High Court of H.P.

IN THE HIGH COURT OF HIMACHAL PRADESH , SHIMLA

Criminal Appeal No. 220 of 2010

Judgment Reserved on : 24.6.2015

Date of Decision : August 17 , 2015

State of Himachal Pradesh …Appellant

Versus

Lekh Ram …Respondent

Coram:

The Hon’ble Mr. Justice Sanjay Karol, Judge.

The Hon’ble Mr. Justice P. S. Rana, Judge.

Whether approved for reporting?

1

Yes.

For the appellant : Mr. Ashok Chaudhary, Addl. Advocate General

with Mr. V. S. Chauhan, Addl. A.G. and Mr. J. S.

Guleria, Asstt. A.G. for the appellant-State.

For the respondent : Mr. R. L. Chaudhary, Advocate for the

respondent-accused.

Sanjay Karol, J.

Assailing the judgment dated 5.10.2009, passed

by the learned Sessions Judge, Solan, Himachal Pradesh, in

Whether reporters of Local Papers may be allowed to see the judgment?

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Sessions Trial No. 1-NL/7 of 2009, titled as State of

Himachal Pradesh vs. Lekh Ram, whereby respondent-

accused stands acquitted, State has filed the present appeal

under the provisions of Section 378 of the Code of Criminal

Procedure, 1973.

2. It is the case of prosecution that M/s Unichem

Laboratories had two guest houses at Baddi. Accused Lekh

Ram was posted as a Security Guard at Guest House No. 80.

Jai Parkash (PW-6) while being posted as an Administrative

Officer was occupying the top floor of the guest house,

whereas remaining two stories were used for the visiting

guests. Sudarshan Paridha (PW -4), husband of the

prosecutrix (PW-3) also employed as a cook by the said

Company was posted at the adjacent guest house owned by

the Company. On 30.8.2008 when Jai Parkash left for

Shimla, accused went to the house of Sudarshan Paridha

and asked him to send his wife i.e. the prosecutrix to the

house of Jai Parkash for cleaning the utensils and washing

clothes. Consequently prosecutrix went to Guest House No.

80. While she was washing the clothes, accused after

entering the room forcibly subjected her to sexual

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intercourse. Prosecutrix resisted his overt acts as a result of

which he sustained injuries on his nose and ear. After the

incident, by freeing herself, prosecutrix reported the

incident to Sudarshan Paridha, who in turn confronted the

accused with the same. Two officers of the employer

company visited the spot and the matter was reported to

the police. F.I.R. 143/2008, dated 30.8.2008 (Ext. PW-4/A)

was registered at Police Station Baddi, Distt. Solan, H.P.,

against the accused under the provisions of Sections 376,

342 and 506 of the Indian Penal Code. Investigation was

got conducted by ASI Tapinder Kumar (PW -10). Prosecutrix

was got medically examined from Dr. Neeraj Rajan (PW -5)

who issued MLC (Ext. PW-5/B) and opined that possibility of

recent sexual activity could not be ruled out. Accused was

also got medically examined from Dr. Naveen Kataria (PW -

7) who issued MLC ( Ext. PW-7/B). Report of the State

Forensic Science Laboratory, Junga (Ext. PX) was obtained.

Investigation revealed, complicity of the accused in the

alleged crime, hence challan was presented in the Court for

trial.

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3. Accused was charged for having committe d

offences punishable under the provisions of Sections 376,

342 and 506 of the Indian Penal Code, to which he did not

plead guilty and claimed trial.

4. In order to prove its case, in all, prosecution

examined ten witnesses and statement of the accused

under Section 313 Cr. P.C. was also recorded, in which he

took the following defence:

“PW-4 has taken loan of Rs.6,000/- from me

and when I asked for returning loan, he threatened

me that he will involve me in a false police case. I

took it lightly, but thereafter I was called in Police

Station and false case has been registered against

me and so the prosecution witnesses have deposed

against me.”

The injuries found on his body are attributed as a result of

beatings given by the police.

