Himachal Pradesh High Court
Between vs Unknown on 18 October, 2022
Bench: Tarlok Singh Chauhan, Virender Singh
1
Reportable/Non-reportable
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 18TH DAY OF OCTOBER, 2022
.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE VIRENDER SINGH
CRIMINAL APPEAL No. 107 OF 2021
Between:-
STATE OF HIMACHAL PRADESH
....APPELLANT
(BY RAJINDER DOGRA, SENIOR ADDL. A.G.
WITH MR. SHIV PAL MANHANS, ADDL. A.G.
AND MR. RAJAT CHAUHAN, LAW OFFICER.)
AND
PRADEEP KUMAR
S/O SHRI HARI CHAND
RESIDENT OF VILLAGE BADBADAR,
POST OFFICE CHABUTRA, POLICE STATION
AND TEHSIL SUJANPUR, DISTRICT
HAMIRPUR, H.P.
..RESPONDENT
(MR. P.M. NEGI, ADVOCATE)
Reserved on: 10.10.2022
Decided on: 18.10.2022
__________________________________________________________________
This appeal coming on for pronouncement of
judgment on this day, Hon'ble Mr. Justice Virender
Singh, delivered the following:-
::: Downloaded on - 18/10/2022 20:04:41 :::CIS
2
JUDGMENT
By virtue of the present appeal, filed under Section
378(3) of the Code of Criminal Procedure (hereinafter referred
.
to as the 'Cr.P.C.'), the State has assailed the judgment dated
29.02.2020 passed by the Court of learned Additional
Sessions Judge, Hamirpur, District Hamirpur, H.P.
(hereinafter referred to as 'the trial Court').
2. By way of the judgment dated 29.02.2020, the
learned trial Court has acquitted the respondent (hereinafter
referred to as the 'accused') in Sessions Trial No. 10 of 2015
from the charges framed against him under Sections 376 and
506 of the Indian Penal Code (hereinafter referred to as the
'IPC').
3. Necessary facts, as emerge from the report under
Section 173(2) Cr.P.C., may be summed up, as under:-
4. On 31.05.2014, the prosecutrix along-with her
husband approached the police of Police Station, Sadar,
District Hamirpur, H.P. by moving a complaint, disclosing
therein that accused Pradeep had developed illicit relations
with her. According to her, she was residing with her
widowed mother. She is having four children. It is her further
allegation that accused had taken away Rs.80,000/- and one
'Mangalsutra', cost of which has been stated to be
Rs.75,000/- and one mobile phone along-with its accessories.
When the accused had taken away the above articles from the
prosecutrix, he had allegedly assured to return the same.
.
Later on, when the prosecutrix demanded back the money,
the accused had threatened to kill her. Consequently, the
prosecutrix had disclosed these facts to her husband, who is
working as a Driver. Thereafter, both of them had met DIG,
CRPF, Jalandhar as accused was working as Fitter in CRPF.
In the presence of DIG, CRPF, the accused had refused even
to recognize her. Thus, a prayer has been made to take
action against the accused.
5. On the basis of above facts, the police registered
the FIR No. 132 of 2014 and the police machinery swung into
motion. The prosecutrix was sent for her medico legal
examination. However, during the medico legal examination,
the prosecutrix has refused for her local examination. Her
statement under Section 164 Cr.P.C was also got recorded.
6. During investigation of the case, the prosecutrix
has identified the place, where she had been allegedly
ravished by the accused. The accused was arrested and also
medico legally examined.
7. After the completion of investigation, the police
found a case under Section 376 read with Section 506 IPC
against the accused, as such, charge sheet was filed against
the accused for the aforesaid offences.
8. The charge-sheet was filed in the Court of learned
.
Chief Judicial Magistrate, Hamirpur and vide committal order
dated 30.03.2015, the case has been committed to the Court
of learned Sessions Judge, Hamirpur. The case thereafter
was assigned to the trial Court.
9. After perusing the report under Section 173(2)
Cr.P.C and accompanying documents, the learned trial Court
found prima-facie case for the commission of offences
punishable under Section 376 and 506 IPC. The accused,
therefore, was charge-sheeted accordingly. When, the
charges, so framed, were put to him, he has not admitted his
guilt and claimed to be tried.
