High Court of H.P.

IN THE HIGH COURT OF HIMACHAL PRADESH,

SHIMLA

Cr. Appeal No. 348 of 2011 along

with Cr. Appeal No.235 of 2011.

Reserved on: 23

rd

December, 2015.

Date of Decision: 1

st

January, 2016.

1. Cr. Appeal No. 348 of 2011.

Ravinder Singh …..Appellant.

Versus

State of H.P. ..Respondent.

2. Cr. Appeal No. 235 of 2011.

Santosh Kumari …..Appellant.

Versus

State of H.P. …..Respondent.

Coram.

The Hon’ble Mr. Justice Rajiv Sharma, Judge.

The Hon’ble Mr. Justice Sureshwar Thakur, Judge.

Whether approved for reporting? Yes.

For the Appellants: Mr. Rajesh Mandhotra and

Ms. Kanta Thakur, Advocates.

For the Respondent: Mr. P.M. Negi, Deputy

Advocate General with Mr.

Ramesh Thakur, Assistant

Advocate General.

_______________________________________________________

Sureshwar Thakur, Judge

Since both the aforesaid appeals arise from a

common judgment hence are being disposed of by a

common judgment.

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2. Both the appeals stand directed by the

accused/appellants against the impugned judgment

rendered on 10.06.2011 by the learned Sessions Judge,

Kangra at Dharamshala in Sessions Case No. 33-J/VII-

2010, whereby, the learned trial Court convicted and

sentenced accused/appellant Ravinder Singh for his

committing offences punishable under Sections 376(1)

and 506 of the Indian Penal Code (hereinafter referred to

in short as IPC) besides convicted and sentenced accused

Santosh Kumari for hers committing offences punishable

under |Sections 315 and 201 of the IPC.

2. Brief facts of the case which are necessary to

determine the instant appeals are that in the month of

April, 2008 and thereafter several times and on

22.11.2009 at Kut Talab, accused Arvind Kumar had

perpetrated forcible sexual intercourses upon the person

of the minor prosecutrix and criminally intimidated as also

threatened her with dire consequences in the event of

disclosure of the incident to her parents or elsewhere. On

the prosecutrix being subjected to forcible sexual

intercourses by the accused she became pregnant. The

said occurrence was disclosed by the prosecutrix to her

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aunt. Accused Ravinder and Santosh Kumari administered

to the prosecutrix a medicine to abort foetus carried by

her in her womb. The matter was reported to the police

and the FIR was registered against the accused in the

police station. During the course of investigation, the

preserved clothes, vaginal slides, vaginal swabs, pubic

hair etc. were sent for chemical and forensic examination

and the Investigating Officer prepared the spot maps of

the places where the prosecutrix was subject to forcible

sexual intercourse by the accused on the identification of

the prosecutrix. The statements of the witnesses were

recorded separately and forensic report from FSL, Junga

was procured separately.

3. On conclusion of the investigations, into the

offences, allegedly committed by the accused, a report

under Section 173 of the Code of Criminal Procedure was

prepared and filed in the competent Court.

4. Accused Ravinder Kumar was charged by the

learned trial Court for committing offences punishable

under Sections 376(1), 315, 506 and 201 of the IPC and

accused Santosh Kumari was charged by the learned trial

Court for committing offences punishable under Sections

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315 and 201 of the IPC to which both pleaded not guilty

and claimed trial.

5. In order to prove its case, the prosecution

examined 19 witnesses. On closure of prosecution

evidence, the statements of the accused, under Section

313 of the Code of Criminal Procedure, were recorded in

which they pleaded innocence and choose not to lead any

evidence in defence.

6. On an appraisal of evidence on record, the

learned trial Court, returned findings of conviction against

the accused/appellants.

7. The accused/appellants stand aggrieved by the

judgment of conviction recorded by the learned trial Court,

hence have instituted the instant appeals before this

Court. The learned defence counsel has concerted to

vigorously contend qua the findings of conviction recorded

by the learned trial Court being not based on a proper

appreciation of evidence on record, rather, theirs being

sequelled by gross mis-appreciation of material on record.

