IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 427 of 2009 Judgment Reserved on 13th July, 2010 Date of Decision: 20th October, 2010 __________________________________________________________ Hem Parkash ….Appellant. Versus State of HP ….Respondent. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 ___________________________________________________________ For the Appellant: Mr. Chandranarayan Singh, Advocate For the Respondent: Mr. P.K. Sharma, Addl. Advocate General with Ms. Shubh Mahajan, Deputy Advocate General. __________________________________________________________ Dev Darshan Sud, J (oral). The petitioner was convicted under Section 376 IPC and sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 20,000/-. In default of payment of fine, he was further sentenced to undergo simple imprisonment for one and a half years under Section 376 IPC. He was further sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 5000/- and in default, simple imprisonment for two months for offences 1 Whether Reporters of Local Papers may be allowed to see the judgment?. 2 under Section 506 IPC. Both the sentences were ordered to run concurrently. 2. The prosecution case, in brief, is that the petitioner committed rape on prosecutrix PW3 Smt. Sumitra on 9.8.2008 around 6 P.M. in the evening. It was alleged that on 9.8.2009 three persons namely Parkash Chand, Hem Parkash (accused-appellant) and Chattar Singh visited the house of prosecutrix. Chattar Singh left the place and accused sat in the courtyard and asked from her the whereabouts of her son Khem Chand, whereupon she informed him that he had gone to Theog. Thereafter the accused got up and left the house. She also got up and proceeded towards her fields through a path which leads through a jungle to fetch grass and leaves for her cattle. When she had walked a distance of about 200 metres from her house, the accused-appellant caught hold her from her arm and dragged to the side of the path. The prosecutrix protested and when she asked as to what he was doing, he threw her on the ground and threatened her and told her that he was looking for a chance like this for the last so many days to satisfy his sexual lust. When she protested and cried, the appellant gagged her mouth with his hand and broke the string of her salwar and raped her. Before proceeding to the fields, the prosecutrix had asked her daughter Madhu to come there after some time and when she (Madhu) reached the spot, the entire incident was narrated to her by the prosecutrix. It is also alleged that before leaving the scene of occurrence, the accused had threatened her with dire consequences and told her that in case she disclosed these facts to anybody, he would finish her. He also told her that he would again return to satisfy his lust. 3. According to the prosecution, the accused had torn her shirt at the time when he was committing rape on her. The prosecutrix 3 informed her husband about the incident on phone but did not report to the police due to fear. Ultimately, report Ext.PW3/A was lodged with the police on 11.8.2008, on the basis of which First Information Report Ext.PW13/A was registered. Application Ext.PW2/A was moved by the police for medical examination of the prosecutrix who was accompanied by PW9 lady Constable Meena and was medically examined by PW2 Dr. Seema Rani, who issued MLC Ext.PW2/B. The accused was also medically examined and his MLC is Ext.PW1/A. The report of Forensic Science Laboratory is Ext.PX which discloses that there was no blood or semen on pubic hair, combed public hair, vaginal smear slides and urine sample on shirt of Sumitra and underwear of Hem Parkash. Human blood was also found somewhere on the salwar but there was no semen, but the blood was insufficient for matching. The learned trial Court on consideration of the evidence on record proceeded to convict the petitioner for offences, as alleged. To reach this conclusion, the learned trial Court relied upon the evidence of PW3 prosecutrix, PW4 Madhu and the attending circumstances. The learned Court did not rely upon the medical evidence on record but has given credence to the evidence of PW4 Madhu. 4. I have heard learned counsel for the appellant and have gone through record. 