State Of H.P vs Suresh Kumar @ Dc

State of H.P. .... Appellant

Versus

Suresh Kumar @ DC .... Respondent

JUDGMENT

Dr. Mukundakam Sharma, J.

1. This appeal is filed by the State of Himachal Pradesh challenging the

judgment and order of acquittal passed by the High Court of Himachal

Pradesh whereby and whereunder the High Court acquitted the respondent

- Suresh Kumar from the charges under Sections 376 of Indian Penal Code

(hereinafter referred to as `the IPC') and also under Section 342 IPC.

2. Before dealing with the contentions raised on behalf of the parties and in

order to appreciate the said contentions it would be necessary to state a

few facts leading to registration of the aforesaid criminal case.

3. The age of the prosecutrix - Km. Kusum Lata (PW-3) was opined by PW-

7 Dr. Devinder Kaur as between 5 to 12 years on the date of examination

i.e. 17.03.2000. Therefore, there is no dispute with regard to the fact that

she was minor at the time of commission of alleged offence of rape. The

prosecutrix and the accused are the residents of the same village and in

fact they were neighbourers. The respondent - accused was about 25

years of age on the date of commission of the alleged crime whereas, as

stated hereinbefore, the prosecutrix was a minor on the date of commission

of alleged offence of rape. On 15.03.2000, the parents of the prosecutrix,

namely, Smt. Shakuntla Devi, PW-5, and Shri Ramesh Chand had gone to

the house of maternal uncle of the prosecutrix. On the said fateful day,

PW-4, Km. Punam, the elder sister of the prosecutrix, had gone to the

jungle to fetch green leaves for the goats leaving behind the prosecutrix

along with her two younger brothers, namely, Vicky and Ajesh at their

residence. It is alleged that on the said date the accused went to the house

of the prosecutrix and took her to his house and after entering his room the

accused bolted the door of the room from inside and put the prosecutrix on

the cot and switched on the T.V. It is also alleged that thereafter the

accused opened the salwar of the prosecutrix and took off his trouser and

underwear and thereafter the accused committed rape on the prosecutrix.

Page 2 of 13 The prosecutrix stated in her deposition that she wanted to cry and weep

but she could not do so because the accused had gagged her mouth. It is

also alleged that after committing the rape the respondent-accused gave a

currency note of Rs. 5/- and some "shakkar" to the prosecutrix. The

prosecutrix ate the said "shakkar" and thereafter she returned home.

When PW-4, Km. Punam, the elder sister of the prosecutrix, returned from

the forest after collecting the green leave for the goats, prosecutrix

narrated the whole incident of rape on her. On 16.03.2000, when parents

of the prosecutrix, PW-5, Smt. Shakuntla Devi and Shri Ramesh Chand

returned back to their residence at village Sunali, at about 2.30 p.m., the

prosecutrix narrated the incident of rape by the accused to them. PW-4,

sister of the prosecutrix handed over currency note of Rs. 5/- to her mother

Smt. Shakuntla Devi (PW-5) which was given to her by the prosecutrix on

the previous day. Thereafter, the parents reported the matter to the

Pradhan of the Gram Panchayat, who sent telephonic intimation to the

police station. The police reached the village on 16.03.2000 at about 9

p.m. and recorded the statement of the prosecutrix, on the basis of which a

case for offence under sections 376 and 342 IPC was registered.

4. After registering the case, the police started investigation into the case and

during the same the prosecutrix was got medically examined on

Page 3 of 13 17.03.2000 at District Hospital, Bilaspur. Dr. (Ms.) J. Goswami (PW-8)

conducted the said medical examination. The police also examined the

witnesses and on completion of the investigation submitted a charge sheet

against the respondent - accused for committing the offence under

Sections 376 and 342 IPC. When the charge was explained to the accused,

he pleaded not guilty and claimed to be tried.

5. Consequently, the prosecution examined as many as 13 witnesses to

establish the charge against the respondent - accused. The statement of

the accused was also recorded under Section 313 Cr.P.C. The respondent-

accused led no evidence in support of his denial of the allegation. After

conclusion of the trial, the learned Sessions Judge, Bilaspur, Himachal

Pradesh by judgment and order dated 30.04.2001, convicted the accused -

respondent under Sections 376 and 342 IPC with sentence of rigorous

imprisonment of seven years and fine of Rs. 2000/- for the offence under

section 376 IPC and rigorous imprisonment of one year for the offence

under section 342 IPC. Learned Sessions Judge further ordered that both

the sentences of imprisonment would run concurrently.

