Ram Singh @ Chhaju vs State Of H.P

Ram Singh @ Chhaju .............. Appellant

Versus

State of Himachal Pradesh ..............Respondent

JUDGMENT

H.L. Dattu, J.

1) This appeal, by the accused, arises out of the judgment of

High Court of Himachal Pradesh in Criminal Appeal No. 142 of

1994 dated 20.3.2008, whereby the appellant is convicted for the

offence of rape punishable under Section 376 of Indian Penal Code

by reversing the judgment of Additional Sessions Judge, Kangra

Division in Sessions Case No. 9 of 1992 dated 2.8.1993. The High

Court has come to the conclusion that the prosecution has brought

home the charge under Section 376 of I.P.C. and has sentenced the

appellant to suffer rigorous imprisonment for ten years and to pay

1 a fine of Rs.5000/-, in default of payment of fine to undergo

rigorous imprisonment for a further period of one year. The

accused feeling aggrieved sought special leave to appeal, on the

same being granted, this appeal is before us.

2) Co-accused Naresh Singh alias Titta died during the

pendency of appeal before the High Court.

3) We shall state the facts of the case as put forth by the

prosecution:- Smt. Chanchala Devi, hereinafter referred to as the

"victim", is the resident of village Dhabian and, was midwife by

profession. Shri Chattar Singh is the husband of Smt. Chanchala

Devi. Shri Ashok Kumar (PW-7) is her son. The accused are the

residents of village Guriyal, which is situated at a distance of about

2 Kms from village Dhabian. Smt. Chanchala Devi - Victim was

present in her house on August 13, 1989. She had gone to bed

along with her husband after taking her meal on that day. Her son

Ashok Kumar (PW-7) aged about 24 years was present in the

house and was sleeping in the courtyard of the house. That night

i.e. on the night of 12/13th August, 1989, PW-7 Ashok Kumar

woke up his mother Chanchala Devi and told her that Naresh

2 Singh alias Titta (dead) has come to call her as his Bhabi, who was

not named by him, has been having labour pains in village Guriyal.

The victim went out of the room and saw Naresh Singh alias Titta

sitting on the cot of her son in the verandah of the house. The case

of the prosecution is that, though the victim refused to the request

made by Naresh Singh alias Titta stating that it was not convenient

for her as she was having tooth ache, however, after being

persuaded by Naresh Singh alias Titta and also by her son PW-7

Ashok Kumar, the victim agreed to accompany Naresh Singh alias

Titta to his house situated at village Guriyal. When they had

covered a distance of about 30 yards from the house of victim, the

appellant Ram Singh alias Chhaju also met them. They all

continued walking towards the house of Naresh Singh alias Titta.

When they had reached a place known as Tapukar, Naresh Singh

alias Titta caught hold of the victim and the appellant Ram Singh

alias Chhaju laid her on the ground and opened her trousers. The

victim tried to raise alarm, but the Naresh Singh alias Titta dealt a

fist blow on her mouth and then gagged it. Both the accused

performed sexual intercourse forcibly with the victim and

thereafter sneaked away from the place. After returning home,

3 victim had narrated the whole incident to her husband and son. The

son of the victim PW-7 Ashok Kumar brought PW-4 Niaz Deen,

the Pradhan of the Panchayat on the same night. He was apprised

of the incident by the husband of the victim. On his advice, on the

following day i.e. on 14.8.1989, the victim being accompanied by

her husband reported the matter at police station Nurpur, where her

statement was recorded on the basis of which the first information

report was registered on 14.8.1989. She was got medically

examined at about 12.15 P.M. on the same day. The doctors had

opined that victim had been subjected to sexual intercourse 12 to

14 hours prior to her medical examination. The accused were also

got medically examined by Dr. Anil Mahajan (PW-3), who had

opined that there was nothing suggesting that the accused were

incapable of performing sexual intercourse. On completion of the

investigation, the final report was filed in the court of Sub-

Divisional Magistrate, Nurpur. The case was committed by the

learned Magistrate to the Additional Sessions Court, Kangra

Division at Dharmashala (Himachal Pradesh) on 6.5.1992, and the

same was numbered as Sessions Case No. 9 of 1992. Charges

were framed under Section 376 read with Section 34 of Indian

4 Penal Code and put up for trial before the Additional Sessions

Judge, Nurpur.

4) The accused persons pleaded not guilty to the charge. Their

defence was that they have been falsely implicated by the victim

on account of animosity.

5) In support of its case, the prosecution examined the victim

Smt. Chanchala Devi (PW1) who has supported the prosecution

version in all its material particulars. Niaz Deen (PW-4) was also

examined as a witness of fact, but he was declared hostile and

cross examined by State counsel. Dr. S. Mahajan, (PW-2) was

examined to prove the medical examination report of the victim.

Dr. Anil Mahajan (PW-3) was examined to prove the medical

examination report of the accused. Sardar Balwant Singh, (PW-5)

was examined to prove the statement of the accused made before

the Station House Officer, but, he was declared hostile and cross

examined by the State counsel. Ashok Kumar, (PW-7), son of the

victim was examined to corroborate the statement of the victim.

