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Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice: Himachal Pradesh High Court.

Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, upheld by the High Court of Himachal Pradesh through the learned Judge JUSTICE VIVEK SINGH THAKUR, in the case of  Suraj @ Surjit Singh & Another v. State of Himachal Pradesh (Criminal Appeal No. 340 Of 2012).

Brief facts of the case:

Judgment in Sessions Trial, passed by Additional Sessions Judge, Kinnaur at Rampur, Himachal Pradesh, acquits both the accused on all counts after finding the prosecution failed to establish its case through the testimony of 12 witnesses.

Both the prosecutrix and her husband, Durga Dass, are crucial witnesses for the prosecution.

It’s common knowledge that the prosecutrix is a married woman. On September 26, 2008, she was allegedly the victim of sexual assault by both of the defendants. While she was walking along a lonely lane on her way to her parents’ house in Lagora, the Accused Suraj grabbed her by the arm and sexually assaulted her before calling the other Accused, Hari Singh, on his cell phone. For the sole reason of the threats made by these two individuals, she never went to the police to report the attack. But on 8.11.2008, the prosecutrix learned that she was pregnant, and her husband promptly filed the FIR mentioned above with the police. The prosecutrix was transported to the doctor, and her medical records were recorded. Forensic investigators ASI Kanwar Singh and SI Dulo Ram were in the middle of their case when the prosecutrix delivered birth. DNA profiling tests undertaken by the police determined that Suraj, the suspect, was indeed the child’s biological father.

Looking over the testimony of the prosecutor and her spouse, we determine that the prosecution has not made their case. Witnesses’ accounts do not instil trust, and their version does not seem credible. We find the prosecutrix’s statements to be inconsistent with one another. There are also enhancements, exaggerations, and embellishments documented, all of which are puzzling and cast doubt on their account. It is also unclear why the FIR was not filed for more than a month. It is also unclear how the prosecutrix and her husband were able to contact the accused in the first place if their account is to be believed, given that the accused’s identification was not included in the FIR. Nothing in this disclosure even slightly links anyone other than the accused to the crime.

It seems from perusing the FIR that the prosecutrix was the victim of a sexual assault on 26.9.2008. When filing the FIR, she said simply that one man had raped her and then called the bus’s conductor over the phone, but she later revealed that she knew the conductor’s identity and that he drives a bus on the Tharla-Ani route. She goes on to explain that she was too embarrassed to tell anybody about what happened. Only after she discovered that she had conceived a kid, which cannot be that of her husband, for he had already had operation of sterilisation, did she report the occurrence to her husband on 8.11.2008.

Test Identification Parade was allegedly not run by the investigating officers. There is no evidence in the file to show how the police located the suspect. Prosecutor and her husband may have positively identified the defendants in court as the perpetrators of the crime, but it remains an open question how the police were able to locate the defendants in the first place and perform a medical examination as part of their investigation. The accused’s name was never divulged to police, and neither the prosecutrix nor her husband came forwards to reveal it. The alleged bus driver wasn’t the only one who plied that route, either. Obviously, the police report does not tell the complete story. To be clear, we have not considered this in any way in making our decision about the present appeal.

The Prosecutrix wants the Court to think that she kept quiet about the incident, even from her parents and husband, out of shame and fear of retaliation. The problem is that we don’t find this version of her to be particularly confident. Neither she nor her husband ever reported the alleged threats to authorities. Since she writes, “I have filed this lawsuit as I got pregnant,” it is clear that the prosecutrix did not reveal the event or register the complaint until after she discovered she was pregnant. Since she now confesses that she did not include the purported threat in her first statement, it is clear that her original allegation was an exaggeration. As for where the prosecutrix went after leaving the scene of the crime, she says it was to her parents’ house. She does concede that one JCB equipment was operating nearby (within around half a kilometre). The alleged crime did not occur at a very dark or particularly late hour. For whatever reason, the alleged crime occurred in broad daylight. Lawyer approached her parents’ home. Therefore, she may have told someone about what happened right away. She further acknowledges that she did not put up any resistance to the accused’s abuse. Moreover, she reveals that she specifically requested that the Driver not contact the Conductor. Granted, it took this Conductor 5 minutes to get there. What else she did during that time is unclear. Her defence does not include any explanation for how the claimed threats were made either before or after the time the accused Suraj raped her. Her account of a sexual assault, as she describes it, lacks credibility.

Version of the prosecutrix of accused Suraj having phoned, on telephone, his co-accused Hari Singh, also remained uncorroborated on record. No transcript of the phone call has been submitted to the court. However, the prosecutrix’s own testimony under cross-examination casts serious doubt on her account, since she admitted that the bus in issue was parked in the village of Kalag, some four to five kilometres away from the actual murder scene. It is humanly impossible to cross such a distance, on foot, within five minutes.

Interestingly, she made zero efforts to uncover the name of the perpetrator. She only says, “I found out later that the driver’s name was Suraj and the conductor’s name was Hari” when asked to name the two individuals she positively recognised in court. We find her inconsistent on this point: in one breath she says that I had never seen the accused person before this incident, while in the next she says that I had visited Durah two to four times on the accused person’s bus. To say that the accused driver’s bus was the only one doing the Tharla-Ani run is not consistent with the evidence presented by the prosecution. After the incident, she says she went about her daily life as usual. She was unrestricted in her travels and frequently visited her parents’ and other loved ones’ homes. She claims that both of the accused sexually assaulted her, but there is no reason to believe her.

Reviewing the evidence of the prosecutor’s spouse, Durga Dass, we determine that he has not helped the prosecution’s case. After the fact, he says he inquired about the attackers and learned their identities, but he doesn’t say where or how he got this information.

It has been documented that the infant passed away around two months after delivery. According to the report of the Expert, which was submitted to prove the factum of paternity, Suraj was indeed the biological father of the deceased infant Satish Kumar. This fact alone would not be enough to prove the defendant’s guilt in this case. We don’t think this is a case of sexual assault, but rather one of questionable consent.

JUDGEMNET:

There’s no need to elaborate on the topic at hand because the prosecutrix’s own testimony on the issue of sexual assault is judged to be unconvincing under the circumstances.

The prosecution has not shown sufficient evidence to establish beyond a reasonable doubt that the defendants gang raped the prosecutrix and, in furtherance of their shared objective, unlawfully confined and criminally intimidated her, as required by law.

Given the above, we see no basis to overturn the trial court’s decision. The Court has carefully considered all of the evidence the parties have submitted.

The accused have the upper hand because they were cleared by the lower court. This Court cannot say that the Court below has not correctly appreciated the evidence on record or that the acquittal of the accused has resulted in a travesty of justice, in light of the ratio of law laid down by the Apex Court in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad. Interference is not warranted, thus there is no need to resort to it. The current appeal is denied. The accused’s bail bonds, if any, are released.

JUDGEMENT REVIEWED BY – HARILAKSHMI

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