Rajinder Sharma @ R.K vs State Of Himachal Pradesh

Cr. Appeal No.434 of 2019 a/w Cr. Appeals No.348, 369, 469 & 580 of 2019 Reserved on : 12.06.2024 Decided on: 18.06.2024 ______________________________________________________

1. Cr. Appeal No.434 of 2019

Rajinder Sharma @ R.K. .....Appellant Versus State of Himachal Pradesh .....Respondent _________________________________________________________

2. Cr. Appeal No.348 of 2019

Mustaq Mohmmad alias Abbu .....Appellant Versus State of Himachal Pradesh .....Respondent _________________________________________________________ 3. Cr. Appeal No.369 of 2019 Ranjit Singh .....Appellant Versus State of Himachal Pradesh .....Respondent _________________________________________________________ 4. Cr. Appeal No.469 of 2019

Som Nath alias Sonu .....Appellant Versus State of Himachal Pradesh .....Respondent _________________________________________________________ 2

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5. Cr. Appeal No.580 of 2019 Uttam Chand .....Appellant Versus

State of Himachal Pradesh .....Respondent _________________________________________________________ Coram Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge Hon'ble Mr. Justice Sushil Kukreja, Judge 1 Whether approved for reporting? Yes.

_________________________________________________________ For the Appellant(s): Mr. Ashwani Kaundal, Advocate, for the appellant in Cr. Appeal No.434/ 2019.

Mr. Ajay Kochhar, Senior Advocate with Mr. Bhairav Gupta, Advocate, for the appellant in Cr. Appeal No.348/ 2019.

Ms. Sheetal Vyas, Advocate, for the appellant in Cr. Appeal No.369/2019.

Mr. N.S. Chandel, Senior Advocate with Mr. Vinod Kumar Gupta, Advocate, for the appellant(s) in Cr. Appeals No.469 & 580/2019.

For the Respondent/State: Mr. I.N. Mehta & Mr. Yashwardhan Chauhan, Senior Additional Advocates General with Ms. Sharmila Patial, Additional Advocate General.

Sushil Kukreja, Judge

Since all these appeals emanate from a common

judgment rendered by the learned trial Court, therefore, they were

1 Whether reporters of Local Papers may be allowed to see the judgment? 3

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taken up together for consideration and are being disposed of by this

judgment.

2. The instant appeals filed under Section 374/374 (2) of the

Code of Criminal Procedure (Cr.PC), lay challenge to the judgment of

conviction and order of sentence dated 11.06.2019 passed by the

learned Special Judge, Hamirpur, H.P., in Sessions Trial No.21 of

2018, titled State of Himachal Pradesh Versus Mustaq Mohammad @

Abbu & others, whereby appellants-accused persons, namely, Mustaq

Mohammad alias Abbu, Rajinder Sharma alias R.K., Som Nath alias

Sonu and Ranjit Singh were convicted for commission of the offences

punishable under Section 376-D read with Section 120-B of Indian

Penal Code (IPC) and Section 4 of the Protection of Children from

Sexual Offences Act, 2012 (for short, 'POCSO Act'), whereas,

appellant-accused Uttam Chand was convicted for the commission of

offence punishable under Section 376-D read with Section 120-B of

IPC and Section 6 of POCSO Act and each of the appellants-accused

was sentenced to undergo rigorous imprisonment for a period of 20

years and to pay a fine of Rs.20,000/- and in default, to undergo

rigorous imprinsonment for a period of two years for commission of the

offence punishable under Section 376-D of IPC.

3. The prosecution story, in brief, is that on 09.02.2018, the

complainant, i.e. father of the victim lodged a complaint before the 4

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police about missing of his daughter, i.e. the victim (name withheld)

from their house, on which the police tried to trace her but she could

not be traced. The complainant informed the police that the victim had

taken mobile phone with her and the last call was made from her

mobile phone to one Arun Kumar, who disclosed to the police that he

had talked to the victim, but he was not aware about her whereabouts.

A phone call was received on the mobile phone of said Arun Kumar

from the victim, who told him that she was at Hoshiarpur and thereafter

HC Karam Singh alongwith the father of victim (name withheld), Abhi-

nav Chandel, Arun Kumar and LC Milan Kumari proceeded to Jupiter

Service Station, Hoshiarpur, where the victim met them at the Petrol

Pump and she disclosed that she was gang-raped and identified the

room of accused Uttam Chand.

4. During the course of investigation, the police prepared the

site plan, clicked photographs of the room of accused Uttam Chand.

The victim identified the bed-sheet and towel of the room of accused,

which were put in a cloth parcel and sealed with nine seals of seal

impression 'A'. Sample of seal was also taken on a separate piece of

cloth and the seal after use was handed over to witness Subhash

Chand. Accused Uttam Chand was arrested on 10.02.2018.

