Ram Singh @ Chhaju vs State Of Himachal Pradesh on 28 January, 2010

      IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION

                 CRIMINAL APPEAL NO. 1248 OF 2008

 Ram Singh @ Chhaju .............. Appellant  Versus

State of Himachal Pradesh ..............Respondent    JUDGMENT

H.L. Dattu, J.

 1) This appeal, by the accused, arises out of the judgment of  High Court of
Himachal Pradesh in Criminal Appeal No. 142 of  1994 dated 20.3.2008, whereby
the appellant is convicted for the  offence of rape punishable under Section 376
of Indian Penal Code  by reversing the judgment of Additional Sessions Judge,
Kangra  Division in Sessions Case No. 9 of 1992 dated 2.8.1993. The High  Court
has come to the conclusion that the prosecution has brought  home the charge
under Section 376 of I.P.C. and has sentenced the  appellant to suffer rigorous
imprisonment for ten years and to pay  1

      a fine of Rs.5000/-, in default of payment of fine to undergo  rigorous
imprisonment for a further period of one year. The  accused feeling aggrieved
sought special leave to appeal, on the  same being granted, this appeal is
before us.

  2) Co-accused Naresh Singh alias Titta died during the  pendency of appeal
before the High Court.

 3) We shall state the facts of the case as put forth by the  prosecution:- Smt.
Chanchala Devi, hereinafter referred to as the  "victim", is the
resident of village Dhabian and, was midwife by  profession. Shri Chattar Singh
is the husband of Smt. Chanchala  Devi. Shri Ashok Kumar (PW-7) is her son. The
accused are the  residents of village Guriyal, which is situated at a distance
of about  2 Kms from village Dhabian. Smt. Chanchala Devi - Victim was  present
in her house on August 13, 1989. She had gone to bed  along with her husband
after taking her meal on that day. Her son  Ashok Kumar (PW-7) aged about 24
years was present in the  house and was sleeping in the courtyard of the house.
That night  i.e. on the night of 12/13th August, 1989, PW-7 Ashok Kumar  woke up
his mother Chanchala Devi and told her that Naresh  2

 Singh alias Titta (dead) has come to call her as his Bhabi, who was  not named
by him, has been having labour pains in village Guriyal.  The victim went out of
the room and saw Naresh Singh alias Titta  sitting on the cot of her son in the
verandah of the house. The case  of the prosecution is that, though the victim
refused to the request  made by Naresh Singh alias Titta stating that it was not
convenient  for her as she was having tooth ache, however, after being
persuaded by Naresh Singh alias Titta and also by her son PW-7  Ashok Kumar, the
victim agreed to accompany Naresh Singh alias  Titta to his house situated at
village Guriyal. When they had  covered a distance of about 30 yards from the
house of victim, the  appellant Ram Singh alias Chhaju also met them. They all
continued walking towards the house of Naresh Singh alias Titta.  When they had
reached a place known as Tapukar, Naresh Singh  alias Titta caught hold of the
victim and the appellant Ram Singh  alias Chhaju laid her on the ground and
opened her trousers. The  victim tried to raise alarm, but the Naresh Singh
alias Titta dealt a  fist blow on her mouth and then gagged it. Both the accused
performed sexual intercourse forcibly with the victim and  thereafter sneaked
away from the place. After returning home,    3

 victim had narrated the whole incident to her husband and son. The  son of the
victim PW-7 Ashok Kumar brought PW-4 Niaz Deen,  the Pradhan of the Panchayat on
the same night. He was apprised  of the incident by the husband of the victim.
On his advice, on the  following day i.e. on 14.8.1989, the victim being
accompanied by  her husband reported the matter at police station Nurpur, where
her  statement was recorded on the basis of which the first information  report
was registered on 14.8.1989. She was got medically  examined at about 12.15 P.M.
on the same day. The doctors had  opined that victim had been subjected to
sexual intercourse 12 to  14 hours prior to her medical examination. The accused
were also  got medically examined by Dr. Anil Mahajan (PW-3), who had  opined
that there was nothing suggesting that the accused were  incapable of performing
sexual intercourse. On completion of the  investigation, the final report was
filed in the court of Sub-  Divisional Magistrate, Nurpur. The case was
committed by the  learned Magistrate to the Additional Sessions Court, Kangra
Division at Dharmashala (Himachal Pradesh) on 6.5.1992, and the  same was
numbered as Sessions Case No. 9 of 1992. Charges  were framed under Section 376
read with Section 34 of Indian    4

      Penal Code and put up for trial before the Additional Sessions  Judge,
Nurpur.