5. Court below acquitted the accused for the reason

that prosecution could not prove its case , beyond

reasonable doubt. Hence the present appeal.

6. We have heard Mr. Ashok Chaudhary, learned

Addl. Advocate General ably assisted by Mr. V. S. Chauhan,

learned Asstt. A.G. and Mr. J. S. Guleria, Asstt. A.G., on

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behalf of the State as also Mr. R. L. Chaudhary, learned

counsel for the accused. We have also minutely examined

the testimonies of the witnesses and other documentary

evidence so placed on record by the prosecution. Having

done so, we are of the considered view that no case for

interference is made out at all. We find that the judgment

rendered by the trial Court is based on complete, correct

and proper appreciation of evidence (documentary and

ocular) so placed on record. The re is neither any

illegality/infirmity nor any perversity with the same,

resulting into miscarriage of justice.

7. It is a settled principle of law that acquittal leads

to presumption of innocence in favour of an accused. To

dislodge the same, onus heavily lies upon the prosecution.

Having considered the material on record, we are of the

considered view that prosecution has failed to establish

essential ingredients so required to constitute the charged

offences.

8. In Prandas v. The State , AIR 1954 SC 36,

Constitution Bench of the apex Court, has held as under:

“(6) It must be observed at the very outset that

we cannot support the view which has been

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expressed in several cases that the High Court

has no power under S. 417, Criminal P.C ., to

reverse a judgment o f acquittal, unless the

judgment is perverse or the subordinate Court

has in some way or other misdirected itself so as

to produce a miscarriage of justice. In our

opinion, the true position in regard to the

jurisdiction of the High Court under S. 417,

Criminal P.c. in an appeal from an order of

acquittal has been stated in – ‘Sheo Swarup v.

Emperor’, AIR 1934 PC 227 (2) at pp.229, 230

(A), in these words:

“Sections 417, 418 and 423 of the

Code give to the High Court full power to

review at large the evidence upon which

the order of acquittal was founded, and to

reach the conclusion that upon that

evidence the order of acquittal should be

reversed. No limitation should be placed

upon that power, unless it be found

expressly stated in the Code. But in

exercising the power conferred by the Code

and before reaching its conclusions upon

fact, the High Court should and will always

give proper weight and consideration to

such matters as (1) the views of the trial

Judge as to the credibility of the witnesses,

(2) the presumption of innocence in favour

of the accused, a presumption certainly not

weakened by the fact that he has been

acquitted at his trial, (3) the right of the

accused to the benefit of any doubt, and (4)

the slowness of an appellate Court in

disturbing a finding of fact arrived at by a

Judge who had the advantage of seeing the

witnesses. To state this, however, is only

to say that the High Court in its conduct of

the appeal should and will act in

accordance with rules and principles well

known and recognized in the administration

of justice.” ”

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9. Dr. Naveen Kataria (PW-7) who examined the

accused observed two scratch marks on the left side of face

of the accused. The injuries were recent. As per the Doctor,

such injuries could have been sustained as a result of

beatings. No injuries were found either on the private parts

or any other portion of body of the accused.

10. Dr. Neeraj Rajan (PW -5), upon examination,

found no injuries on the body of the prosecutrix. Also no

signs of struggle were found on the body of the prosecutrix.

The Doctor opined possibility of recent sexual intercourse

not to be ruled out for the reason that “semen was found on

pubic hair (exhibit -2b) and petticoat (exhibit-1d) of the

prosecutrix ”.

11. It be also observed that despite medical advise,

DNA profiling was not got done by the police. Why so? no

explanation is forthcoming. The scientific evidence only

proves that semen was found on the petti -coat of the

prosecutrix. But then, whether it was that of the accused or

not, has not been conclusively proved on record and the

possibility of the same being that of the husband of the

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prosecutrix has not been ruled out. This was necessary in

view of medical opinion that if on a previous night ,

prosecutrix had had sex with her husband, chances of such

stains found on her clothes and pubic hair are likely to be

there. This factor acquires significance in view of admission

made by the prosecutrix of having sex with her husband the

previous night.

