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2012 DIGILAW 65 (HP)

Rajesh Kumar @ Munnu v. State of Himachal Pradesh

2012-03-01

R.B.MISRA, SANJAY KAROL

body2012
JUDGMENT Sanjay Karol, J. In terms of judgment dated 2.1.2009, passed by Ld. Sessions Judge, Hamirpur (H.P.) in Sessions Trial No.20 of 2008, titled as State Vs. Rajesh Kumar, accused Rajesh Kumar alias Munnu, the present appellant, stands convicted for having committed offences punishable under Sections 452 and 376 of Indian Penal Code. He has been sentenced to undergo rigorous imprisonment for a period of ten years and pay fine of Rs.5,000/- for an offence punishable under Section 376 IPC and also undergo rigorous imprisonment for a period of two years and pay fine of Rs.1,000/- for an offence punishable under Section 452 of IPC and in default thereof, to undergo simple imprisonment for a period of three months and one month respectively. 2. It is the case of prosecution that on 13.8.2007 at about 10:30 P.M., prosecutrix (PW-10) lodged an FIR No.346 (Ex.PW8/A) under Sections 452 and 376 of Indian Penal Code at Police Station, Hamirpur against the accused. According to the complainant, on 10.8.2007, when Dharam Chand (PW-8) and Sheela Devi (PW-9) parents of the prosecutrix (PW-10) had gone to the hospital for purchasing medicines at about 11-12 O’clock (noon) accused came to the Verandah of her house and asked for a match box. She was alone in the house at that time. The accused caught her from the arm and took her inside the room. There he made her lie on the cot, opened the string of her Salwar and after opening his pant forcibly committed sexual intercourse with her and after some time when her parents returned, she narrated the incident to them, FIR was lodged and police acted upon the same. S.I. Desh Raj (PW-1) commenced investigation. He got the prosecutrix medically examined through Dr Sunita Galodha (PW-7), who issued MLC (Ex.PW7/B). Prosecutrix was found to be of not sound mind and did not co-operate in medical examination and since factum of sexual intercourse could not be ascertained, she was further referred to the RPMC, Hospital at Tanda (Dharamshala) for opinion of Gynecologist and Psychiatrist. However her father did not allow for it to happen. Sample of the vaginal swab collected by the police was in any event sent to the Forensic Science Laboratory for chemical analysis and report collected. Investigation was also conducted by Kuldip Kumar (PW-13). However her father did not allow for it to happen. Sample of the vaginal swab collected by the police was in any event sent to the Forensic Science Laboratory for chemical analysis and report collected. Investigation was also conducted by Kuldip Kumar (PW-13). In order to determine the age of prosecutrix, certificate (Ex.PW2/B) issued by the school authorities and abstract of the Pariwar register (Ex.PW3/A) were taken on record by the police. With the completion of investigation, Challan was presented in the Court for trial. 3. The accused was charged for having committed offences punishable under Sections 452 and 376 of Indian Penal Code to which he did not plead guilty and claimed trial. 4. In order to prove its case, prosecution examined as many as 14 witnesses and statement of the accused under Section 313 Cr.P.C. was also recorded. The Court below convicted the accused on both the charges and sentenced him to undergo imprisonment, as mentioned earlier, hence the present appeal. 5. Sh. Ashwani Kumar Sharma, learned counsel for the appellant has vehemently argued that the impugned judgment is based on presumption, surmises and conjectures. It is urged that there are inherent and apparent exaggerations, contradictions, embellishments and improvements in the prosecution story as also testimonies of the prosecution witnesses rendering not only the prosecution case to be extremely doubtful but also shattering the credit of the witnesses and making them untrustworthy and unreliable. It is also urged that there is nothing to show that prosecutrix was either of unsound mind or ever subjected to sexual intercourse. There is unexplainable delay of three days in lodging FIR. Also there are no telltale signs of struggle/force on the body of the prosecutrix. He has invited our attention to the various provisions of law and decision of various High Courts. 6. Per contra, Mr. R.K. Sharma, learned Senior Additional Advocate General has urged that the judgment which is well reasoned and based on evidence does, not warrant any interference. He has referred to and relied upon the following decisions:- (i) Tulshidas Kanolkar v. State of Goa, (2003) 8 SCC 590 (ii) Khoja Ram v. State of Himachal Pradesh (2006) CRI.L.J. 2093. 7. The alleged offence, as per FIR (Ex.PW8/A) took place on 10.8.2007. He has referred to and relied upon the following decisions:- (i) Tulshidas Kanolkar v. State of Goa, (2003) 8 SCC 590 (ii) Khoja Ram v. State of Himachal Pradesh (2006) CRI.L.J. 2093. 