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2013 DIGILAW 861 (HP)

Ram Pal @ Bhonshu v. State of Himachal Pradesh

2013-10-01

DHARAM CHAND CHAUDHARY

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JUDGMENT Dharam Chand Chaudhary, J. (oral). Aggrieved by judgment dated 29.12.2012, passed by learned Additional Sessions Judge, Fast Track Court, Una, District Una in Sessions Case No.10-VII/2012, the appellant, hereinafter referred to as the accused, has preferred this appeal with the prayer to quash and set aside the same and acquit him of the charge under Sections 376, 323 and 506 of the Indian Penal Code. 2. The accused has been tried and convicted for the commission of offence punishable under Sections 376, 323 and 506 IPC. He has been sentenced to undergo rigorous imprisonment for seven years and to pay a fine of 110,000/- under Section 376 IPC, simple imprisonment for a period of three months under Section 323 IPC and simple imprisonment for six months and to pay a fine of 1500 under Section 506 IPC. Presently he is in jail and serving out the sentence imposed upon him. 3. The prosecution case, in a nut shell, is that the prosecutrix is working as Peon in ‘Shanti International Public School’ Kailashnagar, Nakroh, Tehsil Amb, District Una. On 11.2.2012 around 4.30 p.m., after performing her duties and while on the way to her house, the accused, who came from opposite side caught hold her right hand and dragged towards the nearby bushes. On her objections to such act and conduct of the accused, he shown her ‘darat’ and put his hand on her mouth. She therefore, could not raise alarm. He thereafter opened her salwar forcibly and committed rape on her. On hearing her cries, her husband Yakub Mohammad, PW-6 came to the spot and tried to save her from the accused. The accused, however, gave him darat blow and as a result thereof, her husband received injury on his ring-finger. The accused fled away from the spot and raised threats to do away with their lives, in case the incident is reported to anyone else. Immediately after the occurrence, her husband reported the matter to PW-2 Smt. Darshna Devi, Pradhan Gram Panchayat over her cellphone; she however, did not visit the spot. PW-6 was provided first aid by PW-5 Dr. Jagdeep in his clinic at Nakroh. Thereafter the prosecutrix and her husband visited the house of the Pradhan, who advised them to report the matter to the police. PW-6 was provided first aid by PW-5 Dr. Jagdeep in his clinic at Nakroh. Thereafter the prosecutrix and her husband visited the house of the Pradhan, who advised them to report the matter to the police. 4.On the next day, they went to the house of Pradhan and Shri Satpal Up-Pradhan, but they both have refused to come and help them. They, therefore, reported the matter to the owners of the school Shri Chandan Lal and Nand Lal on the second day in the evening, however, they also expressed their inability to help them at the pretext that the school management was not responsible for any mishappening outside the school gate. Ultimately the prosecutrix accompanied by her husband, reported the matter on 12.2.2012 at 6.50 p.m. to the Police of Police Station Amb, where FIR Ex. PW-1/A was registered. 5.The Police during the investigation of the case got conducted the medical examination of the prosecutrix from PW-9 Dr. Usha Daroch, vide MLC Ex.PW-9/A. The clothes etc., of the prosecutrix preserved by the doctor were taken into possession vide memo Ex.PW-1/B. Medical examination of PW-6 was also got conducted from PW-9 itself vide MLC Ex.PW-9/E. The accused was arrested on 13.3.2012 and got medically examined from PW-10 Dr. Rahul Katna, vide MLC Ex.PW-10/B. The Regional Forensic Science Laboratory, Himachal Pradesh, Kangra at Dharamshala after analyzing the exhibits i.e. clothes and vaginal slides etc., submitted the report Ex.PX. 6.On the completion of the investigation, report under Section 173 Cr.P.C., was filed against the accused. He was subsequently charge-sheeted for the commission of offences punishable under Sections 376, 323 and 506 IPC. He, however, pleaded not guilty and claimed trial. The prosecution in order to sustain the charge framed against him has examined 12 witnesses in all. 7.On the other hand, the accused, besides his own statement under Section 313 Cr.P.C., has examined DW-1 Shri Surjit Singh Dadwal, Advocate-cum-Notary Public, who has proved the extract of his Register Ex.DW-1/A, which contains entry at Sl. No. 229 of an affidavit sworn in by the prosecutrix on 16.2.2012. He has also placed reliance on Ex.D-1, a report submitted by SHO Amb, District Una in the trial Court and also the statement under Section 161 Cr.P.C. of Dr. Jagdish Chand Ex.D-2. No. 229 of an affidavit sworn in by the prosecutrix on 16.2.2012. He has also placed reliance on Ex.D-1, a report submitted by SHO Amb, District Una in the trial Court and also the statement under Section 161 Cr.P.C. of Dr. Jagdish Chand Ex.D-2. 