10. Since the accused has refused to admit his guilt,
as such, prosecution has been directed to adduce evidence.
Consequently, the prosecution has examined as many as 14
witnesses.
11. After closure of the prosecution evidence, the
entire incriminating evidence appearing against the accused
was put to the accused, in his statement, recorded under
Section 313 Cr.P.C. The accused has denied the entire
prosecution case and took the plea that he has falsely been
implicated in this case. However, the accused has not opted
to lead evidence in defence in order to prove his defence.
12. Thereafter, the learned trial Court, after hearing
.
the learned Public Prosecutor and the learned defence
counsel has acquitted the accused from the charges framed
against him in this case vide judgment dated 29.02.2020.
13. Feeling aggrieved from the judgment of acquittal,
the present appeal has been filed before this Court on the
ground that the evidence adduced by the prosecution has not
been considered by the learned trial Court in its proper
perspective and unrealistic approach has been adopted by the
learned trial Court.
14. Highlighting the fact that the accused could not
probabilise the plea of animosity between him and the
prosecution witnesses, as such, there was no occasion for the
learned trial Court to discard the evidence of the prosecutrix.
The improvements allegedly made by the prosecutrix in her
statement have been stated to be given undue weightage by
the learned trial Court.
15. On the basis of above facts, Mr. Rajinder Dogra,
learned Senior Additional Advocate General assisted by Mr.
Shiv Pal Manhans, learned Additional Advocate General has
prayed that the appeal may kindly be accepted and the
judgment of acquittal may kindly be set aside by convicting
the accused, for the commission of offences, for which, he has
been charge-sheeted, in this case.
.
16. Per contra, Mr. P.M. Negi, learned counsel
appearing for the accused has supported the impugned
judgment of acquittal and has submitted that the learned
trial Court has rightly considered the evidence of the
prosecution witnesses. Thus, a prayer has been made to
dismiss the appeal.r
17. Arguments heard. File perused.
18. It is no longer res-integra that in the appeal
against the acquittal, the Appellate Court should be slow in
reversing the findings recorded by the learned trial Court
unless or until, it has been held that the findings of the
learned trial Court, acquitting the accused, are suffering from
infirmities and illegalities and the findings could be said to be
"perverse".
19. However, there is no bar in re-appreciating the
evidence, if the judgment of acquittal is passed by ignoring
the basic principle of law and admissible evidence of the
witnesses. Their Lordships of the Apex Court in case titled as
State of Punjab vs. Karnail Singh, 2003 Criminal Law
Journal 3892 have held as under:-
"......Generally, the order of acquittal shall not be
interfered with because the presumption of innocence of
the accused is further strengthened by acquittal. The
golden thread which runs through the web of
.
administration of justice in criminal cases is that if two
views are possible on the evidence adduced in the case,
one pointing to the guilt of the accused and the other to
his innocence, the view which is favourable to the
accused should be adopted. The paramount
consideration of the Court is to ensure that miscarriage
of justice is prevented. A miscarriage of justice which
may arise from acquittal of the guilty is no less than
from the conviction of an innocent. In a case where
admissible evidence is ignored, a duty is cast upon the
appellate Court to re-appreciate the evidence even
where the accused has been acquitted, for the purpose
of ascertaining as to whether any of the accused
committed any offence or not......."
20. In order to decide the present appeal, in view of
the decision of the Apex Court, as referred to above, it is
necessary for this Court to discuss the evidence of the
prosecutrix.
21. This discussion is necessary so as to find that
there is ring of truth in the evidence of the prosecutrix, as the
conviction, in such type of cases, can be based solely upon
the statement of the prosecutrix, if inspires confidence. The
term "if inspires confidence" put a note of caution to the
Court that before relying upon the sole statement of the
prosecutrix, the Court must satisfy that the evidence of the
prosecutrix inspires confidence.
22. The prosecutrix has appeared in the witness box
.
as PW-3. According to her, she was married about 15 years
ago from the date when she appeared in the witness box
before the learned trial Court on 09.08.2017. She has been
blessed with four children. In the year 2009, she was staying
with her mother at Tauni Devi. In order to attend a marriage
in the relations, she requested her brother to arrange for a
vehicle, who consequently, arranged a vehicle No. HP-01H-
0907, upon which one Babloo was the Driver. When the said
vehicle, being driven by Babloo, reached, at the village of the
prosecutrix, she noticed, one more person namely, Ajay, who
is stated to be brother-in-law of the accused, in the vehicle.
