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Himachal Pradesh High Court · body

2012 DIGILAW 989 (HP)

State of H. P. v. Budh Ram

2012-12-18

R.B.MISRA, SURINDER SINGH

body2012
JUDGMENT Surinder Singh Judge (Oral) Acquittal of the respondent has been challenged by the State in the present appeal for the offences punishable under Sections 376 and 506 of IPC, on the ground that the trial court did not appreciate the evidence in its right perspective and wrongly came to the conclusion that no offence is made out, which resulted into miscarriage of justice. 2. Heard and gone through the records. 3. The prosecution story, as revealed by its witnesses, can be summed up thus. PW-2 prosecutrix is the daughter of Tot Ram. She was a trainee with effect from 5.5.2004 with the accused in his tailoring shop. It is alleged that on 2.11.2004 she was busy in the tailoring work in the shop of the accused. No other person than the accused was present there. After some time, accused went out of his shop and returned within four minutes then dragged her inside the kitchen and committed rape. She raised hue and cry, but the accused threatened her to keep quite, lest she would be killed. After the incident, she went to her house and stopped coming to the tailoring shop and also did not narrate this incident to anyone. According to her, when her menstruation stopped, she visited the shop of the accused and informed him that she had become pregnant and accused should take her to the doctor, but respondent/accused did not pay any heed to her request. Thereafter, on 24.7.2005, she again requested the accused to take her to the doctor, but he did not care for it. Accused had also met her mother in Akahara Bazar in Kullu, where she used to work. After some time, he returned to his shop along with his brother-in-law and then he took her to village Sarsei in an auto-rikshaw. On 25.7.2005, she was taken to the District hospital, Kullu, where she was admitted and on 26.7.2005, she delivered a male child. 4. It is further alleged that the respondent did not tell her parents that she was being hospitalized, though he informed her parents that the prosecutrix had delivered a child in the hospital. On 28.7.2005, mother of the accused visited hospital. After discharge, they along with newly born child took them to their house. 5. It is alleged that the accused was already married and his wife objected to her presence and threatened her to kill. On 28.7.2005, mother of the accused visited hospital. After discharge, they along with newly born child took them to their house. 5. It is alleged that the accused was already married and his wife objected to her presence and threatened her to kill. Thereafter, during the intervening night of 27/28.7.2005, she was taken to village Shyaridhank, where she was kept in a newly constructed house. She was also given beatings and ultimately on 21.10.2005 left the house of the accused. Her parents and grand father took her from the house of the accused to village Sarach. She stated that at the time of alleged rape, she was aged about 16 years and 11 months. She further stated that on 21.10.2005, FIR Ext PB was lodged with the assistance of her parents. Thereafter, she was medically examined. 6. (PW-1) Dr. Geeta Kaul, on her examination, opined that prosecutrix had shown the signs of having delivered a baby and issued MLC Ext PA. Police prepared the site plan of the alleged occurrence, collected the Medico Legal certificate, recorded the statements of the witnesses and prepared the challan which was presented in the court for the trial of the respondent/accused. He was accordingly charge sheeted for the offences aforesaid, to which he pleaded not guilty and claimed trial. 7. To prove its case, prosecution examined its witnesses. The accused was also examined under section 313 of Cr.PC. He took up the stand that he was having love affairs with the prosecutrix. He had married her according to the custom of illaqua, provided her ornaments and a child was born from the alleged wedlock. He also led evidence in defence when called upon to do so and examined DW-1 Machhinder Nath Sharma, document writer to prove compromise deed Ext DA, whereby he had agreed to pay maintenance amount to the prosecturix along with separate accommodation to live in. 8. On the conclusion of the trial, respondent was acquitted by the learned trial court on the ground that there was inordinate delay of 11 months in lodging the FIR without any reasonable explanation. The prosecutrix was admitted by him for the delivery of her child. The accused had made entry in the register of Health department to be of his father. The prosecutrix was admitted by him for the delivery of her child. The accused had made entry in the register of Health department to be of his father. The prosecutrix along with child were taken to his house by the accused, where they lived for about three months, the respondent had made separate arrangements for their maintenance and residence. Further a writing Ext DA was executed between father of the prosecutrix and accused admitted her to be his wife. These peculiar facts and circumstances, having emerged from the evidence on record, in the opinion of the learned trial court, appear to be an act of volition, more particularly, when the prosecutrix was of the age of discretion. 9. We have reappraised the evidence on record. We are also of the same opinion as arrived at by the learned trial court from the evidence on record. The prosecutrix admitted in her cross examination, that at the place of alleged occurrence, in the vicinity there were government offices of Horticulture and Education department and was a thickly populated area. The road also leads in front of the shop in question of the accused, but she did not make any complaint to anyone. She did not sustain any injury on her body meaning thereby she did not offer any resistance. Further, she stated that she had raised hue and cry. Had it been so, her cries would have been heard in the vicinity. She denied that she was having love affairs with the accused/respondent and also denied having exchanged love letters with him. She stated that her pregnancy was noted by her parents. Surprisingly, how this fact could have gone unnoticed by her parents. 10. On the scrutiny of the evidence, we find that after the alleged incident when the prosecutrix had gone back to her parental house, even she did not complain about the alleged rape to her parents even immediately after she delivered the male child. Further after the delivery, she also did not complain to the doctor or to the police about any alleged sexual assault on her, rather parents of the prosecutrix and accused had arrived at a compromise Ext DA, whereby accused was pinned down to maintain the child and provide maintenance to the prosecutrix. All the above circumstances lead us to one conclusion that the prosecutrix was the age of discretion and a willing party. 11. All the above circumstances lead us to one conclusion that the prosecutrix was the age of discretion and a willing party. 11. Therefore, cumulative effect of the entire circumstances leads us to the conclusion that the element of consent by the prosecutrix to indulge in the sexual act with the accused/respondent had been there. As such, findings of acquittal, arrived by the learned trial court, are borne out from the record, which requires no interference. Hence, the appeal, being devoid of any merit, is accordingly dismissed. 13. Respondent is discharged of his bail bonds entered upon by him at any time during the proceedings of this case. Send down the records.