Hence, he contends qua the findings of conviction being

reversed by this Court in the exercise of its appellate

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jurisdiction and theirs being replaced by findings of

acquittal.

8. On the other hand, the learned Deputy

Advocate General has with considerable force and vigour,

contended qua the findings of conviction recorded by the

Court below being based on a mature and balanced

appreciation of evidence on record and theirs not

necessitating interference, rather meriting vindication.

9. This Court with the able assistance of the

learned counsel on either side, has, with studied care and

incision, evaluated the entire evidence on record.

10. The prosecutrix as underscored by her date of

birth certificate comprised in Ex.PW4/B was born on

17.09.1996. Consequently, she was a minor at the stage

contemporaneous to the alleged perpetration of forcible

sexual intercourses upon her person by the accused.

Being a minor, she was not competent to accord any valid

consent to the sexual overtures, if any, perpetrated on her

person by the accused. In sequel, her consent, if any to

the sexual intercourses which she performed with the

accused is wholly insignificant besides irrelevant. Even

though Ex.PW7/G records the factum of the radiological

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age of the prosecutrix standing therein determined to be

between 14 to 15 years. As a corollary with an occurrence

of a margin of error of two years on either side and the

benefit of error of two years beyond 14 to 15 years being

affordable to the accused stands espoused by the learned

counsel for the appellant to constrain an inference of the

prosecutrix at the stage contemporaneous to the ill-fated

occurrence standing arrived at the age of consent to mete

a valid consent to the accused for his sexually accessing

her. Thereupon, the learned counsel for the appellant

canvasses qua given the factum of the prosecutrix being

competent to accord a valid consent to the accused for his

sexually accessing her at a stage contemporaneous to the

sexual encounters inter se them purportedly commencing

since April, 2008 upto November, 2009 conjunctively

construed in tandem with her omission to report the

matter promptly since April, 2008 uptill the date of

lodging of an FIR, is a manifestation of hers consensually

succumbing to the sexual overtures of the accused.

However, the vigour of the aforesaid submission

addressed before this Court by the learned counsel for the

appellant stands dispelled in the face of their being a vivid

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and graphic display in Ex.PW4/B qua the prosecutrix being

born on 17.9.1996 hence a minor at the stage

contemporaneous to the alleged forcible perpetration of

sexual intercourses upon her person by the accused. The

portrayal in Ex.PW4/B inasmuch as its recording therein

17.9.1996 to be the date of birth of the prosecutrix when

stood not assayed to be controverted by the learned

defence counsel for the accused by cross-examining PW-4

telling upon the factum of the date of birth of the

prosecutrix recorded in Ex.PW4/B being not at the

instance of or at the behest of the parents of the

prosecutrix whereupon an inference of its standing

recorded at the whim or caprice of the person who scribed

it was hence emanable, necessarily begets an inference of

the date of birth of the prosecutrix recorded in Ex.PW4/B

standing scribed therein at the instance of or at the

behest of the parents of the prosecutrix whereupon it

hence acquires conclusivity qua the factum of the

prosecutrix standing born on 17.9.1996 as recorded

therein. In after math it carries an imperative effect of the

opinion of the radiologist comprised in Ex.PW7/G recorded

with observations therein qua the radiological age of the

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prosecutrix being between 14 to 15 years being tenuous.

Even otherwise when Ex.PW4/B has, for reasons

aforestated, attained conclusivity qua the factum of

recording therein of 17.09.1996 being the date of birth of

the prosecutrix, it stands on a sacrosanct pedestal vis-a-

vis the opinion recorded in Ex.PW7/G which otherwise may

be a mere assessment open to, as emanable on a reading

of the cross-examination of PW-7, margin of error of two

years, hence, leaving it open to infirmities of imprecision

besides inexactitude ingraining it, which infirmities

gripping it do not obviously constitute any firm

determination therein with precision qua the radiological

age of the prosecutrix. In principle the age of the

prosecutrix as stands displayed in birth certificate

Ex.PW4/B especially when the apt disclosure therein

stands unshaken by potent evidence unveiling the fact of

the scribing of the date of birth of the prosecutrix therein

being not at the instance of the parents of the prosecutrix

which evidence in displacement of the recitals of the date

of birth of the prosecutrix in Ex.PW4/B when stands not

upsurged, renders it to outweigh besides countervail the

imprecise assessment of her age in Ex.PW7/G.

