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Himachal Pradesh High Court · body

2014 DIGILAW 1156 (HP)

Tilak Raj v. State of H. P.

2014-08-29

RAJIV SHARMA

body2014
Judgment Rajiv Sharma, J. This appeal is instituted against the judgment dated 20.8.2013 of the learned Addl. Sessions Judge, Chamba, rendered in Sessions Trial No. 43 of 2012, whereby the appellant-accused (hereinafter referred to as the accused), who was charged with and tried for offences under Sections 376 and 323 IPC, has been convicted and sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs. 50,000/- and in default of payment of fine to undergo further rigorous imprisonment for a period of one year under Section 376(1) of the IPC and also sentenced to undergo rigorous imprisonment for six months under Section 323 of the IPC. Both the sentences were ordered to run concurrently. The period of detention undergone by the accused from 13.2.2012 onwards was ordered to be set off under Section 428 Cr.P.C. 2. The case of the prosecution, in a nut shell, is that on 12.2.2012, the prosecutrix had gone to ‘Chela’ to offer prayers. The accused met her and questioned about her village. The accused also slapped the prosecutrix on both sides of her face. Accused took off her clothes and took her below the high way inside the culvert and committed sexual intercourse against her consent. He had also beaten her and blood started oozing out. She sustained injuries and became unconscious. She was taken from there by her niece, mother-in-law and other persons. She was then taken to the hospital. She was medically examined by the doctor. The statement of PW-1 Ghindro Ram was recorded under Section 154 Cr.P.C. Dr. Poonam Jambla (PW-6) examined the prosecutrix. She issued MLC Ext. PW-6/A. The doctor concluded that there was a possibility of rape on the prosecutrix. The accused was also medically examined. The disclosure statement was made by the accused, on the basis of which, recovery of clothes was made. The place where the sexual intercourse was committed with the prosecutrix was also identified by the accused and memo to this effect was prepared vide memo Ext. PW-19/F. The clothes were sent for examination. The investigation was carried out and the challan was put up after completing all the codal formalities. 3. The prosecution has examined as many as 19 witnesses. The statement of the accused under Section 313 Cr.P.C. was recorded. The accused has denied the entire version of the prosecution and pleaded innocence and claimed that he was falsely implicated. The investigation was carried out and the challan was put up after completing all the codal formalities. 3. The prosecution has examined as many as 19 witnesses. The statement of the accused under Section 313 Cr.P.C. was recorded. The accused has denied the entire version of the prosecution and pleaded innocence and claimed that he was falsely implicated. The learned Trial Court convicted and sentenced the accused, as stated hereinabove. 4. We have heard learned counsel for both the sides and gone through the material available on record very carefully. 5. PW-1, Ghindro Ram deposed that on 12.2.2012 at around 8:00 AM, he took goods on mules to village Matti near Lachodi in Tehsil Salooni. He came back to Sallot Nalla with his mules around 3:00 PM. Ghunghar, accompanied him to Salot Nalla. At Salot Nalla, Mool Dutt met him. Mool Dutt, told him that he heard screams of a person near culvert below the high way. The accused was putting up jip of his pant. He ran away. They went inside the culvert. They had seen an old lady who was half naked. She was identified as Prosecutrix. On seeing the old lady, they left to inform her relatives. On their way, they reached the shop of Gian Chand at Salot where Darshan Singh, Balam, Mool Chand and Tilak were present. They returned to the culvert where the prosecutrix was seen. Darshan lifted the old lady and brought her to the high way. She was half naked with her Salwar opened below her knees. Darshan Singh covered her with his jacket. Prosecutrix was brought to the shop of Gian Chand at village Salot. Injuries were noticed on her leg and forehead. She was taken to Regional Hospital, Chamba. He made statement Ext. PW-1/A before the police. In his cross-examination, he deposed that they had no talk with prosecutrix since she was unconscious. He had good relations with Mool Chand, Darshan Kumar and prosecutrix. 