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Himachal Pradesh High Court · body

2014 DIGILAW 2006 (HP)

Kehar Singh v. State of H. P.

2014-12-24

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : SURESHWAR THAKUR, J. 1. The instant appeal is directed against the judgment, rendered on 30.11.2011, by the learned Additional Sessions Judge (I), Kangra at Dharamshala, H.P. in Sessions Case No. 43 of 2011, whereby, the accused/appellant has been convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.30,000/- under Section 376 IPC and in default of payment of fine, he has been sentenced to further undergo simple imprisonment for a period of six months. 2. The brief facts of the case are that prosecutrix PW-1 was attending tailoring session at Dadasiba with her aunt, Smt. Meena Kumari (PW- 7). It is alleged that on 24.11.2010 the prosecutrix had gone with her aunt for training but her aunt had returned home around 12.00 a.m. and the prosecutrix was returning home around 3.00 p.m. with her friends in a tractor trolley and alighted at Gurala, as they did not find a bus. At that time, the prosecutrix found that her bag was missing and thereafter she proceeded on foot towards Dadasiba. It is further alleged that around 3-3.30 p.m. Tarsem Singh (PW-8) Pammi, Subhash and accused Kehar Singh were sitting by the road side, some two kilometers behind Dadasiba towards Gurala. It is alleged that on her way, the prosecutrix met the above persons and accused Kehar Singh and they asked her as to where she was going, on which the prosecutrix told that she was going in search of her bag. It is alleged that thereafter these persons told that they had come from that side and they did not find her bag. Thereafter, Pammu asked accused Kehar Singh to take the prosecutrix to village Gurala on his scooter. It is alleged that though the accused took the prosecutrix on his scooter, but at some distance he stopped the scooter in the jungle, where there were bushes. It is alleged that thereafter accused Kehar Singh caught hold of the prosecutrix from her arms and took her towards the jungle even though, she objected to the act of the accused. Thereafter the accused laid the prosecutrix on the ground and committed rape on her. It is further alleged that thereafter accused brought the prosecutrix on his scooter up to Gurala and pushed her down from the scooter and fled away on his scooter. Thereafter the accused laid the prosecutrix on the ground and committed rape on her. It is further alleged that thereafter accused brought the prosecutrix on his scooter up to Gurala and pushed her down from the scooter and fled away on his scooter. It is alleged that on her way to her home, the prosecutrix met her aunt (PW-7) Meena Kumari and wife of Tarsem, while she was weeping and told them about the above incident. It is alleged that Tilak Raj (the father of the prosecutrix) reached his home around 6- 6.30 p.m and the prosecutrix also came weeping home and she told her father and mother about the entire incident. It is further alleged that Tilak Raj talked about the incident with Ward Panch Kashmir Singh and after arranging a vehicle Tilak Raj alongwith Kashmir Singh, the prosecutrix and her aunt went to Police Station, Dehra and lodged F.I.R Ext.PW-1/A around 12 in the night. It is alleged that the prosecutrix was got medically examined at Civil Hospital, Dehra and Dr. Anita Mahajan opined that the possibility of sexual intercourse could not be ruled out, as per MLC Ex.PW-1/B. It is alleged that the police came to prosecutrix's house on the next day and she produced her clothes i.e. Salwar Ex.P1 and Kameej Ex.P2, which were taken into possession vide memo Ext.PW- 1/C by the I.O. in the presence of witnesses. It is alleged that the accused took the police to the spot and the police took photographs of spot and prepared spot map. The police had also taken into possession the birth certificate of the prosecutrix. It is alleged that the clothes of the prosecutrix and accused were seized and sent to the FSL for examination and human semen was detected on shirt and salwar of the prosecutrix and underwear of accused Kehar Singh. 3. On conclusion of investigation into the offences, allegedly committed by the appellant/accused, challan was filed under Section 173 of the Code of Criminal Procedure. 4. The accused was charged for his having committed offence punishable under Section 376 IPC 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 14 witnesses. 4. The accused was charged for his having committed offence punishable under Section 376 IPC 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 14 witnesses. On closure of the prosecution evidence, statement of appellant/accused under Section 313 Cr.P.C. was recorded by the Court in which he claimed false implication and pleaded innocence. He did not choose to lead evidence in defence. 6. On appraisal of evidence on record, the learned trial Court convicted and sentenced the accused for his having committed the offence, aforesaid. 7. The appellant/accused is aggrieved by the judgment of conviction, recorded by the learned trial Court. The learned counsel for the appellant/accused, has concertedly and vigorously contended that the findings of conviction, recorded by the learned trial Court, are not based on a proper appreciation of the evidence on record, rather, they are sequelled by gross misappreciation of the material on record. Hence, he contends that the findings of conviction be reversed by this Court, in the exercise of its appellate jurisdiction and be replaced by findings of acquittal. 