8.Learned trial Judge after holding full trial and analyzing the evidence available on record has arrived at a conclusion that the prosecution has satisfactorily pleaded and proved the commission of offence punishable under Sections 376, 323 and 506 IPC by the accused. He has, therefore, been convicted and sentenced as pointed out at the very outset. 9.The legality and validity of the impugned judgment has been questioned before this Court in the present appeal on several grounds, however, mainly on the ground of misappreciation of the oral as well as documentary evidence available on record. 10. Ms. Saloni Sharma, Advocate learned defence counsel has argued that the evidence as has come on record by way of own testimony of the prosecutrix and that of her husband PW-6 hardly inspires any confidence as according to learned counsel nothing of the sort as claimed by them while in the witness-box did take place and rather the accused has been falsely implicated on suspicion as he was seen by PW-6, husband of the prosecutrix, in her company. Learned defence counsel has further argued that the prosecutrix being an able bodied and married woman could have not been ravished at all by the accused in the manner as claimed by the prosecution. The affidavit she sworn in on 16.2.2012 after about five days of the occurrence has caused a major dent in the prosecution case and as such no findings of conviction could have been recorded against the accused. 11.On the other hand Shri Pushpender Jaswal, learned Deputy Advocate General, while repelling the contentions raised on behalf of the accused-appellant has forcefully contended that in a case of this nature the sole testimony of the prosecutrix itself is sufficient to bring the guilt home to the accused whereas according to Mr. Jaswal, in this case her statement is not only supported by her husband PW-6, but also by Smt. Darshna Devi, PW-2, who is Pradhan of the Gram Panchayat. Jaswal, in this case her statement is not only supported by her husband PW-6, but also by Smt. Darshna Devi, PW-2, who is Pradhan of the Gram Panchayat. Therefore, according to learned Deputy Advocate General, the accused has been rightly convicted and sentenced and that the findings so recorded call for no interference by this Court in the present appeal. 12. The rival submissions as made takes this Court to the evidence as has come on record of this case, however, before that I deem it appropriate to discuss as to what constitutes the offence punishable under Section 376 IPC in legal parlance.The present in the given facts and circumstances is a case which falls under under first and second description to Section 375 IPC. The same reads as follows: 375-Rape. - A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: -First: - Against her will. Secondly: - without her consent. Thirdly: - xxxx Fourthly: - xxxx Fifthly: - xxxxx Sixthly: - xxxx Explanation: - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. 13.What constitutes consent has been discussed by the Apex Court in Kaini Rajan versus State of Kerla, JT 2013 (12) SC 538, as follows: 12. Section 375 IPC defines the expression “rape”, which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she is interested in fear of death or of hurt. The expression “against her will” means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression “consent”. An inference as to consent can be drawn if only based on evidence or probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression “consent”. Section 90, though, does not define “consent”, but describes what is not consent. “Consent”, for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. 14.The principle settled in the judgment supra, therefore, is that the prosecutrix was a consenting party to the sexual intercourse or not can only be ascertained on careful study of all relevant circumstances. 15.If coming to the facts of the case before the apex Court, the prosecutrix had acquaintance with the accused, a friend of her brother, for a period of more than two years and allegedly assaulted sexually in the morning at 8.30 a.m. at a place on the side of a public road. The apex Court while disbelieving the prosecution case had observed that had she been not a consenting party she would have made some kind of resistance or raised hue and cry and thereby attracted large number of people from the locality. 