The State Of Himachal Pradesh vs Rajesh Kumar @ Munnu

REPORTABLE 2025 INSC 331 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2097/2014

THE STATE OF HIMACHAL PRADESH APPELLANT

VERSUS

RAJESH KUMAR @ MUNNU RESPONDENT

J U D G M E N T

SURYA KANT, J.

1. The instant criminal appeal is directed against the

impugned judgment dated 01.03.2012 passed by a Division

Bench of the High Court of Himachal Pradesh, whereby the

criminal appeal preferred by the respondent had been

allowed. The High Court, while acquitting him under

Sections 376 and 452 of the Indian Penal Code, 1860 (in

short, the “IPC”), has set aside the judgment and order

of the Trial Court dated 02.01.2009, holding the

respondent guilty of the aforementioned offences with a

sentence of 10 years of rigorous imprisonment.

Signature Not Verified Digitally signed by

2. We have heard learned counsel for the State at a ARJUN BISHT Date: 2025.03.06 17:12:17 IST Reason:

considerable length. The record has been perused.

1 3. The prosecution case is that on 13.08.2007, the

prosecutrix (PW-10) through her father lodged FIR No.

346/2007 under Sections 452 and 376 of IPC at Police

Station Sadar Hamirpur against the accused-respondent. It

was alleged therein that when her parents (PW-8 & PW-9)

had gone to the hospital for purchasing medicines around

noon, the respondent came to the varandah of her house

and asked for a match box. Finding her alone, the accused

allegedly caught her from the arm and took her inside the

room. Thereafter, he forcibly committed sexually

intercourse with her. This incident was apparently

narrated by the prosecutrix to her parents when they

returned, who subsequently lodged the FIR.

4. The prosecutrix was medically examined by Dr.

Sunita Galodha (PW-7) at Regional Hospital, Hamirpur,

where she was found to be of unsound mind as she did not

cooperate in her medical examination. As the factum of

sexual intercourse could not be ascertained, the

prosecutrix was further referred to the RPMC Hospital at

Tanda (Dharamshala) for the opinion of their Gynecologist

and Psychiatrist. However, the father of the prosecutrix

did not allow for any medical examination to happen.

Nevertheless, the initial vaginal swab collected by the

police was sent to Forensic Science Laboratory for

medical analysis.

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5. The Trial Court on the basis of examination of

prosecution evidence, consisting of 14 witnesses besides

statement of the accused under Section 313 of the Code of

Criminal Procedure, 1973, convicted him under Sections

452 and 376 of IPC; and sentenced him to undergo rigorous

imprisonment for 10 years, besides the requisite fine.

6. Against this, the respondent preferred an appeal

before the High Court, which has been allowed vide the

impugned judgment. The High Court has succinctly

demonstrated some of the glaring lacunae in the

prosecution case, which even the learned State counsel

before us, is unable to satisfactorily justify. We say so

for the reasons set out below.

7. The present case is one where the mother of the

prosecutrix (PW-9) entered the witness box and

unfortunately did not support prosecution case. She

completely denied that any occurrence, similar to the one

described in the FIR, ever took place. She was,

accordingly, declared hostile and cross-examined by the

Public Prosecutor. Of course, nothing material could be

extracted from her cross-examination.

8. The father of the prosecutrix (PW-8) also entered

the witness box, and it is an admitted fact that he, too,

made evasive statements, largely restricted to the

narration of the events preceding the trial. We may note

at this junction, that his statement fails to explain the

3 delay in reporting the matter, and the lodging of the

FIR. While he submitted that he reported the alleged

incident to the police as soon as he was apprised of the

same, we are constrained to note that the such assertion

does not inspire much confidence. We say so, keeping in

mind the statement made by Nirmala Devi, Pradhan of Gram

Panchayat (PW-1), who simply deposed that the father of

the prosecutrix came to her house after three days of the

incident, i.e. on 13.08.2007, and informed her about the

occurrence. She then advised him to report the matter to

the police, he finally went and lodged the police report.

While it is trite law that unexplained delay in lodging

FIRs is commonly considered fatal to the prosecution’s

case,1 we observe that in the instant case the delay was

never even acknowledged – much less explained. Thus, it

is our considered opinion that the necessary benefit of

such an omission must accrue to the accused-respondent.

9. The other significant evidence on record comprises

the statement of Dr. Sunita Galodha of Regional Hospital

of Hameerpur, who issued the medico-legal certificate

(Ext.PW7/B) based on the Chemical Examiner’s Report

(Ext.PW6/A). The High Court has referred to the statement

of Dr. Sunita Galodha and both the above-mentioned

reports in extenso, in paragraph 10 of the impugned

judgment, which reads as under:

1 Ramdas v. State of Maharashtra, (2007) 2 SCC 170; Parminder Kaur v. State of Punjab, (2020) 8 SCC 811; Fateh Chand v. State of Haryana, (2009) 15 SCC 543;

State of Uttar Pradesh v. Chhotey Lal, (2011) 2 SCC 550.

