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2016 DIGILAW 1784 (HP)

Veena Devi v. State of H. P.

2016-08-26

CHANDER BHUSAN BAROWALIA, DHARAM CHAND CHAUDHARY

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JUDGMENT : Chander Bhusan Barowalia, J. The present appeal is maintained by the appellant against the judgment of acquittal of the accused/respondent (hereinafter referred to as ‘the accused’) in Sessions Case No.6 of 2007, passed by the learned Sessions Judge, Bilaspur, dated 4.10.2010. 2. Briefly stating the facts giving rise to the present appeal are that on 25.12.2006, the prosecutrix (PW-17) had gone to Civil Hospital, Jhandutta, for taking the medicines where she received a telephonic call from one Naresh Kumar who told the prosecutrix that he wanted to marry with her sister-in-law. As per the prosecution case, earlier Naresh Kumar was engaged with sister-in-law of the prosecutrix, but that engagement was already broken. The prosecutrix took her sister-in-law to her maternal house on being asked by Naresh Kumar and her sister-in-law. On 26th December, 2001, a telephonic call was received by the prosecutrix from Naresh Kumar that he would marry to her sister-in-law at Shimla. The prosecutrix gave a telephonic call to Geeta Devi, (Pradhan) who is wife of the accused and the prosecutrix asked from the accused regarding whereabouts of his wife at which the accused replied that she was not in the house. The prosecutrix told the accused that her sister-in-law and Naresh Kumar wanted to perform Court marriage at Shimla. The accused told the prosecutrix that he would inform his wife and subsequently the accused again gave a telephonic call to the prosecutrix asking her to come to Ghumarwin alongwith her sister-in-law, but after sometime the accused asked both of them to meet him at Kandrarur bridge at which the prosecutrix alongwith her sister-in-law went to Kandrarur bridge, where accused was not present, but Naresh Kumar and his friend were present there. At about 6:00 pm, the accused reached there and asked them to board his car. All of them thereafter proceeded further and when they reached at place Bhager, accused asked Naresh Kumar and his friend to alight from the vehicle and both of them alighted. On enquiry the accused told the prosecutrix that there was no space in his house for the stay of Naresh Kumar and his friend whereas, the prosecutrix and her sister-in-law could sleep alongwith his wife and child. They reached in the house of accused at about 7:00 pm, on enquiry the accused told that his wife Geeta Devi had gone to Ludhiana and she would return soon. They reached in the house of accused at about 7:00 pm, on enquiry the accused told that his wife Geeta Devi had gone to Ludhiana and she would return soon. Thereafter, the accused asked the prosecutrix and her sister-in-law to cook meal, the accused entered into the kitchen and asked the prosecutrix and her sister-in-law to serve meal to him in the bed room and he also asked both of them to join him while taking meal, but the prosecutrix and her sister-in-law refused, on insisting of the accused the prosecutrix and her sister-in-law took meal in the house of the accused. However, the accused without taking meal started consuming liquor, the prosecutrix and her sister-in-law went to sleep in the same room, where the accused was consuming the liquor and the accused after sometime showed a revolver to the prosecutrix and asked her to consume liquor and under threat the prosecutrix did so. Thereafter, the accused committed forcible sexual intercourse with her sister-in-law and the prosecutrix. Further, as per the prosecution case, on finding opportunity, she ran away from the house of accused on 27.12.2006 at about 5:30 am and the prosecutrix knocked the door of Amar Singh (PW-19) and conducted an enquiry about the house of Rattan Singh and narrated the story to said person. The medical examination of the prosecutrix was conducted by PW-13 Dr. Santosh Dhindhra, who prepared MLC Ex.PW13/A. The clothes of the prosecutrix alongwith her auxillary and pubic hair were preserved and vaginal swab was also preserved by the Medical Officer and handed over to the Police for chemical examination. The accused was arrested and his medical examination was conducted by PW-8 Dr. G.D. Jassal. The swab of penis and pubic hair of the accused were preserved by the Medical Officer and handed over to the Police for chemical examination. The vehicle i.e. Maruti Car belonging to the accused was taken into possession vide memo Ex.PW6/A, in the presence of Raj Kumar (PW-6) and Constable Pritam Chand. G.D. Jassal. The swab of penis and pubic hair of the accused were preserved by the Medical Officer and handed over to the Police for chemical examination. The vehicle i.e. Maruti Car belonging to the accused was taken into possession vide memo Ex.PW6/A, in the presence of Raj Kumar (PW-6) and Constable Pritam Chand. The revolver Ex.P-10 was recovered on the identification of the prosecutrix from the accused was taken into possession in the presence of Satya Galoda (PW-4) and Amaro Devi, vide recovery memo Ex.PW4/A. As per the chemical examiner’s report, no blood or semen was found on the clothes of the prosecutrix and the accused, as well as upon the bed sheet, vaginal swab, auxillary hair, pubic hair of the prosecutrix and swab of the accused. After completing all the codal formalities, the challan was presented in the Court. 