6. Being aggrieved by the aforesaid judgment and order, the accused -

respondent preferred an appeal before the High Court of Himachal

Page 4 of 13 Pradesh. After hearing the counsel appearing for the parties, the High

Court by its judgment and order dated 16.11.2001 allowed the appeal

thereby setting aside the judgment and order of conviction imposed upon

the respondent and acquitted him of all the charges with the direction that

the accused be released forthwith.

7. Aggrieved by the impugned judgment and order of acquittal passed by the

High Court of Himachal Pradesh, the State has preferred the present

appeal, on which we have heard learned counsel appearing for the parties.

8. The counsel appearing for the parties in support of their respective cases

had drawn our attention to the statements made by the various witnesses

and also to the contents of the medical report of the prosecutrix and also to

the statement of the doctor, who examined the prosecutrix.

9. The records placed before us, clearly prove and establish that the

prosecutrix was a minor on the date of occurrence. The doctor has given a

medical opinion to that effect and the Sessions Court as also by the High

Court has accepted the said report of doctor. Dr. J. Goswami (PW-8) had

medically examined the prosecutrix on 17.03.2000 at 4.10 p.m. The doctor

has stated in her statement before the court that she examined the

prosecutrix on the basis of alleged history of sexual molestation by her so

Page 5 of 13 called `Chacha', aged 26 years. At the time of examination on 17.03.2000,

the said doctor was told by the prosecutrix that the accused - respondent

had sexually molested the prosecutrix many days back i.e. when she

appeared in class-I examination and at the time of medical examination

she had appeared in class II examination. On examination of the

prosecutrix, the doctor found sign of recent sexual act, as there was small-

reddened area over the left upper margin of hymen. In the cross-

examination, the doctor has categorically stated that the prosecutrix was

not habitual of sexual intercourse because her vagina admitted only one

finger. The doctor, however, admitted that absence of hymen proves that

she had been used to sexual intercourse earlier. The aforesaid medical

report of the doctor is corroborated by the statement made by the

prosecutrix that she was earlier also raped by the same accused. As

against the suggestion of the accused that the sexual intercourse as alleged

would have been taken place more than one week prior to 17.03.2000, the

doctor while accepting the same also stated that there can be a possibility

of recent sexual intercourse i.e. within a week from 17.03.2000, which

cannot be ruled out because of the redness on the margin of hymen. The

High Court mainly relied upon the opinion of the doctor holding that the

doctor herself was unclear about the actual date of the alleged rape, and

Page 6 of 13 therefore, the said medical report could not be relied upon. While doing

so, the High Court ignored the fact that the doctor had also stated that there

can be a possibility of recent sexual intercourse i.e. within a week from

17.03.2000. The alleged rape was in fact committed within a week from

17.03.2000 i.e. on 15.03.2000. The fact that prosecutrix was subjected to

rape on 15.03.2000 is proved and established from the statement of the

prosecutrix, medical report and the statement of the doctor (PW-8), who

had examined the prosecutrix. The doctor had also stated that hymenal

appearance cannot rule out recent coitus. Therefore, it is also proved and

established beyond doubt that the prosecutrix was subjected to rape on

15.03.2000.

10.Having come to the aforesaid findings we are now left to decide as to

whether or not the respondent was the accused, who committed the rape on

the minor girl.

11.The prosecutrix had categorically and affirmatively stated to be so.

Immediately after the occurrence she reported the matter to her sister, who

had also in her statement corroborated the said fact. The mother, who was

examined as PW-5, also corroborated the said fact that she was informed

by her daughter on the very next day that the accused had committed rape

Page 7 of 13 on her. She has also stated that the accused took her to his room, bolted

the room from inside and thereafter committed rape on her. It is submitted

by the counsel appearing for the respondent - accused that there is no

other independent witness to support the aforesaid allegation. In fact, in a

case like this, when the prosecutrix, who was a minor girl on the date of

incident, has come forward and stated that she was raped by the accused

and her testimony could not be shaken in the cross-examination, we have

no reason to disbelieve her for no girl would ever lie on a vital issue of this

nature. Even her sister and mother also stated as to what were reported by

the prosecutrix herself immediately after the alleged occurrence. In fact,

we have a witness in this case, who is Smt. Kanta Devi (PW-6). Although,

she turned hostile at one stage of her examination, yet she had stated that

on 16.03.2000 at about 3.30 p.m. Smt. Shakuntla Devi had come to her

house along with her daughter, prosecutrix and had told that accused -

respondent had committed sexual act with prosecutrix and she advised her

to report the matter to the police. She had in her cross examination by the

public prosecutor admitted that it is correct that Smt. Shakuntla had told

her that accused had raped her daughter and accused had given a currency

note of Rs. 5/- & "Shakkar" to the prosecutrix after the sexual act. She

also stated that she enquired from the prosecutrix and the prosecutrix

Page 8 of 13 narrated her the entire incident. It was sought to be submitted by the

respondent - accused that the prosecutrix was habitual to sexual

intercourse since her hymen was absent. The aforesaid statement of the

respondent also cannot be accepted in view of the fact that the prosecutrix

has stated that the accused himself had earlier raped her about a year back.

