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2023 DIGILAW 633 (UTT)

Himanshu @ Hemant v. State of Uttarakhand

2023-11-10

VIVEK BHARTI SHARMA

body2023
JUDGMENT : This appeal, under section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.) has been preferred against the judgment and order dated 05.02.2021 passed by Learned Sessions Judge, Tehri Garhwal in Session Trial No. 08 of 2019, whereby the said court has convicted the appellant/accused Himanshu alias Hemant under Section 376(2)(n) of the Indian Penal Code, 1860 (for short, IPC), sentencing the appellant/accused to undergo 10 years rigorous imprisonment with a fine of Rs. 5000/- and further simple imprisonment of two months in default of payment of fine. 2. Brief facts of the case are that the prosecutrix/victim came from Nairobi to Delhi by Qatar flight on 07.03.2019 at 8.15 A.M. and thereafter reached Hill Top Hotel in Rishikesh by a Taxi where she stayed; that, thereafter, in the morning of 08.03.2019, she left the hotel (Hill Top) on foot for the Ashram of Mauji Baba and crossed the bridge in search of a vehicle; that, a man on a black scooter came and said that he could drop her to the place she wanted to go; that, he took her outside the Ashram and during that time both of them became familiar and also drank tea together and the appellant/accused took the victim to several places in Rishikesh, thereafter, they reached a deserted place where there was a waterfall, where the appellant/accused slapped the victim/prosecturix and threw her on the ground and forcibly raped her; that, to save herself, the victim jumped into the water and disappeared; that, in the evening the appellant found the victim and dragged her near his bike where he raped the victim twice, thereafter, he left the victim at Lakshmanjhula bridge and went away. Thereafter, on 09.03.2019, the victim went to the Police Station Muni Ki Reti but the F.I.R. could not be registered on that day, thereafter, the F.I.R. under Section 376(2)(n) I.P.C got registered on 10.03.2019. 3. The Chief Judicial Magistrate, Tehri Garhwal on receipt of the charge sheet and after giving necessary copies to the accused as required under section 207 Cr.P.C., committed the case to the court of Sessions for trial. The Chief Judicial Magistrate, Tehri Garhwal after hearing the parties, framed charge of offence punishable under Section 376(2)(n) IPC against the appellant/accused Himanshu @ Hemant, who pleaded not guilty and claimed to be tried. 4. The Chief Judicial Magistrate, Tehri Garhwal after hearing the parties, framed charge of offence punishable under Section 376(2)(n) IPC against the appellant/accused Himanshu @ Hemant, who pleaded not guilty and claimed to be tried. 4. The prosecution, in order to prove its case, examined as many as 14 witnesses, i.e., PW1 Constable Renu Kalyan, PW2 Sub Inspector Neeraj Rawat, PW3 Dr. Tulsi Bisht, PW4 Vipin Kumar, PW5 Constable Pushpendra Kumar, PW6 Alok Bairagi, PW7 Nakul Kakkar, PW8 Constable Upendra Bhandari, PW9 Constable Ajay Kumar, PW10 Constable Sachin Pandey, PW11 Dr. Sandeep Singh Pangti, PW12 Anil Kumar Gupta, PW13 prosecutrix/victim and PW14 Sub Inspector Laxmi Rawat. The prosecution proved the F.I.R. as Exhibit Ka-1 and G.D. entry as Exhibit Ka-2. 5. Oral and documentary evidences were put before the appellant/accused under Section 313 Cr.P.C, in reply to which he pleaded that he has falsely been implicated in the case. He also stated that false evidences were given by all the witnesses against him and in his defence, the appellant/accused produced a mobile phone as Exhibit ka-3. 6. PW1 Constable Renu Kalyan in her testimony before the trial court stated that at the relevant time, she was posted at Police Station Muni Ki Reti and on 10.03.2019, a foreigner lady came to the police station and gave a written complaint of rape having been committed upon her against the present appellant/accused, on the basis of which, she registered an F.I.R. as Exhibit Ka-1; that, she admitted in her cross examination that the prosecutrix/victim PW13 came to the Police Station alone. 7. PW2 S.I. Neeraj Rawat in his testimony before the trial court stated that the incident of rape took place on 08.03.2019 with the prosecutrix/victim and the case was registered against an unknown person; that, on the information of the informer, the appellant/accused was arrested with a golden colour Samsung J-7 mobile phone; that, the appellant/accused on being asked told that the phone, in which his SIM Card was inserted belonged to the prosecutrix/victim. In his statement before the trial court he further stated that when the phone, recovered from the possession of the appellant/accused was unlocked, then in the phone’s gallery, the photographs of the prosecutrix/victim and other persons, who appeared to be her relatives were found and most of the numbers in the contact list appeared to be of some other country. In his statement before the trial court he further stated that when the phone, recovered from the possession of the appellant/accused was unlocked, then in the phone’s gallery, the photographs