State of Himachal Pradesh vs Jai Singh

Sureshwar Thakur, J.—The instant appeal, is, directed by the State, against the impugned judgment, rendered on 23.4.2013, by the learned Additional Sessions Judge, Mandi, in, Sessions trial No. 19 of 2008, whereby, the learned trial Court acquitted the accused/respondents for theirs having committed offences punishable under Sections 366, 376-G of Indian Penal Code.

Brief facts of the case are that on 30.5.2008, on the information of SDPO Sunder Nagar, a Rapat No. 21 was lodged with Police Station Joginder Nagar. ASI Satish Kumar alongwith other police Officials reached at Police Station Sundernagar where statement of prosecutrix under Section 154 Cr.P.C. was recorded, on the basis of which, an FIR came to be registered against the accused. The facts enumerated in the FIR are that the mother of the prosecutrix Soma Devi was employed at Joginder Nagar Hospital and her father Sohan Lal was employed with Electricity Department. On 29.5.2008, the younger brother Jitender Kumar was at home and her parents were at their respective work places, after preparation of rice, the prosecutrix went towards bus Stand Jogindernagar, where one truck was parked near PWD workshop and cement was being unloaded from the truck. It is also alleged that one person called her towards truck. She went towards that place where the person gave her his telephone number. Thereafter she accompanied them. It is further alleged in the FIR that on the same day about 3.30 p.m., accused took her in the truck on the pretext of showing her Mandi Bazar. However, on way at place Gumma, they had perpetrated forcible sexual intercourse upon her without her consent. It is further alleged that accused at place Barmana during night time again had perpetrated forcible sexual intercourse upon her. In morning time, they took her to Sunder Nagar in the truck and when cement was being unloaded near Canal at Sundernagar, then one another truck came there and accused make the prosecutrix to sit in that truck and asked the driver to unboard her after some distance. Accused also gave her Rs. 125/- and some coins. The truck driver un-boarded her near the bridge. After unboarding the truck she was crying, then police came there and took her to police station. During the Course of investigation, site plan of the occurrence was prepared and recorded the statements of the witnesses. On conclusion of the investigation, into the offences, allegedly committed by the accused, final report under Section 173 of the Code of Criminal Procedure was prepared and presented in the Court.

The accused were charged, for, theirs having committed offence punishable under Sections 366, 376(g) read with Section 34 of I.P.C., by the learned trial Court, to, which they pleaded not guilty and claimed trial.

In order to prove its case, the prosecution examined 24 witnesses. On closure of prosecution evidence, the statements of accused, under Section 313 of the Code of Criminal Procedure, were recorded, in, which they pleaded innocence and claimed false implication. They did not choose to lead evidence in defence.

On appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused.

The State of H.P is aggrieved by the judgment of acquittal, recorded by the learned trial Court in favour of the accused/respondents. The Learned Assistant Advocate General has concertedly and vigorously contended that the findings of acquittal, recorded by the learned trial Court are not based on a proper appreciation of evidence on record rather they are sequelled by gross mis-appreciation of the material on record. Hence, he contends that the findings of acquittal be reversed by this Court, in, exercise of its appellate jurisdiction and be replaced by findings of conviction and concomitantly an appropriate sentence be also imposed upon the accused/respondents.

On the other hand, the learned defence counsel has with considerable force and vigour, contended that the findings of acquittal, 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.

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 first witness, who stepped into the witness box in proof of the prosecution case, is Dr. Rafia Bano (PW-1). She deposes that on application Ex. PW-1/A, she medically examined the prosecutrix with the alleged history of sexual assault on 29.5.2008 at 2.p.m. She continues to depose that no external injury was seen anywhere on the body as well on the external genitalia and inner side of thigh and vagina. She further deposes that MLC comprised in Ex. PW-1/C is issued by her. She further deposes that as per the report of the Radiologist her age was more than 19 years.

PW-2 Dr. Rakesh Kumar, Radiologist deposes that as per X-Ray films Ex. PW-2/A-1 to Ex. PW-2/A-4 sent to him for examination the age of the patient was above 19 years. His report is comprised in Ex. PW-2/B.

PW-3 Roop Singh deposes that he used to drive a tipper (A/F) in the year 2008 at Sunderngar. He continues to depose that on 30.5.2008 at 10.30 a.m., when he reached near control gate, driver of truck bearing registration Number HP-07-5567 made a girl to sit in his vehicle and asked her to drop at Sundernagar. He further deposes that he dropped the girl near Pungh. He continues to depose that he cannot identify the driver of the truck or the girl in the Court. This witness was declared hostile and on the permission having been granted to learned P.P., he came to be cross-examined. During the course of his cross-examination nothing material could be elicited from this witness.

