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2014 DIGILAW 1227 (HP)

State of Himachal Pradesh v. Thakur Dass

2014-09-10

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT Sureshwar Thakur, J. 1. The instant appeal is preferred by the State against the judgment, rendered on 31.12.2007, by the learned Sessions Judge, Mandi, H.P. in Sessions Trial No. 31 of 2005, whereby, the accused-respondent has been acquitted for the commission of offences under Sections 452, 376 and 506 of the Indian Penal Code. 2. Brief facts of the case are that on 9.10.2004, at about 3.00 P.M. the prosecutrix was cleaning her house and in the meantime accused Thakur Dass came there and started threatening the prosecutrix by uttering word “Randi Ab Kahan Jayegi.” The prosecutrix, owing to fear, went towards roof of her house and accused also came there and dragged and brought her down in the room and bolted the door from inside. The accused forcibly opened the string of her Salwar and when she tried to raise cries, the accused gagged her mouth. Thereafter, the accused subjected her to rape. The accused also threatened the prosecutrix not to disclose the incident to any person as he would kill her. At night, the accused sent his son to the house of the prosecutrix, who also threatened the prosecutrix not to disclose the incident to any person or defame his father, otherwise she would be finished. The son of the prosecutrix is working as Coolie and was away from her home at that time and her daughter had gone to graze the cattle. On the third day of the incident, the prosecutrix went to District Courts Mandi and got written complaint Ext. PA which she filed before the S.P. Mandi. Thereafter, the S.P. Mandi ordered the registration of the case against the accused on the basis of which F.I.R. Ext. PN was registered. 3. After completion of the necessary investigation, into the offences, allegedly committed by the accused/respondent, challan was filed under Section 173 of the Code of Criminal Procedure. 4. The respondent-accused was charged for having committed offences punishable under Sections 452, 376 and 506 of the Indian Penal Code, by the learned trial Court, to which he pleaded not guilty and claimed trial. 5. In proof of the prosecution case, the prosecution examined as many as 17 witnesses. On closure of the prosecution evidence, the statement of respondent under Section 313 Cr. P.C. was recorded by the Court, in which he claimed false implication and pleaded innocence. In defence, the respondent/accused examined three witnesses. 6. 5. In proof of the prosecution case, the prosecution examined as many as 17 witnesses. On closure of the prosecution evidence, the statement of respondent under Section 313 Cr. P.C. was recorded by the Court, in which he claimed false implication and pleaded innocence. In defence, the respondent/accused examined three witnesses. 6. On appraisal of the evidence on record, the learned trial Court acquitted the accused for the commission of offences punishable under Sections 452, 376 and 506 of the Indian Penal Code. 7. The State of H.P. is aggrieved by the judgment of acquittal recorded by the learned trial Court. The learned Assistant Advocate General has concertedly and vigorously contended that the findings of acquittal recorded by the learned trial Court are not based on a proper appreciation of the evidence on record, rather, they are sequelled by gross mis-appreciation of the material on record. Hence, he contends that the findings of acquittal be reversed by this Court in the exercise of its appellate jurisdiction and be replaced by findings of conviction. 8. On the other hand, the learned counsel appearing for the respondent-accused has with considerable force and vigour contended that the findings of acquittal recorded by the Court below are based on a mature and balanced appreciation of evidence on record and do not necessitate interference, rather merit vindication. 9. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 10. The first witness, who stepped into the witness box, to prove the prosecution case, the prosecutrix (PW-1), deposes that she knew the respondent-accused. He is deposed to be her neighbourer. She further deposes that she is widow and her husband died about three years back. She did not remember the date of occurrence, however, she deposes that it was Saturday and it was about 2 ½ years back. About 3.00 P.M. she was cleaning her house with broom, when the accused came inside her house and bolted the door from inside. Thereafter, the accused forcibly removed her salwar. She continues to depose that she raised hue and cry and the accused tried to gag her mouth. Thereafter, the accused subjected her to forcible intercourse. She further deposes that at the relevant time she was all alone in the house and thereafter the accused left her house. Thereafter, the accused forcibly removed her salwar. She continues to depose that she raised hue and cry and the accused tried to gag her mouth. Thereafter, the accused subjected her to forcible intercourse. She further deposes that at the relevant time she was all alone in the house and thereafter the accused left her house. She proceeds to depose that her two children had gone to school at that time and her elder son had gone to his work and a daughter to fields to cut grass. When her daughter Bhensru Devi came back to house from the fields, at about 4.30 P.M. she (the prosecutrix) was weeping and narrated her the entire incident. She further deposes that she did not divulge the incident to her son Bhim, who also returned home in the evening. She proceeds to depose that at night, Raju, son of the accused, came to her house and he asked her that as to why her father was being defamed and threatened of dire consequences. Thereafter, the accused also came at her house and he also threatened and abused her. The prosecutrix (PW-1) further deposes that the accused also threatened her not to disclose the matter to any person and out of fear and shame, she could not report the matter to any person. On third day of the incident, she went to the District Court, Mandi where she got written an application from an Advocate and the same was submitted to S.P. Mandi. The said application is deposed to be Ext. PA and bearing her thumb impression. Thereafter, she submitted the said application at Police Station, Sadar and the case was registered against the accused. She continues to depose that she was got medically examined by the police at Zonal Hospital, Mandi. During her cross-examination, this witness concedes the fact that there are 80-90 houses in village Thata. She denies the fact that immediately adjacent to her house is the house of Vice President Khime Ram, which is at a distance of 10-15 foot steps. She also admits the fact that the house of her Devar Labh Singh is in front of her house, adjoining to the house of Khime Ram. There are houses of Khub Ram and Beli Ram in front of her house. She also admits the fact that the house of her Devar Labh Singh is in front of her house, adjoining to the house of Khime Ram. There are houses of Khub Ram and Beli Ram in front of her house. She further deposes that the accused had raped her again about 5-6 months back in Kuhl in the village and she had lodged formal report at Police Post, Pandoh. Police made inquiries about the incident and the accused was taken to the Police Station. However, she was not medically examined. She admits the fact that the accused was claiming path through her land which she was opposing. 11. PW-2 (Bhensru Devi), the daughter of the prosecutrix (PW-1) deposes that on 9.10.2014, she had gone to cow shed which is far away from the house and came back at about 3.00 P.M. and when she returned home, her mother was brooming the room at home. In the meantime, the accused, present in the Court, came and bolted the room from inside. She further deposes that when she went to cow shed, her mother was all alone at home and when she returned, her mother told her that the accused subjected her mother to forcible sexual intercourse. During her cross-examination, PW-2, deposes that her brother (Bhim Singh) reached home prior to her arrival on that day, however, she feigns ignorance about the exact time of his arrival. She proceeds to depose that they are in good relations with the family of Khime Ram, Up-Pradhan. She admits the suggestion, put to her, that houses of Khime Ram and Labh Singh are at a distance of 5 meters from her house and facing her house. She proceeds to depose that the cow shed is situated at a distance of 2 to 2½ hours distance from their house and her mother also went to the cow shed on the next day of the incident. She denies the suggestion, put to her, that she is deposing falsely because of inimical relations of her mother with the accused. 12. PW-3, Led Ram, Ward Panch, Gram Panchayat, Deori, deposes that on 13.10.2004, he was associated by the police in investigation of the case along with witness Churamani. On that very date, he deposes that, he came to know that the accused, present in the Court, had committed rape on the prosecutrix (PW-1) on 9.10.2004. 