of the prosecutrix/victim and other persons, who appeared to be her relatives were found and most of the numbers in the contact list appeared to be of some other country. He further stated that the seizure memo of this mobile and arrest memo etc. was prepared by him. 8. PW3 Dr. Tulsi Bisht, who had medically examined the prosecutrix/victim, in her testimony before the trial court stated that at the relevant time, she was posted as a Senior Gynaecologist in Sri Dev Suman Hospital, Narendra Nagar, District Tehri Garhwal; that, on 11.03.2019 at about 10:00 A.M., S.I. Laxmi Rawat brought the prosecutrix/victim for her physical examination in the Hospital, she identified that the prosecutrix/victim had a mole on front side of her neck and behind her right ear; that, the prosecutrix/victim told her that on 07.03.2019, she went to the Ashram of Baba Mauji, Rishikesh and on 08.03.2019, she met the appellant/accused, who told her that he was well versed in yoga and could also help her in visiting Rishikesh; that, the prosecutrix/victim went with the appellant/accused to various places in Rishikesh; that, in the evening, the appellant/accused took her to a waterfall, where they had meal and alcohol, thereafter, the appellant/accused started talking incoherently, which made the prosecutrix/victim uncomfortable, thereafter, the appellant/accused committed rape upon her against her will and she tried to resist him but she could not succeed; that, the prosecutrix/victim pushed the appellant/accused and jumped into the water and hid herself in another place where she found herself safe; that, after 20 minutes when she shouted for help, she saw a flashlight of a mobile upon her and found that it was none other than the appellant/accused, he slapped and pulled the prosecutrix/victim and again raped her; that, as it was late at night, therefore, she went to the Police Station Muni ki Reti on the next day, but due to communication gap, the complaint could be written only on 10.03.2019. PW3 Dr. PW3 Dr. Tulsi Bisht had further stated that at the time of her medical examination, the prosecutrix/victim told her that at the time of committing rape upon her, the appellant/accused pulled her hair and hurled abuses on her and the prosecutrix/victim further told her that though she had consumed liquor but was very much in her senses. She had further stated that in the medical examination of the prosecutrix/victim, she found scratch marks on the right side of her face, which could have resulted due to fall into the water and brown colour scratches on whole of the back, on the elbow of the right hand; that, two to three scratches on her elbows, on the buttocks and many bruises and scratches on her legs were also found. PW3 Dr. Tulsi Bisht further stated in her examination-in-chief before the court that in the internal medical examination of the prosecutrix/victim, there was no sign of any external injury around the vagina and anus and also no swelling or bleeding through cut marks were found and the prosecutrix/victim was very much in her senses; that, the samples of blood, urine, hair of head and pubic hair were taken and sent for forensic examination to the Forensic Science Laboratory, Dehradun in a sealed cover. 9. PW4 Vipin Kumar in his examination-in-chief stated that he worked as a Receptionist at Hill Top Hotel; that, on 07.03.2019, the prosecutrix/victim had checked in, in Room No. 06 of the said Hotel; that, on 08.03.2019, the prosecutrix/victim went outside the hotel at around 6:00 AM and came back at 01:00 PM along with the appellant/accused; that, the prosecutrix/victim went to her room but the appellant/accused kept standing at the reception and after five minutes, the prosecutrix/victim came back from her room and, thereafter, the prosecutrix/victim and the appellant/accused went out together from the hotel and the CCTV footage was also given by him to the police on 24.03.2019 by uploading it in a pen drive. This witness proved the pen drive as Material Exhibit No. 1. 10. This witness proved the pen drive as Material Exhibit No. 1. 10. PW5 Constable Pushpendra Kumar stated in his testimony before the trial court that at the relevant time, he was posted as Constable in the Police Station Muni Ki Reti; that, on 10.03.2019 after lodging the F.I.R. against the appellant, he along with S.I. Neeraj Rawat, S.I. Laxmi Rawat and Constable Sandeep went for tracing the appellant/accused and on receiving the information from the informer, they caught the appellant/accused and a golden colour Samsung J-7 mobile phone and a cigarette wrapper bearing the name of Embassy Kenya were recovered from his pocket; that, on unlocking the mobile phone, the photographs were found to be of the prosecutrix/victim and most of the contact details were of some foreign country; that, the seizure memo for the mobile phone, cigarette wrapper etc. was prepared and the signatures of the witnesses were taken on the same. 11. PW6 Alok Bairagi in his testimony before the trial court stated that he has been working at the Hill Top Hotel for the last 4 years; that, on 07.03.2019, a