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HIMACHAL PRADESH HIGH COURT
Madan Lal alias Sonu Tidu —Appellant
versus
State of Himachal Pradesh —Respondent
Cr. Appeal No. 58 of 2010 and Cr. Appeal No. 463 of 2008.
Decided on 13.11.2013
(ii) Indian Penal Code, 1860—Sections 344, 376, 363, 366 and 120B—Kidnapping and rape—Conviction—There is contradiction in testimony of prosecutrix and her father with regard to house where she was kept in confinement—Version of prosecutrix that there were no doors and windows does not inspire confidence—Trial Court committed grave illegality by not correctly and completely appreciating evidence including testimonies of relevant witnesses which has resulted into travesty and miscarriage of justice causing serious prejudice to both accused persons—Findings returned by trial Court that prosecutrix was subjected to rape cannot be said to be legally tenable—Prosecutrix did not submit but in fact consented and voluntarily went with accused and stayed with him for more than ten days—Her relationship with accused was not palatable to her parents who reported matter to police—It is not a case where she was under any psychological pressure, inducement or allurement of any nature— Judgment of conviction and sentence passed by trial Court set aside and accused acquitted of charged offences. (Paras 20, 21, 30 to 35)
(iii) Indian Penal Code, 1860—Section 376—Rape—Prosecutrix of a sex offence cannot be put on par with an accomplice—She is in fact a victim of crime—If for some reason Court is hesitant to place implicit reliance on testimony of prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in case of an accomplice—Nature of evidence required to lend assurance to testimony of prosecutrix must necessarily depend on facts and circumstances of each case—If totality of circumstances appearing on record of case disclose that prosecutrix does not have a strong motive to falsely involve person charged, Court should ordinarily have no hesitation in accepting her evidence. (Para 23)
(iv) Criminal Law—Appreciation of evidence—Discrepancy has to be distinguished from contradiction—Whereas contradiction in statement of witness is fatal for case, minor discrepancy or variance in evidence will not make prosecution’s case doubtful—In order to ascertain as to whether discrepancy pointed out is minor or not or same amounted to contradiction, regard is required to be had to circumstances of case by keeping in view social status of witnesses and environment in which such witness is making statement—Whether there are contradictions, inconsistencies, exaggerations or embellishments in statement of prosecution witnesses, Court has to adopt reasonable and practicable approach and only material or serious contradictions/variations of great consequence to create a dent in case of the prosecution are to be considered—Testimony is to be read in entirety to judge truthfulness and veracity thereof. (Paras 25 and 29)
Result: Appeals allowed.
JUDGMENT
Sanjay Karol, J.—In these appeals filed under the provisions of Section 374 of the Code of Criminal Procedure, 1973, accused Manoj Kumar and Madan Lal @ Sonu have assailed the judgment of conviction and sentence passed by learned Addl. Sessions Judge, Fast Track Court, Solan, H.P., in Sessions Trial No. 5-FTC/7 of 2008, titled as State of Himachal Pradesh vs. Madan Lal @ Sonu and another, whereby accused Madan Lal @ Sonu stands convicted for having committed offences punishable under the provisions of Sections 344, 376, 363, 366 and 120B of the Indian Penal Code and accused Manoj Kumar stands convicted for having committed offences punishable under the provisions of Sections 363, 366 and 120B of the Indian Penal Code. Accused Madan Lal @ Sonu is sentenced to undergo imprisonment for a period of two years and fine of Rs.2000/- and in default thereof suffer imprisonment for six months in relation to offence punishable under Section 344 IPC; seven years rigorous imprisonment and fine of Rs.10,000/- and in default thereof suffer rigorous imprisonment for one year in relation to offence punishable under Section 376 IPC; five years rigorous imprisonment and fine of Rs.5000/- and in default thereof suffer rigorous imprisonment for one year in relation to offence punishable under Section 363 IPC; five years rigorous imprisonment and fine of Rs.5000/- and in default thereof suffer rigorous imprisonment for one year in relation to offence punishable under Section 366 IPC; five years rigorous imprisonment and fine of Rs.5000/- and in default thereof suffer rigorous imprisonment for one year in relation to offence punishable under Section 120B IPC (for 363 IPC) and five years rigorous imprisonment and fine of Rs.5000/- and in default thereof suffer rigorous imprisonment for one year in relation to offence punishable under Section 120B IPC (for 366 IPC). Accused Manoj Kumar is sentenced to undergo five years rigorous imprisonment and fine of Rs.5000/- and in default thereof suffer rigorous imprisonment for one year in relation to offence punishable under Section 363 IPC; five years rigorous imprisonment and fine of Rs.5000/- and in default thereof suffer rigorous imprisonment for one year in relation to offence punishable under Section 366 IPC; five years rigorous imprisonment and fine of Rs.5000/- and in default thereof suffer rigorous imprisonment for one year in relation to offence punishable under Section 120B IPC (for 363 IPC); and five years rigorous imprisonment and to pay fine of Rs.5000/- and in default thereof suffer rigorous imprisonment for one year in relation to offence punishable under Section 120B IPC (for 366 IPC).
2. It is the case of prosecution that on 10.3.2008 Smt. Devki Devi (PW-1) and her grand daughter i.e. the prosecutrix (PW-2) had gone to the jungle for grazing cattle and bringing grass and wood. Same day at about 3.00 p.m. while they were returning carrying bundles of grass and wood on their head, accused Madan Lal @ Sonu came on the grass land, caught the prosecutrix from her arms and forcibly took her away. Prosecutrix raised alarm. Smt. Devki Devi tried to intervene but was pushed as a result of which she fell down. Accused Madan Lal @ Sonu took the prosecutrix to the roadside where accused Manoj Kumar was waiting in a vehicle (jeep) bearing No. HP 14A 1807. Both the accused made the prosecutrix sit in the jeep and took her away to a place on the National Highway somewhere between Kalka and Solan. Thereafter, at about 9.00 – 9.30 p.m. accused Madan Lal @ Sonu took the prosecutrix to an abandoned house in a jungle which had no doors and windows, where she was confined and detained for ten days and subjected her to rape. At that time, prosecutrix was seventeen years of age. In the meanwhile, Smt. Devki Devi (PW-1) went to her house, informed her daughter-in-law and reported the matter to the Pradhan of Gram Panchayat, Anji, Sh. Bhupender Singh (PW-8), who in turn informed the police. On 10.3.2008 itse
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