Himachal Pradesh High Court
State Of H.P vs Anil Kumar & Ors on 20 November, 2023
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
Cr. A. No. 562/2016 a/w
Cr. A. No. 478/2016
Reserved on: 9.11.2023
Decided on : 20.11.2023
.
Cr. A. No. 562/2016
State of H.P. .....Appellant
Versus
Anil Kumar & ors. ....Respondents
Cr. A. No. 478/2016
Manju Deepti .....Appellant
r Versus
Anil Kumar & ors. ....Respondents
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1 No
For the appellant: Mr. I. N. Mehta and Mr. Y.W.
Chauhan, Sr. Addl. A.Gs with Mr.
Navlesh Verma, Ms. Sharmila
Patial, Addl. A.Gs. and Mr. J. S.
Guleria, Dy.A.G. for the appellant
in Cr.A. No. 562/2016 and for
respondent No.4 in Cr. A. No.
478/2016
For the Respondents: Mr. Bimal Gupta, Sr. Advocate with
Mr. Varun Thakur, Advocate, for
respondents No. 1 to 3 in Cr. A.
No. 562/2016 and Cr. A. No.
478/2016
Mr. Ramesh Sharma, Advocate, for
the appellant in Cr. A. No.
478/2016
1 Whether reporters of the local papers may be allowed to see the judgment? Yes.
____________________________________________________________________
Justice Tarlok Singh Chauhan, Judge
Respondents No. 1 to 3, Anil Kumar, Arvind Kumar
.
and Rakesh Kumar (hereinafter referred to as the "accused
persons") were made to face trial for the commission of offences
punishable under Sections 366 and 376 read with Section 34
IPC and were acquitted of the said offences and aggrieved
thereby the State has filed Cr. A. No. 562/2016, whereas the
prosecutrix has filed Cr. A. No. 478/2016.
2 The parties do not dispute that the case, as set out
by the prosecution, has correctly been enumerated by the
learned trial court, therefore, the same is extracted as such
from the judgment.
"In the year 2012, the prosecutrix (name being withheld
to protect her identity) was working as Senior Research
Fellow in Horticulture Research Centre at Reckong Peo,
Distt. Kinnaur. She was residing at Reckong Peo with her
father Chhetan Medup, the complainant. On 7-7-2011,
complainant Chhetan Medup had returned back to his
residential quarter at about 6.30 P.M. and had found
that the prosecutrix had not returned from her office. He
tried to contact her on her cell phone but it was switched
off. Chhetan Medup had then gone to see the prosecutrix
at her office but it was locked. At about 7.30 PM., he had
received a message from the prosecutrix that she was
being taken by accused Anil. The prosecutrix had done
her B.Sc. from Govt. College, Reckong Peo and accused
Anil had taught her botany. The complainant after
receiving SMS from the prosecutrix, his daughter,
suspected that accused Anil was involved in the incident.
He then had filed a complaint (Ext. PW-1/A) before
Station House Officer, Police Station, Reckong Peo
.
alleging that the accused were involved in the kidnapping
and abduction of the prosecutrix. FIR (Ext. PW- 9/A) was
registered. The accused had kidnapped/ abducted the
prosecutrix in taxi bearing No. HP-02A-0566 from
Reckong Peo at about 5 P.M. and had taken her towards
Tranda. They had then shifted the prosecutrix from the
aforesaid vehicle Bolero Jeep bearing No. HP-26A-0300
from Barakhamba Kainchi and had taken her to village
Chhotakhamba. On the intervening night of 7th and 8th
July, 2011 at Chhotakhamba Anil Kumar had subjected
the prosecutrix to forcible sexual intercourse in the
house of one Dilu Ram. On 8-7-2011, accused Anil
Kumar had shifted the prosecutrix to cattle shed in the
area of Chhotakhamba. The next day on 9-7-2011, the
accused persons had brought the prosecutrix to Police
Station, Reckong Peo in vehicle No. HP-26A-0300. On
that day, ASI Swaroop Ram Investigating had
recorded the statement of the prosecutrix who had
alleged that she had been forcibly taken to
Chhotakhamba and had been subjected to forcible
sexual intercourse by accused Anil Kumar. The
prosecutrix had handed over her clothes i.e. Salwar (Ext.
