RAM SINGH @ CHHAJUversusSTATE OF H.P.

                    [2010] 2 s.C.R. 95


                 RAM SINGH @ CHHAJU                             A
                             v.
                      STATE OF H.P.
            (Criminal Appeal No. 1248 of 2008)

                    JANUARY 28, 2010
                                                                B
         [P. SATHASIVAM AND H.L. DATIU, JJ.]

     Penal Code, 1860 - s. 376 - Allegation of commission
of rape on victim by accused - Acquittal by trial court -
Convicted uls. 376 and sentenced to rigorous imprisonment       C
for ten years by High Court - Sustainability of - Held:
Sustainable - Conviction by High Court based on evidence
on record - Testimony of victim corroborated by witnesses as
also by medical evidence - At the site of incident, grass and
plants found damaged and ruffled - Absence of injuries on       D
the person of victim and her private parts not fatal to the
prosecution case - Failure of investigating officer to send
blood stained clothes of victim for investigation would not
discredit the testimony of victim.
                                                                E
    The question which arose for consideration in this
appeal was whether the High Court was justified in
convicting the appellant for the offence of rape
punishable u/s. 376 IPC and sentencing him to rigorous
imprisonment for ten years, by setting aside the order of
acquittal by trial court.                                       F

    Dismissing the appeal, the Court

    HELD: 1. The accused committed forcible rape on
the victim, as alleged by her, and his conviction by the        G
High Court is quite justified being based on evidence on
record. It is, therefore, confirmed. [Para 18] [108-C-D]

    2.1. The submission that the findings and the

                            95                                  H
    96     SUPREME COURT REPORTS               [2010] 2 S.C.R.


A 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 to have taken a
  different view and passed an order of conviction against
  the appellant, has no merits. High Court on re-
8 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
c 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 and has found that the
  appellant is guilty of the offence alleged. [Paras 16 and
D 17] [106-F-G; 107-G-H; 108-A-B]

        Perla Somasekhara Reddy and Ors. vs. State of A. P.
    (2009) 7 SCALE 115; Chandrappa and Ors. vs. State of
    Kamataka (2007) Crl.L.J. 2136 - held inapplicable.

E      2.2. The High Court in its judgment stated that the
  trial court erred in appreciating the testimony of the
  witnesses to the extent the victim nowhere mentioned in
  her statement that the appellant (dead) had taken any
  particular name when he had requested her to
F accompany him to facilitate the delivery of his sister-in-
  law. High Court also observed that there is no
  contradiction in the testimony of victim and her son PW-
  7 as both of them testified that there was reluctance
  shown by victim to accompany the appellant at around
G 12.00 a.m. at night, to facilitate the delivery of his sister-
  in-law. High Court also observed that the trial judge was
  not justified in coming to the conclusion that 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.

H
      RAM SINGH @ CHHAJU v. STATE OF H.P.                 97


High Court also noticed that the observation of trial judge     A
that the victim did not name the culprits while narrating
the incident to PW-4 of the village 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           B
reasonable to expect from the victim who was under
shock due to the incident, to narrate the same to PW-4
in presence of her husband and son. [Para 10) [103-E-H;
104-A-B]

       2.3. High Court also found it difficult to accept the
                                                                c
  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. High Court observed that the victim was
  suffering from toothache because of which she was             D
  unable to firmly resist, and further she could not raise
  alarm since- her mouth had been gagged by the accused
 persons. The court 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        E
 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 put up a strong defence. High
 Court also pointed towards the finding that the spot
 where the victim was raped, shown in the spot inspection       F
 map and which was proved by the Investigation Officer
 PW-11 shows that at the site of incident, grass and plants
 of some crop were found damaged and ruffled. High
 Court is also not convinced with the trial court's
 observation that the victim at the late hours of the night.    G
 should have been accompanied either by her husband
 or her son. High Court observed 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.      H
    98      SUPREME COURT REPORTS              (2010] 2 S.C.R.


A Therefore, there was no reason for- -b.erself or her
  husband and son to disbelieve the appellant and deny
  the request of appellant in that situation. The enti.re__
  conspectus of the case was viewed by the High Court in
  vivid detail to c-ome to the conclusion that the appellant
B was guilty of the crime. [Para 11] [104-C-H; 105-A-B]

      2.4. 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 PW-4 is not taken into consideration, the
C other. corroborative evidence is sufficient to connect the
  accused with the crime. [Para 15] [106-D-E]

         2.5. Regarding the submission that there was no
    injury on the person -of the victim, and if there was sexual
D   assault on the victim, she would have resisted the
    offender and in that process she would have receive_~-_
    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
E   absence of defence injuries the prosecution must
    necessarily fail to establish its case. In the FIR 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
F   victim was aged about 40 years and the accused p~rs~ns
    were young and aged about 20 years, therefore, she was
    not in a position of eq~al strength so as to resist the
    appellants. Even in the absence of any injuries on the
    person of the victim, with the other evidence on record,
G   the prosecution is able to establish that the offence was
    committed. [Para 12] [105-8-E]

