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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Surinder Singh
Kishan Chand. …… Appellant.
Versus
State of H.P. ……. Respondent.
Cr. Appeal No.388 of 2010.
Decided on : 2nd June, 2011.
Rape - Criminal Law - IPC 376, IPC 363, IPC 366, IPC 342, IPC 506 - The court discussed the provisions of IPC 376, IPC 363, IPC 366, IPC 342, and IPC 506 in the context of the burden of proof in rape cases, the necessity of corroboration of the victim's testimony, and the presumption of innocence of the accused. The court emphasized the need for the prosecution to prove the offence beyond reasonable doubt and highlighted the importance of reliable evidence in establishing the guilt of the accused.
Fact of the Case:
The case involved the appeal of a conviction and sentence passed against the accused for offences including rape, abduction, and criminal intimidation. The prosecutrix, a 16-year-old girl, alleged that her uncle had raped her and kept her confined for five days.
Finding of the Court:
The court found that the testimony of the prosecutrix did not inspire confidence and raised doubts about the prosecution's case. It concluded that the accused was entitled to the benefit of doubt and set aside the conviction and sentence, ordering the accused's release.
Issues: The key issues included the credibility of the prosecutrix's testimony, the presence of corroborating evidence, and the burden of proof in rape cases.
Ratio Decidendi: The court emphasized the need for the prosecution to prove the offence beyond reasonable doubt and highlighted the importance of reliable evidence in establishing the guilt of the accused. It also noted that the corroboration of the victim's testimony is not an absolute requirement but must be considered in the context of the overall evidence.
Final Decision: The appeal was allowed, and the conviction and sentence of the accused were set aside. The accused was ordered to be released forthwith.
Surinder Singh, J:
The present jail appeal has been received from the Superintendent of District Jail Chamba, which has been directed by the appellant (hereinafter to be called as accused) being aggrieved by the judgment of conviction and sentence passed by the learned Sessions Judge in Sessions trial No. 20 of 2010, decided on 6.7.2010/24.7.2010 whereby he was sentenced to undergo imprisonment under the following different Sections as hereunder:
Sl.No. Offence Sentence
under Section
1. 376 IPC Rigorous imprisonment for
seven years and fine of
Rs.50,000/- and in default of
payment of fine, simple imprisonment for one year.
2. 363 IPC Simple Imprisonment for three
years and fine of Rs.5,000/-and in
default of payment of fine, simple imprisonment for one year.
3. 366 IPC Simple imprisonment for five years
and fine of Rs.20,000/- and in default of
payment of fine, simple imprisonment for one year.
4. 342, IPC To pay fine of Rs.1,000/- and in default of
payment of fine, simple imprisonment
for one month.
5. 506 IPC Simple imprisonment for one year and
fine of Rs. 5,000/- and in default of payment
of fine, simple imprisonment for one year.
2. All the sentences were ordered to run concurrently. The period of detention during investigation and trial is ordered to be set off as per the provisions of Section 428 of Code of Criminal Procedure.
3. Since, the accused was unrepresented as such vide order dated 17.9.2010 Ms. Sheweta Julka, Advocate was appointed as legal aid counsel for him.
4. The facts giving rise to the present appeal can be stated thus. (i). In the year 2009 the prosecutrix (16) was studying in plus one in Government Senior Secondary School, Jajjakothi. The accused (19) was her uncle in village relation, residing in a separate house and distance of about 400/500 meters away from the house of the complainant. It is alleged that while the prosecutrix going to school, the accused used to tease her.
(ii) On 26.12.2009 the prosecutrix put on her school dress and was ready for the school. In the meantime, she felt to go out and ease herself. She went near the water source and after easing herself, when she came out from the bushes, she was caught hold by the accused from her arms and took her to his house, bolted the door of the room from inside and committed rape on her. When she tried to escape, the appellant hurled threats to her and kept her confined in the room for five days.
During this time, he is alleged to have committed sexual intercourse five times with her. It is also alleged that the accused told her that he would solemnize marriage with her.
(iii) On 30.12.2009, the accused while taking her to Chamba for solemnizing marriage with her adopted short cut, they were apprehended by the police accompanied by her parents and cousin Nar Singh who met them on the way near village Chilli. She revealed about all the facts to her parents. The prosecutrix was wearing some other cloths. The accused was arrested by the police.
(iv) The school dress i.e. shirt Ex.P1, salwar Ex.P2, Panjami Ex.P3, which was kept in the house of the accused was taken into possession along with bed sheet, Ex. P4, over which the accused is alleged to have committed rape with her. The aforesaid itmes were sealed.
(v) On 31.12.2009 at about 11.30 a.m. she was medically examined at Chamba by PW3 Dr. Arti Sharma on the police request. The doctor did not find any injury on her body. Her LMP was 23.12.2009. On local examination, the doctor did not find any injury on her private parts, although, hymen was absent. No redness and discharge was found as per the vaginal examination. However, it admitted only one finger. The prosecutrix was referred for ossification examination but was not conducted. Her cloths which were sealed alongwith vaginal swabs were sent for forensic examination. Forensic expert found human blood on the cloths of the prosecutrix and also in the vaginal swab (probably menstrual blood
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