P-4), shirt (Ext. P-5) and underwear (Ext. P-6) to the
police which after being packed and sealed in a parcel
(Ext.. P-3) were seized vide memo Ext. PW-1/G. An
application was moved for conducting medical
examination of the prosecutrix. PW-7 Dr. Anjana Verma
conducted her medical examination and found that the
possibility of sexual intercourse with the prosecutrix
could not be ruled out. She took samples of pubic hair,
nail clippings and vaginal smear. They were handed over
to LC Durga Devi who was accompanying the
prosecutrix. Dr. Anjana Verma issued MLC (Ext. PW-
.
7/B). Accused Anil Kumar was arrested. An application
was filed for conducting his medical examination. PW-8
Dr. Lokesh Verma conducted his medical examination
and found that he was capable of performing sexual
intercourse. He issued MLC Ext. PW-8/B. He preserved
semen and blood samples and pubic hair. These were
handed over to the police. Further case of the
prosecution is that Bolero Jeep bearing No. HP-26A-0300
along with its documents was seized vide memo (Ext.
PW-10/A). It is also the case of the prosecution that the
prosecutrix had also identified the place of abduction at
Reckong Peo. Spot map (Ext. PW-11/A) was prepared in
this regard. She had also led the police to Chhotakhamba
where she identified the house of Dilu Ram and
identification memo (Ext. PW-1/B) and spot map (Ext.
PW-11/B) were prepared. From there, bed sheet (Ext. P-
3) was also recovered which after being packed and
sealed in a parcel (Ext. P-1) was seized vide (Ext. PW-
1/C). Articles taken in possession by the doctors were
sent to State FSL, Junga through C.Manjit Singh. Result
of analysis (Ext. PX-1) was issued in which it was shown
that blood and semen were not found on the vaginal
smear slides, pubic hair, nails, Salwar, shirt and
underwear of the prosecutrix, bed sheet, lower and pubic
hair of accused Anil Kumar. As per DNA report (Ext. PX-
2), since there was no blood and semen in the aforesaid
exhibits, their DNA examination was not conducted.
Abstract of Parivar register (Ext. PW-6XA) and attested
copy of matriculation certificate (Ext. PW-11/F) of the
prosecutrix were also taken into possession which
showed that the prosecutrix was born on 28-1- 1986.
Statements of witnesses were recorded as per their
versions and after completion of investigation, challan
.
was prepared and it was presented before the court of Ld.
Chief Judicial Magistrate, Kinnaur at Reckong Peo, who
committed it for trial to this Court.
Accused Anil Kumar was charged with the
commission of offence punishable under Section 366
read with Section 34 and 376 of the Indian Penal Code.
Accused Rakesh Kumar and Arvind Kumar were charged
with the commission of offence punishable under
Sections 366 read with Section 34 of the Indian Penal
Code. Accused persons pleaded not guilty and claimed
trial.
The prosecution examined 11 witnesses to prove
it's case. PW-1 is Chhetan Medup, complainant and
father of the prosecutrix. PW-2 is the prosecutrix, PW-3
is Bhupinder, the driver of taxi who has not supported
the prosecution and thereby declared hostile. PW-4 HC
Vidya Sagar remained posted as MHC with whom the
case property had been deposited. PW-5 Mohinder Singh
(retired HHC) had taken the articles for their analysis to
State FSL, Junga. PW-6 Laxmi Devi. Panchayat Sahayak
had produced the extract of Parivar register of the
complainant, PW-7 Dr. Anjana Verma had medically
examined the prosecutrix, while PW-8 Dr. Lokesh Verma
had medically examined accused Anil Kumar. PW-9 SI
Chet Ram had registered the FIR. PW-10 HC Ramesh
Kumar had taken into possession Bolero Camper along
with its documents. PW-11 ASI Swaroop Ram had
conducted the investigation.
