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2013 DIGILAW 649 (HP)

State of H. P. v. Dila Ram

2013-07-05

DEV DARSHAN SUD, SANJAY KAROL

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JUDGMENT Dev Darshan Sud, J.(oral) The State has challenged the acquittal of the respondent, who was charged for offences under Section 376 and 506 of the Indian Penal Code (hereinafter referred to as ‘IPC’). 2. The case of the prosecution, which was sought to be corroborated by the testimonies of the prosecutrix, PW5 Satish Sharma and PW9 Saurav Roy is that the prosecutrix is the wife’s sister of the accused. The allegation is that she was repeatedly raped by the accused, first in the month of November/December, 2001 at Shimla, thereafter in January/February, 2002 in village Janot at Sirmaur, then subjected to repeated rape at Solan and lastly as stated in August, 2003. The case urged by the prosecution is that mother of the prosecutrix Dayal Piari, who was a teacher, was suffering from acute arthritis. The father of the prosecutrix DW12 B.K. Vashishtha was a government employee working in the department of Horticulture, who retired in 2000. He had three daughters. The eldest was married to the accused. The family was residing at Solan in their own house. He (father of the prosecutrix) performed second marriage (after the death of his wife) with his maid, deserted his family and settled somewhere in Punjab. One of the sisters of the prosecutrix was stated to be mentally abnormal and eldest namely Namita was studying at Shimla and married to the accused without the consent of the family. She was living with the accused in his native village at Theog. 3. The accused was alleged to be a Tantrik (shaman). He had won the confidence of the prosecutrix by beguiling her that he would treat her mother by tantric mantras. Under this pretext, he started to visit Solan. In November/December, 2001, the prosecutrix was asked to accompany the accused to Vikasnagar by her sister DW10 Namita to bring Namita’s belongings. On the way the accused told her that somebody had practiced tantric spells on her mother, he would do best to get rid off them. He was treated as a Guru by the family of the prosecutrix. On reaching Vikasnagar, the accused offered a glass of water on the pretext that it would liberate her from evil omens and spells and started reciting mantras. He then blew into the tumbler and asked the prosecutrix to drink it. He was treated as a Guru by the family of the prosecutrix. On reaching Vikasnagar, the accused offered a glass of water on the pretext that it would liberate her from evil omens and spells and started reciting mantras. He then blew into the tumbler and asked the prosecutrix to drink it. She stated that when she consumed this water, she became unconscious and when she regained conscious she was totally naked and accused was also naked lying on her. She found bleeding from her vagina and was in considerable pain. When she asked the accused as to what he had done, he told that since her mother was seriously ill and her father had already deserted the family, her elder sister was pregnant if she disclosed this incident to anybody, her mother and elder sister would die for which the prosecutrix would be solely responsible. She became frightened and the accused started blackmailing and exploiting her. In January/February, 2002, the mother of the prosecutrix asked the accused to go village Janot in Sirmaur to do agriculture work and asked the prosecutrix to accompany him. There also, she was raped by the accused who told her not to disclose these facts to anyone. She became helpless in the clutches of this Tantrik and blackmailer. She states that she was even beaten up by the accused. The mother of the prosecutrix died in August, 2003 and even at that time the accused raped her next day after her death. She narrated this incident to her sister (wife of the accused) but on finding that her attitude was indifferent, she narrated this incident to Saurav Roy, PW9, who according to her, was correspondent with BBC and with his help and that of Satish Sharma, PW5, she succeeded in lodging the First Information Report against the accused on 25th September, 2004. The prosecutrix thereafter left her house and stayed at Haridwar with one Jaspreet Sharma, DW2 and one Sharda employee of Satish Sharma, PW5. She finally left for Nari Niketan at Sunni. 4.The prosecution produced 9 witnesses, while 14 witnesses were produced in defence. We note that DW12 Mr. B.K. Vashishat, father of the prosecutrix, DW1 Krishna Rani grandmother of the prosecutrix, DW9 Om Dutt her maternal uncle and DW10 Namita her sister have condemned the prosecutrix for her wayward behaviour and conduct exonerating the accused of any wrong doing. 4.The prosecution produced 9 witnesses, while 14 witnesses were produced in defence. We note that DW12 Mr. B.K. Vashishat, father of the prosecutrix, DW1 Krishna Rani grandmother of the prosecutrix, DW9 Om Dutt her maternal uncle and DW10 Namita her sister have condemned the prosecutrix for her wayward behaviour and conduct exonerating the accused of any wrong doing. This is one case where we note that entire family of the prosecutrix has condemned her in one voice for falsely implicating the accused. 5.Primarily, submission made by learned Additional Advocate General is that the statement of prosecutrix should and ought to be believed for the reason that according to law her statement cannot be rejected on the assumption that she is lying and is an accomplice. We cannot accept this proposition in its generality, as urged. 