Chandermani vs State of H.P.

Sureshwar Thakur, J.

1.The accused/appellant, is, aggrieved by the verdict of conviction and consequent sentence, imposed upon him, for his committing an offence

punishable under Section 376(2)(f) of the IPC, and, also vis-a-vis the apposite conviction, and, the consequent sentence, imposed upon him, for his

committing an offence under Section 342 of the IPC.

The facts relevant to decide the instant case are that the marriage of the prosecutrix was solemnized about five years back, but no child was born

to her. The family members of the prosecutrix thereafter took the shelter of local deity Bala Kameshwar for treatment to procure child. On 2.5.2013,

the local deity Bala Kameshwar had come in the village of the prosecutrix at village Katwandi in connection with some birth day. The father-in-law of

the prosecutrix had also gone there. The accused was Priest-cum-Spokes person of deity (Gur) and he had asked the prosecutrix to come to his house

on 13.5.2013 for taking the holly water. On 13.5.2013, the prosecutrix along with her mother-in-law Smt. Teji Devi had gone to the house of the

accused at about 10 a.m. The accused asked the mother-in-law f the prosecutrix to go back from the spot and told that the prosecutrix shall be sent

after five days. The accused told the prosecutrix that he would start the treatment after 10 p.m. The accused took the prosecutrix in his kitchen and

put two circles of flour on the floor and put one glass of water on the same. Some rice and flower put inside the glass. The accused lifted the shirt of

the prosecutrix and put three lines on the stomach of the prosecutrix with Bhabhuti (holly ash). He has also told that there was Devta in the private

part of the prosecutrix and accused asked the prosecutrix to take off her salwar. When the prosecutrix refused, the accused forcibly after threatening

opened the salwar of the prosecutrix. The accused asked the prosecutrix to turn around. The accused put his hand from behind on the waist of the

prosecutrix and picked her up. The accused immediately opened her pyzama and tried to come on the prosecutrix. When the accused tried to come on

the prosecutrix, the prosecutrix kicked him and came to the side of the accused. Thereafter, she went away from the kitchen and went to another

room. The prosecutrix bolted her room from inside. The accused knocked at the door of the prosecutrix, but she did not open. The prosecutrix made

telephone call to different persons. At about 8.30 a.m. on next day, the mother-in-law and father-in-law of the prosecutrix and other persons came

there and took the prosecutrix out of the room. The prosecutrix thereafter went to the police station and gave application to the police on the basis of

which FIR was registered. The police thereafter carried and concluded all the investigation(s) formalities.

On conclusion of the investigation, into the offences, allegedly committed by the accused, a report, under Section 173 of the Code of Criminal

Procedure, was prepared, and, filed before the learned trial Court.

The accused/appellant herein stood charged, by the learned trial Court, for, his committing offences, punishable under Section 342, and, under

Section 376 (2) (f) of the IPC. In proof of the prosecution case, the prosecution examined 15 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 learned trial Court,

wherein, the accused claimed innocence, and, pleaded false implication in the case.

On an appraisal of the evidence on record, the learned trial Court, returned findings of conviction upon the accused/ appellant herein, for his hence

committing the aforesaid offences.

The appellant herein/accused, stand aggrieved, by the findings of conviction, recorded, by the learned trial Court. The learned counsel appearing for

the appellant herein/accused, has concertedly and vigorously contended, qua the findings of conviction, recorded by the learned trial Court, standing

not, based on a proper appreciation of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation, by it, of the material on

record. Hence, he contends qua the findings of conviction warranting reversal by this Court, in the exercise of its appellate jurisdiction, and, theirs

being replaced by findings of acquittal.

On the other hand, the learned Addl. Advocate General has with considerable force and vigour, contended qua the findings of conviction, recorded,

by the learned trial Court, rather standing based, on a mature and balanced appreciation, by it, of the evidence on record, and, theirs not necessitating

any interference, rather theirs meriting vindication.

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.

The prime evidence, espoused, by the prosecution, to unflinchingly nail the charge, against, the accused, (i) is comprised in the testification,

rendered, by the prosecutrix, who, stepped into the witness box as PW-2. (ii) She in her testification, has, rendered a version, bearing absolute

consonance, with, the echoings made by her, in, her application, comprised in Ex.PW2/A, application whereof stands addressed, to, the Incharge,

Police Station, Gohar, in sequel, whereto, the apposite FIR, borne, in Ex.PW15/A, hence, was registered. She has also in her testification, (iii)

rendered, echoings in concurrence, with the ones borne in Ex.PW2/D, exhibit whereof comprises her statement, recorded, under Section 164 of the

Cr.P.C., before the learned Judicial Magistrate, Chachiot at Gohar. She has also made a disclosure qua Ex.PW2/D being volitionally, made by her.

