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Himachal Pradesh High Court · body

2011 DIGILAW 227 (HP)

State of H. P. v. Ramesh Kumar

2011-01-06

R.B.MISRA, SURINDER SINGH

body2011
JUDGMENT Surinder Singh, J Respondents (hereinafter referred to as ‘the accused’, were charged sheeted, tried and acquitted by the learned trial Court in Sessions case No. 39-J/VII/98 decided on 22.12.1999 for the offences punishable under Sections 376 read with Section 34 Indian Penal Code and Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. State felt aggrieved by the acquittal, as such filed the present appeal. 2. In short, the prosecution case, as emerges from the evidence on record, can be stated thus. Prosecutrix aged 26 years was a married woman, belonging to “scheduled caste” having four children, whereas accused persons, are from girth community of her village. (ii) Accused Ramesh Kumar was running a shop and accused Pinta alias Surender Kumar was a Scooter Mechanic. He was a friend of the husband of the prosecutrix, usually cracking jokes with him. (iii) Accused Ramesh Kumar and Kara alias Karam Chand are real brothers having ‘Atta-Chaki’ business in the village. (iv) To earn her livelihood, prosecutrix used to work from morning till evening, in the house of one Mehar Chand at a distance of about 3-4 kilometers, from her house, the path leads through the workplaces of the respondents. (v) It is alleged that on 23.1.1998, while returning from the house of Mehar Chand, in the evening around 6.30 p.m., on way to her house, near the fields, the accused persons met her. They were under the influence of liquor. (vi) Accused Kara @ Karam Chand forcibly lifted her and took her to the nearby fields which was having wheat crop. Prosecutrix offered resistance but in vain. She tried to raise alarm but respondent Kara @ Karam Chand gagged her mouth with his hands and forcibly removed the string of her salwar and committed rape in the field followed by accused Ramesh Kumar. Accused Pinta did not do anything but he kept on standing to guard. Thereafter accused persons left the place and the prosecutrix went to her house. (vii) Around 6.30/ 7 p.m. her husband PW4 Harnam Singh had gone to purchase medicines for gastric trouble and returned around 8.00 p.m. On the way Pinta accused met him in his shop who cracked some joke which he did not like. On reaching home he noticed prosecutrix weeping. He asked the reason, she narrated the whole incident to him. (vii) Around 6.30/ 7 p.m. her husband PW4 Harnam Singh had gone to purchase medicines for gastric trouble and returned around 8.00 p.m. On the way Pinta accused met him in his shop who cracked some joke which he did not like. On reaching home he noticed prosecutrix weeping. He asked the reason, she narrated the whole incident to him. Thereafter both of them went to the Police Station and lodged FIR Ext. PA at 9.10 p.m. (viii) Police immediately got prosecutrix medically examined which was conducted by PW2 Dr. Sushma Sharma, in Community Health Centre, Jawali. She did not find any external injury on any sensitive part of her body but on the examination of the abdomen doctor noticed 20 weeks’ size uterus and on her private parts, doctor found discharge present in the vulval portion. Pubic hair matting was present. Stains were also present on the salwar (Ex.P1) and the shirt (Ex.P2) (printed green plus mustard and white coloured). Vagina admitted two fingers easily. (ix) Wearing apparels of the prosecutrix were sealed and handed over to the Police by the doctor. Doctor also took sample of pubic hair and vaginal smear slides which were sealed and handed over to the Police for semen analysis/examination to Chemical Examiner. However, doctor did not rule out the possibility of sexual intercourse but reserved final opinion till chemical examination report was received. She issued medico legal certificate Ext. PC and on the receipt of the report of the forensic analysis Ext. PD, she opined that sexual intercourse had been committed with the prosecutrix. (x) On 24.1.1998 in the morning around 7.30 a.m. PW7 S.I. Daya Nand visited the spot of alleged incident and found the wheat on the field crushed. There were no residential houses within the area of about 200 yards. He prepared the spot Map Ext. PH and recorded the statements of the witnesses and on the same day, arrested the accused persons. 3. Ramesh Kumar and Kara @ Karam Chand were got medically examined by moving an application Ext. PE. Both of them were found fit to perform sexual intercourse. Their clothes were also sealed and sent for forensic examination. As per forensic report, blood or semens stains were not found on it. 4. 3. Ramesh Kumar and Kara @ Karam Chand were got medically examined by moving an application Ext. PE. Both of them were found fit to perform sexual intercourse. Their clothes were also sealed and sent for forensic examination. As per forensic report, blood or semens stains were not found on it. 4. Later, accused persons were enlarged on bail vide order dated 10.2.1998 passed by the High Court in Cr.M.P.