16.Now adverting to the evidence as has come on record of this case by way of own testimony of the prosecutrix, no doubt, she has supported the manner in which the occurrence as per the prosecution case has taken place and in order to explain the delay of more than 24 hours occurred in registration of the FIR it is stated that they sought assistance of Pradhan and Up-Pradhan and also the owners of the School, Chandan Lal and Nand Lal, however, unsuccessfully and when they failed in their attempt, themselves reported the matter to the police on the next date. If coming to her testimony in cross-examination, the accused, according to her, was running a canteen in the School prior to the occurrence. Meaning thereby that she had acquaintance with the accused being working as peon in that very school. If coming to her testimony in cross-examination, the accused, according to her, was running a canteen in the School prior to the occurrence. Meaning thereby that she had acquaintance with the accused being working as peon in that very school. She also admits the existence of Karyana shop at a distance of 100 meters from the School being run by the wife of the accused. She had been making purchases from that shop. She also admits her acquaintance with the wife of the accused also. According to her, she was dragged by the accused inside the bushes and also shown her drat, however, when confronted with the FIR Ex.PW-1/A, it was not found recorded so therein. Her statement that the accused opened her Salwar with one hand and gagged her mouth with another also seems to be not plausible for the reason that the prosecutrix is a young lady and had any resistance been shown by her, the accused would have not succeeded in opening her salwar that too with one hand. He even could have not succeeded in assaulting her sexually that too when he had pressed her mouth with one hand. Though she claims injuries on back portion of her body and PW-9 Dr. Usha Daroch has also noticed the injury on back of chest and left arm of the prosecutrix, however, in view of there being no mark of protest noticed by the I.O. PW-11 on the spot and rather as per the version of PW-9, such injuries could have been sustained by the prosecutrix on being beaten by her husband. It cannot be believed by any stretch of imagination that she sustained such injuries when subjected to sexual intercourse by the accused. Otherwise also, when the path as per her own admission is a busy path being used by many people, how the accused would dare to have sexual intercourse with her at such a place, had she not been a consenting party. According to her, she neither gave teeth bite on the hand of the accused nor gave him fist blows. Therefore, she seems to have never shown any resistance against the alleged sexual assault the accused committed. The accused, according to her, was wearing trousers having elastic string whereas as per the version of her husband, the accused was wearing pants. According to her, she neither gave teeth bite on the hand of the accused nor gave him fist blows. Therefore, she seems to have never shown any resistance against the alleged sexual assault the accused committed. The accused, according to her, was wearing trousers having elastic string whereas as per the version of her husband, the accused was wearing pants. Had there been scuffle for about 10-15 minutes as she claimed in her cross-examination, there would have been marks of struggle on the spot and noticed so by the I.O., PW-11 during the spot inspection. He, however, noticed no such marks on the spot as he said while in the witness-box. On one hand, the prosecutrix tells us that her mouth was gagged by the accused with one hand and on the other hand, she allegedly raised hue and cry and also cried for help. As per her version, she was subjected to sexual intercourse well before the arrival of her husband on the spot whereas her husband has blown hot and cold qua this aspect of the matter as at one point of time he has stated that when reached at the place of occurrence, he noticed the accused committing rape forcibly with his wife, the prosecutrix whereas in the same breath came forward with the version that the accused was wearing his pants which at that time was upto knee level. Though he tried to apprehend the accused, who however, fled away. As per further version of the prosecutrix, her husband was not having cellphone at the time of incident. Her husband, however, while in the witness-box has stated that he was having cellphone bearing number 98167-41324. Therefore, her testimony that a call was made to the Pradhan from cellphone of someone else known to her husband seems to be not correct. 