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2014 DIGILAW 1463 (HP)

State of Himachal Pradesh v. Hans Raj alias Raja

2014-10-17

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment dated 31.5.2008 of the learned Presiding Officer, Fast Track Court, Mandi, H.P., rendered in Sessions Trial Nos. 39 of 2003 & 42 of 2004, whereby the respondent-accused (hereinafter referred to as the accused), who was charged with and tried for offences under Sections 363, 366 and 376 IPC, has been acquitted of the charges framed against him. 2. The case of the prosecution, in a nut shell, is that Sh. Durga Dass father of the prosecutrix reported the matter in Police Station, Sundernagar to the effect that he was posted in B.S.L. Security and Vigilance Department. He was residing with his family members in Quarter No.512-157, BBMB Colony, Sundernagar. On 30.6.2003, the prosecutrix, his daughter aged 17 years alongwith her cousin Kajal, daughter of Braham Dass, resident of Malori had left his quarter at about 1:30 PM. He inquired from his brother at about 7:00 PM. His =Bhabhi' Smt. Saroj Arya told him that at 4:00 PM his daughter and niece Kajal were seen going towards the side of Mandi Bazar. On the road at Pul Gharat the accused and Paramvir resident of Pandoh who were going on the motor cycle met them and stopped the motor cycle and talked with the prosecutrix. The prosecutrix told Kumari Kajal that she should go to the Bazar and she will go to her house. His daughter has not reached at his house on 30.6.2003. On 1.7.2003, he had gone to Pandoh to enquire from the friend of the prosecutrix about the whereabouts of the prosecutrix. He came to know that the prosecutrix was seen on 30.6.2003 and 1.7.2003 in the company of the accused in the quarter of Papu. On 30.6.2003 both have stayed in the quarter of Papu. On 1.7.2003, Babita who is studying in 10+1 class at Pandoh had seen the accused and the prosecutrix roaming near the School. On 2.7.2003 when he was at the bus stand Sundernagar, in the search of the prosecutrix, the accused met him at bus stand Sundernagar. He enquired from the accused regarding the prosecutrix and the accused refused to divulge anything. He and his brother Gopi Chand took the accused to the police Station, Sundernagar. The prosecutrix was recovered and custody was handed over to him on superdari. He enquired from the accused regarding the prosecutrix and the accused refused to divulge anything. He and his brother Gopi Chand took the accused to the police Station, Sundernagar. The prosecutrix was recovered and custody was handed over to him on superdari. The investigation was completed and challan was put up after completing all the codal formalities. Initially, the FIR was registered under Section 363 IPC. Thereafter, the same was converted under Sections 363, 366 and 376 IPC. 3. The prosecution has examined as many as 16 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 acquitted the accused, as stated hereinabove. Hence, this present appeal at the instance of the State. 1028 4. Mr. Parmod Thakur, learned Addl. Advocate General has vehemently argued that the prosecution has proved the case against the accused. On the other hand, Mr. G.R.Palsra, Advocate, has supported the judgment of the learned trial Court dated 31.5.2008. 5. We have heard learned counsel for both the sides and gone through the material available on record very carefully. 6. PW-1, Parvinder Kumar deposed that accused was his maternal Uncle from distant relation. His father was having a quarter at BBMB Colony at Pandoh. The accused had never asked him to give the key of the quarter of his father. He was declared hostile and cross-examined by the learned Public Prosecutor. 7. PW-2 Paramvir, deposed that he had gone to Pandoh on his motor cycle alongwith the accused. He has not seen the prosecutrix talking with the accused at Pul Gharat. He was also declared hostile and cross-examined by the learned Public Prosecutor. 8. PW-3 Gopi Chand, deposed that the prosecutrix was his niece. He was informed by his brother on 30.6.2003 at about 8:00 PM that his daughter was missing. He came to Sundernagar. They went in search of the prosecutrix at Pandoh. Paramvir met them at Pandoh. He told that the prosecutrix was seen with the accused. On 2.7.2003, Hans Raj met them at Sundernagar bus stand and they enquired from him about the prosecutrix. He did not divulge anything. Thereafter, he and his brother took him to Police Station. The personal search was carried out. Paramvir met them at Pandoh. He told that the prosecutrix was seen with the accused. On 2.7.2003, Hans Raj met them at Sundernagar bus stand and they enquired from him about the prosecutrix. He did not divulge anything. Thereafter, he and his brother took him to Police Station. The personal search was carried out. One broken wrist watch, one leather purse, one photograph of his niece, one page of diary and one letter were found. These articles were taken into possession by the police vide memo Ext. PW-3/A. He had no personal knowledge regarding the staying of the prosecutrix with the accused as per his statement in the cross-examination. He did not know that the prosecutrix stayed at Kanaid with one Vijay Kumar alongwith his parents. In his presence, his brother has not told the police that the writing contained in Ext. P-1, P-2 and P-4 was in the hand of the prosecutrix. 