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2015 DIGILAW 1774 (HP)

Vikas alias Viku v. State of Himachal Pradesh

2015-12-03

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Sureshwar Thakur, J. The instant appeal is directed against the judgment of the learned Additional Sessions Judge-III, Kangra at Dharamshala, District Kangra, Himachal Pradesh, rendered on 31.03.2015, in Session Trial No. 5- D/14, whereby the learned trial Court convicted the accused/appellant for his having committed an offence punishable under Section 376 of the Indian Penal Code and sentenced him to undergo imprisonment for life and to pay a fine of Rs.20,000/- and in default of payment of fine, sentenced him to suffer rigorous imprisonment for one month. 2. The facts relevant to decide the instant case are that on the intervening night of 1.8.2013 and 2.8.2013, at about 11 PM, prosecutrix , her neighbourer came to the house of complainant Sureshena Devi and at that time she was having a bamboo stick in her hand and it was raining and she was wet and shivering. When the complainant saw prosecutrix, she was wearing Salwar inside out. Thereafter, prosecutrix told her that two boys had come inside her house and one had closed the room and other loosened the Salwar and did the sexual intercourse with her. During this, he had also hit her on her face and other body parts. Complainant checked the Salwar which prosecutrix was wearing and found that there was blood stains on her Salwar. The son of the prosecutrix namely Sawroop Chand had gone to his in-laws house, which was near the house of the complainant, therefore, complainant called her son telephonically and took prosecutrix to her house. The clothes of the prosecutrix were got changed by the complainant and she saw injuries on the private parts of the prosecutrix and there was fresh bleeding. The complainant and Swaroop Chand, when searched the room of the prosecutrix, they found the mattress of the bed of the prosecutrix stained with blood and under the mattress some black coloured purse along with documents, photographs of accused Vikas and currency note of Rs.50/- were found, which belong to accused Vikas. With the help of purse they came to know that this act has been committed by accused Vikas. This matter could not be reported to the police on the said night due to heavy rains. However, on the next day they reported the matter to the police through Ward Member, Banita Kumari and her husband Surinder in Police Post, Yol. With the help of purse they came to know that this act has been committed by accused Vikas. This matter could not be reported to the police on the said night due to heavy rains. However, on the next day they reported the matter to the police through Ward Member, Banita Kumari and her husband Surinder in Police Post, Yol. The purse so recovered from the spot was handed over the police and the matter was reported to the police by the complainant Sureshna Devi vide her statement recorded under Section 154 Cr.P.C. on which rapat was made and thereafter FIR was registered. Medical examination of the prosecutrix was conducted at Zonal Hospital, Dharamshala and MLC was procured. During investigation the spot map was prepared and the Investigating Officer had also taken the photographs. During investigation also specimen seal impressions were taken on a piece of cloth. Both the accused were arrested and sealed samples were sent for chemical examination to RFSL and the report of the chemical examiner was obtained. Statements of witnesses were recorded. On conclusion of investigation, the challan was prepared and presented in the Court and accused were produced to face trial. 3. Accused was charged for his having committed an offence punishable under Section 376/34 of Indian Penal Code by the learned trial Court. In proof of the prosecution case, the prosecution examined 18 witnesses. On conclusion of recording of the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded by the Court, in which the accused claimed innocence and pleaded false implication in the case and chose not to lead evidence in defence. 4. On appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the accused/appellant. 5. The accused/appellant is aggrieved by the judgment of conviction recorded by the learned trial Court. The learned defence counsel has concerted to vigorously contend qua the findings of conviction recorded by the learned trial Court being not based on a proper appreciation of evidence on record, rather, theirs being sequelled by gross mis-appreciation of the material on record. Hence, he contends qua the findings of conviction being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of acquittal. 6. Hence, he contends qua the findings of conviction being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of acquittal. 