7. The alleged offence, as per FIR (Ex.PW8/A) took place on 10.8.2007. Prosecution has placed on record Pariwar register (Ex.PW3/A) of the family of the prosecutrix to show her age to be of 19 years, as on the date of the alleged crime. Prosecution has also placed on record school certificate showing that prosecutrix was born on 8.8.1987. If the certificates are to be taken into account, then prosecutrix is more than 20 years. We need not go into the question of admissibility of these documents for the reason that prosecutrix herself has deposed in the Court on 5.12.2008, that she is of 19 years and her parents have not mentioned anything about her age. Hence, prosecution has failed to establish that as on the date of alleged offences, age of the prosecutrix was less than 16/18 years. 8. It is undisputed case of the prosecution that alleged offence took place in the afternoon of 10.8.2007 and FIR was lodged only at 10:30 P.M. on 13.8.2007. We find that in the instant case, this delay of 3 days has not been explained at all by the prosecution. Prosecutrix (PW10) states that on the date of the alleged incident itself, when her parents returned she narrated the incident to them, which version also stands corroborated by them. Now in their testimonies, there is not even a whisper about this delay, much less any explanation. To the contrary her father simply states that when prosecutrix narrated the incident, he came to the Police Station and lodged FIR. Testimony of prosecutrix is also to this effect. Significantly, rather unfortunately, mother (PW9) has not supported the prosecution case at all. She was declared hostile and cross-examined by the learned Public Prosecutor. On this aspect even she is absolutely silent. Pradhan of the Gram Panchayat Nirmala Devi (PW-1), simply states that on 13.8.2007 Dharam Chand (PW-8) came to her house in the morning and informed her about the incident. She advised him to report the matter to the police. Hence, version of the father stands materially contradicted on this aspect. 9. On this aspect even she is absolutely silent. Pradhan of the Gram Panchayat Nirmala Devi (PW-1), simply states that on 13.8.2007 Dharam Chand (PW-8) came to her house in the morning and informed her about the incident. She advised him to report the matter to the police. Hence, version of the father stands materially contradicted on this aspect. 9. Now it is not the case of prosecution that the accused had either threatened or prevented the prosecutrix or her parents from approaching either the police or any other authorities from reporting the matter. It is also not the case of the prosecution that prosecutrix had otherwise taken up the matter with the Panchayat and the same was under consideration or that some talks were going on between the parents. It is also not the case of the prosecution that the complainant/her parents were otherwise not in a position, due to their social, cultural or financial background to register the FIR within time. It is also not the case of prosecution that the area falls in the remote corner of the State and it was otherwise difficult for the parents to have approached the Authorities/police with in time to register the matter. It also cannot be said that police postdated the FIR or did not promptly record the complaint. Silence in this regard is conspicuous and unexplainable. In this background we find that learned judge has been too presumptuous in coming to its conclusion and making the following observation:- “ There is a delay of about three days in reporting the matter to the police. The recent trend of the Hon’ble Apex Court about delay in lodging the FIR, in such like case, is that the delay by itself is not fatal to the prosecution case. In this case, the prosecutrix is a simpleton girl. I noticed from the demeanour of her father in the court that he was a totally perplexed man after this incident and his conduct showed in the court that something grave had happened with his daughter, who is a simpleton, and innocent girl. In such cases, probably, there will be no one to counsel the complainant to report the matter to the police immediately. In such cases, probably, there will be no one to counsel the complainant to report the matter to the police immediately. PW8 Dharam Chand appears to have taken his own time to go to the police, probably, after re-gaining some senses after having just been broken and shattered physically and mentally from such act of the accused with his daughter. So, against this backdrop, in my considered opinion, there will be no dent in the prosecution case on account of delay only.” 10. Each case has to be determined on its own circumstances and law laid down by the Apex Court with regard to delay has to be applied to the given facts. Coming to the medical evidence, we find that prosecutrix was examined by Dr. Sunita Galodha (PW-7) who issued MLC (Ex.PW7/B) based on the chemical examiner’s report (Ex.PW6/A).This witness found that prosecutrix was having a normal gait. There were no marks of injury on any part of her body. Clothes which she was wearing had been washed and changed. However, when it came for physical examination of her private parts, prosecutrix did not co-operate. She did not allow even a tip of a little finger to be inserted inside her vagina. Also no blood or semen was found on her private parts or the vaginal swab. Since prosecutrix resisted physical examination, including that of hymen, this witness could not give any final opinion about the commission of sexual intercourse. The report of the Forensic Science Laboratory also does not link the accused to the alleged crime. Semen was not found on the clothes of the prosecutrix or the vaginal swab. Eventually the ground that blood & semen was not found on the pubic hair & vaginal slides of Veeja Kumari. Blood in track was found on swab, but semen could not be detected on exhibit. Further, the opinion regarding occurrence of act, as asked in police docket cannot be given as the girl has been referred to RPMC, Dharamshala. 