4 “10. Each case has to be determined on its own circumstances and law laid down by the Apex Court with regard to delay has to be applied to the given facts. Coming to the medical evidence, we find that prosecutrix was examined by Dr. Sunita Galodha (PW-7) who issued· MLC (Ex.PW7/B) based on the chemical examiner's report (Ex.PW6/A). This witness found that prosecutrix was having a normal gait. There were no marks of injury on any part of her body. Clothes which she was wearing had been washed and changed. However, when it came for physical examination of her private parts, prosecutrix did not co-operate. She did not allow even a tip of a little finger to be inserted inside her vagina. Also no blood or semen was found on her private parts or the vaginal swab. Since prosecutrix resisted physical examination, including that of hymen, this witness could not give any final opinion about the commission of sexual intercourse. The report of the Forensic Science Laboratory also does not link the accused to the alleged crime. Semen was not found on the clothes of the prosecutrix or the vaginal swab. Eventually the ground that blood & semen was not found on the pubic hair & vaginal slides of Veeja Kumari. Blood in track was found on swab, but semen could not be detected on exhibit. Further, the opinion regarding occurrence of act, as asked in police docket cannot be given as the girl has been- referred to RPMC, Dharamshala.”

10. The afore-extracted portions make it amply clear

that the prosecutrix and her parents themselves never

fully co-operated with the medical staff, thereby

adversely impacting the credibility of their version of

events. It is a well-settled proposition of law that non-

allowance of medical examination by an alleged rape-

victim raises negative inferences against them.2 We cannot

ascribe any good reason to the complete lack of

2 Assessment of the Criminal Justice System in Response to Sexual Offences, In re, (2020) 18 SCC 540; Dola v. State of Odisha, (2018) 18 SCC 695.

5 assistance that the complainants tendered to the

authorities, apart from their contradictory stances

before the Court. We are further doubtless in this regard

as the High Court, while discussing the prosecutrix’s

testimony, has come to the invariable conclusion that she

was not mentally unsound – given that she was able to

clearly comprehend the question and answer during the

cross-examination.

11. As regard to the age of the prosecutrix, she has

categorically admitted as has been otherwise proved that

she was 19 years old at the time of the alleged

occurrence. The prosecution has not opposed this factum

as well.

12. We are cognizant of the jurisdictional limitations

that normally restrict interference in settled criminal

appeals,3 especially wherein the High Court has acquitted

the accused. It is equally well-established that save and

except where this Court finds that the conclusion drawn

by the High Court is based upon a complete misreading of

the evidence on record, or where its conclusions are so

perverse that the same cannot be sustained, then only

might a judgment of acquittal warrant interference. On

the contrary, in the instant case the High Court has

microscopically examined the entire evidence before

3 Sham Sunder v. Puran, (1990) 4 SCC 731; Ramaniklal Gokaldas v. State of Gujarat, (1976) 1 SCC 6; Gosu Jayarami Reddy v. State of Andhra Pradesh, (2011) 11 SCC 766; State of Uttar Pradesh v. Dharmendra Singh, (1999) 8 SCC 325.

6 firmly opining that the present accused-respondent

deserves the benefit of the doubt.

13. Consequently, we refuse to interfere with the

judgment of acquittal passed by the High Court. The

appeal is, accordingly, dismissed.

..........................J. (SURYA KANT)

..........................J. (NONGMEIKAPAM KOTISWAR SINGH)

New Delhi;

February 20, 2025

7 ITEM NO.104 COURT NO.3 SECTION II-C

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Criminal Appeal No(s).2097/2014

THE STATE OF HIMACHAL PRADESH Appellant(s)

VERSUS

RAJESH KUMAR @ MUNNU Respondent(s)

Date : 20-02-2025 This appeal was called on for hearing today.

CORAM : HON'BLE MR. JUSTICE SURYA KANT HON'BLE MR. JUSTICE NONGMEIKAPAM KOTISWAR SINGH

For Appellant(s) : Mr. Vikrant Narayan Vasudeva, AOR Mr. Sarthak Chiller, Adv.

Mr. Rohit Lochav, Adv.

For Respondent(s) :Mr. Jogy Scaria, AOR Mrs. Beena Victor, Adv.

Ms. M. Priya, Adv.

Mr. Ashwani Kumar Soni, Adv.

UPON hearing the counsel the Court made the following O R D E R

1. The appeal is dismissed in terms of the signed reportable

judgment.

2. All pending applications, if any, also stand disposed of.

(ARJUN BISHT) (PREETHI T.C.) ASTT. REGISTRAR-cum-PS ASSISTANT REGISTRAR

(signed reportalbe judgment is placed on the file)

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