgment as under:-

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“9. ……..ordinarily the evidence of a prosecutrix should not be suspect and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is the aforesaid necessary. Undoubtedly, observations must carry the greatest weight and we respectfully agree with them, 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 the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any

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basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration……”

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If in the light of the above observations, the commission of the alleged offence by the accused or not is seen, the present is a case where there are many grey areas, which cast clouds on the prosecution story. The investigating officer did not care to investigate the case thoroughly and remove all doubts qua the manner in which the occurrence allegedly took place.

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In case there was white spot on the face of the prosecutrix, it was incumbent on the I.O. to have obtained the opinion of medical officer on this aspect also. The application Ex.PW-1/A made to the Medical Officer for conducting the medical examination of the prosecutrix reveals that her opinion was sought on the following three questions:-

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Whether the prosecutrix has been subjected to sexual intercourse or not?

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In case she has been subjected to sexual intercourse forcible, what is the duration between such intercourse and the medical examination?

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Whether there exists injury on the private part of the prosecutrix or not?

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A further request was made to preserve the wearing apparels i.e. underwear and also preserve pubic hair as well as slides for analysis. It is not understandable as to

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what prevented the I.O. from obtaining the opinion of the doctor qua the white spots on the face of the prosecutrix. The accused admittedly is the neighbour of the complainant party as his house is adjoining to that of theirs. It cannot reasonably be believed from a person of ordinary prudence to allow a young girl of 17-18 years to go to a person ‘Tantrik’ (Sorcery) alone that too when she had to remain in his company throughout the day i.e. from 7.00 a.m. to 5.00 p.m. alone with him in the house. What precautions were taken by her mother to ensure for the well being and safety of her daughter and how she satisfied herself that the accused will not exploit the prosecutrix in any manner whatsoever, the I.O. did not care to clarify these aspects.

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No effort has been made to find out as to who else were the members of the family of the accused or that he was alone and there was none in his family. No doubt, in reply to question No.6 in his statement under Section 313 Cr.P.C., the accused has stated that besides him, his wife also lives in the house throughout with him. His version seems to be plausible and nearer to the factual position as it is for this reason the I.O. in a clandestine manner did not try to investigate this aspect of the matter.

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In order to bring the case within the ambit of Section 375 IPC, the story as set forth that the accused made the prosecutrix to drink some liquid and apprised her that on taking the same she will vomit and will have loose motion also seems to be not plausible. The prosecutrix also states so as according to her, on drinking the said liquid, she vomited and had loose motion also. The I.O., however, did not make any attempt to investigate this aspect of the matter. As a matter of fact, had the prosecutrix vomited or had she had loose motion, it was expected of the I.O. to have found out the availability of the remains thereof and preserved the same for analysis to find out that the liquid administered by the accused to the prosecutrix was some poisonous substance. It is only in the case of availability of such link evidence, the accused could have been said to have committed the alleged offence. It is interesting to note that as per the version of the prosecutrix, she was subjected to sexual intercourse thrice on that day. When her house is adjoining to that of the accused, how he could have assaulted her sexually on three occasions as she could have raised alarms. No doubt, an effort has been made to show that on taking the drink she felt numbness. She further states that the organs of her body stopped functioning and she became senseless, however, had it been so, how she

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could have answered the question of the accused that insertion of finger in her vagina had resulted in some tickling or not. How she could have noticed the accused having put off her salwar? On her reply that she did not feel any tickling, how the conversation that her uterus is blocked and he can remove such blockade and that earlier also he had removed similar type of blockade of 2-3 girls, could have taken place between them. Therefore, this Court is of the firm opinion that nothing of this sort has taken place as alleged by the prosecution.

