State of H.P. vs Ludarmani and Others

Sureshwar Thakur, J.—The State of Himachal Pradesh is aggrieved by the findings of acquittal recorded in favour of the respondents/accused by the learned Special Judge, Mandi, District Mandi, H.P. Being aggrieved, it has sought the leave of this Court for instituting an appeal therefrom for assailing it.

Briefly stated the facts of the case are that on 4.3.2013, PW-1 prosecutrix was coming back to her house from school and she was caught by accused Ludermani in Ropri forest and committed sexual intercourse with her. She was threatened by the accused not to disclose this incident to anyone. On 13.03.2013, she was alone and the accused entered in her house and committed forcible sexual intercourse with her and again threatened her not to disclose this fact to anyone. Similarly, as per allegations on 20.03.2013, also accused again committed forcible sexual intercourse with the prosecutrix when she was alone. On 13.4.2013, accused Ludermani sent a letter to the prosecutrix through one Mansi which fell in the hands of PW-2 Devinder Kumar, brother of the prosecutrix. In the meantime co-accused Bhagat Ram came to their house having a danda and quarreled with PW-2. Thereafter it was disclosed to PW-2 that the accused had committed rape with the prosecutrix. The matter was reported to the police and FIR Ex. PW1/A was registered in the police station. The prosecutrix was medically examined by PW-11 Dr. Shruti Kainth who opined that the possibility of rape was not ruled out and issued MLC Ex. PW11/B. The Investigating Officer visited the spot and prepared spot maps Ex. PW10/A, Ex. PW10/B and various articles along with clothes were seized on the identification of the prosecutrix. The accused was arrested and was produced before PW-3 Dr. Vivek Moudgil for his medical examination who opined that the accused was capable of performing sexual intercourse. The date of birth certificate of prosecutrix Ex. PW4/B, copy of pariwar register Ex. PW4/C, copy of date sheet Ex. PW5/A, copy of matriculation examination certificate Ex. PW5/C were procured during investigating. The clothes and other case property was sent for Forensic Science Laboratory and report of Regional Forensic Science Laboratory, Mandi Ex. PW6/A was obtained.

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 fled in the Court.

The accused were charged by the learned trial Court for allegedly committing offences punishable under Sections 506, 201, IPC and Section 5(1) of the Protection of Children from Sexual Offences Act read with Section 376(2)(n), IPC. In proof of the prosecution case, the prosecution examined 19 witnesses. On conclusion of recording of the prosecution evidence, the statements of the accused under Section 313 of the Code of Criminal Procedure were recorded by the learned trial Court, in which the accused claimed innocence and pleaded false implication in the case.

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

The State of H.P. is aggrieved by the judgment of acquittal rendered by the learned trial Court. The learned Additional Advocate General has concerted to vigorously contend qua the findings of acquittal recorded by the learned trial Court being not based on a proper appreciation of evidence on record, rather, theirs being sequelled by gross mis-appreciation of material on record. Hence, he contends for leave being granted to the State of H.P. to institute an appeal therefrom for assailing it.

I have heard the learned Additional Advocate General at length and have also gone through the entire material on record.

The sole testimony of the prosecutrix if inspiring confidence besides worthy of credit would solitarily be sufficient for anchoring thereupon findings of conviction against the accused. However, before imputing solemnity to the testimony of the prosecutrix, it is incumbent to on its keen wholesome discernment gauge therefrom qua hence of a truthful version qua the incident standing upsurged therefrom for rendering her unfoldments qua the occurrence being bereft of any taint of unnaturalness besides invention. For disinterring from the deposition on oath of the prosecutrix, the preeminent factum of her version qua the incident being bereft of any taint of unnaturalness especially when she alleges the accused having perpetrated forcible sexual intercourse upon her obviously no occurrence in her deposition in portrayal of hers having meted consent to the accused in the latter''s subjecting her to sexual intercourses ought to exist. The prosecutrix being a major was competent to accord consent to the accused in the latter subjecting her to sexual intercourses. Withholding of consent by the prosecutrix to the accused would stand aroused from hers having repulsed the sexual overtures of the accused denoted by existence of injuries on her person besides on the person of the accused. Moreover, a quick reporting of the occurrence to the police station concerned would vividly display the prosecutrix having withheld her consent to the accused subjecting her to sexual intercourses.