It is also disclosed from the medical report that the prosecutrix was not

habitual to sexual intercourse as doctor herself stated that the prosecutrix

was not used to sexual intercourse because her vigina admitted only one

finger. She has explained that there was redness over the margin of hymen

and on the basis of this redness, the possibility of recent sexual intercourse

could not be ruled out. As the testimony of the prosecutrix, her sister and

mother has not been shaken in cross-examination, the statement of the

doctor appears to be a plausible and convincing version.

12.There is another vital submission made by the respondent-accused which

is required to be dealt with at this stage. It was submitted that both the

child witnesses, namely, PW-3 and PW-4, the prosecutrix and her sister

respectively, should not and could not have been believed due to the

following two reasons. Firstly, both PW-3 as well as PW-4 was child at the

time of commission of the said offence and secondly, they were tutored by

their parents and police.

Page 9 of 13

13.We have considered the said submission, but we find the same to be

unacceptable. The depositions of these two witnesses, i.e. PW-3 and PW-4

with regard to the occurrence of such incidence are firm and convincing.

We find no reason as to why a child of her age i.e. prosecutrix would get

an innocent person named for an offence which was undisputedly

committed on her. It is settled position of law that the conviction for

offence under Section 376 on the sole testimony of a rape victim if the

evidence of the prosecutrix is found to be credible and convincing. This

Court observed as follows in the case State of Rajasthan v. Om

Prakash,(2002) 5 SCC 745, at page 753 :

13. The conviction for offence under Section 376 IPC can be based on the sole testimony of a rape victim is a well-settled proposition. In State of Punjab v. Gurmit Singh, referring to State of Maharashtra v. Chandraprakash Kewalchand Jain this Court held that it must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. It has also been observed in the said decision by Dr Justice A.S. Anand (as His Lordship then was), speaking for the Court that the inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury.

Page 10 of 13

14.In Panchhi v. State of U.P, (1998) 7 SCC 177, it was observed by this

Court that the evidence of a child witness cannot be rejected outrightly but

the evidence must be evaluated carefully and with greater circumspection

because a child is susceptible to be swayed by what others tell him and

thus a child witness is an easy prey to tutoring. The court has to assess as

to whether the statement of the victim before the court is the voluntary

expression of the victim and that she was not under the influence of others.

15.Relying on the aforesaid decision, in Mohd. Kalam v. State of Bihar,

(2008) 7 SCC 257, this Court has observed that the evidence of a child

cannot be rejected outrightly and the same must be evaluated with great

circumspection. The aforesaid law laid down by this Court is squarely

applicable in the facts and circumstances of the present case. When the

evidence of PW-3 and PW-4 is taken into consideration, it becomes quite

clear that the accusation made by them in their deposition are cogent,

credible and had grain of truth and same was not in any manner could be

said to be influenced by any tutoring. When we examine the impugned

judgment in light of above, we find that while passing of order of acquittal,

the High Court erroneously appreciated the evidence by ignoring credible

evidence which is available in the nature of two child witnesses and the

statement of the mother of the prosecutirx, which was further corroborated

Page 11 of 13 by the medical evidence. Clearly, the aforesaid manifest error committed

by the High Court amounts to miscarriage of justice.

16.In that view of the matter, we find that the judgment and order of the High

Court is illegal and unjustified in the fact situation of the present case.

There cannot be an order of acquittal of the accused - respondent.

Accordingly, we set aside the order of acquittal passed by the High Court

of Himachal Pradesh and restore the judgment and order passed by the

Sessions Judge, Bilaspur.

17.The accused - respondent is directed to surrender before the trial court

forthwith to serve out the remaining period of the sentence within a period

of four weeks from the date of pronouncement of judgment failing which

he shall be traced out by the police and arrested to serve the remaining

sentence.

18.Accordingly, the appeal is hereby allowed.

.................................J. [Dr. Mukundakam Sharma]

.................................J.

Page 12 of 13 [Dr. B.S. Chauhan] New Delhi, May 29, 2009

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