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2014 DIGILAW 1309 (HP)

State of Himachal Pradesh v. Krishan Lal

2014-09-19

RAJIV SHARMA, SURESHWAR THAKUR

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Judgment : Rajiv Sharma, Judge This appeal is instituted against judgment rendered by learned Sessions Judge, Bilaspur, Himachal Pradesh in Sessions Trial No. 5 of 2004 dated 17.1.2008, whereby respondent-accused (herein after referred to as 'accused' for brevity sake), who was charged and tried for offence under section 376 of the Indian Penal Code, has been acquitted. 2. Case of the Prosecution in a nutshell is that on 20.4.2003 at about 4.30 pm, husband of the prosecutrix had gone to attend a marriage. She was alone with her children. At 10.00 pm, one Shri Rajinder Kumar, resident of Tikkari and accused, who is a Peon in the Veterinary Hospital in Panjgain, came to her house and they told her that they required Pattals. She told them that she had only 200 Pattals available with her and in case they required more Pattals, same could be taken from her Jethani Sukh Dei. They asked her to show the house of her Jethani Sukh Dei. She agreed. They went towards the house of Sukh Dei. Rajinder Kumar left by saying that he had to go to his house. Thereafter, prosecutrix and accused started moving towards the house of Sukh Dei. They had hardly covered some distance when accused caught her hand. She ran towards jungle. Accused followed her and caught her. Her shirt was torn. He threw her on the ground. She kept crying. Accused opened her Salwar and had intercourse with her against her consent/will and thereafter, accused ran away. She went to the house of Kamla Devi and told her about the incident. She also rang up her father, Sukh Ram and told about the incident. Shri Ranjit Singh, Pradhan of the Gram Panchayat was also told about the same. Thereafter, she went to her house and her father also came there. She had suffered bruises on her back and leg. She was also medically examined. Slide was also prepared at that time. Statements of witnesses were recorded. Accused was also subjected to medical examination. Police completed the investigation and thereafter put up challan after completing all the codal formalities. Accused was tried and acquitted by the trial Court i.e. Sessions Judge, Bilaspur, hence, this appeal. 3. Mr. Ashok Chaudhary, Additional Advocate General, has vehemently argued that the prosecution has proved its case against the accused. 4. Mr. J.R. Poswal, Advocate has supported judgment dated 17.1.2008. 5. Accused was tried and acquitted by the trial Court i.e. Sessions Judge, Bilaspur, hence, this appeal. 3. Mr. Ashok Chaudhary, Additional Advocate General, has vehemently argued that the prosecution has proved its case against the accused. 4. Mr. J.R. Poswal, Advocate has supported judgment dated 17.1.2008. 5. We have heard the learned counsel for the parties and also gone through the record carefully. 6. PW-1 Ranjit Singh deposed that he was at his house when he received a telephonic message from prosecutrix, after 9.00 pm. She informed that accused had come to her house and mis-behaved with her. 7. PW-2 and PW-3, are formal witnesses. 8. PW-4 is the prosecutrix. She deposed that about three years ago, on 20.4.2003, at about 10.00 PM, she was sitting with her children at her house. Accused came to her house alongwith one Rajinder Kumar. They asked her for Pattals. Rajinder demanded ten thousand Pattals. She showed her inability to supply that much quantity. She had only 200 Pattals with her. She advised them to have Pattals from Sukh Dei, her Jethani. Accused requested her to accompany them to the house of Sukh Dei. She showed her inability. However, they repeatedly requested her that she should accompany them to the house of Sukh Dei. They had come to her house on the scooter of Rajinder Kumar. She accompanied them on scooter but on the way, Rajinder alighted from the scooter by telling that he had work at the house of his maternal uncle. She went on scooter with accused. They covered some distance. After that accused stopped the scooter. He caught hold of her from arm and her shirt was torn. Accused forcibly took her to Khadyater, opened her Salwar and committed rape upon her. She was crying but her mouth was gagged by him. She rescued from the clutches of the accused and put on her Salwar and came back to her house. From there, she straightway came to the house of Kamla Devi. She also informed her Jethani and made a telephonic call to the Pradhan i.e. Ranjit Singh She has admitted in her cross-examination that road was adjacent to her house leading to Solag, which is a Pucca road. Her house is situated 40 feet below the road. House of her Jethani Kamla Devi is situated adjacent to her house and house of Sukh Dei is about 300 feet by road. Her house is situated 40 feet below the road. House of her Jethani Kamla Devi is situated adjacent to her house and house of Sukh Dei is about 300 feet by road. Towards upper side of the house of Sukh Dei, there is jungle and house of her Jethani, Sukh Dei is also below the road about 50 feet away. House of Gorkhu Ram is situated adjoining to the house of Sukh Dei. She was made to sit on the scooter in front of her house. Rajinder hails from her parental village. He knew the house of Sukh Dei. Rajinder alighted from scooter after 20 feet when all the three of them boarded the scooter. Thereafter, accused took scooter 150 feet from the place where Rajinder alighted. Rajinder alighted near the culvert. Accused stopped the scooter near the house of Sukh Dei. She raised hue and cry. Khadyater is situated on upper side of the road. A path is also leading towards Khadyater. Accused dragged her 150 feet towards Khadyater. Her mouth was gagged throughout. She tried to rescue herself. She pushed accused however, her hands could not reach the face of the accused as such no scratches were caused on the face of the accused. She has not narrated this incident to Rajinder. She has narrated the incident on the same day to the maternal uncle of Rajinder. She has also admitted that her mother-in-law and sister-in-law were also present at her house. 