         2.6. It cannot be said that in the absence of any
    injury on the private parts of the victim, the High Court
    should have disbelieved the prosecution story. The·
H
      RAM SINGH @' CHHAJU v. STATE OF H.P.                 99


reason being the doctor who was examined as PW-2                 A
found that the victim PW-1 was used to sexual
intercourse and as such absence of injury on the private
parts of the victim may notbe very significant. PW-1 was
also used to sexual intercourse. The evidence of the
victim has been corroborated by the evidence of PWs. 2           B
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.
(Para 14] (106-8-C]

     2.7. It was submitted that the blood stained clothes        C
which were said to have been handed over to the Officer-
i n-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. The failure of the investigating         D
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         E
and circumstances of this case, on the basis of the
evidence on record, the conviction of the appellant can
be sustained. [Para 13] [105-E-H; 106-A]
                     Case Law Reference:                         F
    (2009) 7 SCALE 115        Held inapplicable. Para 16
    (2007) Crl.L.J. 2136      Held inapplicable. Para 16
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1248 of 2008.                                                G

    From the Judgment & Order dated 20.3.2008 of the High
Court of Himachal Pradesh at Shimla in Criminal Appeal No.
142 of 1994.
                                                                 H
    100      SUPREME COURT REPORTS                [2010] 2 S.C.R.


A         S.N. Bhardwaj, S. Ramamani for the Appellant.

          Naresh K. Sharma for the Respondent.

          The Judgment of the Court was delivered by

B      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
c 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 h.ome the
  charge under Section 376 of l.P.C. and has sentenced the
  appellant to suffer rigorous imprisonment for ten years and to
D pay 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
E 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
F 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
G 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
H Chanchala Devi and told her that Naresh Singh alias Titta
      RAM SINGH@ CHHAJU v. STATE OF H.P.                      101
               [~.L. DATTU, J.]

  (dead) has come to call her as his Bhabi, who was not named         A
  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    B
 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          c
 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          D
 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, victim had narrated the whole           E
 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       F
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.          G
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 intercowse. On completion of the investigation, the final
report w~s file'd in the court of Sub-Divisional Magistrate,          H
    102     SUPREME COURT REPORTS .               [2010] 2 S.C.R.


A   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. 9of1992. Charges were framed' under
    Section 376 read with Section 34 of Jndian Penal Code and
B   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.

C        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 '3Xamined by State counsel. Dr. S.
D   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
E   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 ab\e \o pro\Je \ha\ \he accused persons had sexua\
F .intercourse with 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
G 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
H quantum of sentence, has convicted the accused under Section
      RAM SINGH @ CHHAJU v. STATE OF H.P.                      103
                [H.L. DATIU-, J.]
376 of the 1.P.C. and sentenced to undergo rigorous                   A
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. 1While assailing the judgment of the High Court, the
                                                                      8
learned counsel for the appellant has contended that the finding
of conviction of the High Court is unreasonable and n~t 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 proved from the medical evidence that rape had         C
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..    '
                                                                      D
     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             E
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      F
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                 G
appellant Naresh 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        H
    104      SUPREME COURT REPORTS                   [2010) 2 S.C.R.


A   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
s   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 of her husband and son.
c         11. The High Court hc;ts 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
D   because of which she was unable to firmly resist, and further
    she could not 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,
E   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 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
F   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
G   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
H   herself or her husband and son to disbelieve the appellant and
      RAM SINGH @ CHHAJU v. STATE OF H.P.                     105
                [H.L. DATTU, J.]
deny the request of appellant in that situation. The entire           A
conspectus of the 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       8
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      C
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           D
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     E
committed.

      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       F
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           G
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        H
    106      SUPREME COURT REPORTS                  [2010] 2 S.C.R.


A 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
8
  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 private parts of the victim may not be
  very significant. PW-1 was also used to sexual intercourse. The
C 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
D 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.
E
        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
F possible view in the facts and circumstances of the case and
  therefore, the High Court ought not 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
G 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 nof stated, that, whenever
  there is a judgment and order of acquittal by the Sessions
H
      RAM SINGH @ CHHAJU v. STATE OF H.P.                      107
                [H.L. DATTU, J.]
 Court, the High Court under no circumstances would interfere         A
 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           8
  Chandrappa and Ors. vs. State of Kamataka (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       C
 condition on exercise of such power and an appellate court on
 the evidence before it may reach its own 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",
                                                                      0
 "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            E
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           F
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       G
disturb the finding of acquittal recorded by the trial court.

     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
                                                                      H
    108        SUPREME COURT REPORTS               [2010] 2 S.C.R.


A 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
8 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
  co1-1nsel for the appellant would not assist him in any manner
C 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
D justified being based on evidence on record. It is, therefore,
  confirmed.

        19. We, therefore, find no merit in this appeal and the
           0




    appeal is, accordingly, dismissed.

    N.J.                                        Appeal dismissed.