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Himachal Pradesh High Court · body

2016 DIGILAW 1487 (HP)

State of Himachal Pradesh v. Dile Ram

2016-07-26

RAJIV SHARMA, SURESHWAR THAKUR

body2016
JUDGMENT : Rajiv Sharma, J. The present appeal has been filed by the State against Judgment dated 5.7.2011 rendered by the learned Additional Sessions Judge, Mandi, Himachal Pradesh (Campt at Karsog) in Sessions Trial No. 8 of 2007, whereby respondent-accused (hereinafter referred to as 'accused' for convenience sake) who was charged with and tried for offence under Sections 376 and 506 IPC, has been acquitted. 2. Case of the prosecution, in a nutshell, is that prosecutrix was residing with her uncle. She left the school after passing class 6th. Her father died about four years prior to the incident. Her mother was ill. Prosecutrix, her sister and her younger brother resided in the house of their uncle and one brother resided with her mother. Prosecutrix had gone to jungle six months prior to January 2006, for grazing cattle of her uncle. Accused also used to visit the jungle for grazing the cattle. Accused came to the prosecutrix and started teasing her. When prosecutrix protested, accused dragged the prosecutrix below a big stone and forcibly raped her. She tried to rescue herself but the accused gagged her mouth. Accused also threatened to kill her in case she told the incident to any person. Accused had raped her two-four times thereafter also. Prosecutrix became pregnant. Her uncle made inquiry from her on which she revealed the incident to her uncle. When inquiry was made by the uncle of the prosecutrix from the accused, he replied that whatever was to be done by him, he had done and uncle of the prosecutrix could do whatever he liked. Matter was reported to the police on which FIR Ext.PW-6/A was registered. An application Ext. PW-11/A was moved for conducting medical examination of the prosecutrix. PW-12 Dr. Anita Thakur, medically examined the prosecutrix. She found that the prosecutrix was pregnant for more than eight months. Prosecutrix delivered a female child on 13.1.2006 at 7.30 AM. ASI Shri Ram (PW-11) went to the spot and prepared the site plan Ext. PW-11/B. An application was filed for taking blood samples of prosecutrix, accused and baby. PW-4 Dr. Satish Kumar took the blood samples of accused, prosecutrix and the baby. He filed biological specimen authentication card for DNA testing Ext. PW- 4/B to Ext. PW-4/D. Blood was taken in test tubes which were sealed with seal impression ‘M’. Seal impression ‘M’ was separately taken on a piece of cloth. PW-4 Dr. Satish Kumar took the blood samples of accused, prosecutrix and the baby. He filed biological specimen authentication card for DNA testing Ext. PW- 4/B to Ext. PW-4/D. Blood was taken in test tubes which were sealed with seal impression ‘M’. Seal impression ‘M’ was separately taken on a piece of cloth. Accused was also medically examined by Dr. Satish Kumar. He issued MLC Ext. PW-4/A. Blood samples were deposited at CFSL Calcutta on 30.4.2006. Report is Ext. PA. Genotype profile of baby matched with the genotype profile of accused and genotype profile of prosecutrix. Investigation was completed. Challan was put in the Court after completing all the codal formalities. 3. Prosecution has examined as many as twelve witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He pleaded innocence. Trial Court acquitted the accused as noticed above. Hence, this appeal. 4. Mr. Neeraj K. Sharma, Deputy Advocate General and Mr. Ramakant Sharma, learned Senior Advocate, have vehemently argued that the prosecution has proved its case against the accused person. 5. Mr. G.R. Palsra, Advocate, has supported the judgment dated 5.7.2011. 6. We have heard the learned counsel for the parties and also gone through the judgment and record carefully. 7. HHC Gathal Ram (PW-1) deposed that on 30.1.2006, MHC Mahant Ram had handed over three sealed parcels to him with direction to deposit the same at Central Forensic Science Laboratory Calcutta vide RC No. 10/06. He deposited the aforesaid articles at CFSL Calcutta and obtained receipt from the laboratory. He denied the suggestion that the samples were tampered at any stage. 8. Hukam Chand (PW-2) testified that he was posted as Senior Lab Technician at Civil Hospital Karsog with effect from 2003 to 2007. On 27.4.2006, Dr. Satish, Medical Officer Civil Hospital Karsog directed him to take blood sample of Asha Kumari, Dila Ram and the child. He took blood samples in separate bottles. Each bottle was sealed in parcel by affixing seal impression of ‘M’. He handed over these sealed sample parcels containing blood, to the police in the presence of Dr. Satish. Blood samples were taken for the purpose of DNA test. In his cross-examination, he admitted that blood samples were collected in the bottles in the laboratory of hospital in the presence of uncle of prosecutrix, Class IV official of the hospital and police official. Satish. Blood samples were taken for the purpose of DNA test. In his cross-examination, he admitted that blood samples were collected in the bottles in the laboratory of hospital in the presence of uncle of prosecutrix, Class IV official of the hospital and police official. Samples were sealed in the room of the medical officer. 