12. PW-3, Led Ram, Ward Panch, Gram Panchayat, Deori, deposes that on 13.10.2004, he was associated by the police in investigation of the case along with witness Churamani. On that very date, he deposes that, he came to know that the accused, present in the Court, had committed rape on the prosecutrix (PW-1) on 9.10.2004. He further deposes that the case property, search and seizure from comprised in Ext. PC was filled up by the police which deposed to be bearing his signatures and that of the above witness. During his cross-examination, he deposes that Bhim Singh was working as Coolie with him at the relevant time and he never divulged him about the incident prior to 13.10.2004. He concedes to the fact that the path by the side of house of the prosecutrix is common path. Labh Singh, who is brother of husband of the prosecutrix, was also working with him and he also not narrated any such incident to this witness. 13. PW-4 (Dr. Vanita Kappor) deposes that on 12.10.2004, an application comprised in Ext. PE was moved by the police for medical examination of the prosecutrix and she medically examined her at 3.30 P.M. on the same day after obtaining her consent. She found no sign of fresh injury on private parts and thigh of the prosecutrix. She proceeds to depose that after examination, she issued MLC comprised in Ext. PF, which is deposed to be in her hand and bearing her signatures. 14. PW-5 (Dr. Jiwa Nand Chauhan) deposes that on 18.10.2004, he examined the accused, present in the Court and identifies him to be the same person brought by the police with the history of raping a lady on 9.10.2004. In his opinion, it has been concluded that there is nothing to suggest that the person examined is not capable of performing sexual act. There was no injury on the surface of the penis of the person examined. He continues to depose that application comprised in Ext. PJ was produced before him by the police which deposes to be bearing his signatures and after examination, he issued MLC comprised in Ext. PJ. During his cross examination, he denies the suggestion, put to him, that initially he gave opinion that the person examined is not capable of performing sexual act. 15. PJ was produced before him by the police which deposes to be bearing his signatures and after examination, he issued MLC comprised in Ext. PJ. During his cross examination, he denies the suggestion, put to him, that initially he gave opinion that the person examined is not capable of performing sexual act. 15. PW-6 (Tara Chand Sharma) deposes that on 12.10.2004, the prosecutrix approached him and requested him to write in Hindi an application and he had written the application on the information given by her, which is Ext. PA. He continues to depose that later he read over the application to her and she put the thumb impression on the said application in his presence. 16. PW-7 (Dele Ram) has not supported the prosecution case since during their examination-in-chief having not supported the prosecution witness, he was declared hostile and was requested by the learned public prosecutor to be cross-examined, on his request having come to be acceded to he was cross-examined by the learned public prosecutor but no incriminating material against the accused could be elicited from his cross-examination. 17. PW-8 (HHC Raj Kumar) deposes that on 12.10.2004 one complaint Ext. PA forwarded by the S.P. was received by him. He entered the said application in the daily diary at No. 11 dated 12.10.2004, copy of which is Ext. PM, which was sent to P.S. Sadar Mandi for the registration of the case under Section 376 IPC. 18. PW-9 (HC Rajeev Kumar) deposes that on 12.10.2004, he received copy of DD No. 11 comprised in Ext. PM on the basis of which F.I.R. comprised in Ext. PN was registered by him, which is deposed to be in his hand and bearing his signatures. He further deposes that he also appended an endorsement at portion A to B on the back side of Ruqua comprised in Ext. PM and the case file was sent to Police Post, Pandoh for investigation. 19. PW-10 (Constable Prakash Chand) deposes that on 17.10.2004, he, along with Dole Ram witness, was associated in the investigation of the case. He further deposes that the accused, present in the Court, produced his underwear which was taken into possession vide recovery memo comprised in Ext. PK and seizure form Ext. PO which is deposed to be bearing his signatures as well as that of Dole Ram witness. He further deposes that the accused, present in the Court, produced his underwear which was taken into possession vide recovery memo comprised in Ext. PK and seizure form Ext. PO which is deposed to be bearing his signatures as well as that of Dole Ram witness. In his cross-examination, he deposes that underwear Ext.P-8 was produced by the accused at his house in village Thata and village Thata is at a distance of 10 kilometers from Police Post, Pandoh. 