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2003 DIGILAW 146 (HP)

SUBHASH CHAND PAPPI v. STATE OF H. P.

2003-06-11

M.R.VERMA, R.L.KHURANA

body2003
JUDGMENT M.R. Verma, J.—This appeal is directed against the judgment dated 4.5.2001 passed by the learned Sessions Judge, Bilaspur whereby the appellant/ accused (hereafter referred to as the accused) has been convicted under Sections 376 and 506 IPC and has been sentenced to rigorous imprisonment for 10 years and fine of Rs. 2,000 and in default of payment of fine to undergo rigorous imprisonment for six months under Section 376 IPC and to undergo rigorous imprisonment for one year and to pay fine of Rs. 1,000 and in default of payment of fine to undergo further rigorous imprisonment for three months under Section 506 IPC. 2. Case of the prosecution against the accused in brief is that the prosecutrix (PW-1) is a resident of village Jhabola. About 7 or 8 months before the lodging of the FIR she had gone to the shop of the accused in village Gugga at a distance of about one kilometer from her house to purchase some domestic articles. When she was coming back from the shop the accused caught hold of her near Government Primary School, Jhabola and committed rape on her after gagging her mouth with her shawl (Chadru) disabling her to raise cries. After the commission of the offence the accused threatened the prosecutrix that in case she divulged the occurrence to anyone she would be killed by him. Because of fear of the accused prosecutrix did not narrate the incident of rape to anyone. About 15 days thereafter when the prosecutrix was going to the shop of Nand Kishore the accused met her on the way caught hold of her gagged her mouth with her shawl and subjected her to rape and again threatened the prosecutrix not to divulge the occurrence to anyone otherwise she would be done to death. As a result of such sexual acts committed by the accused prosecutrix conceived. Her mother Julmi Devi (PW-2) apprehending that prosecutrix was carrying a child in her womb got her examined from Banto (PW-9) a local Dai who confirmed the conception by the prosecutrix. PW-2 made enquiries from the prosecutrix who then narrated the aforesaid incidents to her. Thereafter the matter was reported to the police by the prosecutrix and PW-2 on 4.2.2000 and on the basis of their report FIR Ext. PA was registered at Police Station, Talai and the investigation followed. PW-2 made enquiries from the prosecutrix who then narrated the aforesaid incidents to her. Thereafter the matter was reported to the police by the prosecutrix and PW-2 on 4.2.2000 and on the basis of their report FIR Ext. PA was registered at Police Station, Talai and the investigation followed. The prosecutrix was got medically examined and vide MLC Ext. PJ issued by Dr. Sanjay Dhiman (PW-4) the prosecutrix was found carrying pregnancy of 30 to 32 weeks. Radiologists opinion Ext. PL about the skeleton age of the prosecutrix was obtained and it was opined that she was more than 14 years but less than 16 years at the time of giving of the opinion. The certificate regarding date of birth of the prosecutrix Ext. PM and her School Leaving Certificate Ext. PO were procured and taken in possession according to which her date of birth is 17.12.1986 and thus at the time of rape the prosecutrix was found 13 years old. The accused after arrest was got medically examined and Dr. N.K. Sankhyayn (PW-3) vide MLC Ext. PE opined that there was nothing to suggest that the accused was unable to perform sexual intercourse. During the course of investigation, the prosecutrix made a supplementary statement claiming that one Pawan Kumar had also committed rape on her, therefore, said Pawan Kumar was also arrayed as an accused in the case. On completion of the investigation, the Officer Incharge Police Station, Talai submitted a charge-sheet against the accused and said Pawan Kumar. On consideration of the charge-sheet, the trial Court directed that Pawan Kumar be tried separately. A charge under Sections 376 and 506 IPC was framed against the accused who pleaded not guilty and claimed to be tried. 3. To prove the charge against the accused, prosecution examined 13 witnesses. Statement of the accused under Section 313 Cr.P.C. was recorded wherein he claimed to be innocent and having been falsely implicated in the case at the instance of Mohinder Singh, Lekh Ram, Pritam Singh, Vijay Kumar and Kuldip Singh. The accused led defence evidence and examined Nathu Ram (DW-1). 4. On the basis of the evidence on record, the learned trial Judge held the accused guilty of the commission of offences punishable under Sections 376 and 506 IPC and accordingly convicted and sentenced him as aforesaid. 5. The accused led defence evidence and examined Nathu Ram (DW-1). 4. On the basis of the evidence on record, the learned trial Judge held the accused guilty of the commission of offences punishable under Sections 376 and 506 IPC and accordingly convicted and sentenced him as aforesaid. 5. We 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. It was contended by the learned Counsel for the accused that the conviction of the accused is based entirely on conjectures and surmises whereas statement of the prosecutrix, who had been making contradictory statements at various stages, is not reliable at all and there is nothing on the record to land any assurance to her testimony, therefore, the impugned conviction and sentence are liable to be set aside and the accused is entitled for acquittal. 7. On the other hand, the learned. Additional Advocate General contended that conviction in a case under Section 376 IPC can be based on the sole testimony of the prosecutrix. In the case in hand, the prosecution case is not only fully supported by the cogent and reliable evidence of the prosecutrix but there is other material also on record which lends assurance to the statement of the prosecutrix, therefore, the impugned conviction and sentence do not call for any interference. 8. By now it is well settled that conviction of a person accused of the commission of rape can be based on the sole testimony of the prosecutrix because she is not an accomplice but victim of the offence, hence, the injured person. Her evidence cannot be suspected also for the reason that no self-respecting woman will come forward to lower her dignity and honour by making false allegations of rape on her. It is also, however, equally settled that conviction can be based on the statement of the prosecutrix only if her evidence is cogent, reliable and confidence inspiring. In case her evidence is not so, the Court will have to look for some material on record lending assurance short of corroboration to her testimony. In case 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. 9. In case 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. 9. In Jai Nand v. State of H.P. (Criminal Appeal No. 398 of 1997, decided on 26.11.1999) a Division Bench of this Court while dealing with the value of the statement of the prosecutrix in a rape case held as under: "16. We are not unmindful of the proposition of law that in cases of rape and abduction/kidnapping the statement of the prosecutrix is not at par with that of an accomplice. In the ordinary course of human conduct, in a Hindu society such allegations will not be made falsely. Therefore, the statement of the prosecutrix, if otherwise trustworthy, can be made basis for conviction without seeking corroboration of her statement but only an assurance from the attendant circumstances. The learned Sessions Judge has believed the statement of the prosecutrix ignoring the "minor contradictions". He appears to have further taken into account the statement of the prosecutrix Ext. PW-l/A wherein, according to the learned Sessions Judge, the prosecutrix has given "all the details of the incident happened with her since 30.5.1996 till 5.6.1996 when she was dropped by the accused at Sunehla Khad. We are of the considered view that the learned Sessions Judge had illegally relied on the statement Ext. PW-l/A and has wrongly relied on the statement of the prosecutrix. 39. In view of the above discussion, it can be safely concluded that the statement of the prosecutrix is not cogent, consistent, reliable and trustworthy nor there is any other cogent and reliable evidence on the record to prove the charge against the accused persons. Therefore, the charge against the accused cannot be held proved and the impugned conviction, and sentence cannot be sustained." 10. In Om Prakash v. State of H.P. 2000 Cri.L.J. 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 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." 11. 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. 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. 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." 12. 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. 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." 13. It is in view of the above settled position in law that the present appeal has to be considered and examined. 14. It is admitted case of the parties that Pawan Kumar, named by the prosecutrix as the other rapist and was ordered to be separately tried for the commission of rape on the prosecutrix was so tried and had since been acquitted of the charge and no appeal has been preferred by the State against his acquittal. 14. It is admitted case of the parties that Pawan Kumar, named by the prosecutrix as the other rapist and was ordered to be separately tried for the commission of rape on the prosecutrix was so tried and had since been acquitted of the charge and no appeal has been preferred by the State against his acquittal. Thus, his acquittal has become final. This aspect of the matter has also to be kept in view in considering the present appeal. 15. It may be pointed out that the age of the prosecutrix had not been disputed at the time of hearing of the appeal. Even otherwise in view of the certificate Ext. PM issued by the Local Registrar (Birth and Death) Subhash Kumar (PW-6) and the School Leaving Certificate Ext. PO issued by Jagdish Singh (PW-12) it is proved that the date of birth of the prosecutrix is 17.12.1986. It is indisputably established in view of the statements of PW-1, PW-2, Banto Devi (PW-9) and Dr. Sanjay Dhiman (PW-4) that in the first week of February 2000 the prosecutrix was having pregnancy of 30 to 32 weeks. Therefore, she had been subjected to sexual intercourse 30 to 32 weeks before February 2000. Sexual act with her at that time will be rape in view of her age at that time. Therefore, the only question requiring determination in the case is whether it was the accused who committed sexual intercourse with the prosecutrix. 16. The prosecutrix (PW-1) in her examination-in-chief has stated that the accused subjected her to rape twice. Once near Primary School, Jhabloa and after about 15 days by the side of the path when she was on way to the shop of Nand Kishore. This version is contradictory of the contents of FIR Ext. PA and her supplementary statement Ext. PB. As per the contends of Ext. PA accused had raped her thrice whereas according to the contents of Ext. PB accused raped her 5/6 times. The prosecutrix, however maintains in her evidence that before and after the aforesaid two occasions she was neither raped by anyone nor she had sexual intercourse with anyone. It is admitted case of the prosecution that during investigation prosecutrix revealed that Pawan Kumar son of her elder uncle had also raped her 7 or 8 times. She had said so vide Ext. PB. It is admitted case of the prosecution that during investigation prosecutrix revealed that Pawan Kumar son of her elder uncle had also raped her 7 or 8 times. She had said so vide Ext. PB. The prosecutrix in her statement in the Court has denied commission of rape on her by Pawan Kumar and claimed that she had made false allegation against him at the instance of one Rattan Chand. In her cross-examination, she states that accused committed rape on her in winter and after about 15 days thereof she left school. As per her School Leaving Certificate Ext. PO she left School on 23.6.1999. If she left school after about 15 days of the rape, her statement that she was raped by the accused in winter is rendered incorrect. 17. As per her further version in the cross-examination her mother (PW-2) and Sulochna after coming to know of the pregnancy had gone to one Vijay Kumar who advised them to report the matter to the police. Thus, PW-2 and Sulochna went to Police Station and reported the matter vide Ext. PA. It is case of the prosecution that the prosecutrix had accompanied her mother (PW-2) to the Police Station and it was the prosecutrix who lodged the report. But prosecutrix has a different story to tell. According to her only PW-2 and Sulochna had gone to the Police Station and lodged the report Ext. PA and she was later on taken to the Police Station by the Police and Ext. PA was got signed from her and on the next day her brother also signed the report. As per Ext. PA it is not the version that when the prosecutrix was raped for the second time she was on way to the shop of Nand Kishore as stated by the prosecutrix but the version therein is that even at that time she had gone to the shop of the accused and was raped near the School. As per evidence of PW-2 she had gone to Jagdish (PW-5) Pradhan of the Panchayat to complain about the occurrence with a written complaint and not to Vijay Kumar as stated by the prosecutrix. PW-5 admits that PW-2 had come to him with a written application which he returned to her and asked her to report the matter to the police. PW-5 admits that PW-2 had come to him with a written application which he returned to her and asked her to report the matter to the police. S.H.O. Anjani Kumar (PW-13), admits that a complaint was received from the prosecutrix which was shown to him by PW-2 and he had read the contents thereof, however, he did not remember the contents of such application. In fact this application should have been taken on record and being the first version of occurrence given by the prosecutrix FIR should have been registered on its basis. This has, however, not been done for the reasons best known to PW-13. 18. The prosecutrix in her cross-examination admits her signatures on Ext. DA which purports to be an application dated 4.10.2000 addressed by her to the Deputy Commissioner Bilaspur, wherein she has averred that the accused and Pawan Kumar had not committed rape on her and the report against them had been lodged by her and her mother at the instance of Vijay Kumar and Mohinder Singh who had enmity with the accused and said Pawan Kumar. It has further been averred that the prosecutrix and her mother (PW-2) had informed said Vijay Kumar and Mohinder Singh that a person who appeared to be a Punjabi had committed rape on the prosecutrix. They scribed a paper of their own accord and it was given at the Police Station. The prosecutrix and her mother (PW-2) are, however, not aware as to what was written in the said paper and what had been recorded in the FIR. The S.H.O. concerned (PW-13) admits existence of some application which was shown to and read by him. It remains a mystery as to what were the contents of that application and what ultimately happened to it. An inference adverse to the prosecution can legitimately be drawn from these facts. 19. The prosecutrix at one stage of her cross-examination when confronted with the contents of Ext. DA admittedly signed by her denied such contents but at a later stage came forward to depose that she had written in Ext. DA that the accused and Pawan Kumar had not committed rape on her. She goes on to further admit that she had written to Deputy Commissioner and also sent an affidavit signed by her to the High Court stating that the accused and Pawan Kumar had not committed rape on her. DA that the accused and Pawan Kumar had not committed rape on her. She goes on to further admit that she had written to Deputy Commissioner and also sent an affidavit signed by her to the High Court stating that the accused and Pawan Kumar had not committed rape on her. There is not even a suggestion much less evidence to show that Ext. DA was executed and affidavit sent to the High Court was sworn by the prosecutrix under any duress, threat, misrepresentation, fraud or misconception. 20. The evidence of the prosecutrix thus being self contradictory and self destroying is utterly unreliable to connect the accused with the commission of the offence. 21. PW-2, mother of the prosecutrix in her examination-in-chief did not support the prosecution version. She was thus cross-examined by the Public Prosecutor wherein she admitted that by virtue of a compromise with the accused she had received a sum of Rs. 5,000 from the accused, therefore, changed her statement and asked all other witnesses to change their statements about involvement of the accused and Pawan Kumar in the commission of rape. However, in the cross-examination by the accused she had denied the case of the prosecution as a whole and has claimed that the prosecutrix did not disclose to her the names of the accused and Pawan Kumar as the rapists, that the case was reported to the police by Jagdish Kumar and that the accused and Pawan Kumar are innocent. Those admissions about innocence of the accused are in conformity with the contents of her affidavit Ext. PC which are similar to those of Ext. DA. There is nothing to prove that Ext. PC is not voluntarily sworn by her. Thus this witness had also made self destroying statements at different stage and her evidence is also highly unreliable to connect the accused with the commission of the offence. 22. Said Pawan Kumar had admittedly been tried on a charge of rape on the basis of accusations made against him by PW-1 and PW-2 and had admittedly been acquitted. The accusations against him and similar accusations against the accused arose in similar situation though earlier Pawan Kumar was not named as the rapist. 22. Said Pawan Kumar had admittedly been tried on a charge of rape on the basis of accusations made against him by PW-1 and PW-2 and had admittedly been acquitted. The accusations against him and similar accusations against the accused arose in similar situation though earlier Pawan Kumar was not named as the rapist. As per PW-2 when it was learnt that in case on medical examination the child in the womb of the prosecutrix was not found to be that of the accused but was found of Pawan Kumar they would be hauled up. It was for this reason that Pawan Kumar was also named as the rapist. It was thus because of fear of medical test disclosing him to have fathered the child that Pawan Kumar had to be named as the rapist. This could happen only when there was a strong belief that child must have been fathered by said Pawan Kumar. Pawan Kumar is first cousin of prosecutrix, therefore, the possibility of initially shifting the blame to the accused cannot be ruled out. In any case acquittal of Pawan Kumar lends crendence to the claim of the accused that he is innocent. 23. There is no reliable incriminating evidence against the accused. This is not a case where prosecutrix may be treated as a truthful witness. The charge against the accused is thus not proved beyond reasonable doubts, therefore, the impugned conviction and sentence cannot be sustained. 24. As a result, this appeal is allowed and the impugned conviction and sentence are set aside and the accused is acquitted of the charge against him. The accused, who is presently in Jail undergoing the sentence of imprisonment awarded to him be set at liberty forthwith. Fine, if recovered, be refunded to him. Appeal allowed.