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Himachal Pradesh High Court · body

2014 DIGILAW 1503 (HP)

Manga Singh v. State of H. P.

2014-10-22

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT Rajiv Sharma, J. This appeal is instituted against the judgment dated 28.9.2010 rendered by the Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala in RBT SC No. 36-N/VII/10 whereby the appellant-accused (hereinafter referred to as the “accused” for convenience sake), who was charged with and tried for offence punishable under section 376 of the Indian Penal Code has been convicted and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 25,000/- and in default of payment of fine, he was ordered to undergo rigorous imprisonment for a period of one year. 2. Case of the prosecution, in a nutshell, is that prosecutrix was studying in Government Primary School, Kandwal. On 4.3.2010, when the school timing was over at about 2.30 P.M. she did not go to home. The brother of prosecutrix was called. She was sent with her brother. However, she came back. She was reluctant to go home. The prosecutrix was asked by the teacher Pooja Mahajan in presence of two other lady teachers Ritubala and Chandarkanta. The prosecutrix told them that accused was her cousin. Accused and his mother had been torturing and beating her. Accused used to put off her clothes and used to commit sexual intercourse with her. Accused had been doing this act for the last three years. School teacher called the President of Gram Panchayat Narinder Kumar. He came to the school and asked the prosecutrix. The prosecutrix told the President all the facts which were narrated to the school teachers. The police was informed. I.O. came to the spot. He recorded the statement of Pooja Mahajan under section 154 of the Code of Criminal Procedure. FIR was registered. The prosecutrix was taken for her medical examination. She was got medically examined. Clothes, vaginal, vulval slides and swabs were taken into possession. These were sent for chemical examination. Accused was also medically examined. Police investigated the case and the challan was put up in the court after completing all the codal formalities. 3. Prosecution examined as many as ten witnesses in all to prove its case against the accused. Statement of accused under Section 313 Cr.P.C. was recorded. He has denied the case of the prosecution in entirety. Learned trial Court convicted and sentenced the accused as noticed hereinabove. 4. Mr. 3. Prosecution examined as many as ten witnesses in all to prove its case against the accused. Statement of accused under Section 313 Cr.P.C. was recorded. He has denied the case of the prosecution in entirety. Learned trial Court convicted and sentenced the accused as noticed hereinabove. 4. Mr. Vijay Chaudhary, has vehemently argued that the prosecution has miserably failed to prove its case against the accused. He has primarily relied upon the statements of PW-6 Dr. Neerja Gupta and PW-7 Dr. Pooja Gupta. 5. Mr. M.A. Khan, learned Additional Advocate General has supported the judgment passed by the trial Court. 6. We have heard the learned counsel for the parties and have gone through the record carefully. 7. PW-1 Pooja Mahajan has deposed that she was JBT teacher in Government Primary School, Kandwal for the last five years. In the month of March, 2010, prosecutrix was studying in third class. On 4.3.2010, the school time was over at 2.30 P.M. Prosecutrix came back after two minutes and told that she would not go home. She called her brother. He was studying in 6th class. She sent her with him. However, she again came back. She called two teachers Ritu Bala and Chanderkanta. Prosecutrix told that her aunt Rita and her son Manga Ram used to torture and beat her in the house. She told that during night Manga Ram forcibly committed sexual intercourse with her. Accused had been doing this act for the last three years. Accused had been doing this daily during night. Accused also used to tell her not to disclose this to any body. Pradhan Narinder was called. He asked the prosecutrix. She narrated the incident to him. Police recorded her statement Ex.PW-1/A. She has admitted in her cross-examination that the Pradhan was standing outside when her statement was recorded. 8. PW-2 Ritu Bala has deposed that on 4.3.2010 at 2.30 P.M. when the school timing was over Madam Pooja Mahajan called her alongwith teacher Chanderkanta. She told them that prosecutrix was not going to her house. Prosecutrix told that her aunt and her son had been beating her. Accused had been committing sexual intercourse with her during night. Accused had been doing this for the last three years. Pradhan Narinder was called. Pradhan also inquired from the prosecutrix. She narrated all the facts to him. She told them that prosecutrix was not going to her house. Prosecutrix told that her aunt and her son had been beating her. Accused had been committing sexual intercourse with her during night. Accused had been doing this for the last three years. Pradhan Narinder was called. Pradhan also inquired from the prosecutrix. She narrated all the facts to him. She has admitted in her cross-examination that when Madam Pooja called her, prosecutrix was not present. Volunteered that they had taken prosecutrix to the office. She has also admitted that Pradhan had come on the date of recording of her statement. She has also admitted that she has come with the Pradhan. 