6. PW-2, is the prosecutrix. According to her on 12.2.20012, she had gone to ‘Chela’ to offer prayers. She returned from there around 3:00 PM. The accused met her. He questioned about her village. He also slapped her. He took off her clothes and took her below the high way inside the culvert and committed sexual intercourse with her. He had beaten her and blood started oozing out and she became unconscious. She returned from there around 3:00 PM. The accused met her. He questioned about her village. He also slapped her. He took off her clothes and took her below the high way inside the culvert and committed sexual intercourse with her. He had beaten her and blood started oozing out and she became unconscious. She received injuries on her legs. Her relatives took her from there. Her niece, mother-in-law and other persons came there and took her from the scene of occurrence. She was un-conscious and she did not know who had taken her to the hospital. She was medically examined by the doctor. In her cross-examination, she deposed that she had gone to village Halela to meet ‘Chela’. The distance between her village and village Halela is 15 kms. She covered the entire distance on foot. She started from her residence at 9:45 AM and reached Halela at 11:30 AM. She left Halela at 2:00 PM. When she reached at the place of occurrence, it was around 3:00 PM. The distance between Halela and the place of occurrence is about 6 Kms. The distance between Salot Nalla and P.S. Kihar is quite far. Her son had accompanied her to village Halela but he lagged behind her. While returning from Village Halela, she was alone. Her son was left on the way since he had fallen sick and stayed back in the pastures. She did not meet anyone while returning from Halela. Her statement was recorded after three days of the occurrence in the hospital. She has disclosed before the police that her niece and mother-in-law had come and took her from the place of occurrence. Confronted with Mark ‘C’ where it is not so recorded. 7. PW-3, Darshan Kumar deposed that on 12.2.2012, Ghindro, Mool Dutt and Ghungar came near to their residence at Village Salot. They informed him that one lady namely prosecutrix was lying in the culvert below high way. They told him that the condition of the lady was precarious. All the three persons returned to the culvert. He, alongwith Gian Chand and Balam accompanied them. On reaching there, he found that prosecutrix was not wearing legging and Salwar. She was crying. He went inside the culvert and brought her out. He covered her with his jacket. He brought prosecutrix to his residence. The injuries were noticed on her face and knees. She was not conscious. He, alongwith Gian Chand and Balam accompanied them. On reaching there, he found that prosecutrix was not wearing legging and Salwar. She was crying. He went inside the culvert and brought her out. He covered her with his jacket. He brought prosecutrix to his residence. The injuries were noticed on her face and knees. She was not conscious. She was made to wear clothes and brought to the hospital at Chamba. He had given clothes of his wife to the prosecutrix. In his presence, the statement of accused Ext. PW-3/A was recorded by the police. He disclosed in his statement that he had kept blue coloured shirt and black coloured pant, worn by him at the time of occurrence, at his residence. The accused brought his clothes from his residence and produced before the police. The same were taken into possession vide seizure memo Ext. PW-3/B. In his cross-examination, he deposed that the distance between his residence and shop is 500-600 meters. Ghungar, Ghindro and Mool Chand came to his residence at around 2-3:00 PM on 12.2.2012. They stayed there for about a minute. He did not have any talk with the prosecutrix since she was seen crying and un-conscious. Prosecutrix was kept at his residence for about one and a half hour. 8. PW-4, Mool Dutt deposed that on 12.2.2012, around 3:00 PM, he was returning back after doing work in village Banjar. When he reached Salot Nalla at 3:00 PM, he heard screams from the culvert. He stayed there and in the meantime, two persons with mules were seen coming from the side of Village Ligga. He happened to cross the culvert when he heard screams. All of them had seen the culvert from where the accused came out. The jip of the pant of the accused was seen open. Prosecutrix was seen lying naked in the water inside the culvert. All of them went to the village Salot which took about 10 minutes. On reaching Salot, they went to the shop of one ‘Lala’ with whose name he was not acquainted. Darshan, alongwith two persons accompanied them and they all returned to the culvert. Darshan put off his jacket and covered the body of prosecutrix and she was taken out of the culvert. 