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2003 DIGILAW 111 (HP)

JEET RAM v. STATE OF H. P.

2003-05-19

M.R.VERMA

body2003
JUDGMENT M.R. Verma, J.—This appeal is directed against the judgment dated 28.11.2001 passed by the learned Sessions Judge, Mandi whereby the appellant/ accused (hereafter referred to as the accused) has been convicted under Sections 376 and 506 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for seven years and fine of Rs. 10,000 and in default of payment of fine, to undergo further simple imprisonment for six months under Section 376 of the Indian Penal Code and to undergo rigorous imprisonment for one year under Section 506 of the Indian Penal Code. 2. Case of the prosecution against the accused is that on 23.4.1997 the prosecutrix (PW-3) had gone to Chalhan jungle to graze her cattle. The accused, one Banti and Lila Devi (PW-6) also came there. They kept sitting together for sometime. Thereafter PW-6 and Banti left the place and the accused proceeded towards the prosecutrix. While on the way towards the prosecutrix, he stopped and called the prosecutrix saying that he had some work with the prosecutrix as he had to give a message to her sister-in-law. The prosecutrix went to the accused and enquired as to what work he had with her. The accused told that he had no work with her. When the prosecutrix started going back, he caught hold of her leg and threw her on the ground, broke the string of her Salwar and committed rape on her. When the prosecutrix started crying, the accused gagged her mouth with his hand. After the rape, the accused left the place saying that in case the prosecutrix divulged the occurrence, he would kill her. The occurrence was seen by PW-6 and said Banti. Because of fear, the prosecutrix did not disclose the occurrence to anyone and even washed the clothes she was wea ring a t the time of the occurrence. After three or four days of the occurrence. PW-6 and Banti started talking about the occurrence, therefore, the prosecutrix disclosed the occurrence to her sister-in-law Belawati. Thereafter, the prosecutrix accompanied by her brother Ghanshyam (PW-4), went to the Police Station and lodged the FIR Ext. PW 3/A. The prosecutrix was got medically examined and the MLC regarding such examination issued by Dr. Rafia Banu (PW-1) is Ext. PW-6 and Banti started talking about the occurrence, therefore, the prosecutrix disclosed the occurrence to her sister-in-law Belawati. Thereafter, the prosecutrix accompanied by her brother Ghanshyam (PW-4), went to the Police Station and lodged the FIR Ext. PW 3/A. The prosecutrix was got medically examined and the MLC regarding such examination issued by Dr. Rafia Banu (PW-1) is Ext. PW-l/B. As per the opinion given by PW-1, the prosecutrix was exposed to coitus more than seven days before her medical examination and an injury found on her person was also of the same duration. The opinion about the skeleton age of the prosecutrix Ext. PA was given by Dr. S.K. Malhotra (PW-12) according to which the skeleton age of the prosecutrix was opined to be in between thirteen and fifteen-and-a-half years. The Sal war Ext. P-2 and shirt Ext. P-3 which the prosecutrix was wearing at the time of the rape and contained blood and semen stains, were taken in possession by the Investigating Officer vide memo. Ext. PW-8/A. During the investigation the Investigating Officer also took in possession birth certificate Ext. PB of the prosecutrix prepared and issued by PW-13 according to which the date of birth of the prosecutrix is 7.2.1982. A similar certificate mark X issued by Sita Ram (PW-7), President of the concerned Gram Panchayat, was also obtained. On arrest of the accused, he was also got medically examined from Dr. J.C. Sharma (PW-2) who issued MLC Ext. PW-2/B opining that the accused was capable of performing sexual intercourse. Pyzama Ext. P-l of the accused was also taken in possession for the purpose of chemical analysis. It appears that certain wearing apparels belonging to the prosecutrix, including those taken in possession vide memo. Ext. PW-8/A, and those of the accused and some slides and hairs were sent by the Investigating Officer to the State Forensic Science Laboratory and as per the report Ext. PW-11/C received from the said Laboratory, blood stains were found on the Salwar which were insufficient for further analysis and human semen was also found thereon. In the Pyzama of the accused human semen was detected. In another Salwar human blood was found but there was no semen. Nothing incriminating was found on other articles, i.e. slides, shirt and hairs. 3. In the Pyzama of the accused human semen was detected. In another Salwar human blood was found but there was no semen. Nothing incriminating was found on other articles, i.e. slides, shirt and hairs. 3. On completion of the investigation, the Officer Incharge of the concerned Police Station submitted a charge-sheet and a charge under Sections 376 and 506 of the Indian Penal Code was framed against the accused by the learned Sessions Judge to which the accused pleaded not guilty and claimed to be tried. 4. To prove the charge against the accused, prosecution examined 13 witnesses. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure wherein he denied the prosecution case as incorrect and claimed that the witnesses have deposed against him because of enmity. The accused, however, did not lead any defence evidence. On consideration of the evidence on record, the learned Sessions Judge found the accused guilty of the commission of offences punishable under Sections 376 and 506 of the Indian Penal Code and accordingly convicted and sentenced him as aforesaid. Hence this appeal by the accused. 5. I have heard the learned Counsel for the accused and the learned Additional Advocate General for the respondent State and have also gone through the records. 6. The learned trial Judge held the charge against the accused proved on the basis of the following evidence:— (i) Statement of the prosecutrix ; (ii) The conduct of the prosecutrix in narrating the occurrence to her sister-in-law (PW-5) and her brother (PW-4); (iii) The medical opinion given by PW-1 that the prosecutrix was exposed to coitus; (iv) The finding of human blood and semen on the Salwar of the prosecutrix; and (v) That despite want of proof that the prosecutrix at the relevant time was below 16 years of age, the accused subjected her to sexual intercourse without her consent and against her will. 7. It may be pointed out at the very outset that by now it is well settled that conviction of a person, accused of the commission of rape, on the basis of statement of the prosecutrix alone is permissible but that is in a case where the evidence of the prosecutrix is cogent, reliable and confidence inspiring. 7. It may be pointed out at the very outset that by now it is well settled that conviction of a person, accused of the commission of rape, on the basis of statement of the prosecutrix alone is permissible but that is in a case where the evidence of the prosecutrix is cogent, reliable and confidence inspiring. In case the evidence of the prosecutrix is not so and there is no other independent and reliable evidence to lend assurance to the truthfulness of the evidence of the prosecutrix, it will be unsafe to base a conviction on her non-confidence inspiring evidence. 8. In Om Prakash v. State of H.P., 2000 Cri. LJ. 1591, a Division Bench of this Court found the statement of the prosecutrix highly suspicious and held as under:— "19. In view of what has been stated above, the statement of the prosecutrix is not of the nature which may require some assuring evidence only to rely but is such which cannot be relied upon unless corroborated by independent evidence on all material particulars." It was further held:— "34. In conclusion it can be safely said that in this case the statement of the prosecutrix does not inspire confidence and is, therefore, unreliable nor it is corroborated by the other evidence to assure credence to it. Therefore, the prosecution has failed to prove the charge against the accused, thus the impugned judgment is not sustainable." 9. In Dalip and another v. State of M.P., 2002 SCC (Cri.) 592, the Honble Apex Court held as follows:— "12. The law is well settled that the prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon and made the basis of conviction unless corroborated in material particulars. However, the rule about the admissibility of corroboration should be present to the mind of the Judge. The law is well settled that the prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon and made the basis of conviction unless corroborated in material particulars. However, the rule about the admissibility of corroboration should be present to the mind of the Judge. In State of H.P. v. Gian Chand, 2001 (6) SCC 71 : 2001 SCC (Cri) 980, on a review of decisions of this Court, it was held that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc., if the same is found to be natural, trustworthy and worth being relied on." It was further held:— "14...The Court is finding it difficult to accept the truthfulness of the version of the prosecutrix that any sexual assault as alleged was committed on her in view of the fact that her narration of the incident becomes basically infirm on account of being contradicted by the statement of her own aunt and medical evidence and the report of the Forensic Science Laboratory. The defence has given suggestion in cross-examination for false implication of the accused persons which, however, have not gone beyond being suggestions merely. It is not necessary for us to dwell upon further to find out the probability of truth contained in the suggestions because we are not satisfied generally of the correctness of the story as told by the prosecutrix. We find it difficult to hold the prosecutrix in the case as one on whose testimony an implicit reliance can be placed-. 