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11. Having rendered a determination of the

prosecutrix having not reached the age of consent for

affording a valid consent to the accused for his sexually

accessing her would not ipso facto advance the espousal

of the prosecution of the charge against the accused

standing sustained especially when the factum of the

charge against the prosecution standing clinched warrants

weighing besides assessing with a keen discernment by

this Court of the testimony of the prosecutrix besides of

other prosecution witnesses. Primarily, the solitary

deposition of the prosecutrix would command sway for

recording findings of conviction against the accused

unless on a wholesome reading of her deposition besides

the depositions of other prosecution witnesses unveil the

prime fact of each in their respective examinations-in-

chief vis-a-vis their cross-examinations rendering

disharmonious besides inconsistent versions qua the

incidents/incident or a close reading of their testimonies

reveal each of the prosecution witnesses having mutually

contradicted each other. Naturally, if inter se

contradictions occurr in their testimonies comprised in

their respective examinations-in-chief vis-a-vis their

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respective cross-examination or their respective

depositions qua the ill-fated occurrence(s) stand afflicted

with a malady of intra se contradictions, as a corollary, the

testimony of the prosecutrix would enjoin this Court to

discard it. Moreover, an inference of her deposition qua

the occurrence(s) standing belied would surge-forth.

12. For gauging whether the testimony of the

prosecutrix is reliable besides creditworthy, her testimony

has to be conjunctively read along with the testimony of

PW-3 Kumari Shivani who accompanied the prosecutrix to

school enroute whereat the accused met them and

beseeched the prosecutrix to meet him at place Kut-Talab.

PW-3 Kumari Shivani had overheard entreaties made by

the accused upon the prosecutrix for the latter joining him

at Kut-talab. She had made a disclosure of the aforesaid

entreaties made upon the prosecutrix by the accused, to

her mother, Urmila Devi, PW-2. In the event of PW-3

Shivani supporting the prosecutrix and PW-2, Smt. Urmila

qua the aforesaid entreaties having been made upon the

prosecutrix by the accused for the latter joining him at

Kut-talab would facilitate this Court for construing the

testimonies of both, PW-2, Smt. Urmila as well as of the

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prosecutrix being creditworthy. However, in case, she

contradicts them, both the prosecutrix as well as PW-2

would stand belied. PW-3 was a minor yet on her

competence to depose as witness standing gauged by

the learned trial Court by putting queries to her whereto

on PW-3 meteing intelligible answers led it to declare her

to be a competent witness to testify wherein she on

standing subjected to a piercing cross-examination by the

learned defence counsel has made unfoldments

connotative of the fact of hers labouring under active

tutorings standing meted to her by her uncle. Apart

therefrom when a reading of her cross-examination

unveils the factum of hers obeying the command of her

paternal/maternal uncles clinches the factum of hers

deposing a tutored version qua the incident which factum

is further unearthable arising from hers admitting a

suggestion put to her by the learned defence counsel of

her uncle being available outside the Court at the stage

when she was recording her deposition qua the

occurrence before the learned trial Court and of his having

meted directions to her to name Ravinder to be the

accused in the alleged incidents of sexual encounters

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inter se him and the prosecutrix. Preponderantly with

hers conceding to suggestions put to her by the learned

defence counsel of hers deposing against the accused at

the instance of her paternal/maternal uncles renders her

deposition being replete with vice of tutorings obviously

rendering her version qua the incident comprised in her

examination-in-chief being construable to be in-volitional

rather standing prodded by active tutorings meted to her

both by her uncle as well as her parents, with the ensuing

sequel of her testimony not lending succor to either the

deposition of PW-2 or to the testimony of the prosecutrix

of the accused having met the prosecutrix on the ill-fated

day when both were proceeding to school whereupon he

beseeched the prosecutrix to meet him at Kut-Talab. For

reasons aforestated with the testimony of the prosecutrix

standing belied by PW-3 Shivani yet it would not also with

immediacy foster any conclusion of exculpation of the

guilt of the accused in the alleged forcible sexual

intercourses he performed with the prosecutrix .

