State of Himachal Pradesh vs Pushvinder

Sanjay Karol, J.—Assailing the judgment dated 27.05.2009, passed by learned Sessions Judge, Bilaspur, H.P., in Sessions Trial No. 1 of 2006/05, titled as State of Himachal Pradesh Versus Pushvinder Singh, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.

It is the case of prosecution that in the night intervening 6/7.12.2003, at about 1.30 AM, prosecutrix had gone to the fields to defecate. She was having a bad stomach for which she had taken medicine. Just as she was defecating, accused pounced upon her and after opening his pants forcibly subjected her to rape. Prosecutrix raised alarm, but none came to her rescue. She went home and informed her family members. In the morning of 07.12.2003, her father-in-law Fateh Singh (P.W. 2) went to the house of Sarwan (P.W. 9) Pradhan, Gram Pancahyat and informed him of the incident. Till the evening they waited for the Pradhan to come and take action, which did not happen. Then matter was brought to the notice of Karam Chand (P.W. 11) brother of the prosecutrix. Thereafter, Jai Singh (P.W. 5) brother-in-law (Jeth) of the prosecutrix reported the matter to the police and report (Ex. PW. 6/A) recorded. Police party headed by Additional SHO, Gulam Mohammad (P.W. 12) reached the spot and recorded statement of the prosecutrix under the provisions of Section 154 Cr.P.C. (Ex. P.W. 3/A), on the basis of which FIR. 161/03 dated 08.12.2003 (Ex. P.W. 7/A) was registered against the accused, at Police Station, Kot Kehloor, District Bilaspur, H.P., under the provisions of Sections 376 of the Indian Penal Code. Prosecutrix was got medically examined from Dr. Nishi Jaswal (P.W. 1), who issued MLC (Ex. P.W. 1/B). Incriminating articles, in the shape of clothes of the prosecutrix and the accused were seized by the police. Report (Ex. P.W. 1/A) of the Forensic Science Laboratory was obtained by the police. Investigation revealed complicity of the accused in the alleged crime, hence Challan was presented in the Court for trial.

Accused was charged for having committed an offence punishable under the provisions of Section 376 of the Indian Penal Code, to which he did not plead guilty and claimed trial.

In order to establish its case, in all, prosecution examined as many as thirteen witnesses. Statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he took up the following defence:-

"I am innocent. In this case I have been falsely implicated on account of enmity arising out of land dispute between my family members and that of the prosecutrix. Till about 8.00 P.M. (7.12.2003), the prosecutrix did not disclose the name of anybody including the accused to the Pradhan who had come to the spot in order to enquire from the prosecutrix. Since, she (prosecutrix) did not disclose the name of anybody, he returned home with the advise to lodge the report to the police. On the next day i.e. 8.12.2003, when I was arrested by the police then all the villagers under the leadership of Shri Hoshiar Singh, Advocate met S.P. Bilaspur and told that an innocent man has been implicated in this case. They (villagers) had also requested the S.O. for getting conducted DNA examination of both the parties which was got done and its report come negative against me."

Trial Court, after appreciating the testimony of the prosecution witnesses acquitted the accused. Hence the present appeal.

We have heard Mr. B.S. Parmar, learned Addl. Advocate General, assisted by M/s. Ashok Chaudhry, learned Additional Advocate General, Vikram Thakur, Puneet Rajta, learned Deputy Advocate Generals and J.S. Guleria, learned Assistant Advocate General on behalf of the State as also Mr. J.R. Poswal, Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, 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 based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.

It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish the essential ingredients so as to constitute the charged offence.

In Prandas Vs. The State, , Constitution Bench of the apex Court, has held as under:

"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.c., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in - ''AIR 1934 227 (Privy Council), in these words:

"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice." "

As per the version of Dr. Rakesh Jaswal (P.W. 10), DNA profiling did not match with the samples of the prosecutrix and the accused. Doctor on physical examination also found no signs of struggle on the body of the prosecutrix. Also her clothes were not torn. In fact, they were not even soiled with mud/soil or excreta. No injury was found, superficial or otherwise on the body of the prosecutrix.

Now prosecutrix, in Court, states that outside of her house, in the fields, in the middle of night while she was defecating accused came and ravished her. She raised an alarm. None came to her rescue. It has come on record through her testimony, that her family members were present in the house at that time. Also there are houses of neighbours close by, in fact, at a distance of just 50 meters. Why none responded has not been explained. She states that accused made her lie on her back and committed sexual intercourse. Surprisingly no telltale signs were found either on her body or clothes. Her version that she had gone to the fields to defecate as she had bad stomach cannot be said to have been proved on record, for neither the name of the doctor from whom she had taken medicine nor any proof of purchase of the same is placed on record. She vehemently states that she cried for help. Had it been so, any one from the neighbourhood, in the middle of night, when there is absolute silence, would have heard her cries and come for rescue. She admits that houses of Shankar and Ramanand are just at a distance of one minute walk. She denies having made statement (Ex. DB) to the police. We do not find testimony of this witness to be inspiring in confidence at all and the witness to be wholly trustworthy. There is no explanation as to why the matter was not immediately brought to the notice of the authorities. Her explanation that in the morning matter was brought to the notice of the Pradhan is an afterthought and only an improvement, for it is not so recorded in her previous statement with which she was confronted.