Thereafter, the medical examinations of victim as well as accused

Uttam Chand were conducted on 11.02.2018. The statement of victim 5

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was recorded under Section 161 Cr.PC, Thereafter, her statement was

also recorded under Section 164 Cr.PC by the learned ACJM, Court

No.1, Hamirpur. The police obtained birth certificate of the victim,

wherein her date of birth was shown to be 28.10.2002. In her

statements recorded under Sections 161 & 164 Cr.PC, the victim

disclosed that on 09.02.2018 she was taken by accused persons Abbu

and Sonu in a Tempo from Jahu. They parked the tempo at place

Manoh and thereafter accused persons Rajinder Sharma alias R.K.

and Ashwani Kumar also came there in their vehicle and all of them

parked their vehicles on the roadside and consumed liquor. Accused

Ashwani Kumar was driving the vehicle bearing No.HP-66-9065 and

she (victim) was also sitting therein. He asked her name and address

and also asked her to marry him, but she declined and thereafter he

got down from the vehicle at place Bhota and went towards Nadaun in

his vehicle. Accused persons Mustaq alias Abbu and Rajinder Sharma

alias R.K. committed rape upon her in the vehicle bearing registration

No.HP-66-9065 near Bumblu bridge and accused Som Nath alias Sonu

also committed rape upon her at a place Galu ahead of Barsar in the

said vehicle, whereas, accused Ranjit Singh alias Mota had committed

rape upon her in his vehicle bearing registration No. HP66A-3717 at an

isolated place near Una. Accused Mustaq alias Abbu took her in his

Tempo and dropped her at Jahankhelan and paid her Rs.20/- by telling 6

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her to meet his friend Uttam Chand alias Neelu. Then, the victim went

to Hoshiarpur in the Auto, where she met accused Uttam Chand, who

also committed rape upon her in his room. The prosecution story

further reveals that during investigation, accused persons Mustaq

Mohammad, Som Nath alias Sonu and Rajinder Sharma alias R.K.

were arrested on 14.02.2018 and their medical examinations were got

conducted. On 18.02.2018, the team of RFSL, Mandi examined the

Tempo bearing registration No.HP66-9065 and collected hair, comb,

seat cover, towel, handkerchief, shirt, steering wheel cover and

newspapers from the said vehicle and thereafter the hair and comb

were put in a cloth parcel and sealed with six seals of seal impression

'T' and the remaining articles were also put in a plastic bag which was

sealed with one seal of impression 'T'. Sample of seal was separately

taken on a piece of cloth, which was handed over to Ram Pal after use.

During further investigation, ASI Ten Singh recovered Scooty bearing

registration No.PB-02-AD-2497 alongwith its documents. The police

moved an application for conducting the Test Identification Parade (for

short, 'TIP') of the accused persons before the learned ACJM, and

during the course of TIP, the victim identified accused persons,

namely, Mustaq, Sonu and Rajinder Sharma alias R.K. The police also

seized vehicles bearing registration No.PB08CB-6415 & HP66A-3717

alongwith the documents and one Mahinder Kumar, owner of vehicle 7

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No.HP66-9065 produced the said vehicle before the police, which was

also seized. Thereafter, accused persons Ashwani and Ranjit were

also arrested on 27.02.2018 and their medical examinations were

conducted and during the course of TIP, they were duly identified by

the victim. The team of RFSL Mandi inspected the vehicle bearing

registration No.HP-66A-3717 and collected hair, piece of pistachio,

seat cover, foot-mat, towel, cushion and blanket from the said vehicle

and thereafter the hair and piece of pistachio were kept in a paper

packet and sealed in a cloth parcel with four seals of seal impression

'C' and the remaining articles were put in a bag and sealed with one

seal of seal impression 'C'. One Sunil Kumar, owner of vehicle bearing

registration No.HP-66A-3843 produced the said vehicle before the

police, which was seized alongwith its documents. The call details

record of mobile phone No.8824020255 was procured by the police

and the victim identified four places at Jahu, Bumblu, Galu and

Bankhandi and the police prepared the site plans. On the completion of

the investigation, the charge-sheet was prepared and presented

before the Court.

5. Vide order dated 11.07.2018, the charges were framed by

the learned trial Court against the accused persons under Sections

363, 376, 376-D read with Section 120-B of IPC and Sections 4 & 6 of

POCSO Act, to which, they did not plead guilty and claimed trial. 8

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6. In order to prove its case, the prosecution examined as

many as 42 witnesses. Statements of the accused persons were

recorded under Section 313 Cr.P.C., wherein they denied all set of

incriminating evidence led by the prosecution against them. However,

they did not examine any witness in their defence.

7. On the basis of evidence led on record by the prosecution,

the learned trial Court convicted the accused persons (appellants

herein), vide the impugned judgment and sentenced them as per the

description given hereinabove.

8. Being aggrieved and dissatisfied with the judgment of con-

viction and order of sentence passed by the learned trial Court, the ap-

pellants/accused persons approached this Court by way of instant ap-

peals, praying therein for their acquittal after setting aside the aforesaid

judgment of conviction and order of sentence.

9. Learned Senior Counsel as well as learned counsel for the

respective appellants contended that the charges against the accused

persons have not been proved beyond reasonable doubt. They further

contended that the version of the victim is not believable and the trial

Court did not appreciate the statement of the prosecutrix at the touch

stone of probabilities and it brushed aside the significance of non-

resistence by the prosecutrix on pure surmises that she was under

shock, hence, could not resist the illegal activities of the 9

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appellants/accused persons. They also submitted that the medical

evidence does not corroborate the evidence of the victim as there were

no injuries and no signs of forcible sexual intercourse. They further

submitted that the prosecution had withheld the SFSL reports with

respect to the medical examination of the victim as well as the accused

persons and also with respect to the articles seized from the vehicles

allegedly involved in the commission of the offence. They also

submitted that apart from these aspects, the identity of the accused

persons is seriously disputed as the procedure for conducting test

identification parade was not proper. The victim was not knowing the

persons who had committed rape upon her and the prosecution has

not established identity of the appellants beyond reasonable doubt.

