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Himachal Pradesh High Court · body

2014 DIGILAW 1036 (HP)

Deep Ram v. State of H. P.

2014-08-04

RAJIV SHARMA, SURESHWAR THAKUR

body2014
Judgment Rajiv Sharma, J. This appeal is instituted against the judgment dated 19.3.2013 of the learned Sessions Judge, Solan, rendered in Sessions Trial No. 8-S/7 of 2011, whereby the appellant-accused (hereinafter referred to as the accused), who was charged with and tried for offences under Sections 376 and 506 IPC, has been convicted and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 25,000/- and in default of payment of fine to undergo further imprisonment for a period of one year under Section 376 of the IPC and also sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 5,000/- and in default of payment of fine to undergo simple imprisonment for six months under Section 506 of the IPC. Both the sentences were ordered to run concurrently. 2. The case of the prosecution, in a nut shell, is that the prosecutrix PW-1 is the daughter of the accused. PW-2 Nisha Devi is the mother of the prosecutrix. PW-2 Nisha Devi along with younger brother of the prosecutrix had gone to attend the marriage in the month of April, 2010 in adjoining village. The prosecutrix was all alone in her house along with the accused. The accused tried to commit rape upon her. She raised alarm and the accused did not succeed. However, the accused succeeded in committing sexual intercourse with the prosecutrix as and when the brother of the prosecutrix and her mother were not in the house and the accused threatened the prosecutrix not to divulge the incident to anyone otherwise she would be killed. 3. On 6.4.2011, when the prosecutrix was alone in her house at about 4:30 PM the accused again committed forcible sexual intercourse with the prosecutrix but in the meantime, PW-3 Smt. Babli Devi came to the spot and saw the occurrence. The accused again threatened the prosecutrix to kill her in case she disclosed the incident to anyone. Then PW-3 Babli Devi narrated the incident to PW-2 Nisha Devi, the mother of the prosecutrix and wife of the accused, on 7.4.2011. The accused again threatened the prosecutrix to kill her in case she disclosed the incident to anyone. Then PW-3 Babli Devi narrated the incident to PW-2 Nisha Devi, the mother of the prosecutrix and wife of the accused, on 7.4.2011. Thereafter, PW-2 Nisha Devi conducted inquiry from the prosecutrix, who firstly did not disclose the incident, but on the assurance from her mother, the prosecutrix disclosed the incident that the accused had been committing forcible sexual intercourse with her since 2010, repeatedly and she did not disclose the incident to anyone initially as she had been threatened by the accused. PW-2 Nisha Devi thereafter called her brothers Pardeep Kumar and Khem Chand and thereafter they went to Police Post Dagshai, alongwith the prosecutrix. The report was lodged with the police on 8.4.2011 on the basis of which FIR Ext. PW-7/D was recorded. 4. The medical examination of the prosecutrix was conducted by PW-4 Dr. Poonam Sharma, M.O., Regional Hospital, Solan. The prosecutrix was found to be habitual of sexual intercourse and there was nothing to rule out the possibility of recent intercourse, qua which MLC Ext. PW-4/A, was issued by the Medical Officer. The pubic hair of the prosecutrix alongwith the vaginal swab was also preserved by the Medical Officer. The same was handed over to the police for forensic examination after sealing with seal of Regional Hospital, Solan. The shirt and underwear of the prosecutrix were also preserved by the Medical Officer and were handed over to the police for forensic examination after sealing with the same seal impression. The prosecutrix produced a towel Ext. P-1 from her house, the same towel which was put underneath her, by the accused while committing rape with her. The towel was identified by PW-3 Babli Devi, which was put in a cloth parcel and sealed with seal impression K, seized vide memo Ext. PW-1/B. 5. The accused was arrested. The medical examination of the accused was conducted by PW-14 Dr. Mahinder Lal, the then Medical Officer, CHC, Dharampur who issued MLC Ext. PW- 14/A. The accused while in police custody on 13.4.2011, identified the place of occurrence, vide memo Ext. PW-2/A, qua which spot map Ext. PW-15/E was prepared by PW-15 ASI Mehar Chand. The abstract of birth and death register Ext. PW-5/A, copy of pariwar register Ext. PW-5/B alongwith birth certificate of the prosecutrix Ext. PW- 14/A. The accused while in police custody on 13.4.2011, identified the place of occurrence, vide memo Ext. PW-2/A, qua which spot map Ext. PW-15/E was prepared by PW-15 ASI Mehar Chand. The abstract of birth and death register Ext. PW-5/A, copy of pariwar register Ext. PW-5/B alongwith birth certificate of the prosecutrix Ext. PW-5/C were obtained from PW-5 Kiran Kumar, Secretary, Gram Panchayat Chewa. According to these documents, the date of birth of the prosecutrix is 20.3.1995. The police carried out the investigation and put up the challan after completing all the codal formalities. 