6. On the other hand, the learned Additional Advocate General has with considerable force and vigour, contended qua the findings of conviction recorded by the Court below being based on a mature and balanced appreciation of evidence on record and theirs not necessitating any interference, rather meriting vindication. 7. 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. 8. The prosecutrix as portrayed in Ext.PW-12/A was subjected to forcible sexual intercourse by the accused. The sole testimony of the prosecutrix is per se formidable to sustain findings of conviction against the accused significantly when she renders a version qua the ill-fated occurrence free from any taint of inter se contradictions besides free from any stain of embellishments or improvements arising from hers having testified a version qua it contrary to the one disclosed by her in the complaint lodged qua the occurrence. However, the prosecutrix remained unexamined hers not surviving at the stage when the case was fixed for the recording of the depositions of the prosecution witnesses. The non-recording of the deposition of the prosecutrix has precluded adduction of best evidence by the prosecution to sustain its charge against the accused. Nonetheless, the prosecution has strived to nail the guilt of the accused Vikas qua the offences for which he stood charged, tried, besides convicted and sentenced by the learned trial Court, on the anvil of Ext.PW-15/B, which records a version qua the incident narrated by the prosecutrix before the Judicial Magistrate concerned. With the Judicial Magistrate before whom the deceased prosecutrix recorded her version, comprised in Ext.PW- 15/B qua the incident, having proved Ext.PW-15/B, an endeavour is made by the prosecution of its constituting credible evidence against the accused. However, the assay on the part of the prosecution to carry ahead its espousal harbored upon Ext.PW-15/B is legally emasculate predominantly in the face of its not constituting substantive evidence, which mantle it would have acquired only on the prosecutrix testifying qua the veracity of the narrations contained therein inclusive of its recording by the Magistrate concerned, being her volitional act. Obviously with the prosecutrix having not testified qua the veracity of the narrations comprised in Ext.PW-15/B though proven by the Magistrate concerned, before whom she recorded a statement under Section 164 Cr.P.C. renders its contents to be not comprising substantive evidence against the accused nor also its embodying probative evidence of efficacious value to found thereupon any conclusion of guilt qua the accused. Even otherwise with their being no graphic disclosure with vividity therein qua the identity of the accused fortifyingly enfeebles its probative tenacity. The identity of the accused remained undivulged by the prosecutrix to the prosecution witnesses. However, the factum of recovery of purse Ext.P-5 of accused Vikas Kumar under memo Ext.PW-1/B from the site of occurrence whose recovery thereunder stands proven by the recovery witnesses qua it besides with its enclosing three photographs Ext.P-6 to P-8 of accused Vikas Kumar besides his voter cards Ext.P-15 & P-16, is espoused by the prosecution to be evincing vigorous evidence against the accused qua his presence at the site of occurrence even when his identity remained undivulged to any of the prosecution witnesses by the prosecutrix. The recovery of purse Ext.P-5 from the site of occurrence though recited in the FIR lodged qua the occurrence by Sureshna Devi, to have been effectuated from underneath the mattress of a bed in the house of the prosecutrix. Nonetheless, when she stepped into the witness box she in diversion to the place of its recovery though disclosed in the FIR to be from underneath the mattress of a bed in the house of the prosecutrix, has unraveled therein the factum of its lying on the spot. Apparently with their being a palpable diversion in the FIR qua its keeping and recovery, inasmuch as it having been recited therein to have been noticed lying underneath the mattress of a bed in the room of the prosecutrix vis-a-vis her recorded deposition on oath, wherein she has testified it having been found lying on the spot, renders the version in the FIR qua its keeping/recovery suffering contradiction arising from hers having contrarily in her deposition on oath testified its having been found lying on the spot. Obviously the contradiction aforesaid in the manner of its being noticed or recovered engenders an inference of hers embellishing or improving upon her previous statement recorded in writing qua the factum of its being noticed by her or hers having unearthed it from underneath the mattress of a bed in the house of the prosecutrix. Obviously the contradictions besides improvements vis-a-vis her recorded deposition on oath with