High Court of H.P. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .

Cr. Appeal No. 460 of 2017.

Decided on: 24.7.2019.

Jatinder Kumar …...Appellant.

Versus

State of H.P. ……Respondent.

Coram

The Hon’ble Mr. Justice Dharam Chand Chaudhary , Judge.

The Hon’ble Ms. Justice Jyotsna Rewal Dua, Judge.

Whether approved for reporting?

1

Yes.

For the appellant : Mr. Dinesh K. Thakur, Advocate.

For the respondent : Mr. Narender Guleria, Addl. Advocate

General.

Dharam Chand Chaudhary , J, (Oral).

Appellant Jatinder Kumar (hereinafter referred to as the

accused) is convict. He has been convicted for the commission of

offence punishable under Section 376 IPC and has been sentenced to

undergo simple imprisonment for a period of 10 years and to pay a

sum of Rs. 20,000/- as fine.

2. He allegedly subjected none else but his mother 75 years

of age to sexual intercourse. As per the application Ext. PW-1/A

made by the prosecutrix to the police of Women Police Station

Dharamshala, District Kangra on 15.7.2015, at 9:00 AM, the accused

locked her in his own room. He opened her salwar forcibly and did

1

Whether the reporters of the local papers may be allowed to see the Judgment? yes.

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wrong act with her. When she raised alarm, the mason, namely,

Bahadur and a lady worker, namely, Rekha (PW-4) came there. They

made efforts to open the door from outside but of no avail. At that

very time, her daughter-in-law Chandresh Kumari (PW -10) (alleged

wife of the accused) came there. She asked the accused to open the

door. On this, he opened the same. Her grandson Rahul (PW -5)

called her daughter Sangeeta (PW-9) over telephone to their house.

Sangeeta (PW-9) reached there and after that the prosecutrix

accompanied by Sangeeta (PW -9) and daughter-in-law Chandresh

Kumari (PW-10) went to Women Police Station Dharamshala. On the

basis of the statement Ext. PW-1/A, FIR Ext. PW-15/A was recorded.

The investigation was taken in hand by PW-15 S.I. Kiran Bala, the

then Station House Officer, Women Police Station Dharamshala.

3. The victim PW -1 was taken to Zonal Hospital,

Dharamshala. PW-15 S.I. Kiran Bala made application Ext. PW-15/B

for medical examination of PW-1. She was examined by Dr. Jyoti

Gupta (PW-11) and issued MLC Ext. PW-11/A. PW-1 also handed

over two parcels addressed to RFSL, Dharamshala. PW-15 S.I. Kiran

Bala had deposited the same with PW-6 HC Satya Devi, Women Police

Station Dharamshala. The inspection of the place of occurrence was

conducted. Mattress covers (Ext. P -2 and P-3) were taken into

possession from the room where the prosecutrix was assaulted

sexually vide recovery memo Ext. PW-1/B in the presence of PW-8

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Jawahar Lal and PW -2 LHC Anjana. Spot map of the place of

occurrence Ext. PW-15/C was prepared. The proceedings were

photographed vide DVD Ext. B-1.

4. On finding evidence against the accused, he was

arrested. The application Ext. PW-15/D was made for his medical

examination. He was medically examined by PW -12 Dr. Satish

Kanwar. MLC Ext. PW-12/A was issued by the Doctor and supplied

to the I.O.

5. On 16.7.2015, the statement Ext. PW -16/C of the

prosecutrix was got recorded under Section 164 Cr.P.C. in the Court

of PW-16 Ms. Shikha Lakhanpal, JMIC, Court No. 2 Dharamshala .

On 17.7.2015, the alleged victim of the occurrence had produced her

shirt (Ext. P-5), which was taken into possession vide recovery memo

Ext. PW-1/C in the presence of Sangeeta (PW-9) and lady Constable

Ramna Devi (PW-3). On the identification Ext. PW-8/A of the spot by

the accused, the spot map Ext. PW -15/E was prepared. The

photographs Ext. C-1 to C-3 were also clicked allegedly with official

camera. The statement Ext. PW-15/F of Rekha (PW-4) was allegedly

recorded as per her version. On application Ext. PW-14/A submitted

to PW-14 Savita Devi, Secretary Gram Panahayat Sakoh , birth

certificate of the victim Ext. PW-14/B and that of the accused Ext.