PW-5, prosecutrix deposes that she has come out from her house and accused present in the Court had taken her in their truck. She continues to depose that they stopped truck near Machal where another truck came. Accused removed her clothes and raped her. She became unconscious. She continues to depose that she was made to sit in another vehicle and dropped near bridge. She does not remember the name of the bridge. She further deposes that she cannot say whether some bad act was done with her in the night. Police came and took her to the police station where she gave statement comprised in Ex. PW-4/A, which bears her signatures. She was medically examined. She further deposes that she had told the place of incident to the police, memos comprised in Ex. PW-5/A and PW-5/B bears her signatures. In her cross-examination she deposes that house of her parents was situated in bus stand Jogindernagar and there remains heavy rush of people. The truck was parked near the bus stand. She continues to depose that she had not shouted for help because the accused had gagged her mouth with a cloth (confronted with Ex. PW-4/A, wherein it has not been recorded). She further deposes that she tried to save herself from the accused and sustained injuries. She stated it to be incorrect that she roamed in Mandi Bazar with the accused. The accused had stopped the truck where they had unloaded the cement. Cement was loaded from Joginder Nagar in the truck and was unloaded at about 5-6 p.m. She has told all these facts to the Police but were not found recovered in her statement comprised in Ex. PW-4/A. She continues to depose that she is not aware of the number of the truck. Machchal is towards Sarkaghat side. She is confronted with portion A to A, B to B, C to C and D to D of her statement comprised in Ex. PW-4/A. She continues to depose that she is not aware of the name of the place where she was taken by the police and she has seen the accused only today after the incident.

PW-7 Soma Devi, mother of the prosecutrix deposes that she was working as midwife in Joginder Nagar Hospital. She continues to depose that on 29.5.2008 when she returned home for lunch about 2.00 p.m. the prosecutrix was not at home. She alongwith her husband went to Kangra in search of the prosecutrix, but a telephonic message was received that the prosecutrix was recovered at Sundernagar. She continues to depose that the statement of the prosecutrix was recorded and she was medically examined. She continues to depose that police was taken to Gumma and Sunderngar and prosecutrix shown the places to the police. She is confronted with portion A to A of her statement mark-D.

PW-10 Sohal Lal, the father of the prosecutrix, deposes that the prosecutrix is not able to work and speak property and is not married due to this reason. He continues to depose that on 29.5.2008 the prosecutrix was found missing. He further deposes that the matter was reported to the police and he was told by the police that his daughter was recovered. Prosecutrix told him that she was raped. She was taken to the hospital and was medically examined. He continues to depose that the prosecutrix took the police to Gumma and Barmana and shown the places for which memo Ex. PW-5/C was prepared.

PW-11 Sr. R.N. Jaryal deposes that on application Ex. PW-11/A he medically examined the accused Jai Singh on 31.5.2008. In his opinion there was nothing to suggest that patient was not capable of performing sexual intercourse. He issued MLC comprised in Ex. PW-11/B. He continues to depose that accused Parveen was also medically examined by him and in his opinion there is nothing to suggest that he was not capable of performing sexual intercourse, in this regard he issued MLC comprised in Ex. PW-11/D. No injury marks were found in the pubic areas, on the shaft of penis, glans penis and prepuce.

PW-15 Jagdish Chand deposes that on 23.5.2008 when he was on patrolling duty at Pungh, then prosecutrix met him and was appeared to be disturbed. She was taken to the hospital and intimation was given to PS Joginderngar and her parents were also informed. In his cross-examination he deposes that the prosecutrix told telephone number of her parents.

PW-22 Ramesh Kumar deposes that he alongwith Police and prosecutrix went to Barmana where she identified the spot and investigating Officer prepared memo comprised in Ex. PW-5/A and 5/B, which bear his signatures.