10. On the other hand, the learned Senior Additional Advocate

General supported the judgment of the learned trial Court and

contended that since the charges against the accused persons have

been duly proved by the prosecution beyond all reasonable doubt, the

learned trial Court has rightly convicted them on the basis of proper

appreciation of evidence.

11. We have heard learned Senior Counsel/counsel for the

appellants as well as the learned Senior Additional Advocate General

for the State and also gone through the record carefully. 10

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12. As far as age of the victim is concerned, we do not find

any infirmity whatsoever in the evidence of PW-17. He produced on

record the birth certificate of victim Ext. PW17/B, according to which,

her date of birth was recorded as 28.10.2002. During cross-

examination of the victim, on the suggestion given to her by Mr. Ashish

Sharma, learned defence counsel, she had specifically stated that her

date of birth was 28.10.2002, which corroborates the entry in the birth

and death register of the concerned Gram Panchayat, brought by

PW-17. Thus, the evidence led by the prosecution is conclusive to

prove that the date of birth of the victim was 28.10.2002. Therefore, on

the date of incident i.e. on 09.02.2018 she was about 15 years and 5

months of age.

13. Rape or an attempt to rape is a crime not against an

individual but a crime which destroys the basic equilibrium of the social

atmosphere. In Jugendra Singh Vs. State of UP, (2012) 6 SCC 297,

Hon'ble Apex Court has held:-

"49. Rape or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. The consequential death is more horrendous. It is to be kept in mind that an offence against the body of a woman lowers her dignity and mars her reputation. It is said that one's physical frame is his or her temple. No one has any right of encroachment. An attempt for the momentary pleasure of the accused has caused the death of a child and had a devastating effect on her family and, in the ultimate eventuate, on the collective at large. When a family suffers in such a manner, the society as a whole is compelled to suffer as it creates an incurable dent in the fabric of the social milieu. The cry of the collective has to be answered and respected and that is what exactly the High Court has done by converting the 11

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decision of acquittal to that of conviction and imposed the sentence as per law."

14. It is a settled principle of law that conviction can be based

on the sole testimony of the victim of sexual assault without

corroboration from any other evidence. The prosecutrix complaining of

having been a victim of the offence of rape is not accomplice of the

crime and there is, no rule of law that her testimony cannot be acted

without corroboration on material particulars. Her testimony has to be

appreciated on the principles of probabilities just as the testimony of

any other witness and if the Court finds it difficult to accept the version

of the prosecutrix on its face value, it may search for evidence direct or

circumstantial which would lend assurance to her testimony.

15. The Hon'ble Supreme Court has observed in a catena of

decisions that the Court should examine the broader probabilities of a

case and not get swayed by minor contradictions or insignificant

discrepancies in the statement of the prosecutrix, which are not of a

fatal nature to throw out an otherwise reliable prosecution case. If the

statement of the prosecutrix is of sterling quality and inspires

confidence, then corroboration from other evidence need not be

sought, but where the statement of the prosecutrix is shaky and does

not inspire confidence then corroboration should be sought from other

evidence collected during investigation.

12

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16. In State of Himachal Pradesh Vs. Gian Chand, (2001) 6

SCC 71, it was held that it is now well settled that conviction for an

offence of rape can be based on the sole testimony of the prosecutrix

corroborated by medical evidence and other circumstances such as the

report of chemical examination etc. if the same is found to be natural,

trustworthy and worth being relied on.

17. In the case of Vijay @ Chinee Vs. State of Madhya

Pradesh, (2010) 8 SCC 191, it was held that the statement of the

prosecutrix, if found to be worthy of credence and reliable, requires no

corroboration. The Court may convict the accused on the sole

testimony of the prosecutrix. Paras 9 to 14 of the judgment are

reproduced as under:-

"9.In State of Maharashtra v. Chandraprakash Kewalchand Jain AIR 1990 SC 658, this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under:-

"16.A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar 13

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to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.

10. In State of U.P. v. Pappu @ Yunus and Anr. AIR 2005 SC 1248, this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under:-

12. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.

11. In State of Punjab v. Gurmit Singh and Ors.: AIR 1996 SC 1393, this Court held that in cases involving sexual harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration 14

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unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under:

"8...The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix.... The courts must, while evaluating evidence remain alive to the fact that in a case of rape, no self- respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case.... Seeking corroboration of her statement before replying upon the same as a rule, in such cases, amounts to adding insult to injury.... Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances...

** ** ** **

21....The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be 15

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sensitive while dealing with cases involving sexual molestations.

12. In State of Orissa v. Thakara Besra and Anr. AIR 2002 SC 1963, this Court held that rape is not mere a physical assault, rather it often distracts the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.

13. In State of Himachal Pradesh v. Raghubir Singh (1993) 2 SCC 622, this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. placing reliance on an earlier judgment in Rameshswar v. State of Rajasthan.

14. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix"

18. Coming to the facts of the present case, the first point

involved for consideration in these appeals is whether evidence adduced

by the prosecution, particularly testimony of victim PW1 is trustworthy,

credible and worthy of reliance.

19. In order to test the veracity of the deposition of victim/PW1,

it needs to be discussed threadbare. She was examined on oath in

Court during trial where she deposed that on 09.02.2018. her mother

scolded her and she left her home towards Jahu after taking the mobile

phone of her mother at about 6.30 PM. She had contacted her friend

Arun telephonically and asked him for help as she had left the house,

who asked her to return home and told that he was towards Bhareri

side. At that time she (victim) had reached near Green Valley School, 16

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where two boys were standing near a Dhaba with their Tempo and she

told them that she wanted to go to Shimla. They said that they would

take her to Shimla and she boarded their Tempo. They went towards

Bhota side instead of Shimla. She asked them to drop her at Bhota, but

they did not allow her to get down from the Tempo. The names of said

two boys were Abbu and Sonu as they were talking with each other

using these names. They had stopped their Tempo at place Manoh.

Both of them got down from the tempo and locked her inside the

tempo. Two more vehicles also came from backside in which two

persons were in their vehicles as drivers and all these four persons

consumed liquor there and thereafter Sonu and another driver Ashwani

sat in the tempo and proceeded towards Bhota side, Abbu was driving

the vehicle of Ashwani. On the way, accused Ashwani asked her to

marry him, but she refused and thereafter, accused Ashwani de-

boarded from the tempo at Bhota and Abbu again boarded the said

tempo and on the way, accused Abbu stopped the tempo at Bumbloo

near a water source (Bowri) and another vehicle also came from

backside and stopped there. Accused Abbu had done wrong act with

her in the tempo in presence of accused Sonu, then accused Sonu

went outside the tempo and another person named R.K. came in the

tempo, who had also done wrong act with her in the tempo in the

presence of accused Abbu and thereafter accused R.K. left the spot in 17

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his vehicle. Accused Sonu once again boarded the tempo and they

started their tempo and accused Abbu was driving the same. Accused

Abbu stopped the tempo at place Galu after crossing Barsar and then

he (accused Sonu) had done wrong act with her in presence of

accused Abbu. Accused Abbu was talking on his mobile phone with

another person that they would meet after crossing Una and thereafter

accused Abbu started his tempo and proceeded towards Una side.

Accused Sonu alighted from the tempo at Una and accused Abbu

again telephonically contacted the person and asked him to stop at a

lonely place after crossing Una. He stopped the tempo at a lonely place

after crossing Una after half an hour on Una-Hoshiarpur road and

another person came with his Jeep Traula and stopped the same near

the tempo. She asked accused Abbu that she wanted to go to washroom

and when she got down from the vehicle, accused locked the vehicle from

inside and the person came out of his Jeep traula and gagged her mouth

with his hand and took her to his vehicle and had also done wrong act

with her in his Jeep and then he left the spot after de-boarding her from

his Jeep. Thereafter, she came near the tempo o f accused Abbu and

awaken him and boarded the tempo and they left the spot. After half

an hour drive, accused Abbu stopped the tempo and gave her Rs.20/-

and told her to meet his friend named Uttam @ Neelu near petrol

pump, who was a resident of Kangra district and told her that he would 18

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return after 2-3 hours and would drop her at her home. Accused Abbu

had threatened her not to disclose the incident otherwise, he would do

away with her life and he dropped her on the way, thereafter, she saw

a dhabha, went there and inquired about the place from the owner of

Dhabha, who told her the name of place as Jahankhelan, then offered

her a cup of tea and told her that it was not a safe place for her, so he

asked her to go Hoshiarpur as she had pretended to go Jallandhar.

Then Dhabha owner had sent her to Hoshiarpur in an auto and she got

down from the auto near petrol pump at Hoshiarpur, where Uttam @

Neelu met her. She asked him to charge the battery of her mobile

phone, which was charged by him in the office of the Petrol Pump and

after that Uttam offered her tea twice and told her to take rest in his

room, but when she refused to visit his room, he took her forcibly on his

scooty to his room, where he had done wrong act with her. Thereafter,

accused Uttam had given her mobile phone and told her to call him

whenever she wanted to return to her home. He locked her in his room

and returned to the Petrol Pump. She telephonically contacted her

friend Arun and asked him to take her from Hoshiarpur, who told her

that he alongwith others were coming to take her back and then she

contacted accused Uttam @Neelu to take her from the room as her

brother was coming there. When accused Uttam @ Neelu came to his

room to take her, he again did wrong act with her and brought her to 19

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the Petrol Pump on his scooty and after dropping her, he returned to

his room. While she was standing at the petrol pump, Arun alongwith

her father, police and her relatives reached there after 15-20 minutes

and then she disclosed about accused Uttam @ Neelu to her father

and the police.

20. Statement of victim under Section 164 Cr.P.C. Ex. PW1/B

was recorded on 13.02.2018. However, the same is not in

consistence with her deposition before the Court. In her statement

under Section 164, Cr.PC, she stated that when the truck driver had

dropped her from the truck, a police man came there and made

inquiries from her,whereas, in her deposition before the Court, she did

not utter even a single word about the fact that some police man had

met her, rather she denied the suggestion in cross-examination that

when she got down from truck, one police person also reached there.