9. PW-5, Dr. Varun Sharma, has examined the accused. He has issued MLC Ext. PW-5/A. 10. PW-6, Dr. Poonam Jambal has examined the prosecutrix. Darshan, alongwith two persons accompanied them and they all returned to the culvert. Darshan put off his jacket and covered the body of prosecutrix and she was taken out of the culvert. 9. PW-5, Dr. Varun Sharma, has examined the accused. He has issued MLC Ext. PW-5/A. 10. PW-6, Dr. Poonam Jambal has examined the prosecutrix. According to the FSL report Ext. PX, no semen or blood stains on victim’s clothes were found. No spermatozoa on the slides were also found. There were struggle marks over the victim’s body and laceration inside vagina to show possibility of rape committed on the victim. She issued MLC Ext. PW-6/A. 11. PW-7, Narender Singh is a formal witness. 12. PW-8, Gian Chand deposed that on 12.2.2012 at around 3:30 PM, he was sitting in his shop at Salot. Mool Dutt, Ghindro and Ghunghru came to his shop and informed him that one lady namely, prosecutrix had been crying inside the culvert at Salot Nalla. She was lying inside the culvert in a half naked condition. He covered prosecutrix with sheet and took her out with the help of aforesaid persons. She was unconscious. He brought her to his house and was made to sit near hearth in the kitchen. In his cross-examination, he admitted that the prosecutrix is in his near relation. She was aunt of his son’s wife. 13. PW-9, Suneel Kumar deposed that he was associated in the investigation by the police. He accompanied the police to the culvert at Salot Nalla besides Jaram Singh, from where one green coloured Salwar and one gray coloured legging were taken in their presence. It was sealed. 14. PW-10, Ravinder Kumar deposed that in his presence accused Tilak Raj made disclosure statement under Section 27 of the Indian Evidence Act, while in custody of the police with regard to his blue coloured shirt and black coloured trouser. The disclosure statement is Ext. PW-10/A. It was signed by him. 15. PW-11, Ramesh Kumar, PW-12 HHC Diwan Chand, PW-13 Constable Mohd. Khan, PW-14 HC Chaman Lal, PW-15 HC Ramesh Kumar, PW-16 Constable Satish Kumar, PW-17 ASI Onkar Singh and PW-18 HC Ashwani Kumar are formal witnesses. 16. PW-19 ASI Kuldeep Kumar deposed that he received information on phone from SHO P.S., Kihar, that in village Salot an attempt to commit rape with a woman had been made. He proceeded to the spot. 16. PW-19 ASI Kuldeep Kumar deposed that he received information on phone from SHO P.S., Kihar, that in village Salot an attempt to commit rape with a woman had been made. He proceeded to the spot. He recorded the statement of Ghindro Ext. PW-1/A under Section 154 Cr.P.C. FIR was registered. Spot map prepared and photographs were also taken. Recoveries were made of the clothes of the prosecutrix and accused. MLCs were also obtained. 17. PW-2, prosecutrix is the material witness. The version given by her is that she had gone to ‘Chela’ to offer prayers on 12.2.2012. When she was coming back around 3:00 PM, accused met her and slapped on both the sides of her face. He took her to the culvert and committed sexual intercourse with her. She sustained injuries. She was taken out by her niece, mother-in-law and other persons. In her cross-examination, she stated that she had gone to village Halela to meet ‘Chela’. The distance between her village and village Halela is 15 kms. She covered the entire distance on foot. She started from her residence at 9:45 AM and reached Halela at 11:30 AM. It cannot be believed that a lady aged 60 years could travel a distance of 15 kms within less than two hours. She started from village Halela at 2:00 PM and reached at the spot of occurrence at 3:00 PM. Her son had not accompanied her to Village Halela. However, he got tired and reached village Halela after her. She was all alone when she came back from village Halela. Her son lagged behind since he had fallen sick and stayed in the