6. The prosecution has examined as many as 15 witnesses. The statement of the accused under Section 313 Cr.P.C. was recorded. The accused has denied the entire version of the prosecution. The learned Trial Court convicted and sentenced the accused, as stated hereinabove. 7. We have heard learned counsel for both the sides and gone through the material available on record very carefully. 8. PW-1 deposed that her mother is serving in the house of K.D. Sehgal and she used to go to the house of K.D. Sehgal. In the month of April, 2010, her mother and both the younger brothers had gone to attend the marriage and she was alone in the house when her father Deep Ram tried to commit rape with her. She cried and Deep Ram did not succeed. She did not remember the exact date, time and month of the year 2010 when her mother and both the younger brothers were not at the house and at the time of night, her father committed forcible sexual intercourse with her and after that in the year 2010, her father committed rape with her 5-6 times. She did not disclose this fact to anyone as her father had threatened to kill her. On 6.4.2011, when she was alone in the house at about 12:30 PM, her father Deep Ram committed forcible sexual intercourse with her on double bed after laying towel on the bed, but in the meantime, her sister-in-law (Bhabhi) named Babli suddenly came and saw the occurrence. The accused again threatened her to kill her due to which she did not disclose the incident to anyone. On the next day, on inquiry by her mother, she told the occurrence to her mother on her assurance that she would protect her. The accused again threatened her to kill her due to which she did not disclose the incident to anyone. On the next day, on inquiry by her mother, she told the occurrence to her mother on her assurance that she would protect her. Thereafter, she alongwith Nisha, Pradeep, Khem Chand went to the Police Post Dagshai and reached there at 11:30 PM. However, there was no lady constable. The lady constable was called from Police Station Dharampur, who reached at Police Post Dagshai at about 12:30 AM. Thereafter report Ext. PW-1/A was lodged. She was medically examined and also subjected to x-ray. In her cross examination, she deposed that they had gone to the police post immediately after she disclosed the incident to her mother. Babli Devi came to her house at 12:30 PM who did not knock at the door of the room as it was open. She admitted that inside another room there is a door of another room which door always remains closed. She also admitted that the room of her brother is dark. Sh. K.D. Sehgal was known to her and she has no knowledge about the age of Sh. K.D. Sehgal. Her mother used to look after Sh. K.D. Sehgal who is inhabitant of Yamuna Nagar. She denied the suggestion that Sh. K.D. Sehgal used to visit her house. She admitted that her mother some times used to accompany Sh. K.D. Sehgal to Yamuna Nagar and her father used to tell her mother not to visit the house of Sh. K.D. Sehgal. She also admitted that due to Sh. K.D. Sehgal, the relations of her mother and father were not cordial. She denied the suggestion that Sh. K.D. Sehgal, was having illicit relations with her mother. She admitted that she had visited the house of Sh. K.D. Sehgal alongwith her mother several times. She had gone to attend the marriage in the month of April, 2010 alongwith her mother and brothers but had returned to the house prior to them. The marriage was at a distance of 10 kilometres from her house. She admitted that her father had also gone to attend the said marriage. Volunteered that he also returned to house, prior to her mother and brothers. 9. PW-2 Nisha Devi, is the mother of the prosecutrix. The marriage was at a distance of 10 kilometres from her house. She admitted that her father had also gone to attend the said marriage. Volunteered that he also returned to house, prior to her mother and brothers. 9. PW-2 Nisha Devi, is the mother of the prosecutrix. She testified that on 7.4.2011, in the evening Smt. Babli Devi disclosed that on 6.4.2011 at about 12:30 PM she had seen accused Deep Ram committing rape with the prosecutrix. She initially did not believe that incident but when Babli Devi disclosed the incident to her she asked the prosecutrix. Her daughter was scared. She told her not to be frightened. The prosecutrix told her that accused from the last year i.e. 2010, has been committing forcible sexual intercourse with her and has committed it 5-6 times since 2010. However, prosecutrix did not disclose it to anyone as the accused used to threaten her. She told that the accused Deep Ram used to commit forcible sexual intercourse when she was alone in the house. She told her that on 6.4.2011 at about 12:30 PM, accused