17. Surprisingly enough, PW-6 husband of the prosecutrix heard her cries at the place of occurrence when he was in the house. The place of occurrence, according to him, is inside the forest, situated at a distance of 11/2 kilometers from their house. It is not humanly possible to hear cry of anyone at such a distant place and that too with all exactness. Therefore, it would not be improper to conclude that neither the prosecutrix raised any hue and cry nor her husband heard her cries and they both have deposed so falsely. It is not humanly possible to hear cry of anyone at such a distant place and that too with all exactness. Therefore, it would not be improper to conclude that neither the prosecutrix raised any hue and cry nor her husband heard her cries and they both have deposed so falsely. 18.Nothing has also come in the statement of the prosecutrix that the accused had assaulted her husband with darat. However, he while in the witness-box as PW-6 has stated that the accused attacked him with darat. The history in MLC Ex.PW-9/E, however, finds no mention that the blow of darat to PW-6 was inflicted by the accused. Nothing to this effect was disclosed to PW-5, who as a matter of fact, given first aid to PW-6 in his clinic. Rather as per the version of PW-5, in his cross-examination, PW-6, had disclosed that he had sustained the injuries while doing agricultural work. 19. Surprisingly enough, the prosecution has not recovered the darat either from the accused or at his instance. The story of inflicting blow by the accused to PW-6 with darat seems to be fabricated and engineered as had it been so and the blood oozed out from the injury, the blood stains would have there on the spot. The clothes of PW-6 would have also smeared with blood; however, the I.O., did not notice any blood having fallen on the spot. The testimony of PW-6 in his cross-examination that he disclosed the factum of having taken first aid from PW-5 Dr. Jagdip and qua direction from which heard cries of his wife is merely an improvement because when confronted with his statement under Section 161 Cr.P.C., nothing to this effect is find recorded therein. 20.The evidence as has come on record by way of the testimony of PW-2, Smt. Darshna Devi being hear say is hardly of any help to the prosecution case. Otherwise also, she seems to be a witness of seizure of clothes of prosecutrix vide memo Ex.PW-1/B. No doubt, the incident was disclosed to this witness by PW-6 on the day of occurrence itself, however, in the light of the improvements and also contradictions noted in the own statement of prosecutrix and in that of her husband PW-6, the possibility of false implication of the accused cannot be ruled out. 21.In a situation when the prosecutrix and the accused had acquaintance with each other for last so many years and the place of occurrence is inside the bushes adjacent to a public path being used by many pedestrians as has come in the statement of prosecutrix herself coupled with the factum of the house of one Jagdish, as per the spot map Ex.PW-11/A, is situated at a distance of 300 meters from the place of occurrence as well as own house of the prosecutrix as per her own testimony and that of her husband at a distance of 11/2 kilometers, the present cannot be believed to be a case of commission of sexual intercourse by the accused with the prosecutrix against her will or without her consent. No doubt, in the opinion of PW-9, there were sign of vaginal penetration; however, nothing has come either in her own testimony or in the MLC on this count. 22.On the other hand, the prosecutrix was produced before PW-9 for medical examination on the next date around 4.30 p.m. i.e. after about 24 hours of the occurrence. She being married lady and living with her husband, it cannot be believed that sexual intercourse, if any with her was committed by the accused alone and none-else, particularly when DNA test with respect to the semen and blood found present in the vaginal swab was not conducted by the prosecution, which, in the light of the law laid down by the Apex Court in Krishan Kumar Malik versus State of Haryana (2011) 7 Supreme Court Cases 130, as a matter of fact, was essentially required to connect the accused with the commission of the alleged offence. Otherwise also, the present, in view of the discussion hereinabove, is not a case of forcible sexual intercourse and rather a consensual act. 23.As per the plea raised by the accused in his defence as emerges out from the trend of cross-examination of prosecutrix and her husband PW-6, she was given beatings by her husband when seen in the company of the accused on suspicion of having illicit relations with the accused. The evidence the accused produced in his defence also reveals that on 16.2.2012, she swore in an affidavit and got attested the same from DW-1. The affidavit though is not on record, however, extract of the register maintained by DW-1, Ex.DW­1/A contained entries at Sl. The evidence the accused produced in his defence also reveals that on 16.2.2012, she swore in an affidavit and got attested the same