21. On a careful analysis of the testimony of the prosecutrix,

we find a large number of contradictions, inconsistencies and

improvements, which casts a shadow of doubt and led us to find it

difficult to rely upon her version. As per the version of the victim, a

series of rape was committed on her which had started from

09.02.2018 and ended on 10.02.2018. The victim, as per her own

version, travelled a long distance in the company of accused persons

throughout the night and had many opportunities to disclose her fate to 20

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the world at large, especially when she met a Dhaba owner, driver of

the Auto with whom she allegedly reached Hoshiarpur and the persons

available at the Petrol Pump at Hoshiarpur. It is highly improbable that

about 16 years old girl will not make any effort to save herself from the

clutches of accused persons for such a long period, more so, when she

got enough opportunities for the same which casts a cloud of suspicion

regarding her credibility. She had not raised any alarm and had not

sought help from others throughout her journey from the place from

where she was taken away till the time she was recovered. As per her

own version, she got down from the vehicle, but the accused locked

the vehicle from inside and another person came out of his jeep, who

gagged her mouth with his hand and took her to his vehicle and he also

committed rape upon her. Thereafter, he left the spot after deboading

her from his jeep. There is no explanation as to why she had again

boarded the tempo of accused Abbu. Thereafter she saw a dhaba and

inquired about the place from the owner of the dhaba. However, she did

not disclose the incident to the owner of the dhaba. As per own version of

the victim, accused Abbu stopped the tempo and dropped her on the way,

gave her Rs.20/- and asked her to meet his friend Uttam alias Neelu at

petrol pump. However, she has failed to explain as to why she had met

accused Uttam Chand @ Neelu at petrol pump on the mere asking of

accused Abbu, especially in view of the fact tha t at that time she had 21

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enough opportunity to escape from the clutches of the accused

persons. As per her statement recorded under Section 164, Cr.PC, a

police man met her at some place at Una-Hoshiarpur road. However,

she had not disclosed anything to the police man also. This conduct of

the victim is unusual. The time and opportunities which the prosecutrix

had, to report the matter to the police or any other person by raising an

alarm when she was forced to undergo the trauma of rape is un-

explainable.

22. Having discussed the testimony of the victim in detail, it is

significant to examine whether the other evidence adduced by the

prosecution finds support from the oral testimony of the victim

23. So far as medical evidence is concerned, PW-29 Dr.

Seema Bhardwaj deposed that on 11.02.2018, she conducted the

medical examination of the victim and gave her initial opinion which

reads as under:-

"There are signs of vaginal penetration. There are signs of sexual intercourse, however, possibility of recent sexual activity can not be ruled out. There are signs of general physical injuries. The signs are consistent with the history given and there were no other sign of struggle except those mentioned earlier."

24. Thereafter, the doctor has given her final opinion as

under:-

"As FTA card was not available at the time of examination. Kindly provide FTA card for DNA analysis of above mentioned sample. There are signs of vaginal penetration, however, potability of recent sexual activity cannot be ruled out."

22 2024:HHC:3571

25. It has come on record that during medical examination of

the victim, following articles were sent to FSL:-

1. Blood in 2 tubes for serology and grouping + urine sample.

2. Finger nails scrapping

3. Cut pubic hair

4. Vaginal material for spermatozoa.

5. 2 slides

6. Cervical material for gonorrhea.

7. Per rectal swab.

8. Oral mucosa swab.

9. Clothes and undergarments.

10. Vaginal cotton swab-(1) Semen typing (ii) Acid Phosphate."

26. PW-36 LC Anuradha deposed that on 21.02.2018, she

took the victim for her medical examination to CH Bhoranj. The

medical officer handed over one sealed parcel with three seals of seal

impression 'X' and one sealed Khakhi envelope, addressed to Director

RFSL, Mandi, which was sealed with three seals of seal impression 'X'

and one MLC to her. She handed over all the articles to MHC Rakesh

Kumar.

27. During investigation, the accused persons were also got

medically examined and their pubic hair, vest, pants, undergarments

sample, nail, urine sample etc. were taken into possession and after

depositing the same in the Malkhana, the same were sent to FSL.

28. It has also come in evidence on record that during

investigation, the vehicles allegedly involved in the commission of the

crime were seized and got inspected from the team of RFSL, Mandi, 23

2024:HHC:3571

who recovered hair, comb, seat cover, towel, handkerchief, shirt,

steering wheel cover, newspapers, etc. from the vehicles and those

articles were deposited in the Malkhana and thereafter, the same were

sent to RFSL, Mandi

29. PW-35 HC Rakesh Kumar sent all the aforesaid articles to

SFSL, Junga for examination. However, the SFSL reports with respect

to the medical examination of the victim as well as the accused

persons and also with respect to the articles seized from the vehicles

were never produced before the Court. PW-29 Dr. Seema Bhardwaj,

Medical Officer, had given the final opinion in the absence of SFSL

report and she, in her cross-examination, admitted that the final opinion

was issued without going through the report of DNA analysis.

Therefore, in the absence of FSL report and report of DNA analysis, it

cannot be said that those were the accused persons alone and no one

else who had committed rape upon the victim. In order to connect the

accused persons with the commission of the crime, the FSL report with

respect to the medical examinations of the victim and accused persons

as well as the articles seized from the vehicles was a significant piece

of evidence, however, for the reasons best known to the prosecution,

the FSL reports were withheld, as such, an adverse inference has to be

drawn against the prosecution.