12. Though these factors render the prosecuti on

case to be doubtful, however all this may not render version

of the prosecution to be false for it is a settled principle of

law that even in the absence of any corroborative evidence,

scientific/medical or otherwise, if testimony of the

prosecutrix is otherwise inspiring in confidence, it would be

sufficient to hold the accused guilty.

13. We shall first deal with the testimony of

Sudarshan Paridha (PW-4) who states that on 30.8.2008 J.P.

Thakur had sent a message through the accused that

prosecutrix be sent to the guest house for cleaning and

doing other jobs. At about 8.30 a.m. he left the prosecutrix

at guest house No. 80 and went for his work at the adjacent

guest house No. 91. After about an hour and half,

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prosecutrix came weeping and informed that while she was

washing clothes, accused ravished her. He confronted the

accused, who not only denied but dared him to take action.

Immediately thereafter, he telephonically informed the

officers of his employer and two officers namely Ranbir and

Sikka came to the guest house to whom clothes stained

with semen were shown. The matter was reported to the

police and F.I.R (Ext. PW-4/A) registered.

14. We do not find his version to be inspiring in

confidence. This we say so for the reason that accused was

not an employee of M/s Unichem Laboratories . He was

employed by a third agency and discharging duties as a

security guard at the guest house. Now why would the

witness send his wife to the guest house on the asking of a

third person particularly when he admits of not being asked

by J.P. Thakur for sending the prosecutrix to the guest

house? Most significantly he admits that entry of ladies is

not permitted in any of the guest houses. There is no

evidence of the accused being on duty at the time of the

alleged offence. Also it is not his case that accused used to

stay in the guest house or stealthily entered for committing

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the crime. It is also not his case that even on an earlier

occasion, either on the asking of J.P. Thakur or otherwise,

prosecutrix had visited the guest house and cleaned the

utensils or washed clothes.

15. Jai Parkash (PW-6) does not state that he had

desired the prosecutrix to come and clean the guest house

or wash utensils/clothes. In fact he admits that at the time

of the incident other guests of the Company were also

residing in very same guest house, which fact also stands

admitted by Sudarshan Paridha. It is not that either the

Company or J. P. Thakur had been utilizing services of the

prosecutrix for doing such menial jobs. Now if women were

not allowed in the guest house, then where is the question

of Sudarshan Paridha leaving the prosecutrix alone, in the

guest house for doing such menial jobs.

16. Prosecutrix can only understand and speak in

Oriya language, as such, her statement, in court, was g ot

recorded through the translator Manoj Biswal (PW-2).

17. Prosecutrix (PW-3) states that on 30.8.2008, at

about 8 – 9 P.M. her husband left her in the guest house as

she was required to wash clothes. What work accused used

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to do in the guest house and on who se asking she came

there, she does not disclose. All that she states is that

accused who was present in the guest house asked her to

wash clothes. When she went to the bath room, he lifted

her, laid her on the bed and after closing the door and

opening her blouse sexually assaulted her. While doing so,

he lifted her sari and petti-coat. In anger, she scratched his

ears and nose. With the completion of act, by opening the

door, she went to her husband and narrated the incident.

She states that when confronted by her husband, accused

denied having committed any illegal or indecent act. Her

husband brought the matter to the notice of two officers of

the Company. The matter was reported to the police who

seized bed sheet (Ext. P-1), her clothes i.e. sari (Ext. P-2),

blouse (Ext. P-3), Petti-coat (Ext. P-4) and bra (Ext. P-5)

which were sealed with seal impression ‘Y’.

18. We do not find the version of the prosecutrix to

be inspiring in confidence at all. Prosecutrix is not an

employee of the Company. It is not that in the past she had

been visiting the guest house and/or cleaning the area

under occupation of Jai Parkash. The alleged incident took

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place at 9.00 a.m. Prosecutrix admits that the guest house

where her husband is working is just near the place of

crime. Also there are residences closeby. Significantly she

never shouted or cried for hel p. Why so? remains

unexplained. Her cries would have invited attention of the

other residents.

