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2012 DIGILAW 482 (HP)

State of Himachal Pradesh v. Dhanvir Singh

2012-09-03

DEEPAK GUPTA, RAJIV SHARMA

body2012
JUDGMENT Deepak Gupta, J. 1. This appeal by the State is directed against the judgement dated 1.7.2004 passed by the learned Sessions Judge, Sirmaur in Sessions trial No. 06-ST/7 of 2003 whereby he acquitted the accused of having committed offences punishable under Sections 341, 342, 376 of IPC and Section 3(i)(xi) of the Scheduled Castes and Scheduled Tribes (prevention of Atrocities) Act, 1989. 2. The prosecutrix, who was aged about 14 years, belongs to the Scheduled Caste. According to the prosecution on 23rd June, 2002 when the prosecutrix had gone to wash clothes at a place known as Bangula in village Kandela, Tehsil Paonta Sahib the accused came there. He forcibly caught hold of the prosecutrix and took her inside the room of one Jagat Singh. On this the prosecutrix raised a hue and cry but none could hear her cries. The accused subjected the prosecutrix to forcible sexual intercourse in the room of Jagat Singh. Thereafter PW-2 Geeta Ram heard the cries of the prosecutrix and came to the room and saved her from the clutches of the accused. The prosecutrix returned home and disclosed the entire incident to her mother who advised the prosecutrix to keep quiet and not disclose this incident to anyone till she (the mother) herself disclosed these facts to the father of the prosecutrix. 3. Further, according to the prosecution, case on 2.7.2002 PW-3 Babita, who is a cousin sister of the prosecutrix came to the house of the prosecutrix. Then the prosecutrix narrated the entire incident to PW-3. Thereafter on the advice of PW-3 the prosecutrix alongwith PW-3 came to the office of the Deputy Commissioner and lodged written complaint Ext.PW-1/A on 3.7.2002 on the basis of which F.I.R. Ext.PW8/B was registered. After registering the F.I.R investigation was carried out by PW-8 Dy.S.P. Rajesh Dharmani. The prosecutrix was got medically examined. Her radiological age was also assessed and finally the accused was challaned for having committed the offences aforesaid. The learned trial Court acquitted the accused mainly on the ground that the story of the prosecutrix does not inspire confidence. 4. The law is well settled that even if the version of the prosecutrix is not corroborated then also conviction of an accused in a case of rape can be based on the sole testimony of the prosecutrix, if it inspires confidence. 5. 4. The law is well settled that even if the version of the prosecutrix is not corroborated then also conviction of an accused in a case of rape can be based on the sole testimony of the prosecutrix, if it inspires confidence. 5. In the present case, as per the prosecutrix on 23rd June, 2002 itself she had disclosed the entire details of the unfortunate occurrence to her mother. It is further alleged that the mother told the prosecutrix to keep quiet. For reasons best known to the prosecutrix the mother has not been examined. One fails to understand why for 10 days the prosecutrix and her mother would keep totally quiet if such a heinous incident had happened. This by itself may not result in the acquittal of the accused but in such circumstances the evidence of the prosecution has to be scrutinized with greater care and caution. 6. The prosecutrix was examined twice in Court. She was firstly examined on 19.06.2003 when she turned hostile and did not support the prosecution. Thereafter an application Ext.PA was filed by the prosecutrix for her re-examination on the ground that when she made her statement on 19.06.2003 she had been kidnapped by the family members of the accused and threatened not to state the correct facts. She was thereafter reexamined on 29.07.2003. 7. While appearing in the witness box as PW-1 on 19.6.2003 the prosecutrix stated that one boy had forcibly taken her inside the room of Jagat Singh and committed sexual intercourse with her and she was later saved by PW-2 Geeta Ram. She stated as follows:- “I do not know the person who committed the sexual intercourse with me.” She was declared hostile by the public prosecutor and cross-examined in detail but she again stated that the accused was not known to her. She also denied the suggestion that on the previous day she had gone with the accused and had come to the Court on that day alongwith the accused party. During cross-examination by the accused she stated that on the evening of the occurrence i.e. 23.06.2002 she had told her father, sister and mother about the occurrence. 8. However, while appearing again in Court on 29.07.2003 the prosecutrix fully supported the prosecution case and stated that it was the accused who had raped her. During cross-examination by the accused she stated that on the evening of the occurrence i.e. 23.06.2002 she had told her father, sister and mother about the occurrence. 