20. PW-11 (ASI Bhim Sen) deposes that on 12.10.2004, the prosecutrix came to Police Post City, Mandi and produced complaint comprised in Ext. PA forwarded by the S.P. Mandi which was entered in the daily diary and thereafter he wrote Ext. PE to the M.O. for medical examination of the prosecutrix and obtained the MLC after deputing LC Rekha Devi with the prosecutrix. 21. PW-12 (N.K. Sharma) deposes that the investigation of the case was conducted by ASI Ram Lal, Incharge, Police Post, Pandoh, who is dead now and after verifying the investigation, he prepared the challan and presented the same in the Court. During his crossexamination, he denies the suggestion, put to him, that Ram Lal has conducted the investigation in a biased manner so as to implicate the accused. 22. PW-13 (LC Rekha Devi) deposes that on 13.10.2004, she accompanied the prosecutrix to Zonal Hospital, Mandi for her medical examination and after her medical examination, the doctor issued MLC and handed over two sealed parcels, along with specimen seals, to her. Both the sealed parcels, along with specimen seals, were deposited by her with HHC Baldev Singh. She further deposes that so long as the parcels remained in her possession, nobody tampered with the same. 23. PW-14 (Constable Jagdish Chand) deposes that on 13.10.2004, ASI Ram Lal, Incharge, Police Post, Pandoh, deposited with him one sealed parcel, sealed with seal-L, said to be containing Salwar and Kameez of the prosecutrix along with specimen seal-L which is deposed to be entered in the Malkhana Register. 23. PW-14 (Constable Jagdish Chand) deposes that on 13.10.2004, ASI Ram Lal, Incharge, Police Post, Pandoh, deposited with him one sealed parcel, sealed with seal-L, said to be containing Salwar and Kameez of the prosecutrix along with specimen seal-L which is deposed to be entered in the Malkhana Register. He continues to depose that on 17.10.2004, ASI Ram Lal deposited with him one sealed parcel said to be containing underwear of accused which was sealed with seal-R along with specimen seal-R and both the above sealed parcels were handed over to HHC Roshan Lal on 18.10.2004 along with specimen seals L and R vide RC No.21/04 for depositing the same in Police Station, Sadar, Mandi. 24. PW-15 (Dharam Chand) deposes that the sealed parcel handed over to him by HHC Baldev alongwith specimen seal were deposited by him at F.S.L. Junga vide R/C No. 171/04 and so long as these sealed parcels remained in his possession nobody tampered with the same. During his cross-examination he denies the suggestion put to him that no such articles were handed over to him by the Addl. MHC, P.S. Sadar, Mandi and then at FSL, Junga. 25. PW-16 (HHC Baldev Singh) deposes that he had made the entries regarding the receipt and dispatch of the case property in the Malkhana Register No. 19, which is Ext. PS. 26. PW-17 (HHC Roshan Lal) is a formal recovery witness and deposes that so long the case property remained with him none tampered with the same. 27. DW-1 (Khub Ram) deposes that he knows the prosecutrix and the accused as they are from his village. He deposes that his house is at a distance of 15 feet from the house of the prosecutrix. He further deposes that prosecutrix is his Bhabhi in relation. He further deposes that the police enquired from them about the incident and they divulged that nothing had happened in the way as mentioned by the prosecutrix in the F.I.R. 28. DW-2 (Ved Ram) deposes that his house is at a distance of 5-6 meters from the house of Gindu Devi. He further deposes that there are 5-6 houses near to his house. He continues to depose that Gindu Devi or any of her family member never told him any incident of rape prior to visit of the police. 29. DW-2 (Ved Ram) deposes that his house is at a distance of 5-6 meters from the house of Gindu Devi. He further deposes that there are 5-6 houses near to his house. He continues to depose that Gindu Devi or any of her family member never told him any incident of rape prior to visit of the police. 29. DW-3 (Keshav Ram) deposes that his house is at a distance of 50 meters from that of the prosecutrix. He further deposes that on 13.10.2004, they came to know that the prosecutrix has made a report against the accused regarding rape. He continues to depose that the prosecutrix had a dispute with the accused relating to path. During his cross-examination, he feigns ignorance that the prosecutrix had lodged complaint in such like cases prior to the present incident in the Panchayat or Court. 