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Himachal Pradesh High Court · body

2012 DIGILAW 567 (HP)

State of Himachal Pradesh v. Kahna Singh

2012-09-17

DEEPAK GUPTA, RAJIV SHARMA

body2012
Judgment Rajiv Sharma, J. 1. State has come in appeal against the judgment, dated 03.09.2004 of the learned Additional Sessions Judge Shimla, H.P., rendered in Sessions Trial No. 34-S/7 of 2003/2002, whereby the respondent, who was charged with and tried for offence punishable under Sections 323, 325, 506 (II) and 376 of the Indian Penal Code, has been acquitted. 2. Case of the prosecution, in a nutshell, is that PW-3, Smt. Mathi Devi, complainant/prosecutrix, is the second wife of Rattan Dass. She was married about 45 years ago. They have two sons and one daughter. From the first marriage, her husband has three daughters and three sons, who lives separately. According to her, on 31.07.2001, she had gone to Mohali Jungle to graze cattle. Respondent Kahna Singh, her step son, came there and asked as to what has transpired between her and his sister. She told him that nothing has transpired with his sister. He became furious and started beating her. He also gave danda blows on her head, face and back. She fell down. A complaint was lodged and it was registered vide rapat No. 6 on 02.08.2001. She was thereafter got medically examined from Civil Hospital, Kotkhai. The doctor has issued the M.L.C. According to the M.L.C., injury No. 6 was found to be grievous and all other injuries at Sr. No. 1, 2, 3, 4, 5 and 7, mentioned in M.L.C. Ex.-PA, were simple in nature. The duration of these injuries were 22 to 72 hours. The prosecutrix filed an application, Ex.-PC on 08.08.2001 before the Superintendent of Police, Shimla, stating therein that the accused has also raped her on the date of occurrence, i.e., 31.07.2001. She was got medically examined on the orders of Superintendent of Police, Shimla from DDU, Hospital, Shimla. The M.L.C., Ex. PB was obtained. Thereafter, an offence under Section 376 of the Indian Penal Code was also added. The accused made a disclosure statement, which led to the recovery of danda. He was also got medically examined. The salwar of the prosecutrix was also taken into possession and was sent for chemical examination. The F.S.L. report was also obtained. Thereafter, the investigation was completed and the challan was put up after completion of all the codal formalities. 3. The prosecution has examined 12 witnesses. The accused was also examined under Section 313 of the Criminal Procedure Code. The salwar of the prosecutrix was also taken into possession and was sent for chemical examination. The F.S.L. report was also obtained. Thereafter, the investigation was completed and the challan was put up after completion of all the codal formalities. 3. The prosecution has examined 12 witnesses. The accused was also examined under Section 313 of the Criminal Procedure Code. According to him, a false case has been made out against him, since he has inimical relations with the prosecutrix, Mathi Devi and her son Nazir Lal. Learned trial Court has acquitted the accused on 03.09.2004. Hence, this appeal by the State. 4. We have heard the learned counsel for the parties and gone through the judgment and the records carefully. 5. PW-3, prosecutrix Smt. Mathi Devi has deposed that she had gone to jungle Pantha with her cattle. When she was coming back at 7:00 p.m, she met the accused. Thereafter, the accused gave a danda blow on his head. The accused caught her from her shirt near throat and made her to lie on the ground. He also dragged her. Thereafter, he broke her waist string (nara) from back side. He had sexual intercourse with her. He told her not to disclose this incident to anyone. At about 8/9 p.m., she reached her house. She was brought to Theog hospital by the wife of accused. She further stated that first of all, they had gone to C.H.C., Kotkhai. She was not examined by the doctor at Kotkhai and for this reason, they had come to Civil Hospital, Theog. She further stated that at Theog, she obtained medical treatment from a Private doctor. The doctor stitched the wound on her head and dressed it. From Theog, she returned to her house. On the next day, she went to Kotkhai alongwith her son Sahi Ram and got herself subjected to X-ray examination. She also got medicines from Kotkhai hospital. She admitted in her cross-examination that she had been living separately from her husband Rattnu for the last more than 10 years. She has also admitted that the first wife of her husband lives with him. She also admitted that they were living separately for the reason that villagers had boycotted them. She also admitted that for this reason her husband and his family have not accepted her. She has also admitted that the first wife of her husband lives with him. She also admitted that they were living separately for the reason that villagers had boycotted them. She also admitted that