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2014 DIGILAW 1478 (HP)

State of Himachal Pradesh v. Hardev Singh

2014-10-18

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : Rajiv Sharma, J. 1. This appeal is instituted against the judgment dated 24.1.2008 rendered by the Sessions Judge, Solan in Sessions Trial No. 1-S/7 of 2007, whereby the accused respondent (hereinafter referred to as the accused for convenience sake), who was charged with and tried for offence punishable under sections 342, 376 and 506 of the Indian Penal Code, has been acquitted. 2. Case of the prosecution, in a nutshell, is that PW-1 prosecutrix was resident of Kabakalan. She has one son and one daughter. Daughter was married. Age of son was 18 years, who was unmarried. On 3.1.2007 at about 3.00 P.M. when she was alone in the house, accused forcibly entered her house and bolted the door from inside. He forcibly committed sexual intercourse with her. He was drunk. Since her left arm was not working for the last 3-4 months, therefore, she could not put much resistance to avoid the rape. Accused raped her against her wishes. Accused confined her in the room for about two hours. He threatened her while leaving. She could not report the matter immediately. The matter was reported to the police on 4.1.2007, on the basis of which FIR was registered. Prosecutrix was examined by PW-2 Dr. Jyoti Kapil, Medical Officer. Accused was examined by PW-3 Dr. Vinod Kapil, Medical Officer. PW-4 Baldev Singh was independent witness. The matter was investigated by PW-5 K.D. Khan. The MLC of the prosecutrix is Ex.PW-2/B and that of accused is Ex.PW-4/B. Spot map is Ex.PW-5/A. The report of Chemical Examiner is Ex.PW-5/C. Copy of compromise dated 2.4.1997 is Ex.DA. Police investigated the case and after completion of investigation, the challan was put up in the court. 3. Prosecution examined as many as 5 witnesses in all to prove its case against the accused. Statement of the accused under section 313 of the Code of Criminal Procedure was also recorded. He has denied that he had entered the room of prosecutrix and forcibly committed rape upon her. 4. Mr. Ashok Chaudhary, learned Additional Advocate General, has vehemently argued that the prosecution has proved its case against the accused. 5. Mr. Ravinder Thakur has supported the judgment of the Trial Court. 6. We have heard the learned counsel for the parties and have gone through the record carefully. 7. Statement of PW-1 prosecutrix was recorded in camera. 4. Mr. Ashok Chaudhary, learned Additional Advocate General, has vehemently argued that the prosecution has proved its case against the accused. 5. Mr. Ravinder Thakur has supported the judgment of the Trial Court. 6. We have heard the learned counsel for the parties and have gone through the record carefully. 7. Statement of PW-1 prosecutrix was recorded in camera. According to her, on 3.1.2007 at 3.00 P.M. she was present in her house. She was alone. Accused came to her house. He bolted the door of the room from inside and committed rape upon her. He was drunk. Her hand was not working for the last four months. Thus, she could not put any resistance. He committed rape upon her 2-3 times. He remained in the room for about two hours. Thereafter, he opened the door. While leaving, he threatened. She could not go to the Police Station since it was at a distance of 7 KMs. She went to the Police Station on 4.1.2007 and lodged the FIR Ex.PW-1/A. Under wear of the accused was lying on the bed. It was taken into possession by the police. Baldev Singh and Chatter Singh were present at that time. Underwear was taken into possession vide recovery memo Ex.PW-1/B. Kameez Ex.P- 1, Salwar Ex.P-2, underwear Ex.P-3 and bra Ex.P-4 were taken into possession by the police. In her cross-examination, she has admitted that accused is son of her Devrani. Their house was joint. Their land was also joint. She married to Gulab Singh 20 years back. She had litigation with her Devrani. She had filed cases three years back. The case was of similar nature but at that time rape was not committed. Case was found to be false by the police and the same was cancelled. Cases filed against Devrani were also found to be false and the same were cancelled. Her house was surrounded by other houses. She has also admitted that these houses were occupied by the families. Her son was 18 years old and daughter was 21 years old. She sustained injuries on her back. Accused torn her clothes. However, she has further deposed that Salwar was not torn from anywhere. The string was not broken. The shirt was also not torn. She had cried 3-4 times. However, accused had gagged her mouth. The mouth was gagged with her Dupatta. She sustained injuries on her back. Accused torn her clothes. However, she has further deposed that Salwar