 4) The accused persons pleaded not guilty to the charge. Their  defence was
that they have been falsely implicated by the victim  on account of animosity.

 5) In support of its case, the prosecution examined the victim  Smt. Chanchala
Devi (PW1) who has supported the prosecution  version in all its material
particulars. Niaz Deen (PW-4) was also  examined as a witness of fact, but he
was declared hostile and  cross examined by State counsel. Dr. S. Mahajan,
(PW-2) was  examined to prove the medical examination report of the victim.  Dr.
Anil Mahajan (PW-3) was examined to prove the medical  examination report of the
accused. Sardar Balwant Singh, (PW-5)  was examined to prove the statement of
the accused made before  the Station House Officer, but, he was declared hostile
and cross  examined by the State counsel. Ashok Kumar, (PW-7), son of the
victim was examined to corroborate the statement of the victim.   6) The trial
court has found that the prosecution has not been  able to prove that the
accused persons had sexual intercourse with  5

      the victim. Accordingly, has acquitted the appellant herein of the  crime.

 7) The State of Himachal Pradesh had carried the matter by  filing Criminal
Appeal No. 142 of 1994 under Section 378 of the  Code of Criminal Procedure
before the High Court of Himachal  Pradesh against the decision of the trial
court. The High Court has  allowed the appeal vide its judgment dated 20.3.2008,
by setting  aside the judgment and order of the trial court and after hearing
the  accused while deciding on the quantum of sentence, has convicted  the
accused under Section 376 of the I.P.C. and sentenced to  undergo rigorous
imprisonment for ten years and to pay a fine of  Rs. 5,000/-, in default of
payment of fine to undergo rigorous  imprisonment for a period of one year which
has given rise to this  appeal.

 8) While assailing the judgment of the High Court, the learned  counsel for the
appellant has contended that the finding of  conviction of the High Court is
unreasonable and not justified on  the material on record. It is not proved by
reliable and independent  evidence that the incident alleged had taken place. It
is also not    6

       proved from the medical evidence that rape had been committed by  the
appellant and the co-accused and there is no corroboration of  the evidence of
the victim by any independent evidence and the  testimony of the victim is not
reliable and trustworthy and the  conviction on the sole testimony of the victim
is not justified.    9) Learned counsel for the appellant has laid great stress
on the  proposition that the testimony of the victim required corroboration  and
as no independent corroboration was available, the trial court  rightly had
passed an order of acquittal which should not have  been upset by the High Court
in an appeal filed by the State.   10) The High Court in its judgment has stated
that the trial court  has erred in appreciating the testimony of the witnesses
to the  extent the victim has nowhere mentioned in her statement that the
appellant Naresh Singh alias Titta (dead) had taken any particular  name when he
had requested her to accompany him to facilitate the  delivery of his Bhabhi.
The High Court has also observed that  there is no contradiction in the
testimony of victim and her son  PW-7 Ashok Kumar as both have testified that
there was  reluctance shown by victim to accompany the appellant Naresh  7

       Singh alias Titta (dead) at around 12.00 a.m. at night, to facilitate
the delivery of his Bhabhi. The High Court has also observed that  the Trial
Judge was not justified in coming to the conclusion that  Ashok Kumar (PW-7)
could not have heard the narration of the  incident by the victim to her husband
since he was sleeping in the  court yard. The High Court has also noticed that
the observation  of Additional Sessions Judge that the victim did not name the
culprits while narrating the incident to PW-4 Niaz Deen Pradhan of  village
Dhabian contradicts the prosecution case, cannot be held to  be correct as the
husband of victim in her presence had already told  that she was raped by the
appellants. Therefore, it is not reasonable  to expect from the victim who was
under shock due to the incident,  to narrate the same to PW-4 Niaz Deen Pradhan
in presence her  husband and son.