8. However, while appearing again in Court on 29.07.2003 the prosecutrix fully supported the prosecution case and stated that it was the accused who had raped her. She, however, stated that the accused did not say anything to her when she was saved by Geeta Ram. According to her she came to lodge the complaint in the office of the Deputy Commissioner alongwith Babita. She admits that she had not told the police that her mother had advised her not to disclose this incident to any person. She also admits that she continued to attend the school after the incident till the report was lodged with the Deputy Commissioner. According to her on 17.06.2003 she was taken by the family members of the accused in a car to Nahan and next day brought to Court to make the statement and therefore, she had made a statement on their asking. She also admits that her mother was at home when she was kidnapped but her father was away. She states that she did not raise any hue and cry when she was kidnapped. She also states that her father met her in Court before her statement was recorded. She also admits that after her statement was recorded on 19.6.2003 both her sisters, her father Khatri Ram and his wife had met her and thereafter she had gone to Badwas with Khatri Ram. 9. Thus the prosecutrix had given two diametrically opposite versions. Her version that she was kidnapped is not believable. If she had been kidnapped her mother would have definitely reported the matter to the police. Not only that, admittedly the father of the prosecutrix Sukh Ram was examined in Court on 19.6.2003 itself. Though he stated that the prosecutrix had come to the Court with the accused party he did not state that she was kidnapped by them. It will be very difficult to reconcile these two diametrically opposite statements of the prosecutrix especially when there is no explanation by the mother or the father why the matter was not reported to the police immediately after the alleged kidnapping. 10. It will be very difficult to reconcile these two diametrically opposite statements of the prosecutrix especially when there is no explanation by the mother or the father why the matter was not reported to the police immediately after the alleged kidnapping. 10. PW-2 Geeta Ram, who is supposed to have rescued the prosecutrix from the clutches of the accused has not supported the prosecution case at all. 11. PW-3 Babita has supported the prosecution case but according to her it was the prosecutrix who told her that she wanted to lodge a criminal case and then they gave the complaint Ext.PW-1/A. She states that the complaint was written by some lady sitting in the office of the Deputy Commissioner, Nahan. 12. Coming to the statement of the father it is apparent that Sukh Ram and his brother DW-6 Khatri Ram are Joridars i.e. following a system prevalent in District Sirmaur where two or more brothers marry the same women. In his cross-examination Sukh Ram stated that the prosecutrix came with Khatri on 19.6.2003 to the Court though later he stated that the prosecutrix came with the mother and father of the accused in a car as told to him by his daughter Gulabi Devi. PW-5 Gulabi Devi states that on 23.6.2002 itself the prosecutrix had told her that she had been raped by the accused. She admitted that police post Singhpura is only at a distance of five kilometer from their village. From her cross-examination it is manifest that even Gulabi Devi had earlier made some sort of case of sexual assault against one Sh. Dinesh which was also compromised at a later stage. 13. The defence led evidence in the case and DW-6 is none other than Khatri Ram, who is real brother of Sukh Ram and he has a Joridara with Sukh Ram and Maina Devi. According to him the prosecutrix is born out of this Joridara system and therefore, it cannot be said with certainty whether it is Sukh Ram or Khatri Ram who is the father of the prosecutrix. This witness states that on the earlier date the prosecutrix came to the Court alongwith him and his wife. He states that he, his wife and the prosecutrix came to Nahan from Kandella via Rajban and stayed at the house of Sukha Devi his sister-in-law. This witness states that on the earlier date the prosecutrix came to the Court alongwith him and his wife. He states that he, his wife and the prosecutrix came to Nahan from Kandella via Rajban and stayed at the house of Sukha Devi his sister-in-law. Next day the statement of the prosecutrix was recorded in Court on 19th June, 2003 and thereafter went back with him. Sukha Devi has been examined as DW-4. This cast a grave doubt on the version of the prosecutrix that she was accompanied by the parents of the accused and as such it would be highly imprudent to rely upon her statement. 14. From the above discussion, it is established that there is unexplained delay of 10 days in lodging the report. It is beyond comprehension why the parents and sister of the prosecutrix did not report the matter to the police or at least to the Gram Panchayat or other members of the Biradri. The prosecutrix had made two diametrically opposite statements which cannot be reconciled. 15. Her version that she was kidnapped by the parents of the accused and forced to make a false statement cannot be believed since no complaint in this regard was made either by her mother or father. 16. In view of the statement of Khatri Ram it is established that she had come to Court on the first day with Khatri Ram and therefore, her version that she had been kidnapped is totally false. 17. In view of the contradictions in the statements of the prosecutrix it is highly unsafe to rely upon her statements to convict the accused. 18. In view of the above discussion, we are of the considered opinion that the learned trial Court was fully justified in acquitting the accused. We, therefore, find no merit in the appeal, which is accordingly dismissed. Bail bonds are ordered to be discharged.