9. PW-3 Narinder Kumar has deposed that he was called by a teacher Pooja Mahajan telephonically to the Primary School on 4.3.2010. He went to the school. The teacher told him that prosecutrix was saying that her aunt and her son were torturing her. She told that during night accused slept with her and he used to put off his clothes and used to rub his private part on her body. He used to commit sexual intercourse with her. She told that accused had been doing this for the last two years. He informed the police. The police got the prosecutrix medically examined and also prepared the spot map. He has admitted in his cross-examination that he had come with the school teachers. 10. Statement of PW-4 prosecutrix was recorded on oath. She has deposed that she was studying in 3rd class in Kandwal Primary School. She used to stay in the house of her aunt and accused also used to stay with them. Her brother was also staying with them. Accused used to put off her clothes in the night and used to make her sleep with him. He also used to put off his clothes. He used to touch his private part with her private part. He used to insert his private part inside her private part. Accused used to tell her not to disclose it to anybody. Accused had been doing it with her since the time when she was in first class. He also threatened her to do away with her life. On 4.3.2010, when the school was over, she told this fact to Pooja Madam. Two other teachers came there. She disclosed this fact to them. Accused had been doing it with her since the time when she was in first class. He also threatened her to do away with her life. On 4.3.2010, when the school was over, she told this fact to Pooja Madam. Two other teachers came there. She disclosed this fact to them. Later on, Pradhan had also reached on the spot. In her cross-examination, she has admitted that she used to sleep with her aunt and brother Aryan. Volunteered that despite refusal on the part of her aunt, accused used to make her sleep with him. She had come to the Court with her father. 11. PW-5 Dr. Kapil Sharma has examined the accused. He has issued MLC Ex.PW-5/B. According to him, accused was capable of performing sexual intercourse. 12. PW-6 Dr. Neerja Gupta has medically examined the prosecutrix on 4.3.2010. She issued MLC Ex.PW-6/B. There were no injury marks on her body. According to MLC, there was no injury over chest, arms, face, back, abdomen, eyes, legs and perineal region or buttocks. There was no injury or congestion over the labia and hymen. Vaginal swabs and vaginal slides could not be taken. On 26.4.2010, police has produced the report of Gynecologist. In view of the report of Gynecologist, there was no evidence to suggest that sexual act has not taken place. She gave her opinion Ex.PW-6/C. As per report, the age of the prosecutrix was 14 years. She has given her opinion regarding age Ex.PW-6/E. According to her, in case of slightest penetration, hymen would not tear. In her cross-examination, she has admitted that if adult commit sexual intercourse with the child, who was examined by her, the hymen would tear. Volunteered that it would only be possible if there was complete penetration. She has admitted that in view of observation, there was no penetration. 13. PW-7 Dr. Pooja Gupta has deposed that the patient was already examined at Nurpur Civil Hospital. Since there was no Gynecologist in Zonal Hospital, Dharamshala, the patient was referred to Tanda Hospital. There was no history of any pain, bleeding per vagina. There was no history of any difficulty during micturation and efecation. There was no menarche. There were no injury marks or inflammation. There was no discharge, stain or bleeding or vulva. Urepheral opening was normal. Fortuettee and hymen were intact and circular. There was no history of any pain, bleeding per vagina. There was no history of any difficulty during micturation and efecation. There was no menarche. There were no injury marks or inflammation. There was no discharge, stain or bleeding or vulva. Urepheral opening was normal. Fortuettee and hymen were intact and circular. Vaginal and vulval slides and swabs were taken and handed over to Constable Satish. The F.S.L. report is Ex.PX. As per her final opinion, there was no evidence to suggest that sexual act has not taken place. She has given her observation/opinion on the reverse of MLC Ex.PW-6/B vide Ex.PW-7/A. In her cross-examination, she has admitted that she was not sure whether the sexual intercourse had taken place or not. 14. Statement of PW-8 Suram Singh is formal in nature. 15. PW-9 ASI Rakesh Kumar has deposed that on 4.3.2010 at 3.00 P.M. after receiving the information, Rapat Ex.PW-9/A was recorded. He reached Kandwal, Primary School. He recorded the statement of Pooja Mahajan Ex.PW-1/A. He appended endorsement Ex.PW- 9/A. FIR Ex.PW-9/C was registered. It was signed by Inspector Kamaljit. He also recorded the statements of two other lady teachers and residents of Panchayat. He inspected the spot and prepared spot map Ex.PW-9/D. He moved application Ex.PW-6/A for the medical examination of the prosecutrix and obtained MLC Ex.PW- 6/B. The Medical officer handed over the clothes of prosecutrix to him in a sealed parcel. She was got medically examined on 5.3.2010 at Tanda. He arrested the accused on 4.3.2010. He recorded the statement of prosecutrix on 6.3.2010. The Medical Officer handed over the trousers of the accused in a sealed parcel. He deposited the same with the MHC. He has also obtained the opinion of the Doctor regarding the age of the prosecutrix. He has also obtained the certificate of the prosecutrix from the school. 