PW-14/C and abstract of the Family Register Ext. PW -14/D were

obtained. The parcel containing clothes of the victim were sent to

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RFSL, Dharamshala for analysis. The result Ext. PW -13/A was

procured. The final opinion of the doctor Ext. PW-11/B was also

obtained.

6. On completion of the investigation, PW-15 S.I. Kiran Bala

had prepared the final report and presented in the Court.

7. Learned Trial Judge, on appreciation of the report filed by

the police and the documents annexed thereto and on prima-facie

finding a case under Section 376 IPC made out against the accused

has framed the charge against him accordingly. He, however, pleaded

not guilty to the charge. The prosecution, therefore, examined 16

witnesses in all in support of its case against the accused.

8. The material prosecution witnesses, as noticed

hereinabove, are the victim/complainant herself (PW -1), labourer

Rekha (PW-4), Rahul (PW-5) grandson of the prosecutrix, PW-8

Jawahar Lal her son-in-law, Sangeeta (PW-9) her daughter and

daughter-in-law Chandresh Kumari (PW -10). The remaining

prosecution witnesses PW-2 LHC Anjana is a witness to the recovery

of Mattress covers (Ext. P-2 and P-3) whereas PW-3 LC Ramna Devi is

a witness to the recovery of Shirt (Ext. P-5) of the prosecutrix. PW-6

HC Satya Devi is MHC who has been examined to prove the

prosecution case qua deposit of the case property with her in the

malkhana. PW-7 HHC Karan Singh had taken the case property to

RFSL, Dharamshala vide RC No. 24/21. He deposited the sam e in

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the laboratory and handed over the receipt on RC to PW-6 MHC Satya

Devi. PW-11 Dr. Jyoti Gupta has medically examined the prosecutrix

whereas PW-12 Dr. Satish Kanwar has examined the accused. PW-13

Dr. Surinder Kumar Pal is Asstt. Director Biology and Serology, RFSL

Dharamshala. He has proved the report Ext. PW -13/A. PW-14

Savita Devi, is the Secretary Gram Panahayat Sakoh. She issued the

date of birth certificate Ext. PW-14/B and Ext. PW-14/C and also the

abstract of pariwar register Ext. PW-14/D. PW-15 S.I. Kiran Bala is

the I.O. in this case. She has investigated the case in the manner as

discussed hereinabove. PW-16 Ms. Shikha Lakhanpal, JMIC, Court

No. 2 Dharamshala has recorded the statement Ext. PW -16/C of the

prosecutrix under Section 164 Cr.P.C.

9. The accused in his statement recorded under Section 313

Cr.P.C. has denied all the incriminating circumstances appearing

against him in the prosecution evidence either being wrong or for

want of knowledge. He, however, opted for not produc ing any

evidence in his defence. Learned trial Judge, on appreciation of the

evidence and hearing learned Public Prosecutor as well as learned

defence counsel concluded that the prosecution has proved its case

against the accused beyond all reasonable doubt. He has, therefore,

been convicted and sentenced as pointed out at the very outset.

10. The appellant-accused has assailed the impugned

judgment on the grounds inter alia that the same is against law and

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also facts of the case. Learned trial Judge has misread and mis-

appreciated the evidence produced by the prosecution, therefore, a

grave injustice has been caused to him on account of such an

approach on the part of learned trial Court. The findings allegedly

have been recorded on assumptions, pres umptions without there

being cogent and convincing evidence available on record in support

of it. The testimony of the witnesses does not inspire any confidence.

The independent witnesses otherwise had also not supported the

prosecution case and rather tu rned hostile. The findings of

conviction as such are based on hypothesis, conjectures and

surmises. The medical evidence is not suggestive of that the

prosecutrix was subjected to sexual intercourse. The impugned

judgment, therefore, has been sought to be quashed and set aside.