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Surprisingly enough, the accused and prosecutrix, who remained throughout the day inside the house, were not checked by anyone else particularly by the mother of the prosecutrix, who, as a matter of fact, had the knowledge of the prosecutrix being inside the house of the accused. The medical evidence is not suggestive of the fact that the prosecutrix was subjected to sexual intercourse for the reason that PW-1, Dr. Usha Sharma while in the witness box has stated that she did not notice any mark of injury in and around introitus, hymen was found intact and allowing one finger with difficulty. While answering the above three questions put to her in the application Ex.PW-1/A, in reply to question No.1 her reply was in negative as in her opinion the

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prosecutrix was not subjected to sexual intercourse. This also answers question No.2 and as regards question No.3, her reply is that there was no mark of injury in and around the genital area of the prosecutrix. No doubt, the accused has been found to be capable of performing sexual intercourse, however, of no help to the prosecution case as he being 42 years of age can be said to be capable of performing sexual intercourse. But it is not proved that he had committed the sexual intercourse with the prosecutrix.

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If coming to the analysis of the underwear of the prosecutrix and her pubic hair, slides preserved for analysis by PW-1, the report is Ex.PA. The same reveals that on vaginal smear slides and underwear of the prosecutrix and on pubic hair of the accused blood was present, however insufficient for further examination, therefore, on the vaginal swab of the prosecutrix and pant of the accused also blood was present, however, semen was not available whereas neither blood nor semen could be detected on the sample of pubic hair, underwear and salwar of the prosecutrix and Dhoti of the accused. Therefore, the report, which could have been used as link evidence also does not support the prosecution case at all.

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So far as the passages extracted form Modi’s Medical Jurisprudence and Toxicology relied upon by learned trial Judge is concerned, the same were never put either to PW-1 Dr. Usha Sharma or PW-2 Dr. Sunil, who have medically examined the prosecutrix and the accused respectively. Without putting the same to these witnesses, the accused had condemned unheard and as such learned trial Judge by placing reliance thereon has committed grave illegality. Nothing special has also come in the statement of the I.O. SI Paras Ram, who has stepped into the witness box as PW-12. His cross-examination rather reveals that the accused was found to have been beaten by some persons; however, he did not register any case against them. The other evidence as has come on record by way of the testimonies of PW3,4,5,6,7,8 and 12 could have been used as link evidence had the prosecution been otherwise able to bring home the guilt to the accused beyond all reasonable doubt.

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If coming to the plea of the accused raised in his defence, that he has been implicated in this case falsely on account of boundary dispute between him and one Surinder Kumar, who is cousin of the mother of the prosecutrix, cannot also be believed to be true as no doubt normally no parents would like to involve the prestige and honour of their young

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girl and that too in order to wreck vengeance against the accused. However, exceptions on account of variety of reasons as discussed by the apex Court in Rajoo’s case cited supra are always there.

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The reappraisal of the entire evidence and having regard to the rival contentions, this Court is not in agreement with the conclusion of the matter drawn by learned trial Judge. This Court is of the firm opinion that the present is an exceptional case where it is not safe to place reliance on the sole testimony of the prosecutrix, which, in view of the above discussion, hardly inspires any confidence. Learned trial Judge seems to have got swayed merely by the fact that the alleged offence is against a woman and convicted the accused without appreciating the evidence available on record in its right perspective. The findings, therefore, so recorded in the impugned judgment are based on surmises and conjectures and not on the correct appreciation of the evidence. The result, therefore, would be that no case under Section 376 IPC is made out against the accused and he should have been acquitted from the charge.

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In view of what has been stated hereinabove, this appeal succeeds and the same is hereby allowed. The impugned judgment of conviction and sentence of the accused

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is quashed and set aside and he is acquitted of the charge. The accused, who is in jail and serving out the sentence imposed upon him by the learned trial Court, be set free forthwith, in case he is not required in any other case. The appeal stands disposed of accordingly.

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July 2, 2013 (Dharam Chand Chaudhary), (ps) Judge.

Sher Singh v. State

Case brief

What is this about?

What did the court decide?

Sher Singh v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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