(M) No. 68/98 and their bail bonds were attested and accepted by the then Additional Chief Judicial Magistrate on 11.2.1998. 1. 5. On the completion of the investigation, challan was presented in the court for the trial of the accused. They were accordingly charge sheeted for the offences aforesaid, to which they pleaded not guilty and claim trial. 2. 6. To prove its case, prosecution besides examining prosecutrix, also exami1ned PW4 Harnam Singh husband of the prosecutrix, PW2 Dr. Sushma Sharma, PW3 Dr. Sucha Singh, PW6 HC Jai Chand to prove the FIR and other formal witnesses, including PW7 ASI Daya Nand Investigating Officer. 7. Accused persons were also examined under Section 313 of the Code of Criminal procedure. They denied the circumstances appearing against them. The case of accused persons Pinta and Ramesh were denial simplicitor whereas Kara @ karam Chand stated that witnesses had deposed against him because of enmity regarding the accident of his tractor with the sister-in-law of PW4 Harnam Singh, husband of the prosecutrix. They were demanding money to which he refused to pay. He also stated that accused Pinta and husband of the prosecutrix cracked a joke on which Harnam Singh felt offended and on the same day lodged a false case against them. 3. 8. During the trial, on the application of the accused, learned Sessions Judge visited the spot on 12.11.1994 at about 5.15 p.m. in the presence of learned Public Prosecutor, defence counsel and the Investigating Officer. Rough site plan was also prepared. Both these documents are at pages 49-51 of the proceedings file of the trial Court, wherein he noted some discrepancies in the site plan prepared by the Investigating Officer. 4. 9. At the end of the trial, accused persons were acquitted by the learned trial court on the following grounds:- (a) That the site plan Ext. Both these documents are at pages 49-51 of the proceedings file of the trial Court, wherein he noted some discrepancies in the site plan prepared by the Investigating Officer. 4. 9. At the end of the trial, accused persons were acquitted by the learned trial court on the following grounds:- (a) That the site plan Ext. PH prepared by PW7 Investigating Officer was not found in conformity by the learned Sessions Judge, with the position existing on the spot and observed that Investigating Officer intentionally did not mention the distance in between the place of the occurrence and the house of the accused and also failed to mention that any house existed within the distance of 100 meters from the place of occurrence and the house of the prosecutrix. (b) The learned trial Court also observed that in the month of January, wheat crop could not be said to be more than 1 ½ feet to 2 feet which shows that if one of the accused persons committing rape at a distance of 20 yards from a common path in the early hours of the evening and the two others were standing, would be visible to any passerby, including the husband of the prosecutrix who is alleged to have passed through that path around 7 p.m. for getting medicines. (c) Further that there was no evidence that any person had seen the accused standing on the path or going towards that prior to the alleged occurrence or leaving the place after occurrence and it was surprising that all accused persons would venture to go and have the sexual intercourse with a married woman just near the place of her residence. (d) Since the prosecutrix admitted that Pinta was running a mechanic shop and other two accused persons were real brothers doing the work in Atta chakki, it looked surprising that after leaving the shop before the closure time of the shop, they would be present on a common path waiting for the prosecutrix to approach with an intention to commit rape on her. (e) Further that prosecutrix admitted that Pinta accused had good relations with her husband. They used to crack jokes with each other. In the evening, when Harnam Singh, her husband returned, he was under the influence of liquor and accused Pinta cracked some joke. (e) Further that prosecutrix admitted that Pinta accused had good relations with her husband. They used to crack jokes with each other. In the evening, when Harnam Singh, her husband returned, he was under the influence of liquor and accused Pinta cracked some joke. On this, he felt annoyed and on reaching his residence, he along with prosecutrix went to police and lodged FIR. (f) Also the prosecutrix had admitted pendency of the case against accused Kara @ Karam Chand with respect to the Motor vehicular accident case in which Shanti Devi, sister-in-law of PW4 Harnam Singh had suffered injuries. (g) The statement of prosecutrix did not inspire confidence, as she stated that when she was lifted by accused kara @ Karam Chand, she did not depose that she could not raise alarm as her mouth was gagged. There was also a time gap between rape