3. The prosecution in order to prove its case has examined as many as 19 witnesses. Statement of the accused was recorded under Section 313 Cr.P.C, wherein he has denied the prosecution case and claimed innocence. In defence the accused has examined one DW, namely, Devinder Verma. 4. Learned counsel appearing on behalf of the appellant has argued that the learned trial Court has committed grave illegality and irregularity in appreciating the evidence and the accused was required to be convicted, as the statement of the prosecutrix was clear and supported by the evidence on record. In the interest of justice, the findings of acquittal are required to be set aside 5. On the other hand, Mr. Ajay Kumar, Senior Advocate appearing on behalf of accused No.2 has argued that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and so, the accused was rightly acquitted. 6. Learned Additional Advocate General appearing on behalf of respondent No.1/State though has not supported the judgment passed by the learned trial Court, however, apprised us that no appeal has been filed by the State. 7. To appreciate the arguments of learned counsel appearing on behalf of the parties, this Court has gone through the record in detail and has minutely scrutinized the statements of the prosecution witnesses. 8. The age of the prosecutrix as disclosed by her while appearing as PW-17, was 26 years at the time of incidence. In the MLC Ex.PW13/A, her age was recorded 26 years. She was married at the time of incidence. 8. The age of the prosecutrix as disclosed by her while appearing as PW-17, was 26 years at the time of incidence. In the MLC Ex.PW13/A, her age was recorded 26 years. She was married at the time of incidence. The version of the prosecution as contained in FIR Ex.PW10/A, which was recorded, on the basis of the statement of the prosecutrix under Section 154 Cr. P.C, Ex.PW17/A, is that the prosecutrix was married with one Achhar Singh. On 25.12.2006, the prosecutrix had gone to the hospital at Jhandutta, for taking medicines, at about 1:30 pm, the prosecutrix reached at Ghumarwin, where her sister-in-law and Naresh Kumar met, who were previously engaged, but their engagement had broken about 10 or 15 days back and her sister-in-law told that she wanted to solemnize marriage with Naresh Kumar, but her mother was not permitting to do so, at which the prosecutrix asked her sister-in-law to return to her house, but she refused and insisted that she would solemnize marriage with Naresh Kumar. She also asked the prosecutrix that she would accompany her to Ladraur at which Naresh Kumar went away and the prosecutrix alongwith her sister-in-law went to the parental house of the prosecutrix at Ladraur, where in the evening a telephonic message was received from Naresh Kumar who told that the parents of her sister-in-law had agreed to solemnize the marriage with Naresh Kumar, at which the prosecutrix gave a telephonic call to the wife of the accused which telephonic call was received by the accused who told that his wife Geeta was not in the house. The prosecutrix told the accused that her sister-in-law wanted to solemnize marriage with Naresh Kumar. Accused asked the prosecutrix to meet him at Ghumarwin on 26.12.2006, but on that date a telephonic call was received from Naresh Kumar who told that Court marriage would be solemnized at Shimla, after sometime, the prosecutrix received a telephonic message from accused asking her to meet him at Kandraur, the accused alongwith Naresh Kumar and Sanjay met them and all of them proceeded in a Car to place Bhager, where accused asked Naresh Kumar and Sanjay to alight from the vehicle. Both of them get down from the vehicle and the prosecutrix alongwith her sister-in-law went to the house of the accused in his car, where they reached at about 7:30 pm, but wife and children of the accused were not there and the accused on enquiry told that they had gone to Ludhiana. The accused asked the prosecutrix and her sister-inlaw to prepare meal at about 9:30 pm, the accused called both of them to his bed room, where he was taking liquor and on enquiry the accused told that his wife would return at about 10/11:00 pm and thereafter the prosecutrix and her sister-in-law took meal and went to sleep. Accused thereafter bolted the door of the room and started threatening the prosecutrix and her sister-in-law with a pistol and asked her and her sister-in-law to consume liquor and due to fear both of them consumed liquor and the accused committed forcible sexual intercourse firstly with the prosecutrix and then with her sister-in-law and threatened them not to disclose the incident to any one. The prosecutrix in the morning at about 5:00 am succeeded in running away from the house of the accused leaving behind her ‘duptta’ and went towards the house of Rattan Singh, Ward Member, but the accused followed her in a Car, however, the prosecutrix concealed herself and succeeded in reaching the house of Rattan Singh, where she knocked at the door and the wife of Rattan Singh came out of the house. The prosecutrix made a telephonic call to her house and narrated the whole occurrence to Rattan Singh and his wife, after sometime the family members of the prosecutrix alongwith Pradhan etc. reached there to whom the prosecutrix also narrated the occurrence. 