15. For the foregoing reasons the appeals are allowed. The conviction of the accused appellants as recorded by the trial Court and upheld by the High Court is set aside. The accused-appellants are acquitted of the charges framed against them." 10. In Vimal Suresh Kamble v. Chaluverapinake Apal S.P. and another, 2003 SCC (Cri.) 596, the Honble Apex Court in a case of acquittal of the accused by High Court in a rape case, held as under:— "21. On an overall appreciation of the evidence of the prosecutrix and her conduct we have come to the conclusion that PW 1 is not a reliable witness. On an overall appreciation of the evidence of the prosecutrix and her conduct we have come to the conclusion that PW 1 is not a reliable witness. We, therefore, concur with the view of the High Court that a conviction cannot be safely based upon the evidence of the prosecutrix alone. It is no doubt true that in law the conviction of an accused on the basis of the testimony of the prosecutrix alone is permissible, but that is in a case where the evidence of the prosecutrix inspires confidence and appears to be natural and truthful. The evidence of the prosecutrix in this case is not of such quality, and there is no other evidence on record which may even lend some assurance, short of corroboration that she is making a truthful statement. We, therefore, find no reason to disagree with the finding of the High Court in an appeal against acquittal. The view taken by the High Court is a possible, reasonable view of the evidence on record and, therefore, warrants no interference. This appeal is dismissed." 11. A perusal of the statement of the prosecutrix and other material on record clearly reveals that the evidence of the prosecutrix is not confidence inspiring and reliable. It is not in dispute but is admitted by PW-3, PW-4 and PW-5 that the elder sister of the prosecutrix was engaged to the brother of the accused but the engagement broke. Though denied by the prosecutrix, it is a fact admitted by her brother (PW-4) and her sister-in-law (PW-5) that after the aforesaid engagement had broken, the family of the accused and that of the brother of the prosecutrix are not on visiting and speaking terms with each other. Denial of this fact, by the prosecutrix clearly reveals that she can tell lies if they suit her. In any case what is clear from the statements of PW-4 and PW-5 is that the families of the accused and that of the brother of the prosecutrix were not on visiting and speaking terms with each other at the time of the occurrence. In such a situation, there was no occasion for the prosecutrix to care for the call of the accused and to go to him. There could not be any exchange of messages between the families who were not on visiting and speaking terms with each other. 12. In such a situation, there was no occasion for the prosecutrix to care for the call of the accused and to go to him. There could not be any exchange of messages between the families who were not on visiting and speaking terms with each other. 12. It clearly emerges from the records that the prosecutrix never made a voluntary disclosure of the occurrence to anyone including her brother and sister-in-law. The prosecutrix herself admits that she did not disclose the occurrence to her brother and Bhabi. It is stated by the prosecutrix that Banti and PW-6 disclosed the occurrence to her sister-in-law (PW-5). However, according to PW-5, she came to know about the occurrence from one Gangi. The prosecutrix has further stated that she had informed her sister-in-law about the occurrence on the second day which version is not supported by anything on the record. Thus, it cannot be said that the prosecutrix voluntarily and within reasonable time divulged the occurrence. 13. The admitted strained relations between the family of the prosecutrix and that of the accused and the delay in reporting the occurrence to the police, are the factors which also create doubt about the truthfulness of statement of the prosecutrix. Therefore, her evidence is not confidence inspiring and thus could not be acted upon to convict the accused unless there is other independent evidence to lend assurance to her statement. 14. According to the prosecutrix, the occurrence of rape was witnessed by Banti and PW-6. Banti, who allegedly was eye-witness of the occurrence, has not been produced and examined by the prosecution from which an inference adverse to the case of the prosecution can be legitimately drawn. PW-6 has not supported the prosecution case at all. According to her, she is unaware of the commission of the offence and did not see the accused and the prosecutrix in the jungle at the relevant time. In her cross-examination, she has categorically denied the prosecution case as a whole. She is not shown to be a near relation of the accused nor any other reason is shown which could lead her to make false statement on oath to help the accused. Therefore, non-corroboration of the statement of the prosecutrix by PW-6, the alleged eye-witness, multiplies the suspicion about the truthfulness of the statement of the prosecutrix. 15. She is not shown to be a near relation of the accused nor any other reason is shown which could lead her to make false statement on oath to help the accused. Therefore, non-corroboration of the statement of the prosecutrix by PW-6, the alleged eye-witness, multiplies the suspicion about the truthfulness of the statement of the prosecutrix. 