committed by Kara @ Karam Chand and accused Ramesh Chand, she could have raised alarm but she did not do so and she also not stated that she was prevented by any reason to raise alarm. (h) It was not possible to believe that prosecutrix had allowed to gag her mouth without resistance and her statement did not reveal that she had ever put any resistance. Thus, there was possibility of false implication of the accused in the present case and even Medical Officer while examining did not observe that she was under shock after such a traumatic incident; and that (i) There was a possibility of having indulged in sex with her husband sometimes prior to the occurrence and there were no marks of injury on the person of the prosecutrix, as stated by PW2 Dr. Sushma Sharma. Thus the medical evidence did not support the statement of the prosecutrix. 10. Shri Ashok Chaudhary, learned Counsel for the respondents supported the impugned judgment of acquittal and further ventilated that the evidence of the prosecution did not inspire confidence. The prosecutrix had a malice to depose against the accused persons and further that there is also no evidence with respect to the fact that she belongs to scheduled caste and being scheduled caste, the offence was committed by the respondents. 11. The prosecutrix had a malice to depose against the accused persons and further that there is also no evidence with respect to the fact that she belongs to scheduled caste and being scheduled caste, the offence was committed by the respondents. 11. Contra, Shri R.K. Sharma, learned Senior Additional Advocate General duly assisted by Shri Rajinder Dogra, learned Additional Advocate General forcefully argued that the statement of the prosecutrix does inspire confidence and her testimony also stands corroborated on material particulars by her husband and other circumstances on record. Further that if there was any discrepancy or variation in the spot position and the site plan prepared by the Investigating Officer with respect to the distances of the house in the vicinity, it will not throw out the prosecution case out right, more particularly when the statement of the prosecutrix is found trustworthy. It is further ventilated that if the evidence of the prosecution on record is appreciated in the right perspective, there are grounds for converting the acquittal into conviction. 12. We have given our thoughtful consideration to the rival contentions of the parties and have carefully and cautiously scanned the evidence on record. 13. The prosecutrix is a married lady having four children. During the trial she corroborated the case of the prosecution as initially set up by her. She testified that while on her way back to her house near the fields, at about 6.30 p.m. or 6.45 p.m. accused persons met her. They were under the influence of liquor. Accused Kara alias Karam Chand forcibly lifted her and took her to the nearby fields which was having wheat crop. Prosecutrix resisted but she was not allowed to get free. When she tried to raise alarm, there was no one to hear her. Respondent Kara @ Karam Chand gagged her mouth with his hands, forcibly removed the string of her salwar and committed rape followed by accused Ramesh Kumar. Accused Pinta did not do anything but he kept on standing at a place. Thereafter accused left the place and prosecutrix went to her house. Around 8 p.m. when her husband PW4 Harnam Singh came back to his house, he found the prosecutrix weeping. When he asked the reason, she narrated the whole incident to him. Thereafter they went to the Police Station and lodged FIR Ext. Thereafter accused left the place and prosecutrix went to her house. Around 8 p.m. when her husband PW4 Harnam Singh came back to his house, he found the prosecutrix weeping. When he asked the reason, she narrated the whole incident to him. Thereafter they went to the Police Station and lodged FIR Ext. PA at 9.10 p.m. Police took the prosecutrix to the Hospital and moved an application Ext.PB for her medical examination which was conducted by PW2 Dr. Sushma Sharma, in Community Health Centre, Jawali and proved her complaint Ext. PA. She also testified that he was got medically examined during the same night from a lady doctor who took her salwar Ext. P1 and shirt Ext.P2 into possession. 