6) The trial court has found that the prosecution has not been

able to prove that the accused persons had sexual intercourse with

5 the victim. Accordingly, has acquitted the appellant herein of the

crime.

7) The State of Himachal Pradesh had carried the matter by

filing Criminal Appeal No. 142 of 1994 under Section 378 of the

Code of Criminal Procedure before the High Court of Himachal

Pradesh against the decision of the trial court. The High Court has

allowed the appeal vide its judgment dated 20.3.2008, by setting

aside the judgment and order of the trial court and after hearing the

accused while deciding on the quantum of sentence, has convicted

the accused under Section 376 of the I.P.C. and sentenced to

undergo rigorous imprisonment for ten years and to pay a fine of

Rs. 5,000/-, in default of payment of fine to undergo rigorous

imprisonment for a period of one year which has given rise to this

appeal.

8) While assailing the judgment of the High Court, the learned

counsel for the appellant has contended that the finding of

conviction of the High Court is unreasonable and not justified on

the material on record. It is not proved by reliable and independent

evidence that the incident alleged had taken place. It is also not

6 proved from the medical evidence that rape had been committed by

the appellant and the co-accused and there is no corroboration of

the evidence of the victim by any independent evidence and the

testimony of the victim is not reliable and trustworthy and the

conviction on the sole testimony of the victim is not justified.

9) Learned counsel for the appellant has laid great stress on the

proposition that the testimony of the victim required corroboration

and as no independent corroboration was available, the trial court

rightly had passed an order of acquittal which should not have

been upset by the High Court in an appeal filed by the State.

10) The High Court in its judgment has stated that the trial court

has erred in appreciating the testimony of the witnesses to the

extent the victim has nowhere mentioned in her statement that the

appellant Naresh Singh alias Titta (dead) had taken any particular

name when he had requested her to accompany him to facilitate the

delivery of his Bhabhi. The High Court has also observed that

there is no contradiction in the testimony of victim and her son

PW-7 Ashok Kumar as both have testified that there was

reluctance shown by victim to accompany the appellant Naresh

7 Singh alias Titta (dead) at around 12.00 a.m. at night, to facilitate

the delivery of his Bhabhi. The High Court has also observed that

the Trial Judge was not justified in coming to the conclusion that

Ashok Kumar (PW-7) could not have heard the narration of the

incident by the victim to her husband since he was sleeping in the

court yard. The High Court has also noticed that the observation

of Additional Sessions Judge that the victim did not name the

culprits while narrating the incident to PW-4 Niaz Deen Pradhan of

village Dhabian contradicts the prosecution case, cannot be held to

be correct as the husband of victim in her presence had already told

that she was raped by the appellants. Therefore, it is not reasonable

to expect from the victim who was under shock due to the incident,

to narrate the same to PW-4 Niaz Deen Pradhan in presence her

husband and son.

11) The High Court has also found it difficult to accept the

reasoning of the Trial Court about the fact that there were no

injuries on the person of the victim belied her testimony that she

was subjected to forcible sexual intercourse. The High Court has

observed that the victim was suffering from toothache because of

which she was unable to firmly resist, and further she could not

8 raise alarm since her mouth had been gagged by the accused

persons. The Court has also observed that though the blow with

the fist was given on her mouth by the appellant, it may not have

caused any serious injury. However, being an old lady of more

than 40 years at the relevant time and the appellants being young

men both around 20 years, the victim could not have been put up a

strong defence. The High Court has also pointed towards the

finding that the spot where the victim was raped, shown in the spot

inspection map Ext.PK and which has been proved by the

Investigation Officer PW-11 Govardhan Dass, shows that at the

site of incident, grass and plants of some crop were found damaged

and ruffled. The High Court is also not convinced with the trial

court's observation that the victim at the late hours of the night

should have been accompanied either by her husband or her son.

The High Court observes that there was nothing unusual about

victim going alone with the appellants as it is normal practice to go

with male members to facilitate the deliveries as the midwives are

respected like mothers. Therefore, there was no reason for herself

or her husband and son to disbelieve the appellant and deny the

request of appellant in that situation. The entire conspectus of the

9 case was viewed by the High Court in vivid detail to come to the

conclusion that the appellant was guilty of the crime.

12) It was submitted before us by the learned counsel for the

appellant that there was no injury on the person of the victim.

According to him, if there was sexual assault on the victim, she

would have resisted the offender and in that process she would

have received some injuries on other parts of the body. Much

importance cannot be given to the absence of defence injuries,

because it is not inevitable rule that in the absence of defence

injuries the prosecution must necessarily fail to establish its case.

In the first information report and also in the evidence of PW-1, it

has come on record that she could not cry out for help since her

mouth was gagged by the accused. It has also come in the

evidence that the victim was aged about 40 years and the accused

persons were young and aged about 20 years and, therefore, she

was not in a position of equal strength so as to resist the appellants.

Even in the absence of any injuries on the person of the victim, in

our view, with the other evidence on record, the prosecution is able

to establish that the offence was committed.