9. PW-5 Sukh Ram deposed that prosecutrix was his daughter. She was married to Chhota Ram. He received a telephonic message from the prosecutrix that two persons, accused and Rajinder Kumar came to her house for taking Pattals and when she was going to the house of her Jethani, on the way accused committed sexual intercourse with her. 10. PW-6 Mamta Kumari, is the daughter of the prosecutrix. She deposed that on 20.4.2003, at about 10.00 at night, Rajinder and accused came in the courtyard of her house. They were watching television. Her father had gone to attend a marriage. Mother was present in the house. Rajinder and accused asked the mother for Pattals. She told them she had only 200 Pattals. She told them that Sukh Dei could supply required quantity of Pattals. These persons insisted the prosecutrix to accompany them to the house of Sukh Dei. They were watching television. Her father had gone to attend a marriage. Mother was present in the house. Rajinder and accused asked the mother for Pattals. She told them she had only 200 Pattals. She told them that Sukh Dei could supply required quantity of Pattals. These persons insisted the prosecutrix to accompany them to the house of Sukh Dei. On the persuasion of Rajinder, mother accompanied them to the house of Sukh Dei. House of Sukh Dei was at 200 yards from their house. When accused visited her house, her younger brother, grandmother and Bua (paternal aunt) were present. Mother came back after half an hour. 11. PW-7 Dr. B. Bhangal has issued MLC Ext. PW7/A. According to the opinion of PW-7, possibility of rape could not be ruled out. 12. PW-8 Ishwar Dass deposed that on 21.4.2003, FIR Ext. PW4/B was lodged by the prosecutrix. Accused was arrested. He moved an application Ext. PW8/B to obtain the MLC. He also prepared site plan vide Ext. PW8/C. 13. PW-9 is a formal witness. 14. PW-10 examined the accused. He issued MLC Ext.PW10/A. 15. PW-11 Rajinder Kumar is a formal witness. 16. According to PW-4 (prosecutrix), accused had come to her house alongwith Rajinder Kumar. Rajinder asked for Pattals. She had told them that she had only 200 Pattals and more Pattals could be supplied by her Jethani, Sukh Dei. They insisted her to accompany them to the house of Sukh Dei. She boarded the scooter driven by Rajinder and went towards the house of Sukh Dei. On the way, Rajinder alighted from the scooter. Thereafter, she was driven on scooter by accused for some distance. Thereafter, she was raped. It is apparent that prosecutrix has accompanied accused voluntarily. According to the prosecutrix, Rajinder knew the house of Sukh Dei. If Rajinder knew the House of Sukh Dei, she was not supposed to go with him. House of Kamla Devi was situated near her house. House of Sukh Dei was only 300 feet by road. She could raise hue and cry. Her version that she was dragged to a distance of 150 feet and her mouth was gagged, can not be believed. She was an adult lady and could easily resist the advances of the accused. According to the FIR, after the incident, she went to the house of Kamla Devi, her Jethani and narrated the incident to her. Her version that she was dragged to a distance of 150 feet and her mouth was gagged, can not be believed. She was an adult lady and could easily resist the advances of the accused. According to the FIR, after the incident, she went to the house of Kamla Devi, her Jethani and narrated the incident to her. However, while appearing as PW-4, she has categorically deposed that she put on her Salwar and came to her house. From there she went to the house of Kamla Devi. In the FIR, it is stated that she escaped from the accused and went towards jungle. She was raped in the jungle. However, when she appeared as PW-4, she deposed that accused dragged her to a distance of 150 feet and then committed rape in Khadyater. 17. According to Ext. PW8/C, site plan, house of Gorkhu Ram and Sukh Dei are situated near the place of alleged occurrence. House of Mahender Singh was also at a distance of 100 metres from the place of alleged occurrence. If she had raised hue and cry, persons residing in the houses of Gorkhu Ram, Sukh Dei and Mahender Singh could hear the same. 18. DW-1 Prem Lal has proved relevant extract of register Ex. DW-1/A and DW-1/B. It is clear from these documents that the prosecutrix has visited the dispensary a number of times. Thus, it can not be believed that accused was stranger to her. She was known to the accused. There were no gag injuries on the mouth and lips of the prosecutrix as per cross-examination of PW-7, Dr. B. Bhangal. She has also admitted that if prosecutrix had been gagged, injuries like abrasions etc. were bound to be present on her lips and mouth. Statement of PW-4 does not inspire confidence. She has made various improvements in her statement. Prosecution has not proved the case beyond the reasonable doubt. 19. Learned trial Court has correctly appreciated the entire evidence and there is no occasion for this Court to interfere with the well reasoned judgment of trial Court. 20. Consequently, there is no merit in the appeal and the same is dismissed. Pending applications, if any, are also disposed of. The bail bonds are discharged.