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Himachal Pradesh High Court · body

2004 DIGILAW 3 (HP)

SURAM DASS v. STATE OF HIMACHAL PRADESH

2004-01-01

M.R.VERMA

body2004
JUDGMENT M.R. Verma, J.—This appeal is directed against the judgment dated 30.8.2003 passed by the learned Sessions Judge, Kinnaur Sessions Division at Rampur, whereby the appellant-accused (hereafter referred to as the accused) has been convicted under Sections 342 and 511 read with Section 376 of the Indian Penal Code and has been sentenced to rigorous imprisonment for one year and fine of Rs. 1000 and in default of payment of fine to undergo further rigorous imprisonment for two months under Section 342, Indian Penal Code, and rigorous imprisonment for 7 years and fine of Rs. 20,000 and in default of payment of fine to undergo further rigorous imprisonment for one year under Section 511 read with Section 376 of the Indian Penal Code. 2. Case of the prosecution in brief is that on 25.7.2002 when the prosecutrix (PW-1) was accompanied by Indra Devi (PW-2), the accused who was then working as a B.O. at Sungra called the prosecutrix inside his residential room and closed the door. On hearing the cries of the prosecutrix, PW-2 Indra informed Shitla Devi (PW-3) about the occurrence who rushed to the spot. On reaching the spot it was found that the accused has undressed himself and the prosecutrix and tried to commit rape on her. On enquiry prosecutrix disclosed to PW-3 that she was called inside the room by the accused on the pretext that he will give her sweets and when she was weeping he was pressing her neck. The matter was reported by PW-3 at Police Station Bhavanagar vide a written report Ex. PW 3/B on the basis of which FIR Ex. PW 10/A came into being and investigation followed. PW-3 also presented a document (Ex. PW 3/A) containing admission of the accused to the police. The prosecutrix was got medically examined and Dr. Naveen Gupta who examined the prosecutrix issued the MLC Ex PW 8/A mentioning therein that there was no sign of injuries on the person of the prosecutrix and her hymen was intact. The clothes of the prosecutrix and her vaginal smear were taken by PW-8 into possession for being sent for chemical examination. On arrest, the accused was also got medically examined and the M.L.C. in this regard is Ex. PW 5/A. As per the opinion given by PW 5, who medically examined the accused, the accused was found sexually potent. The clothes of the prosecutrix and her vaginal smear were taken by PW-8 into possession for being sent for chemical examination. On arrest, the accused was also got medically examined and the M.L.C. in this regard is Ex. PW 5/A. As per the opinion given by PW 5, who medically examined the accused, the accused was found sexually potent. PW-5 took in possession the pubic hair and the underwear of the accused for being sent for chemical analysis. A bed-sheet on which the prosecutrix was laid by the accused for committing rape upon her was taken in possession by the Investigating Officer vide Memo. Ex. PW 7/A. The material taken in possession by PW-5 and PW-8 for the purpose of chemical analysis and the bed sheet taken in possession vide Memo. Ex. PW 7/A were sent for chemical analysis and the report of the Assistant Director, State Forensic Science Laboratory, is Ex. PW 11/A. On being satisfied about the involvement of the accused in the commission of the offences, the Officer In charge of the concerned Police Station submitted a charge sheet against the accused who came to be tried by the learned Sessions Judge on a charge under Sections 342,376 and 511 read with Section 376, Indian Penal Code. 3. To prove the charge against the accused, prosecution examined as many as 11 witnesses. Statement of the accused under Section 313 of the Code of Criminal Procedure was recorded wherein he denied the prosecution case and claimed that on 22.7.2002 he had gone to the Police Station to lodge the report but the police refused to record his report and he was beaten up by the Police officials and a false case was instituted against him in connivance with one Krishan Bahadur who used to allow the vehicles to pass through check-post without any checking despite having been asked by the accused not to do so. The accused led defence and examined Tula Ram (DW-1), Lobha Ram (DW-2) and Sher Singh (DW-3). 4. On consideration of the evidence on record, the learned Sessions Judge while acquitting the accused of the head of charge under Section 376, IPC, convicted and sentenced the accused, as aforesaid. Hence, this appeal by the accused. 5. I have heard the learned Counsel for the accused and the learned Deputy Advocate General for the respondent-State and have also gone through the records. 6. Hence, this appeal by the accused. 5. I have heard the learned Counsel for the accused and the learned Deputy Advocate General for the respondent-State and have also gone through the records. 6. Be it stated at the very outset that the accused had been acquitted of the head of charge under Section 376 IPC and State has not preferred any appeal against acquittal, therefore, such acquittal has become final. 7. The legality of conviction and sentence awarded to the accused has been assailed by the learned Counsel for the accused on the ground that there is no cogent, and reliable evidence to hold the accused guilty for commission of offences for which he has been convicted. It was contended that neither the prosecutrix nor the medical evidence lend credence to the case of the prosecution. Moreover, there is delay in lodging the FIR which has not been satisfactorily explained and the case has been engineered against the accused simply because Krishan Bahadur husband of the complainant (PW-3) had been working under the accused at the Check Post where he was snubbed by the accused for not discharging his duties properly and was then transferred from Bhawa Nagar, where his family members are residing, to Nichar and it is with a view to settle score with the accused that the present case has been engineered against the accused. It was further submitted that it was the accused who was beaten up by the complainant and when he went to the Police Station to lodge the report instead of recording his report at the behest of the complainant the accused "Was beaten up by the police and made to execute the confessional statement Ext. PW-3/A, therefore, this document could not be read as evidence against the accused. Thus, there is no cogent and reliable evidence against the accused and his conviction and sentence are liable to be set aside. 8. Per contra, the learned Deputy Advocate General contended that in view of the statements of PW-2 and PW-3 read with confessional statement Ext. PW-3/A admittedly executed by the accused the heads of charges under Sections 342 and 511/376 IPC are duly proved against the accused and he has been rightly convicted and sentenced and the impugned judgment does not call for any interference. 9. PW-3/A admittedly executed by the accused the heads of charges under Sections 342 and 511/376 IPC are duly proved against the accused and he has been rightly convicted and sentenced and the impugned judgment does not call for any interference. 9. It can be said without any fear or contradiction that the best witness of any occurrence is the victim. In case the victim does not support the version regarding commission of any offence against him or her the version against the accused will definitely be rendered highly suspicious and unreliable. In the case in hand, PW-1 the alleged victim who was examined on oath in her evidence has not deposed even a single incriminating sentence against the accused. She has not even identified the accused as a person known to her and as the perpetrator of the alleged offences against her. She has not stated anything about the occurrence. Be it stated that the prosecutrix when examined by the Court to find out whether she understood the sanctity of oath or not she had given rational answers to the questions put to her. When she was asked to state as to what is truth and what is false she has clearly and unambiguously stated that a man sins if he speaks false. A person who has given such rational answers to the questions put to her to determine as to whether she is aware of the sanctity of oath or not can be expected only to state the true facts and not to conceal them. Thus, the prosecutrix having not supported the prosecution case at all the version of the prosecution is rendered highly suspicious. 10. PW-2, the alleged eye-witness of the occurrence, has supported the prosecution version regarding commission of the offences for which the accused has been convicted. She has, however, been examined without oath after putting questions to her to ascertain whether she understands the sanctity of oath or not and rightly so because she has specifically stated that she could not state as to what is true and what is false, therefore, her version cannot be taken for granted, more so because of her being a child who can easily be tutored to state what may not be true. There are other reasons also for not believing the statement of this witness which I shall discuss a little later. 11. There are other reasons also for not believing the statement of this witness which I shall discuss a little later. 11. PW-3 Shitla Devi is wife of Krishan Bahadur and had reported the occurrence to the police. It is admitted by her and also by PW-2 that Krishan Bahadur was working with the accused at the Check Post for some time and was thereafter transferred to Nichar. It is case of the accused that Krishan Bahadur was not discharging his duties properly and he had asked him to perform his duties properly. In the given circumstances it does not appear improbable that Krishan Bahadur must be holding the accused responsible for his transfer from Bhawa Nagar, where his family was residing, to Nichar and this can be a probable cause for PW-3 to lodge a false complaint against the accused. Apart from this there are various improbabilities which render the statements of PW-2 and PW-3 unreliable. 12. It is admitted case of the prosecution witnesses that the place of occurrence is not a secluded place but is just close to the Check Post and the National Highway through which many vehicles and persons pass through. It is also admitted case of the prosecution that the accused while committing the offences had just closed the door of the room where the alleged occurrence took place and had not cared even to bolt it or to close the window. It is improbable that at a place frequented by pedestrians and those traveling by vehicles the accused who intended to commit rape on the prosecutrix will not bolt the door of the room from inside and leave the window of the room open. In the event of the accused intending to commit rape on the prosecutrix after having taken the prosecutrix inside the room in the presence of PW-2 whom he could not catch hold of as is stated by PW-2, in the ordinary course of human conduct he would have bolted the door and at least closed the window. 13. The situation inside the room has been described by PW-2 and PW-3 in a parrot like manner. 13. The situation inside the room has been described by PW-2 and PW-3 in a parrot like manner. No doubt these are the contradictions in the statements of the witnesses which raise doubt about their veracity but if a situation is described in a photographic manner by the witnesses that will also tender the statements of the witnesses doubtful because after lapse of some time it is not possible to make identical statements but some variations are bound to occur in the version of even those who had seen the occurrence. 