30. The prosecutrix (PW-1) was allegedly subjected to forcible sexual intercourse at the instance of the accused. She, in her deposition, comprised in her examination-in-chief, has concerted to corroborate the genesis of the occurrence, comprised in complaint Ext. PA. She purportedly has lent corroboration to the depositions of PW-2 and PW-3. On a wholesome analysis of the depositions of the prosecution witnesses, aforesaid, the learned trial Court concluded that no implicit reliance can be placed on the testimonies of the prosecution witnesses, hence, concluded that the charges against the accused convincingly stands not proved. The learned Sessions Judge, had found the version of the prosecution witnesses un-inspiring as well as discrepant, hence, had concluded that they were unworthy of credence nor carry any probative value. This Court would not upset or reverse the findings recorded by the learned Sessions Judge in favour of the accused unless on a discerning study of the testimonies of the prosecution witnesses, it emerges that even while their testimonies are bereft of any inter-se or intra-se contradictions, hence, credible as well as inspiring have been untenably construed to be discardable by the learned Sessions Judge or the learned Sessions Judge while recording findings of acquittal in favour of the accused had not appreciated the material placed on record or mis-appreciated the evidence on record which, hence, has occasioned substantial miscarriage of justice necessitating of warranting interference by this Court. While proceeding to analyze the testimonies of the prosecution witnesses, initially comprised in the deposition of the prosecutrix, who appeared as PW-1, for gauging, whether it is or is not bereft of any inter-se or intra-se contradictions vis-a-vis the depositions of other prosecution witnesses, namely, PW-2 (Bhensru Devi) and PW-3 (Led Ram) as well as DWs, so as to render it, hence, credible or not credible, the preponderant fact, which engages the attention of this Court, is (i) of hers having made an initial disclosure of the incident to her daughter PW-2, who purportedly arrived home prior to the arrival of her son Bhim Singh. Hence, in the face of the arrival of her daughter PW-2 prior to the arrival of her son Bhim Singh, she deposes that the initial disclosure of the incident could not be made to Bhim Singh. However, the factum of Bhim Singh, having arrived home later than PW-2 and which later arrival of her son Bhim Singh precluded the prosecutrix to make an initial disclosure of the incident to her son, stands belied and is stripped of its veracity, in the face of PW-2 deposing that Bhim Singh, son of PW-1 and her brother had reached home prior to her arrival. With falsity being lent to the factum of the deposition of the prosecutrix of her son Bhim Singh having arrived home later than PW- 2, it, hence brings forth intra-se contradictions vis-à-vis the testimonies of PW-1 and PW-2 qua the fact of the disclosure of the incident to even PW-2 by the prosecutrix. If the above inference is drawable, consequently, it, (ii) appears that the prosecutrix omitted to disclose the incident promptly to even her daughter PW-2 as a concomitant then, if there was no prompt disclosure of the incident by the prosecutrix to her son Bhim Singh or even to PW-2, the natural sequel is that the prosecutrix had consensually succumbed to the purported forcible sexual intercourse perpetrated on her person by the accused. The inference, aforesaid, get impetus and momentum from the fact that (iii) even though the incident occurred on 9.10.2004, however, an F.I.R. qua the occurrence, as divulged by PW-1 came to be lodged only on 12.10.2004. Even qua the belated lodging of the F.I.R. qua the occurrence, there is no palpable explanation emanating from the prosecution. The inference, aforesaid, get impetus and momentum from the fact that (iii) even though the incident occurred on 9.10.2004, however, an F.I.R. qua the occurrence, as divulged by PW-1 came to be lodged only on 12.10.2004. Even qua the belated lodging of the F.I.R. qua the occurrence, there is no palpable explanation emanating from the prosecution. When delay in the lodging of the F.I.R. has remained unexplained, despite the Police station being located at a distance of about 1½ kilometers, and her on the next date having gone to collect grass by covering a distance of about 2½ kilometers, this Court is, as such, constrained to conclude that the version comprised in the deposition of PW-2 is both concocted as well as pre-meditated, hence, enjoys no sanctity, besides it conveys that the sexual intercourse, if any, perpetrated on the person of the prosecutrix by the accused, was consensual. 