State of Himachal Pradesh vs Joginder Kumar

Mr. Justice Sanjay Karol, Judge

For an offence, which is alleged to have been committed on 4th August, 2004, accused were put to trial. In terms of judgment dated 1st June, 2007, passed by Sessions Judge, Kinnaur Sessions Division at Rampur, in Sessions Trial No. 18 of 2005 titled as State versus Joginder Kumar and another, accused stand acquitted of the charged offences. It is the case of prosecution that prosecutrix (PW-1), daughter of Shri Ram Sain (PW-2) and Smt. Vijay Laxmi (PW-3), was residing in village Lippa, Tehsil Moorang, District Kinnaur, with her parents. Her cousin accused Ishwar Singh also resided in a house which was adjacent to the house of the prosecutrix. Prosecutrix was friendly with her another cousin Ms Dharam Giani (PW-6), who also was residing with her parents in a house which was adjacent to the house of the prosecutrix. On 4th August, 2004 there was a public function in the temple in village Lippa. Prosecutrix left her house in the company of PW-6 to attend the same. On their way back home, at about 9.30 p.m., prosecutrix met accused No. 1 Joginder Kumar and accused No. 2 Ishwar Singh. PW-6 came to her house and prosecutrix went in the company of both the accused persons. Same time, Smt. Vijay Laxmi (PW-3) went to the house of PW-6 to enquire about the whereabouts of the prosecutrix, and was informed that she had left in the company of the accused. Thereafter, PW-3 went to the house of accused Ishwar Singh to search for her daughter, but prosecutrix was not to be found there. Accused Ishwar Singh informed PW-3 that prosecutrix had left for her own house. However, PW-3 could not find her there. Thereafter, she frantically searched for her daughter in the village but in vain. Next day, i.e. 5th August, 2004, at about 6 p.m., prosecutrix was brought back from the jungle by her uncle Shri Dharam Pal (PW-5). Thereafter prosecutrix disclosed to her parents that she had been subjected to rape by accused Joginder Kumar in the nearby orchard. Her parents took the prosecutrix to the Police Station at Reckong Peo, where report (Ex. PW-1/A) was lodged. Police official Shri Dharam Sain (PW-15) made entry in the Rojnamcha, on the basis of which FIR No. 37 dated 6th August, 2004 (Ex. PW-9/A), u/s 376, 506 & 120B of the Indian Penal Code, was recorded by HC Mohan Joshi (PW-9) at Police Station, Pooh. Investigation was conducted by Shri Surat Ram (PW-17). Constable Sarswati (PW-7) was entrusted with the task of taking the prosecutrix to the hospital at Reckong Peo, where she was medically examined by Dr. Anita Negi (PW-11), who finally issued MLC (Ex.PW-11/B), after examining report (Ex. PX) submitted by the Forensic Science Laboratory, Junga. Personal belongings, i.e. Sweater, Doru, cap and shoes, of the prosecutrix were recovered alongside the Khad, which were handed over to the police by her father. During investigation, accused Joginder Kumar was arrested, who made disclosure statement (Ex. PW-4/A) and led the police to the spot of crime, where demarcation report (Ex. PW-4/B) was prepared. Such proceedings of disclosure statement and identification of site were conducted in the presence of independent witnesses, i.e. Shri Subhash Chander (PW-16) and Shri Shyam Lal (PW-4). Accused Joginder Kumar was also got medically examined from Dr. Ghuman Singh (PW-12), who issued MLC (Ex. PW12/A and Ex.PW12/B). To determine the age of the prosecutrix, police collected Birth Certificate (Ex. PW-10/B), based on the Pariwar Register (Ex. PW-10/A), issued by Shri Satish Kumar (PW-10), Secretary of Gram Panchayat Lippa, Tehsil Moorang, District Kinnaur. Investigation revealed complicity of both the accused to the alleged crime. With the completion of investigation, challan was presented in the Court for trial.

Accused were charged for having committed offences, under Sections 376, 506 and 120B of the Indian Penal Code, to which they did not plead guilty and claimed trial.

In order to prove its case, prosecution examined as many as 17 witnesses and statements of the accused, u/s 313 of the Code of Criminal Procedure were also recorded, in which they took up plea of false implication. In defence accused also examined one witness.

The Court below, after appreciating the material on record acquitted the accused of the charged offences. Hence, the present appeal.

We have heard Shri R.K. Sharma, learned Senior Additional Advocate General, assisted by Shri J. S. Guleria, learned Assistant Advocate General, on behalf of the State as also Shri B.C. Negi, Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence placed on record by the prosecution. Having minutely examined the record, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is well reasoned and is based on complete and proper appreciation of evidence (documentary and ocular) placed on record. There is neither any illegality/infirmity nor any perversity in the same.

That prosecutrix is more than 16 years of age is not disputed. In any event, relevant evidence, documentary and oral, does not establish the fact to the contrary. It is not the case of prosecution that prosecutrix was kidnapped by either of the accused.

Prosecutrix was medically examined on 6th August, 2004 by Dr. Anita Negi (PW-11), who issued MLC (Ex. PW-11/B). The doctor opined that no injuries on any part of the face or neck were found on the body of the prosecutrix. There were no marks of struggle either. Also, no injury was found on the thighs or perineal region. Hymen was ruptured. There was neither any fresh tear nor any bleeding from the hymen. Two fingers could be inserted inside the vagina but with slight pain. No spermatozoa were seen. After considering the report of the Forensic Science Expert, the doctor opined that no spermatozoa were found on the vaginal swab and no semen was found on the clothes of the prosecutrix. The doctor eventually opined that there was no material to opine that fresh sexual intercourse had taken place, however, possibility of sexual intercourse could not be ruled out. Hence, there is no positive medical/link evidence with regard to rape/sexual intercourse. But this fact cannot be a ground for acquittal. It has also not weighed with us while adjudicating the present appeal.

Before we deal with the testimonies of the relevant prosecution witnesses, at this juncture, we may only record that both the father and the mother of the prosecutrix have admitted that even on an earlier occasion, prosecutrix was kidnapped by one Som Nath and was recovered from Jammu & Kashmir. FIR against the said person, under Sections 363, 366 & 376 of the Indian Penal Code was registered and after trial, he was acquitted. We may clarify that this fact, i.e. prior conduct of the complainant and the prosecutrix, has not weighed with us at all, while deciding the present appeal. Independently, we have appreciated the evidence on record.

According to the prosecutrix, she had gone to the temple alongwith PW-6. On their way back home, they met accused persons Joginder Kumar and Ishwar Singh. This happened at about 9.30 p.m. When she reached near the house of accused Ishwar Singh, her mother came and accused Joginder Kumar closed her mouth. When her mother enquired from accused Ishwar Singh about her whereabouts. He told her mother that she had left for her house. Thereafter, accused Joginder Kumar took her to the almond orchard and committed rape. She was detained in the orchard for about 10-15 minutes. After the incident, accused Joginder Kumar left from there. She also wanted to commit suicide. However, from there she went to the jungle, where she spent the night and was brought to her house by the "villagers" on 5th August, 2004. At her house, she disclosed the incident to her parents. This is the entire version of the prosecutrix.

We find her statement not to be inspiring in confidence at all. To begin with, she does not state that she ever resisted the overt acts of the accused at any point in time. Her house, as she so admits, is in the heart of the village and surrounded by houses of other persons where families also reside. Her parents also admit this fact. It is not her case that accused Joginder Kumar took her to the orchard under threat, coercion or fear. Path to the orchard is through the village, where even according to the parents, there are about 700-800 houses. She admits that between the house of accused Ishwar Singh, PW-6 and her house there are houses of other persons. She does not state that at the time when accused Joginder Singh took her to the orchard her mouth was gagged or her hands were tied. She could have conveniently and easily resisted the acts of the accused or cried for help or slipped away into any one of the houses nearby. The incident took place at a time when even according to her, villagers were coming and going to the temple, even though it was in the late hours of the night. It is not that she was all alone in the village or none was present in the houses or the path.

Further, this witness has contradicted her own statement by first stating that at the time of occurrence of crime, she was not knowing the name of accused Joginder Kumar and only knew him by face. Subsequently, she states that she was knowing accused Joginder Kumar for about 1-11/2 month, prior to the date of occurrence of the incident. Now if she was not knowing accused Joginder Kumar by name, then on what basis did she name him in the FIR and how was it that, without conduct of the test identification parade, police actually arrested the said accused.