14. Prosecutrix was subjected to a lengthy cross-examination by the accused persons. She stated about the fact that she had gone to the house of Mehar Chand in the morning and returned in the evening. She further stated that there was no house on the path leading to her house from the mattled road except a shed. According to her, shop of Ramesh Kumar accused was on the mettled road from where path emanates to her house. At that time, his shop was open. She did not notice whether he was there. She also stated that even she did not notice anybody present in the shop since it was dark but however, stated that persons could easily be identified. She further stated that there were 3-4 houses near to her house belonging to their community and about 25 houses of other community and that around 7 p.m., her husband had gone to village ‘Labh’ to get medicines for gastric trouble. According to her, two of the accused persons are brothers and working in Atta Chakki business. She admitted that the accused persons had met her husband when he was on his way back to his house, after taking the medicines from the shop of Rai Singh. Accused were found present at their respective places of work. She also admitted that Pinta accused and her husband were having good relations and they used to crack jokes and that when her husband came back, he was under the influence of liquor and Pinta accused cracked a joke with him by which he felt annoyed. This fact was revealed to her by her husband. She also admitted that Pinta accused and her husband were having good relations and they used to crack jokes and that when her husband came back, he was under the influence of liquor and Pinta accused cracked a joke with him by which he felt annoyed. This fact was revealed to her by her husband. She also admitted that thereafter her husband took her for lodging report against Pinta but clarified that she was taken to lodge report since the accused persons had raped her. She also stated about the location of the places of work of the accused persons which were in the close vicinity of each other. She admitted that Shanti Devi, wife of her brother-in-law met with a motor vehicle accident and a case was lodged against respondent Karam Chand which was pending in the Court at Jawali. She further admitted that the incident had taken place prior to the alleged occurrence but denied that accused persons Ramesh Chand and Karam Chand were falsely implicated in the case to pressurize them in the accident case. 15. PW4 Harnam Singh, husband of the prosecutrix offered corroboration to the statement of the prosecutrix and testified that when he returned to his house in the evening around 8 p.m., he found his wife weeping. She disclosed him about the incident in question and then they went to report the matter to the police. He also stated that his wife was medically examined. In cross-examination he stated that around 2. 6.30 or 6.45 p.m., he had gone to bring medicines through the same path from where his wife was to come and by that time his wife had not returned to the house. He also stated that there are other short cuts nearby to go to his house and his house is about half km. from the main road. In between, there are about 20 houses. He also admitted that near the mattled path, shop of accused person Ramesh Kumar is situated and admitted that when he returned, the shop of Ramesh Kumar was open. He further admitted having met accused Pinta at his shop when he cracked joke with him and gave a slight pat to him but denied that at that time, he was under the influence of liquor and felt annoyed because of that joke cracked by Pinta. He further admitted having met accused Pinta at his shop when he cracked joke with him and gave a slight pat to him but denied that at that time, he was under the influence of liquor and felt annoyed because of that joke cracked by Pinta. He denied that with respect to uncalled for behaviour of accused Pinta, he had complained to his brother. He admitted that when he returned back, accused were found working at their respective places and at that time, it was around 7.45 p.m. He categorically stated that no other person had come to their house that evening. He denied having lodged false case against the accused persons on account of enmity. However, he admitted having Karam Chand involved in motor vehicle accident, as stated above, but denied his false implication in the instant case. 16. PW2 Dr. Sushma Sharma had medically examined the prosecutrix during night of the alleged incident around 11.45 p.m. and after her examination, clinically observed that prosecutrix was exposed to coitus and after chemical examiner report Ext. PD, she confirmed this fact that the sexual intercourse had been done with the prosecutrix. 17. We are aware of the fact that the corroborative evidence is not imperative component of the judicial credence in every case of rape. Corroboration is a condition for judicial reliance on the testimony of the prosecutrix, is not a requirement of a law but a guidance of prudence under the given circumstances. Therefore, if it is found that the evidence of the prosecutrix is worth inspiring confidence, it must be relied upon without seeking corroboration of her statement without material particulars. We put our reliance on the judgments of the Supreme Court in State of H.P. Versus Asha Ram, AIR 2006 SC 381 and Moti Lal versus State of Madhya Pradesh (2008) 11 SCC 20. The Supreme Court further held that even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. But however, the basic fact remains that the statement of the prosecutrix should inspire confidence in order to sustain the conviction. 