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2013 DIGILAW 556 (HP)

STATE OF H. P. v. Diwan Thapa @ Ramji

2013-06-18

R.B.MISRA, SURINDER SINGH

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JUDGMENT SURINDER SINGH, J. 1. STATE felt aggrieved by the judgment of acquittal passed by the learned trial Court in Sessions Case No. 2-K/vii of 2007 decided on 13.9.2006 whereby he was acquitted for the offence under Sections 363, 366 and 376 Indian Penal Code. 2. IN short, prosecution story can be stated thus. In the year 2006, prosecutrix (16) was a school going girl studying in 6th standard at Government Middle School Kawari. During the period she was 1 Whether the reporters of Local Papers may be allowed to see the judgment ? staying with her uncle Partap Chand. Accused was also residing in rented premised in the same village and he had been oftenly visiting the father of the prosecutrix PW5 Udhami Ram @ Uttam Chand as both were working as laborer in the area. It is alleged that on 9.12.2005 accused visited the house of the prosecutrix, took her inside his own room and committed rape on her. She was threatened not to disclose the incident to any one, lest she would be killed. Accused also assured not to bother for anything as he would be marrying her. It is further alleged that on 22.1.2006, accused took the prosecutrix in his room again and committed rape. Further, on 25.1.2006 when she had gone to Nagrota Bagwan in connection with meeting her girl friend, accused happened to meet her in the bazaar and asked her to accompany him and threatened that if she would not do so, she would be killed. The prosecutrix followed him and he took her to village Dehan near Palampur to a room where his brother was staying with his family but the house was found locked. He broke open the lock, took the prosecutrix inside the room, made her naked and committed rape on her. Thereafter she was taken to Kullu. (ii) On 25.1.2006 when the prosecutrix did not return her parents, they started searching for her. On 26.1.2006 father of the prosecutrix lodged missing report with the police and raised suspicion that accused might have enticed away his daughter. On the basis of the report, a formal FIR was lodged. (iii) Further as per story of the prosecution, a telephonic intimation was received in the police post Nagrota Bagwan, that accused along with a girl was found roaming at Kullu thus police visited Kullu. The accused was apprehended with the prosecutrix. On the basis of the report, a formal FIR was lodged. (iii) Further as per story of the prosecution, a telephonic intimation was received in the police post Nagrota Bagwan, that accused along with a girl was found roaming at Kullu thus police visited Kullu. The accused was apprehended with the prosecutrix. Both of them were brought to Nagrota Police Post (Kangra). Prosecutrix was handed over to her parents. Thereafter she was got medically examined on 28.1.2006 from PW1 Dr. Manju Raina. The doctor did not find any external injury on the person of the prosecutrix but there was slight redness on the left side of labia minora and was referred to Gynecologist for further examination. (iv) PW2 Dr. Kalpana Negi Gynecologist conducted further examination of the private parts of the prosecutrix. She noticed fresh ooze and hymen was found irregular. She also advised DNA sampling but no request was made for the same by the police so it was not got done. Pregnancy test was found negative. However, in the opinion of the doctor, possibility of sexual assault could not be ruled out. Medico legal certificates of the prosecutrix are Ext. PW1/A and Ext. PW1/B respectively. Skeletal age of the prosecutrix was also ascertained on the basis of ski-grams. PW3 Dr. Sunil Kumar Sood Radiologist opined that her age was between 16-19 years. During the investigation, police also took into possession school leaving certificate of the prosecutrix from PW8 Sanjeev Gupta, Head Master Middle School Kawari Ext. PW8/C wherein her date of birth has been recorded as 31.8.1991. Further, the police, during the investigation also took into possession the birth certificate of the prosecutrix. PW15 Hans Raj Panchayat Secretary issued the said certificate Ext. PW13/B on the basis of the birth entry at Sr. No. 43 at page 13 of the Birth Register maintained in the Panchayat which was found to be the same, i.e., 31.8.1991. (v) Wearing apparels of the prosecutrix were also sent for forensic examination but it did not contain any blood or semen stains. Doctor had also preserved vaginal swabs which were also chemically examined and the findings were in negative qua the blood and semen. Police recorded the statements of the witnesses and after completing the challan, it was presented in the Court for the trial of the accused for the offences aforesaid. 3. Doctor had also preserved vaginal swabs which were also chemically examined and the findings were in negative qua the blood and semen. Police recorded the statements of the witnesses and after completing the challan, it was presented in the Court for the trial of the accused for the offences aforesaid. 