Allowed

Dalip Kumar v. State

Himachal Pradesh HC2 Jul 2013CR.A/337/2012

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court of Himachal Pradesh quashed the appellant's conviction for rape under Section 376 IPC. The Court held that the prosecution case was full of contradictions, the investigation was unfair, and the trial court erred in relying solely on medical evidence without critically assessing the inconsistencies in the prosecutrix's testimony and the impossibility of the a

What did the court decide?

The appeal is accepted. The judgment is set aside. The appellant is acquitted. The fine is refunded, and he is ordered to be released forthwith.

Dalip Kumar 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. 337of 2012

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Decided on: 2^nd July, 2013 Dalip Kumar .......Appellant. 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.

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Whether approved for reporting ?¹ Yes.

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For the appellant : Mr. Vijay.K.Verma, Advocate. For the respondent : Mr. D.S. Nainta, Addl. A.G with Mr. Virender Verma, Addl. A.G.

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Dharam Chand Chaudhary, Judge (Oral)

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Aggrieved by the judgment dated 1^st May, 2009, in Sessions Trial No. 67/09 passed by learned Sessions Judge, Kullu, whereby the appellant, one of the accused, has been convicted and sentenced under Section 376 of the Indian Penal Code, preferred the present appeal for setting aside the same.

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The challenge to the impugned judgment is on the grounds inter-alia that Court below has not appreciated the evidence on record in its right perspective and that the testimony of prosecutrix which does not inspire any confidence has been erroneously relied upon. Cogent and reliable link evidence connecting the accused with the commission of the

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

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offence is also not on record as against pink coloured salwar, yellow coloured kamij and green coloured panty preserved by Dr. PW-6 Dr. Geeta.K.Lal, the parcels when opened were found having contained one red, yellow, blue, violet, green and black coloured salwar and green and blue coloured underwear. It is, therefore, contended that possibility of the case property having been tampered with, cannot be ruled-out, which aspect has not been taken into consideration by the learned trial Court. While referring to the statement of the prosecutrix, it has been submitted that same is full of contradictions qua material aspects. The delay in registration of the FIR has also been highlighted. It has been submitted that the prosecutrix had voluntarily accompanied the accused and had been residing in his house in the capacity of his wife. The statement of DW-1 Secretary-cum-salesman, Gram Panchayat, Sehkari Smeeti, Urla Tehsil Padhar, Distt. Mandi and the entry at Serial No. 159 which pertains to ration card No. 196 issued in the name of the father of the accused have also been pressed in service, as it is the prosecutrix who had collected the ration from the above Sehkari Smeeti under her signature. The medical evidence is also stated to be not appreciated in its right perspective.

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If coming to the factual matrix, the

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allegations against the appellant-accused and his coaccused Smt. Reena W/o Sh. Bhawani Singh, his sister and Smt. Reena w/o Sh. Kuldeep, his sister-in-law (Bhabi) are that on 19.10.2008 when the prosecutrix was in the market at Kullu, deputed there by her father to purchase certain articles, called over her cellphone by Smt. Reena and she was asked to come to Kullu where she was waiting for her along with another Reena, her sister-inlaw. The prosecutrix came to meet them at Kullu bus stand. Thereafter, she came to Bhuntar with both the ladies accused. They reached at 1.30 p.m at Bhuntar. The ladies accused introduced the prosecturix to accused appellant Dalip alias Rajesh who was sitting inside the vehicle. It was disclosed to her that accused wanted to marry her. She was directed to sit in the vehicle. She tried to raise alarm, however, accused made her to sit in the vehicle forcibly. Then she was taken to village Masawan in District Mandi. There she was locked inside the room with appellant-accused who subjected her to sexual intercourse forcibly. It is on 22^nd October, 2008 around 5.30 a.m she informed her parents who came to village Mashwahan along with her maternal uncle and rescued her form the custody of the

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accused. It is with such allegations, FIR Ext. PW8/A was registered at her instance.

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An application Ext. PW6/A was made to the Medical Officer with the request to conduct medical examination of the prosecutrix and also for the opinion on the following that (i) the prosecutrix has been subjected to sexual intercourse or not ? and (ii) any mark of injury are present on her person or not. Besides a request was also made to preserve the vaginal slides, pubic hair and also to preserve vaginal swab as well as her wearing apparels i.e., salwar and underwear for chemical analysis. PW-6 did not notice any abrasion or laceration in the vulva. The vaginal introitus found admitting two fingers easily and the hymen was found ruptured with tear at 6 O’clock position. The prosecutrix was found to have exposed to coitus. The medical was conducted by Dr. Geeta.K.Lal vide Ext. PW6/B. The radiological age of the prosecutrix was also got ascertained from the Radiologist, Regional Hospital, Kullu vide report Ext. PW2/E.