9. PW-4 Simro Devi, is the mother of the prosecutrix. According to her, the prosecutrix had gone to the house of brother of her husband, namely, Braham Dass on 30.6.2003. On 30.6.2003, her husband telephonically asked his brother Braham Dass about the arrival of the prosecutrix and Kajal. He told that the prosecutrix had gone to bazaar along with Kajal. Kajal had gone to market but his daughter, the prosecutrix wanted to go to Sundernagar. When she reached at Pul Gharat, two persons, namely, Hans Raj and Paramvir took his daughter on the motorcycle to Pandoh. The prosecutrix and accused used to study together at Pandoh. On 4.7.2003, her daughter was recovered by the police. She was handed over to her husband in the presence of Gopi Chand vide recovery memo Ext. PW-3/B. Her daughter told them that the accused had taken her to his quarter and kept there and committed sexual intercourse with her. In her cross-examination, she admitted that she was deposing regarding the aforesaid fact for the first time in the Court. She had no personal knowledge regarding the incident. She also admitted that her daughter used to reside at Kanaid but did not disclose from which date she stayed there nor the police has investigated this fact. 10. PW-5 Saroj Arya, deposed that on 30.6.2003 at about 4:15 PM, she was going to her Village Malori. She saw her daughter Kajal and her niece. She also admitted that her daughter used to reside at Kanaid but did not disclose from which date she stayed there nor the police has investigated this fact. 10. PW-5 Saroj Arya, deposed that on 30.6.2003 at about 4:15 PM, she was going to her Village Malori. She saw her daughter Kajal and her niece. After two hours, her daughter reached at home and told her that two persons, namely, Hans Raj alias Raja and one Paramvir met them in the Bazar. Kajal also told her that both the persons were compelling the prosecutrix to accompany them on their motor cycle. Her niece was recovered after about 3 days. In her cross-examination, she admitted that the prosecutrix had not told her anything about the incident. Her daughter Kajal has not told her that the persons sitting on the motor cycle had forcibly kidnapped the prosecutrix in her presence. Kajal also told her that the prosecutrix had told her that she will go to her house to Sundernagar and she may go to the Bazar for tuition. She admitted that there were many shops near the bridge at Pul Gharat and persons of the nearby locality might have seen the occurrence. She did not know that the prosecutrix used to reside in the house of Vijay Kumar at village Kanaid. She knew that the prosecutrix was in love with the accused. 11. PW-6 Devinder Kumar, deposed that he was owner of Vehicle No. HP-33-4069. He was called to Police Station by the father of the prosecutrix. Accused was known to him. He has not seen the prosecutrix alighting from the bus at Pandoh. The witness was declared hostile and cross-examined by the learned Public Prosecutor. He denied in his cross-examination that he has seen the prosecutrix at Jaral Colony while she was alighting from the bus. 12. PW-7 Durga Dass, is the father of the prosecutrix. He deposed that on 30.6.2003, his daughter had gone to his elder brother's house at Malori with his niece at 1:30 PM from Sundernagar. At about 7:30 PM he was told by his elder brother's wife about the arrival of the prosecutrix and Kajal that they were coming on foot to their house. They met two persons, who were riding in one motor cycle. One person started talking with the prosecutrix. At about 7:30 PM he was told by his elder brother's wife about the arrival of the prosecutrix and Kajal that they were coming on foot to their house. They met two persons, who were riding in one motor cycle. One person started talking with the prosecutrix. Thereafter, his daughter told his niece Kajal that she may go to her house and she will go back to her house. She did not reach home. He kept on searching her and on 2.7.2003, he alongwith his younger brother Gopi Chand went to search the prosecutrix at Sundernagar. He found Hans Raj at bus stand Sundernagar. Hans Raj did not divulge anything. He was taken to the Police Station. Diary Ext. P-1, letter Ext. P-2, photographs Ext. P-3 and one paper diary Ext. P-4 were in the hand writing of his daughter, which were addressed to Hans Raj. He produced school certificate. In his cross-examination, he admitted that he had no personal knowledge regarding the incident and reported the matter at Police Station Sundernagar on the information of others. He came to know from the contents of Ext. P-1, P-2 and Ext. P-4 that his daughter was in love with accused Hans Raj. 13. PW-8, Saroj Abrol, is a formal witness. 