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2015 DIGILAW 1276 (HP)

State of Himachal Pradesh v. Praveen Kumar

2015-09-10

RAJIV SHARMA, SURESHWAR THAKUR

body2015
Judgment : Per Sureshwar Thakur, Judge 1. The instant appeal has arisen against the judgment rendered by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, H.P., in Sessions Trial No. 34 of 2005 whereby he acquitted the accused for his having allegedly committed offences under Sections 376, 342, 506 and 366 of the Indian Penal Code. The State of Himachal Pradesh is aggrieved by the findings of acquittal recorded by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, hence, has instituted the instant appeal before this Court for setting aside the judgment of acquittal rendered by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, H.P. 2. The brief facts of the case are that on 25.5.2005 the prosecutrix lodged an F.I.R. at Police Station Rampur with the allegations that the prosecutrix was inhabitant of Village Doi, Tehsil Rampur. On 24.5.2005 at about 8.30 a.m. the prosecutrix was going to Government Senior Secondary School, Delath to take admission in plus two. On way near Chunja at about 9.45 a.m, the accused Praveen Kumar came from behind and caught hold of the prosecutrix from her arm. The accused took the prosecutrix to a field and committed rape on the prosecutrix. The prosecutrix tried to cry and the accused gagged her mouth and threatened to kill her. The accused made an allurement to marry her and did not leave her throughout the day. On attempts of the prosecutrix to escape, the accused threatened to kill her. The accused committed rape with the prosecutrix thrice on the aforesaid day. The place was isolated and none happened to witness the occurrence. When it got dark, the accused forcibly took the prosecutrix to his house. The prosecutrix managed to escape from the house and narrated the incident to her family members. On the basis of the aforesaid information, the prosecutrix was got medically examined from Dr. Bharti Azad at Khaneri hospital and the doctor per medico legal certificate opined that the prosecutrix was sexually active and per report of the Chemical Examiner, ejaculation within vagina has not occurred in the past seventy two hours. The police also arrested the accused and he was also got medically examined and the doctor per medico legal certificate opinined that the accused was capable of performing sexual intercourse. The police also arrested the accused and he was also got medically examined and the doctor per medico legal certificate opinined that the accused was capable of performing sexual intercourse. Ext.PW-4/A extract of Pariwar register of the family of Shri Ramdayal recording the date of birth of the prosecutrix as 18.2.1987 was obtained from the Secretary, Gram Panchayat, Duttnagar. The spot was got identified per memo Ext.PW-7/B pursuant to disclosure statement of accused in the presence of S/Sh. Bishan Dass HHC and Sh. Hukkam Chand. As per Chemical Examiner report Ext.PW-9/C there was blood and semen on the underwear of the prosecutrix and semen was also present on the salwar of the prosecutrix and underwear of the accused. There was no blood or semen on the shirt, bra, public hair of the prosecutrix and pant, banyan, pubic hair and coroner swab of the accused. Blood was present on the vaginal slide and vaginal swab of the prosecutrix was not sufficient for examination and semen was not present. 3. After completion of investigation, challan under Section 173 of the Cr.P.C. was prepared and filed in the committal Court. Since the case was exclusively triable by the Court of Sessions, the committal Court committed it for trial to the Court of learned Sessions Judge, Kinnaur at Rampur Bushahr. The accused was charged by the learned trial Court for his having committed offences punishable under Sections 376, 342, 506 and 366 IPC to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined as many as 11 witnesses. On closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded in which he pleaded innocence. On closure of proceedings under Section 313 Cr.P.C., the accused was given an opportunity to adduce evidence, in, defence, and he chose not to adduce any evidence in defence. 5. On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused/respondent. 6. The State of H.P. is aggrieved by the judgment of acquittal recorded by the learned trial Court. The learned Additional Advocate General has concertedly and vigorously contended that the findings of acquittal recorded by the learned trial Court are not based on a proper appreciation of the evidence on record, rather, they are sequelled by gross-mis-appreciation of the material on record. The learned Additional Advocate General has concertedly and vigorously contended that the findings of acquittal recorded by the learned trial Court are not based on a proper appreciation of the evidence on record, rather, they are sequelled by gross-mis-appreciation of the material on record. Hence, he contends that the findings of acquittal be reversed by this Court in the exercise of its appellate jurisdiction and be replaced by findings of conviction. 7. On the other hand, the learned counsel appearing for the respondent-accused has with considerable force and vigour contended that the findings of acquittal recorded by the Court below are based on a mature and balanced appreciation of evidence on record and do not necessitate interference, rather merit vindication. 8. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 9. The findings of acquittal recorded by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, H.P. in its judgment impugned before this Court would warrant interference by this Court only in the event of theirs being a palpable disclosure by the evidence on record of it having misappraised the germane and apposite evidence besides having omitted to appraise relevant evidence. The testimony of the prosecutrix if on its wholesome reading omits to unearth the existence of any inter se contradictions viz-a-viz her deposition comprised in her examination in chief with the one comprised in her cross-examination would render it to be both trustworthy and inspiring besides credible. Naturally then it would be apt to hence place implicit reliance thereon besides constraining this Court to reverse the findings of acquittal recorded by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr in his impugned judgment. A close and incisive reading of the testimony of the prosecutrix comprised in her examination-in-chief underscores the factum of the accused having on 24.5.2005, while the prosecutrix was proceeding to take admission in Government Senior Secondary School, Delath met her enroute at place Chunja. The accused has been deposed by the prosecutrix to have caught hold of her by her arms and then taken her to the nearby fields, where he perpetrated forcible sexual intercourse on her person. Though the prosecutrix has deposed that she raised an outcry yet since the place of occurrence was secluded, hence, nobody responded to her outcries. The accused has been deposed by the prosecutrix to have caught hold of her by her arms and then taken her to the nearby fields, where he perpetrated forcible sexual intercourse on her person. Though the prosecutrix has deposed that she raised an outcry yet since the place of occurrence was secluded, hence, nobody responded to her outcries. She had proceeded to depose that the accused kept her in his company throughout the ill-fated day and though she tried to escape yet the accused continued to hold her. The prosecutrix has deposed that on the ill-fated day the accused thrice perpetrated forcible sexual intercourse upon her person. She in her examination in chief has unearthed the fact that in the evening the accused took her to his house wherefrom she escaped and came to her house where she disclosed the occurrence to her mother. On a disclosure of the incident by the prosecutrix to her mother, the latter telephonically apprised her father at Shimla, who instructed them to lodge an FIR with the police, whereupon the prosecutrix along with her mother proceeded to Police Station, Rampur and lodged FIR Ext.P.A. Subsequently, the medical examination of the prosecutrix was conducted at MGMSC, Khaneri, Rampur. 10. The deposition of the prosecutrix in her examination-in-chief has not to be read in isolation from her deposition comprised in her cross examination. The answers meted by the prosecutrix to the suggestions put to her during her cross-examination by the learned defence counsel would underscore, whether the deposition of the prosecutrix qua the incident comprised in her examination-in-chief necessitates its being fastened credibility. A studied and close analysis of the deposition of the prosecutrix comprised in her cross examination unearths the factum of the house of the accused being located at a distance of 3 K.M. from the site of occurrence. The prosecutrix in her cross examination admits the factum of two paths from the site of occurrence leading to the house of the accused, inasmuch as the house of the accused being accessible from the site of occurrence from a path passing through the village whereas it being also accessible through an alternative path passing through the jungle. The prosecutrix in her cross examination admits the factum of two paths from the site of occurrence leading to the house of the accused, inasmuch as the house of the accused being accessible from the site of occurrence from a path passing through the village whereas it being also accessible through an alternative path passing through the jungle. She in her cross examination also admits the factum of 3 to 4 villages falling enroute the path they traversed from the site of occurrence to the house of the accused in the evening after hers having spent the entire day in the company of the accused at Chunja. However, before proceeding to, on the strength of the omission on the part of the prosecutrix to unravel besides divulge the occurrence to the inhabitants of 3 to 4 villages falling enroute the path traversed by both from the site of occurrence to the house of the accused whereto she had in the company of the latter proceeded to in the evening, form an invincible inference of hers having acquiesced to as also hers having consensually succumbed to the sexual overtures of the accused, it is imperative to make an advertence to the apposite evidence on record portraying the factum of the prosecutrix having arrived at the age of consent, hence, having acquired the capacity to render consent to the sexual overtures of the accused. The evidence unearthing the factum of the prosecutrix having arrived at the age of consent is constituted