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The accused was arrested on 28.10.2008 and application Ext. PW1/A was made to Medical Officer, Regional Hospital, Kullu for his medical examination and also for opinion on the following questions: (i) Whether he is capable of performing sexual intercourse or not ? (ii)

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Whether he has performed sexual intercourse and what is the duration between such intercourse and the medical examination (iii) Whether any mark of injury was present on his penis or not and (iv) Whether semen or blood stains are present on his penis and also requested to preserve his underwear and pubic hair for chemical analysis. He has been examined by PW-1 Dr. Ranjeet Thakur who has issued report Ext. PW1/B which reveals that he was found capable of performing sexual intercourse, however, the exact time of the previous sexual intercourse committed by him, could not be ascertained. Even no marks of any injury were detected on male organ. Semen or blood stains could also not be detected on the penis.

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The date of birth certificate Ext. PW7/B of the prosecutrix was collected from PW-7 Fauja Singh, Panchayat Secretary, Gram Panchayat, Choparsa, Tehsil and District Kullu, on an application Ext. PW7/A made to the said witness. The school leaving certificate Ext. PW9/A of the prosecutrix was also collected on being produced by her father PW-9, Shri Kehar Singh vide memo Ext. PW9/B. The identification of the house of accused at village Maswahan was given by the prosecutrix vide memo Ext. PW8/B. The spot map of the place at Kullu from where the prosecutrix accompanied

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the ladies accused in private bus and the place at Bhuntar where she was brought by them Ext. PW11/A was also prepared. The map Ext. PW11/B of the location of the house of accused has also been prepared. The wearing apparels of the accused and prosecutrix as well as vaginal slides and swab slides preserved by the Medical officer were sent to Forensic Science Laboratory, Junga for analysis. Report Ext. P-A was collected in respect of the analysis of the said parcels.

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On completion of the investigation, report under Section 173 of the Code of Criminal Procedure was filed against the accused appellant and his ladies co-accused. Learned trial Court framed charge against the appellant-accused for the commission of offence punishable under Sections 363, 366-A, 376 read with Section 34 of the Indian Penal, whereas, against his ladies co-accused under Section 363 and 366-A read with Section 34 IPC.

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After holding full trial and on appreciation of the evidence on record, no case under Sections 363, 366-A read with Section 34 IPC was found to have been made out against either of the accused persons. No appeal against their acquittal has been filed on behalf of the respondent-State, as stated by learned counsel on both sides.

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The accused, however, was found to have committed the offence punishable under Section 376 IPC and as such, has been convicted and sentenced to undergo rigorous imprisonment for seven years and also to pay a fine of Rs. 10,000/-.

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Before coming to the factual matrix, what constitutes an offence punishable under Section 376 of the Indian Penal Code has to be noticed from Section 375 thereof, which reads as follows:

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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 on any person in whom she is interested in fear of death or of hurt.

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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 or unsoundness of mind or intoxication or the administration by him personally or through another of any stuperfying or

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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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The present is not a case which falls under any of the situations i.e. 1^st , 3^rd , 4^th and 5^th below Section 375 because admittedly, the prosecutrix at time of alleged occurrence was aged 16 years six months and one day, being born on 20.4.1992. Though, an effort has been made to make out a case against the accused that prosecutrix has been subjected to sexual intercourse forcibly by confining her in a room of the house of accused, however, unsuccessfully. It is not the case of the prosecution that accused has subjected her to sexual intercourse, knowing fully well that he is not her husband or that she consented her sexual intercourse with him being under the impression that she is lawfully married to him. The present is also not a case where it can be said that when her consent was obtained, she was under a state of intoxication and as a result thereof was not in a position to understand the nature and consequence of the consent so given by her. There is no denial so as to accused has committed sexual intercourse with the prosecutrix in his house during her

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stay with him there. Therefore, there is no need to discuss the medical evidence, as has come on record by way of testimony of PW-1 Dr. Ranjeet Thakur and PW-6 Dr. Geeta.K.Lal, who have examined the accused and prosecutrix respectively. It has, however, to be seen from the evidence available on record that present is a case where it can be said that prosecutrix has been subjected to coitus against her will or without her consent.