for this reason her husband and his family have not accepted her. She also admitted that her son Nazir Lal has brought her to Shimla after 10 days to meet Superintendent of Police, Shimla, since the police has not prepared a good case against the accused, the way they wanted it. She also admitted that she has been told by her son to bring salwar with her so that the case could be prepared as they wanted. She has also admitted that she has not lodged any report at Police Station, Kotkhai. She also admitted that her son Nazir Lal has strained relations with accused Kahana Singh. She also admitted that the complaint was written by her son Nazir Lal and she has thumb marked the same. She also admitted that she did not know what was written in that complaint written by her son Nazir Lal. She was recalled for reexamination. She has identified danda Ex. P-7. 6. PW-1, Dr. Sunil Sharma has examined the prosecutrix Mathi Devi on 02.08.2001 at C.H.C., Kotkhai. He has noticed the following injuries on her body: “1. Stiched wound of 6 cm long on the left parietal region. 2.Stiched wound of 4 cm on the left side of forehead extending upto scalp. 3.Contused lacerated wound on the left cheek 2 cm Pinkish red contusion of 2 cm around the wound. 4.Contusion of 3 cm X 1 cm on the left side of chest (11 and 12 rib). 5.Contusion of 4 cm into 1 cm of the left deltoid region pinkish in colour with blush discolouration on the left shoulder. 6.Contusion on the left wrist and left thumb blueish in colour. 7.Contusion of 4 cm x 4 cm on the left forearms bluish red in colour.” According to him, injury No. 1 was grievous and rest of the injuries were simple in nature. He issued MLC Ex.-PA. The duration of the injuries was between 24 to 72 hours. In his cross-examination, he has admitted that all the injuries including injury No. 6 could be caused if a person rolls down from the hill. 7. PW-2, Dr. Ambika Chauhan has medically examined the prosecutrix on 08.08.2001. She has issued M.L.C. Ex.-PB. He issued MLC Ex.-PA. The duration of the injuries was between 24 to 72 hours. In his cross-examination, he has admitted that all the injuries including injury No. 6 could be caused if a person rolls down from the hill. 7. PW-2, Dr. Ambika Chauhan has medically examined the prosecutrix on 08.08.2001. She has issued M.L.C. Ex.-PB. According to her, the victim was habitual of sexual intercourse. 8. PW-4, Nazir Lal is the son of prosecutrix Smt. Mathi Devi (PW-3). When the incident took place on 31.07.2001, he was at Jubbal. He came to Mohali on 01.08.2001, then stated on 02.08.2001. His mother told him that she has been beaten up by accused Kahana Singh. When his wife came to home, his mother told her about having been raped. He lodged a report at Police Station, Kotkhai on 04.08.2001. He again went to the Police Station after three days and told that his mother has also been raped. He made an application to the Superintendent of Police, Shimla vide Ex.-PC. Thereafter his mother was got medically examined from Ripon Hospital. In his cross-examination, he has admitted that they were not on visiting and speaking terms with the family of accused. 9. According to PW-5, Shri Sahi Ram, the police came to their village on 06.08.2001. Police has taken into possession broken bangles and one Jarsi from the site of incident. These were sealed and taken into possession vide memo Ex.-PE. 10. PW-6, Shri Mohan Lal deposed that in his presence, police asked from Kahana Singh about the danda. Thereafter Kahana Singh disclosed that the danda with which he had given blows to Mathi Devi, had been thrown by him in Mohali Jungle. The same was reduced into writing vide Ex.-PF. He has signed the same. 11. PW-9 Head Constable Subhash Chand has deposed that on 04.08.2001, MHC, Police Station has handed over to him the case file of the case. He went to the spot on 06.08.2001. He prepared the site plan Ex.-PG. The broken bangles and Jarsi were sealed with seal ‘M’ and taken into possession vide Fard Ex.-PE. On 08.08.2001, he got Smt. Mathi Devi medically examined from D.D.U. Hospital, Shimla. 12. PW-10, Shri Joban Dass has deposed that he was going to Graug alongwith Jialal, Pardhan, Gram Panchayat, Gaura. When they reached Nihari, the police met them. Accused was also with them. On 08.08.2001, he got Smt. Mathi Devi medically examined from D.D.U. Hospital, Shimla. 12. PW-10, Shri Joban Dass has deposed that he was going to Graug alongwith Jialal, Pardhan, Gram Panchayat, Gaura. When they reached Nihari, the police met them. Accused was also with them. They were told by the police that a danda was recovered by the police. The danda was sealed in a parcel. 13. PW-11, Head Constable Kewal Ram has deposed that on 2nd August, 2001, Smt. Mathi Devi had come to the Police Station and lodged a report, which was entered in the rojnamcha as report No. 6, dated 02.08.2001 vide Ex. PK, on the basis of which FIR Ex.