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2012 DIGILAW 1037 (HP)

State of Himachal Pradesh v. Raj Kumar

2012-12-26

DEEPAK GUPTA, RAJIV SHARMA

body2012
JUDGMENT Per Deepak Gupta, J. 1. This appeal by the State is directed against the judgement dated 20.12.2003 delivered by the learned Additional Sessions Judge-II, Kangra at Dharmshala in Sessions case No. 11-N/2001 whereby he acquitted the respondent-accused of having committed offences punishable under Sections 376/511 IPC. 2. The first report with regard to the incident was made by the prosecutrix to the police official at Tanda Mour on 11.9.2000. In this statement of the prosecutrix recorded under Section 154 Cr.P.C. she alleged that all her family members had gone out of the house on the said date. Her brother and sisters had gone to the school but she had left studies. She was alone at home alongwith accused Raj Kumar who is the husband of her father’s sister. Her mother had gone to Mukerian alongwith her brother. At about 12 noon the accused closed the gate which was affixed on the boundary wall outside the house. She asked him why he was closing this gate because this was normally open during day hours. However, the accused after closing the gate bolted the same and caught hold of the prosecutrix by her arm. She raised an alarm but he closed her mouth with one hand. He dragged her inside a room and forced her to lie down on a bed. He broke the Narah of her Salwar and had forcible sexual intercourse with her. After the accused had sexually assaulted the prosecutrix she knotted her Salwar since the Narah was broken. The prosecutrix then jumped over the wall and met Prakash and Dass Ram and told them what had happened. The accused in the meantime fled away. Prakash and Dass Ram accompanied her to her house and at about 4.30 p.m. her mother came home and she informed her mother about what had happened. The prosecutrix and her mother then came to the police post to lodge the report. Thereafter, the prosecutrix was medically examined. The police carried out other investigation and the accused was challenged and charged with having committed the offences aforesaid. The learned trial Court acquitted the accused. Hence, this appeal by the State. 3. At the outset, we may state that it appears that this is not a case of rape. In this regard, we may make reference to the statement of PW-1 Dr. Neerja Gupta, who examined the prosecutrix on 11.09.2000 itself. The learned trial Court acquitted the accused. Hence, this appeal by the State. 3. At the outset, we may state that it appears that this is not a case of rape. In this regard, we may make reference to the statement of PW-1 Dr. Neerja Gupta, who examined the prosecutrix on 11.09.2000 itself. She did not find any marks of injury on any portion of the body of the prosecutrix. She found no seminal stains nor any marks on the private parts. She came to the conclusion that the prosecutrix was not used to sexual intercourse. 4. The vaginal swab, etc. was sent to the chemical examiner and after receipt of the report of the chemical examiner the doctor was of the opinion that there is no evidence of recent sexual intercourse. The report of the chemical examiner is Ext.PA and it shows that neither human blood nor human semen was found on the Salwar, Dupatta or Kurta worn by the prosecutrix. The vaginal swab of the prosecutrix showed presence of human blood but no human semen was found. 5. The prosecutrix appeared in the witness box and stated that after the accused had untied the Narah of her Salwar he did “galat kam” with her. A suggestion was put to her on behalf of the accused that in order to save herself from the clutches of the accused she offered strong resistance when the accused put his hand on her mouth and sustained injuries on the lips. In cross-examination she has stated that the accused fondled her breast but she did not suffer any injury on her breast. She has talked about the penetration of the penis of the accused into her vagina and she also states that the accused ejaculated inside her vagina and the semen spread on her Salwar and on her thighs. This story is totally unbelievable because of the reports of the doctor and the chemical examiner. However, the accused does not deny his presence at home and a suggestion has been put to the prosecutrix that she resisted when the accused tried to catch hold of her. 6. We will now refer to the evidence of the two witnesses whom the prosecutrix allegedly met immediately after the occurrence. PW-5 is Om Prakash and he states that on 11.9.2000 he was cutting grass near the house of the prosecutrix. 