11. Sh. Dinesh K. Thakur, Advocate, learned counsel

representing the appellant-convict has vehemently argued that the

present though is a case of no evidence, however, irrespective of it,

learned trial Court has recorded the findings of conviction against the

accused. According to learned counsel, the present is a case of non-

application of mind by learned trial Judge. The entire approach of

learned Court below is stated to be whimsical, capricious and

farfetched. The contradictions and inconsistencies/improvements in

prosecution evidence which according to learned counsel goes to the

very root of the prosecution case have been erroneously ignored. The

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prosecutrix herself has contradicted her version in the application

Ext. PW-1/A and while in the witness-box as PW-1 on all material

aspects. Rekha (PW-4) and Rahul (PW-5), both have turned hostile

and not supported the prosecution case at all. PW -10 Chandresh

Kumari, daughter-in-law (wife of accused) is highly doubtful because

as per her own version, she never solemnized marriage with the

accused and rather she is the wife of someone else. Therefore,

according to the learned counsel, the findings of conviction in this

case could have not been recorded in any manner, whatsoever.

12. Mr. Narender Guleria, learned Addl. Advocate General

though has repelled the arguments addressed on behalf of the

accused and also argued that own statement of the prosecutrix

supported by Chandresh Kumari (PW-10) and other material available

on record is sufficient to bring the guilt home to the accused,

however, failed to satisfy the conduct of the prosecutrix who herself

contradicted her statement Ext. PW-1/A on all material aspects and

that of Rekha (PW-4) and Rahul (PW-5), who turned hostile to the

prosecution case. Learned Addl. Advocate General has also failed to

satisfy us that the present is not a case of two possible views.

13. It is in this backdrop and also the evidence available on

record, we have to ascertain the truth and for that reappraisal of the

prosecution evidence is required.

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14. The very first version of the prosecution case find s

mention in the application Ext. PW-1/A made by the prosecutrix to

the police of Women Police Station, Dharamshala. Though, she did

not disclose the date, however, it is 15.7.2015 mentioned in Ext. PW-

1/A itself recorded on the day of occurrence itself. According to her,

at 9:00 AM, the accused took her inside the room, bolted the same

from inside and opened her salwar. Thereafter, he subjected her to

sexual intercourse. She raised alarm. The mason and labourer,

namely Bahadur and Rekha (PW -4) working there had come and tried

to got the door opened, however, the accused did not open the door.

At that very time, her daughter-in-law Chandresh Kumari (PW-10)

came there. She asked the accused to open the door. He opened the

door. Her grandson Rahul (PW -5) informed her daughter Sangeeta

(PW-9) over telephone in the house of her in-laws. Sangeeta (PW-9)

came there and she accompanied by her as well as her daughter-in-

law Chandresh Kumari (PW -10) visited the Police Station. On the

application Ext. PW-1/A, FIR Ext. PW-15/A was recorded under

Sections 342 and 376 IPC against the accused in Women Police

Station Dharamshala. The charge against hi m has, however, been

framed for the commission of the graver offence i.e. under Section 376

IPC.

15. Now, if coming to the prosecution evidence, the

prosecutrix while in the witness-box taking “U” turn from the

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statement Ext. PW-1/A, she made to the police has stated that at

9:00 AM, Bahadur, a mason and Rekha (PW -4), a labourer were

working in their house which was under construction. The accused

told his son Rahul (PW-5) to prepare Tea for them. Her daughter-in-

law Chandresh Kumari (PW -10) also went upstairs. The accused

came to her room. He told her for withdrawal of Rs. 10,000/-. He

bolted the room from inside. The labourer Rekha (PW -4) bolted the

same from outside. The accused thereafter subjected her to sexual

intercourse. She raised alarm. Chandresh Kumari (PW -10) came

there and asked the accused to open the door. The accused had

opened the door. It is Chandresh Kumari (PW-10) and Rekha (PW-4)

who informed her daughter Sangeeta and son -in-law PW-8 Jawahar

Lal about the incident through the cell phone of Rahul (PW-5). PW-8

Jawahar Lal and Sangeeta (PW-9) reached in her house at 2:00 PM.

She narrated the incident to her daughter Sangeeta (PW -9) and

thereafter went to Police Station accompanied by Chandresh Kumari

(PW-10) here daughter-in-law, Sangeeta (PW-9) and PW-8 Jawahar

Lal. She lodged the complaint Ext. PW-1/A.