24

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30. Furthermore, the prosecution has also failed to produce on

record the CCTV footage from the CCTV camera installed in the petrol

pump at Hoshiarpur, which was allegedly taken in a pen drive by the

investigating agency. It has come in the statement of PW-4 Sukhpal

Singh, owner of the petrol pump, that during investigation the police

had taken footage of CCTV camera installed in the petrol pump at

Hoshiarpur in the name of Jupiter Service Station and they had taken

the CCTV footage in a pen drive. PW-35 stated in his deposition before

the Court that he had copied CCTV footage on the pen drive. However,

the said CCTV footage has also not been produced in the Court for the

reasons best known to the prosecution, as such, an adverse inference

has to be drawn against the prosecution.

31. The learned counsel for the appellants next contended that

the test identification parade was not conducted in accordance with the

guidelines laid down by the Hon'ble Apex Court as the photographs of

the accused persons were taken by the Investigating Officer and

pasted on the conviction slip prior to the holding of TIP and there is

every possibility that the photographs of accused persons were shown

to the victim prior to the test identification parade as such this

circumstance cannot be made a ground to hold the accused persons

guilty.

25

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32. It is the settled principle of law regarding the Test

Identification Parade that it is not a substantive piece of evidence and

such tests are meant for the purpose of helping the investigating

agency in order to ensure that their progress with the investigation into

the offence is proceeding in the right direction. The Test Identification

Parade is not a substantive evidence but it can only be used in

corroboration of the statements in Court as held in the matter of

Musheer Khan Alias Badshah Khan and another Vs. State of

Madhya Pradesh, reported in (2010) 2 SCC 748, wherein the Hon'ble

Supreme Court has observed at paragraphs 24, 25 & 26 as under:-

"24. It may be pointed out that identification test is not substantive evidence. Such tests are meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on right lines. (See Matru v. State of U.P., - 1971(2) SCC 75 at p. 83, para 17.)

25. It is also held by this Court that identification test parade is not substantive evidence but it can only be used in corroboration of the statements in court. (See Santokh Singh v. Izhar Hussain, - (1973) 2 SCC 406 at p. 412, para 11.)

26. Recently in Amitsingh Bhikamsingh Thakur v. State of Maharashtra - (2007) 2 SCC 310, this Court held on a consideration of various cases on the subject that the identification proceedings are in the nature of tests and there is no procedure either in Cr. P.C., 1973 or in the Evidence Act,1872 for holding such tests. The main object of holding such tests during investigation is to check the memory of witnesses based upon first impression and to enable the prosecution to decide whether these witnesses could be cited as eye witnesses of the crime. It has also been held that the evidence of the identification of the accused for the first time is inherently weak in character and the Court has held that the evidence in test identification parade does not constitute substantive evidence and these parades are governed by Section 162 of the Code of Criminal Procedure and the weight to be attached to such identification is a matter for the courts."

26 2024:HHC:3571

33. In Vijay @ Chinee's case (supra), the Hon'ble Supreme in

para-15 held as under:-

"15. Holding of the Test Identification Parade is not a substantive piece of evidence, yet it may be used for the purpose of corroboration; for believing that a person brought before the Court is the real person involved in the commission of the crime. However, the Test Identification Parade, even if held, cannot be considered in all the cases as trustworthy evidence on which the conviction of the accused can be sustained. It is a rule of prudence which is required to be followed in cases where the accused is not known to the witness or the complainant. (Vide State of H.P. Vs. Lekh Raj)".

34. In Rajesh alias Sarkari and another Vs. State of

Haryana, (2021) 1 SCC 118, the Hon'ble Supreme Court has held as

under:-

"43.1. The purpose of conducting a TIP is that persons who claim to have seen the offender at the time of the occurrence identify them from amongst the other individuals without tutoring or aid from any source. An identification parade, in other words, tests the memory of the witnesses, in order for the prosecution to determine whether any or all of them can be cited as eye- witness to the crime;

43.2. There is no specific provision either in the CrPC or the Indian Evidence Act, 1872, which lends statutory authority to an identification parade. Identification parades belong to the stage of the investigation of crime and there is no provision which compels the investigating agency to hold or confers a right on the accused to claim a TIP.

43.3. Identification parades are governed in that context by the provision of Section 162 of CrPC.

43.4. A TIP should ordinarily be conducted soon after the arrest of the accused, so as to preclude a possibility of the accused being shown to the witnesses before it is held.

43.5. The identification of the accused in court constitutes substantive evidence.

43.6. Facts which establish the identity of the accused person are treated to be relevant under Section 9 of the Evidence Act.

43.7. A TIP may lend corroboration to the identification of the witness in court, if so required.

43.8. As a rule of prudence, the court would, generally speaking, look for corroboration of the witness' identification of the accused in court, in the form of earlier identification proceedings. The rule of prudence is subject to the exception 27

2024:HHC:3571

when the court considers it safe to rely upon the evidence of a particular witness without such, or other corroboration.

43.9. Since a TIP does not constitute substantive evidence, the failure to hold it does not ipso facto make the evidence of identification inadmissible.