5. The evidence of three witnesses which is paramount and important in this case is of PW3 prosecutrix, PW4 Madhu daughter of the prosecutrix who was supposed to be an eye witnesses and PW2 Dr. Seema Rani who conduced the medical examination. Adverting to the evidence of prosecutrix PW3, the case as narrated by her to the police and as recorded in her statement Ext.PW3/A is that on the fateful day, Chattar Singh, Parkash Chand and accused came to her house. Both Chatter Singh and Parksh Chand left the house, but the accused 4 remained there and inquired about the whereabouts of her son. He also left her house and after that she proceeded towards her fields to cut the grass etc. When she had walked about 200 metres, the accused caught hold her from her arm and when she asked him to what he was doing, he forcibly threw her on the ground and uttered: “main tujhe nahi chodunga. Main to kai dino se mauka kee talash mein tha.” Translated it means “I will not spare you. I have been in search of this opportunity for a long time.” When she protested he gagged her mouth with his hand and broke open the string of her salwar and subjected her to rape. 6. She says that her bangles were broken in the scuffle. When the accused saw Madhu PW4 he ran away from the spot. Before leaving, he threatened that he would again rape her. She was subjected to intensive cross examination in which she says that after the appellant caught hold of her he carried her on his shoulders. He had been asking for sexual favours from her earlier also. One more fact which she has stated is that Ext.PW3/A was written when the police asked her to file a complaint in writing. She thereafter went to a hotel near the bus stop in Theog and requested some person to write this complaint (Ext.PW3/A). She does not know the name of hotel nor the person who has written it. She admits that she visited the police station for the first time on 11.8.2008 around 10 AM with her daughter PW4 Madhu who has studied up to matric and can read and write in Hindi. She is categoric in her statement that she was infact raped. 7. PW4 Madhu is the daughter of prosecutrix and states that when her mother PW3 left for the fields, the appellant who was present in the courtyard and left before her mother. After some time he was also proceeded towards the fields. On seeing her, the accused put on his underwear and trouser and fled from the spot. Exact words used by 5 her “meri mata ke saath sambhog kar raha tha. Jab doshi ne mujhe dekha, vah utha tatha apna underwear and pent pahna aur mauka se bhag gaya” meaning “He was having sex with my mother. When the accused saw me, he got up, wore his underwear and trouser and fled from the spot.” In other words, the case made out by her is that she had caught the appellant in flagranate delicto. She also admits that she went to the Police Station on 11.8.2008 as 10.8.2008 was a holiday. She had accompanied her mother to the police station. 8. PW2 Dr. Seema Rani states in her evidence that she was posted as Medical Officer in Civil Hospital, Theog since June 2008. On 11.8.2008 application Ext.PW2/A for conducting the medical examination of PW3 Sumitra was submitted to her. She examined her and issued Medico Legal Certificate Ext.PW2/B. She recorded in certificate Ext.PW2/B that “alleged H/o sexual assault by someone on 9.8.2008 at approx 6.00 PM. Pt. brought by police for examination” On medical examination, she did not find any injury on any part of the body, no blood stains and no semen stains were detected by her. On local examination, she found : “Local Examination On local examination no external mark of injury was seen on the parenial area. Whitish vaginal discharge present on per-speculum/per-vaginal examination. I prepared vaginal smears and sample slides and packed and sealed those in a parcel and put on the said parcel sample seal of the hospital and handed over the said parcel to the police for chemical analysis for detection of living sperms and spermatozoa. On further examination, there was no tenderness present on per-vaginal examination. 6 Certix admitted tip of finger and was hard to feel. The length of the cervix was 1.5 cm. approximately. Uterus was multiparous size. I took sample of pubic hair both combed and cut and sealed those in a parcel by affixing the seal of the hospital and handed over to the police for chemical analysis from Forensic Science Laboratory, Junga. I also collected 5 cuvic cm. of urine and three cuvic cm of blood of Sumitra and sealed the same and handed over the same to the police to be sent to F.S.L. Junga. After medical examination, I reserved my final opinion regarding sexual assault after the receipt of report of Chemical Examiner and issued medical certificate Ext.PW2/B which bears my signatures and seal of the office. On 9.10.2008, the police showed me the report of Chemical Examiner, FSL Junga. As per the report dated 7.10.2008 Ext.PX there was no evidence of semen over any sample sent for chemical analysis. There was evidence of human blood over Ext.2-b, salwar (trouser) of Sumitra which was not sufficient for cross matching. As per the report of Chemical Examination stated supra in my opinion there was no evidence to suggest the occurrence of sexual assault. My opinion is Ext.PW-2/C.” I have reproduced this evidence in some detail as it would be relevant for the purpose of corroboration of what the victim has stated. The medical opinion Ext.PW2/E which was rendered by the Board of Doctors at DDU Hospital at Shimla states that it was not possible to give any finding as to whether the prosecutrix was subjected to sexual intercourse or not as she was examined after a period of four months. 