in Ext.PW.4/A, wherein entry No.170 portrays the factum of the prosecutrix being born on 18.2.1987. With the factum as portrayed by Ext.PW.4/A of the prosecutrix being born on 18.2.1987, hence, capacitated her to at the stage of the ill-fated occurrence especially when she then was aged above 18 years, to accord consent to the accused to his sexual overtures or to the perpetration of sexual intercourses upon her by him. With the factum as portrayed by Ext.PW.4/A of the prosecutrix being born on 18.2.1987, hence, capacitated her to at the stage of the ill-fated occurrence especially when she then was aged above 18 years, to accord consent to the accused to his sexual overtures or to the perpetration of sexual intercourses upon her by him. With a formidable conclusion ensuing from Ext.PW.4/A of the prosecutrix having arrived at the age of consent, renders the omission on the part of the prosecutrix to not communicate the incident to the inhabitants of 3 or 4 villages, which fell enroute the path which both traversed from the site of occurrence till the house of the accused whereto she in the company of the latter proceeded to in the evening, to loudly bespeak the open and candid factum of hers having consented to the sexual overtures of the accused besides of the sexual intercourses perpetrated on her person by the accused being wholly consensual. Reinforced vigour to the inference aforesaid of the prosecutrix having consented to the perpetration of sexual intercourse/intercourses upon her person by the accused is lent by the factum of hers having throughout the day without any remonstrance stayed in the company of the accused. The non-emanation in Ext.PW.5/A, the MLC prepared by the doctor concerned after his having subjected the accused to medical examination, of any physical injuries existing on his body in personification of the prosecutrix having resisted besides repulsed the sexual advances or sexual overtures of the accused, constrains an apt inference that the prosecutrix consensually succumbed to the sexual overtures of the accused or to the perpetration of the sexual intercourses, if any, on her person by him. In addition, the manifestation in Ext.PW.6/A, the MLC issued by the doctor concerned, who subjected the prosecutrix to medical examination of their being no sign of injury or struggle on the person of the prosecutrix for sustaining the version enunciated by the prosecutrix of hers having been subjected to forcible sexual intercourse by the accused renders as such the propagation by the prosecutrix of hers having been subjected to forcible sexual intercourse by the accused to not acquire any creditworthiness contrarily its credence gets belittled. 11. 11. The embarking upon by this Court of a close analysis of the deposition of the prosecutrix comprised in her examination in chief and in her cross-examination for marshalling therefrom an inference of the prosecutrix having or having not consented to the sexual overtures of the accused given the indubitable fact of hers, as underlined by the aforesaid discussion having acquired the age of consent, fosters this Court for the reasons assigned hereinabove, to conclude that the ill fated occurrence, if any, was not under exertion of any compulsion or duress upon her by the accused besides was also not forcible rather the sexual intercourse/intercourses, if any, perpetrated upon her person by the accused were wholly consensual. It appears both from photograph Ext.D-1 wherein the prosecutrix is seen in the company of the accused at Rampur about 2 to 3 years prior to the occurrence besides from the factum of the houses of the prosecutrix and the accused being in close proximity to each other, of there being a previous intimacy inter se the prosecutrix and the accused. Given their previous intimacy, it appears that the ill-fated occurrence was not engendered as concerted to be propounded by the prosecutrix by the accused having exerted duress besides compulsion upon her to keep her in his company through out the day and with impressions thereof firmly etched in her mind, his having taken her through a village path from the place of occurrence to his house in the evening enroute whereof 2-3 villages fell, especially when the attention of whose inhabitants remained unattracted by the prosecutrix omitting to raise any outburst or outcry. Moreover, hence for reiteration the lack of raising of outbursts or outcries by the prosecutrix besides omission on the part of the prosecutrix to communicate the occurrence to the inhabitants of the villages falling enroute the place of occurrence to the house of the accused whereto she in the company of the accused proceeded to in the evening of the ill fated day constrains this Court to conclude that sexual intercourse, if any, perpetrated upon her person by the accused was not forcible. 12. 12. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court below has appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned trial Court does not suffer from any perversity or absurdity of mis-appreciation and non appreciation of evidence on record, rather it has aptly appreciated the material available on record. 13. In view of the above, we find no merit in this appeal which is accordingly dismissed. In sequel, the impugned judgment is affirmed and maintained. Record of the learned trial Court be sent back forthwith.