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2014 DIGILAW 1049 (HP)

State Of Himachal Pradesh v. Ved Ram

2014-08-05

P.S.RANA, SANJAY KAROL

body2014
JUDGMENT : Sanjay Karol, J. State has appealed against the judgment dated 29.7.2008 of the learned Additional Sessions Judge, Fast Track Court, Kullu, Himachal Pradesh, passed in Sessions Trial No.46/07, titled as State v. Ved Ram, challenging the acquittal of respondent Ved Ram (hereinafter referred to as the accused), who stands charged for having committed offence punishable under the provisions of Section 376 of the Indian Penal Code. 2. It is the case of prosecution that on 30.8.2006, while prosecutrix (PW-2) was alone at home, accused Ved Ram came and forcibly committed sexual intercourse with her. She resisted by raising cries, but accused gagged her mouth. With one hand he gagged her mouth and with another he opened the string of her salwar. Before committing the crime, accused had already opened his pants. The incident was witnessed by Kamla (PW-3), sister-in- law of the prosecutrix. Seeing her, accused picked up his pant and fled away from the spot, leaving behind one of his Chappals. Prosecutrix went to village Trashi and there informed her husband Mahinder Singh (PW-4), who next day, i.e. 31.8.2006, went to the Police Post, Patli Kuhl and informed them. However, police asked him to get the accused. Since accused was not to be found anywhere, hence, on 1.9.2006, Mahinder Singh went to Police Station, Manali, where on the basis of statement of the prosecutrix, FIR No.191 dated 1.9.2006 (Ex.PD), under the provisions of Section 376 of the Indian Penal Code was registered against the accused. SI Lal Singh (PW-9) conducted the investigation and took into possession incriminating material from the spot. Prosecutrix was got medically examined from Dr. Neena Lal on 1.9.2006 at about 10 p.m. Investigation revealed complicity of the accused in the crime. Hence, challan was presented in the Court for trial. 3. Accused was charged for having committed an offence punishable under the provisions of Section 376 of the Indian Penal Code to which he did not plead guilty and claimed trial. 4. In order to establish its case, prosecution examined as many as 10 witnesses and statement of accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he took up the defence of innocence and false implication. 5. Based on the testimonies of witnesses and the material on record, trial Court acquitted the accused of the charged offence. Hence, the present appeal by the State. 6. 5. Based on the testimonies of witnesses and the material on record, trial Court acquitted the accused of the charged offence. Hence, the present appeal by the State. 6. We have heard Mr. B.S. Parmar, learned Additional Advocate General, on behalf of the State as also Mr. Sunil Mohan Goel, Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is well reasoned and is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice. 7. It is not in dispute that prosecutrix is major and a married lady. From the testimony of Dr. Neena Lal (PW-1), who has proved MLC (Ex. PB), it is apparent that prosecutrix was subjected to sexual intercourse. 8. The questions arising for consideration before us are: Whether the prosecution story, as alleged, inspires confidence of the Court on the evidence adduced? Whether the prosecutrix, is a witness worthy of reliance? Whether the testimony of a prosecutrix who has been a victim of rape stands in need of corroboration and, if so, whether such corroboration is available in the facts of the present case? What was the age of the prosecutrix? Whether she was a consenting party to the crime? Whether there was unexplained delay in lodging the FIR? 9. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the Court on facts may find it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. However, if the Court on facts may find it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would do. 10. We find the version of prosecutrix not to be inspiring in confidence. To us, prosecution cannot be said to have established its case beyond reasonable doubt of the accused having committed rape. Sexual intercourse, if any, appears to be with consent. 11. Prosecutrix, who is major and a married lady was alone at home. Allegedly, on 30.8.2006, she was raped by the accused. In Court, she states that accused entered her house, gagged her mouth with a Dupatta and raped her. We find prosecutrix has materially improved and contradicted from her initial version, so disclosed to the police initially, wherein it is recorded that accused gagged her mouth with his hand. Police has not recovered Dupatta from the spot. In Court, she states that during the course of crime bangles worn by her were broken, as a result of which she sustained injuries. Now, there is neither any medical evidence nor any link evidence, corroborative in nature, to this effect. 12. Her version that accused raped her does not appear to be inspiring in confidence. She did not resist the acts. Had she raised her voice, the same would have been heard by her neighbours. Her statement is contradictory on material facts. 