-PL was registered. On 12.08.2001, a sealed parcel was deposited with SI Phool Chand, which he sent to F.S.L., Junga through Constable Kundan Singh vide R.C. No. 83/2001. 14. PW-12, Inspector Phool Chand has deposed that on nd August, 2001, at about 10:30 a.m., Smt. Mathi Devi came to the Police Station and told that Kahna Singh, her step son had given her beatings in Mohali Jungle. She was got medically examined on 04.08.2001. M.L.C. Ex.-PA was obtained. Since injury No. 6 as per M.L.C. was grievous in nature, an F.I.R. Ex.-PL was registered under Sections 325 and 506 of the Indian Penal Code. On 08.08.2001, Smt. Mathi Devi and Nazir appeared before the Superintendent of Police, Shimla and moved an application vide Ex. PC. The Superintendent of Police, Shimla directed to get Smt. Mathi Devi medically examined from D.D.U, Hospital, Shimla. She was medically examined and the M.L.C. Ex. PB was obtained. He has also inquired from the prosecutrix why the incident of rape was not narrated on 2nd August, 2001. She stated that she did not tell about the rape out of shame. He also recorded the disclosure statement of the accused under Section 27 of the Indian Evidence Act. In his cross-examination, he has admitted that on 2nd August, 2001, the prosecutrix has not told about the rape. 15. What emerges from the evidence brought on record, is that the relations between the family of the prosecutrix and accused Kahna Singh were not cordial. The accused is the step son of prosecutrix. According to PW-3, Smt. Mathi Devi, at about 7:00 p.m. on 31.07.2001, she was given beatings by the accused with a danda. 15. What emerges from the evidence brought on record, is that the relations between the family of the prosecutrix and accused Kahna Singh were not cordial. The accused is the step son of prosecutrix. According to PW-3, Smt. Mathi Devi, at about 7:00 p.m. on 31.07.2001, she was given beatings by the accused with a danda. She has admitted in her cross-examination that her son Nazir Lal has strained relations with accused Kahana Singh. The incident has happened on 31.07.2001, but the prosecutrix has filed the complaint on 02.08.2001. In the complaint filed by her, she has not stated that she was raped by accused on 31.07.2001. She has gone to private doctor on 01.08.2001. In her statement, she has stated that she was taken to Theog Hospital by the wife of accused. If she had been raped by accused Kahna Singh, there was no occasion for her to go to Theog Hospital with the wife of the accused. PW-3 has also admitted in her cross-examination that the application was got written by her son and she did not know the contents of the complaint. 16. The prosecutrix was medically examined by PW-1, Dr. Sunil Sharma on 02.08.2001. According to PW-3, she was dragged by the accused, but there are no corresponding injuries to this effect. PW-2, Dr. Ambika Chauhan has opined that the prosecutrix was habitual of sexual intercourse. PW-4, Sh. Nazir Lal has deposed that his mother has not told him about rape having been committed with her, but she has narrated it to his wife. It has come in his statement that on 04.08.2001, they had gone to Police Station, Kotkhai and lodged a report about the beatings. According to him, after three days from lodging the report to the police, he again went to the police and told that his mother has also been raped. The prosecutrix should have gone to the Police Station immediately. The incident, according to the prosecution, has taken place on 31.07.2001 at 7:00 p.m., but the report was lodged on 02.08.2001 vide rapat No. 6 Ex.-PK. The incident of rape for the first time has been narrated in the application Ex.-PC, which was written by PW-4, Nazir Lal. In his cross-examination, PW-4, Nazir Lal has admitted that when he reached home on 02.08.2001, his father Rattan Lal was also with his mother. The incident of rape for the first time has been narrated in the application Ex.-PC, which was written by PW-4, Nazir Lal. In his cross-examination, PW-4, Nazir Lal has admitted that when he reached home on 02.08.2001, his father Rattan Lal was also with his mother. PW-12, Inspector Phool Chand has stated that he has asked the prosecutrix why the incident of rape was not disclosed to the police on 02.08.2001, but the only reply given by the prosecutrix according to him, was that she did not narrate the same out of shame. PW-3, Smt. Mathi Devi has also deposed that after 10 days, her son has brought her to Shimla in order to meet Superintendent of Police, Shimla because the police has not prepared a good case against the accused. When the prosecutrix has gone to Theog and Kotkhai on 01.08.2001 for treatment, she could also lodge a report at the Police Station. The delay in lodging the FIR has also not been explained by the prosecution. 17. The learned trial Court after considering the entire evidence, has rightly acquitted the accused. We, therefore, find no merit in this appeal, which is accordingly dismissed. Bail bonds are discharged.