PW-23 ASI Satish Kumar, Investigating Officer deposes that on 30.5.2008 officials of Police Station, Sunder Nagar informed that one girl of Sunderngar is at Police Station Sunderngar. He continues to depose that he alongwith other police officials reached at PS Sundernagar and recorded the statement of the prosecutrix comprised in Ex. PW-4/A in presence of her mother and sister. He deposes that the prosecutrix appeared to be mentally weak and upset. On application Ex. PW-1/A she was medically examined and her MLC comprised in Ex. PW-1/B was obtained. He further deposes that both the accused were called at Police Station Joginder Nagar. Vehicle bearing Registration No. HP-07-5567 was taken into possession vide memo Ex. PW-12/E alongwith its documents. On applications comprised in Ex. PW-11/A and PW-11/C accused were medically examined and their MLCs comprised in Ex. PW-11/B and PW-11/D were obtained. Accused were got identified by the prosecutrix under memo Ex. PW-5/C. Seal cover and underwear were taken into possession vide memo Ex. PW-12/A. Sample seal was separately taken on a piece of cloth Ex. PW-23/A. He continues to depose that the prosecutrix has shown the places where she was raped and in this regard memos comprised in Ex. PW-5/A and PW-5/B were prepared alongwith site plans comprised in Ex. PW-23/C and PW-23/D. He further deposes that he took into possession the birth certificate comprised in Ex. PW-13/A from MC Joginderngar. Statements of witnesses were recorded. Statement of Roop Singh Mark A was recorded as per his version. He further deposes that on receipt of report of chemical examiner Ex. PW-1/C, final opinion of Medical officer was sought. Parcel Ex. P-11, underwear Ex. P-12, another parcel Ex. P-13 seal cover Ex. P-14 and Ex. P-15 are the same. In his cross-examination he deposes that the house of the prosecutrix was adjacent to the police station. He further deposes that he has not got examined the prosecutrix from medical officer to determine her mental status. Accused were called to P.S Sunderngar on the same day and were arrested on the same day and their vehicle was also taken into possession on the same day. It is stated to be correct that the bus stand and taxi stand are located adjacent to the office of PWD Joginder Nagar and there are many shops. It is also stated to be correct that he has not shown bus stand and shops in site plan Ex. PW-23/C. He went to Barmana on 11.6.2008 in the van of brother of the prosecutrix. It is stated to be correct that Mahchial is towards Sarkaghat. No missing report was lodged with P.S Jogindernagar. It is stated to be incorrect that accused were not got identified by the prosecutrix. It is also stated to be incorrect that all documents are prepared at the police Station and the statements of the witnesses were not recorded as per their versions. It is stated to be correct that Jogindernagar Bazar is about 250 meters from gate of PWD Office. He further deposes that he had not taken the prosecutrix to Machchial.

An inspiring and trustworthy deposition of the prosecutrix alone would constitute clinching evidence against the accused for his having allegedly committed the offences for which he was charged, tried and acquitted by the learned trial Court. For gauging and fathoming the factum whether the testimony of the prosecutrix unveils the factum of hers having rendered a credible and trustworthy deposition, this Court ought to discern on a wholesome reading of her testimony whether it is consistent with her previous statement recorded by her in writing besides the story propounded by the prosecutrix in her previous statement recorded in writing ought to be perse communicative of its constituting/containing the ingredients of the offences alleged by her against the accused. In case on an incisive traversing of the testimony of the prosecutrix rendered by her during her examination in chief portrays that hence she has contradicted her previous statement recorded in writing, as such has improved, embellished and contradicted her previous version recorded in writing, effect thereof would rip apart the truthfulness of the prosecution version. A keen discernment of the testimony of the prosecutrix uncovers the factum of it being rife or replete with embellishments and contradictions over her previous statement recorded in writing hence rendering it to be prevaricated, as such unworthy of credence. An apt advertence to Ex. PW-4/A which is the FIR, lodged at her instance with the police station concerned divulged that when the prosecutrix had come out from her house towards Bus Stand Joginder Nagar adjoining PWD workshop, she noticed one truck to be parked there wherein labourers were in the process of unloading the cement. At the place aforesaid one person called the prosecutrix by signal, she responded to the signal and on arriving in the presence of the person, the said person gave his telephone number to the prosecutrix and the prosecutrix joined the company of the accused. The factum of the location of the place of occurrence in the vicinity of a busy locality where a PWD workshop, shops at some distance exist and the prosecutrix having omitted to raise an alarm/outcry or outburst against the act of the accused to make her aboard the truck, with aplomb constrains, this Court to conclude that omission on the part of the prosecutrix to raise an outcry or outburst is communicative of hers having volitionally acquiesced to join the company of the accused. Consequently, hence, the charge against the accused of theirs having committed an offence under Section 366 IPC falls apart or capsizes.