11. But significantly the Doctor states that prosecutrix “ was mentally not appearing to be sound”. Unfortunately, her father gave it in writing that he did not want his daughter to be medically examined at Dharamshala. Except for this ocular observation there is nothing to substantiate or establish the fact of unsoundness or medical proof of sexual intercourse. 11. But significantly the Doctor states that prosecutrix “ was mentally not appearing to be sound”. Unfortunately, her father gave it in writing that he did not want his daughter to be medically examined at Dharamshala. Except for this ocular observation there is nothing to substantiate or establish the fact of unsoundness or medical proof of sexual intercourse. Though we are of the view that in this case, there is no evidence of sexual intercourse yet, we proceed to examine the testimony of the prosecutrix to see as to whether it otherwise inspires confidence with regard to the alleged incident or not. For proper appreciation and just decision we deem it necessary to reproduce the testimony of the prosecutrix in toto. It reads as under:- “Bijan Devi, wife of Raj Kumar, aged 14 years, Resident of Drod (Kehrwin) Tehsil and District Hamirpur, H.P. (The witness is not taking the oath as it appears that she is not in a position to understand about it. She appears to be a simpleton girl) (So let her statement be recorded without oath, especially being a minor) Stated that my parents had gone to take medicines from the hospital, and I was all alone at home. The present accused came to my house. He caught hold of me in the courtyard, took me inside the house and committed rape on me. He had removed my salwar. After some time, my parents came back and I told them about the incident. Then the matter was reported to the police by my father. I have also signed the FIR. The police got me medically examined at Rural Hospital, Hamirpur. The police had taken in possession my salwar and Kameej vide memo Ext. PW1/A. I have seen my clothes Ext. P.2 and P.3 which are the same. XX XX XXX When the accused came to my house, I was present in the Verandah. I am 19 years of age. The accused did not tell me anything but caught hold of me and took me inside the house. I did not give bite on the hands of the accused. Again said, I had given tooth bite to the accused. I told the police about it. (The witness is confronted with the statement Ext. DA where it is not so recorded). I did not give leg blows to the accused. I cried loudly. I did not give bite on the hands of the accused. Again said, I had given tooth bite to the accused. I told the police about it. (The witness is confronted with the statement Ext. DA where it is not so recorded). I did not give leg blows to the accused. I cried loudly. Self stated that since our house is located at a lonely place, no body attracted to the spot. I told the police about the crises. (The witness is confronted with the statement Ext. DA where it is not so recorded). I did not sustain any injury on my person. The accused had not slapped me. I did not resist. I had handed over the same clothes which I was wearing at that time, to the police. The clothes had been washed before handing over to the police. The police had taken in possession the bed sheet also. My clothes had blood stains due to the incident. The blood had fallen on the bed sheet also. The accused asked me to lie on the cot and I accordingly, lay on the bed. People pass through the road by the side of our house during day time. My father had arrived home first. The accused did not say anything to him. It is incorrect to suggest that I have made the statement today on the tutoring of my father. It is incorrect that the accused had not committed rape on me and I am stating falsely. I had not refused to go to Dharamshala for my medical examination. I had come to the Verandha of my house after leaving of the accused Rajesh from there.” 12. Except for the observation made by the Court, narration of her testimony shows that she is not mentally unsound. She is able to clearly comprehend the question and answer the same. There is no incoherence in her testimony. 