 11) The High Court has also found it difficult to accept the  reasoning of the
Trial Court about the fact that there were no  injuries on the person of the
victim belied her testimony that she  was subjected to forcible sexual
intercourse. The High Court has  observed that the victim was suffering from
toothache because of  which she was unable to firmly resist, and further she
could not  8

 raise alarm since her mouth had been gagged by the accused  persons. The Court
has also observed that though the blow with  the fist was given on her mouth by
the appellant, it may not have  caused any serious injury. However, being an old
lady of more  than 40 years at the relevant time and the appellants being young
men both around 20 years, the victim could not have been put up a  strong
defence. The High Court has also pointed towards the  finding that the spot
where the victim was raped, shown in the spot  inspection map Ext.PK and which
has been proved by the  Investigation Officer PW-11 Govardhan Dass, shows that
at the  site of incident, grass and plants of some crop were found damaged  and
ruffled. The High Court is also not convinced with the trial  court's
observation that the victim at the late hours of the night  should have been
accompanied either by her husband or her son.  The High Court observes that
there was nothing unusual about  victim going alone with the appellants as it is
normal practice to go  with male members to facilitate the deliveries as the
midwives are  respected like mothers. Therefore, there was no reason for herself
or her husband and son to disbelieve the appellant and deny the  request of
appellant in that situation. The entire conspectus of the    9

       case was viewed by the High Court in vivid detail to come to the
conclusion that the appellant was guilty of the crime.   12) It was submitted
before us by the learned counsel for the  appellant that there was no injury on
the person of the victim.  According to him, if there was sexual assault on the
victim, she  would have resisted the offender and in that process she would
have received some injuries on other parts of the body. Much  importance cannot
be given to the absence of defence injuries,  because it is not inevitable rule
that in the absence of defence  injuries the prosecution must necessarily fail
to establish its case.  In the first information report and also in the evidence
of PW-1, it  has come on record that she could not cry out for help since her
mouth was gagged by the accused. It has also come in the  evidence that the
victim was aged about 40 years and the accused  persons were young and aged
about 20 years and, therefore, she  was not in a position of equal strength so
as to resist the appellants.  Even in the absence of any injuries on the person
of the victim, in  our view, with the other evidence on record, the prosecution
is able  to establish that the offence was committed.

   10

 13) It was contended by the learned counsel for the appellant  that the blood
stained clothes which were said to have been handed  over to the Officer-in-
Charge at the Police Station by the husband  of the victim were not sent for
chemical examination and,  therefore, the corroboration with which such evidence
could offer  was absent. In our view, the failure of the investigating agency
cannot be a ground to discredit the testimony of the victim. The  victim had no
control over the investigating agency and the  negligence, if any, of the
investigating officer could not affect the  credibility of the statement of PW-1
- the victim. Having regard to  the facts and circumstances of this case, we are
satisfied that on the  basis of the evidence on record, the conviction of the
appellant can  be sustained.

  14) It is also submitted that in the absence of any injury on the  private
parts of the victim, the High Court should have disbelieved  the prosecution
story. In our view, it is difficult to accept the  submission of the learned
counsel. The reason being the doctor  who has been examined as PW-2 has found
that the victim PW-1  was used to sexual intercourse and as such absence of
injury on the    11

       private parts of the victim may not be very significant. PW-1 was  also
used to sexual intercourse. The evidence of the victim has  been corroborated by
the evidence of PWs.2 and 3, the two post  occurrence witnesses, as well as by
the FIR which was lodged  without any delay. Therefore, it is difficult to
differ from the  findings of the High Court.