Accused persons recorded under Section 313 of
the Code of Criminal Procedure admitted that the
prosecutrix was working as Senior Research Fellow in
Horticulture Research Centre at Reckong Peo. They also
.
admitted that she was residing with her father Chhetan
Medup (complainant). Accused Anil Kumar also admitted
that prosecutrix had done her B.Sc. from Govt. College,
Reckong Peo and he had taught her botany. It was also
admitted by the accused persons that Bolero Jeep along
with its documents had been seized by the police. They
denied the rest of the prosecution case. It was stated by
the accused persons that the witnesses have deposed
falsely. Accused Anil Kumar claimed that the witnesses
have deposed at the instance of the mother of the
prosecutrix who was inimical to him. He also stated that
he had not committed any offence. The prosecutrix had
herself eloped with him and had filed the present case at
the instance of her mother. Accused Rakesh Kumar and
Arvind Kumar also stated that the prosecutrix had
accompanied them of her own accord. All the accused
persons claimed themselves to be innocent. In defence,
the accused persons examined Anand Kumar as DW-1."
3 It has been vehemently argued by Mr. I.N. Mehta,
learned Senior Additional Advocate General assisted by Ms.
Sharmila Patial, learned Additional Advocate General appearing
for the State and Mr. Ramesh Sharma, Advocate, appearing for
the prosecutrix, that the findings recorded by the learned
court below are totally perverse and deserve to be set aside and
the accused persons deserve to be convicted and punished.
4 On the other hand, Mr. Bimal Gupta, learned Senior
Advocate assisted by Mr. Varun Thakur, Advocate, would argue
that the learned trial court has painstakingly discussed each
.
and every aspect of the case, more particularly, oral as well as
documentary evidence that has come on record and it is only
thereafter that the accused persons have been acquitted and in
such circumstances, no interference is warranted.
5 We have heard the learned counsel for the parties
and have also gone through the records of the case carefully.
6 In order to appreciate rival contentions of the
parties, one would require to go through the testimony of the
witnesses examined by the prosecution, more particularly,
prosecutrix, her father, the driver and doctor, who examined the
prosecutrix and the Investigating Officer.
7 Chhetan Medup, father of the prosecutrix is
complainant in this case. He appeared as PW1 and stated that
in the year 2011, he was posted at Reckong Peo. On 7.7.2011
at 6.30 P.M. when he reached his residential quarter, he saw
that his daughter had not returned back from office and her
phone was switched off. He repeatedly tried to contact her over
the phone but the same was found to be switched off. He
thereafter went to her office, but the gates were locked. At
about 7.30 P.M., he received a message from his daughter that
she had been taken away by accused Anil Kumar.
8 His testimony nowhere suggests that the prosecutrix
.
had left home involuntarily and only suggests that she had been
taken away by accused Anil Kumar, but then this message has
not at all been proved on record.
9 Now, adverting to the testimony of the prosecutrix, it
would be noticed that she stated that after 5.00 P.M. while she
was going back to her residence from office and had reached
near C.J.M. residence, accused Anil Kumar met her. He wanted
to talk to her, but she refused and tried to give him a push.
Immediately, a vehicle came and it was stopped near her. She
was given a push towards that vehicle by accused Anil Kumar.
Accused Rakesh Kumar was sitting in the vehicle. He shut her
mouth with his hand. There was another person sitting in the
front seat with driver, whereas accused Rakesh Kumar was
sitting towards right side and Anil Kumar was sitting on left
side of the prosecutrix. She tried to cry, but her mouth was
shut. She was taken towards Taranda side and when the vehicle
reached probably near Taranda, the person with long hair got
down from the said vehicle. Another vehicle came at that place,
on which A.K. Brothers was written and was being driven by
accused Arvind Kumar, brother of accused Anil Kumar. She was
shifted to that vehicle and taken to a village, but later on, she
came to know that it was Chhota Khamba. When she was put
into vehicle by the accused Anil Kumar at Reckong, her cell
.
phone was snatched by accused Rakesh Kumar. She was kept
in village Chhotakhamba and later on, she came to know that it
was house of Dilu Ram.