9. It is clear that the prosecutrix has corroborated the version as reported vide Ex.PW17/A. From the evidence on record the prosecutrix had gone to the house of the accused and no force was used by the accused to take her to his house. Though, the prosecutrix has deposed that the accused has also committed sexual intercourse with her sister-in-law (PW-12), but PW-12 has not at all supported the case of prosecution. Though, the prosecutrix has deposed that the accused has also committed sexual intercourse with her sister-in-law (PW-12), but PW-12 has not at all supported the case of prosecution. It is in the statement of PW-12 that in the year 2006, she had gone to Kandraur from her house and from there she went to Ghumarwin where Naresh Kumar met her and the prosecutrix told her to return to her parental house at Ladraur at which she had gone to Ladraur alongwith the prosecutrix. On the next day, the prosecutrix gave a telephonic call to Naresh Kumar to come to Kandraur, where Naresh Kumar came and thereafter she alongwith Naresh Kumar went to Shimla and solemnized marriage with him. She has deposed that prosecutrix went with the accused, but she did not know what happened to the prosecutrix. She has specifically stated that she had not gone to the house of the accused, but she had gone to Shimla alongwith Naresh, where she solemnized marriage with him. She has no knowledge as to what happened to the prosecutrix at the relevant date and time. In her cross-examination, PW-12 admitted that she has solemnized love marriage with Naresh Kumar and he has asked the accused being Pradhan of the Panchayat to be a witness of the marriage at Shimla. She has further deposed that the accused did not reach at Shimla when she performed marriage with Naresh Kumar and all her family members were against such marriage and the prosecutrix, who is her sister-in-law (Bhabi) was also against such marriage due to which the prosecutrix had taken her to Ladraur and had not obeyed the prosecutrix and went to Shimla against her will. She has stated that when she did not obey the will of the prosecutrix then the prosecutrix concocted a false story of rape against her in order to defame her. She has specifically stated that neither she had gone to the house of the accused nor any sexual act had been performed with her by the accused. She has further stated that she was taken for medical examination to the hospital, but she refused for medical examination as no rape has been committed with her. She has specifically stated that neither she had gone to the house of the accused nor any sexual act had been performed with her by the accused. She has further stated that she was taken for medical examination to the hospital, but she refused for medical examination as no rape has been committed with her. Accordingly, PW-12, who is alleged to be the only eye witness of the occurrence accompanying the prosecutrix at the relevant date and time to the house of the accused, who is also alleged by the prosecutrix to have been raped by the accused alongwith her at the relevant date and time, has, instead of supporting the version of the prosecution, totally demolished the same. As such, statement of PW-12 has contradicted the version of the prosecutrix that she had subjected to rape by the accused in his house at the relevant date and time alongwith her sister-in-law has resiled from her previous statement and declared hostile, but the version of this witness, as is clear on perusal of her statement Ex.PA recorded under Section 164 Cr. PC by the learned Court below from the very inception is the same as has been narrated on oath by her in the learned Court below. There is also nothing in the statement of PW-12 to infer that she is suppressing the truth or she has got any motive to shield the accused from legal punishment. In such circumstances, statement of the prosecutrix which stands contradicted by PW-12 that she was subjected to forcible sexual intercourse by the accused alongwith PW-12 at the relevant date and time in his house cannot be relied upon, as such statement of the prosecutrix does not inspire confidence. 10. The defence plea taken by the accused that he has been falsely implicated in the instant case and he was to go to Shimla to attend the marriage of PW-12 with Naresh Kumar. The prosecutrix and parents of PW-12 were against such marriage. On 27.12.2006 in the morning, he tried to proceed to Shimla then all of a sudden the prosecutrix alongwith Lachhu etc. came at the spot and gave beatings to him causing grievous injuries to him and police reached there in order to put pressure upon him he has been involved in a false case by the prosecutrix alongwith Lachhu Ram etc., later on case was registered against Lachhu Ram etc. came at the spot and gave beatings to him causing grievous injuries to him and police reached there in order to put pressure upon him he has been involved in a false case by the prosecutrix alongwith Lachhu Ram etc., later on case was registered against Lachhu Ram etc. when he made a complaint to Human Rights Commission and Chief Secretary, Himachal Pradesh and they are facing trial in the court of learned Chief Judicial Magistrate, Bilaspur. Such defence plea taken by the accused is corroborated by PW-12 who has stated in her cross-examination that accused being Pradhan of the Gram Panchayat was asked by her to be a witness to her marriage with Naresh Kumar at Shimla. All her family members including the prosecutrix was against such marriage. Even the prosecutrix in her cross-examination has admitted that accused alongwith his wife was to attend the marriage of PW-12 with Naresh Kumar at Shimla on 27.12.2006 and she has admitted that village people and parents of PW-12 were against such marriage. 