16. The scrutiny of complaint Ext. PW-1/A and the above

stated statement of the complainant while in the witness-box as PW-1

amply demonstrate that she has contradicted the contents of the

complaint Ext. PW-1/A. She rather improved her earlier version

while in the witness-box. The statement that the accused asked his

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son Rahul (PW-5) to prepare Tea for the mason and labourer and her

daughter-in-law Chandresh Kumari (PW -10) went upstairs, the

accused entered in her room and asked for withdrawal of Rs.

10,000/-, nothing of the sort is there in the complaint Ext. PW-1/A.

Even as per the complaint, he took her inside his room and bolted the

same from inside, whereas, the labourer Rekha (PW-4) bolted the

same from outside. When she raised an alarm as per her version in

the complaint, Rekha (PW-4) and Bahadur the mason came there and

made efforts to get the door opened. She, however, has not stated so

while in the witness-box and rather it is her daughter-in-law

Chandresh Kumari (PW-10) who got opened the door of the room. As

per the complaint Ext. PW-1/A, Sangeeta (PW-9) was called by Rahul

(PW-5) by making call to her in-laws house through his cell phone,

however, while in the witness-box, it is Chandresh Kumari (PW-10)

and Rekha (PW-4) who have called Sangeeta (PW-9) by making call

through cell phone of Rahul (PW -5). Such

inconsistencies/improvements and contradictions in the evidence as

has come on record by way of own testimony of the victim and the

complaint Ext. PW-1/A she made to the police goes to the very root of

the prosecution case and it is difficult to believe that the alleged

sexual assault on the prosecutrix was made by the accused in the

manner as claimed by the prosecution.

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17. PW-4 Rekha Devi has not supported the prosecution case

though as per her version around 9:30 AM - 10:00 AM when she was

working along with Bahadur in the upper floor of the house, they

heard accused and his mother shouting. She, however, did nothing

on hearing their noise nor she went down to the ground floor. She

expressed her ignorance as to where the accused was at that time

and where was his mother. She also expressed her ignorance as to

what the accused did with his mother. She has been cross-examined

at length by learned Public Prosecutor, however, nothing material

lending support to the prosecution case could be elicited and rather

the suggestions that on 15.5.2015 (it should have been 15.7.2015)

while on work with Bahadur, the accused started quarrelling with his

mother and dragged her inside the room, bolted the same from inside

and that she heard the cries and screams of the mother of the

accused from inside the room, irrespective of denied being wrong lead

to the only conclusion that the accused and his mother quarreled

with each other. The suggestion that she and Bahadur tried to get

the door opened but the accused did not open the same has also been

denied being wrong. She has also denied that Chandresh Kumari

(PW-10) came there and tried to get the door opened and that it is

after sometime, the accused opened the door and his mother came

out while crying and terrified. She has also denied that the accused

had committed rape with her.

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18. When further cross-examined by learned defence counsel,

she tells us that the accused and his mother used to stay in the

house along with Rahul (PW-5) and the wife of the accused. In one

portion of the house Santosh Kumari, the sister of the accused was

also residing separately. The other portion of the house of the

accused was with his mother. It is admitted by this witness that the

accused, his mother and sisters used to fight oftenly. The money for

payment to them was being given by the prosecutrix to the accused

and it is he who used to make the payment thereof to them. After the

incident, it is the prosecutrix who had been making payment of their

wages to them. She expressed her inability to tell as to who had been

crying in the house of the accused.

19. Therefore, the close scrutiny of the evidence as has come

on record by way of testimony of Rekha (PW -4) lead to the only

conclusion that she has not supported the prosecution case qua the

prosecutrix was taken inside the room by the accused, bolted the

same from inside whereas by this witness from outside and thereafter

the accused subjected her to sexual intercourse. She has also not

supported the prosecution case qua she along with Bahadur tried to

get the door opened. Though, as per her testimony, the accused, his

mother and his sister used to fight with each other, obviously on

account of the property disputes as is the plea raised by the accused

in his defence.

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20. PW-5 Rahul Kumar has also not supported the

prosecution case. According to him, either on 15

th July or 14

th July,

2015, labourer Rekha (PW-4) asked him around 10:00 -10:30 AM to

make a call through his cell phone to his Bua (Aunt) Sangeeta (PW-9).