10 Thus, as per testimony of the prosecutrix she was
kidnapped and forcibly taken in the vehicle from Reckong Peo
towards Taranda and from there in another vehicle to village
Chhotakhamba in the house of Dilu Ram.
11 However, her version is not supported by the driver
of the vehicle No. HP02A-0566, PW3 Bhupinder, who had taken
the prosecutrix as also the accused persons from Reckong Peo
to Tranda. He stated that on the relevant day, accused Anil
Kumar had hired his vehicle for Bada Khamba for a sum of
Rs.3500/-. He had gone along with the vehicle near gas agency
at Reckong Peo at 5 PM. There accused Anil along with one girl
had boarded the vehicle. Accused Anil Kumar had also informed
his brother that they were coming. After 5-10 minutes accused
Rakesh Kumar had also boarded the vehicle. At Tapri, the
vehicle was stopped for taking water and at Bhabanagar it was
stopped for purchasing Namkeen. When they reached Taranda,
he found that the road was 'kucha' and thereafter, he declined
to go to Bada Khamba.
12 At this stage, the witness was declared hostile and
.
permitted to be cross-examined. In his cross-examination
conducted by the learned Public Prosecutor, he categorically
denied that the prosecutrix was forced to board the vehicle by
catching her from her arm. He also categorically denied that at
Bada Khamba Kainchi, vehicle bearing No. HP-26A-0300 was
already standing and there, accused Anil Kumar and Rakesh
Kumar had forcibly made the prosecutrix to sit in that vehicle.
He denied his previous statement recorded by the police.
13 In his cross-examination conducted by the learned
defence counsel, he specifically stated that it was firstly
accused Anil Kumar, who had boarded his vehicle and
thereafter the prosecutrix. As per this witness, accused Anil
Kumar and the prosecutrix were standing together on the road
and no one had forced the prosecutrix to sit in the vehicle. The
witness has specifically stated that the incident was of July
when days were hot and since there was no A.C. in the vehicle,
therefore, the windows of the vehicle were open. He further
stated that at Tapri, accused Rakesh Kumar had taken water at
Pappu Dhaba and prior to reaching Bhabanagar, the
prosecutrix had stated she was not feeling well and wanted to
eat something. He admitted that he had stopped the vehicle at
Bhabanagar bazaar and accused Anil Kumar had fetched chips
and cold drinks. He had taken 5-7 minutes to purchase the
.
articles. At that time, the prosecutrix was alone on the back
seat. He had not gone beyond Taranda bifurcation as the road
ahead was 'Kucha' and there was possibility of damage to his
vehicle. He further stated that accused Anil Kumar had made a
call for another vehicle. At the bifurcation point, they had
stopped for about half an hour and during this period accused
Anil Kumar, Rakesh Kumar and the prosecutrix were frequently
moving out of the vehicle. When the other vehicle came, accused
Rakesh Kumar sat in it. Accused Anil Kumar had paid him Rs.
2400/- as fare from Reckong Peo to Taranda Kainchi and the
prosecutrix by disembarking from his vehicle had sat on the
second seat of the another vehicle of her own. No one had forced
her to sit in that vehicle. He was never told by the prosecutrix
that she was forcibly being taken. He has specifically stated that
had it so been disclosed by her, he would not have allowed the
accused persons to sit in his vehicle.
14 Here, it shall be necessary to refer to the testimony
of the Investigating Officer ASI Swaroop Ram, who appeared as
PW11. In his cross-examination, he categorically stated that it
was disclosed by PW3 Bhupinder Singh that the prosecutrix
had voluntarily accompanied the accused in his vehicle from
Reckong Peo. He also admitted that the prosecutrix had never
opposed to the said act till the bifurcation at Bada Khamba. He
.
further stated that it had also come in the investigation that as
per the prosecutrix, she had voluntarily accompanied the
accused from Reckong Peo and had never raised a protest till
the bifurcation at Bada Khamba.