11. Even PW-2 and PW-3 has not supported the case of the prosecution while appearing in the witness box. PW-1 has deposed that the prosecutrix came to their house, who was perplexed and told her that she wanted to give a telephonic call to her house and thereafter she made the telephone call to her house and after making call, the prosecutrix started talking with her husband and she left the place. In her cross-examination, she has specifically stated that prosecutrix has not narrated any incident to her except giving a call to her house and when the police came to the spot then she told the police whichever she has deposed in the learned trial Court. Accordingly, as per PW-1 wife of Rattan Singh, the prosecutrix did not narrate any occurrence regarding the commission of rape upon her and her sister-in-law by the accused during the night nor any such disclosure was made by the prosecutrix to the husband of PW-1 i.e. Rattan Singh and Lachhu Ram (PW-3) in the presence of PW-1. In view of this, statements of the prosecutrix, PW-2 and PW-3 that prosecutrix on reaching the house of Rattan Singh narrated the occurrence to Rattan Singh, his wife and Lachhu Ram which stands contradicted by PW-1 Premi Devi wife of Rattan Singh cannot be relied upon as the same does not inspire confidence. In view of this, statements of the prosecutrix, PW-2 and PW-3 that prosecutrix on reaching the house of Rattan Singh narrated the occurrence to Rattan Singh, his wife and Lachhu Ram which stands contradicted by PW-1 Premi Devi wife of Rattan Singh cannot be relied upon as the same does not inspire confidence. There is nothing in the statement of PW-1 to infer that she has got any motive to shield the accused from legal punishment or to infer that she is biased or inimical against the prosecutrix. Therefore, the version of the prosecution is rendered to be suspicious. 12. The prosecution is also relied upon the medical evidence in order to corroborate the version of the prosecutrix. The medical examination of the prosecutrix was conducted by Dr. Santosh Dhindhra (PW-13), District Hospital, Bilaspur and prosecutrix on medical examination was found habitual of sexual intercourse, but no injuries were found on the body of prosecutrix including her private part. As per PW-13, no opinion can be given when the prosecutrix had last sexual intercourse regarding which MLC Ex.PW13/A has been issued by her. In her cross-examination she has deposed that she has clinically and thoroughly examined the vaginal part of the prosecutrix and no sperms were found on the vaginal part of the prosecutrix. It is also in her statement that she had taken vaginal swab of the prosecutrix and as per chemical report, no sperms were found in the vaginal swab or on the clothes of the prosecutrix and the accused. Therefore, under these circumstances, the sexual intercourse has been ruled out. Thus, such statement having been made by PW-13 in her cross-examination renders the medical evidence on record to be of no help of the prosecution to lend support to the version of the prosecutrix and absence of injury on the body of the prosecutrix including her private part and absence of semen on the vaginal swab or clothes of the prosecutrix thus rules out the possibility of sexual intercourse having been committed with the prosecutrix at the relevant date and time, as per medical evidence on record which also renders the version of the prosecutrix to be suspicious and unworthy of credence. 13. 13. It is well settled that conviction of a person, accused of the commission of rape, on the basis of statement of the prosecutrix alone can be punished, but that is in a case where the evidence of the prosecutrix is cogent, reliable and confidence inspiring. In case the evidence of the prosecutrix is not so and there is no other independent and reliable evidence to lend assurance to the truthfulness of the evidence of the prosecutrix, it will be unsafe to base conviction on her non-confidence inspiring evidence. As prosecution has failed to prove the guilt of the accused conclusively and beyond the shadow of reasonable doubt, there is no illegality and infirmity in the findings so recorded by the learned trial Court. 14. It has been held in K. Prakashan vs. P.K. Surenderan (2008) 1 SCC 258 , that when two views are possible, appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/misappreciation of evidence on record, reversal thereof by High Court was not justified. 15. The Hon’ble Supreme Court in T. Subramanian vs. State of Tamil Nadu (2006) 1 SCC 401 , has held that where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt. 16. In view of the aforesaid decisions of the Hon’ble Supreme Court and discussion made above, as the prosecution has failed to prove the guilt of the accused conclusively and beyond reasonable doubt, we find no infirmity with the judgment of learned trial Court and accordingly the appeal is dismissed.