15. The statement of the prosecutrix does not find support even from medical evidence. It is case of the prosecution itself that the alleged occurrence took place on 23.4.1997 at about 11.00 a.m. and the prosecutrix was medically examined by PW-1 on 28.4.1997 at 12.40 p.m., i.e. after five days of the occurrence. No doubt, PW-1 has opined vide MLC Ext. PW-l/B and has also stated on oath that the prosecutrix was exposed to coitus but her further opinion is that the prosecutrix was exposed to coitus more than seven days before and injury found on her person was also of the duration of more than a week. In view of this opinion, the act of coitus with the prosecutrix is not connected with the alleged commission of rape by the accused with the prosecutrix. 16. The report of the Chemical Examiner Ext. PW-ll/C, relied as a corroborative piece of evidence by the learned Sessions Judge, is also of no help to the prosecution. As per the report Ext. PW-11/C, one Salwar and one shirt were received in the laboratory with the seal of the doctor. It is this Salwar on which human blood and semen stains were ditacted. There is, however, no evidence on the record as to from where this Salwar was collected/taken in possession and by whom and under what circumstances and who sent it to the laboratory for analysis. There is nothing in the MLC Ext. PW-1 /B or in the statements of PW-1 who medically examined the prosecutrix or the prosecutrix or the Investigating Officer about taking into possession of this Salwar. The clothes the prosecutrix was wearing at the time of the occurrence had admittedly been washed by her before her medical examination, therefore, apparently there was not even a compelling reason to take in possession the clothes of the prosecutrix. The police, no doubt, took the clothes of the prosecutrix which she was wearing at the time of the occurrence, in possession vide memo. Ext. The police, no doubt, took the clothes of the prosecutrix which she was wearing at the time of the occurrence, in possession vide memo. Ext. PW-8/ A. These clothes were sealed with seal "K" and it appears that these clothes were sent for chemical analysis but as per the report Ext. PW-11/C, human blood was found in the Salwar but nothing incriminating was found on the remaining article. It, thus, remains a mystery as to how the Salwar on which human blood and semen stains were found on chemical examination is connected with the commission of the offence. The situation in fact raises a very important question, as to under what circumstances semen stains have been found on the Salwar which was sent to the laboratory under the seal of the doctor and which admittedly the prosecutrix was not wearing at the time of the occurrence. The only answer to this question is that the prosecutrix had been indulging in sexual acts before and/or after the occurrence and that can be the only reason for finding semen on her Salwar which she was not admittedly wearing at the time of the occurrence. Thus, the chemical report instead of lending any assurance to the version of the prosecutrix, creates grave doubt about her version. 17. The conduct of the prosecutrix in narrating the occurrence to her sister-in-law and her brother relied by the learned Sessions Judge as a circumstance lending assurance to the statement of the prosecutrix, could not be used as such for the simple reason that the prosecutrix never made a voluntary disclosure of the alleged occurrence to anyone as is her admitted case. Had she made a voluntary disclosure about the occurrence immediately after the occurrence, only then this type of conduct on her part could have been a relevant circumstance and not what she was forced on enquires to divulge which may or may not be true. 18. Regarding age of the prosecutrix, the learned Sessions Judge himself has not come to the conclusion that at the relevant time the prosecutrix was below 16 years of age. However, he convicted the accused on the premises that the accused committed sexual intercourse with the prosecutrix without her consent and against her will. 18. Regarding age of the prosecutrix, the learned Sessions Judge himself has not come to the conclusion that at the relevant time the prosecutrix was below 16 years of age. However, he convicted the accused on the premises that the accused committed sexual intercourse with the prosecutrix without her consent and against her will. The conclusion of the learned Sessions Judge that there is no reliable evidence on record to hold that the prosecutrix was below 16 years of age, is unassailable. The opinion about her skeleton age vide Ext. PA that her age at the relevant time was between thirteen to fifteen-and-a-half years is a bare opinion which cannot be taken for guaranteed and margin of two years on either side has to be given. Once such margin is given, the skeleton age of the prosecutrix at the material time could be upto seventeen-and-a-half years. In such a situation, an inference which is favourable to the accused, has to be accepted. However, there are reasons to disbelieve this opinion. It is given by PW-12. He is not the person who have taken the X-ray films on the basis of which he has given the opinion. The person who had taken the X-ray films, has not been examined. According to PW-12, the X-ray films were produced before him by the police. The police official who produced these films before him, has also not been examined and is not known. Thus, there is no evidence on record to show that the X-ray films examined by PW-12 for giving his opinion about the skeleton age of the prosecutrix in fact were of the prosecutrix. On this ground alone, the opinion given by PW-12 cannot be relied as an opinion about the skeleton age of the prosecutrix. 19. Other piece of evidence relied upon by the prosecution to prove the age of the prosecutrix is certificate mark-X issued by Sita Ram (PW-7). This certificate has not been admitted in evidence and has simply been marked and rightly so because it is not disclosed in the evidence of PW-7 as to on what basis he has issued this certificate. Other similar certificate Ext. PB has been issued by Satpal (PW 13). This certificate has not been admitted in evidence and has simply been marked and rightly so because it is not disclosed in the evidence of PW-7 as to on what basis he has issued this certificate. Other similar certificate Ext. PB has been issued by Satpal (PW 13). It is admitted case of PW-13 that he had issued this certificate on the directions of the local police and it relates to Sunita, daughter Anant Ram, resident of village Shehad and that the report about this date of birth was lodged by one Nagnu Ram. The undisputed particulars of the prosecutrix as given in the FIR Ext. PW-3-A reveal that the name of her village is "Sarad" and not "Shehad". It may also be pointed out that apart from the names of the village, there is no explanation as to who was/is Nagnu Ram and under what circumstances he reported the birth of the prosecutrix to the Panchayat nor there is evidence to show that he has the correct knowledge of the date of birth of the prosecutrix. Therefore, on the basis of Ext. PB, age of the prosecutrix cannot be determined. 20. The statement of the prosecutrix that she was forcibly subjected to sexual intercourse by the accused has already been held to be shrouded with grave doubts about its truthfulness. Therefore, there is no cogent, reliable, trustworthy and confidence inspiring evidence on the record to lend assurance to the version of the prosecutrix. The evidence on record, as already seen here-in-above, contradicts her version on most material particulars. 21. It may also be pointed out that there is admitted delay of five days in reporting the occurrence to the police. As already stated herein-above, the families of the accused and that of the prosecutrix were not on good terms with each other. There is no evidence to satisfactorily explain five days delay in reporting the occurrence to the police. No doubt, length of delay in reporting the crime is not fatal to the case of the prosecution in case it is explained, however, even lesser duration of delay in reporting the matter and there being no explanation the delay will prove fatal to the case because the possibility of deliberations, consultations and concoctions became stronger. No doubt, length of delay in reporting the crime is not fatal to the case of the prosecution in case it is explained, however, even lesser duration of delay in reporting the matter and there being no explanation the delay will prove fatal to the case because the possibility of deliberations, consultations and concoctions became stronger. It appears to be more so in the case in hand for the reason that the material witnesses in this case, namely, the prosecutrix and PW-5 had admitted that before they made their statements in the Court, the police had informed them of the facts to be stated by them. Though it is claimed by the prosecutrix that it was just refreshing her memory, but this is not the lawful way of refreshing memory of a witness but a case of tutoring. Refreshing memory of a witness is permissible in law and it is done during the course of the statement of the witness in the Court by permitting the witness to refer to the relevant document. However, telling the witness to make a particular statement when they are outside the Court and awaiting for making statement, is not "refreshing the memory of the witness" but is an unlawful method of making a witness to state as may be desired. Thus, the delay in reporting the occurrence in this case, which remained unexplained, is also fatal to the case of the prosecution. 22. In view of the above discussion, neither the statement of the prosecutrix is confidence inspiring and trustworthy nor there is any other evidence lending any assurance regarding truthfulness of her version. Therefore, on the basis of the evidence relied upon by the learned Sessions Judge to convict the accused, the conviction could not be based. Therefore, the impugned conviction and sentence are liable to be set aside. 23. As a result, this appeal is allowed and the impugned conviction and sentence are set aside. The accused is acquitted of the charge against him. The accused is presently in jail undergoing sentence of imprisonment awarded to him, therefore, he be set at liberty forthwith if not required to be detained under any other process of law. The fine, if recovered, be refunded to the accused. Appeal allowed.