15 Therefore, in this background, the version put-forth
by the prosecutrix that she was forcibly made to sit in the
vehicle of Bhupinder (PW-3) at Reckong Peo and thereafter from
the bifurcation at Bada Khamba was forcibly taken in Bolero
Camper to the house of Dilu Ram in village Chhotakhamba, has
not been supported either by PW3 Bhupinder or PW11
Investigating Officer.
16 The prosecutrix has further stated that her mouth
was gagged by accused Rakesh Kumar. She claimed that she
had tried to cry but her mouth was shut. However, such
testimony is belied from the testimony of PW-7 Dr. Anjana
Verma, who had medically examined the prosecutrix and found
no injuries on the mouth and lips of the prosecutrix.
17 Even if version of the prosecutrix is accepted for a
moment, it needs to be noticed that the windows of the car, as
stated by PW3, were open because there was no A.C. in the car
and the day was hot, then any passerby could have noticed the
accused Rakesh Kumar gagging the mouth of the prosecutrix,
more particularly, when the distance from Reckong Peo to
.
Taranda bifurcation was not short and as per the investigation,
there were a number of stations on the mid way - small and big
- which took about 2½ hours to traverse, as per admitted case
of the prosecution.
18 In State of H.P. vs. Krishan Lal, 2014(3)Shim.LC
1308, where the allegations of the prosecutrix was that the
accused had gagged the mouth of the prosecutrix and had
taken her about 150 feet towards the jungle, but no injuries
were found on the mouth and lips, a learned Division Bench of
this Court held her statement to be not confidence inspiring.
19 The prosecutrix in her cross-examination stated that
she had orally told the police that accused Rakesh Kumar had
given the cell phone back to her when accused Anil Kumar was
outside. But, then she did not make any effort to make a phone
call to her father informing him that she had been kidnapped or
abducted by the accused persons. Rather, she had only sent a
message to her father that accused Anil Kumar was taking away
her. Had the prosecutrix been forcibly taken away, she would
have sent specific message to her father.
20 Here, it needs to be noticed that the prosecutrix was
well-read and well-informed as she had done M.Sc. and was
working as Senior Research Fellow at Agriculture Research
.
Centre, Reckong Peo. As rightly concluded by the learned court
below, had the prosecutrix been kidnapped or abducted by
the accused persons, she ought to have sent message to her
father regarding her being kidnapped and abducted as the case
may be.
21 In addition to aforesaid, it is specific case of the
prosecutrix that she had talked to PW3 Bhupinder at the
bifurcation point when she was being shifted to another vehicle
and had requested him to take her back, but the same has
been categorically denied by PW3, who has specifically stated
in his cross-examination that no one had forced the prosecutrix
to sit in his vehicle or had it been so, he would have not allowed
the accused to sit in his vehicle as has also been stated by
PW11 in his cross-examination as under:-
"As per my investigation, the prosecutrix voluntarily
accompanied the accused from Reckong Peo and she did
not object till Bara Khamba bifurcation."
22 Now, adverting to the testimony of the prosecutrix
that she was raped by accused Anil Kumar, it needs to be
noticed that the prosecutrix was major at the relevant time and
in her examination-in-chief stated that she was taken to the
house of Dilu Ram in the vehicle, on which A.K. Brothers was
written and near that vehicle, mother of the accused Anil
.
Kumar was standing and accused Anil told her that he had
brought her "daughter-in-law". As per the prosecutrix, she told
mother of accused Anil Kumar that she had been forcibly taken
by him. Then his mother told her that she should be taken back
to Reckong Peo, but some persons started telling that it was
quite dark and she would be returned back safely on next day.