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It is significant to note that charge of kidnapping and enticing away the prosecutrix on the allurement of solemnization of marriage with the appellant-accused and his co-accused has not been established and they stand acquitted from the charge so framed against each of them. Meaning thereby that neither of the accused particularly the appellantaccused had enticed, forced or pressurized, threatened or allured the prosecutrix to join their company. The story that while being pushed inside the vehicle at Bhuntar, bus-stand, she shown resistance, however, virtually pushed inside by the accused forcibly seems to be highly improbable, for the reason that as per her own admission and also that of the IO, bus-stand at Bhuntar is a busy place and always remain crowded with people and vehicles. Therefore, there is no iota of evidence to

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believe that in a broad day light at 2.30 p.m she could have made to board that vehicle forcibly. Interestingly, which was the make of that vehicle, what was its registration number and to whom the same belongs, remained unexplained, as the IO who has stepped in the witness box as PW-11 has stated that since the prosecutrix failed to give the number of that vehicle, therefore, he did not investigate that part of the matter any further. This was a material piece of evidence to connect the accused with the commission of alleged offence. Had the prosecutrix been able to disclose the number of the vehicle, the accused should have been interrogated in this behalf and the truth elicited qua this aspect of the matter. The IO, however, seems to have not made any effort in this behalf and while in the witness box in order to wriggle out from the lacuna so left in the prosecution case, come forward with the version that this part of the matter could not be investigated , as the prosecutrix failed to give the number of the vehicle. The failure of the IO to investigate this vital aspect of the prosecution case has rendered the entire prosecution case doubtful.

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The conduct of the IO is not above board, as he intentionally and deliberately painted only one side of the picture of the entire episode to implicate the

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accused by hook or crook in this case and not investigated each and every aspect of the matter to find out the truth and facilitate the due process of law and ultimately administration of justice. In a nut-shell, this Court is satisfied that investigation conducted in this case is not fair and impartial. The possibility of the prosecutrix having managed her elopement with the accused on 19.10.2008 and rather well before to that i.e. 2-3 months also as the accused has pleaded in his defence. His defence as emerges from the trend of cross-examination of the prosecution witnesses and reply to the last question in his statement under Section 313 of the Code of Criminal Procedure is that prosecutrix was living with him being his wife for the last 2-3 months.

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The prosecutrix has initially stated that neither ladies accused nor the appellant-accused were earlier known to her. Had it been so, how she could have joined company of unknown ladies accused from Kullu bus-stand and traveled with them to bus stand Bhuntar. Even if it is believed to be true that ladies accused told her about the intention of the appellantaccused to solemnize marriage with her, why she did not raise any hue and cry either in the bus or at bus-stand, Bhuntar, in case she was not ready and willing to do so. No doubt, in the same breath she has come forward

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with the version that accused earlier also made an offer to solemnize marriage with her, which leads to the only conclusion that she was in league with the appellantaccused and a consenting party to her elopement with him.

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Surprisingly enough, had she been forcibly taken on 19.10.2008 from bus-stand, Bhuntar to Village Mashwan, admittedly at a distance of 115-120 kilometers, why she did not raise hue and cry on the way, as it cannot be believed that the ladies accused throughout kept her mouth gagged or caught hold her from legs. This, to my mind, seems to be a highly engineered and concocted story to implicate the accused may be later on when after her 2-3 months stay she did not find herself comfortable in his company, or at the behest of her parents, who were not happy with her settlement in the house of the accused as his wife, who admittedly belongs to Scheduled Caste Community, whereas, they are ‘Rajput’ by Caste. It is for this reason her father had sacrificed 16 he goats to purify her body and soul, when bought back to his house. He admits so while in the witness box as PW-9 in his cross-examination. The defence of the accused that he was arrested on some complaint lodged in Police Chowki, Padhar, Disttt. Mandi and was arrested there though, denied being

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wrong by the IO PW-11 in his cross-examination and also by PW-9 Shri Kehar Singh, the father of the prosecutrix, however, his version that on the way from village Mashwan to Kullu, the police had gone to Police Station, Padhar, leave no manner of doubt that in that police station, either the matter was reported or some assistance being a local Police Station was obtained by the Police party of Police Station, Kullu. However, this part of the story has been concealed. Therefore, the possibility of the prosecutrix having been residing in the company of the accused for the last 2-3 months in the capacity of his wife cannot be ruled-out.

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The story that accused when brought her to his house at village Mashwan had taken cellphone and switched off and that she could manage to obtained the same on 21.10.2008 in the evening also seems to be not plausible, for the reason that had any call been made by her on that day to her father in the evening from the cellphone, it was incumbent for the IO to have obtained the details of such calls and added in the record. As a matter of fact, the same could have been the best piece of evidence to connect the accused with the commission of offence. Therefore, the failure to collect such evidence is fatal to the prosecution case.

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On the other hand, the perusal of the school leaving certificate Ext. PW-9/A obtained by PW-9 from the school reveals that the same is dated 21.10.2008. Meaning thereby that the proof of age, i.e. this certificate was obtained on 21.10.2008 itself during day time and the story was invented that the prosecutrix informed the said witness on that day in the evening and it is thereafter, she was recovered from the house of the accused and the matter reported to the police. The prosecution story qua obtaining of certificate on 21.10.2008 itself reveals that there was due deliberation and consultation and it is thereafter, the story that the prosecutrix informed her father PW-9 on that day in the evening has been engineered and fabricated.