from DW-1. The affidavit though is not on record, however, extract of the register maintained by DW-1, Ex.DW­1/A contained entries at Sl. No. 229 with respect to the said affidavit. The gist of affidavit finds entered in Ex.DW-1/A against entry No.229, which reads as follows:- “ The deponent is working as peon in Shanti International Public School. The house is located in remote area of village and path to house is through jungle. On 11.2.12 Rampal was accompanying with me on the way to home and we sat down to take rest in jungle and suddenly my husband reached there at 4-4.30 p.m. People of village compelled me to lodge FIR in PS Amb and declare that no incident of rape was occurred with me.” 24.Such evidence, therefore, shows that she was accompanying the accused voluntarily and at the place of occurrence they both were sitting to have rest when seen by her husband and it is under these circumstances the FIR came to be registered against the accused. 25.True it is that as per the version of the prosecutrix and her husband it is the owners of the School Chandan Lal and Nand Lal, accompanied by 4-5 persons threatened her of being removed from employment and pressurized her to swear in the affidavit in question. Also that she even filed a complaint under Section 156(3) Cr. P.C. also against those who pressurized her and FIR No.35/12 came to be registered against them in Police Station, Amb under Sections 201, 214, 364-A, 506, 120-B IPC read with Section 34 IPC, however, as per the report Ex. D-1 filed by SHO in the trial Court, no case was made out either against Chandan Lal and Nand Lal, the owners of the school or the so called other persons pressurized them to swear in the affidavit in question. The evidence produced by the accused in his defence seems to be plausible and nearer to the factual position and as such is sufficient to demolish the entire prosecution case. 26. The evidence produced by the accused in his defence seems to be plausible and nearer to the factual position and as such is sufficient to demolish the entire prosecution case. 26. The delay of more than 24 hours as occurred in the registration of the case is also fatal to the prosecution case for the reasons that no assistance of Pradhan, Up-Pradhan and for that matter the owners of the school was required by the prosecutrix and her husband for registration of the case against the accused. The occurrence having taken place at 4.30 p.m., the FIR could have been registered on the same day. In the case of this nature when the prosecution case inspires confidence, the delay occurred in registration of the FIR assumes considerable significance as the possibility of due deliberation and manipulation having taken place before the registration of the case cannot be ruled out. 27.True it is that the sole testimony of the victim of a sexual offence, if inspires confidence is sufficient to convict the accused. In the case in hand, as noticed hereinabove, it is, however, not safe to place reliance on the testimony of the prosecutrix. The present is also not a case where it can be said that she had no motive to implicate the accused falsely for the reason that the evidence as has come on record and discussed hereinabove amply demonstrates that the possibility of registration of case by her at the instance of her husband cannot be ruled out as she was seen by him in the company of the accused. 28.The reappraisal of the given facts and circumstances and also the evidence available on record reveals that learned trial Judge has miserably failed to appreciate the same in its right perspective and rather placed reliance on the statement of the prosecutrix and also that of her husband PW-6, which, in the given facts and circumstances, hardly inspires any confidence. On the other hand, the evidence produced by the accused in his defence has been ignored and brushed aside erroneously and recorded the findings of conviction on the basis of conjecture and hypothesis. The result, therefore, would be that no case under Sections 376, 323 and 506 IPC is made out against the accused and he should have been acquitted of the charge so framed against him. The result, therefore, would be that no case under Sections 376, 323 and 506 IPC is made out against the accused and he should have been acquitted of the charge so framed against him. 29.In view of what has been stated hereinabove, this appeal succeeds and the same is accordingly allowed. The impugned judgment of conviction and sentence of the accused is quashed and set aside and he is acquitted of the charge. The accused, who is in jail and serving out the sentence imposed upon him by the learned trial Court, be set free forthwith, in case he is not required in any other case. The appeal stands disposed of accordingly.