Deep Ram committed forcible sexual intercourse with her on the double bed in the room of her sons and Babli saw the incident of committing rape with her. She then telephonically apprised her brother Pardeep Kumar, who reached their house on 8.4.2011. The matter was disclosed to him and he advised to lodge the report. At this, She alongwith the prosecutrix, Pardeep Kumar and Khem Chand went to the Police Post Dagshai and lodged the report Ext. PW-1/A. In her cross examination, she deposed that her marriage was solemnized about 22 years back. She was working with Sh. K.D. Sehgal for the last 8-9 years. She denied the suggestion that she used to remain out of her house for 10-15 days. Volunteered that she used to go only for 2-3 days. She denied that the prosecutrix also used to visit the house of Sh. K.D. Sehgal and Sh. K.D. Sehgal had never visited her house. Again volunteered that Babli told her about the incident at 7:30 PM and again stated that she told her the incident in the evening. She used to return to her house at about 3-4 PM from the house of Sh. K.D. Sehgal. She admitted that Babli did not disclose the incident to her immediately on her arrival in her house. Again volunteered that Babli told her about the incident at 7:30 PM and again stated that she told her the incident in the evening. She used to return to her house at about 3-4 PM from the house of Sh. K.D. Sehgal. She admitted that Babli did not disclose the incident to her immediately on her arrival in her house. She did not remember the time when she inquired from the prosecutrix about the incident but she inquired on 7.4.2011. 10. PW-3 Babli Devi, deposed that at about 12:30 PM on 6.4.2011, she was going to bring grass from her fields and when she reached near the house of accused Deep Ram, she realized that she had to purchase grass from the accused Deep Ram and she went to the house of the accused. No one was present in the front room of the house. Then she heard some voices from adjoining room, upon which she went to the room and she saw that the accused was committing sexual intercourse with the prosecutrix. She had also seen a towel underneath the prosecutrix and at that time she was in half naked condition. She thereafter returned back and told the incident to Smt. Nisha Devi in the evening on 7.4.2011. On 9.4.2011, the police has seized the towel Ext. P-1. In her cross examination, she has stated that she could not narrate the incident to the mother of the prosecutrix, as in the evening, she could not visit her house. Her house was at a distance of half kilometer from the house of the prosecutrix. She used to purchase grass as and when needed. She intended to purchase dry grass from the accused and she had gone to the house of the accused to allow her some grass from the fields of the accused. The house of the accused was open when she reached there. She admitted that she has not disclosed the incident to her husband. 11. PW-4 Dr. Poonam Sharma, issued MLC Ext. PW-4/A. According to her final opinion, the victim was habitual of sexual intercourse and there was nothing to rule out the possibility of recent intercourse, however, it was not possible to mention duration of recent sexual intercourse. 12. PW-5 Kiran Kumar, has proved copy of birth register Ext. PW-5/A and copy of Parivar Register Ext. Poonam Sharma, issued MLC Ext. PW-4/A. According to her final opinion, the victim was habitual of sexual intercourse and there was nothing to rule out the possibility of recent intercourse, however, it was not possible to mention duration of recent sexual intercourse. 12. PW-5 Kiran Kumar, has proved copy of birth register Ext. PW-5/A and copy of Parivar Register Ext. PW-5/B. According to the birth register, the name of the daughter of Deep Ram has been entered at Sr. No. 60 on 10.10.1995. 13. PW-6 Lady Constable Pratima Devi, testified that she went to the police post Dagshai in government vehicle and reached at 12:15 AM on 9.4.2011. Statement of prosecutrix was recorded in her presence Ext. PW-1/A. She alongwith the prosecutrix, her mother and maternal Uncle went to Regional Hospital, Solan and the medical examination of the prosecutrix was conducted and the doctor handed over to her one parcel of cloth and another parcel of vaginal swab etc. and one envelope which were sealed with the seal impression of Civil Hospital, Solan. She alongwith the prosecutrix reached Kumarhatti and she handed over the MLC to the I.O. 14. PW 7 HC Parveen Kumar No. 152, deposed that on 9.4.2011, LC Pratima Devi deposited two parcels and an envelope bearing the seal impression of Civil Hospital, Solan and other parcel sealed with seal impression ‘K’ stated to be containing towel. Sample seal ‘K’ was produced before him, regarding which, he made entry in the malkhana register. He sent the case property through HHC Ashok Kumar to FSL Junga. On 11.4.2011, HHC Jaswant Singh deposited two parcels bearing seal impression PHCD alongwith envelope and sample seal, the entry of which was incorporated in the malkhana register. He sent the same to FSL Shimla on 13.4.2011 vide RC No. 46/11, Ext. PW-7/C through Constable Sudhir. 