13. That apart, prosecutrix has not satisfactorily explained the delay in lodging the report with the police. The incident took place on 30.8.2006 at about 1.30 p.m. We find that her version of having disclosed the incident to her husband to be belied and contradicted. In Court, she states that when her husband returned home at about 7 p.m., she narrated the incident to him. Whereas, according to her husband, prosecutrix and his sister Kamla (PW-3) came to him in village Trashi, where the incident was so disclosed to him by them. Further, version of the prosecutrix and her husband that on 31.8.2006, they reported the incident to the police at Police Post, Patli Kuhl, who asked them to bring the accused, does not appear to be inspiring in confidence at all. It is highly improbable, if not false. Further, version of the prosecutrix and her husband that on 31.8.2006, they reported the incident to the police at Police Post, Patli Kuhl, who asked them to bring the accused, does not appear to be inspiring in confidence at all. It is highly improbable, if not false. Their version that police asked them to get the accused is not only unbelievable but also not borne out from the record. After all, witness admits that there are other houses in close vicinity. Also, there is telephone in the village. It is not that family was trying to save honour and as such they were contemplating course of action to be taken. Prosecutrix admits that very same day, she narrated the incident to Panch Nag Chand and Pradhan Deep Lal of the Panchayat. Significantly, none of these persons have been examined in Court. Also, they did not report the matter to the authorities. FIR was registered only on 1.9.2006. Thus delay cannot be said to have been sufficiently explained. 14. Further prosecutrix states that during the act she sustained injuries and even the door of the room was stained with blood, which fact is also not corroborated by any evidence. In fact, belied by medical evidence. 15. Version of Kamla (PW-3) also renders the prosecution version to be extremely doubtful, if not false. She states that she saw the accused through the door, in a naked position. Both he and prosecutrix were indulging in sexual act. She does not state that she cautioned them or raised any voice. She states that when accused Ved Ram fled away, prosecutrix told her that accused had gagged her mouth. With what? she does not state. She does not state that prosecutrix had disclosed that she was sexually assaulted by the accused. She admits that she had seen the prosecutrix and accused Ved Ram lying on each other. Now what did this witness do thereafter has not been explained. Why is it that after seeing the accused she did not raise hue and cry or call for help. 16. She admits that she had seen the prosecutrix and accused Ved Ram lying on each other. Now what did this witness do thereafter has not been explained. Why is it that after seeing the accused she did not raise hue and cry or call for help. 16. The entire evidence ocular and documentary having been brought on record by the prosecution brings following salient features on record: (i) Testimony of prosecutrix is discrepant in nature and is not worthy of credence; (ii) Version of prosecutrix does not find necessary corroboration from medical evidence; (iii) Important piece of circumstantial evidence in the form of broken bangles and blood stained shirt had not been handed over to the police by the prosecutrix in order to lend support to her story; (iv) There is inordinate delay in lodging the FIR. 17. Having regard to the discrepant nature of testimony of prosecutrix coupled with abovenoted peculiar facts and circumstances of this case, it can safely be said that prosecution has not been able to prove on record beyond shadow of reasonable doubt that the prosecutrix was subjected to rape by the accused. 18. It is fairly settled that sole testimony of prosecutrix is sufficient to base conviction but it has to be borne in mind that her testimony must be confidence inspiring in nature and the same must bear ring of truth around it. In the present case, statement on oath of prosecutrix has been perused with care. Her statement is discrepant in nature and her version on oath also goes contrary to the contents of FIR on material particulars of the case. Furthermore, medico legal certificate also does not support her cause about the presence of injuries on her person. Material pieces of evidence in the shape of broken bangles and blood stained shirt had not been handed over to the police by the prosecutrix. Moreover, there is inordinate delay in lodging FIR and prosecutrix has failed to give satisfactory explanation for not reporting the matter with the police with due promptitude. Hence, the above noted facts and circumstances go to show that the prosecution story is not worthy of acceptance qua the involvement of the accused in this case. 19. Moreover, there is inordinate delay in lodging FIR and prosecutrix has failed to give satisfactory explanation for not reporting the matter with the police with due promptitude. Hence, the above noted facts and circumstances go to show that the prosecution story is not worthy of acceptance qua the involvement of the accused in this case. 19. Hence, it cannot be said that prosecution has been able to prove its case, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that the accused subjected the prosecutrix to sexual intercourse without her consent. 20. For all the aforesaid reasons, we find no reason to interfere with the well reasoned judgment passed by the trial Court. The Court has fully appreciated the evidence so placed on record by the parties. 21. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Mohammed Ankoos and others v. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94 , it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. Appeal stands disposed of, so also pending application(s), if any.