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Himachal Pradesh High Court · body

2014 DIGILAW 2017 (HP)

State of H. P. v. Deepak Chauhan

2014-12-29

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : Rajiv Sharma, J. 1. The State has instituted this appeal against the judgment dated 20.3.2013, rendered by the learned Sessions Judge, Mandi, H.P. in Sessions Trial No. 4 of 2013, whereby the respondent-accused (hereinafter referred to as the accused) who was charged with and tried for offences under Sections 376 and 417 IPC, was acquitted by the learned trial Court. 2. The case of the prosecution, in a nut shell, is that the prosecutrix was married with one Shri Puneet Kumar of Village Garsa, Kullu on 28.4.2006. The differences arose between the husband and wife. She started living separately since 2009 with her parents. She met the accused. The accused pretended to be unmarried and offered proposal to marry her. He also requested the prosecutrix to take divorce from her husband. The prosecutrix got job at Shimla. She served there w.e.f. August 2010 to July, 2011. The accused used to visit her at Shimla. He developed physical relations with the prosecutrix. The prosecutrix filed petition for mutual divorce on 18.4.2012 in the Court of P.O. Fast Track Court, Mandi. The case was decided on 17.11.2012. The accused took the prosecutrix to Chandigarh and other places. She came to know on 15.5.2012 that the accused was married. In these circumstances, FIR No. 74 of 2012 dated 15.5.2012 was lodged at Police Station, Jogindernagar. The prosecutrix was medically examined by Dr. Suman Bist (PW-1). The matter was investigated and challan was put up after completing all the codal formalities. 3. The prosecution has examined as many as 13 witnesses to prove its case. The accused was also examined under Section 313 Cr.P.C to which he pleaded not guilty. He denied the entire case of the prosecution and took the plea that his father has lodged certain complaints against the prosecutrix as well as her parents. The learned Trial Court acquitted the accused on 20.3.2013. Hence, the present appeal. 4. Mr. Ramesh Thakur, learned Asstt. Advocate General has vehemently argued that the prosecution has proved its case. On the other hand, Mr. Davinder Sharma, Advocate, appearing for the accused has supported the judgment of the learned trial Court dated 20.3.2013. 5. We have gone through the impugned judgment dated 20.3.2013 and records of the case carefully. 6. PW-1 Dr. Suman Bist has examined the prosecutrix on 15.5.2012. She has issued MLC Ext. On the other hand, Mr. Davinder Sharma, Advocate, appearing for the accused has supported the judgment of the learned trial Court dated 20.3.2013. 5. We have gone through the impugned judgment dated 20.3.2013 and records of the case carefully. 6. PW-1 Dr. Suman Bist has examined the prosecutrix on 15.5.2012. She has issued MLC Ext. PW-1/B. There was no injury, bruises and bite marks or any evidence of any external injury on abdomen and thigh of the prosecutrix. According to her final opinion, the prosecutrix was found habitual of intercourse and there was evidence of previous delivery. According to her, on 19.7.2012, the police produced the report of FSL Ext. PA before her and after perusing the said report she had given report Ext. PW-1/C. 7. PW-2 Subhash Chandel, has produced the bill Ext. PW-2/A, whereby the accused has stayed in hotel on 17.1.2012 and checked out on 18.1.2012 at 9:21 AM. 8. PW-3 is the prosecutrix. According to her, she was married with Puneet Kumar in the year 2006. She stayed in her matrimonial home up to 2009. Thereafter, the differences arose between her and husband. She started living separately with her parents at Jogindernagar. She visited the shop of the accused in order to get the document photo-copied. The accused pretended before her that he was unmarried. She also disclosed the marital status to the accused. The accused assured her to marry her. He also insisted her to take divorce from her husband. She got job at Shimla and worked there from August, 2010 to July, 2011. Accused used to visit her at Shimla. He developed physical relations with her on the pretext of marrying her. The accused insisted to accompany him to Chandigarh. She went to Chandigarh with him. They stayed in hotel at Panchkula. They also stayed in Metro Hotel, Chandigarh. They also stayed at Surya Hotel at Delhi. As and when, she used to come back to Jogindernagar, they used to stay at Uhl hotel in Jogindernagar. The accused told her on 15.5.2012 that he was already married and having a daughter aged about 7 years. On this, she narrated the whole story to her parents. She alongwith her father visited S.P.Office Mandi and moved the application Ext. PW-3/A before the Addl. S.P., Mandi. The application was returned to her with the endorsement and direction to take the same to SHO, PS, Jogindernagar. On this, she narrated the whole story to her parents. She alongwith her father visited S.P.Office Mandi and moved the application Ext. PW-3/A before the Addl. S.P., Mandi. The application was returned to her with the endorsement and direction to take the same to SHO, PS, Jogindernagar. She produced the application before the SHO, PS Jogindernagar, where FIR was registered against the accused. She was also medically examined. In her cross-examination, she testified that she came to know about the marital status of the accused only on 15.5.2012. Her parents came to know about the whole