9. I have not referred in detail to the other evidence on record as that evidence relates to facts after the occurrence and the evidence 7 supra is considered for it will establish the offence or the innocence of the appellant. 10. Learned counsel appearing for the appellant submits that it is clear from the evidence on record beyond doubt that the appellant has not committed any rape on the prosecutrix. He submits that the manner of assault as described in the report and as affirmed by the prosecutrix in her evidence is such that if infact she had been sexually assault in the manner as alleged, there would have been injuries on her body. He refers to the evidence of PW2 Dr. Seema Rani who admits in her cross examination that in case the bangles were broken in the struggle, there would have been some marks of injuries on the body of the prosecutrix. He points out that the Doctor is categoric in her opinion that if the prosecutrix was subjected to forcibly sexual intercourse in the fields/jungle as alleged, there would have been marks of bruises, scratches on her body. Referring to the medical evidence in detail, he submits that it does not disclose even a single bruise or injury. According to him, the learned Court below was wrong in holding that it is the mere statement of the prosecutrix which can be relied upon and the medical evidence to be excluded. 11. Learned Additional Advocate General, on the other hand, submits that it is now well settled that the statement of prosecutrix itself confirmed the basis of conviction without any corroboration. In particular, he refers to the judgment of the Supreme Court in Aman Kumar and another vs. State of Haryana, AIR 2004 SC 1497, State of Himachal Pradesh vs. Asha Ram, 2006 Cri. L.J. 139 and Naresh Kumar vs. State of H.P., 2006 Cri.L.J. 1985. 12. Learned counsel appearing for the appellant urges that circumstances proved on record are such that the mere statement of prosecutrix cannot be relied upon. In particular, he places reliance on the 8 judgment of the Supreme Court in Sadashiv Ramrao Hadbe vs. State of Maharashtra and another (2006) 10 SCC 92, Narayan alias Naran vs. State of Rajasthan (2007) 6 SCC 465, to urge that though corroboration is not the rule but if there are contradictions in the evidence of the prosecutrix as also the medical evidence, it is not safe to rely upon the testimony of prosecutrix alone. In particular he emphasizes that in Dinesh Jaiswal vs. State of M.P., 2010 Cri.L.J. 1917 and Abbas Ahmad Choudhary vs. State of Assam, 2010 Cri. L.J. 2060, the Supreme Court holds that there is no presumption that the prosecutrix is always telling the truth. In Dinesh Jaswal’s case the Court holds: “5. Mr. C.D. Singh has however placed reliance on Moti Lal’s case (AIR 2008 SC (Supp) 882 : 2008 AIR SCW 4846) (supra) to contend that the evidence of the prosecutrix was liable to be believed save in exceptional circumstances. There can be no quarrel with this proposition (and it has been so emphasized by this Court time and again) but to hold that a prosecutrix must be believed irrespective of the improbabilities in her story is an argument that can never be accepted. The test always is as to whether the given story prima facie inspires confidence. We are of the opinion that the present matter is indeed an exceptional one. 6. As already mentioned above, in our opinion, the story given by the prosecutrix does not inspire confidence. We thus allow this appeal, set aside the impugned judgments and direct that the appellant be acquitted.” (pp. 1919) (Emphasis added) 13. To similar effect is the ratio of the judgment passed in Abbas Ahmad’s case. Learned counsel also submits that in Radhu vs. State of Madhya Pradesh (2007) 12 SCC 57, the Supreme Court rules that if there are inconsistencies and major discrepancies in the evidence of the prosecutrix, no conviction can be sustained on such evidence. 