43.10. The weight that is attached to such identification is a matter to be determined by the court in the circumstances of that particular case.

43.11. Identification of the accused in a TIP or in court is not essential in every case where guilt is established on the basis of circumstances which lend assurance to the nature and the quality of the evidence.

43.12. The court of fact may, in the context and circumstances of each case, determine whether an adverse inference should be drawn against the accused for refusing to participate in a TIP. However, the court would look for corroborating material of a substantial nature before it enters a finding in regard to the guilt of the accused."

35. In Gireesan Nair and others Vs. State of Kerala, (2023)

1 SCC 180, the Hon'ble Supreme Court has held in paras 29 to 33 as

under:-

"29. TIPs belong to the stage of investigation by the police. It assures that investigation is proceeding in the right direction. It is a rule of prudence which is required to be followed in cases where the accused is not known to the witness or the complainant (Matru v. State of U.P. (1971) 2 SCC 75; Mulla v. State of U.P. (2010) 3 SCC 508 and C. Muniappan v. State of T.N. (2010) 9 SCC 567). The evidence of a TIP is admissible under Section 9 of the Evidence Act. However, it is not a substantive piece of evidence. Instead, it is used to corroborate the evidence given by witnesses before a court of law at the time of trial. Therefore, TIPs, even if held, cannot be considered in all the cases as trustworthy evidence on which the conviction of an accused can be sustained (State of H.P. v. Lekh Raj (2000) 1 SCC 247 and C. Muniappan v. State of T.N.).

30. It is a matter of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that a TIP is held without avoidable and unreasonable delay after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses before the test identification parade. This is a very common plea of the accused, and therefore, the prosecution has to be cautious to ensure that there 28

2024:HHC:3571

is no scope for making such an allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution. But reasons should be given as to why there was a delay (Mulla v. State of U.P. (2010) 3 SCC 508 and Suresh Chandra Bahri v. State of Bihar).

31. In cases where the witnesses have had ample opportunity to see the accused before the identification parade is held, it may adversely affect the trial. It is the duty of the prosecution to establish before the court that right from the day of arrest, the accused was kept "baparda" to rule out the possibility of their face being seen while in police custody. If the witnesses had the opportunity to see the accused before the TIP, be it in any form i.e. physically, through photographs or via media (newspapers, television, etc.), the evidence of the TIP is not admissible as a valid piece of evidence (Lal Singh v. State of U.P. (2003) 12 SCC 554 and Suryamoorthi v. Govindaswamy).

32. If identification in the TIP has taken place after the accused is shown to the witnesses, then not only is the evidence of TIP inadmissible, even an identification in a court during trial is meaningless (Sk. Umar Ahmed Shaikh v. State of Maharashtra (1998) 5 SCC 103). Even a TIP conducted in the presence of a police officer is inadmissible in light of Section 162 of the Code of Criminal Procedure, 1973 (Chunthuram v. State of Chhattisgarh (2020) 10 SCC 733 and Ramkishan Mithanlal Sharma v. State of Bombay).

33. It is significant to maintain a healthy ratio between suspects and non-suspects during a TIP. If rules to that effect are provided in Prison Manuals or if an appropriate authority has issued guidelines regarding the ratio to be maintained, then such rules/guidelines shall be followed. The officer conducting the TIP is under a compelling obligation to mandatorily maintain the prescribed ratio. While conducting a TIP, it is a sine qua non that the non-suspects should be of the same age-group and should also have similar physical features (size, weight, colour, beard, scars, marks, bodily injuries, etc.) to that of the suspects. The officer concerned overseeing the TIP should also record such physical features before commencing the TIP proceeding. This gives credibility to the TIP and ensures that the TIP is not just an empty formality (Rajesh Govind Jagesha v. State Of Maharashtra and Ravi v. State)."

29

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36. Reverting back to the case in hand, where it emerges

from the evidence available on record that the Test Identification

Parade was not conducted in accordance with the guidelines laid

down in the aforesaid decisions of the Hon'ble Apex Court. PW-40

Vikrant Kaundal, the then ACJM, Court No.1, Hamirpur, deposed that

the accused persons stated before him that the police had taken their

photographs with the help of mobile in the police station. The SHO

was asked about the taking of photographs to which he stated that the

photographs were taken for the purpose of record. PW-42 SI Rajiv

Kumar, who was the Investigating Officer, admitted in his cross-

examination that he had taken the photographs of the accused persons

on his mobile phone for the purpose of same being pasted on the

conviction slip. To the Court question as to what was the necessity to

affix the photograph of the accused persons on the conviction slip, he

replied that there was no necessity to affix their photographs. He

further admitted in cross-examination that when the accused persons

were produced before the ACJM, the photographs of the accused

persons were annexed to the conviction slip. Thus the possibility of the

victim having seen the photographs of accused persons during their

custody with the police and also subsequently before the TIP can not

be ruled out. In addition, there is a clear circumstance proved on 30

2024:HHC:3571

record which is sufficient to have suspicion on the veracity of the TIP

as during the second round, only the accused persons were made to

wear jackets distinguishable from the apparels worn by other persons

allegedly called for the purpose of said parade. PW-40 deposed that

during second round, each accused was given a jacket to put on.