19. Her version that she resisted the alleged acts of

the accused by giving scratch marks does not inspire

confidence at all, for we find defence taken by the accused,

of having been beaten by the police , to have been

probablized in the instant case. Surprisingly there are no

marks of injury on her body. Further witness states that

accused bodily lifted her, laid her on the bed and thereafter

he opened her blouse. Significantly none of her clothes

were torn, nor any scratch marks found either on private

parts or any other part on her body. Signs of struggle are

also absent. If the accused had applied force, in natural

course, it would not have been possible for him to have

opened the blouse without any resistance. There was no

threat or intimidation to her life.

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20. Also there is material contradiction in her

statement with regard to handing over of her clothes to the

police. She is categorical that the bed sheet and her

clothes, so stained with semen were collected by the police

from the guest house, which version stands belied by Dr.

Neeraj Rajan (PW-5), who in fact handed over the clothes of

the prosecutrix to the police in the hospital, which fact

stands admitted by the police officials.

21. Further her testimony is full of improvements

and embellishments. She was confronted with her previous

statements (Ext. D-1 and Ext. PW-2/A) wherein it is not

recorded that accused lifted her from the back and laid her

on the bed; that accused had asked her to wash clothes;

accused bolted the door from inside and after the incident

she unbolted the same and ran away from the spot.

Significantly, in Court, for the first time, she states that her

son was with her. It has come on record that she has two

children. Now why would she keep only one child with her is

not clear from the record.

22. In the backdrop of the aforesaid discussion we

find that examination of Ranbir and Sikka, who were called

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to the spot was relevant as they would have only revealed

the exact events which took place on the spot. Presence of

the prosecutrix, in the guest house would have been

testified only by them. She is not even aware of the number

of rooms in the guest house. Then how is it that she was

able to go to that portion of the guest house which was

under occupation of Jai Parkash. In fact, we have doubt

about her presence in the guest house. Also it has not

come on record as to which employer of the accused had

deputed him to guard the guest house on the date and time

of the incident. Posting of the accused at the guest house,

at the relevant time, remains unproved. None other than

the prosecutrix has sought to prove the pre sence of the

accused. Defence taken by the accused stands suggested

to the witnesses.

23. Thus it would be absolutely unsafe to solely rely

upon the testimony of the prosecutrix for holding the

accused guilty of the charged offences. Prosecution

evidence cannot be said to be reliable and believable.

24. Having perused the testimony of the prosecution

witnesses on record it cannot be said that prosecution has

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been able to prove its case, beyond reasonable doubt, to

the effect that accused wrongfully confined the prosecutrix

in the guest house of M/s Unichem Laboratory and

thereafter raped her and also threatened her with dire

consequences, by leading clear, cogent, convincing and

reliable material on record.

25. The Court below, in our considered view, has

correctly and completely appreciated the evidence so

placed on record by the prosecution. Prosecution witnesses

cannot be said to be inspiring in confidence or worthy of

credence. It cannot be said that the judgment of trial Court

is perverse, illegal, erroneous or based on incorrect and

incomplete appreciation of material on record resulting into

miscarriage of justice.

26. The accused has had the advantage of having

been acquitted by the Court below. Keeping in view the

ratio of law laid down by the Apex Court in Mohammed

Ankoos and others versus Public Prosecutor, High Court of

Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, since it

cannot be said that the Court below has not correctly

appreciated the evidence on record or that acquittal of the

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accused has resulted into travesty of justice, no

interference is warranted in the instant case.

For all the aforesaid reasons, present appeal,

devoid of merit, is dismissed, so also pending applications,

if any. Bail bonds, if any, furnished by the accused are

discharged. Records of the Court below be immediately

sent back.

(Sanjay Karol),

Judge.

(P. S. Rana),

Judge.

August 17 , 2015 (PK)

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