She further deposed that there were many boys present and
probably they were related to the accused Anil Kumar. One lady
was also there. But all of them left that room one by one. When
the prosecutrix and accused Anil Kumar were alone in the
room, the room was bolted by accused Anil Kumar and
thereafter, he raped her. On the next day, she was shifted to
the cattle shed suspecting that the police might come in search
of the accused. There accused Anil Kumar remained with her
throughout the day. On the evening of 8.7.2011, she was taken
to Bada Khamba by the accused in the evening and on
9.7.2011, she was brought back to Police Station, Reckong Peo.
23 In her cross-examination, she stated that on
8.7.2011, there were ladies in village Chhota Khamba and they
were coming turn by turn and leaving one after another.
Probably, they were 8-9 in number. She had told those ladies
that she was forcibly brought by accused Anil Kumar and he
had raped her on the night of 7.7.2011, however then she
.
changed her stand and stated that "I could not tell this fact to
those ladies that accused Anil Kumar had raped me." It has also
come in her further cross-examination that she had taken very
little food in the house of Dilu Ram on 7.7.2011, but had
interacted with ladies on 8.7.2011 and taken food with them.
She further deposed that she reached Bada Khamba on
8.7.2011 in that house, where mother and brother of accused
Anil Kumar and 6-7 ladies were present. She had told his
mother that she had forcibly been brought and later, she
voluntarily stated that his mother had assured to send her
back.
24 Thus, what is evident from the testimony of the
prosecutrix is that she was a consenting party because she
had not made any complaint to any of the ladies or other
persons that were present on the aforesaid two occasions.
25 It is here that the requirement of the testimony of
the victim being credit worthy to be termed as sterling witness
whose version can be accepted without corroboration steps in. It
is here that the version of the victim on the core spectrum of the
crime should remain intact while all other attendant materials,
namely, oral, documentary and material objects should match
the said version in material particulars in order to enable the
Court trying the offence to rely on the core version to sieve the
.
other supporting materials for holding the offender guilty of the
charge alleged.
26 In this background, it shall be fruitful to refer to the
following observations of the Hon'ble Supreme Court in Rai
Sandeep @ Deepu vs. State (NCT of Delhi) (2012) 8 SCC 21:-
15. Keeping the above basic features of the offence alleged
against the appellants in mind, when we make reference
to the evidence of the so called 'sterling witness' of the
prosecution, namely, the prosecutrix, according to her
version in the chief examination when the persons who
knocked at the door, were enquired they claimed that they
were from the crime branch which was not mentioned in
the FIR. She further deposed that they made a statement
that they had come there to commit theft and that they
snatched the chain which she was wearing and also the
watch from Jitender (PW-11). While in the complaint, the
accused alleged to have stealthily taken the gold chain
and wrist watch which were lying near the T.V. It was
further alleged that the appellant in Criminal Appeal
No.2486 of 2009 was having a knife in his hand which
statement was not found in the complaint. After referring
to the alleged forcible intercourse by both the appellants
she stated that she cleaned herself with the red colour
socks which was taken into possession under Exhibit PW-
4/B in the hospital, whereas, Exhibit PW- 4/B states that
the recovery was at the place of occurrence. The police
stated to have apprehended the appellants at the instance
of Jitender (PW-11) who knew the appellant in Criminal
Appeal No.2486 of 2009 even prior to the incident, that
Jitender (PW-11) also revealed the name of the said
accused to her and that, therefore, she was able to name
.
him in her complaint. When the seized watch was shown
to her in the Court, the brand name of which was OMEX,
she stated that the said watch was not worn by her
nephew Jitender (PW-11) as it was stated to be 'TITAN'
and the chain was a gold chain having no pendant. She
made it clear that that was not the chain which she was
wearing and that it did not belong to her and that the
watch found in the same parcel which was a women's
watch was not the one which was worn by Jitender (PW-
11).