However, the learned counsel appearing, for the appellant/accused, has, contended with vigour, (iv) that her statement, does not carry any iota, of,

creditworthiness nor is amenable, for, any credence being imputed thereto, (v) AND for succoring the aforesaid argument(s), he has drawn the

attention of this Court, to, certain testified improvements and contradictions, made by her, vis-a-vis her statement, borne in Ex.PW2/D. The apposite

testified improvements, contradictions, and, embellishments vis-a-vis Ex.PW2/D, (vi) are, contended to be highlighted, by the prosecutrix in her cross-

examination, making, an admission qua hers omitting, to, in Ex.PW2/A, hence, make any articulation (a) qua after the accused lifting her from behind,

his, ensuring qua his penis making contact with her private part; (b) of the prosecutrix, omitting, to in Ex.PW2/A, hence, record any bespeaking, of, the

accused applying, “bhabhutiâ€, on her private part. The efficacy, of the aforesaid submission addressed, before this court, by the learned counsel

appearing, for the appellant for hence, his, thereupon assaying to tear apart the, creditworthiness, of the testification rendered qua the occurrence, by

the prosecutrix, is contrarily rather effaced (c) by the factum of the prosecutrix subsequent thereto, under Ex.PW2/D, exhibit whereof, comprises, her

statement recorded under Section 164 of the Cr.P.C., before, the learned Magistrate concerned, rather making the aforesaid echoings. Conspicuously,

even if, the prosecution case, is, solitarily rested upon ex.PW2/A, and, even if subsequent thereto, hence, testified improvements, are, made by the

prosecutrix qua the genesis, of, the occurrence, borne, in Ex.PW2/D, especially, qua the factum (i) of the accused applying, “Bhabhutiâ€, on her

private part; (ii) his making contact of his private part, with her private part, (iii) would yet not render the prosecution case, to founder, for the reasons

(a) of the prosecutrix in her testification, embodied, in her examination-in-chief, rather making a candid unequivocal disclosure, of, Ex.PW2/D being

volitionally recorded, (b) AND, testification whereof, rather remaining uneroded, given the learned defence counsel while subjecting her, to cross-

examination, not making any endeavour, to, hence rip apart, its veracity. Furthermore, upon a reading, of, the cross -examination of the prosecutrix, by

the learned defence counsel, the latter yet, during, course thereof, omitted to, confront her with the afore referred purportedly improved articulations,

vis-a-vis, the ones borne in Ex.PW2/A, (c) thereupon, it being ensuably firmly inferable, qua the defence, acquiescing qua the occurrence spelt out by

the prosecutrix, in Ex.PW2/D, hence, carrying an aura of truth, besides veracity, (d) contrarily hence the version, borne therein not being ingrained

with any vice of falsehood, dehors, any improvements or embellishments, occurring therein vis-a-vis the ones borne in Ex.PW2/A, (e) nor hence it can

be concluded, of the testification, rendered by prosecutrix, AND, bearing concurrence with the recitals, borne in ex.PW2/D, being amenable for, its,

being discarded, given it being purportedly imbued, with, any stench of any prevarication or with any stain, of, improvements or embellishments, vis-a-

vis, the versions, qua the occurrence, spelt out in Ex.PW2/A. In sequel thereto, this Court is constrained, to, impute sanctity to the version qua the

occurrence, as, testified by the prosecutrix.

Be that as it may, the learned counsel, appearing for the accused, has contended with vigour, that the statement of the prosecutrix, recorded, under

Section 164 of the Cr.P.C., (i) whereupon much dependence, is laid, by this Court, for imputing creditworthiness, vis-a-vis, the testification, rendered,

by the prosecutrix, (ii) being not construable to be a substantive piece of evidence, and, hence he contends that any reliance thereon, is inapt. In

making the aforesaid submission, the learned counsel appearing for the appellant, places reliance, upon a verdict rendered, by the Hon'ble Apex Court,

in a case titled as George vs. State of Kerala, 1998(4) SCC 605, the relevant paragraph No.36 whereof is extracted hereinafter:-