6.In Dinesh Jaiswal vs. State of M.P., 2010 Cri.U.J. 1917 and Abbas Ahmad Choudhary vs. State of Assam, 2010 Cri. U.J. 2060, the Supreme Court holds that there is no presumption that the prosecutrix is always telling the truth. In Dinesh Jaswal’s case the Court holds: “5. Mr. C.D. Singh has however placed reliance on Moti Ual’s case (AIR 2008 SC (Supp) 882 : 2008 AIR SCW 4846) (supra) to contend that the evidence of the prosecutrix was liable to be believed save in exceptional circumstances. There can be no quarrel with this proposition (and it has been so emphasized by this Court time and again) but to hold that a prosecutrix must be believed irrespective of the improbabilities in her story is an argument that can never be accepted. The test always is as to whether the given story prima facie inspires confidence. We are of the opinion that the present matter is indeed an exceptional one. 6. As already mentioned above, in our opinion, the story given by the prosecutrix does not inspire confidence. We thus allow this appeal, set aside the impugned judgments and direct that the appellant be acquitted.” (pp. 1919) (Emphasis added) 7. To similar effect is the ratio of the judgment passed in Abbas Ahmad’s case. Learned counsel for the respondent also submits that in Radhu vs. State of Madhya Pradesh (2007) 12 SCC 57 , the Supreme Court rules that if there are inconsistencies and major discrepancies in the evidence of the prosecutrix, no conviction can be sustained on such evidence. 8. Learned counsel for the respondent also submits that in Radhu vs. State of Madhya Pradesh (2007) 12 SCC 57 , the Supreme Court rules that if there are inconsistencies and major discrepancies in the evidence of the prosecutrix, no conviction can be sustained on such evidence. 8. The evidence produced by the prosecution cannot be relied upon for its glaring inconsistencies. It is also the settled law that the defence witnesses are entitled to the same credibility as the prosecution witnesses, as settled by the Supreme Court in Dudh Nath Pandey vs. State of U.P. AIR 1981 SC 911 holding:- “19 Defence witnesses are entitled to equal treatment with those of the prosecution. And Courts ought to overcome their traditional instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses “ (at p. 916) In Sanjiv Kumar v. State of Punjab (2010)3 SCC (Cri.) 330 the Supreme Court holds:- “23. It has been observed that decence witnesses are often untruthful, but that is not to say that in all cases defence witnesses must be held to be untruthful, merely because they support the case of the accused. The right given to the appellant to explain the incriminating circumstances appearing against him serves a purpose and cannot be ignored outright. In every case the court has to see whether the defence set up by the accused is probable, having regard to the totality of the facts and circumstances of the case. If the defence appears to be probable, the court may accept such defence. This is primarily a matter of appreciation of evidence on record and no straitjacket formula can be enunciated in this regard.” (at p. 337) 9. To similar effect is the judgment of the Supreme Court in State of Haryana vs. Ram Singh 2002 SCC (Cri) 350, in which it is held: “19. Incidentally, be it noted that the evidence tendered by defence witnesses cannot always be termed to be a tainted one-the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issued of credibility and the trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution (at p. 362) 10.We notice that this PW9 Saurav Roy seems to have engineered the entire mischief and his conduct makes it difficult to accept his evidence. The issued of credibility and the trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution (at p. 362) 10.We notice that this PW9 Saurav Roy seems to have engineered the entire mischief and his conduct makes it difficult to accept his evidence. On communication Ext.PW13/A sent by the police to the Chief Editor, BBC, New Delhi to verify the antecedents of Saurav Roy, the reply Ext.PW13/B states that he never worked with the BBC. 11. Adverting to the other part of the evidence, we find that FIR Ext.DW11/A was registered by DW12 Mr. B.K. Vashishat against PW9 Saurav Roy and PW5 Satish Sharma. He admits his re-marriage with Smt. Premi Devi, who is the daughter of his wife’s Massi (maternal aunt) and gives a clear description as to how the prosecutrix used to come to home late at night and when he used to ask the reason, she would retort that this does not concern him. She used to talk on telephone till late hours in the night and when he asked to desist, she used to snap at him. In September, 2009 PW9 Saurav Roy had told him that he wants to marry the prosecutrix and he would take her to America. He (Saurav Roy) also asked this witness to part with the share of the prosecutrix in the family property. He threatened him that he would face dire consequences in case he did not do so. On 19.8.2004 somebody telephoned the police about someone being beaten up in his house. The police came there and returned as they found this information false. The prosecutrix never returned after this day. On 14.12.2004 he saw the prosecutrix in the shop of Satish Sharma, PW5 and tried to persuade her to return home but she refused to do so. On inquiry from Satish Sharma, PW5, he was informed that she was entangled with Saurav Roy PW9 and had gone with him. Both of them used to visit his shop quite often. On 25.2.2004 he saw the prosecutrix in Court in the company of PW5 Satish Sharma and PW9 Saurav Roy. When he saw her, she left the Court premises. She was taken to the hospital for medical examination, but she refused on the advice of one Vibhu Banal, Advocate. Both of them used to visit his shop quite often. On 25.2.2004 he saw the prosecutrix in Court in the company of PW5 Satish Sharma and PW9 Saurav Roy. When he saw her, she left the Court premises. She was taken to the hospital for medical examination, but she refused on the advice of one Vibhu Banal, Advocate. We find that her maternal grandmother DW1 Krishana Rani has dubbed her a liar and DW10 her elder sister Namita says that she is the main root/cause of all troubles in the house tormenting quarrels and dissensions. We cannot accept the testimony of PW9 Saurav Roy for the reason that he was entangled with the prosecutrix and had threatened her father DW12 Mr. B.K. Vashishat for parting with the share of the prosecutrix in the property and his own antecedents are also doubtful. The maternal uncle of the prosecutrix DW9 Om Dutt does not speak highly about the prosecutrix and corroborates the other defence witnesses. In this light of the state of facts, we do not find that there is any merit in appeal. We reiterate that entire family members of the prosecutrix speak against her and cannot disbelieve them as their evidence is consistent. Appeal stands dismissed. Bail bonds furnished by the respondent discharged.