He dialed the number of his Bua and handed over the cell phone to

Rekha (PW-4). It is Rekha (PW-4), who talked over cell phone with his

Bua. Later on, she came to their house along with her husband

around 12:30 PM. His testimony in cross-examination that after the

construction work of house started, his father (accused), grandmother

(the prosecutrix) and Bua, Sangeeta (PW-9) used to quarrel with each

other and that his Bua Sangeeta (PW-9) had been asking for her

share in the property and that this alone was the cause of quarrel in

their house, again substantiate the plea the accused raised in his

defence. He, while admitting that Rekha (PW-4) told him to call his

Bua Sangeeta (PW-9) in view of the quarrel in the house and that he

went to the lintel to Rekha (PW-4) to speak to his Bua corroborate the

testimony of Rekha (PW-4) to the extent that Sangeeta (PW-9) was

called in view of accused and his mother quarreled with each other by

making call to her through cell phone of Rahul (PW -5).

Therefore, the statement of Rahul (PW-5) again a witness examined by

the prosecution is also not suggestive of that accused subjected the

prosecutrix to sexual intercourse. There remains only the sole

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testimony of the prosecutrix qua assaulting her sexually by the

accused which, as already discussed, hardly inspires any confidence.

21. The recovery of the mattress covers (Ext. P-2 and P-3)

though stand proved from the testimony of PW-8 Jawahar Lal, none

else but the son-in-law of the prosecutrix and PW-2 LHC Anjana,

however, they both are interested witnesses being closely related to

the prosecutrix and police official, respectively. Otherwise also, the

recovery thereof is of no consequence for the reason that semen or

blood could not be detected thereon. It is highly doubtful that the

prosecutrix was subjected to sexual intercourse on the mattress of

which the covers (Ext. P-2 and P-3) pertain.

22. The recovery of the shirt of the prosecutrix Ext. P-5 even

if is believed to be true, is again of no consequence for the reason that

blood and semen was not detected thereon also when chemically

analyzed in the FSL. The shirt, as per the version of PW-3 LC Ramna

Devi, was produced by the prosecutrix before the police in her

presence and in that of Sangeeta (PW-9) and taken into possession

vide recovery memo Ext. PW-1/C. PW-9 Sangeeta, however, belies

the prosecution case in this regard because she has admitted in her

cross-examination that this shirt was given to her by the prosecutrix

and it is she who handed over the same to the police in the Police

Station after two days. Therefore, it is doubtful that the shirt was

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produced before the police by the prosecutrix and taken into

possession in the manner as claimed by the prosecution.

23. If coming to the evidence as has come on record by way of

testimony of PW-8 Jawahar Lal, the son-in-law of the prosecutrix and

her daughter Sangeeta (PW-9) and if it is believed that they had come

to the house of the prosecutrix, it is doubtful that PW-8 Jawahar Lal

was apprized about the incident by Rekha (PW -4) over cell phone

because Rekha (PW-4) while in the witness-box has denied the

suggestion to this effect given to her by learned Public Prosecutor. No

doubt, according to her, Rahul (PW-5) connected the cell phone of his

Bua and handed it over to her to speak, however, she could not speak

anything beyond “Hello-Hello”. Therefore, the testimony of PW-8

Jawahar Lal that Rekha (PW-4) talked on his cell phone and told that

the accused had dragged the prosecutrix inside the room and bolted

the same from inside and also that the prosecutrix was crying is not

proved on record. Otherwise also, even if it is believed that any such

call was received by this witness over his cell phone, no information

was given to him that the accused has assaulted the prosec utrix

sexually and the alleged information given to him is confined only to

an assault/quarrel between the accused and the prosecutrix. Since

Sangeeta (PW-9) was apprized by PW -8 Jawahar Lal about the

information whatever he received over his cell phone and as nothing

has come in his statement that Rekha (PW -4) told him about the

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prosecutrix was assaulted by the accused sexually also, therefore,