15. Statements of PW 8 Constable Sunil Thakur and PW 9 Inspector Jagdish Chand, are formal in nature. 16. PW 10 HHC Jaswant Singh, deposed that accused Deep Ram was found sitting on the stairs on the way. The I.O prepared the letter for the medical examination of the accused. The accused was taken to CHC Dharampur, where he was medically examined. The doctor medically examined the accused and handed over the copy of MLC to him. 17. 16. PW 10 HHC Jaswant Singh, deposed that accused Deep Ram was found sitting on the stairs on the way. The I.O prepared the letter for the medical examination of the accused. The accused was taken to CHC Dharampur, where he was medically examined. The doctor medically examined the accused and handed over the copy of MLC to him. 17. PW 11 HHC Ashok Kumar, deposed that on 11.4.2011, MHC Parveen Kumar Police Station, Dharampur, handed over to him, two parcels and envelope bearing seal impressions of Civil Hospital Solan and third parcel bearing seal impression of K alongwith the sample of seal K and other documents vide RC No. 44/11. He deposited the same at FSL Junga safely. 18. PW 12 Constable Sudhir Sharma, also deposed that on 13.4.2011, HC Parveen Kumar vide RC No. 46/11 handed over to him two parcels and one envelope sealed with seal impression PHCD and one sample seal of PHCD alongwith other documents which were safely deposited by him at FSL Junga, on the same day. 19. Statement of PW 13 Constable Partesh Kumar, is formal in nature. 20. PW 14 Dr. Mahinder Lal, ESI Dispensary Jabli, Distt. Solan, deposed that on 11.4.2011, on the request of the police he medically examined the accused, who was brought to him with the alleged history of performing sexual intercourse with his daughter on 6.4.2011. He issued MLC Ext. PW-14/A. 21. PW 15 ASI Mehar Chand, Incharge Police Post Dagshai, deposed that on 8.4.2012, prosecutrix alongwith her mother Nisha, maternal uncle Pradeep Kumar came to Police Post Dagshai and disclosed that Deep Ram had committed rape with the prosecutrix. FIR Ext. PW-7/D was registered at PS Dharampur. On the same date, application Ext. PW-15/A was handed over to the LC Pratima for medical examination of the prosecutrix and prosecutrix was medically examined. The towel was taken into possession. The accused was also medically examined and arrested on 11.4.2011. Spot map Ext. PW-15/E was prepared. 22. The case of the prosecution precisely is that the accused used to sexually exploit his daughter since 2010. When PW-2 Nisha Devi and children had gone to attend the marriage, the accused has committed sexual intercourse with the prosecutrix on 6.4.2011 at about 12:30 PM. This incident was seen by PW 3 Babli Devi. PW-15/E was prepared. 22. The case of the prosecution precisely is that the accused used to sexually exploit his daughter since 2010. When PW-2 Nisha Devi and children had gone to attend the marriage, the accused has committed sexual intercourse with the prosecutrix on 6.4.2011 at about 12:30 PM. This incident was seen by PW 3 Babli Devi. PW 3 Babli Devi, in her statement, deposed that she was going to bring grass from her fields. When she reached near the house of Deep Ram, she realized that she had to purchase grass from accused Deep Ram, upon which, she went to the house of the accused and saw the incident. She has visited the house of the accused on 6.4.2011 at 12:30 PM, however, she has narrated the incident to PW-2 Nisha Devi only on 7.4.2011, in the evening. It is not believable as to why PW 3, Babli Devi, who was going to cut grass from the fields had gone to the house of Deep Ram. If she had to buy the grass, she would have gone to the house of the accused directly instead of going to her fields. PW 3 has not even narrated the incident to her husband as per her crossexamination. If PW 3 had seen the occurrence, it was serious incident and she was bound to disclose it to the mother of the prosecutrix, instead of delaying the same. 23. PW-1 has deposed that her mother used to work in the house of Sh. K.D. Sehgal. Her father used to object to it. PW 1 has admitted that her mother used to accompany Sh. K.D. Sehgal to Yamuna Nagar. She also admitted that relations between her mother and father were not cordial. She has admitted that she herself has visited the house of Sh. K.D. Sehgal, alongwith her mother. PW 2 Nisha Devi, has denied that the prosecutrix used to visit the house of K.D. Sehgal. It is also admitted by PW 2 that she used to go for 2-3 days. According to her statement, her husband has never asked her to serve in the house of Sh. K.D. Sehgal. It is established from the statement of PW 1 that the relations between PW-2 Nisha Devi and her husband were strained. The accused used to call upon PW-2 Nisha Devi not to serve in the house of