Fateh Singh (P.W. 2) father-in-law of the prosecutrix explains that in the morning he had gone to the Pradhan to whom he reported the matter. Since Pradhan did not come to his house till late evening, brother of the prosecutrix was called, whereafter matter was reported to the police. However, even this version of his is uninspiring in confidence. There are major improvements in his statement. In Court, he was confronted with his previous statement (Ex. DE), wherein fact that brother of the prosecutrix reached at 7.00 PM and the cause of delay in lodging the FIR was explained to the police, was not so recorded therein. Why was the brother of the prosecutrix not informed in the morning has not been explained. In fact on this issue, Pradhan has a totally different version to state, for according to him on 07.12.2003, Fateh Singh came to him and disclosed that though the prosecutrix was raped but she is not telling the name of the accused. At about 7.12 PM he went to the house of the victim and made enquires from her. Even to him she did not disclose the name of the accused. Thereafter, he advised that the matter be reported to the police. Fateh Singh (P.W. 2) admits that he had gone alongwith his brother to meet Pradhan Sarwan (P.W. 9) at a marriage ceremony. Under these circumstances, it is beyond comprehension and unbelievable that a victim or a family member would not report the matter to the police or authorities about a serious crime which had taken place in the family. In the instant case delay in lodging the FIR is fatal. Also due deliberation cannot be ruled out.

Close scrutiny of testimony of Sarwan (P.W. 9), only reveals that fight had taken place between husband of the prosecutrix and Jai Singh, both sons of Fateh Singh, hence meeting of Panchayat was convened. In fact, there is unrebutted testimony of Pradhan to the effect that "In the Panchayat Jai Singh told that Jagat Singh his brother was kissing his wife. Thereafter, Jai Singh gave beating to his wife and we settled the matter peacefully."

Pradhan has also probablized the version of the accused, for it has come in his testimony that on the asking of the villagers, DNA profiling of the accused was got done and Jai Singh against whom finger of suspicion was pointed refused for the same. It has come on record from the testimony of this witness that there is animosity between the family of the accused and the complainant party. Possibility of false implication cannot be ruled out.

Smt. Devki Devi (P.W. 4) mother-in-law of the prosecutrix states that accused gagged the mouth of the prosecutrix at the time of commission of crime, which in fact is not the case of the prosecutrix. Her further version that prosecutrix sustained injuries on her face and other parts of the body including breasts, stands falsified not only by the medical record but by the prosecutrix herself. Even this witness admits dispute, inter se the parties in relation to the estate of Indro Devi. We find testimony of brother of the prosecutrix Karam Chand (P.W. 11) not to be advancing the case of the prosecution in any manner. Independent witness Ram Dittu (P.W. 13) has not supported the prosecution.

When we further examine the testimony of the Investigating Officer Gulam Mohammad (P.W. 12), we find that there has been due deliberation prior to the matter being reported to the police. The alleged incident took place in the night intervening 6/7.12.2003 yet the matter was reported after more than 20 hours. After all parties did have access to mobile phone, for ultimately police was informed through the mobile cell of Fateh Singh. Also prosecutrix had lived in Delhi for quite some time. It is not that she was rustic or illiterate lady living in the remotest corner of the State. She is worldly-wise. Then why is it that report was not lodged immediately.

Even Jai Singh (P.W. 5) against whom finger of suspicion was pointed has disowned his statement (Ex. DD) so recorded by the police. He admits that on account of bad conduct, family was boycotted by the villagers. It appears that witness in his testimony has deposed the truth in the following terms, "it is correct that brother of prosecutrix (name withheld) had been called and that when he came, she had told the name of the accused to him and not to us." Now this version of his totally falsifies the version of the prosecutrix and her parents in law, rendering the witnesses to be unreliable and their testimonies to be unbelievable and uninspiring in confidence. What is further intriguing is that none of the family members of the prosecutrix went to search for the accused or brought the matter to the notice of his family, for it is not the case of prosecution that accused was not available or had run away from the village.

Thus, to our mind, prosecution has not been able to establish by leading clear, cogent, convincing and reliable piece of evidence so as to prove that the accused forcibly committed rape upon prosecutrix against her will.

The Court below, in our considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that judgment of trial Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice.

The accused has 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., , since it cannot be said that trial Court has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case.

For all the aforesaid reasons, present appeal, being devoid of merit, is dismissed, so also the pending application(s), if any. Bail bonds furnished by the accused are discharged. Record of the trial Court be immediately sent back.