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1999 Supreme(HP) 148
High Court Of Himachal Pradesh
R.L.KHURANA,M.R.VERMA
OM PRAKASH - Appellant
Versus
STATE OF H.P. - Respondent
Cri. Appeal No. 4 of 1999
Decided On : 07/30/1999
Anup Chitkara with Bhupender Ahuja, for Appellant; B. B. Sharma, Asstt. Advocate General, for Respondent.
The statement of the prosecutrix in a rape case must inspire confidence and is sufficient to convict an accused where her testimony inspires confidence and is found to be reliable.
Headnote:
RAPE - Charge under S. 376(2)(e) of the Indian Penal Code - Ingredients - Appreciation of evidence - Guidelines laid down by the Supreme Court in State of Punjab v. Gurmit Singh, 1996 Cri LJ 1728 : (AIR 1996 SC 1393) - Statement of the prosecutrix - Corroboration - Medical evidence - Recovery of torn clothes of the accused and the prosecutrix - Recovery of hairs of the prosecutrix and the accused from the spot - Accused absconding from the village - Failure of the accused to explain his conduct and to prove the pleas raised in defence - Held, the evidence led by the prosecution to prove the charge against the accused is untrustworthy, unreliable and undependable - Charge cannot be said to be proved merely because the plea(s) raised in defence has not been established or proved - Appeal allowed - Conviction and sentence set aside - Accused acquitted.
Fact of the Case:
The accused was convicted under S. 376(2)(e) of the Indian Penal Code and sentenced to rigorous imprisonment for ten years and to pay fine in the sum of Rs. 2,000/- and in default of payment of fine, to further rigorous imprisonment for one year. The case of the prosecution was that the prosecutrix was raped by the accused on August 22, 1997 at about 4.00 p.m. when she was returning from Jijwas to her parents house in village Ohla after bringing grass. The accused was caught hold of by PW-3 Lal Chand, who asked the accused as to why he was raping the prosecutrix whereupon the accused left the prosecutrix and ran downwards. The prosecutrix narrated the whole occurrence to PW-3 Lal Chand and also showed him the condition of her clothes. Thereafter, alongwith Lal Chand, she returned to village Ohla where she narrated the occurrence to her maternal aunt PW-2 Devki and also got her body checked up from said Devki. On August 23,1997, the prosecutrix alongwith PW-2 Devki and PW-3 Lal Chand went to Police Station Tissa and reported the occurrence to the police whereupon FIR Ext. PA under S. 376(2)(e) of the Indian Penal Code came into being.
Finding of the Court:
The statement of the prosecutrix does not inspire confidence and is, therefore, unreliable nor it is corroborated by the other evidence to assure credence to it. Therefore, the prosecution has failed to prove the charge against the accused, thus the impugned judgment is not sustainable.
Issues: Whether the charge against the accused under S. 376(2)(e) of the Indian Penal Code has been proved by the prosecution.
Ratio Decidendi: The evidence led by the prosecution to prove the charge against the accused is untrustworthy, unreliable and undependable. Therefore, the charge cannot be said to be proved merely because the plea(s) raised in defence has not been established or proved.
Final Decision: Appeal allowed - Conviction and sentence set aside - Accused acquitted.
M. R. Verma, J. :- This is an appeal preferred by the appellant/accused (hereafter referred to as the accused) against the judgment dated November 9, 1998 passed by the learned Sessions Judge, Chamba whereby the accused has been convicted under S. 376(2)(e) of the Indian Penal Code and has been sentenced to rigorous imprisonment for ten years and to pay fine in the sum of Rs. 2,000/- and in default of payment of fine, to further rigorous imprisonment for one year.
2. Briefly, the case of the prosecution is as follows. PW 1 Pano Devi (hereafter referred to as the prosecutrix) is married in village Kandog. On August 20, 1977 she came to her parents house in village Ohla and was staying there. At the relevant time, she had eight months pregnancy. On August 22, 1997, she left per parental house for Jijwas to bring grass. At about 4.00 p.m. when she reached at a place known as "Kilat Nali", the accused met her who was staring at her. When the prosecutrix was crossing him, he abruptly caught hold of her and threw her Darati away which she was carrying in her right-hand. The prosecutrix started weeping but the accused forcibly broke the string of her Salvar and laid her on the ground and committed sexual intercourse with her. Being pregnant, the prosecutrix could not adequately resist the assault and continued crying. In the meanwhile, PW-3 Lal Chand, who was carrying grass, appeared on the scene. He asked the accused as to why he was raping the prosecutrix whereupon the accused left the prosecutrix and ran downwards. The prosecutrix narrated the whole occurrece to PW-3 Lal Chand and also showed him the condition of her clothes. Thereafter, alongwith Lal Chand, she returned to village Ohla where she narrated the occurrence to her maternal aunt PW-2 Devki alias Debu and also got her body ckecked up from said Devki.
3. On August 23,1997, the prosecutrix alongwith PW-2 Devki and PW-3 Lal Chand went to Police Station Tissa and reported the occurrence to the police whereupon FIR Ext. PA under S. 376(2)(e) of the Indian Penal Code came into being. The case was investigated by PW-12 Mangal Singh, ASI. The prosecutrix was medically examined by PW-11 Dr. Supriya Atwal in Community Healh Centre, Tissa and issued MLC. Ext. PH about the said medical examination. After visiting the spot, the Investigating Officer prepared the Naksha-Mouka-Nazri Exts. PJ and PL. From the place of occurrence the police took in possession a few human hair and also took in possession some earth, grass etc. Ext. PF.
4. After the arrest of the accused, the Investigating Officer recorded the disclosure statement of the accused about Bunyian and Pant of the accused which he was wearing at the time of the occurrence, Ext. PC and as a consequence, recovered the said clothes at the instance of the accused vide memo. Ext. PB. The wearing apparels, hair and earth etc. so taken in possession alongwith the wearing apparels of the prosecutrix, namely, shirt Ext. P-1 and Salvar Ext. P-2 were sent to the State Forensic Science Laboratory for analysis. The opinion in this regard received by the Investigating Agency is Ext. P-14. The accused was also got medically examined and the M. L. C. about such examination is Ext. PD. On being satisfied that the accused had committed the offence of rape on a pregnant woman, the police accordingly submitted a charge-sheet against the accused.
5. The learned trial Judge framed charge under S. 376(2)(e) of the Indian Penal Code against the accused who pleaded not guilty to the said charge.
6. To prove the charge against the accused, prosecution examined as many as 12 witnesses.
7. The defence taken by the accused in his statement under Section 313 of the Criminal Procedure Code is that prior to their respective marriages he and the prosecutrix were in love and wanted to marry, however, their parents did not agree and this case has now been falsely engineered against him due to enmity. The accused also examined two witnesses in his defence.
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