was not torn from anywhere. The string was not broken. The shirt was also not torn. She had cried 3-4 times. However, accused had gagged her mouth. The mouth was gagged with her Dupatta. She had taken the Dupatta with her to the Police Station. Police did not say anything about the Dupatta. Doctor also did not inquire about the same. 8. PW-2 Dr. Jyoti Kapil has examined the prosecutrix. She has issued MLC Ex.PW-2/B. No semen was reported on the specimen. There were no injury marks present over chest, breast and back region. According to her opinion, the prosecutrix was habitual of sexual intercourse. The possibility of sexual activity could not be ruled out. 9. PW-3 Dr. Vinod Kapil has examined the accused and issued MLC Ex.PW-3/B. 10. PW-4 Baldev Singh has not supported the case of prosecution. According to him, one underwear was kept in the courtyard. In his presence underwear was sealed by the police. He could not say from where the underwear was recovered. He was cross-examined by the learned Public Prosecutor. He has denied the suggestion that the underwear was recovered by the police from the cot in the room of prosecutrix. He has denied the suggestion that accused told the police that it was his underwear. He was also cross-examined by the learned defence counsel. He has admitted that many persons used to visit the prosecutrix. The family of accused had been raising objection to the same. He has admitted that prosecutrix lodged false cases many times against many persons. He has also admitted that son of prosecutrix Ramesh used to remain in the house. He has not seen Ramesh working with Bal Krishan. He has also admitted that adjoining to the house of prosecutrix, there is house of her Devrani where she resides. The windows open towards the house of other persons. 11. PW-5 K.D. Khan has deposed that on 4.1.2007 at about 5.00 P.M. prosecutrix came to the Police Station. She lodged FIR Ex.PW-1/A. The prosecutrix and accused were got medically examined. He also prepared spot map Ex.PW-5/A. He has also taken photographs of the site. The windows open towards the house of other persons. 11. PW-5 K.D. Khan has deposed that on 4.1.2007 at about 5.00 P.M. prosecutrix came to the Police Station. She lodged FIR Ex.PW-1/A. The prosecutrix and accused were got medically examined. He also prepared spot map Ex.PW-5/A. He has also taken photographs of the site. One under wear stated to be of the accused lying on the cot in the room of the prosecutrix was also taken into possession in presence of witnesses Chatter Singh and Baldev Singh. 12. Accused has also examined DW-1 Soma Devi and DW-2 Sanjay Kumar. Statements of both the DWs are not material. 13. What emerges from the statement of the prosecutrix is that the accused is closely related to her. She has litigation with the family of accused. She had filed earlier cases against her Devrani. These were cancelled. It has come in the statement of PW-4 Baldev Singh that prosecutrix was habitual of filing false cases. Her house was surrounded by other houses. In case the accused had entered in her house forcibly she would have raised alarm. The version of the prosecutrix that her mouth was gagged with Dupatta cannot be believed. The Dupatta was never recovered by the Police. No injury was found on the body of the prosecutrix. In her cross-examination, she has admitted that her clothes were not torn from anywhere. The alleged incident has taken place on 3.1.2007 at 3.00 P.M. However, the FIR has been lodged by the prosecutrix with the police on 4.1.2007 at 5.00 P.M. Police has visited the spot on 5.1.2007. The FIR ought to have been lodged immediately. Normally, she should have narrated this incident to her son. According to the prosecution, the underwear was recovered from the cot in the room. However, PW-4 Baldev Singh has deposed that it was recovered from the courtyard. According to C.F.L. report Ex.PW-5/C, no semen was spotted on the trousers of the accused. Neither blood nor semen was found on the underwear of the prosecutrix. In her cross-examination, she has deposed that she has received injuries. However, as per opinion of the doctor, there was no injury on the person of prosecutrix relatable to rape. 14. Accordingly, in view of analysis and discussion made hereinabove, the prosecution has failed to prove its case beyond reasonable doubt. In her cross-examination, she has deposed that she has received injuries. However, as per opinion of the doctor, there was no injury on the person of prosecutrix relatable to rape. 14. Accordingly, in view of analysis and discussion made hereinabove, the prosecution has failed to prove its case beyond reasonable doubt. There is no ground to interfere with the well reasoned judgment of the trial court. 15. Consequently, the appeal is dismissed. Appeal dismissed.