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Interestingly, the house of the accused is a slate roofed and ‘Kacha’ one having one and a half storey i.e. consisting of only one room. The entire family i.e. his parents, brothers and sisters used to reside in the said house. True it is that kitchen is separate and as per evidence, as has come on record, the prosecutrix was made to reside in the kitchen. The location of the house is such that same is adjoining to the road leading to Chukku from Kotropi. Meaning thereby that same is exposed to passers by and also the vehicular traffic. Otherwise also, the house/kitchen being situate in a

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village, how she could have live in a room without the notice and knowledge of the others. The IO admits that he did not notice any toilet inside the house, therefore, it can reasonably be believed that prosecutrix at least would have come out to answer the call of the nature, during her stay in the said house. When no toilet is inside the house, it cannot reasonably be believed that the appellant-accused had been guarding her even at the time when she used to go to answer the call of nature outside in open.

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Interestingly, DW-1 Shri Khem Singh,

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Salesman-cum-Secretary, Gram Sabha, Sehkari Smeeti, Urla has produced the record, which reveals that at Serial No. 159, there is entry of ration card No. 196 of the family of Shri Halku Ram, the father of the appellantaccused. The entry at serial No. 159 has been signed by the prosecutrix (name withheld). Her name as reflected against this entry has been disclosed by her father, while in the witness box. Learned trial Court has not assigned any reasons while discarding this evidence, which in so many words establishes that the prosecutrix was residing in the house of the accused in the capacity of his wife and it is being the member of the family she seems to have purchased ration from the Smiti aforesaid against the ration card of Shri Halku Ram, father of the

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appellant-accused. Had the present been a case of the enticement of the prosecutrix by the accused, it was expected from her parents to have at least entered the missing report in the Police Station. This has also not been done and the explanation thereto is that they were searching out the accused and the prosecutrix at their own level, as has come in the statement of PW-9 while in the witness box. No such explanation in a case of this nature can be said to be plausible and correct because in such a situation, first step always is to enter the missing report with the concerned police station.

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The given facts and circumstances of this case and also the evidence available on record, leads to the only conclusion that learned trial Judge has miserably failed to appreciate the evidence available on record in its right perspective and rather proceeded to record findings of conviction against the accused, on the basis of conjectures and surmises as well as on being swayed on account of the present case against a woman. True it is that the offence under Section 376 IPC is heinous in nature, as it is for this reason drastic changes have been introduced in the existing laws as well as by way of various pronouncements so that an offender, even otherwise held to be guilty should not escape free, however, it is again settled law that an innocent person

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should also not be punished merely on account of gravity and severeness of the offence. True it is that in a case of this nature, the statement of prosecutrix alone is sufficient to bring guilt home to the accused, if otherwise inspires confidence, however, it should not be taken that the same in each and every case should be believed to be true and correct as in such cases, the possibility of false implication cannot be ruled-out. It is held so by the Hon’ble Apex Court in Rajoo and others Vs. State of M.P., 2009 AIR (SC) 858 , while taking note of the judgments in Gurmeet Singh’s case supra & Ranjit Hazarika Vs. State of Assam, (1998) 8 SCC 635 and concurring with the ratio of law laid down therein, has further held that the statement of the prosecutrix cannot be universally and mechanically applied to the facts of every case of sexual assault, which comes before the Court. Para 9 of this judgment reads as follows:

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“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 her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they

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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 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 to Sections 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 of consensual 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 and dowry death have been raised against the accused. These two Sections, thus, raise a clear

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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 shows that 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 but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined.

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Similar is the ratio of the judgment of a Division of our own High Court in State of H.P Vs . Narender Kumar, 2010 Cri. LJ 354 5 , which reads as follows:

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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

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interaction and under pressure from the family deposed falsely.”

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Therefore, prosecution case being full of contradictions, embellishments and having been improved on each and every stage, no case against the appellant-accused under Section 376 IPC is made out. Consequently, in all fairness and in the ends of justice, he deserves to be acquitted of the charge framed against him under Section 376 IPC also.

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In view of the aforesaid discussion, the appeal is accepted. The judgment of the trial court is set aside. As a result of the acceptance of the appeal and setting aside of the judgment of the trial Court and also in view of the aforesaid findings, conviction and sentence imposed upon the appellant-accused is also quashed and set aside. He is acquitted of the charge under Section 376 of the Indian Penal Code. The amount of fine, already deposited shall be refunded to him. The appellant, being in custody, is ordered to be released forthwith, in case his detention is not required in connection with any other case.

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July 2, 2013 (Dharam Chand Chaudhary) (naveen) Judge

Dalip Kumar v. State

Case brief

What is this about?

What did the court decide?

Dalip Kumar v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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