16. PW-10 Sudarashan has deposed that MHC Sawrup Singh handed over to him three sealed parcels and one sealed vial sealed with seal ‘M’, two envelops sealed with seal ‘CH’ and one letter. These articles were handed over to him vide RC 62/10. He deposited all these articles with F.S.L. Junga on 11.3.2010. 17. According to the prosecutrix, she used to stay in the house of her aunt. Her brother was also staying with them. Accused used to make her sleep with him. He also used to put off his clothes. These articles were handed over to him vide RC 62/10. He deposited all these articles with F.S.L. Junga on 11.3.2010. 17. According to the prosecutrix, she used to stay in the house of her aunt. Her brother was also staying with them. Accused used to make her sleep with him. He also used to put off his clothes. He used to touch his private part with her private part. He used to tell her not to disclose it to anybody. In her cross-examination, she has categorically deposed that she used to sleep with her aunt and brother Aryan. Volunteered that despite refusal on the part of her aunt, accused used to make her sleep with him. In Indian society, no aunt would permit her son to sleep with a young girl. In one breath she has stated that she used to sleep with her aunt and in the next breath she has stated that accused used to make her sleep with him. In the present case PW-6 Dr. Neerja Gupta has issued MLC Ex.PW-6/B. She has not noticed any injury on her body. There were no injury on her chest, arms, face, back, abdomen, eyes, legs and perineal region or buttocks. She has given the opinion after the report of the Chemical Examiner and Radiologist. Radiologist has given the age of prosecutrix as 14 years. In her cross-examination, she has categorically admitted that if an adult commits sexual intercourse with the child, who was examined by her, the hymen would tear. According to her examination-in-chief, there was no congestion over the labia and hymen. She has also admitted that in view of her observation there was no penetration. She has waited for the opinion of the Gynecologist’s report. 18. PW-7 Dr. Pooja Gupta has examined the prosecutrix on 5.3.2010. According to her also, there was no history of any pain and bleeding. There was no history of any difficulty during micturation and defecation. There was no menarche. There was no injury marks or inflammation. There was no discharge, stain or bleeding. There were no injury marks over chest, thigh, face, abdomen, back or lips. Fortuettee and hymen were intact and circular. She has given her opinion vide Ex.PW-7/A. We have already noticed hereinabove that in her cross-examination, PW-7 Dr. Pooja Gupta has admitted that she was not sure whether the sexual intercourse had taken place or not. 19. There were no injury marks over chest, thigh, face, abdomen, back or lips. Fortuettee and hymen were intact and circular. She has given her opinion vide Ex.PW-7/A. We have already noticed hereinabove that in her cross-examination, PW-7 Dr. Pooja Gupta has admitted that she was not sure whether the sexual intercourse had taken place or not. 19. Statement of PW-1 Pooja Mahajan was recorded under section 154 of the Code of Criminal Procedure vide Ex.PW-1/A. PW-1 Pooja Mahajan and PW- 2 Ritu Bala have deposed that they have come to the Court with Pradhan PW-3 Narinder Kumar. PW-3 Narinder Kumar has also deposed that he has come to the Court alongwith teachers. PW-4 prosecutrix has deposed that she has come to the court with her father. Accused is her cousin. Prosecutrix was staying with her aunt, i.e. brother’s sister. The opinions of PW-6 Neerja Gupta and PW-7 Pooja Gupta are not conclusive that the accused has forcibly committed sexual intercourse with the prosecutrix. We have already noticed that the hymen was not ruptured and as per statement of PW-6 Neerja Gupta there was no penetration. The version of the prosecutrix that her modesty was repeatedly outraged by the accused is neither borne out from the statement of PW-6 Neerja Gupta nor from the statement of PW-7 Pooja Gupta. The prosecutrix would have definitely told the incident to her mother and father. The father though accompanied her to the court at the time of recording her statement, but he was not cited as a witness. 20. Their Lordships of the Hon'ble Supreme Court in Raju and others vs. State of Madhya Pradesh, (2008) 15 SCC 133 have held that stains on the underwear of accused itself cannot support case of rape against the accused and that the accused must be protected against the possibility of false implication. Their Lordships have further held that in so far as the allegations of rape are concerned, the evidence of prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should without exception be taken as the gospel truth. Their Lordships have held as under: “10. Their Lordships have held as under: “10. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspect and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the Court. 11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration. 12. Reference has been made in Gurmit Singh's case to the amendments in 1983 to Sections 375 and 376 of the India Penal Code making the penal provisions relating to rape more stringent, and also to Section 114A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113A and 113B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two Sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualized as the presumption under Section 114A is extremely restricted in its applicability. These two Sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualized as the presumption under Section 114A is extremely restricted in its applicability. This clearly shows that in so far as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined. 21. Their Lordships of the Hon'ble Supreme Court in Tameezuddin alias Tammu vs. State (NCT of Delhi), (2009) 15 SCC 566 have held that though evidence of prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. Their Lordships have held as under: “9. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. We are of the opinion that story is indeed improbable. 10. We note from the evidence that PW.l had narrated the sordid story to PW.2 on his return from the market and he had very gracefully told the appellant that everything was forgiven and forgotten but had nevertheless lured him to the police station. If such statement had indeed been made by the PW. 2 there would have been no occasion to even go to the police station. Assuming, however, that the appellant was naive and unaware that he was being lead deceitfully to the police station, once having reached there he could not have failed to realize his predicament as the trappings of a police station are familiar and distinctive. 2 there would have been no occasion to even go to the police station. Assuming, however, that the appellant was naive and unaware that he was being lead deceitfully to the police station, once having reached there he could not have failed to realize his predicament as the trappings of a police station are familiar and distinctive. Even otherwise, the evidence shows that the appellant had been running a kirana shop in this area, and would, thus, have been aware of the location of the Police Station. In this view of the matter, some supporting evidence was essential for the prosecution's case.” 22. Their Lordships of the Hon'ble Supreme Court in Narender Kumar vs. State (NCT of Delhi), (2012) 7 SCC 171 have held that minor or insignificant inconsistencies, discrepancies or contradictions in the statement of prosecutrix are inconsequential. However, if the statement of prosecutrix suffers from serious infirmities, inconsistencies and deliberate improvements on material points, no reliance can be placed thereon. Their Lordships have further held that onus of proof is on the prosecution to establish each ingredient of offence beyond reasonable doubt on basis of cogent evidence and material on record. Their Lordships have further held that the sole testimony of prosecutrix can be relied for the purpose of conviction without any corroboration if inspires confidence, but if court finds it difficult to accept version of prosecutrix on its face value, it may look for corroboration by other evidence, direct or circumstantial. The Court must appreciate evidence in its totality with utmost sensitivity. Their Lordships have held as under: “20. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. 21. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. 21. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. 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 finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony. (Vide: Vimal Suresh Kamble v. Chaluverapinake Apal S.P. & Anr., AIR 2003 SC 818 ; and Vishnu v. State of Maharashtra, AIR 2006 SC 508 ). 29. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. (Vide: Tukaram & Anr. v. The State of Maharashtra,, AIR 1979 SC 185 ; and Uday v. State of Karnataka, AIR 2003 SC 1639 ). 30. Prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. 30. Prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected. 31. The court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. Even if the prosecutrix is of easy virtue/unchaste woman that itself cannot be a determinative factor and the court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of. 32. The instant case is required to be decided in the light of the aforesaid settled legal propositions. We have appreciated the evidence on record and reached the conclusions mentioned hereinabove. Even by any stretch of imagination it cannot be held that the prosecutrix was not knowing the appellant prior to the incident. The given facts and circumstances, make it crystal clear that if the evidence of the prosecutrix is read and considered in totality of the circumstances alongwith the other evidence on record, in which the offence is alleged to have been committed, we are of the view that her deposition does not inspire confidence. The prosecution has not disclosed the true genesis of the crime. In such a fact-situation, the appellant becomes entitled to the benefit of doubt.” 23. Consequently, in view of analysis and discussion made hereinabove, the prosecution has failed to prove the case for offence under section 376 of the Indian Penal Code beyond reasonable doubt against the accused. 24. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 28.9.2010 rendered in RBT SC No. 36-N/VII/10 is set aside. Accused is acquitted of the charge framed against him by giving him benefit of doubt. Fine amount, if already deposited, be refunded to the accused. Since the accused is in jail, he be released forthwith, if not required in any other case. 25. Judgment of conviction and sentence dated 28.9.2010 rendered in RBT SC No. 36-N/VII/10 is set aside. Accused is acquitted of the charge framed against him by giving him benefit of doubt. Fine amount, if already deposited, be refunded to the accused. Since the accused is in jail, he be released forthwith, if not required in any other case. 25. The Registry is directed to prepare the release warrant of accused and send the same to the Superintendent of Jail concerned in conformity with this judgment forthwith.