13. For firmly determining the prima donna factum

of the prosecutrix rendering or not rendering a concocted

tale qua the alleged forcible sexual encounters which she

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performed with the accused, her testimony has to be read

in a wholesome manner. Only on a wholesome perusal of

her testimony comprised both in her examination-in-chief

and her cross-examination would unearth the factum of

hers rendering a disharmonious or inconsistent version

qua the incident hence her testimony standing ridden with

a vice of interse contradictions would be construable to be

neither trustworthy nor inspiring. In the endeavour to

ferret from a whole some reading of the testimony of the

prosecutrix comprised both in her examination-in-chief as

well as in her cross-examination whether she therein has

rendered a disharmonious version qua the incident, an

incisive reading of her testimony in her cross-examination

unfolds the factum of hers admitting (a) the suggestion

put to her by the learned defence counsel of hers not

having met the accused in the month of August,

September, October, November, 2009 whereupon an

inference sprouts of hers contradicting the version

deposed by her in her examination-in-chief of the accused

having met her in November, 2009. (b) The inter se

contradictions qua the aforesaid factum in her

examination-in-chief vis-a-vis her cross-examination

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erodes the solemnity or creditworthiness of the factum

aforesaid constituted in her examination-in-chief besides

with hers also admitting the further suggestion put to her

during the course of her cross-examination by the learned

defence counsel of a boy named Arvind resident of village

Manoh Sihal having sexually accessed her, with aplomb

lends vigour to an inference of hers exculpating the guilt

of the accused for which he stood charged and convicted

by the learned trial Court. (c) Moreover, hers conceding in

her cross-examination of hers having disclosed the name

of Arvind at the time of lodging EX.PW12/A; (d) in addition

hers admitting the suggestion put to her by the learned

defence counsel during the course of his subjecting her to

cross-examination of hers on pressure standing exerted

upon her by her parents to disclose whatever stood

scribed by the police in the FIR, foments a conclusion of

the FIR wherein the name of accused Ravinder occurs

standing scribed by the police at their own behest even

prior to any disclosure qua the incident standing

purveyed to them by the prosecutrix contents whereof she

was pressurised to accept. In aftermath, the occurrence

of the name of accused Ravinder in the FIR palpably

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stands generated from pressure standing exerted upon

her by her parents to name him therein even when she

had disclosed to the police the name of Arvind to be the

person who had sexually accessed her. Naturally the

occurrence of the name of Ravinder in the FIR is an

invention arising from mistaken identity. Also his naming

therein is a stark unfoldment of his standing falsely

implicated by the prosecutrix. For reiteration, dehors the

aforesaid inferences arising from the admissions aforesaid

emanating in the cross-examination of the prosecutrix

held by the defence counsel, the inevitable inference

therefrom is also of despite hers having named Arvind to

be the person who had perpetrated forcible sexual

intercourses upon her person she was compelled to

accept the scribing by the police in Ex.PW12/A of

Ravinder Kumar being the person who had perpetrated

forcible sexual intercourses upon her. Elicitations of the

aforesaid admissions from the prosecutrix by the learned

defence counsel while conducting her cross-examination

impinging upon accused Ravinder standing mistakenly

identified by the prosecutrix gains vigour from the factum

of hers also in the latter part of her cross-examination

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admitting the suggestion put to her by the learned

defence counsel of besides Arvind no other person having

sexually accessed her besides from hers admitting the

suggestion put to her by the learned defence counsel of

hers on hers gaining pregnancy disclosing to her aunt, the

factum of a boy named Arvind having sexually accessed

her. In sequel, the aforesaid inferences with formadibility

clinch a deduction of the guilt of the accused standing

exculpation by the prosecutrix. Even when the testimony

of PW-3 Shivani has been concluded to be ingrained with a

vice of doctorings as well as tutorings standing meted to

her both by her uncles as well as her parents vices

whereof render her testimony to be discardable. Apart

therefrom, when PW-3, for reasons aforestated

contradicts the testimonies both of the prosecutrix as well

as of PW-2, her mother and the aunt of the prosecutrix,

especially with the latter deposing a version qua the

occurrence only on a disclosure made to her by PW-3,

hence, emaciates the credibility of PW-2 as also of the

prosecutrix. In sequel, with the prosecution case standing

ingrained with a vice of not only inter se contradictions

aforesaid occurring in the testimony of the prosecutrix

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comprised in her examination-in-chief vis-a-vis her cross-