incident on this date only. She admitted that Jogindernagar is a small town. She admitted that the bus stand Jogindernagar is situated at a distance of five meters from the Chowk known as Pathankot Chowk at Jogindernagar. Near the bus stand, the accused was having a double storied shop on the main road. He admitted that on the ground floor of the shop there was a jewelery shop and Photostat shop was on the first floor. Her father is a tailor by profession and he also used to work as traditional cook (Boati). Her father?s tailoring shop is situated at a distance of 100 meters. The distance between the shop of the accused as well as her house could be covered within a period of 8 minutes walk. She also admitted that the father of the accused is known to everyone in Jogindernagar. The accused is the only son of his father. She did not know about the fact whether the name of the wife of the accused was Anju Bala alias Nandni or not. Voluntarily stated that accused disclosed her that Anju was his sister. She also admitted that her father has lodged case against the accused on 28.10.2011. 9. Statement of PW-4 HC Chander Shekhar is formal in nature. 10. PW-5 HC Rajmal has proved memo Ext. PW-5/A and final bill of Surya Hotel Ext. PW-5/B alongwith identity proof of the accused and the prosecutrix vide Ext. PW-5/C and PW-5/D and the proof of payment through credit card Ext. PW-5/E. 11. Statements of PW-6 to PW-11 are formal in nature. 12. PW-12 Dr. Jiwan Kumar has medically examined the accused on 15.5.2012. He issued MLC Ext. PW-12/B. 13. PW-13 ASI Ashok Kumar was the I.O. He recorded the statement of the prosecutrix and her parents. He moved an application Ext. PW-5/E. 11. Statements of PW-6 to PW-11 are formal in nature. 12. PW-12 Dr. Jiwan Kumar has medically examined the accused on 15.5.2012. He issued MLC Ext. PW-12/B. 13. PW-13 ASI Ashok Kumar was the I.O. He recorded the statement of the prosecutrix and her parents. He moved an application Ext. PW-1/A before the M.O., CHC Jogindernagar with request to conduct the medico legal examination of the prosecutrix. She was medically examined vide MLC Ext. PW-1/B and report of doctor after perusing the report of RFSL was Ext. PW-1/C. He also obtained the record from the Uhl Hotel on 28.5.2012. 14. Sh. O.P. Chauhan, has appeared as DW-2. He has deposed the manner in which the complaints were lodged against each other by the families of the prosecutrix and the accused. 15. What emerges from the facts enumerated hereinabove, is that the prosecutrix was about 20 years of age at the time of the incident. She was married with one Puneet Kumar. She has obtained the divorce from her husband on 17.11.2012. The prosecutrix had started living at Shimla. The accused also used to visit her at Shimla. She has accompanied the accused voluntarily to Chandigarh and Delhi. The distance between her house and shop of the accused was about 8 minutes walk. The prosecutrix main thrust is that the accused had assured her to marry her. She did not know about the marital status of the accused. She came to know about the marital status of the accused only on 15.5.2012. The prosecutrix has admitted in her cross-examination that her mother had lodged report against the mother and wife of the accused on 28.4.2012. The distance between the shop of the father of the prosecutrix and the accused was only 100 meters. The prosecutrix has threatened the family of the accused to rope them in other cases and to this effect, rapat No. 22 dated 2.11.2011 Ext. PW-2/E, was brought on record. The father of the accused has also lodged report against the prosecutrix on 17.4.2012 under Sections 294, 509, 504 and 506 IPC. She was arrested and remanded to police custody for two days. The prosecutrix knew about the marital status of the accused. It is thus, established from the record that the relations between the family of the prosecutrix and the accused were strained and cross-FIRs were also registered against each other. She was arrested and remanded to police custody for two days. The prosecutrix knew about the marital status of the accused. It is thus, established from the record that the relations between the family of the prosecutrix and the accused were strained and cross-FIRs were also registered against each other. The prosecutrix is a young lady and was aware of all the consequences. It is not believable that she did not know about the marital status of the accused as per her own statement and the other material brought on record. She also stayed with accused at Shimla, Chandigarh and Delhi voluntarily. The prosecutrix had sex with the appellant with her consent and hence there was no offence committed by the appellant under Section 376 IPC because sex with women above the age of 16 years of age with consent is not rape. 16. It has come in the statement of PW-1 Dr. Suman Bist that the prosecutrix was found to be habitual of intercourse and there was evidence of previous delivery also. The prosecution has failed to prove the case against the accused under Sections 376 and 417 IPC. The prosecutrix despite knowing the marital status of the accused had developed physical relations with him. She was throughout a consenting party. Thus, the prosecution has miserably failed to prove the case against the accused. 17. Accordingly, there is no merit in this appeal and the same is dismissed. There is no occasion for this Court to interfere with the well reasoned judgment of the learned trial Court dated 20.3.2013.