9 14. Two other decisions may be noticed on which reliance has been placed by learned counsel appearing for the appellant. In Pritam Chand Vs. State of H.P. Current L.J. Supp (2008) 51, this Court considered the Supreme Court’s precedent as noticed supra and holds inter alia that: “23. Keeping in view the entire facts and circumstances above, especially the contradictions in the statements of the prosecutrix and her brother, the unnatural behaviour of the brother and the mother, the medical evidence which shows that there are no signs of struggle or injuries on the private part of the minor prosecutrix and last but not the least the fact that the vaginal swab contains no human semen, in my opinion it would be highly improper to convict the accused on the oral statement of the prosecutrix and her brother. The statements are not corroborated by the other evidence but in fact grave doubts regarding the correctness of the statements arise because of these inherent contradictions. The attending circumstances and other evidence in fact shatter the case of the prosecution. The learned trial Court has based the conviction only on the ground that there is no reason to disbelieve the child especially a girl of such tender age. This may be correct but in view of the various inconsistencies as pointed out above I am of the considered view that the prosecution has miserably failed to prove its case.” (at page 57-58) He also places a reliance on the judgment of the Supreme Court in State of Rajasthan vs. Shanker, (2000) 9 SCC 161 to urge that even if the facts are accepted as they are at best consensual sex is established. 10 15. After giving my anxious consideration to the submissions made by the parties, I do find it strange that though the prosecutrix states in her evidence that she was accompanied by her daughter to the police station, (which fact is corroborated by her daughter PW4 Madhu) the complaint Ext.PW3/B was written at a hotel by a stranger whom they have not been able to identify. The place where it was written is also not known to them. This is all the more strange as she admits that her daughter PW4 Madhu knows how to write and read as she has completed her matriculation. Her evidence on the point of the manner in which the assault occurred cannot be accepted as the medical evidence is in direct contradiction as to what she states. According to her a violent struggle ensued before she was subjected to sexual intercourse. In these circumstances, the first medical examination which is conducted on her would have revealed some kind of mark/injury on her body. There are none as is apparent from the evidence of PW2 Dr. Seema Rani and MLC Ext.PW2/B. If she had been raped some signs of semen etc. would have been present in the vaginal region or on the undergarment of the accused, which is not proved as is evident from the report of the Forensic Science Laboratory Ext.PX. The learned Sessions Judge was in clear error in ignoring this evidence. Infact, PW4 Madhu also says that she saw the prosecutrix as also the accused in the very act of committing sex. The medical evidence is otherwise. 16. The statement of PW4 is absolutely in contradiction to the medical evidence. Assuming that she has seen the appellant with the prosecutrix that fact does not itself establish either rape or an attempt to commit rape. Merely because the prosecutrix makes a statement that she was subjected to rape cannot be accepted as I find that this fact is not corroborated by the evidence on record. I am unable to persuade myself 11 to hold that the prosecution has been able to prove its case. I hold that no rape or any attempt to commit this offence has been committed by the petitioner. The established principle for evaluating the evidence has been laid down by the Supreme Court in C. Magesh and others Vs. State of Karnataka, (2010) 5 SCC 645 that: “45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasis, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in case titled Suraj Singh v. State of U.P. (2008) 16 SCC 686 has held: (SCC p.704, para 14) “14. ’21…….The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; ….the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.’” 46. In a criminal trial, evidence of the eyewitness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that “no man is guilty until proven so”, hence utmost caution is required to be exercised in dealing with situations where there are multiple testimonies and equally large number of witnesses testifying before the court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses.” (at p. 655) I find that this principle has been ignored by the trial Court which has given total go bye to this consistency. In these circumstances, this appeal is 12 allowed. The petitioner is acquitted. The judgment of the Court below is quashed and set aside. Bail bonds furnished by the appellant are discharged. (Dev Darshan Sud) Judge October 20th , 2010(ms)