there was no occasion to Sangeeta (PW-9) to have stated while in the

witness-box that her husband told her about the accused committed

rape also on the prosecutrix. Her testimony to this effect, therefore,

beyond the information, whatsoever was given to her husband PW-8

Jawahar Lal over his cell phone cannot be believed to be true. The

possibility of she and her husband have engineered the story in

connivance with the police to implicate the accused falsely on account

of property dispute cannot be ruled out. Interestingly enough,

Santosh, the another daughter of the prosecutrix was residing in

other portion of that very house, therefore, there was no occasion to

have informed PW-8 Jawahar Lal and Sangeeta (PW-9) to come to the

house of the prosecutrix. There was no occasion to have waited for

their arrival there till 2:00 PM because Santosh Kumari, the another

daughter of the prosecutrix and her daughter -in-law Chandresh

Kumari (PW-10) were present there. Had the incident been taken

place in the manner as claimed by the prosecution, they both could

have accompanied the prosecutrix to Police Station and lodged the

FIR. There being no explanation as to why it was not done, the story

has been fabricated to register the case falsely against the accused at

the behest of PW-8 Jawahar Lal and Sangeeta (PW-9) in connivance

with the police. The statement of PW-8 Jawahar Lal in his cross-

examination that he had put his signature on parcel Ext. P -1 in

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which cover of mattresses were sealed in the Police Station, lead to

the only conclusion that recovery was not effected on the spot as

claimed by the prosecution. He has expressed his ignorance as to

where he had put his signatures on the recovery memo Ext. PW-1/B

and PW-8/A. This also casts doubt qua the recovery made in this

case.

24. PW-9 Sangeeta in the very first sentence of her cross-

examination has admitted that on being asked she had taken the

shirt of her mother to the Women Police Station, Dharamshala on the

next day of lodging the complaint. She also admitted having put her

signature on the recovery memo Ext. PW-1/C in the Police Station.

There is, therefore, no question of the prosecutrix produced the shirt

(Ext. P-5) before the police. As per the prosecution case, Chandresh

Kumari (PW-10) is the wife of the accused. The prosecutrix has also

mentioned Chandresh Kumari (PW -10) as her daughter-in-law.

However, surprising enough Sangeeta (PW-9) while in the witness-box

has expressed her ignorance as to since when Chandresh Kumari

(PW-10) was residing in their house at Sakoh. Not only this, but as

per her further version Chandresh Kumari (PW-10) is not married to

the accused and she was staying with him without marriage. Later

on, she abandoned the company of the accused. Chandresh Kumari

(PW-10) while in the witness-box also tells us that she was not

married with accused or stayed with him in his house at Sakoh for 5-

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6 months. Though, she has supported the prosecution case qua the

accused locked his mother inside the room and on hearing cries when

she made the accused to open the door, the prosecutrix came out

while crying and perturbed, she told that the accused had committed

rape on her inside the room. She, in her cross-examination, however,

falsified the statement so made in her examination-in-chief because

in the very first sentence it is stated by her that on the day of

occurrence, she was at the place of her parents at Dhadhoon. Her

testimony that Rekha (PW-4) informed over telephone daughter and

son-in-law of the prosecutrix, PW-8 and PW-9 to come to Sakoh is

also false because Rekha (PW-4) could not speak beyond “Hello-Hello”

when the cell phone was handed over to her by Rahul (PW -5).

Therefore, this part of the statement of Chandresh Kumari (PW-10)

also inspires no confidence.

25. The close scrutiny of the evidence as has come on record

by way of testimony of PW-8 Jawahar Lal, Sangeeta (PW -9) and

Chandresh Kumari (PW -10), as discussed hereinabove lead to the

only conclusion that they are liars. PW-8 Jawahar Lal and Sangeeta

(PW-9) may be interested in the success of the prosecution case on

account of their demand for property belonging to the prosecutrix and

the property dispute with the accused. Had nothing of the sort as

claimed by the prosecution been taken place, the another daughter of

the prosecutrix, namely, Santosh Kumari admittedly residing in other

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part of the same house would have come forward to support the

prosecution case. She has neither been associated nor cited as a

witness by the prosecution to the reasons best known to it.

26. Interestingly enough, the medical evidence is not

suggestive of that the prosecutrix was assaulted sexually. MLC Ext.