In the statement of the prosecutrix recorded under Section 154 Cr.P.C. comprised in Ex. PW-4/A, she has recited therein that the accused took her in a truck from Joginder Nagar to Mandi on the pretext of hers visiting Mandi Bazaar yet they committed forcible sexual intercourse upon her at Gumma and at night time at Barmana. The factum aforesaid as recited by the prosecutrix in her statement comprised in Ex. PW-4/A of the accused having perpetrated forcible sexual intercourse upon her at Gumma and at night time at Barmana has been contradicted by her while deposing as a witnesses inasmuch as in her examination-in-chief she has deposed that accused had carried her in their truck and stopped it at Machchal at which place they perpetrated forcible sexual intercourse upon her. An apparent and palpable contradiction hence is unfolded inter se the place where the alleged occurrence took place as recited in the FIR inasmuch as therein the place of occurrence is recited to be both Gumma and Barmana, whereas the place of occurrence as deposed by her is Machchal which place is in a direction other than Barmana and Gumma inasmuch as it is towards Sarkaghat. The contradiction inter se the place of occurrence as recited by the prosecutrix in Ex. PW-4/A and as deposed by her in Court is a blatant and stark contradiction rendering hence the genesis of the prosecution story as propounded by her in Ex. PW-4/A qua the alleged offence having occurred at Gumma and Barmana to be ridden with falsity. Consequently, in the face of a blatant contradiction to the extent aforesaid she is to be construed to be unreliable, untrustworthy and an uninspiring witness. Besides, during the course of investigating the prosecutrix had enabled the Investigating Officer to prepare memos Ex. PW-5/A and PW-5/B respectively, qua the place of occurrence as divulged by her. The witnesses in proof of the memos aforesaid, qua the place of occurrence of the offence alleged against the accused as divulged by the prosecutrix to the Investigating Officer, were Ramesh Kumar and Sohan Lal. However, PW-10 Sohan Lal omitted to support the prosecution case. Also PW-22 Ramesh Kumar witness to PW-5/A deposes that the prosecutrix had shown the said place to the police in his presence. In sequel memos Ex. PW-5/A and PW-5/B prepared by the Investigating Office during the course of investigation at the instance of the prosecutrix remain unproved for lack of corroboration inter se the testimonies of the witnesses to them. Consequently, when the site of occurrence has remained unproved by each of the witnesses which fact construed in conjunction with the dire contradictions resorted to by the prosecutrix in as much as she having in contradiction to the place of occurrence divulged in Ex. PW-4/A deposed the place of occurrence to be else where, props up an inference that the prosecution is relying upon a prevaricated and invented version. Preponderantly, besides PW-1 has deposed that on hers examining the body of the prosecutrix she noticed no external injury besides she deposed that she did not notice any injury on the external genitalia and inner side of thigh and vagina of the prosecutrix. The factum of non-existence of injuries on the person of the prosecutrix either on any of her external parts or her private parts conveys that hence, even if she was subjected to forcible sexual intercourse, the sexual intercourse perpetrated on her person, if any, is consensual especially when in the event of hers being subjected to forcible intercourse she would to foil, such perpetration on her person would have portrayed resistance displayable by injuries having been gained on her person or on the body of the accused. However in absence of injuries either on the person of the accused or on the person of the prosecutrix an apt and formidable conclusion which is to be formed that the sexual intercourse if any perpetrated on the person of the prosecutrix is wholly consensual. The age of the prosecutrix as deposed by the PW-1 and PW-2 is more than 19 years obviously then she had arrived at the age of consent. The prosecution projects that consent, if any, of the prosecutrix to the act perpetrated on her person by the accused is both immaterial and inconsequential in the face of hers having a low IQ hence being disempowered to accord volitional consent. However the prosecution has not been able to prove by cogent evidence comprised in the opinion of an expert rendered after carrying out of enjoined medical tests for determining her IQ and such tests having underscored the factum of hers being disempowered to accord volitional consent, in absence thereof, it cannot be concluded that the prosecutrix was hence disempowered to accord volitional consent to the act if any perpetrated on her person by the accused. Besides the factum of the prosecutrix cooking food at home as also factum of on hers being recovered by the police she having divulged to the latter the telephone number of her parents conveys that her cognitive faculties were alive, as such, dispels the contention of the learned Assistant Advocate General of the prosecutrix being disempowered to accord consent to the sexual intercourse if any perpetrated upon her by the accused.

A wholesome analysis of the evidence on record portrays that the appreciation of evidence as done by the learned trial Court does not suffer from any perversity and absurdity nor it can be said that the learned trial Court in recording findings of acquittal has committed any legal misdemeanor inasmuch, as, it having mis-appreciated the evidence on record or omitted to appreciate relevant and admissible evidence. In aftermath this Court does not deem it fit and appropriate that the findings of acquittal recorded by the learned trial Court merit inference.

In view of above discussion, we find no merit in this appeal, which is accordingly dismissed and the judgment of the learned trial Court is affirmed. Record of the learned trial Court be sent back forthwith.