After reaching at the destination, she had made efforts to pay
the fare to the Driver, but, the payment has been postponed
by the Driver, on the account that he will receive the amount
when he will pick them back in the evening.
23. After the marriage, said Babloo again came to pick
them up. That time also, Ajay and accused were with him.
Both were found to be under the influence of liquor. When
the prosecutrix had shown her reluctance to go with them,
the assurance of their security was given, then, she had
boarded the vehicle. The prosecutrix along-with her children
were dropped at Tauni Devi. The accused has requested her
to provide mobile number and in return, the accused has
.
given his visiting card to the prosecutrix. About 1½ months
thereafter, the accused contacted her on telephone and the
accused has shown his intention to meet the prosecutrix.
Firstly, the prosecutrix has shown her reluctance to meet her
and also not attended his phone calls. However, in the year
2009, when she was on her duty in a shop namely, Deep and
Company, the accused came there and introduced himself.
24. After about one week thereafter, accused along-
with one Parkasho Devi, met the prosecutrix outside the
Police Station. Parkasho Devi apprised the prosecutrix that
her husband is under the influence of witchcraft and in order
to get him cured, her husband is required to be taken to a
Baba at Kangra. After about two weeks thereafter, accused
met the prosecutrix outside the Police Station, Hamirpur and
again insisted the prosecutrix to take her husband to Kangra
for treatment. In the same evening, accused along-with
Parkasho Devi took the prosecutrix to Kangra and on the way,
they had stayed in a hotel at Jawalaji. In one room, the
prosecutrix along-with Parkasho Devi stayed, but, during
night time, accused forced her to accompany him to his room,
where she was allegedly ravished. Next day, accused
threatened the prosecutrix not to disclose this fact to anyone,
otherwise he will kill her husband and kidnap her daughter.
.
Due to the threatening, the prosecutrix had not disclosed
anything to anyone. She has further deposed that in the year
2012, she got admission in nursing course at Jalandhar.
Whenever, she had gone to Jalandhar, accused forced her to
get down from the bus, on the boundary of Himachal Pradesh
and from there, they used to go to Jalandhar on motorcycle.
The accused and the prosecutrix thereafter stayed a number
of times in a hotel, where she was allegedly ravished by the
accused. She has again reiterated the threats, which were
given to her by the accused. She has further deposed that
she was also ravished by the accused in the residence of one
Kiran daughter of Nooran Devi, at Dera Beas.
25. As per her further deposition, Nooran Devi the
mother of Kiran, is permanent resident of Village Kadohta,
Hamirpur, where her husband and son were living and one
day, said Nooran Devi sent some articles and an amount of
Rs.4,000/- to her husband with the accused who had come
along-with his vehicle, but the accused had not handed over
the above articles to the husband of Nooran Devi. When
Nooran Devi tried to contact the prosecutrix on her mobile
number, then the phone was attended by the husband of
prosecutrix. Nooran Devi was under the impression that the
phone has been picked by the accused Pradeep Kumar and
.
inquired from him as to why he had not handed over the
articles and money to her family members at Kadhota, then
the husband of the prosecutrix inquired about Pradeep
Kumar. On the persistent inquiry by the husband of the
prosecutrix, the whole story has been narrated to him.
26. She has further deposed that when she was
undergoing the nursing course at Jalandhar, accused took
the prosecutrix along-with her children in his Xylo vehicle to
Manikaran, Kullu and Manali and they stayed there for three
nights in Baba Balak Nath Sarai at Kullu. When they were
coming back, then accused demanded a sum of Rs.10,000/-
from the prosecutrix. Due to the threatening of the accused,
the prosecutrix had withdrawn Rs.10,000/- from her ATM
and given the same to the accused. Again the prosecutrix and
accused had gone to Manikaran, where they had stayed in a
hotel, where, she was again ravished by the accused.
27. As per her further version, at Jalandhar, the
accused has snatched 'Mangalsutra' and mobile along-with
the memory card. After getting the help from one Rehariwala,
the prosecutrix had narrated the whole facts to her husband.