18. The Supreme Court further held that even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. But however, the basic fact remains that the statement of the prosecutrix should inspire confidence in order to sustain the conviction. 18. In the instant case, accused Karam Chand is involved in the motor vehicle accident case of the wife of the brother-in-law of the prosecutrix and the defence set up is that this case was made upon them as a pressurize tactics to get money and Pinta accused was involved in the case on account of alleged joke which he cracked with her husband. 19. As already stated above, prosecutrix is a married lady having four children. She in any case would not have put her character and reputation at stake for the alleged two minor incidents, as projected by the respondents. However, we have closely scrutinized her version in order to find out the truth. Although, her testimony is corroborated by her husband, yet we looked forward for some more corroboration in order to rule out the possibility of false implication of the accused persons. As per report Ext. PD, Salwar Ext. P1 sent for forensic examination contained the stains of blood and human semen. Even vaginal swab of the prosecutrix tested positive for human semen. Blood was also found on her pubic hair. 20. Reverting back to the statement of PW2 Dr. Sushma Sharma, on the examination of the abdomen, doctor noticed 20 weeks’ size uterus and discharge was found present in the vulval portion of her private parts. Pubic hair matting was present. Vagina admitted two fingers easily. Her wearing apparels were sealed and handed over to the Police. Doctor took pubic hair and vaginal smear slides which were sealed and handed over to the Police for semen analysis to Chemical Examiner. In her opinion, also possibility of sexual intercourse could not be ruled out. 21. Further the Investigating Officer PW7 Daya Nand had visited the spot on 24.1.1998 at 7 or 7.30 a.m. He categorically stated that on inspecting the spot, where the alleged incident took place, wheat in the field was found crushed and this fact was mentioned by him in the spot map Ext. PH. On this point, there is absolutely no cross examination. PH. On this point, there is absolutely no cross examination. Rather the focus in his cross-examination has only been with respect to the location of the houses near the place of incident which, on inspection was found contrary to the position existing on the spot by the learned trial Court, which in our opinion could not shake the merits of the case in any way nor the Code of Criminal Procedure inlaying down the omissions or irregularities which either vitiate the proceedings or not does not anywhere specifically say that a mistake committed by a police officer during the course of the investigation can be said to be an illegality or irregularity. Investigation is certainly not an inquiry or trial before the Court and the fact that there is no specific provision either way in Chapter XXXV with respect to omissions or mistakes committed during the course of investigation except with regard to the holding of an inquest is a sufficient indication that the legislature did not contemplate any irregularity in investigation as of sufficient importance to vitiate or otherwise form any infirmity in the inquiry or trial. 22. In A.C. Sharma versus Delhi Administration AIR 1973 SC 913 the apex Court observed that any irregularity or even illegality committed in the course of investigation does not by itself affect the legality of the trial by an otherwise competent Court unless miscarriage of justice has been caused thereby. 23. Therefore, against the well settled principles of law, in the present case, the discrepancy which has been pointed by the learned Sessions Judge in the site plan, as per spot position is of no consequence. We find that the testimony of the prosecutrix is worth inspiring confidence and it is also supported by other material evidence on record, as discussed above. Hence it bears the ring of truth in so far the alleged offence of rape by the accused persons against the prosecutrix is concerned. The minor contradictions are quite immaterial and insignificant. 24. Further, the observation of the learned trial Court that in the month of January wheat crop could be more than two feet approximately and the alleged place of incident would have been visible to the passers-by is quite hypothetical. Prosecutrix did not say that the said path was quite busy path and many persons had been passing through it who could have seen the accused. Prosecutrix did not say that the said path was quite busy path and many persons had been passing through it who could have seen the accused. The distance of the house of the prosecutrix from the Atta Chakki and Scooter Mechanic shop of the accused persons is only half a kilometer and that path to her house emanates from the main mattled road. It was a winter season, the month of January and the accused persons knew that the prosecutrix had been passing daily through that path in the evening. Since it was not a busy path in the winter and was growing dark, there was no question of seeing the accused persons on the spot by any other person. 