PW-11/A, no doubt records the alleged history of rape, however, by

whom, nothing finds mention therein. Normally, in a rape case, the

name of the accused is also being reflected by the Medical Officer,

while mentioning history in the MLC. The doctor, no doubt, tells us

that the name of accused may have been disclosed to her, however,

now she could not recollect as to who was the accused nor she

mentioned the same in the MLC. The non-mentioning of the name of

the accused in the MLC also casts doubt on the prosecution story.

Otherwise also, on clinical examination, Dr. Jyoti Gupta (PW-11)

could not form any opinion about the alleged sexual assault

committed upon and the final opinion was left open to be given on the

receipt of the report of FSL.

27. Now, if coming to the report Ext. PW-13/A, proved by

PW-13 Dr. Surinder Kumar Pal, blood and semen was not detected on

the covers of mattresses, shirt of the prosecutrix, her pubic hair,

smegma swab of the accused and his pubic hair. Semen was also not

detected in the vaginal slides of the deceased. Though, semen was

detected on the underwear of the accused, however, not the blood.

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PW-11 Dr. Jyoti Gupta, on having gone through the report Ext. PW-

13/A has given the final opinion Ext. PW-11/B. According to her, on

the basis of the report, it cannot be commented upon whether the

intercourse/rape had occurred. The present to us, is a case where

the scientific investigation conducted do not reveal that the

prosecutrix was subjected to sexual intercourse because blood and

semen was not detected on the covers of mattresses, shirt of t he

prosecutrix, her pubic hair, smegma swab of the accused and his

pubic hair. Even the semen was not detected in vaginal slides of the

prosecutrix. Had she been subjected to sexual intercourse, keeping

in view that the prosecutrix was examined medically on the same day,

if not blood, the semen stains were bound to appear on the above

exhibits analyzed chemically in the laboratory. The semen stains, no

doubt were detected on the underwear of the accused. He being

young man, the presence of such stains on his underwear should not

be construed to conclude that such stains occurred as he subjected

the prosecutrix to sexual intercourse. The medical evidence,

therefore, is also not suggestive of that the prosecutrix has been

subjected to sexual intercourse by the accused. The evidence, as has

come on record by way of testimony of PW-14 Savita Devi, Secretary,

Gram Panahayat Tangroti Khas, is immaterial for the purpose of this

case because there is no dispute qua the age of the prosecutrix and

that of the accused and also that they both being mother and son in

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relation were residing in the same house. The evidence as has come

on record by way of evidence of official witnesses PW-6 HC Satya Devi

and PW-7 HHC Karan Singh, would have been used as link evidence,

had the prosecution been otherwise able to prove its case against the

accused beyond all reasonable doubt for the reason that PW6 HC

Satya Devi has supported the prosecution case qua the deposit of

case property with her and she after having made the entries qua the

same retained it in her safe custody in the malkhana. Later on, she

sent the case property to RFSL, Dharamshala through PW -7 HHC

Karan Singh. PW-7 HHC Karan Singh has supported the prosecution

case qua taking the case property to the laboratory and depositing the

same there. PW-15 S.I. Kiran Bala is the I.O. Though, as per her

testimony, it has come in the investigation she conducted that the

accused subjected the prosecutrix to sexual intercourse, however, in

view of the reappraisal of the prosecution evidence hereinabove, the

investigation conducted in this case cannot be said to be fair and

impartial. This witness rather to the reasons best known to her has

implicated the accused in this case falsely knowing fully well that the

relationship of the accused and the prosecutrix being son and mother

was very delicate.

28. PW-16 Ms. Shikha Lakhanpal was posted as JMIC, Court

No. 2, Dharamshala at the relevant time. She has proved the

statement Ext. PW-16/C made by the prosecutrix before her under

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Section 164 Cr.P.C. The statement Ext. PW-16/C is a piece of

evidence and not the conclusive evidence. It, therefore, lies ill that

the recording of this statement by the Magistrate is only to establish

the charge against the accused.

29. True it is that the accused has not produced any evidence

in his defence, however, the trend of cross-examination of the

witnesses conducted by learned defence counsel makes it crystal

clear that the property dispute was the sole cause of framing him in

this case falsely. The plea so raised by him in his defence even finds

support from the testimony of Rahul (PW-5) and also Rekha (PW-4).