3. FINDING a prima facie case under Sections 363, 366 and 376 Indian Penal Code, accused was accordingly chargesheeted to which he pleaded not guilty and claimed trial. 4. TO prove its case, prosecution examined parents of the prosecutrix besides examining the prosecutrix, medical officers, PW8 Sanjeev Gupta Head Master Middle School Kawari and PW15 Hans Raj, Panchayat Secretary and other formal witnesses. Accused was also examined under Section 313 of the Code of Criminal Procedure. His case was denial simplicitor. However, he raised the defence that Udhami Ram, father of the prosecutrix Rs.1100/- for the wages to him as owed an amount of he had worked in his potatoes fields and having supplied cement bags which he had taken from the contractor and alleged false implication in the case. 5. WHEN called upon to enter into his defence, no evidence in defence was led by the accused. 6. AFTER hearing the parties, while appreciating the evidence on record, the learned trial Court held that prosecutrix was minor, i.e., less than 16 years but however, did not believe her statement and also statement of her parents duly coupled with the material contradictions in the statement of Investigating Officer qua apprehension of the accused along with prosecutrix from Kullu and also non-examination of Partap Chand her uncle with whom she was living as such acquitted the accused. Shri D.C. Pathik, learned Additional Advocate General vehemently argued that the prosecutrix, in the instant case, has been proved to be minor, i.e., less than 16 years of age. She has supported the prosecution version in toto. Even doctor did not rule out the possibility of sexual intercourse with her but the learned trial Court wrongly discarded the statements of reliable witnesses. It is also argued that non-examination of Partap Chand is not fatal to the prosecution and the defence raised by the prosecution is not sufficient to cause dent in the prosecution case. 7. Even doctor did not rule out the possibility of sexual intercourse with her but the learned trial Court wrongly discarded the statements of reliable witnesses. It is also argued that non-examination of Partap Chand is not fatal to the prosecution and the defence raised by the prosecution is not sufficient to cause dent in the prosecution case. 7. ON the other hand, Shri Ajay Chandel, learned counsel for the accused supported the impugned judgment of acquittal and further argued that there are material contradictions in the statement of prosecution witnesses as well as that of the Investigating Officer. It is further ventilated that the story with respect to the committing of rape on 25.1.2006 and prior to it, by the accused with the prosecutrix is absolutely false. She stated that at the time of first sexual intercourse by the accused Raj Kumar was also present. Neither Raj Kumar was made accused nor examined to substantiate her version. It is further argued that even subsequent to the aforesaid incident, the prosecutrix had an opportunity to make complaint to the family members and also to various persons to whom she met in the bazaar but she did not disclose it to any one. Further, with respect to the incident taken place on 25.1.2006 she states that accused was found in her company and apprehended in Nagrota Bagwan Bazaar and handed over to the police on 12 noon whereas her father stated that he lodged the FIR on 26.1.2006 when on 25.1.2006 the prosecutrix did not return home and after lodging the FIR he had seen the prosecutrix and the accused in the police station and it was then she was handed over to the police, thereafter she was got medically examined. But according to the Investigating Officer, prosecutrix and accused both were apprehended at Kullu and they were brought to police post on 27.1.2006 at Nagrota Bagwan and on 28.1.2006 prosecutrix and accused were medically examined. Both these contradictions shatter the prosecution case. 8. IN order to appreciate the rival contentions of the parties we have carefully examined and gone through the statements of prosecution witnesses. In the instant case, the age of the prosecutrix is important. Both these contradictions shatter the prosecution case. 8. IN order to appreciate the rival contentions of the parties we have carefully examined and gone through the statements of prosecution witnesses. In the instant case, the age of the prosecutrix is important. She is stated to have taken birth on 31.8.1991 and for that the statement of PW15 Hans Raj Panchayat Secretary is important who had brought the birth Register and proved the birth certificate based upon the entries in the birth Register which is Ext. PW14/B whereby her date of birth is recorded as 31.8.1991. Further, according to him, this information regarding birth was given by Mehar Chand Chowkidar on 20.1991. On the application Ext. PW13/A Desh Raj Panchayat Secretary issued certificate Ext. PW13/B which was