K.D. Sehgal. According to her statement, her husband has never asked her to serve in the house of Sh. K.D. Sehgal. It is established from the statement of PW 1 that the relations between PW-2 Nisha Devi and her husband were strained. The accused used to call upon PW-2 Nisha Devi not to serve in the house of K.D. Sehgal. According to PW 1 she has been sexually assaulted number of times and her date of birth is 20.3.1995. She was mature enough and bound to disclose the incident to her mother. The mother could not be oblivious to this incident, if her daughter has been sexually assaulted by her husband. She had admitted in cross-examination that she has gone in the month of April, 2011 alongwith her brother and mother to attend the marriage but returned to the house prior to them. The marriage was solemnized 10 kilometres away from their house. She also deposed that her father had also gone to attend the said marriage. Stated that he had also returned to the house prior to her mother and brothers. The prosecutrix was bound to come with her mother and brothers rather the entire family was supposed to come back together after attending the marriage. 24. Now, as far as the medical evidence is concerned, PW 4 Dr. Poonam Sharma, has issued MLC Ext. PW-4/A. According to her final opinion, there was nothing to rule out the recent sexual intercourse, however, it was not possible for her to mention the duration of sexual intercourse. If the version of PW 1 is believed then in the medical report, it would have come that there was recent sexual intercourse. The incident, according to the prosecution, has happened on 6.4.2011 and she was medically examined on 9.4.2011 at 10:00 AM. She was found to be habitual of sexual intercourse. She has not seen any recent injury marks over the body parts of the prosecutrix. The old tear of hymen was seen at 6 & 8 O clock position. The vaginal opening admits two fingers easily. She has not noticed any fresh injury marks/ discharge/vaginal bleeding over the vaginal walls. According to Ext. PY, report of FSL, blood and semen was not detected on shirt, pajami, vaginal swab, pubic hair and vaginal slides of the prosecutrix. The vaginal opening admits two fingers easily. She has not noticed any fresh injury marks/ discharge/vaginal bleeding over the vaginal walls. According to Ext. PY, report of FSL, blood and semen was not detected on shirt, pajami, vaginal swab, pubic hair and vaginal slides of the prosecutrix. Human blood was detected on the underwear and vaginal swab of the prosecutrix but semen was not detected on the exhibits. Blood was detected in traces on Ext. 2a- vulval swab and 2b-introits swab, which was insufficient for further examinations and semen was not detected on the exhibits. Blood was not detected on Ext. P-4-Towel. The conduct of PW 3 Babli Devi is unusual. She was supposed to narrate the incident to mother of the prosecutrix immediately. She has remained silent till 7.4.2011 i.e. till the evening of 7.4.2011. It is apparent that the accused used to impress upon her wife not to go to the house of K.D. Sehgal, however, she did not stop to go to the house of K.D. Sehgal. She used to remain absent from the house for 2-3 days and even accompanied K.D. Sehgal to Yamuna Nagar. PW-1 has admitted that the relations between her father and mother were strained and her father used to tell the mother not to visit the house of K.D. Sehgal. It is not that the mother of the prosecutrix used to visit house of K.D. Sehgal but prosecutrix has also admitted that she used to visit the house of K.D. Sehgal. The registration of FIR at the instance of PW-1 was due to ill-will of the mother of the prosecutrix towards her husband who was asking her not to work in the house of K.D. Sehgal. The prosecution version does not inspire any confidence, in view of the appraisal of the evidence discussed hereinabove. 25. Consequently, in view of analysis and discussion made hereinabove, the prosecution has failed to prove its case beyond reasonable doubt that the accused has committed rape upon the prosecutrix. The circumstances noticed by us hereinabove creates reasonable doubt in the version of prosecution. 26. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 19.3.2013 and order dated 20.3.2013, rendered in Sessions Trial No.8-S/7 of 2011, is set aside. Accused is acquitted of the charges framed against him by giving him benefit of doubt. The circumstances noticed by us hereinabove creates reasonable doubt in the version of prosecution. 26. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 19.3.2013 and order dated 20.3.2013, rendered in Sessions Trial No.8-S/7 of 2011, is set aside. Accused is acquitted of the charges framed against him by giving him benefit of doubt. Since the accused is in jail, he be released forthwith, if not required in any other case. 27. The Registry is directed to prepare the release warrant of accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.