6. We will now refer to the evidence of the two witnesses whom the prosecutrix allegedly met immediately after the occurrence. PW-5 is Om Prakash and he states that on 11.9.2000 he was cutting grass near the house of the prosecutrix. According to him at about 1.00 p.m. the prosecutrix clung to him and was crying. She told this witness that she had been teased by some person in the house. He then called Dass Ram and they alongwith the prosecutrix went to her house. They did not find anybody there. This witness was then declared hostile because he did not name the accused. He in cross-examination by the accused admitted that the prosecutrix had told him that her Phuphad (husband of father’s sister) had come and had done “bura kam”. However, according to this witness she had not told him that she had been raped. He admitted that he and Dass Ram stayed in the house of the prosecutrix till the arrival of her mother in the house who came at about 4 p.m. In cross-examination by the accused he again states that the prosecutrix told him that she had been teased by some person. 7. PW-6 is Dass Ram. He also states that he was cutting grass near the house of the prosecutrix when he was called by PW-5 Om Prakash. The prosecutrix told him that her Phuphad had committed some “galat kam” with her. Then he and Om Prakash accompanied the prosecutrix to her house where they remained there till 4.00 p.m. when the mother of the prosecutrix arrived. Thereafter the prosecutrix and her mother went to the police post. These witnesses supported the version of the prosecutrix to the effect that she came out of her house in a distraught condition. She was crying and she also complained that she had been teased. They also admit that she stated that she had been teased by her Phuphad. 8. There is no doubt that there is some dispute between the parents of the prosecutrix and her Phuphad (the accused) as is apparent from the statement of DW-1. This, however, by itself does not mean that the entire story is false. We are of the considered view that the statement of the prosecutrix insofar as it is strongly corroborated and supported by the statements of PW-5 and PW-6 who are independent witnesses has to be believed. This, however, by itself does not mean that the entire story is false. We are of the considered view that the statement of the prosecutrix insofar as it is strongly corroborated and supported by the statements of PW-5 and PW-6 who are independent witnesses has to be believed. These two witnesses have not told lies and have only talked about the prosecutrix being teased/molested by her Phuphad. The statement of the prosecutrix to the extent it has been corroborated clearly proves that though the accused may not be guilty of rape he is definitely guilty of having committed an offence punishable under Section 354 IPC, which reads as follows:- “354. Assault or criminal force to woman with intent to outrage her modesty.- Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” 9. From the statement of the prosecutrix and the suggestions put to the prosecutrix on behalf of the accused, it is apparent that the accused not only admitted his presence but made a suggestion that when the accused tried to catch hold the prosecutrix she resisted his attempts. In response to a suggestion put on behalf of the accused she clearly stated that the accused had fondled her breasts. This would amount to an offence falling within the purview of Section 354 IPC. We are constrained to observe that the learned trial Court only looked into that aspects of the matter which related to Section 376 IPC. The charge against the accused was also of attempt to rape. There is no discussion by the trial Court on this aspect. Even if a higher offence is not proved but a lesser offence is proved the trial Court should itself look at this aspect of the matter. 10. We are also sorry to observe that the translation of the statements of the witnesses is not at all proper. There is no discussion by the trial Court on this aspect. Even if a higher offence is not proved but a lesser offence is proved the trial Court should itself look at this aspect of the matter. 10. We are also sorry to observe that the translation of the statements of the witnesses is not at all proper. When we saw the statement of the prosecutrix recorded in Hindi, she has stated as follows:- ^^;g xyr gS fd eSa viuk C;ku viuh ekrk ds dgus ij ns jgh gw¡ vkSj dksbZ ?kVuk esjs lkFk uk gqbZ gSA** This means that she denied the suggestion that she was deposing falsely at the instance of her mother and no incident had taken place with her. This sentence unfortunately has been translated as follows:- “It is correct that I am deposing at the instance of my mother and that nothing happened with me.” This totally changes the meaning of the words uttered by the prosecutrix. A copy of this judgement be sent to the concerned Judicial Officer, who is directed to be careful in future while recording the evidence. 11. In view of the above discussion, the appeal of the State is partly allowed and the accused is convicted of having committed an offence punishable under Section 354 IPC. His bail bonds are cancelled and the accused be produced before this Court on 9th January, 2013 to be heard on quantum of sentence.