14. The statements of both PW-2 and PW-3 are exaggerated and contradicted by medical evidence. PW-2 claims that when she saw the occurrence through the window she told the accused to leave the prosecutrix but the accused did not oblige, therefore, she went to inform PW-3 about the occurrence. It is improbable that even after the accused was noticed by PW-2 while preparing to commit the offence he did not make any attempt to bolt the door or close the window of the room. 15. It is common version of PW-2 and PW-3 that when PW-3 came on the spot the accused left the room towards Bazar when he was wearing only an underwear and a Banyan which is also improbable. 16. It is stated by PW-2 that she saw blood coming out of the vagina of the prosecutrix. PW-3 has also stated that there was blood on the clothes of the prosecutrix and that as per the version of the prosecutrix the accused had penetrated his penis in her vagina. This version is neither supported by the prosecutrix nor by the medical evidence. 17. The defence of the accused is that he was beaten up by a few women including PW-3 and had gone to the Police Station to lodge a report which was not recorded by the police. It is admitted by PW-3 that she had beaten the accused and the police officials also had beaten him. This admission on the part of the PW-3 also renders the defence, as taken by the accused, as probable. 18. According to the prosecution, the occurrence took place on 22 July, 2002 at about 3 p.m. She FIR in the case was lodged on 25th July, 2002. This admission on the part of the PW-3 also renders the defence, as taken by the accused, as probable. 18. According to the prosecution, the occurrence took place on 22 July, 2002 at about 3 p.m. She FIR in the case was lodged on 25th July, 2002. There is no explanation for the delay in reporting the matter to the police, therefore, the possibility of consultations and deliberations can not at all be ruled out and this unexplained delay in reporting the matter not only multiply the doubts about the veracity of PW-2 and PW-3 but also is fatal to the case of the prosecution. 19. Statement of PW-6 Gian Singh, who admittedly learnt about the incident from PW-3, cannot be relied for the simple reason that whatever he has stated is based on what he learnt from PW-3 whose statement is highly unreliable and from PW-1 who has not made incriminating statement against the accused. There is no other oral evidence to support the version of the prosecution. 20. Vide contents of Ext. PW-3/A the accused had admitted having done "Chhed-Chhad" and "Galat Vayohar" with the prosecutrix and that he would pay a sum of Rs. 2000 on 8.8.2002 to PW-3. The prosecution as also the trial Court has heavily relied on this confessional statement of the accused. However, the deeper scrutiny into the matter shows that this is not a voluntary confession and appears to have been brought about in shady circumstances. As per the contents of written complaint lodged by PW-3 Ext. PW-3/B she had enclosed Ext. PW-3/A alongwith her complaint. It is so recorded even in the formal FIR Ext. PW-10/A. The accused has admitted that Ext. PW-3/A is in his handwriting and is signed by him but his defence is that this confession was obtained from him after giving beatings to him by the police officials and his version does not seem to be far from true. According to PW-3 Ext. PW-3/A was given to her by the accused. She has, however, admitted in her cross-examination that this document was given to her in the Police Station and it was written in the Police Station itself. She has specifically admitted that prior to that she had herself beaten the accused and the police officials had also beaten the accused in the Police Station where this document was written. She has, however, admitted in her cross-examination that this document was given to her in the Police Station and it was written in the Police Station itself. She has specifically admitted that prior to that she had herself beaten the accused and the police officials had also beaten the accused in the Police Station where this document was written. It is also admitted case of PW-3 that the accused had gone to the Police Station to lodge a report against her. It is thus evident that this document was brought about by administering beatings to the accused, therefore, cannot be said to be a voluntary confession and could not be used as a piece of evidence to connect the accused with the commission of the offence. 21. In view of the above discussion and the reasons, there is no cogent, reliable and trustworthy evidence on record to prove that the accused confined the prosecutrix and attempted to commit rape on her. Therefore, the impugned conviction and sentence cannot be sustained. 22. As a result, this appeal is allowed and the impugned conviction and sentences awarded to the accused are set aside and he is acquitted of the charge against him. 23. The accused, who is presently in jail undergoing the sentences of imprisonment awarded to him, be set at liberty forthwith and the fine, if recovered, be refunded to him. Cr. A. No. 422 of 2003 6.1.2004 Present; Ms. Sunita Sharma, Vice Counsel for the appellant. Mr. H.K.S. Thakur, Dy. A.G., for the respondent. While going through the circulated copy of the judgment it was noticed that there are some typographical errors in the judgment. The first typographical error is in 8th line of first page of the judgment where instead of fine of Rs. 1,000, Rs. 100 has been typed. The second error is in the 6th line of para No. 7 of the judgment at page-4 where the word "acquitted" has been typed for the word "convicted" and the last typographical error is in 5th line of para-8, at page-5, where the Section has been mentioned as 551 instead of 511. Since all these errors are typographical, therefore, these are ordered to be corrected and have been corrected today under my initials and date.