15. In our considered opinion, the 'sterling witness' should
be of a very high quality and caliber whose version
should, therefore, be unassailable. The Court considering
the version of such witness should be in a position to
accept it for its face value without any hesitation. To test
the quality of such a witness, the status of the witness
would be immaterial and what would be relevant is the
truthfulness of the statement made by such a witness.
What would be more relevant would be the consistency of
the statement right from the starting point till the end,
namely, at the time when the witness makes the initial
statement and ultimately before the Court. It should be
natural and consistent with the case of the prosecution
qua the accused. There should not be any prevarication in
the version of such a witness. The witness should be in a
position to withstand the cross- examination of any length
and howsoever strenuous it may be and under no
circumstance should give room for any doubt as to the
factum of the occurrence, the persons involved, as well as,
the sequence of it. Such a version should have co-relation
with each and everyone of other supporting material such
as the recoveries made, the weapons used, the manner of
offence committed, the scientific evidence and the expert
.
opinion. The said version should consistently match with
the version of every other witness. It can even be stated
that it should be akin to the test applied in the case of
circumstantial evidence where there should not be any
missing link in the chain of circumstances to hold the
accused guilty of the offence alleged against him. Only if
the version of such a witness qualifies the above test as
well as all other similar such tests to be applied, it can be
held that such a witness can be called as a 'sterling
witness' whose version can be accepted by the Court
without any corroboration and based on which the guilty
can be punished. To be more precise, the version of the
said witness on the core spectrum of the crime should
remain intact while all other attendant materials, namely,
oral, documentary and material objects should match the
said version in material particulars in order to enable the
Court trying the offence to rely on the core version to sieve
the other supporting materials for holding the offender
guilty of the charge alleged.
27 The credit worthiness of the testimony of the victim
has already been discussed in the earlier part of the judgment.
The victim when put to test as laid down in Rai Sandeep
Deepu case (supra), fails the test of being sterling witness of a
high quality and caliber whose version should therefore be
unassailable and such quality should be in a position to accept
it on face value without any hesitation.
28 The statement of the prosecutrix otherwise has not
.
been corroborated from and by the other evidence or other
material on record.
29 There is no doubt that rape causes great distress
and humiliation to the victim of rape but at the same time false
allegation of committing rape also causes humiliation and
damage to the accused. An accused has also rights which are to
be protected and the possibility of false implication has to be
ruled out.
30 Here it shall be apt to refer to the judgment of the
Hon'ble Supreme Court in Radhu vs. State of Madhya Pradesh
(2007) 12 SCC 57, wherein it was observed as under:-
"The courts should, at the same time, bear in mind that
false charges of rape are not uncommon. There have also
been rare instances where a person has persuaded a
gullible or obedient daughter to make a false charge of a
rape either to take revenge or extort money or to get rid of
financial liability. Whether there was rape or not would
depend ultimately on the facts and circumstances of each
case."
31 In Raju v. State of Madhya Pradesh (2008) 15
SCC 133, the Hon'ble Supreme Court has held that testimony
of the victim of a rape cannot be presumed to be a gospel truth
and observed that false allegations of rape can cause equal
distress, humiliation and damage to the accused as well, such
sentiments have been recorded in para 11 of the judgment,
which reads as under:-
.
"11. It cannot be lost sight of that rape causes the greatest
distress and humiliation to the victim but at the same time
a false allegation of rape can cause equal distress,
humiliation and damage to the accused as well. The
accused must also be protected against the possibility of
false implication, particularly where a large number of
accused are involved. It must, further, be borne in mind
that the broad principle is that an injured witness was
present at the time when the incident happened and that
ordinarily such a witness would not tell a lie as to the
actual assailants, but there is no presumption or any
basis for assuming that the statement of such a witness is
always correct or without any embellishment or
exaggeration."
32 In Abbas Ahmed Choudhary Vs. State of Assam :
(2010) 12 SCC 115, the Hon'ble Supreme Court has held that:
"We are conscious of the fact that in a matter of rape, the
statement of the prosecutrix must be given primary
consideration, but, at the same time, the broad principle that
the prosecution has to prove its case beyond reasonable doubt
applies equally to a case of rape and there can be no
presumption that a prosecutrix would always tell the entire
story truthfully."