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13) It was contended by the learned counsel for the appellant

that the blood stained clothes which were said to have been handed

over to the Officer-in-Charge at the Police Station by the husband

of the victim were not sent for chemical examination and,

therefore, the corroboration with which such evidence could offer

was absent. In our view, the failure of the investigating agency

cannot be a ground to discredit the testimony of the victim. The

victim had no control over the investigating agency and the

negligence, if any, of the investigating officer could not affect the

credibility of the statement of PW-1 - the victim. Having regard to

the facts and circumstances of this case, we are satisfied that on the

basis of the evidence on record, the conviction of the appellant can

be sustained.

14) It is also submitted that in the absence of any injury on the

private parts of the victim, the High Court should have disbelieved

the prosecution story. In our view, it is difficult to accept the

submission of the learned counsel. The reason being the doctor

who has been examined as PW-2 has found that the victim PW-1

was used to sexual intercourse and as such absence of injury on the

11 private parts of the victim may not be very significant. PW-1 was

also used to sexual intercourse. The evidence of the victim has

been corroborated by the evidence of PWs.2 and 3, the two post

occurrence witnesses, as well as by the FIR which was lodged

without any delay. Therefore, it is difficult to differ from the

findings of the High Court.

15) In the present case, the testimony of the victim inspires

confidence. Her testimony is not only corroborated by other

witnesses but also by the medical evidence. Even if the statement

of Niaz Deen, PW-4 is not taken into consideration, the other

corroborative evidence in the case is sufficient to connect the

accused with the crime.

16) Before we conclude, out of sheer deference to learned

counsel for the appellant, we intend to notice the feeble submission

made by the learned counsel for the appellant. It is contended by

the learned counsel that the findings and the conclusion reached by

the Sessions Court is one of the possible view in the facts and

circumstances of the case and therefore, the High Court ought not

12 to have taken a different view and passed an order of conviction

against the appellant. In aid of this submission, the learned

counsel has invited our attention to the observations made by this

Court in the case of Perla Somasekhara Reddy and Ors. Vs. State

of A.P. ( 2009) 7 SCALE 115. In our considered view, the

submission of the learned counsel has no merit. This Court in the

aforesaid case by way of universal application has not stated, that,

whenever there is a judgment and order of acquittal by the

Sessions Court, the High Court under no circumstances would

interfere with the said order even when it comes to the conclusion

that the findings and conclusion reached by the trial court is based

on mere conjecture and hypothesis and not on the legal evidence. In fact, in the aforesaid decision this Court has taken note of what

has been stated by this Court in the case of Chandrappa and Ors.

Vs. State of Karnataka (2007) Crl.L.J. 2136, wherein apart from

others, it is stated, that the appellate court has full power to review,

re-appreciate and reconsider the evidence upon which the order of

acquittal is founded; the Code of Criminal Procedure, 1973 puts

no limitation, restriction or condition on exercise of such power

and an appellate court on the evidence before it may reach its own

13 conclusion, both on questions of fact and of law; various

expressions, such as, "substantial and compelling reasons", "good

and sufficient grounds", "very strong circumstances", "distorted

conclusions", "glaring mistakes", etc. are not intended to curtail

extensive powers of an appellate court in an appeal against

acquittal. Such phraseologies are more in the nature of "flourishes

of language" to emphasis the reluctance of an appellate court to

interfere with acquittal than to curtail the power of the court to

review the evidence and to come to its own conclusion; an

appellate court, however, must bear in mind that in case of

acquittal, there is double presumption in favour of the accused.

Firstly, the presumption of innocence is available to him under the

fundamental principle of criminal jurisprudence that every person

shall be presumed to be innocent unless he is proved guilty by a

competent court of law. Secondly, the accused having secured his

acquittal, the presumption of his innocence is further reinforced,

reaffirmed and strengthened by the trial court; and if two

reasonable conclusions are possible on the basis of the evidence on

record, the appellate court should not disturb the finding of

acquittal recorded by the trial court.

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17) In the present case, the High Court on re-appreciation of

evidence on record has differed with the findings of the Sessions

Court on the innocence of the accused and has found him guilty of

the charges leveled against him. The High Court after evaluating

the manner in which the evidence and other materials on record

has been appreciated as well as the conclusions arrived at by the

Sessions Court, has come to the conclusion that the findings of the

Sessions Court are perverse and has resulted in miscarriage of

justice has re-appreciated the evidence and materials on record and

has found that the appellant is guilty of the offence alleged.

Therefore, in our view, the decision on which reliance has been

placed by learned counsel for the appellant would not assist him in

any manner whatsoever.

18) The result of the aforesaid discussion leads to only one

conclusion that the accused committed forcible rape on the victim

on the intervening night of 12/13th August, 1989, as alleged by her,

and his conviction by the High Court is quite justified being based

on evidence on record. It is, therefore, confirmed.

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19) We, therefore, find no merit in this appeal and the appeal is,

accordingly, dismissed.

.......................................J. [ P. SATHASIVAM ]

.......................................J. [ H.L. DATTU ]

New Delhi, January 28, 2010

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