“36. We may now turn to the evidence of P.W.50, detailed earlier. From the judgment of the trial Court we notice that the substantial parts of its

comments, (quoted earlier) are based on his statement recorded under Section 164 Cr.P.C. and not his evidence in Court. The said statement was

treated as substantive evidence; as would be evident from the following, amongst other observations made by the learned trial Court:-

“If Ext. P.42 (the statement recorded under Section 164 Cr.P.C.) is found to be a genuine statement it can be used as an important piece of

evidence to connect the accused with the crimeâ€. In making the above and similar comments the trial Court again ignored a fundamental rule of

criminal jurisprudence that a statement of a witness recorded under Section 164 Cr.P.C. cannot be used as substantive evidence and can be used only

for the purpose of contradicting or corroborating him. Instead of appreciating the evidence of P.W.50 from that perspective the trial Court confined its

attention mainly to his statement so recorded and discredited him.†However, in making the aforesaid submission, the learned counsel, appearing for

the appellant, has hence committed an apparent fallacy, arising, from his misreading, the truest signification, of the hereinabove extracted, relevant

paragraph, of George's case (supra). The reason, for making, the aforesaid conclusion, arises, from the factum, (i) given, even if the statement

recorded under Section 164 of the Cr.P.C., by the prosecutrix, before, the learned Magistrate concerned, is unamenable, for its being used, as a

substantive evidence, yet with apt para thereof, further mandating therein, of its being usable, for corroborating or confronting, the maker thereof,

hence renders it usable, by the learned defence counsel, for confronting therewith hence the prosecutrix, for, thereafter her veracity, being fathomed.

Since, the prosecutrix, in her testification, embodied, in her examination-in-chief, had made a clear echoing, qua her statement borne in ex.PW2/D,

being rendered volitionally, before, the learned Magistrate, and, also hence thereupon, has, meted corroboration, vis - a -vis, her testification, wherein

she ascribes, vis-a-vis, the accused, incriminatory roles, qua (i) qua after the accused lifting her from behind, his ensuring qua his private part making

contact, with, her private part; (ii) of the accused accused applying “bhabhuti†on her private part, (iii) testifications whereof, though, purportedly

improving upon, the initial version vis-a-vis occurrence, borne, in Ex.PW2/A, yet, with this Court, for the reasons aforestated, discounting, all effects

thereof, (iv) thereupon, it was imperative, for, the learned defence counsel, to also confront her, with her statement borne in Ex.PW2/D, for hence,

unveiling, from her, the apposite contradictions, occurring therein vis-a-vis her testification rendered on oath, especially qua the aforesaid facets, (v)

also for hence eliciting, from her, the factum of hers, in making, gross improvements besides embellishments, vis-a-vis, her initial statement qua the

occurrence, borne in Ex.PW2/A, thereupon, her testification being belitted qua its solemnity. However, the aforesaid apt permissible user, of

Ex.PW2/D, by the defence counsel, for hence contradicting, maker thereof, contradictions whereof, would emerge upon hers being confronted

therewith, by the learned defence counsel, during, the course of his subjecting her to cross-examination, apparently remained unavailed, (vi)

whereupon, in, the learned defence counsel, rather omitting to confront her with her statement, borne in Ex.PW2/D also concomitantly, his, omitting to

unearth therefrom, qua its carrying, a version ridden with rife improvements or contradictions, vis-a-vis, the one embodied in Ex.PW2/A, (vii)

thereupon, concomitantly, AND, as a natural corollary, the omissions aforesaid of the learned defence counsel, constrain an inference, from this Court

of hence, the learned defence counsel, acquiescing to the factum of the maker, of Ex.PW2/D, rendering the apt encapsulated version borne therein,

besides qua hers hence rendering it volitionally, and, also his acquiescing qua it carrying therein, a truthful version qua the occurrence.