Her testimony that accused Ishwar Singh lied to her mother that she had left for her house does not inspire confidence at all. This we say so for the reason that admittedly accused Ishwar Singh is related to her as brother. Now, why would a brother be an accomplice in a crime of rape against his own sister? To us it appears that she voluntarily went in the company of the accused, perhaps with the knowledge of her brother accused, Ishwar Singh and had sex, if any, of her own volition.

Further, testimony of the parents, in our considered view, does not advance the prosecution case at all. They have simply narrated the evidence as is so deposed by the prosecutrix. We find even the testimony of the father (PW-2) not to be inspiring in confidence. He admits that even after knowing that his daughter was missing from home he did not accompany his wife to look for her. Now, this is a very unusual and unnatural conduct of the father. It appears that he was not at home in the evening of 4th August, 2004. Otherwise why else would a father not search for his own daughter and allow only the mother to go into the village for the said purpose. Significantly, even the mother (PW-3) does not mention about the presence of this witness in the house.

Coming to the testimony of the mother, we find that she searched the entire house of accused Ishwar Singh. The question which arises for consideration is as to why would the mother search the house of a relative if she was not suspecting her daughter to have voluntarily left her house. In view of our earlier discussion, we do not find the testimonies of the parents to be of any help.

According to Shri Dharam Pal (PW-5), it was he who brought the prosecutrix back from the jungle. We are of the view that this witness has been introduced subsequently by the prosecution. This we say so for the reason that prosecutrix does not state that she was brought back from the jungle by her uncle Shri Dharam Pal. She simply states that she was recovered by the "villagers". Had the prosecutrix been subjected to rape, under normal circumstances, she would have disclosed the occurrence of the incident to her uncle in the jungle itself. Also, we find that other villagers who accompanied PW-5 to the jungle have not been examined in Court. Why so? has not been explained.

Smt. Dharam Giani (PW-6) also does not support the case of the prosecution. She simply states that prosecutrix went to her house after returning from the temple and when Smt. Vijay Laxmi came to enquire she told her that prosecutrix had gone with the accused. We find that this witness has contradicted herself, inasmuch as in her cross-examination she admits that she saw accused Joginder Kumar for the first time in the Court.

Witnesses Shri Subhash Chander (PW-16) and Shri Shyam Lal (PW-4) have stated that orchard where the prosecutrix was subjected to rape is enclosed from all sides with barbed wire set up over a wall of 31/2 feet and the entrance to the same is through a wooden gate. Now, surprisingly, the Investigating Officer denies this fact. There was no need for him to have so done. This only shows that he did not visit the site in question at all.

Our attention is invited to the disclosure statement (Ex. PW-4/A), allegedly made by accused Joginder Kumar, admitting his guilt. Significantly we find that Shri Subhash Chander (PW-16), who is witness to the disclosure statement and also in whose presence site was identified and got demarcated by the police official, i.e Shri Surat Ram (PW-17), has deposed that "the police had already visited the spot and they reached the house of Shyam Lal and thereafter I visited the house of Shyam Lal. The clothes were produced by Ram Sain in the presence of accused Joginder. Thereafter, the accused had demarcated the place of occurrence". Now, this totally demolishes the prosecution case with regard to the disclosure statement, which according to Shri Shyam Lal was made in his house. It is not the case of the Investigating Officer that such disclosure statement was made on the spot or in the village. The manner in which police has conducted the investigation, speaks volumes as to how they are discharging their duties, which must be in a proper, fair and impartial manner.

PW-16 in his un-rebutted testimony has also deposed that no one can be forcibly taken inside the orchard and the only entrance is through the gate. Now, it is not the case of prosecution that gate was either not locked or that the same was broken open by accused Joginder Kumar. Also, owner of the orchard has not been examined in Court to substantiate the fact that none else was present in the orchard at the relevant time.

Thus, we are of the considered view that the prosecution has failed to prove its case, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence so as to prove the charged offences.

For all the aforesaid reasons, we find no reason to interfere with the well reasoned judgment passed by the trial Court. The Court has fully appreciated the evidence placed on record by the parties. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., and State of Rajasthan Vs. Shera Ram @ Vishnu Dutta, , it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.