14. PW-9 Dr. Sapna Sharma, has medically examined the prosecutrix. She has issued MLC Ext. PW-9/C. According to her, the prosecutrix was exposed to coitus. She did not say as to when the last coitus has taken place. She has sent the clothes of the prosecutrix to FSL, Junga. In her cross-examination, she admitted that there was no injury of any kind on her body and there was no possibility of rape. 15. PW-10 is the prosecutrix. She deposed that she was studying in 10+ 1 class in Girls School, Sundernagar, District Mandi. She had gone to the house of her father's brother with his daughter Kajal on 30.6.2003. They left for Malori at 1:30 PM. When they reached at Pul Gharat at about 2:30 PM, they met accused Hans Raj and his friend Param Dev. Thereafter, accused asked her to come to Pandoh. On her refusal, the accused threatened her to do away with her life. Accused threatened her to visit Pandoh i.e. Jaryal Colony. When she was studying at Pandoh in 10+1 class, she had given one photo, one diary and letters to the accused Hans Raj. Thereafter, accused asked her to come to Pandoh. On her refusal, the accused threatened her to do away with her life. Accused threatened her to visit Pandoh i.e. Jaryal Colony. When she was studying at Pandoh in 10+1 class, she had given one photo, one diary and letters to the accused Hans Raj. These were Ext . P-3, Ext. P-1 and Ext. P-2 and Ext. P-4. She had liking for the accused. The accused started blackmailing her. She had gone to Jaral Pandoh in a private bus. Paramvir told her that accused Hans Raj will meet her in Colony or at his residence. Accused Hans Raj had met her at Colony and asked her to wait. The accused left for bringing the key of a quarter of his sister's son (Bhanja). Parminder had brought the key and after sitting for some time in the quarter, he had left the quarter. Thereafter, they remained in the quarter. The accused asked her to sleep on the bed and he himself slept on the ground. The accused asked her that that as they are going to marry shortly and why don't she come to his bed. She refused. The accused forcibly entered into her bed and committed sexual intercourse with her. She could not make hue and cry as there was none to hear her cries. On the second day, the accused took her to Pandoh Bazar and they both were roaming in the Pandoh Bazar. At 5:00 PM, the accused asked her to go to her house and told her to see him on 4.7.2003. The accused compelled her to board the bus in order to go to home. She sat in the bus. The accused accompanied her to Sundernagar in the bus. She did not go to her house and had gone to the house of Nishant. She went back to Pandoh. On the way to Pandoh, one Bhanja of accused looked her and asked her to alight from the bus at Jaral Pandoh. He informed the Police Post, Pandoh and police brought her to the Police Station, Sadar Mandi. She was handed over to her father. She was medically examined on the same date at Zonal Hospital, Mandi. In her cross-examination, she admitted that on 30.6.2003, she did not reach at Malori village. Her statement portion A to A of Mark-X was incorrect. He informed the Police Post, Pandoh and police brought her to the Police Station, Sadar Mandi. She was handed over to her father. She was medically examined on the same date at Zonal Hospital, Mandi. In her cross-examination, she admitted that on 30.6.2003, she did not reach at Malori village. Her statement portion A to A of Mark-X was incorrect. She has not given such statement to the police. Her statement portion B to B of Mark-X was also incorrect. She has not given such statement to the police. She and Kajol had not come from Village Malori to Pul Gharat. She also admitted that she has not disclosed to the police in her statement under Section 161 Cr.P.C that the accused had threatened her to do away with her life, if she will not go to Jaryal Colony at Pandoh according to his instructions. She has not disclosed this incident to anybody else and had given this statement for the first