correct according to the original entry made in the birth Register. Surprisingly, no dispute qua this entry was made to this witness except that the entry was not in his hand. The entry could not be in his hand because at the relevant time when the prosecutrix had taken birth he was not Secretary of the Panchayat and subsequently on the request of the police, certificate was issued by another Secretary Desh Raj who preceded him and according to him this entry in this certificate was in accordance with law which was based upon the birth Register which is a relevant and reliable evidence. Further, the school leaving certificate Ext. PW8/C is proved by Shri Sanjeev Gupta Headmaster and this entry is also in consonance with the birth entry of the Panchayat Register. Therefore, in these circumstances, prosecutrix is clearly proved to be slightly less than 16 years at the time of the alleged incident. The learned counsel for the accused has brought to our notice that as per skeletal age the prosecutrix is opined to be between 16-19 years but in view of direct evidence with respect to birth entry recorded in the Panchayat Record, the opinion evidence based on the fusion of bones cannot supersede the entries of the birth Register which was made in accordance with rules and has presumption of truth especially when it has not been disputed. Now next question arises whether the prosecution story in itself is worth inspiring confidence qua rape, as alleged. Now next question arises whether the prosecution story in itself is worth inspiring confidence qua rape, as alleged. The prosecutrix stated that the first offence of rape was committed by the accused in the winter season when Raj Kumar was also present in his room. Raj Kumar was neither arrayed as an accused nor examined as a witness, for the best reason known to the police/prosecution. With respect to the second incident, there is only assertion by the prosecutrix. However she is specific about the rape committed on 25.1.2006 which is also dicey. According to her on the said day when she was going to meet her girl friend and passing through the bazaar at Nagrota, she happened to meet the accused. He threatened her and took away with him to village Dehar where his brother had been residing with his wife. When they reached there, the room was found locked. It was broken open and she was made naked and then accused committed sexual intercourse with her. At about 2 p.m. brother of the accused along with his wife came there to whom accused told that he wanted to marry the prosecutrix. They told him to leave her at the place from where she was taken. Thus, they went out and when they were in Palampur, they were apprehended on the same day by the police and she was handed over to her parents on 25.1.2006 itself. It is further stated by her that at 12 noon she stayed in her parents' house then qua her presence and alleged rape at village Dehan and meeting the brother of accused at 2 p.m. does not arise at all. Further even if this statement is taken to be true then report which was lodged by PW5 Udhami Ram her father on 26.1.2006 becomes suspicious as according to him prosecutrix did not return in the night of 25.1.2006 to his house whereas she was living in the house of Paratap Chand in the same village. When this statement is pitched against the statement of Investigating officer that he got the information that accused and prosecutrix both were found roaming in Kullu bazaar thereafter police party visited Kullu and both of them were apprehended and then brought to police post Nagrota and handed over to the father of the prosecutrix on 27.1.2006 brings out a quite different version and story. Thus, in view of the statement of the prosecutrix, her father and investigating officer a big dent has caused in the prosecution story with respect to its probity whether she along with accused were apprehended at Kullu or at Nagrota bazaar in Kangra. 9. THEREFORE, for the reasons aforesaid, in our considered opinion, the alleged rape by the accused has not been proved in accordance with law and there is also no connecting evidence, so as to lend strength to the statement of the prosecutrix. 10. WE have also noticed that PW2 Dr. Kalpana Negi had advised DNA test which was also not got conducted by the police which could have thrown light and offered material corroboration to the statement of the prosecutrix. Therefore, in the light of the above findings and observations, in our considered view, prosecution has failed to prove the case against the accused beyond the shadow of doubt. As such the judgment of acquittal cannot be interfered with as the findings are borne out from the evidence on record. Since the State appeal is without any merit, hence dismissed. 11. REFERENCE order dated 30.5.2013 accused is lodging in sub-jail Kaithu and is in judicial custody, he be released forthwith, if not required in any other case. Registry to prepare the release warrants in conformity with this judgment. The appeal stands disposed of.