foreigner lady from Kenya stayed in that hotel; that, on 09.03.2019, he got a call from the Police Station that some incident had taken place with that lady, therefore, he should accompany her to the Police Station Muni Ki Reti, Tehri Garhwal Rishikesh; that, they both went to the police station, where the prosecutrix/victim went inside and talked to the policemen; that, at that time, there were some injuries on the head of that lady and she was scared and perplexed; that, she was mostly speaking in English so the policemen asked that lady to give the complaint in writing, therefore, he came back with the prosecutrix/victim to the said hotel; that, on 10.03.2019, the prosecutrix/victim, Nakul Sir, Vipin Kumar and he himself went to the Police Station Muni Ki Reti, where that girl gave complaint whereupon the police took action. The statement of this witness was also recorded under Section 164 of Criminal Procedure Code, 1973 and the same was exhibited as Exhibit Ka-12. 12. The statement of this witness was also recorded under Section 164 of Criminal Procedure Code, 1973 and the same was exhibited as Exhibit Ka-12. 12. PW7 Nakul Kakkar in his testimony before the trial court stated that he had taken the Hill Top Hotel on lease in the year 2016; that, Vipin Kumar was employed as Receptionist at that hotel and other employees, Nikhil and Alok also used to receive the guests at that hotel; that, on 09.03.2019, he met the prosecutrix/victim in the evening and she told him that an attempt to rape was made upon her by someone, however, the language of the prosecutrix/victim was not very comprehensible to him, therefore, he could not understand what she was exactly saying; that, it was late at night, therefore, we did not take her to the police station at that time, rather on the next day, he along with his employees Alok and Vipin and the prosecutrix/victim went to the Police Station Muni Ki Reti; that, he proved the copy of the Register of visitors as Exhibit Ka-13. In his cross examination, he clarified that because of language barrier and lack of communication, he could not understand what exactly the prosecutrix/victim was trying to tell him as to whether it was attempt to rape or she was actually raped by the appellant/convict. 13. PW8 Constable Upendra Bhandari in his testimony before the trial court has stated that on 13.03.2019, he was posted in Police Station Muni Ki Reti and on that day, he along with S.I. Laxmi Rawat and the Investigating Officer went to the court of Chief Judicial Magistrate and by the order of the court, the exhibits were handed over to the Forensic Science Laboratory, Dehradun for examination and Doon Medical College, Dehradun for its pathological examination. 14. PW9 Constable Ajay Kumar in his testimony before the trial court has stated that he proved the fact that on 18.03.2019, he along with Investigating Officer S.I. Laxmi Rawat went to the court of Chief Judicial Magistrate and by the order of the court one sealed packet in white cloth having a card board box containing the sample was sent to the Forensic Science Laboratory and was deposited with the F.S.L. in Dehradun by him by receiving as Exhibit Ka-16. 15. 15. PW10 Constable Sachin Pandey proved the fact that on 19.03.2019 he along with S.I. Laxmi Rawat went to the court of Chief Judicial Magistrate and by the order of the court one sample for examination by Forensic Science Laboratory was given and he proved this fact as Exhibit Ka-17. 16. PW11 Dr. Sandeep Singh Pangti proved the fact of taking the blood sample of the appellant/convict for D.N.A. testing and proved his report for the same as Exhibit Ka-18. He further proved the fact of taking the blood sample of the prosecutrix/victim for D.N.A. testing vide his report as Exhibit Ka-19. 17. PW12 Anil Kumar Gupta deposed in the court that he knew the prosecutrix/victim since 15.03.2019 as both he and the prosecutrix/victim were the disciples of Baba Mauji Ashram, Rishikesh; that, on 15.03.2019, the prosecutrix/victim told him about the whole incident. 18. The prosecutrix/victim was examined as PW13, who in her testimony has stated that she came to India from Nairobi to New Delhi on 07.03.2019 and arrived at Rishikesh at 6.00 p.m. and checked into Hotel Hill Top at 7.00 p.m., on the same day; that, on 08.03.2019, she left the hotel for Mauji Baba Ashram and on the way to the Ashram, a man, namely, Himanshu/convict came on a black scooter and asked to give her a ride upto the Ashram, to which she accepted and, thereafter, in pretext of taking her to different places in Rishikesh, the appellant/convict took the prosecutrix/victim in a hidden spot which had a waterfall where they ate food and after some time the appellant/convict slapped her and forcefully pushed her to the ground and for that reason, the prosecutrix/victim lost her consciousness and when she woke up, the appellant/convict was raping against her will. She further stated that to escape from the appellant/convict, she jumped into the water stream and disappeared; that, she hid herself in a cave and when she shouted for help, the