examination besides when it also stands imbued with a

vice of intra se contradictions preeminently, for reasons

aforestated arising in the testimonies of the prosecutrix,

PW-3 Shivani as well as PW-2 Smt. Urmila, the aunt of the

prosecutrix sequelly for reiteration renders it to stand

infected with a taint of intra se contradictions. As a

sequitur with taints of inter se contradictions existing in

the testimonies of the prosecution witnesses aforesaid

arising from theirs deposing contrarily a version qua the

incident in their respective examinations-in-chief vis-a-vis

their respective cross-examinations besides with a taint of

intra se contradictions ingraining their respective

depositions concomitantly the prosecution version hence

standing gripped with grave infirmities renders

susceptible to doubt the version qua the incident spelt out

by the prosecutrix, whereupon an inference is drawable of

her creditworthiness standing belittled.

14. Be that as it may, with the infirmities aforesaid

in the prosecution case, hence making pervasive inroads

qua the veracity of the prosecutrix version, the learned

trial Court at the end of the cross-examination of the

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prosecutrix queried the prosecutrix qua the contradictions

which stood upsurged in her version qua the incident

comprised in her examination-in-chief vis-a-vis her cross-

examination whereupon the prosecutrix had named

accused Ravinder to be the person who had perpetrated

sexual intercourses upon her. However, even if the

learned trial Court had elicited from the prosecutrix by its

at the end of her cross-examination by the learned

defence counsel querrying her, the name of the accused

Ravinder to be the person who subjected her to forcible

sexual intercourse yet the aforesaid elicitation surfacing

from the prosecutrix would not subsume nor smother the

effect of hers prior to the aforesaid elicitation of the name

of accused Ravinder by the learned trial Court by querying

her on conclusion of her cross-examination by the learned

defence counsel, contradicting in her cross-examination

the inculpatory role meted to the accused in her

examination-in-chief. Any negation of exculpation of the

guilt of the accused by the prosecutrix in her cross-

examination wherein she has forthrightly unfolded the

factum of a boy named Arvind having forcibly sexually

accessed her merely on hers unfolding on hers being

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queried by the learned trial Court the name of accused

Ravinder to be the person who had forcibly sexually

accessed her would tantamount to placing reliance upon

the testimony of the prosecutrix even when she

precedingly in her cross-examination had therein

exculpated guilt of the accused. Rather the ditherings and

vacillations therefrom at a stage when on conclusion of

her cross-examination, the learned trial Court on querying

her elicited from her the name of accused Ravinder to be

the person who had forcibly sexually accessed her, only

pronounce upon the factum of hers holding a wavering

opinion qua the identity of the accused. Waverings and

oscillations therein by the prosecutrix when obviously

stand emerged in hers inculpating accused Ravinder on

conclusion of her cross-examination on hers standing

queried by the learned trial Court also obviously stand in

stark departure to hers precedingly in a consistent and

harmonious manner with aplomb naming Arvind to be the

person who had forcibly sexually accessed her.

Imperatively only when the prosecutrix had consistently

besides harmoniously in her cross-examination had

inclupated accused Ravinder therein would render her

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testimony to be inspiring besides creditworthy rather

contrarily when she deviates and digresses from the norm

of deposing throughout with consistency and harmony,

necessarily this Court would not on an inconsistent

besides disharmonious testimony of the prosecutrix

harboured, for the reasons aforesaid, upon the identity of

accused Ravinder fasten any inculpatory role to accused

Ravinder. The fastening of an inculpatory role to accused

Ravinder only on the prosecutrix at the end of her cross-

examination on hers standing queried by the learned trial

Court unfolding his name to be the accused would also be

in detraction to the testimony of PW-3 Shivani, whose

testimony on its incisive reading stands hereinabove

marshalled to be ridden with a vice of tutorings and

doctorings meted to her both by her parents and her

uncles, hence discardable besides contradicting the

version of the prosecutrix. In aftermath, for balancing the

testimonies of both the prosecutrix and PW-3 Shivani they

are to be read entwinedly rather than disjunctively. In

sequel ascription of an inculpatory role to Ravinder by the

prosecutrix on conclusion of her cross-examination by the

learned defence counsel on the learned trial Court

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querying her whose inculpation is for reasons aforesaid