8. On the other hand, the learned Deputy Advocate General, appearing for the respondent-State, has, with considerable force and vigour, contended that the findings of conviction, 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 prosecution case can succeed in the event an incisive discernment of the testimony of the prosecutrix unravels the fact of her testimony being both inspiring credible and trustworthy. Trustworthiness in its entirety would be imbued to her deposition comprised in her examination in chief in the event of hers having not contradicted it in her deposition comprised in her cross-examination. Besides even the deposition of the prosecutrix comprised in her examination-in-chief has also to be subjected to an incisive analysis for unearthing whether the story propounded by her therein is bereft of unnaturalness as also does not smack of any prevarication so as to erode the genesis of the prosecution version. Besides even the deposition of the prosecutrix comprised in her examination-in-chief has also to be subjected to an incisive analysis for unearthing whether the story propounded by her therein is bereft of unnaturalness as also does not smack of any prevarication so as to erode the genesis of the prosecution version. The prosecutrix in her examination-in-chief had portrayed therein that on the fateful day she had gone with her aunt for receiving training in tailoring at Dadasiba. However, her aunt had returned home at about 12.00 a.m. She proceeds to depose that their class ended around 3.00 p.m and that on closure of the training session for the day she alongwith her friends Shilpa and others were waiting for alighting a bus at Dadashiba for its commuting them to their native place. However, since the bus did not arrive, they boarded a tractor Trolley wherefrom they alighted at Gurala. She deposes that since she there noticed that her bag was missing, she hence proceeded towards Dadasiba on foot to locate it. However the genesis of the prosecution version of hers returning in the company of Shilpa and others after closure of training session in tailoring at 3 p.m. and theirs having waited for a bus at Dadasiba, which however not having arrived, they were constrained to board a Tractor Trolley which they alighted at Gurala, where she has noticed her bag to be missing which constrained her to proceed on foot towards Dadsiba, to gain credibility necessitated recording of the statements by the Investigating Officer of Shilpa and other friends in whose company she boarded the tractor trolley which they alighted at Gurala, at which latter place the prosecutrix having noticed that her bag was missing, constrained her for locating/detecting to proceed on foot towards Dadasiba. The recording of the statements of aforesaid Shilpa and other friends and their consequent examinations-in-chief would have given immense weight, probative force and sinew to the version as disclosed by the prosecutrix in her examination-in-chief of hers having alighted at Gurala from a Tractor Trolley which they boarded in the face of non-arrival of bus to commute them to their respective homes, she there having noticed that a bag was missing led her to retrace on foot towards Dadasiba to detect it. Consequently, the non-recording of the statements of the aforesaid and their consequent non-examination rather fillips an inference that as a matter of fact the prosecutrix had not on the fateful day on closure of the training sessions in tailoring returned home in the company of Shilpa and others nor also it can boost the further concomitant inference that she alighted from the tractor trolley at Gurala where she noticed that her bag was missing for whose detection she retraced her steps towards Dadasiba. Consequently, the genesis of the prosecution story which dominantly portrays the factum of hers having alighted the tractor trolley at Gurala where she noticed a bag was missing, for whose detection she retraced her steps towards Dadasiba, comes to suffer emasculation. Further more, if the above inference or deduction is ensueable, the further factum of hers having met on her retracing her steps towards Dadasiba for detecting her bag, the accused, along with Subhash Chand, Billu and Pammu, also loses credibility. Moreso, in the face of the Investigating Officer having omitted to examine Subhash Chand, Billu and Pammu in whose company the accused was when on hers retracing her steps towards Dadasiba for locating her missing bag she met him. As a corollary the non-recording of the statements of the aforesaid by the Investigating Officer and their nonexamination, hence constrains this Court to conclude that the accused when admitted by the prosecutrix to be known to her for the last 3-4 years had met the prosecutrix alone. Besides an inference also ought to be drawn especially in the face of genesis of the prosecution story for want of recording of the statements of class mates in whose company she was purportedly returning home in a tractor trolley till Gurala where she alighted and detected that her bag was missing and for whose detection she retraced her steps towards Dadasiba and the consequent non-examination, as such, renders the said factum to have remained unsubstantiated. The ensuing deduction is that the meeting interse the prosecutrix and the accused was prearranged and that too for a specific purpose. The ensuing deduction is that the meeting interse the prosecutrix and the accused was prearranged and that too for a specific purpose. Though the prosecution has examined one Tarsem Singh (PW-8) to portray the fact in substantiation of the version in the examination-in-chief of the prosecutrix of hers having while she was retracing her steps towards Dadasiba on hers alighting at Gurala where she met PW-8 alongwith accused and Subhash Chand, Billu and Pammu where the accused offered the prosecutrix a seat on his scooter for detecting her missing bag. Nonetheless when the prosecutrix has omitted to name PW-8 to be one of the persons in whose company the accused was when she met him renders his deposition qua the factum in purported corroboration of the deposition of PW-1 of hers having lost her bag, she having detected the factum of its being lost at Gurala which led her to retrace her steps towards Dadasiba to locate it, wherein she met the accused along with PW-8, to be incredible. It appears that PW-8 is merely a planted witness to lend corroboration to the slanted version of PW-1. 