time in the Court. She also admitted that near Pul Gharat there are many shops and people were also present there. She also admitted that there are shops near the bridge. The accused and Paramvir never met them at Pul Gharat nor accused Hans Raj asked her to come to Pandoh at Pul Gharat. She had told the police that the accused Hans Raj and Paramvir met them 300 meters away on Malori road (confronted with her statement under Section 161 Cr.P.C. Mark-X wherein it is not so recorded). She also admitted that the accused never met her at Pul Gharat where shops were situated and her statement portion C to C of Mark-X is incorrect. She has not told to anybody that the accused met her on a motor cycle at Pul Gharat on Sundernagar road nor she has disclosed this fact to the police. She admitted that she boarded the bus to Jaryal Colony Pandoh of her own without any pressure from anybody at that time. Volunteered that, the accused had asked her to come and has pressurized her at village Malori. She had disclosed the police in her statement under Section 161 Cr.P.C. that she was pressurized by the accused to come to Pandoh in a bus at Village Malori when he met her. (confronted with her statement under Section 161 Cr.P.C. Mark X, wherein it is not so recorded). She had disclosed the police in her statement under Section 161 Cr.P.C. that she was pressurized by the accused to come to Pandoh in a bus at Village Malori when he met her. (confronted with her statement under Section 161 Cr.P.C. Mark X, wherein it is not so recorded). She also admitted that Jaryal Colony is thickly populated and there is bazaar and people were coming and going at that time. She also admitted that there were many passengers in the bus going to Pandoh. She has not disclosed to anybody regarding the threats advanced by the accused. She knew that Police Station Sadar Mandi is situated at Paddal which is situated about 600-700 yards. She has not reported the matter to the police at that time though she could have reported the same to the police. She has not told the police that Parvinder brought the keys of the quarter where they stayed at night. She told this fact for the first time in the Court and had not disclosed the same to anybody else including her parents. She reached at Pandoh at 8:00 PM on 30.6.2003. There were lights in the neighbourhood. She did not disclose to anybody at that time that accused has asked her to come to Pandoh by pressurizing her. She has admitted that her father had asked the accused to marry her. 16. PW-11 Sh. Rajesh Kumar, has issued the birth certificate of the prosecutrix vide Ext. PW-11/A. In his cross-examination, he has admitted that there was no serial number of this entry in the birth register. There was no mention of the name of the informant at whose instance the entries were made. He also admitted that there was no signature of any Panchayat Secretary who had made these entries outside the column and the said entries were not signed by any Secretary and also not verified by any competent Officer. He also admitted that there was no mention in the register that on which date this entry was made in the register. 17. PW-12 Kumari Kajal, deposed that on 30.6.2003, she had come to her house at village Malori due to summer vacation in the School. While going to Mandi town, they met two persons namely Paramvir and Hans Raj coming on motorcycle from Mandi towards Sundernagar. They met them at Pul Gharat on Mandi Sundernagar road. 17. PW-12 Kumari Kajal, deposed that on 30.6.2003, she had come to her house at village Malori due to summer vacation in the School. While going to Mandi town, they met two persons namely Paramvir and Hans Raj coming on motorcycle from Mandi towards Sundernagar. They met them at Pul Gharat on Mandi Sundernagar road. The accused called the prosecutrix to talk with her. She went to talk with the accused and she waited for her. After some time, she came with the accused. She told her that the accused was her class fellow and was asking about some books. She left for the bazaar and the prosecutrix stayed there. She narrated the whole story to her mother. At about 7:30 PM her uncle Durga Dass rang up her mother and enquired about the prosecutrix. Her mother told him that she had gone to her house at Sundernagar. She was ready to go to Mandi town with her but after meeting with the accused Hans Raj the accused might have taken away the prosecutrix. In her cross-examination, she admitted that both of them were talking nicely. She has not disclosed to anybody that she was pressurized or threatened by the accused to go to Pandoh. She has not told her that if she would not go to Pandoh, the accused would do away with her life. She has not disclosed anything about the incident to her. 18. PW13 Inspector Brijesh Sood, PW-14 HHC Baldev Singh and PW-15 HC Tulsi Ram, are formal witnesses. 