pastures. When the prosecutrix had gone with her son, it is not believable that she would leave her sick son in the pasture. When the mother and son had gone together, they were supposed to come together. She has also admitted in her crossexamination that she was in visiting terms with Mool Dutt (PW-4) and Ghungar. PW-3, Darshan Kumar is her son-in-law and Ghindro Ram (PW-1) was from her community. She also deposed that when her niece and mother-in-law had come to take her from the place of occurrence, she did not have any conversation with them nor with Mool Chand, Darshan and Ghungar. PW-3, Darshan Kumar is her son-in-law and Ghindro Ram (PW-1) was from her community. She also deposed that when her niece and mother-in-law had come to take her from the place of occurrence, she did not have any conversation with them nor with Mool Chand, Darshan and Ghungar. Neither PW-1 Ghindro nor PW-3, Darshan Kumar or PW-4, Mool Dutt have deposed that the niece and relatives of prosecutrix had come to take her from the culvert. PW-1, Ghindro is from the community of the prosecutrix. PW-4, Mool Dutt had, for the first time, heard cries coming out from the culvert. She had visiting terms with Mool Dutt, one of the persons who had also gone on the spot. Ghungar, as per PW-2 prosecutrix, is her relative. PW-3, Darshan Kumar who had covered the prosecutrix with his jacket is son-inlaw of the prosecutrix. All the witnesses are either relatives of the prosecutrix or are known to her family. Even PW-8, Gian Chand has admitted in his cross-examination that the prosecutrix was his near relative. She is aunt of his son’s wife. 18. According to PW-1 Ghindro when they reached the spot, the prosecutrix was unconscious and when they again visited the spot she was unconscious. PW-2, prosecutrix also deposed that she was unconscious. PW-3, Darshan Kumar deposed in his cross-examination that the prosecutrix was crying and was unconscious. If the prosecutrix was crying, she could not be unconscious and if she was unconscious, she could not be crying. 19. According to PW-4, Mool Dutt, the prosecutrix was unconscious. PW-8, Gian Chand deposed that when they reached Salot Nalla, they found the prosecutrix lying inside the culvert half naked. He covered the prosecutrix with the sheet and she was taken out with the help of Mool Dutt, Ghindro and Ghunghru. She was unconscious. She was brought to his house and made to sit near hearth in the kitchen. When she was unconscious she could not be made to sit near the hearth in the kitchen. According to MLC Ext. PW-5/A, the patient was brought by the police with alleged history of rape (attempt to rape). The FSL report is Ext. PX. The FSL report Ext. PX did not show any semen or blood stains on the victim’s clothes and no spermatozoa on slides. The witnesses are either closely related or known to the prosecutrix. According to MLC Ext. PW-5/A, the patient was brought by the police with alleged history of rape (attempt to rape). The FSL report is Ext. PX. The FSL report Ext. PX did not show any semen or blood stains on the victim’s clothes and no spermatozoa on slides. The witnesses are either closely related or known to the prosecutrix. The statement of the prosecutrix does not inspire confidence, the manner in which she has narrated the occurrence of the incident. According to PW-3 Darshan Kumar, the prosecutrix was kept in his residence for about one and a half hour. PW-8 Gian Chand, also deposed that the prosecutrix was also brought to his house and made to sit near the hearth in the kitchen. It is intriguing to note that as to why three persons who have visited the spot have not taken out the prosecutrix and not removed the prosecutrix and taken her to the hospital from the culvert. According to them, she was in precarious condition. They should have taken out the prosecutrix instead of going to the shop of Gian Chand. There are inherent contradictions in the statement of the prosecution witnesses. 19. 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, as noticed hereinabove, create reasonable doubt in the version of prosecution. 20. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 20.8.2013, rendered in Sessions Trial No. 43 of 2012, is set aside. Accused is acquitted of the charges framed against him. Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 21. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.