13. The trial Court records her age to be of 14 years. Why so? is not evident. Significantly, prior to recording of her statement in the Court on 5.12.2008, certificates Ex.PW2/B and Ex.PW3/A pertaining to her age were already on record. As per these certificates, prosecutrix was born on 8.8.1987 and admitted in the school on 9.2.1994 where she studied till 4.6.2001. Why so? is not evident. Significantly, prior to recording of her statement in the Court on 5.12.2008, certificates Ex.PW2/B and Ex.PW3/A pertaining to her age were already on record. As per these certificates, prosecutrix was born on 8.8.1987 and admitted in the school on 9.2.1994 where she studied till 4.6.2001. Now if a child has been attending school for more than seven years, then unless there is some cogent material to prove to the contrary, it cannot be presumed that prosecutrix was not of sound mind. Also Court proceeded to record her statement, without oath, on the assumption that she is a minor. Observation of the trial Court to the effect that this witness is not in a position to understand the proceedings is only with regard to the oath. Significantly, Court does not observe or record that she appears to be of unsound mind. It only observed that prosecutrix is a “simpleton”. 14. The Oaths Act, 1969 prescribes that a witness appearing in Court is to be administered oath or if the witness so desires make an affirmation. Sections 4 and 5 read as under:- “4. Oaths or affirmations to be made by witnesses, interpreters and jurors:- (1) Oaths or affirmations shall be made by the following persons, namely: - (a) All witnesses, that is to say, all persons who may lawfully be examined or give, or be required to give, evidence by or before any court or person having by law or consent of parties authority to examine such persons or to receive evidence; (b) Interpreters of questions put to, and evidence given by, witnesses; and (c) Jurors: Provided that where the witness is a child under twelve years of age, and the court or person having authority to examine such witness is of opinion that, though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of Section 5 shall not apply to such witness; but in any such case the absence of an oaths or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth. (2) Nothing in this section shall render it lawful to administer, in a criminal proceeding, an oath or affirmation to the accused person, unless he is examined as a witness for the defence, or necessary to administer to the official interpreter of any court, after he has entered on the execution of the duties of his office, an oath or affirmation that he will faithfully discharge those duties.” “5. Affirmation by persons desiring to affirm.-- A witness, interpreter or juror may, instead of making an oath, make an affirmation.” Section 7 stipulates that omission shall not invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth. 15. Section 118 of the Indian Evidence Act, 1872 reads as under:-“All persons shall be competent to testify unless the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.” 16. The Trial Court did not make any observations with regard to the unfitness of the witness to depose in Court. Hence the testimony of the prosecutrix can be looked into by this Court. 17. The Apex Court in Rameshwar v. The State of Rajasthan, AIR (39) Supreme Court 54 has held that provisions of Oaths Act has to be read along with Section 118 of the Indian Evidence Act and omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. Every witness is competent unless the Court considers that he is prevented from understanding the questions put to him or from giving rational answers by reason of tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind. It will be observed that there is always competency in fact unless the Court considers otherwise. No other ground of incompetency is given, therefore, unless the Oaths Act adds additional grounds of incompetency it is evident that Section 118 must prevail. Omission to take oath does not affect the admissibility of the evidence. Which view has been followed in Acharaparambath Pradeepan and another v. State of Kerala, (2006) 13 SCC 643 and Mohd. No other ground of incompetency is given, therefore, unless the Oaths Act adds additional grounds of incompetency it is evident that Section 118 must prevail. Omission to take oath does not affect the admissibility of the evidence. Which view has been followed in Acharaparambath Pradeepan and another v. State of Kerala, (2006) 13 SCC 643 and Mohd. Kalam v. State of Bihar, (2008) 7 SCC 257. 18. Perusal of her statement clearly shows that she did not resist the alleged assaults of the accused. Her version that she gave bite on the hand of the accused with a tooth is not supported by any medical evidence. Accused was examined and no injury marks were found on his body. To this effect, she was confronted with her prior statement (Ex.DA) wherein this fact is also not recorded. Her version that she cried for help also does not find mention therein. She admits that the accused had not slapped her. She admits that accused asked her to lie on the cot and she accordingly did so. She also admits that accused did not say anything while leaving. She also did not tell anything to him. Significantly, it is not her case that accused seduced, intimidated or threatened her either prior or subsequent to commission of crime. She admits that she had come to the verandah of the house after accused had left. From the spot map, it is apparent that there is a house adjoining to the house of the prosecutrix at a short distance. Also there is a path close by. She did not do anything to raise alarms or report the matter either to a passerby or persons residing in the nearby house. To us her version that she was assaulted sexually by the accused does not inspire confidence. Apart from the fact that there is delay in lodging the FIR or that there is no evidence of sexual intercourse we find her statement not to be reliable and trustworthy. 