State of Himachal Pradesh v. Hukum Chand Alias Monu

1. The State of Himachal Pradesh, aggrieved by final judgment and order dated 3rd June 2014 in Criminal Appeal No 721 of 2008[1] whereby the learned Division Bench set aside the findings of guilt and consequent sentence returned by the District and Sessions Impugned judgment Judge, Mandi[2] in Sessions Case No. 12 of 2008 in terms of the judgment dated 12th September 2008 and instead, entered a finding of acquittal against the respondent-accused, has preferred this appeal.

2. A nine-year-old girl was sent by her mother to fetch buttermilk bright and early in the morning of 27th August 2007, however, the brightness was soon extinguished. She was taken into a cowshed by the neighbour’s son and sexually assaulted. Upon returning home, she described the horrifying incident to her mother and later in the day to her father, who was a mason by profession and worked elsewhere. He made a couple of phone calls, including one to the little girl’s maternal uncle, who visited their home subsequently and they went and filed the First Information Report[3] with the police. The victim was medically examined, and her bloodstained clothes were handed over to the authorities. Upon conclusion of the investigation, the police filed a charge sheet under Sections 376, 201 of the Indian Penal Code,18604 and Section 3(xii) Trial Court FIR No. 355 of 2007 registered at PS Sunder Nagar IPC of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989[5].

3. The Trial Court, having appreciated the testimony of sixteen witnesses for the prosecution and three for the defense, convicted the accused under Section 376 IPC and the offence under the SC/ST Act, and acquitted him under Section 201 IPC. The sentence awarded was rigorous imprisonment for ten years and a fine of Rs. 10,000/- for the former offence, with a further rigorous imprisonment of one year in default of payment of fine. For the latter offence, imprisonment of the same description for five years and a fine of Rs. 10,000/- with a further rigorous imprisonment of one year in default of payment of fine. To arrive at this conclusion, reliance was placed on the testimony of the victim, and its corroboration by subsequent witnesses such as her parents, the medical witnesses and also the person from whom she was sent to fetch buttermilk, altogether forming a web of factors pointing to the guilt of the accused-respondent. SC/ST Act

4. The impugned judgment reverses these findings. The sum and substance of the High Court’s reasoning is that major contradictions in the witness testimonies have been ignored by the Trial Court. It was found that the prosecution version suffered from serious improbabilities. The prosecutrix had apparently gone to fetch lassi from a house that was about 8 kilometers away. This meant she would have had to travel approximately 16 kilometers to go and return within two hours, which appeared to the Court to be highly improbable. Next considered was the aspect of the acrimonious relationship between the two families in so far as alleged theft of grass and fuelwood from the accused’s land. Importantly, a quarrel had taken place between the families on the very same day as the alleged incident. The prosecutrix herself admitted that her parents had cut grass from the accused’s land that day and that tensions already existed. Further, the Court found material contradictions and inconsistencies in the statements of the prosecutrix, her mother, her father, and her maternal uncle. There were differences regarding how and when the incident was reported, who went where before lodging the FIR, and whether the maternal uncle came to the house or met them on the road. These inconsistencies were considered significant. Still further, the Court also questioned the conduct of the prosecutrix’s mother. She stated that she had become aware of the incident in the morning when she noticed bloodstains, yet no immediate report was made. Instead, the matter was disclosed only after the father returned home at night, and the FIR was lodged the next morning. The Court found this delay relevant in the overall evaluation of the case. With respect to the SC/ST Act charges, the Court noted that these provisions were not included in the original FIR. They were added later by the supervising officer. Similarly, Section 201 IPC was added later, even though the Investigating Officer did not find grounds for it during the initial investigation. Although the medical evidence indicated that the prosecutrix had been exposed to a sexual act, the Court held that medical opinion alone could not be treated as substantive evidence. In view of the inconsistencies and surrounding circumstances, the medical evidence was not sufficient to sustain the conviction.

5. The State challenges the said judgment in these proceedings. At the outset, a disturbing fact must be acknowledged. The Legislature had as far back as 1983 introduced a provision into IPC seeking to protect the identity of the victim of the offence under Section 376 IPC, in the aftermath of the State of Maharashtra v. Tukaram[6]. The amendment was made apparently to address a specific mischief that emerged starkly from the way sexual offence cases were handled: the public disclosure of a survivor’s identity. Before 1983, there was no statutory bar on publishing the name or particulars of a woman against whom a sexual offence was alleged; Court reporting and media coverage could expose survivors to social stigma, ostracism, and lifelong reputational harm. This perspective is reflected in academic discussions on the evolution of the law on sexual assault[7], which identify the 1983 amendments as marking the beginning of a victim-centred orientation in Indian criminal law; protections such as in-camera trials, evidentiary presumptions, and anonymity were designed to reduce the barriers and fears that previously discouraged reporting and effective prosecution of sexual offences. Clearly, the intent of this Section has been given a miss in these proceedings. The name of the victim is treated like that of any other witness and is freely used throughout the record. This must be deprecated in the strongest terms. In fact, this Court has

Shruti Bedi, The Indian Rape Law: Vocabulary of Protest, Reactionary Legislations and Quality of Equality Culture, Udayana Journal of law and Culture, Vol 7 No.1, (2023) https://doi.org/10.24843/UJLC.2023.v07.i01.p01 noticed earlier also that the mandate of this provision is not being followed.

6. Moving further, it is important to note that this is a case of differing views from the Trial Court and the High Court. The effect of this Court interfering in this appeal would be that an acquittal would be set aside despite the well-established position that this Court is loath to interfere in acquittals unless the said conclusion has been arrived at in disregard of principles of law or on an entirely misdirected analysis of evidence leading to injustice. This Court recently in State of U.P. v. Ajmal Beg[8], observed as follows:

7. Before proceeding further, however, it is important to also take note of principles qua appreciation of the testimony of child witnesses. In State of Rajasthan v. Chatra10 this Court through one of us, (Sanjay Karol J.,) formulated the following principles for the appreciation of the testimony of child witnesses: