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2012 DIGILAW 734 (HP)

Karnail Singh @ Kaka v. State of Himachal Pradesh

2012-10-17

SURINDER SINGH

body2012
Judgment Surinder Singh, J. 1. The appellant has challenged his conviction for the offences punishable under Sections 376(1), 451 & 506 of the Indian Penal Code, whereby he was sentenced to undergo the imprisonment under each of the Sections aforesaid as follows:- Section 376(1) of the Indian Penal Code. Rigorous imprisonment for seven years and to pay a fine of `.1,000/-. In default of payment of fine, further to undergo simple imprisonment for three months. Section 451 of the Indian Penal Code. Simple imprisonment for six months and to pay a fine of `.250/-. In default of payment of fine, further to undergo simple imprisonment for a period of one month. Section 506 of the Indian Penal Code Simple imprisonment for one year and to pay a fine of `.250/-. In default of payment of fine, further to undergo simple imprisonment for a period of one month. All the above sentences were ordered to run concurrently. The benefit of Section 428 of the Code of Criminal Procedure was also accorded to him. 2. In short, the prosecution story as emerges from the evidence on record, can be stated thus. In the year 2011, the prosecutrix (16) was a student of 9th standard studying in Government Senior Secondary School, Gyora. On 11.7.2011, at about 11.45 p.m, she went to pass urine. The toilet was located in the courtyard of her house. The accused was hiding behind the bushes nearby. He caught hold her ‘Dupatta’, gagged her mouth and took her to a distance of about 400 meters in the bushes and committed rape on her. PW-2 Ishwar Dass, her father, came in search of the prosecutrix. He called for her. He put torch light. He noticed the prosecutrix standing with the accused. The accused fled away from the spot and while doing so, he is alleged to have threatened her to do away with her life, if she would tell anything about the father regarding the alleged rape, on having been asked about her presence there. occurrence. (i) PW-2 aforesaid tried to chase him, but in vain. The prosecutirx is alleged to have revealed to her (ii) Next morning, PW-2 Ishwar Dass called PW-3 Narender Singh, husband of the Pradhan of his Gram Panchayat. He reached there around 2.30 p.m. with Up-Pradhan PW-12 Naresh Singh. occurrence. (i) PW-2 aforesaid tried to chase him, but in vain. The prosecutirx is alleged to have revealed to her (ii) Next morning, PW-2 Ishwar Dass called PW-3 Narender Singh, husband of the Pradhan of his Gram Panchayat. He reached there around 2.30 p.m. with Up-Pradhan PW-12 Naresh Singh. PW-2 aforesaid told him that his daughter, i.e. the prosecutrix, who was youngest of his four daughters, was raped by the accused during the previous night. (iii) Naresh Singh aforesaid informed police telephonically regarding molestation by the accused. This fact was recorded in daily diary Ext. PW-14/A. Thereafter, police proceeded to the spot and on reaching there, recorded statement Ext. PW-1/A of the prosecutrix under Section 154 of the Code of Criminal Procedure. (iv) The prosecutrix was got medically examined on the same day from PW4 Dr. Sushima Sharma. But, the prosecutirx is alleged to have given history of rape about four days prior to the date of the examination. The doctor, on her clinical examination, did not find any evidence of rape. However, she noticed three simple injuries on her middle and right clavicle and two red abrasions on her right shoulder having been caused within 24 hours. However, the prosecutrix was referred to the Gynecologist for the status of hymen and opinion about rape. The doctor had also sealed her clothes, vaginal smears and cut pubic hair for chemical analysis. (v) PW-5 Dr. Amod Kumar Singh, Gynecologist examined the prosecutrix, whether sexual activity had taken place with the prosecutirx or not? He did not notice any external injury on the perennial region. He also noticed that the hymen was intact (not torn) but the gaping accommodated one fingure and no bruising over hymen. He could not comment on the question for which the prosecutrix was referred, but suggested that if examining lady-doctor was inclusive for this, she might take advice from the Forensic Expert which could give some clue regarding the query posed to him. But according to him, there was no suggestion that sexual intercourse had occurred except for very very rare possibility. His opinion is Ext. PW-5/A. (vi) The Forensic Science report is Ext. P-A, but no blood and semen stains were detected on the vaginal smears and the clothes of the prosecutrix. Surprisingly, on this material, PW-4 Dr. Sushima Sharma gave her opinion on MLC Ext. PW-4/B at points Ext. PW-4/C and Ext. His opinion is Ext. PW-5/A. (vi) The Forensic Science report is Ext. P-A, but no blood and semen stains were detected on the vaginal smears and the clothes of the prosecutrix. Surprisingly, on this material, PW-4 Dr. Sushima Sharma gave her opinion on MLC Ext. PW-4/B at points Ext. PW-4/C and Ext. PW-4/D that possibility of rape could not be ruled out. (vii) The police took photographs of the toilet of the prosecutrix as well as the place of the alleged incident. Site Plans Ext. PW-17/B and Ext. PW-17/C were also prepared. The police took into possession ‘Dupatta’ Ext. P-4 of the prosecutrix vide memo Ext. PW-1/B, Pant Ext. P-7 and T-shirt Ext. P-8 of the accused vide memo Ext. PW. 8/A. During the investigation, police also took into possession the birth certificate of the prosecutrix Ext. PW-7/B from the Panchayat Secretary, wherein her date of birth was shown as 27.11.1996. 