The accused is alleged to have subjected the prosecutrix to forcible sexual intercourse initially on 4.3.2013 at Ropri Forest and thereafter at her house on 13.03.2013 and 20.03.2013. The initial sexual encounter inter se the accused and the prosecutrix occurred in a forest whereas the successive sexual encounters inter se her and the accused occurred in the house of the prosecutrix. Given the fact of the initial sexual encounter inter se the prosecutrix and the accused standing occurred in a forest on 04.03.2013 yet she in the interregnum since 4.03.2013 till 13.04.2013 omitted to report the matter to the police compelling an inference of hers having consented to the aforesaid sexual overtures of the accused, more so, when she on 13.03.2013 besides on 20.03.2013 permitted the accused to access her in her home. Even though the last sexual encounter inter se the accused and the prosecutrix occurred in the house of the latter on 20.03.2013 yet a report qua the occurrence stood lodged on 13/04/2013. Prompt reporting of penal misdemeanors inspires confidence, whereas, its imprompt reporting invites an inference of the version qua the incident enunciated in the FIR lodged qua it acquiring the taint of afterthought besides premeditation. A premeditated version qua the incident loses its creditworthiness. In short, any imprompt reporting of the occurrence by the prosecutrix necessarily begets an inference of the version comprised therein being a sequel to afterthought necessarily with a taint aforesaid imbuing the prosecution version makes it lose its creditworthiness or belittles its sanctity. Dehors the above, the prosecutrix though concedes in her deposition of a number of houses adjoining her house whereat the accused on 13.3.2013 and 20.03.2013 subjected her to forcible sexual intercourses yet she also concedes of hers not alarming by raising shrieks and cries the inhabitants of the homesteads adjoining her house for inviting their presence thereat at a stage contemporaneous to the accused subjecting her to forcible sexual intercourse omission whereof engenders an inference of hence hers not resisting the sexual overtures of the accused rather hers consensually succumbing to them. It appears, as aptly concluded by the learned trial Court, of the prosecutrix being led to report the matter to the police only on a love letter of the accused falling into the hands of PW-2. Moreover hers moving the District Magistrate under Section 321 of the Cr.P.C. for cancellation of the FIR is a potent disclosure of the prosecutrix having not meted any resistance to the sexual intercourses inter se her and the accused.

Even though this Court has concluded hereinabove of the sexual encounters inter se the accused and the prosecutrix being consensual. For a valid consent thereto standing emanated from the prosecutrix necessarily the occurrence of proof of the prosecutrix at the relevant stage having arrived at the age of consent was obviously enjoined to exist on record. The prosecutrix when concedes of hers being 19 years in age even at a stage contemporaneous to hers recording a statement before the Deputy Commissioner on 4.8.2014 naturally renders it to constitute a vivid disclosure of hers being at the relevant stage aged 18 years. The prosecution though relied upon Ex. PW4/B, copy of birth certificate and on Ex. PW4/C, copy of parirwar register in display of the prosecutrix being a minor at the time of occurrence, hence the effect of hers having meted consent to the accused in the latter subjecting her to sexual intercourse being inconsequential. However, the parents of the prosecutrix standing not examined as prosecution witnesses for lending conclusive strength to the factum of the date of birth of the prosecutrix recorded therein being 10.02.1996 renders any reliance thereupon by the prosecution for its hence canvassing of the prosecutrix being a minor at the stage contemporaneous to the ill fated occurrence, to stand striped of its sinew especially when their examination would have overcome any inference of the date of birth of the prosecutrix recorded therein standing scribed at the behest of the recording official hence false. Apart therefrom with the entries qua her date of birth recorded in the afore referred exhibits for want of adduction of best evidence comprised in the testimonies of the parents of the prosecutrix hence facing rebuttal naturally conclusivity thereof stands waned besides benumbed. Given the erosion to the solemnity of the entries of the date of birth of the prosecutrix recorded in the afore referred exhibits, an ensuable inference is of doubt gripping the scribing therein of the date of birth of the prosecutrix. Concomitantly, benefit thereof ought to go to the accused. In sequel, the prosecutrix is to be concluded to be a major at the time of the occurrence. In aftermath, she was competent to, as she did, accord consent to the accused to sexually access her.

For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court below 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 does not suffer from any perversity or absurdity of mis-appreciation and non appreciation of evidence on record, rather it has aptly appreciated the material available on record. Consequently, the instant application is dismissed, in sequel, the prayer of the State of Himachal Pradesh for grant of leave to it to appeal against the judgment of the learned trial Court is refused.