19. PW-16 Narender Kumar, SI, CID investigated the matter. Ext. P-1, P-2, P-3 & P-4 were recovered. The prosecutrix was recovered at Pandoh while she was going to the quarter of the accused. She was handed over to her father on superdari. He obtained the report of FSL Ext. PW-16/B. The accused was also medically examined vide Ext. PW- 16/C. The birth certificate Ext. PW-11/A was obtained from G.P. Kothuan. The statements of the witnesses were recorded. In his cross-examination, he admitted that he has not taken possession of the motor cycle. 20. What emerges from the evidence brought on record is that the prosecutrix was 17 years of age. The prosecution has failed to prove that the prosecutrix was forcibly taken by the accused to Pandoh. Rather, she has voluntarily gone to Pandoh Colony, which was thickly populated. She had gone in the bus. 20. What emerges from the evidence brought on record is that the prosecutrix was 17 years of age. The prosecution has failed to prove that the prosecutrix was forcibly taken by the accused to Pandoh. Rather, she has voluntarily gone to Pandoh Colony, which was thickly populated. She had gone in the bus. She had also crossed Mandi town. It has come in her statement that she knew where the Police Station, Sadar Mandi was but she has not got down to register the case. She also deposed that she had liking for the accused. She had been writing letters to the accused. She has also handed over her photograph to the accused. PW-1 Parvinder Kumar and PW-2 Paramvir were declared hostile. According to the prosecutrix, PW-1 Parvinder had brought the keys of the room but PW-2 Paramvir had denied the same. 21. The statement of the mother of the prosecutrix Smt. Simro Devi (PW-4) is only based upon hearsay. In her cross-examination, she has admitted that she was deposing regarding the incident for the first time in the Court. She has not seen the incident. PW-7 Durga Dass, the father of the prosecutrix has admitted in his cross-examination that he had no personal knowledge regarding the incident and he has reported the matter to the police at Police Station, Sundernagar on the basis of the information supplied by others. He had no personal knowledge whether his daughter was staying at Pandoh or Kanaid in the family of Vijay Kumar. He came to know about the love affair of his daughter with the accused after reading Ext. P-1, P-2 and P-4. 22. According to PW-9 Dr. Sapna Sharma, the prosecutrix was exposed to coitus. The duration could not be given as to when the last coitus has taken place. In her cross-examination, she has admitted that there was no injury of any kind on the body of the prosecutrix and there was no possibility of rape. 23. According to the prosecution case, the accused has met the prosecutrix and Kajal at Pul Gharat but according to PW-10, the prosecutrix, the accused met them 300 meters ahead of Pul Gharat. The prosecutrix has remained in the Pandoh Colony and thereafter she had come to the market place. She has admitted that she was roaming in the bazaar in the company of the accused. The prosecutrix has remained in the Pandoh Colony and thereafter she had come to the market place. She has admitted that she was roaming in the bazaar in the company of the accused. There are also contradictions in the statements of PW-10 prosecutrix and her cousin PW-12 Kajal. PW- 16 S.I. Narender Kumar, has not even prepared the site plan of the spot. 24. The prosecution has miserably failed to prove the charge against the accused under Section 363 IPC. Similarly, charge under Section 366 IPC has also not been proved. In order to prove charge under Section 366 IPC, it is essential that the woman has been kidnapped or abducted and such kidnapping or abduction is with intent that she will be compelled to marry any person against her will or in order that she will be forced or seduced to illicit intercourse or by means of criminal intimidation or otherwise by inducing any woman to go from any place with intent that she may be, or knowing that she will be, forced or seduced to illicit intercourse. In the instant case, the prosecutrix herself has gone to Pandoh voluntarily. She has stayed with the accused. The accused has not kidnapped her. 25. Consequently, in view of analysis and discussion made hereinabove, the prosecution has miserably 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. 26. Accordingly, there is no occasion for us to interfere with the well reasoned judgment of the trial Court and the appeal is dismissed. Bail bonds are discharged.