Be that as it may, even if, the Hon'ble Andhra Pradesh High Court, in a case titled, as Guruvindapalli Anna Rao v. State of A.P., reported in 2003

CRI. L. J. 3253, the relevant paragraph 7, whereof stands extracted hereinafter:-

“7. We would like to put one more discrepancy on record, viz., that while recording evidence, the learned II Additional Sessions Judge had

summoned the I Additional Munsif Magistrate, Tenali (PW.10) to prove the statement of P.W.1 recorded by him under Section 164 Cr.P.C. This

Court has already ruled if any Magistrate records the statement of a witness under Section 164 Cr.P.C, it is not necessary for the Sessions Judges to

summon that Magistrate to prove the contents of the statement recorded by him. This Court has already ruled that when a Magistrate, discharging his

official functions as such, records the statement of any witness under Section 164 Cr.P.C, such statement is a 'public document' and it does not

require any formal proof. Moreover, it is seen that the learned II Additional Sessions Judge, Guntur, while recording the evidence of the I Additional

Munsif Magistrate, Tenali (PW.10), has exhibited the statement of P.W.1 recorded by the Magistrate as Ex.P.10. As a matter of fact, such statement

cannot be treated as a substantive piece of evidence. Such statement can be made use of by the prosecution for the purpose of corroboration, or by

the defence for contradiction, under Section 145 of the Evidence Act. Therefore, the II Additional Sessions Judge, Guntur, is directed to note the

provisions contained in Section 145 of the Evidence Act. Even if a statement is recorded by a Magistrate, it is not a substantive piece of evidence, but

it is only a previous statement.â€​

(i) has propounded therein the trite exposition of law, of statement of a witness, recorded under Section 164, of the Cr.P.C., being construable to a

public document, and, it not requiring any formal proof, besides its mandating therein, of, the summoning of the Magistrate, being not imperative, for

proving hence, contents thereof, (ii) yet even if, the learned defence counsel has made the aforesaid omission, and, even if, for hence, efficacious

proof being adduced qua validity of Ex.PW2/D, on all fronts, did not enjoin, the summoning, of the Magistrate concerned, (iii) nonetheless, when, it

was yet open for the learned defence counsel, to, at an appropriate stage, by casting an application, under Section 311 of the Cr.P.C., hence

endeavour, to, seek pronouncement, of an affirmative order(s) thereon, especially, for summoning the Magistrate concerned, (iv) AND, upon, whose

hence stepping into the witness box, he was hence enabled, to rip apart, the tenacity of the prosecutrix's deposition, qua hers, making, it volitionally,

also, was hence, rather enabled, to, impinge the validity, of, the certificate appended thereunderneath, by the Magistrate concerned, (v) on score, of, it

being made mechanically, AND, cursorily, without, his ensuring, qua, all the apt recitals occurring therein, being a sequel of her free volition, besides

being bereft of any iota oF any stain, of, hence maker thereof, being tutored or hers making it, under, the behest or guidance, of, certain vested

interests. Since, the aforesaid endeavour, stood unassayed, by the learned defence counsel, thereupon, this Court, with reinforced vigour, hence,

concludes, of, the defence accepting, the factum (a) of truthfulness of the certificate, appended, by the Magistrate, underneath, the statement recorded

before him, by the prosecutrix; (b) of hence the defence acquiescing qua all the recitals borne therein, hence carrying a vital aura of truth, besides,

hence the prosecution, on anvil thereof, rather proving the charge against the accused.

The learned counsel, appearing, for the accused/appellant, has yet proceeded, to make a contention before this Court (i) that the genesis of the

occurrence, is contrived besides invented, especially when her husband, who testified as PW-3, renders an echoing, of his, on 13.05.2013 receiving a

telephonic call, from, his wife, after 10 p.m., whereat, she communicated to him, the occurrence, besides when the prosecutrix in her deposition,

comprised in her cross-examination, renders an echoing, of hers, also from her cell phone, making, a call at Police Station, Gohar, hence, the police

officials, of Police Station, Gohar, were, enjoined, to, with promptitude , hence, enter a rapat against the accused, (ii) thereupon, he contends that

omissions thereof, besides rather, with, the prosecutrix, on the day subsequent, to the occurrence, making, an application vis-a-vis the occurrence,

comprised in Ex.PW2/A, to, the Incharge Police Station, Gohar, (iii) also hence constrain, an inference, of the version comprised, in Ex.PW2/A, rather

being contrived besides invented. However, the efficacy, of the aforesaid submission, is withered by (a) PW-11 in his deposition, borne in his

examination-in-chief, making, a clear echoing, of his, on 13.5.2013, hence, receiving a phone call, on the landline telephone, of the Police Station, and,

his also further testifying, qua his inability to hear the voice, from, the other side. The aforesaid deposition of PW-11, cannot, be construed to be

incredible, hence, when he clearly deposed qua inaudibility of voice of the maker of the cell phone call, on the landline telephone number, of, the police

station concerned, thereupon, hence his being concomitnatly disabled to record a rapat, (b) thereupon, it cannot be concluded that the version qua the

occurrence comprised, in Ex.PW2/A, and, Ex.PW2/D, being either contrived or invented.