3. The police after recording the statements of the witnesses and completing investigation presented the challan in the learned trial Court under the aforesaid Sections. The accused was accordingly charge-sheeted to which he pleaded not guilty and claimed trial. 4. To prove its case, the prosecution examined its witnesses. The accused was also examined under Section 313 of the Code of Criminal Procedure. His defence was denial simplicitor. When called upon to enter into his evidence, he did not lead any evidence in defence. The learned trial Court believed the prosecution evidence, as such, convicted and sentenced the accused, as aforesaid. Hence, the present appeal. 5. Shri N.S. Chandel, the learned Counsel for the accused duly assisted by Ms. Kanta Thakur, Advocate vehemently argued that the statement of the prosecutrix, if looked into in the light of the statement of her father PW-2 Ishwar Dass, coupled with the medical evidence, do not prove the offences charged. Hence, the present appeal. 5. Shri N.S. Chandel, the learned Counsel for the accused duly assisted by Ms. Kanta Thakur, Advocate vehemently argued that the statement of the prosecutrix, if looked into in the light of the statement of her father PW-2 Ishwar Dass, coupled with the medical evidence, do not prove the offences charged. He led me through the evidence on record and pointed out that the very presence of the accused, who was from another village located at a distance of 5-6 kilometers away from the village of the prosecutrix, at the dead of night, at the said place, is quite doubtful and even if otherwise, he happened to be present there, it could be due to the prior consent inter-se him and the prosecutrix as the evidence suggests that the prosecutrix had acquaintance with the accused who used to take her to the temple in his taxi and they might have developed intimacy. It is further ventilated that when the father of the prosecutrix noticed her in the company of the accused, it could be possible that she engineered a false story of her alleged kidnapping and rape. The learned Counsel also referred to the medical evidence and concluded that such statements even do not remotely connect the accused with the alleged offence of rape. 6. On the other hand, Shri P.M. Negi, the learned Deputy Advocate General, forcefully argued that the prosecutrix, at the relevant time, was proved to be less than 16 years of age as per the birth certificate Ext. PW-7/B issued by the Secretary of the Gram Panchayat (PW-7). The prosecutrix remained consistent in her version and could not be shattered by the accused in her cross examination. Thus the statement of the prosecutrix is worth inspiring confidence and the medical evidence did not rule out the possibility of sexual intercourse. The injuries on the person of the prosecutrix led corroboration to her version. 7. I have given my thoughtful consideration to the rival contentions of the parties and have carefully and cautiously scanned the evidence on record. 8. No doubt, the sole uncorroborated testimony of the prosecutrix can be acted upon if it is worth inspiring confidence and no corroboration is required to her statement. 7. I have given my thoughtful consideration to the rival contentions of the parties and have carefully and cautiously scanned the evidence on record. 8. No doubt, the sole uncorroborated testimony of the prosecutrix can be acted upon if it is worth inspiring confidence and no corroboration is required to her statement. In the instant case, on minute judicial scrutiny, I do find and hold that the prosecutrix was minor less than 16 years of age, but she was not ravished, as alleged. Though, she has tried to corroborate her statement Ext. PW-1/A when examined in the Court, but her father PW-2 Ishwar Dass has caused serious doubt in her testimony making the prosecution story a suspect qua rape. As PW-1, the prosecutrix stated that the accused had lifted her from the spot, gagged her mouth with a ‘Dupatta’ and took her to a distance of 400 meters where he committed rape on her. She also stated that her father came there with a torch light in his hand in search of her, the accused fled away from the spot and threatened her that she would be killed if she would disclose anything about the occurrence. He further gave a chase but could not apprehend him. She did not say that she had made any complaint to her father about the alleged rape, but however, PW-2 Ishwar Dass stated that when he had gone in search of the prosecutrix with a torch light, hardly he had covered about 400 meters from his house, then he found the prosecutrix standing with the accused. Neither he had asked the prosecutrix nor she told anything to him. But according to him, when he asked the accused, he pushed him and ran away. Later, when he asked his daughter, it was then, she informed him that the accused had lifted her to the spot by gagging her mouth with ‘Dupatta’, committed rape on her and also that the accused had threatened to kill her. In the cross-examination, he stated that the accused was known to the prosecutrix as she had hired his vehicle 2-3 times to go to the temple. 9. In the cross-examination, he stated that the accused was known to the prosecutrix as she had hired his vehicle 2-3 times to go to the temple. 