appellant/convict found her and dragged her to his bike and took her to the beach where he raped her twice. She further stated that on the same day at around 11.30 p.m., the appellant/convict dropped the prosecutrix/victim on his bike to Laxmanjhoola bridge and from there, she came back to the Hill Top Hotel. She further stated that on the same day at around 11.30 p.m., the appellant/convict dropped the prosecutrix/victim on his bike to Laxmanjhoola bridge and from there, she came back to the Hill Top Hotel. She further stated that on 09.03.2019, she went to the Police Station Muni Ki Reti to lodge the F.I.R. but the police did not lodge her report and on 10.03.2019, she submitted a written complaint in the said police station. She proved the same as Exhibit Ka-20. She further stated that the police had recorded her statements and during the medical examination, the blood samples were taken in the hospital and the doctor also took her clothes, which she wore at the time of incident; that, the sealed pulinda was opened with the permission of the court, which was identified by the prosecutrix/victim as her clothes; that, the Investigating Officer prepared a recovery memo in her presence. She further stated that the police brought her before the Magistrate for recording her statements under Section 164 Cr.P.C. which she admitted before the court, and is marked as Exhibit Ka-21; that, the Investigating Officer inspected the place of incident and prepared the site plan. She further stated that a sealed pulinda of mobile was opened in the court, which she identified and described that the mobile phone was of the golden colour Samsung J-7 with extra mobile cover of black colour, which was taken by the appellant/convict at the time of incident. 19. After hearing the learned counsel for the parties and perusal of the evidence led by the parties, the trial court in its impugned judgment convicted the appellant under Section 376(2)(n) I.P.C. and sentenced him to undergo rigorous imprisonment of ten years. Hence, this present appeal filed by the appellant/convict assailing the said judgment and order dated 05.02.2021. 20. Counsel for the appellant/convict would submit that it has come in the evidence of Dr. Hence, this present appeal filed by the appellant/convict assailing the said judgment and order dated 05.02.2021. 20. Counsel for the appellant/convict would submit that it has come in the evidence of Dr. Tulsi Bisht that at the time of the alleged incident, the appellant/convict and the prosecutrix/victim both had consumed liquor, therefore, it was not rape but rather the prosecutrix/victim herself was an accomplice to this incident; that, no injury was found in the private parts of the prosecutrix/victim and that falsifies the case of the prosecution; that, in the medical examination, no sperm was found in the vagina of the prosecutrix/victim; that, there was a delay of two days in lodging the F.I.R. that also creates a doubt on the truthfulness of the case of the prosecution. 21. Per contra, State counsel would submit that there are consistent, coherent and trustworthy evidence against the appellant/convict and that the impugned judgment is based on the same and without any illegality or incorrectness in it, hence, the appeal is liable to be dismissed. 22. Heard learned counsel for the parties and perused the record of the trial court. 23. The arguments of the counsel for the appellant/convict was mainly based on two grounds: firstly, at the time of the alleged incident, the prosecutrix/victim herself was under the influence of liquor, therefore, she was not victim but rather an accomplice to this incident; secondly, no injury was found around the private parts of the prosecutrix/victim. 24. Perusal of the statements of the witnesses with circumspection would reveal that all the witnesses are consistent, reliable and trustworthy. All the witnesses were cross examined by the defence at length but nothing has come on record which would render the evidence of those witnesses unreliable. The evidence of the prosecutrix/victim is very important as she is consistent throughout her evidence and despite being cross examined at length by the defence, she remained steadfast on the facts that she stated in her examination-in-chief and the defence failed to elicit anything inconsistent with the prosecution story so as to render this witness unreliable. The prosecutrix/victim unfolded the other facts of whole day of the incident in Paragraph nos. 18 and 22 to 25 of her testimony before the court. The facts stated in Paragraphs no. 15 are the facts which the prosecutrix/victim had stated during her cross examination. The prosecutrix/victim unfolded the other facts of whole day of the incident in Paragraph nos. 18 and 22 to 25 of her testimony before the court. The facts stated in Paragraphs no. 15 are the facts which the prosecutrix/victim had stated during her cross examination. Though, she stated that after reaching Hotel she did not tell the hotel staff about rape on 08.03.2019 and 09.03.2019. But that would not be fatal to prosecution case. It has