31. The factum of the prosecutrix having voluntarily succumbed to the sexual overtures of the accused gets fortified by the factum of the MLC of the prosecutrix comprised in Ext. PF omitting to record any injury portraying hers having resisted the purported sexual intercourse perpetrated on her person by the accused. For omission of portrayal of any marks of injuries, abrasions and bruises on the person of the prosecutrix in the MLC of the prosecutrix prepared by Dr. Vanita Kapoor (PW-4) comprised in Ext. PF, secures a formidable conclusion that she consensually succumbed to the purported sexual intercourse. Even the MLC of the accused comprised in Ext. PJ does too also omit to demonstrate any bruises, injuries or abrasions on his person as would have existed in case the prosecutrix had violently resisted the perpetration of the alleged forcible sexual intercourse on her person by the accused. Omission of reflection in the MLC of the accused of any injuries, bruises or abrasions on his person, connotes as well as signifies, that such omissions of reflections of injuries, abrasions or bruises on his person, portray the fact that the prosecutrix had voluntarily succumbed to the alleged perpetration of the forcible sexual intercourse on her person by the accused. 32. 32. Since the prosecutrix in her cross-examination has leveled allegations against the accused having also subsequent to the alleged incident inasmuch, as, 5-6 months prior to her statement being recorded in the Court subjected her to forcible sexual intercourse, whereas when such allegations per-se do not attain any truth in the face of her having not reported the matter either to the police or to the Panchayat hence begets the conclusion that even the fateful incident which occurred on 9.10.2004 is wholly concocted and invented or as the subsequent incident attributed to the accused is spurious so also the incident which occurred on 9.10.2004, is, both vitiated as well as spurious. 33. The defence witnesses who deposed as DW-1, DW-2 and DW-3 hence voiced in their respective deposition that they are in close proximity to the house of the prosecutrix and that they are closely related to the prosecutrix yet in one voice they have unanimously deposed that no disclosure qua the incident was made to them by the prosecutrix, besides they have omitted to depose in their respective examinations in chief that they over heard any shrieks or screams emanating from the house of the prosecutrix where the said incident took place. The aforesaid disclosure in their depositions communicates that the prosecutrix has omitted to scream or shriek as she was a consenting partner or had consensually succumbed to the sexual act perpetrated on her person on the fateful day. Even the Investigating Officer, who, after completion of the investigation, died and, hence, the learned counsel for the defence was deprived of an opportunity to cross examine him for ascertaining the reason for his omitting to associate the DWs in the investigation, despite the fact that theirs houses are located in immediate proximity to the site of occurrence, renders open an inference that they were deliberately or intentionally not joined in the investigation carried out by him as he intended to smother the truth qua the incident. The impartisan investigation carried out by him, hence, does not gain any credence. The learned trial Court has appreciated the testimonies of the prosecution witnesses in a fair, balanced and mature manner. Its appreciation of the testimonies of the prosecution witnesses does not suffer from any vice or taint or perversity. 34. The impartisan investigation carried out by him, hence, does not gain any credence. The learned trial Court has appreciated the testimonies of the prosecution witnesses in a fair, balanced and mature manner. Its appreciation of the testimonies of the prosecution witnesses does not suffer from any vice or taint or perversity. 34. Consequently, the appeal is dismissed and the impugned judgment of acquittal rendered by the learned trial Court in favour of the respondent/accused does not warrant any interference from this Court and the same is maintained and affirmed. Records of the trial Court below be sent down forthwith.