construable to be discardable besides unamenable for any

reliance thereupon constituted by its infracting the norm

of her testimony standing appraisal in a wholesome

rather than in a fragmentary besides in an isolated

manner. In aftermath with deference and reverence to

the rule of appraising her testimony in a wholesome

manner rather than in a fragmentary or isolated manner,

the exculpation of the accused by the prosecutrix in her

cross-examination cannot be either scored off nor can

stand effaced merely on hers on conclusion of her cross-

examination on hers standing queried by the learned trial

Court hers therein inculpating Ravinder. In nut shell this

Court is constrained to conclude of the prosecutrix

rendering an untruthful version qua the incident besides

her version qua the incident being bereft of any credibility.

15. The prosecutrix had gained pregnancy and to

abort the foetus carried by her in her womb, accused

Ravinder and co-accused Santosh Kumari had purportedly

administered a medicine to her bought from Laxmi

Medical Store. On the aforesaid deposition of PW-2 as well

as of the prosecutrix, the prosecution has concerted to

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connect the accused in the commission of the offence

alleged. Also thereupon the prosecution has assayed for

implicit reliance being placed upon elicitations by the

learned trial Court on its querying her wherein an

inculpatory role qua accused Ravinder stands purveyed

by the prosecutrix. However, though the prosecution

hence concerted to link the accused in the commission of

the offences constituted against them yet its endeavour

cannot mete with any success in the face of the

prosecutrix in her cross-examination admitting the

suggestion put to her by the learned defence counsel of

hers consuming medicine at the instance of her mother

and aunt concomitantly dispelling the role of the accused

of theirs fetching medicines from Laxmi Medical Store for

aborting the foetus carried by her in her womb.

Moreover, with the mother of the prosecutrix in her cross-

examination feigning ignorance qua the prosecutrix

disclosing to the police of medicines for aborting her

pregnancy standing administered to her by her and her

aunt besides hers also feigning ignorance qua the identity

of the persons, who administered the medicines for

aborting the foetus carried by the prosecutrix in her womb

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while hence hers not being categorical in naming Santosh

Kumari (accused), the mother of accused Ravinder, to be

the person who administered them rather when her

testimony is both wavering as well as off the mark for

clinching the factum aforesaid cannot constitute it to be

rendering either conclusive or firm evidence qua the

mother of the accused administering medicines to the

prosecutrix for aborting her pregnancy. With shaky

evidence existing qua the aforesaid factum, begets an

inference of the endeavour of the prosecution to hence

link the accused in the commission of the offence standing

capsized. Even during her cross-examination, PW-17, the

mother of the prosecutrix has feigned ignorance of the

implication of accused Ravinder standing begotten by

mistaken identity. Obviously, the mother of the

prosecutrix again has been uncategorical about the

identity of accused Ravinder. Lack of communication by

her with firm categoricality qua the identity of accused

Ravinder, renders infirm in-coagulation with the taint

ridden testimony of the prosecutrix, any naming by her

on the Court quering her of accused Ravinder being the

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person who forcibly sexually accessed nor it can hold any

deference.

16. For the reasons which have been recorded

hereinabove, this Court holds that the learned trial Court

has not appraised the entire evidence on record in a

wholesome and harmonious manner apart therefrom the

analysis of the material on record by the learned trial

Court suffers from perversity or absurdity of mis-

appreciation and non appreciation of evidence on record.

Consequently, the instant appeals are allowed and the

judgment of the learned trial Court is set-aside.

Accused/appellants are acquitted of the offences charged.

They be set at liberty forthwith, if not required in any

other case. Fine amount, if any, deposited by the

accused/appellants, be refunded to them. Records be

sent back.

(Rajiv Sharma)

Judge.

(Sureshwar Thakur)

1

st

January, 2016 Judge.

(jai)

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