33 Bearing in mind the aforesaid exposition of law, the
testimony of victim has to be consistent and natural in line with
the case of the prosecution and free from infirmities which
.
inspire confidence in the Court. It cannot be presumed that the
statement of the victim is always true or without any
embellishment.
34 Reverting back to the facts of the present case, PW7
Dr. Anjana Verma, who had medically examined the
prosecutrix, had not found any injury on the private parts of
the prosecutrix. Though, she had found multiple abrasions,
but the prosecutrix nowhere claimed the abrasions to have
been inflicted either by the accused persons at the time when
she was abducted or kidnapped or at the time when the
accused Anil Kumar is alleged to have raped her.
35 Here, it shall also be relevant to make note of the
testimony of PW11 ASI Swaroop Ram, who in his cross-
examination, stated that he had not observed any injuries on
the person of the prosecutrix and that of the accused Anil
Kumar when they had come to the police station on 9.7.2011.
He has categorically stated that the prosecutrix had not
disclosed him regarding having suffered any injury.
36 As observed above, nowhere the prosecutrix in her
testimony made a whisper that she had sustained injuries on
her person when she resisted the act of accused Anil Kumar.
.
37 Here, it also needs to be noticed that Chemical
Examiner did not find any semen or blood on the vaginal smear
slides, pubic hair, nails, clothes of the prosecutrix as well as
wearing apparels of the accused Anil Kumar.
38 Lastly and more importantly, it is case of the
prosecution that all the accused persons had brought the
prosecutrix to Police Station, Reckong Peo on 9.7.2011. This
fact was also stated not only by the prosecutrix, but even by
PW11 Investigating Officer.
39 Had the prosecutrix been really kidnapped or
abducted or raped, accused persons would not have brought
the prosecutrix along with them to Police Station given the fact
that it is case of the accused persons that there was a
custom in Kinnaur that if a boy and girl agree for marriage, they
elope and later on after performing bottle Pooja they solemnize
the marriage. This was so admitted by the prosecutrix in her
cross-examination.
40 We may also note that even though the prosecutrix
denied that she was interested to marry accused Anil Kumar
and had voluntarily accompanied him, but DW1 Anand Kumar,
examined in defence by the accused, has specifically stated
that on 8.7.2011, father of the prosecutrix had called him to
come to Reckong Peo for compromise. He had also asked him to
.
bring the prosecutrix as well as the accused. It was also told to
him by the complainant that he was willing to marry the
prosecutrix with the accused as per the local custom. He then
had disclosed this to the prosecutrix, but she was reluctant to
go to Reckong Peo. On his persuasion, he along with the
prosecutrix and accused Anil Kumar and Arvind Kumar had
gone to Police Station, Reckong Peo, but there the complainant
had assaulted accused Anil Kumar.
41 The testimony of DW1 inspires confidence as it finds
due support and corroboration from PW8 Dr. Lokesh Verma,
who, while medically examining accused Anil Kumar, had found
multiple abrasions of different dimensions over the face, neck,
elbow and knee with scab formation reddish brown in colour on
the person of accused Anil Kumar.
42 Evidently, it is not the case of the prosecutrix that
she had inflicted the aforesaid injuries on person of the accused
Anil Kumar at the time of resisting the alleged rape, thus,
defence version, as emerges from the testimony of DW1 Anand
Kumar, not only appears to be probable, but also casts a
serious dent on the prosecution story.
43 In the given facts and circumstances, we find that
the view taken by the learned trial court is possible one and we
see no reason to take a different view.
.
44 In view of the aforesaid discussions, we find no
merit in both these appeals and the same are accordingly
dismissed so also the pending application(s), if any.
(Tarlok Singh Chauhan)
Judge
(Satyen Vaidya)
20.11.2023 Judge
(pankaj)