9. HC Mahant Ram (PW-3) deposed that on 27.4.2006, ASI Shri Ram had deposited three sealed parcels containing blood samples with him. He deposited the same in the Malkhana in intact position. Each sealed parcel was bearing seal impression ‘M’. On 30.4.2006, he had sent the sealed parcels to CFSL Calcutta alongwith sample of seal ‘T’ and other concerned documents through HHC Gathal Ram vide RC No. 10/2006. The articles were deposited by HHC Gathal Ram in intact position. 10. Dr. Satish Kumar (PW-4) testified that he conducted medical examination of the accused. He was 65 years of age on 6.1.2006. he issued MLC Ext. PW-4/A. Blood samples of accused, prosecutrix and the infant were also taken for DNA analysis. He filled biological specimen authentication card for DNA testing which are Ext. DW-4/B and Ext. DW-4/D. These samples were collected by Hukam Chand, Senior Lab Technician under his supervision. Test tube of Dila Ram was marked ‘A’. test tube of the prosecutrix was marked ‘B’ and test tube of the infant daughter was marked ‘C’. Test tubes were sealed with seal ‘M’. Seal impression was separately taken on the card. 11. Rameshwar (PW-6) deposed that he was having four brothers and four sisters. His sister Putli Devi and brother Bir Singh had expired. Bir Singh died on 2.3.2002. He was having five children. His three daughters and one son were residing with him. Mental condition of mother of prosecutrix was not proper. She was residing in Darayung. His mother was aged 90-92 years. Prosecutrix and he used to serve her. Prosecutrix also used to do household work and she used to take the cattle to the jungle for grazing. He noticed that the prosecutrix was pregnant on 4.1.2006. He made inquiry from her but she did not reveal anything to him initially. Subsequently, she told him that accused had raped her at Kuffri Nallah, where she had gone to graze the cattle. Accused had threatened her that if she revealed the incident to any person, she would be killed. He noticed that the prosecutrix was pregnant on 4.1.2006. He made inquiry from her but she did not reveal anything to him initially. Subsequently, she told him that accused had raped her at Kuffri Nallah, where she had gone to graze the cattle. Accused had threatened her that if she revealed the incident to any person, she would be killed. He called Lal Chand and Bhola Dutt and narrated incident to them. All of them went to the house of accused. They inquired from the accused. Accused initially said that he had not done anything. Subsequently, prosecutrix was taken to the house of accused. When girl told that accused had raped her, accused replied that he had done whatever he had to do and they could do whatever they liked to do. Thereafter, they went to the police station with the prosecutrix. Report was lodged in the police station. 12. Lal Chand (PW-7) deposed that the house of Rameshwar was located 4 kms from his house. Children of brother of Rameshwar were residing with Rameshwar. Brother of Rameshwar had expired 5-6 years ago. Wife of Bir Singh was poor and remained under tension. She resided separately from her children. Age of mother of Rameshwar was 90-92 years. Rameshwar took care of his mother. Rameshwar came on 4.1.2006 and told him that accused had raped his daughter. Thereafter, they went to the house of Bhola Dutt. They went thereafter to the house of accused. They inquired from accused. He denied at first. When villagers and girl were called, he stated that he had done whatever he had to do and they could do whatever they liked. Thereafter, they went to the Police Station and FIR was registered. 13. Bhola Dutt (PW-8) testified that they went to the house of accused and inquired from him. Thereafter, they took the girl to the house of accused and when inquiry was made in the presence of the girl, he said that whatever was to be done by him, he had done and they could do whatever they liked to do. 14. Joginder (PW-9) deposed that he remained posted as Secretary, Gram Panchayat, Mehandi with effect from 2003-06. He issued certified Ext. PW-9/A. It was true as per record maintained in the Gram Panchayat. 15. Prosecutrix (PW-10) deposed that her father had died 8 years ago. She was residing with her uncle Rameshwar. 14. Joginder (PW-9) deposed that he remained posted as Secretary, Gram Panchayat, Mehandi with effect from 2003-06. He issued certified Ext. PW-9/A. It was true as per record maintained in the Gram Panchayat. 