11. Consequently, hence reinforcingly, it can be concluded that as a matter of fact the prosecutrix was un-accompanied by her class mates on closure of training Sessions in tailoring for the day, besides a conclusion can also be formed that she did not meet the accused at Gurala rather she met him outside the premises of the institute where she received training in tailoring. With renewable vigour, it can be said that the prosecutrix has invented a false pretext of hers having alighted from the Tractor Trolley alongwith her classmates at Gurala where she detected the factum of her bag being lost for whose location she retraced her steps towards Dadasiba for locating it and enroute she having met the accused. Rather, when this Court concludes that the said factum is invented and manufactured, it can be firmly concluded that the meeting interse the prosecutrix and the accused was prearranged at a place other than Gurala. 12. Rather, when this Court concludes that the said factum is invented and manufactured, it can be firmly concluded that the meeting interse the prosecutrix and the accused was prearranged at a place other than Gurala. 12. The prosecutrix discloses in her examination in chief that on the consummation of the offence at the instance of the accused in a Jungle whereto both proceeded when they both alighted from the scooter, while she was returning home, she having met her aunt named Meena Kumari to whom a disclosure qua the incident was made also appears to be prevaricated and invented especially in the face of the appraisal of the examination-in-chief of PW- 7 Meena Kumari portraying that the prosecutrix met her around 4-4.30 p.m. whereas it appears in the cross-examination of PW-7 and also in the examination in chief of PW-2 (the father of the prosecutrix) that the prosecutrix had returned home at about 6-6.30 p.m., hence, rendering untruthful the factum of hers having met PW-7 on consummation of the offence at a time much prior to the returning home of the prosecutrix. Consequently, in face thereof, more especially when the prosecution has not brought home any evidence portraying that the distance of the shops near Gurala where PW-7 met the prosecutrix and where the latter disclosed the occurrence to her and the home of the prosecutrix where she had returned at about 6-6.30 p.m. is improximately located so as to consume 2-2½ hours therefrom till her home. Obviously, in the absence of above evidence a firm conclusion which is to be drawn that PW-7 never met the prosecutrix near the shop at Gurala at 4-4.30 p.m., besides it has also to be concluded that no disclosure of the occurrence was made by PW-1 to PW-7. Moreover what aggravates an inference of the prosecutrix having never met PW-7 is the factum as divulged in the cross-examination of PW-7 of hers not having on the day the police visited the village disclosed to them the factum of a disclosure having been made by the prosecutrix to her of the occurrence. Moreover what aggravates an inference of the prosecutrix having never met PW-7 is the factum as divulged in the cross-examination of PW-7 of hers not having on the day the police visited the village disclosed to them the factum of a disclosure having been made by the prosecutrix to her of the occurrence. Omission by PW-7 to disclose to the police immediately on theirs visiting the village rather her statement having come to be recorded 2 days subsequent to the occurrence constitutes it to be gripped with the vice of premeditation and concoction rendering hence the version as deposed by her in unison with PW-1 of the former having disclosed to the latter the factum of the alleged occurrence having taken place to be also incredible. In face thereof, the deposition of the prosecutrix qua the fact aforesaid comes to be ridden with falsity. 13. The prosecutrix in her cross-examination deposes that while she was astride the scooter, she fell down and sustained injuries. The factum of existence of injury on her face was noticed by her parents. It appears hence that when she apprised them the cause of the injuries inasmuch as hers having gained them while having fallen from the scooter of the accused on which she was astride enraged them, besides it appears that it led to an incisive effort on the part of her parents to elicit from her the factum of the occurrence, on such elicitation it appears that the prosecutrix contrived a version so as to inculpate the accused. Besides the factum of as emanating on a reading of the crossexamination of PW-4 of one Gyan Chand having seen the factum of the prosecutrix occupying the scooter along with the accused aroused the sense of honour and indignity of the family which constrained the prosecutrix to inculpate the accused. However such inculpation is a sheer machination on the part of the prosecutrix, in the face of aforesaid discussion unfolding the factum of hers while having known the accused for the last 3-4 years, she having had a prearranged encounter with him where-after she given the evident fact of hers having arrived at the age of consent consensually succumbed to his sexual overtures. The testimony of PW-9, the Doctor, though unfolds the factum of sexual intercourse having taken place nonetheless the further factum of absence of injuries other than injury No.1 which was noticed on the face and had occurred demonstrably as apparent from a disclosure in the cross-examination of the prosecutrix of her having fallen from the scooter of the accused on which she was astride repulses the factum of the accused having perpetrated forcible sexual intercourse on the victim. Besides no injury having been noticed on the private part of the prosecutrix personificatory of the prosecutrix having consented to the sexual overtures of the accused does impel this Court to conclude that the prosecutrix did not resist the sexual overtures of the accused rather she consensually succumbed to the same. In sequel when she was a consensual partner to the sexual overtures of the accused no inference of the accused having committed the offence can be drawn. 14. In view of the above discussion, the appeal is allowed and the impugned judgment is set aside. The appellant is acquitted of the offence charged. He be set at liberty forthwith, if not required in any other case. 15. The Registry is directed to prepare the release warrant of the appellant and send it to the Superintendent of the Jail concerned, in conformity with this judgment forthwith. Records of the trial Court be sent down forthwith.