She has reiterated that the accused has also threatened her
to kill her husband. Complaints were also made to DIG,
CRPF, Kartarpur, Punjab, where accused has threatened the
.
prosecutrix not to identify him before the DIG. Thereafter, on
31.05.2014, she has moved a complaint Ext.PW-3/A before
the Police Station, Hamirpur.
28. In the cross-examination by the learned counsel
for the accused, she has admitted that she had never
disclosed the alleged act of ravishment by the accused to her
mother as well as advancing the threatenings. When accused
took her to Jawalaji to his room, the prosecutrix had not
raised hue and cry. She has also feigned her ignorance as to
who has paid the room charges at Jawalaji. When the
prosecutrix along-with her children returned back from
Manikaran, her mother had not inquired the reason why they
had stayed out of the house for about seven days.
29. According to the prosecutrix, she never intended
to marry the accused and she had never disclosed her
relationship with the accused. When accused took her to
Kangra, her husband was not with them nor the prosecutrix
requested him to accompany them.
30. She has also admitted that her husband was not
sick during that time. When complaint Ext.PW-3/A was
moved, her husband was with her.
.
31. The daughter of the prosecutrix has also been
examined by the prosecution as PW-4. According to her, in
July, 2013, the prosecutrix and the brothers and sisters of
this witness, along-with the accused, had gone to Kullu,
Manikaran and Bijli Mahadev in Xylo Vehicle. At Kullu, they
stayed in Baba Balak Nath Sarai, where accused hired two
rooms. The prosecutrix along-with her children has stayed in
one room, however, the prosecutrix was beaten by the
accused and forcibly taken to another room. In Manikaran, all
of them had stayed in one big hall. She has further deposed
that during their stay at Kullu, accused used to take the
prosecutrix forcibly to his room. At Baba Balak Nath near
Jawalaji, accused has withdrawn Rs.10,000/- from the ATM
account of the prosecutrix.
32. In cross-examination, this witness has admitted
that the prosecutrix has not objected to the journey with the
accused for the above places. No efforts were made by the
prosecutrix to run away from the clutches of the accused.
Father of this witness was not informed.
33. The third star witness is Nooran Devi. According
to this witness, in the year 2012, prosecutrix many times
visited their house and later on, she came along-with accused
.
who has been introduced by her as her husband working in
CRPF Jalandhar. In the year 2013, they stayed in one room.
The prosecutrix borrowed a sum of Rs.4500/- from this
witness to pay the college fee, but she had not returned the
said amount. In the year 2014, this witness had gone to the
house of the prosecutrix to take back her money, but
prosecutrix abused her. In the house of the prosecutrix, this
witness noticed the photograph of the prosecutrix with
another person along-with four children. On inquiry, she was
again abused by the prosecutrix. She has categorically stated
that the man, in the photograph, was not accused Pradeep
Kumar, who used to come with her to the house of this
witness. The husband of the prosecutrix inquired from this
witness, then, she has disclosed that one Pradeep Kumar
used to come to their house as husband of the prosecutrix.
34. Even in the cross-examination by the learned
counsel for the accused, this witness has deposed that the
prosecutrix herself has disclosed that accused Pradeep
Kumar is her husband. This witness has no acquaintance
with the husband of the prosecutrix.
35. After considering evidence of the above star
witnesses, the learned trial Court has categorically held that
the evidence of the prosecutrix does not inspire confidence.
.
36. The prosecutrix, in her complaint, to the police
Ext.PW-3/A has vaguely leveled the allegations against the
accused that from the last five years, he had developed illicit
relations with her. According to the prosecutrix, the accused
allegedly took her to Jawalaji in the year 2009, where she was
allegedly ravished in a hotel at Jawalaji.
r She, at that time
was allegedly accompanied by one Prakasho Devi. Said
Prakasho Devi has been examined by the prosecution as
PW-1.
37. This witness has also not supported the case of
the prosecution regarding her alleged ravishment by the
accused at a hotel at Jawalaji. Rather, at Jawalaji, they all
three had stayed in one room in a Sarai at Jawalaji. Despite
the best efforts made by the learned Public Prosecutor,
nothing material could be elicited from this witness. Rather,
from the evidence of this witness, it has been probabilized
that the prosecutrix had voluntarily accompanied the accused
and this witness. The prosecution could not derive any
benefit from the evidence of PW-1.