25. The learned trial Court also observed that it was a business time at the time of the alleged occurrence, respondent would not have ventured to have sex with the prosecutrix. But in our opinion, learned trial Court has lost sight of the fact that these are village shops which have no rush more particularly during the evening time in the winters. So projecting this ethics that how these accused persons could go to the place nearby to commit rape before the closure of the shops and waited for the prosecutrix is incorrect conclusion. 26. Further, it has also not been suggested in the cross examination of the husband of the prosecutrix as to what type of joke was cracked by Pinta with her husband which offended the husband of the prosecutrix which could even result into a false case. The defence so raised is quite unimpressive equally for falsely implicating Karam Chand and his brother Ramesh Kumar on account of motor vehicular accident which had taken place with the sister-in-law of her husband. 27. Further the observation of the learned trial Court to doubt the version of prosecutrix that in between when Karam Chand had committed rape on the prosecutrix and it took time to Ramesh accused to approach her for sexual act, she could have resisted and raised alarm. But in our opinion, when she was already ravished by one of them in the field, whether in the same condition she could have raised alarm or resisted to put her character and reputation at stake and invited more trouble to her life. But in our opinion, when she was already ravished by one of them in the field, whether in the same condition she could have raised alarm or resisted to put her character and reputation at stake and invited more trouble to her life. She was left there after sexual abuse by the accused persons and they went to their places of work nearby and the prosecutrix went to her house. She was weeping when her husband came and asked the reason, immediately thereafter she narrated the same version to the police, which, she testified on oath during the trial. The non-existence of injury on her person and further the observation made by the learned trial Court on the basis of Medico Legal Certificate that she was not under the shock after such a traumatic incident, would not in any way in favour of the accused persons. 28. In our considered opinion, the statement of the prosecutrix is confidence inspiring which is corroborated in material particulars from the evidence on record. Therefore, it cannot also be said that the medical evidence did not support the case of the prosecution as the prosecutrix was having 20 weeks’ size uterus and discharge was found present in the vulval portion. The incident had taken place at about 6.30 p.m. or 7 p.m. and almost before or soon after her husband had crossed that path passes through the Atta Chakki of Ramesh Kumar. Respondents must have noted that her husband had crossed and gone out and waited the prosecutrix to pass through the path, she was caught and committed rape as alleged on her. 29. Therefore, for the reasons stated above, we are of the view that the case of the prosecution stands established beyond doubt. The accused persons have been proved to have acted in concert and entered the path from which the prosecutrix was to cross thereafter respondent Pinta stood guard and other accused committed rape on her turn by turn. Explanation (1) to clause (g) of Section 376 (2) Indian Penal Code makes it clear that irrespective of whether the prosecutrix had been raped by one or more of them, it is not necessary that the prosecution should produce clinching evidence of a completed act or rape by each one of the accused. Explanation (1) to clause (g) of Section 376 (2) Indian Penal Code makes it clear that irrespective of whether the prosecutrix had been raped by one or more of them, it is not necessary that the prosecution should produce clinching evidence of a completed act or rape by each one of the accused. If two of them have committed rape and the third stood as a guard, is also guilty of ‘gang rape’. 30. Therefore, in our considered opinion, acquittal of the accused persons is wrong and perverse. Accordingly, the accused persons are held guilty of the offence punishable under Section 376 (2) (g) Indian Penal Code for committing a ‘gang rape’. Thus, respondents Ramesh Kumar, Kara alias Karam Chand and Pinta stand convicted of the said offence. But there is no evidence with respect to the offence punishable under Section 3 (2) (v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities), Act 1989, therefore, their acquittal for the said offence is upheld. 31. Let the accused persons be produced before this Court on 25.2.2011 to hear them on the point of sentence. Judgment to continue.