come in evidence that there was language barrier and the prosecutrix/victim was perplexed. Rest of the testimony of the prosecutrix/victim is throughout consistent and no doubt has been created by any contradictions, therefore, the same is trustworthy and credible. Though the testimony of the prosecutrix/victim was supported by the evidence of other witnesses but the testimony of the PW13 prosecutrix/victim alone is sufficient for proving her case. The Hon’ble Supreme Court in the case of ‘Phool Singh Vs. State of Madhya Pradesh (2022) 2 SCC 74 ’ held that there can be conviction on the sole testimony of the prosecutrix/victim when the deposition of the prosecutrix/victim is found to be trustworthy, unblemished and credible and her evidence is of sterling quality. The paragraph nos. 8, 9 and 10 are extracted hereunder:- “8. In Ganesar, this Court has observed and held that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality. In the aforesaid case, this Court had an occasion to consider the series of judgments of this Court on conviction on the sole evidence of the prosecutrix. In paras 10.1 to 10.3, it is observed and held as under: (Ganesan case, SCC pp. 578 – 82) “10.1. Whether, in the case involving sexual harassment, molestation, etc., can there be conviction on the sole evidence of the prosecutrix, in Vijay, it is observed in paras 9 to 14 as under: (SCC pp. 195-98)” 9. In State of Maharashtra v. Chandraprakash Kewalchand Jain this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under: (SCC p.559, para 16) “16. The Court observed as under: (SCC p.559, para 16) “16. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.” 10. In State of U.P. v. Pappu, (2005) 3 SCC 594 this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under: (SCC p. 597, para 12) “12. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physicalform, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.”” 25. Counsel for the appellant/convict would argue on the point that PW 13 prosecutrix/victim in her cross examination in Para 15 stated that she did not come back to the hotel from the Ashram as the appellant/convict had requested her to visit around Rishikesh, which she had accepted; that, this statement of the PW13 prosecutrix/victim is contradictory to the statement of receptionist of the said hotel, PW 4 Vipin Kumar, who had stated that she came back on 08.03.2019 at 01:00 PM with the appellant/convict and, thereafter, left the hotel with him after five minutes. He would further submit that in last of paragraph no.15 of the cross examination of the prosecutrix/victim, she has stated that she did not tell anything to any of the staff members of the hotel about the alleged incident when she came back on 08.03.2019 and even did not tell on 09.03.2019, therefore, this statement of the prosecutrix/victim is in contradiction to the statement of PW4 Vipin Kumar, PW6 Alok Bairagi and PW7 Nakul Kakkar. 26. 26. In view of the above arguments of the counsel for the appellant/convict, the Court perused the statement of these witnesses and that of the prosecutrix/victim circumspectly. PW4 Vipin Kumar has not stated in his testimony that the prosecutrix/victim told him about the incident. Similarly, PW6 Alok Bairagi also did not state in his statement before the trial court that the prosecutrix/victim told him about the incident and it was only PW7 Nakul Kakkar, who stated that when he came back from Delhi on 09.03.2019, the prosecutrix/victim told him about the incident. It is pertinent to note that PW7 Nakul Kakkar is not the staff but was the person who had taken the hotel on lease. It is pertinent to note that in Para 16 of her testimony before the trial court, the prosecutrix/victim had specifically stated that she told the incident to the police but because of communication gap and language variation, the police called the hotel staff for translation i.e. to say that the hotel staff was there with her at the police station. 27. Last but not least, in the cases involving harassment, molestation etc., it is the bounden duty of the Court to deal such cases with utmost sensitivity and minor contradictions or insignificant discrepancies in the statements of the prosecutrix/victim does not give the credence so as to take the testimony of prosecutrix/victim unreliable. It is a matter of common prudence that no person is supposed to remember each and every fact when he/she is asked to re-tell it, after considerable period in a photographic manner, there may be some facts which he/she may forget to tell. The Hon’ble Supreme Court in the case of ‘State of Punjab Vs. Gurmit Singh 1996 SCC (Criminal) 316’ has observed that notwithstanding the minor contradictions or inconsistencies, the statement of the prosecutrix/victim which is otherwise trustworthy, unblemished and credible, should be accepted as reliable. 28. In view of the above, there is no force in the criminal appeal. Same is hereby dismissed. 29. The judgment and order dated 05.02.2021 passed by the learned trial court is hereby upheld. 30. Let the Lower Court Record be sent back to the court concerned.