9. On the scrutiny of the above evidence of the prosecutrix as well as her father, what I could gather, is that when the prosecutrix was noticed by her father in the company of the accused, she coined the story of alleged rape which, in fact, had never taken place. To conclude this, I have a reason for which I refer to the statement of PW-4 Dr. Sushima Sharma. She stated that when she was brought for her medical examination, she gave the history of sexual intercourse with the accused prior to four days of the alleged incident, which comes on 8th July, 2011, whereas the alleged incident is stated to have taken place during the intervening night of 11/12th July, 2011, i.e only on the previous night of her examination. Not only this, the doctor also did not find any clinical evidence of the alleged rape. The vagina of the prosecutrix admitted one finger, uterus was normal in size and fornieces were clear. The prosecutrix was also referred to the Genealogist to ascertain the status of hymen and opinion with respect to rape. Although, vaginal smear and pubic hair were packed and sealed for clinical examination, but on such examination, neither the blood nor the semen stains were detected. PW-5 Dr. Amod Kumar Singh did not comment anything on the examination of the prosecutrix with respect to the rape, since the position was also not clear to him. Rather, he referred the prosecutrix back to the opinion of PW-4 Dr. Sushima Sharma to take advice from the Forensic Expert at Dr. R.P.G.M.C., Tanda. The evidence of the doctor aforesaid does not reveal that such an opinion was ever sought, but the opinion Ext. PW. 4/D given by her with respect to the possibility of rape having been committed is based on the Forensic Science report Ext. P-A which does not conclude anything as neither the vaginal smears nor the pubic hair as also the wearing apparels of the prosecutrix contained blood or semen. She also took shelter of the opinion of the Gynecologist who was also not conclusive with respect to the rape having been committed upon the prosecutrix even remotely. P-A which does not conclude anything as neither the vaginal smears nor the pubic hair as also the wearing apparels of the prosecutrix contained blood or semen. She also took shelter of the opinion of the Gynecologist who was also not conclusive with respect to the rape having been committed upon the prosecutrix even remotely. In these circumstances, it is not understood what was the base for him to opine that there was very very rare possibility of rape. Therefore, the statement of the prosecutrix is totally shaken by the medical evidence as well as by the statement of her father PW-2 Ishwar Dass, who specifically stated that the prosecutrix, at the relevant time, was standing with the accused and even she did not raise any hue and cry when she alleged to have been taken away by the accused from the spot. Therefore, in my considered opinion, the prosecution has failed to prove any rape by the accused on the prosecutrix and also the criminal intimidation, as alleged. 10. Further, it is also an admitted case that the accused is a resident of a different village. How he could be present at the dead of night keeping himself hidden behind the bushes near the toilet of the prosecutrix, without having any knowledge whether she would definitely come out for urinating? But his precence with the prosecutrix is suggestive of the fact that the meeting was prearranged inter-se and the prosecutrix must have been lifted from that place by the accused to a safe and secure place with an intention to commit an offence. In that process, the prosecutrix must have sustained injuries which were noticed by the doctor at the time of her medical examination on the very next day which correlates with the incident. By doing the above act, the accused is proved to have the knowledge that the modesty of the prosecutrix was likely to be out raged which is enough to constitute the offence punishable under Section 354 of the Indian Penal Code, as such, the appellant-accused has committed the offence punishable under Section 354 of the Indian Penal Code. 11. Thus, in the totality of the above circumstances, the offences charged are set-aside. The accused deserves to be acquitted for the offences punishable under Sections 376 (1), 451 & 506 of the Indian Penal Code by giving him the benefit of doubt. Ordered accordingly. 11. Thus, in the totality of the above circumstances, the offences charged are set-aside. The accused deserves to be acquitted for the offences punishable under Sections 376 (1), 451 & 506 of the Indian Penal Code by giving him the benefit of doubt. Ordered accordingly. But however, the offence punishable under Section 354 of the Indian Penal Code stands clearly established against him, as such, he is held guilty for the said offence and accordingly convicted for the same. 12. Confronted with the above situation, the learned Counsel for the accused submitted that the convict was about 23 years of age at the time of the alleged incident and is in jail right from the day of his arrest i.e. 12.7.2011 and presently serving the sentence, thus, the period of sentence already undergone by the accused would be enough in the background facts. Shri P.M. Negi, learned Deputy Advocate General submitted that adequate sentence be awarded. 13. Keeping in view the punishment provided for the said offence, in my opinion, the ends of justice would be met in case the accused is sentenced to undergo imprisonment to the period already undergone by him and to pay a fine of ` 10,000/-. In default of payment of fine, to further undergo simple imprisonment for a period of two months. In case the fine is recovered, the amount of ` 6,000/- shall be paid to PW-1 prosecutrix. Ordered accordingly. As a consequence, the appeal is partly allowed to the above extent. 14. So far, the fine has not been deposited, it be deposited before the learned trial Court. The learned trial Court shall issue the warrant of release on depositing the fine amount by the accused, forthwith, if not required in any other case. 15. Send down the records.