19. Unfortunately, her mother does not support her version. In her examination-in-chief, she states that when they returned, prosecutrix informed that accused had given beatings to her. The witness was declared hostile and in cross-examination by the learned Public Prosecutor fully supported the prosecution. But then later on deposed that she stated whatever her husband had asked her to state. 20. Unfortunately, her mother does not support her version. In her examination-in-chief, she states that when they returned, prosecutrix informed that accused had given beatings to her. The witness was declared hostile and in cross-examination by the learned Public Prosecutor fully supported the prosecution. But then later on deposed that she stated whatever her husband had asked her to state. 20. Coming to the statement of the father (PW-8), no doubt he supports the prosecution case but we also find his statement not worthy of credence. He states that when he and his wife returned, prosecutrix was found weeping and her Salwar was removed, which version stands materially contradicted both by his wife and the prosecutrix. Wife states that prosecutrix was already wearing clothes and prosecutrix states that she had come to the verandah of house after accused had left. Further, father states that he could not get the prosecutrix medically examined at the hospital at Tanda due to long distance which version stands belied by the version given by the Doctor as also the MLC (Ex.PW7/B) wherein it is clearly recorded that he straightway declined to get his daughter checked up further. Distance between Hamirpur and Dharamshala is not much. Judicial notice can be taken of the fact that Tanda is easily approachable, even by public transport within a period of 3-4 hours. Significantly prosecutrix has deposed that she was ready and willing to go to Tanda. Still why did not the police take her for examination is not clear. On this aspect who is telling the truth, the father or the daughter is not clear. Further, this witness states that both he and his wife, had returned home from the hospital together which version stands contradicted by the wife who states that her husband had reached home before her arrival. Also his statement that he found his daughter lying in a naked condition is not recorded in FIR Ex.PW8/A with which he was confronted. This witness states that his daughter had been dragged by the accused from the verandah to the house. But then it is neither the case of the prosecutrix nor is it supported by any medical evidence. 21. Police has not tried to associate neighbours during investigation, who may have thrown some light with regard to the actual event which took place on the spot. But then it is neither the case of the prosecutrix nor is it supported by any medical evidence. 21. Police has not tried to associate neighbours during investigation, who may have thrown some light with regard to the actual event which took place on the spot. Also, if the child was of unsound mind why is that parents left her unattended. Whether they went to hospital at all or not is also not established. 22. For concluding the guilt of the accused we are of the considered view, that the Court got swayed by the fact that prosecutrix was of low I.Q. Simpleton does not mean that a person is a dumb or of unsound mind. 23. The Court has been too presumptuous in coming to its conclusion and making observation in paragraphs 55, 60, 64 of the judgment. The whole approach is illegal and perverse. Findings of guilt have to be based on legal, cogent and reliable evidence placed on the record and not the demeanor of the witnesses. Ratio laid down in Tulshidas Kanolkar (supra) is not applicable to the instant case for the simple reason that in the said decision the Court was dealing with the case where there was medical evidence on record to establish that the mental faculty of the victim was underdeveloped and her I.Q. was of 1/3rd of an ordinary person. Similarly in Khoja Ram (supra) the Court was dealing with a case when it was proved that victim was mentally retarded. It cannot be said that the prosecution has been able to prove its case, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence to the effect that the accused had tress passed into the house of the prosecutrix and then forcibly committed sexual intercourse with her. The Court below erred in coming to such conclusion and the judgment not based on sound principles of law needs to be reversed. Hence conviction and sentence is reversed. The accused is directed to be immediately released from the judicial custody.