  15) In the present case, the testimony of the victim inspires  confidence. Her
testimony is not only corroborated by other  witnesses but also by the medical
evidence. Even if the statement  of Niaz Deen, PW-4 is not taken into
consideration, the other  corroborative evidence in the case is sufficient to
connect the  accused with the crime.

  16) Before we conclude, out of sheer deference to learned  counsel for the
appellant, we intend to notice the feeble submission  made by the learned
counsel for the appellant. It is contended by  the learned counsel that the
findings and the conclusion reached by  the Sessions Court is one of the
possible view in the facts and  circumstances of the case and therefore, the
High Court ought not    12

 to have taken a different view and passed an order of conviction  against the
appellant. In aid of this submission, the learned  counsel has invited our
attention to the observations made by this  Court in the case of Perla
Somasekhara Reddy and Ors. Vs. State  of A.P. ( 2009) 7 SCALE 115. In our
considered view, the  submission of the learned counsel has no merit. This Court
in the  aforesaid case by way of universal application has not stated, that,
whenever there is a judgment and order of acquittal by the  Sessions Court, the
High Court under no circumstances would  interfere with the said order even when
it comes to the conclusion  that the findings and conclusion reached by the
trial court is based  on mere conjecture and hypothesis and not on the legal
evidence.  In fact, in the aforesaid decision this Court has taken note of what
has been stated by this Court in the case of Chandrappa and Ors.  Vs. State of
Karnataka (2007) Crl.L.J. 2136, wherein apart from  others, it is stated, that
the appellate court has full power to review,  re-appreciate and reconsider the
evidence upon which the order of  acquittal is founded; the Code of Criminal
Procedure, 1973 puts  no limitation, restriction or condition on exercise of
such power  and an appellate court on the evidence before it may reach its own
13

 conclusion, both on questions of fact and of law; various  expressions, such
as, "substantial and compelling reasons", "good  and sufficient
grounds", "very strong circumstances", "distorted
conclusions", "glaring mistakes", etc. are not intended to
curtail  extensive powers of an appellate court in an appeal against  acquittal.
Such phraseologies are more in the nature of "flourishes  of language"
to emphasis the reluctance of an appellate court to  interfere with acquittal
than to curtail the power of the court to  review the evidence and to come to
its own conclusion; an  appellate court, however, must bear in mind that in case
of  acquittal, there is double presumption in favour of the accused.  Firstly,
the presumption of innocence is available to him under the  fundamental
principle of criminal jurisprudence that every person  shall be presumed to be
innocent unless he is proved guilty by a  competent court of law. Secondly, the
accused having secured his  acquittal, the presumption of his innocence is
further reinforced,  reaffirmed and strengthened by the trial court; and if two
reasonable conclusions are possible on the basis of the evidence on  record, the
appellate court should not disturb the finding of  acquittal recorded by the
trial court.

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 17) In the present case, the High Court on re-appreciation of  evidence on
record has differed with the findings of the Sessions  Court on the innocence of
the accused and has found him guilty of  the charges leveled against him. The
High Court after evaluating  the manner in which the evidence and other
materials on record  has been appreciated as well as the conclusions arrived at
by the  Sessions Court, has come to the conclusion that the findings of the
Sessions Court are perverse and has resulted in miscarriage of  justice has re-
appreciated the evidence and materials on record and  has found that the
appellant is guilty of the offence alleged.  Therefore, in our view, the
decision on which reliance has been  placed by learned counsel for the appellant
would not assist him in  any manner whatsoever.

  18) The result of the aforesaid discussion leads to only one  conclusion that
the accused committed forcible rape on the victim  on the intervening night of
12/13th August, 1989, as alleged by her,  and his conviction by the High Court
is quite justified being based  on evidence on record. It is, therefore,
confirmed.     15

   19) We, therefore, find no merit in this appeal and the appeal is,
accordingly, dismissed.

  .......................................J.

                                           [ P. SATHASIVAM ]

  .......................................J.

                                           [ H.L. DATTU ]

New Delhi,

January 28, 2010

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