her previous statement recorded in writing begets a concomitant inference of: (a) embellishments or improvements qua its keeping or unearthing, hence standing aroused rendering inefficacious recovery of purse Ext.P-5 under memo Ext.PW-1/B; (b) besides the aforesaid factum impinging upon the legal efficacy of recovery of purse Ext.P-5 under memo Ext.PW-1/B, the existence of an admission in the cross examination of PW-1, of the Investigating Officer in sequel to his arresting the accused having conducted his Jama Talashi, nurses an inference of recovery of purse Ext.P-5 under memo Ext.PW-1/B having stood effectuated by the Investigating Officer in pursuance thereto. In sequel, on an arousal of the aforesaid inference, hence an aura of or a spell of doubt engulfs the factum of recovery of purse Ext.P-5 under memo Ext.PW-1/B; (c) both PW-1 as well as PW-8 have in their respective depositions comprised in their respective cross examinations, disclosed therein of the prosecutrix having not disclosed to either of them the name of the accused. The said fact even stands borne in the statement of the prosecutrix comprised in Ext.PW-15/B recorded before the Judicial Magistrate concerned. The aforesaid disclosures in the cross examinations of PW-1 and PW-8 qua the non-revelation by the prosecutrix of the name of the accused renders him un-amenable to penal culpability. Predominantly when there exists a deposition in the cross examination of PW-1 of co-accused Vijay Kumar residing in close proximity to the house of the prosecutrix, the implication thereof is of the prosecutrix being empowered in case co-accused visited her house in the company of accused Vikas Kumar for committing the act alleged against both, to gather the identity of co-accused Vijay Kumar. However, despite the empowerment with the prosecutrix to gather the identity of co-accused Vijay Kumar, she omitted to disclose his identity to either PW- 1 or PW-8, besides in her statement recorded before the Magistrate concerned under Section 164 Cr.P.C. comprised in Ext.PW-15/B, she has too remained reticent therein qua the identity of co-accused Vijay Kumar. However, despite the empowerment with the prosecutrix to gather the identity of co-accused Vijay Kumar, she omitted to disclose his identity to either PW- 1 or PW-8, besides in her statement recorded before the Magistrate concerned under Section 164 Cr.P.C. comprised in Ext.PW-15/B, she has too remained reticent therein qua the identity of co-accused Vijay Kumar. Reticence at all stages by the deceased prosecutrix qua the identity of co-accused Vijay Kumar closes an inference of its eroding the genesis of the prosecution version of both having together visited the house of the deceased prosecutrix, especially when also she has maintained silence in Ext.PW-15/B qua recovery of purse Ext.P-5 under memo Ext.PW-1/B having stood effectuated in the manner recited therein, lends a boost to an inference of recovery of purse Ext.P-5 under memo Ext.PW-1/B being contrived besides it having been planted by the Investigating Officer to falsely implicate the accused. Ensuably, hence the espousal qua the recovery of purse Ext.P-5 under memo Ext.PW- 1/B located at the residence of the prosecutrix being conclusive evidence qua the guilt of the accused founders. 9. The report of the FSL though relied upon by the prosecution is inconclusive qua the factum of human blood detected in Ext.2/B (pubic hair, Kanta Devi) and Ext.5/b (glans penis swab, Vikas) being relateable to the blood grouping of the accused or connecting the accused in the commission of the offence alleged against him. Apart therefrom with the existence of human blood in Ext.3 (Vaginal swabs, Kanta Devi) having stood opined therein being unrelateable to the blood grouping of any of the accused, also with semen having remained undetected in Ext.5C (urethral orfice slide, Vikas). In addition with no semen having stood detected in Ext.5(C) and Ext.5 (D) conjunctively rendered reliance thereupon by the learned trial Court to be untenable. Consequently with the infirmities aforesaid gripping the report of the FSL comprised in Ext.P.A, the prosecution has obviously been unable to connect the accused with the alleged offences. 10. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court has not appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned trial Court suffers from a perversity or absurdity of mis-appreciation and non appreciation of the evidence on record. 11. 11. For the foregoing reasons, the appeal is allowed and the judgment of the learned trial Court is set-aside. Accused/appellant is acquitted of the offences charged. He be set at liberty forthwith, if not required in any other case. Fine amount, if any, deposited by the accused/appellant, be refunded to him. Release warrant be prepared accordingly. Records be sent back.