There is no record to suggest that non-suspected selected for the

parade were of the same age, height, general appearance and position

as that of the accused persons. Moreover, there is a delay in

conducting the TIP as admittedly, the accused persons were taken in

custody on 13.02.2018, but the application for conducting of TIP was

moved by the Investigating Officer on 16.02.2018, which delay the

prosecution has failed to explain. Furthermore, PW-2, father of the

victim, in his cross-examination, admitted that a lady police having two

stars on her shoulders, was also present at the time of TIP.

37. Thus, it cannot be said the the TIP was conducted in

accordance with the guidelines laid down in the aforesaid decisions of

the Hon'ble Apex Court, as such, it cannot be held to be sustainable in

the eyes of law and, based upon the aforesaid principles, no reliance

could be placed upon the Test Identification Parades conducted, vide

Ext.PW21/A to Ext. PW21/C. 31

2024:HHC:3571

38. In Ankush Maruti Shinde and others Vs. State of

Maharashtra, (2019) 15 SCC 470, the Hon'ble Supreme Court has

held as under:-

" 9.1 ..........At this stage, it is required to be noted that though the charge is of the rape and murder, there is no forensic evidence corroborating the prosecution case...........

9.7. As observed hereinabove, except the deposition of PW1 & PW8 and they identified the accused in the TI parade and/or before the Court (which for the reasons stated hereinabove, the conviction cannot rest on such identification), there is no other evidence, either scientific and/or other, corroborating the prosecution case. There is no forensic evidence corroborating the prosecution case............"

39. In the instant case also, there is no forensic and scientific

evidence in order to corroborate the version of the victim. As observed

earlier, the prosecution has withheld the CCTV footage, SFSL reports

with respect to the medical examinations of the victim as well as the

accused persons and also with respect to the articles which were

seized from the vehicles allegedly involved in the commission of the

crime to connect the accused persons with the commission of the

offence. As observed earlier, the testimony of the victim is not natural

and consistent with the case of the prosecution. Her version has no

correlation with other supporting material being medical / scientific

evidence as well as the reports of TIP. After re-scanning the entire

case in its right perspective, we are of the firm view that if the evidence

of the prosecutrix is read and considered in totality of the

circumstances alongwith the other evidence on record, in which the 32

2024:HHC:3571

offence is alleged to have been committed, her deposition does not

inspire confidence. The version of the victim has not been corroborated

with other evidence and the same does not inspire confidence.

40. There is no doubt that rape causes great distress and

humiliation to the victim of rape but at the same time false allegation of

committing a rape also causes humiliation and damage to the accused.

An accused has also rights which are to be protected and the

possibility of false implication has to be ruled out. The Supreme Court

in Radhu vs. State of Madhya Pradesh, reported in 2007 Cri.L.J.

4704 had in this context noted as follows:-

"5.....The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a person has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case."

41. In Abbas Ahmed Choudhary Versus State of Assam,

(2010) 12 SCC 115, the Hon'ble Supreme Court has held in para-11

that:-

"11.We are conscious of the fact that in a matter of rape, the statement of the prosecutrix must be given primary consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully."

42. Keeping in view the overall facts and circumstances of the

case, we are of the opinion that the prosecution has failed to establish 33

2024:HHC:3571

its case against the appellants/accused persons beyond reasonable

doubt. Learned trial Court fell in error in ordering the conviction of the

appellants and the reasons given by the learned trial Court in its

judgment/order for convicting the appellant are perverse and not at all

sustainable. Hence, all these appeals are allowed and the impugned

judgment of conviction and order of sentence dated 11.06.2019,

passed by learned Sessions Judge, Hamirpur, HP, in Sessions Trial

No.21 of 2018, titled State of Himachal Pradesh Vs. Mustaq

Mohammad @ Abbu & others, are set aside. The appellants are

acquitted of the charges framed against them.

43. The appellants be set at liberty forthwith, if not required in

any other case. Fine amount, if deposited by the appellants, be

refunded to them. Release warrants be prepared forthwith.

44. The appellants are directed to furnish personal bonds in

the sum of Rs.50,000/-each with one surety each in the like amount to

the satisfaction of the Registrar (Judicial) of this Court, strictly in terms

of provisions of Section 437-A of Cr.PC.

45. The appeals are accordingly disposed of, so also the

pending miscellaneous application(s), if any.

46. Before parting with the case, we are pained to observe that

the investigation in the case was conducted in a casual and perfunctory

manner. As observed earlier, the prosecution has withheld the CCTV 34

2024:HHC:3571

footage, SFSL reports with respect to the medical examinations of the

victim as well as the accused persons and also with respect to the

articles which were seized from the vehicles allegedly involved in the

commission of the crime in order to connect the accused persons with

the commission of the offence. Therefore, the Director General of

Police, State of Himachal Pradesh is directed to take appropriate

disciplinary and departmental inquiry against the erring police officials

for having conducted a shoddy investigation, that eventually led to the

acquittal of the appellants herein.

47. Let a copy of this judgment be forwarded immediately to

Director General of Police, State of Himachal Pradesh as well as to the

Superintendent of Police, Hamirpur for necessary action.

( Tarlok Singh Chauhan ) Judge

( Sushil Kukreja ) June 18, 2024 Judge (VH) Digitally signed by VIRENDER BAHADUR

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