In his statement recorded under Section 313 Cr.P.C. also, he has

stated that the prosecution witnesses have deposed falsely against

him due to property dispute. Otherwise also, it was for the

prosecution to have proved its case against the accused beyond all

reasonable doubt. The prosecution, however, has failed to do so.

30. In view of what has been said hereinabove, the

prosecutrix and accused seems to have quarreled with each other ,

may be on account of money required for ongoing construction work,

because as per own version of the prosecutrix, the accused asked for

withdrawal of Rs. 10,000/-. Since property dispute was there and

Sangeeta (PW-9) may also be asking for her share in the property,

therefore, taking undue benefit of the situation and knowing fully well

that nothing of the sort happened, the allegations not only serious

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but heinous in nature, have been leveled against the accused qua

rape of his own mother by him forgetting the sensitivity of such

relations and repercussions of the allegations so raised in the society

at large. Neither the I.O. nor the Public Prosecutor have applied the

mind and tried to satisfy themselves qua the authenticity and

genuineness of allegations so raised and for that matter, learned trial

Judge has also failed to apply her mind and swayed by passion

believing erroneously that the offence has been committed against a

woman.

31. As a matter of fact, all duty holders i.e. the Investigator,

Prosecutor and of course, the Adjudicator were expected to be more

cautious and deal with this matter by observing all care and caution

and circumspection because the allegations of rape were against none

else but the son of the prosecutrix. The allegations of rape are not

always correct and sometimes levelled falsely also due to variety of

reasons. The apex Court in Ranjit Hazarika Vs. State of Assam,

(1998) 8 SCC 635 has held that the statement of prosecutrix cannot

be universally and mechanically applied to the facts of every case of

sexual assault, as in its opinion, in such cases, the possibility of false

implication can’t also be ruled-out. Similar was the view of the

matter taken again by the apex Court in Vimal Suresh Kamble Vs.

Chaluverapinake Apal S.P. and another, (2003) 3 SCC 175 .

While placing reliance on this judgment and the law laid down by the

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Apex Court in the judgment supra, this Court in Criminal Appeal

No. 481 of 2009 titled State of Himachal Pradesh V. Negi Ram,

decided on 27

th May, 2016 has held as under:

“15. Therefore, the legal position as discussed

supra makes it crystal clear that irrespective of an

offence of this nature not only grievous but heinous

also, the Court should not got swayed merely by

passion and influence only on account of the

offence has been committed against a woman and

rather keep in mind the cardinal principle of

criminal administration of justice, that an offender

has to be believed to be innocent unless and until

held guilty by the Court after satisfying its judicial

conscience on the basis of given facts and

circumstances of each case as well as proper

appreciation of the evidence available on record.”

32. It is worth mentioning that as per the ratio of the Apex

Court in State of Punjab vs. Gurmeet Singh & ors., AIR 1996 SC

1393, the own statement of the prosecutrix if inspires confidence is

sufficient to bring guilt home to the accused. The present, however,

is a case where the statement of the prosecutrix inspires no

confidence. She rather has contradicted the prosecution case and

while in the witness-box improved her earlier version on all material

aspects. The mental agony and trauma, the accused has suffered on

account of such heinous allegations leveled against him falsely and

subsequently on account of his conviction one can imagine very well.

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The trial Court, however, has failed to appreciate the same and also

the evidence available on record in its right perspective. The

impugned judgment, being the result of misreading and mis -

appreciation of the prosecution evidence and based upon conjectures,

surmises and hypothesis, therefore, cannot be said to be legally and

factually sustainable by any stretch of imagination. The same,

therefore, deserves to be quashed and set aside and the accused

acquitted of the charge framed against him.

33. For all the reasons hereinabove, this appeal succeeds and

the same is accordingly allowed. Consequently, the impugned

judgment is quashed and set aside. The accused is acquitted of the

charge framed against him under Section 376 IPC. He presently is

undergoing sentence, therefore, if not required in any other case, be

set free forthwith. The release warrant be prepared accordingly. The

fine amount as imposed upon the accused, if deposited, shall be

refunded to him against proper receipt.

(Dharam Chand Chaudhary ),

Judge.

July 24, 2019 ( Jyotsna Rewal Dua ),

(karan-) Judge.

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