38. The evidence of the prosecution, in this case, is
not confidence inspiring. Even otherwise, from the deposition
of the prosecutrix, it has been probabilized by the accused in
.
this case, that there is no ring of truth in the evidence of the
prosecutrix. Her behaviour is also not natural and even the
alleged act of the accused to ravish the prosecutrix, as per the
deposition of the prosecutrix, seems to be a volunteer act of
the prosecutrix. She, along-with her four children, had gone
out of her house with the accused not for 1-2 days, but for
long 7 days and stayed at two different places i.e. Kullu and
Manikaran.
39. The learned trial Court has acquitted the accused
in the present case, by concluding that whatsoever alleged
acts have been done by the accused with the prosecutrix,
those were done with her consent. The prosecutrix had
moved freely with the accused, as per deposition. Firstly, she
had gone towards Kangra allegedly induced by the accused to
go to a 'Baba' for the treatment of her husband. Interestingly,
the prosecutrix herself admitted that when she had gone to
Kangra along-with the accused and allegedly stayed in a hotel
at Jawalaji, at that time, her husband was not with her nor
he was sick. This fact demonstrates the free consent by the
prosecutrix to move out with the accused, that too, without
the consent of her husband.
40. From the deposition of the prosecutrix, this Court
.
is of the view that the prosecutrix had not been
compelled/abducted by the accused nor she had been
forced/seduced into relations by the accused. She had
voluntarily gone with the accused and her act to remain in
the company of the accused along-with her four children for a
period of aboutr one week towards Kullu side also
demonstrates that whatsoever acts done by the accused with
her, allegedly, were with the consent of the prosecutrix. If the
entire statement of the prosecutrix is seen in the light of the
judgment of the Apex Court in Uday Singh vs. State of
Karnataka, 2003(1) 700, Apex Court Judgments (SC),
then it can be said that the prosecutrix was the consenting
party in the alleged acts of the accused. The relevant para of
the judgment is reproduced as under:-
"10. The vital question to be decided is whether the
above circumstances are sufficient to spell out consent
on the part of PW-1. In order to prove that there was
consent on the part of the prosecutrix it must be
established that she freely submitted herself while in
free and unconstrained possession of her physical and
mental power to act in a manner she wanted. Consent is
an act of reason accompanied by deliberation, a mere
act of helpless resignation in the face of inevitable
compulsion, non-resistance and passive giving in cannot
be deemed to be 'consent'. Consent means active will in
the mind of a person to permit the doing of the act of and
knowledge of what is to be done, or of the nature of the
.
act that is being done is essential to a consent to an act.
Consent supposes a physical power to act, a moral
power of acting and a serious and determined and free
use of these powers. Every consent involves submission,
but it by no means follows that a mere submission
involves consent. In Jowitt's Dictionary of English Law,
IInd Edition 01.1 explains consent as follows:
"An act of reason accompanied with deliberation,
the mind weighing, as in a balance, the good or
evil on either side. Consent supposes three things
- a physical power, a mental power and a free and
serious use of them. Hence it is that if consent be
obtained by intimidation, force, mediated
imposition, circumvention, surprise or undue
influence, it is to be treated as a delusion, and not
as a deliberate and free act of the mind."
41. At the cost of repetition, the prosecutrix had
accompanied the accused at various places where she was
allegedly ravished by the accused, but she had not raised hue
and cry, at any stage, nor she had made attempts to report
the matter to the police nor thought it proper to inform her
husband. No resistance has been shown by her when she was
allegedly commanded by the accused to dance on his tunes.
42. Considering all these facts, this Court is of the
view that the learned trial Court has rightly appreciated the
evidence of the prosecution, in this case, and, thereafter, has
rightly acquitted the accused from the charges framed against
him. As such, this Court is in full agreement with the
.
findings of the learned trial Court.
43. In view of the above discussion, there is no merit
in the appeal and the same is accordingly dismissed. Bail
bonds discharged.
44. Records be sent back.
( Tarlok Singh Chauhan )
Judge
October 18, 2022 ( Virender Singh )
(naveen) Judge