Lastly but not unimportantly, an immense vigour, vis-a-vis the testification qua the occurrence rendered by the prosecutrix, is acquired, from her

testification, qua hers, belabouring the accused with kick blows, for, hence repulsing his perpetrating an assault upon her, (i) the aforesaid testification

rendered by PW-2, is proven by PW-1, given his during the course, of, his examination-in-chief, proving the apt MLC, prepared, by him, qua the

accused, as, borne in Ex.PW1/B also his testifying, of, upon his examining, the accused, his noticing (a) minor contusion on dorsal surface on right

hand, (b) and contusion on dorsal surface of left hand, (c) and his also testifying that the probable duration, of injuries being 8 to 9 hours, (d)

consequently with the duration of the injuries being relatable, to, the timing(s) of the occurrence, (e) and, with the injuries, divulged in Ex.PW1/B,

standing neither explained nor the learned defence counsel, contesting, the apt revelations, existing, in Ex.PW1/B, (f) thereupon, it is to be reiteratedly

concluded that the version testified, by the prosecutrix, being rendered in consonance with Ex.PW2/A, and with Ex.PW2/D, especially qua the factum,

of, hers, hence delivering kick blow(s), upon, the accused for thereupon hers repulsing his penal misdemeanors, whereupon, it acquires formidable

vigour, besides also hence the accused, obviously, makes apt acquiescence(s) therewith.

In summa, with the testimony, rendered by the prosecutrix qua the occurrence, being both credible, and, inspiring, thereupon, any testification,

rendered, by other prosecution witnesses, who, subsequent to the occurrence arrived, at the place of occurrence, besides any purported inter se

contradictions, occurring, in their respectively rendered versions, is both insignificant and inconsequential nor hence, this Court is enjoined to make any

allusion thereto.

Nowat, the learned counsel, appearing, for the appellant, has contended with vigour, that, an appropriate sentence, being imposable upon the

accused, being vis-a-vis, qua attempt to commit rape, and, hence he contends, that, the conviction of the accused under Section 376(2) (f), rather being

unmeritworthy. However, the aforesaid espousal, made before this Court, by the learned counsel, for the appellant, is ummeritworthy, for the reasons

(a) with the apt amendment(s) being brought, on, the statute book w.e.f. 3.2.2013, and, with the relevant occurrence hence taking place subsequent

thereto, thereupon, the apt amended provisions, of, Section 376, IPC, in consonance wherewith the accused, was, charged, being squarely attracted

hereat. However, the learned counsel, appearing for the appellant, has contended, that, though the amended definition of rape, as, borne in Section 375

of the IPC, does appertain, to the occurrence, yet he contends that clause (c) thereof, clause whereof stands extracted hereinafter:-

“ Section 375- Rape-

(a).................................................

(b).....................................................

(c). manipulates any part of the body of a woman so as to cause penetration into vagina, urethra, anus or any part of body of such woman or makes

her to do so with him or any other person; or …..†through carrying bespeakings, of, “manipulates any part of the body of woman so as to cause

penetration into vaginaâ€, hence the ascribeable, apt connotation, thereof being qua it being also obviously imperative, for, the accused, to penetrate,

his penis into the vagina of the prosecutrix. However, the aforesaid connotative ascription(s), vis-a-vis, the apt portion of clause (c) of Section 375 of

the IPC, is unacceptable, as, the parlance borne, by the phrase “manipulates any part of the body of woman so as to cause penetration into

vaginaâ€, is, of the mere touching, of, any part of the body, of the woman, being, “of†all facilitative processes, hence, employed by a man, on any

part of the body of the woman, comprised, in caressing(s), leading to titillation(s) , arousals, and excitement(s), all hence being rendered rather penally

inculpable stratagem(s), employed by a man, to, hence cause a woman, to permit him, to penetrate his penis into her vagina, AND, all the caressings,

of, private parts of a woman, comprising, hence all causes, all whereof, carrying an intrinsic mens rea, for, bearing the apt facilitative end, AND, all

falling within the apt domain thereof.

For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court, has 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, hence not suffering from any

gross perversity or absurdity of mis-appreciation and non appreciation of germane evidence on record.

Consequently, the appeal is dismissed. In sequel, the impugned judgment is affirmed and maintained. All pending applications also stand disposed

of. Records be sent back forthwith.