15. Prosecutrix (PW-10) deposed that her father had died 8 years ago. She was residing with her uncle Rameshwar. Her mother was residing in a different village. Her younger brother Anant Ram was residing with her. Her mother was mentally ill. She had gone to Kuffri Nallah for grazing the cattle at about 9 AM, 7-8 months prior to 4.1.2006. Accused came to the spot for grazing cattle. He caught her. She told him not to touch her. He caught her arms and dragged her near the stone. He gagged her mouth, opened the string of her Salwar and raped her. He threatened her that if she revealed the incident to anyone, he would kill her. Her uncle made inquiry from her on 4.1.2006. She told the incident to him. Her uncle, Bhola Dutt, Lal Chand, villagers and relatives of accused took her to the house of accused. She told the accused that he had rape her. He told that whatever was to be done by him, was done and they could do whatever they liked to do. She alongwith her uncle went to Police Station, Karsog on 5.1.2006 and reported the matter to the police. FIR was registered. A female child was born on 13.1.2006. Child was daughter of the accused. Blood samples of prosecutrix and her child were taken. Blood sample of the accused was also taken. In her cross-examination, she admitted that other villagers also grazed their cattle in the jungle. Volunteered that no one was present in the jungle on that day. She and accused used to go to the jungle for grazing the cattle. She denied the suggestion that Raju used to come to jungle for grazing cattle. She denied the suggestion that the accused has not dragged her and not raped her. Accused has also raped her 2-4 times thereafter. Volunteered that accused had threatened to kill her. She denied the suggestion that she had asked the accused for sexual favours. 16. ASI Shri Ram (PW-11) deposed that FIR Ext. PW-6/A was registered on 5.1.2006 and prosecutrix was got medically examined. He conducted the investigation. Blood samples of the prosecutrix and child were taken in the presence of Dr. Volunteered that accused had threatened to kill her. She denied the suggestion that she had asked the accused for sexual favours. 16. ASI Shri Ram (PW-11) deposed that FIR Ext. PW-6/A was registered on 5.1.2006 and prosecutrix was got medically examined. He conducted the investigation. Blood samples of the prosecutrix and child were taken in the presence of Dr. Satish Kumar and laboratory technician Hukam Chand. Forms Ext. PW-4/B to Ext. PW-4/D were signed by him. 17. Dr. Anita Thakur (PW-12) examined the prosecutrix. She was carrying pregnancy of 32-34 weeks at the time of examination. Patient delivered a female child on 13.1.2006 at 7.30 AM. She issued MLC Ext. PW-12/A. 18. Prosecutrix PW-10 has categorically deposed that she had gone to Kuffri Nallah for grazing cattle. Accused was also present. He dragged her and raped her. He threatened her. He thereafter also raped her 2-4 times. She became pregnant. Pregnancy was noticed by her uncle. Thereafter, PW-6 Rameshwar with PW-7 Lal Chand and PW-8 Bhola Dutt went to the house of the accused. They made inquiry from the accused. Accused denied the incident. Thereafter, prosecutrix was also taken to the house of accused. He told them that whatever was to done by him, was done and they could do whatever they liked to do. Prosecutrix also deposed that she had gone to the house of accused with her uncle and accused had again reiterated that whatever was to be done, he has done and they could do whatever they liked to do. PW-9 Joginder Singh has proved certificate Ext. PW-9/A. Date of birth of the prosecutrix as per Ext. PW-9/A was 1.5.1988. She has delivered the female child on 13.1.2006. Blood samples of the accused, prosecutrix and child were taken as per the statements PW-2 Hukam Chand and PW-4 Dr. Satish Kumar. These were sent to CFSL Calcutta. Report of CFSL is Ext. PA. According to the DNA report, Ext. PA, accused was the biological father of the female child of the prosecutrix. Prosecutrix has not narrated the incident out of shame when inquiries were made from her. She has disclosed the manner in which she was raped by accused resulting into her pregnancy. Delay in lodging FIR has been explained by the prosecution. Prosecutrix was below 17 years of age. She was threatened by accused not to divulge the incident to anyone. Prosecutrix has not narrated the incident out of shame when inquiries were made from her. She has disclosed the manner in which she was raped by accused resulting into her pregnancy. Delay in lodging FIR has been explained by the prosecution. Prosecutrix was below 17 years of age. She was threatened by accused not to divulge the incident to anyone. Learned trial Court has erred in law in observing that prosecutrix used to ask the accused for sexual favour from accused. Accused was more than 60 years of age. There was no occasion for a young girl to seek sexual favour from an old man. Accused, as per testimony of PW- 10 (prosecutrix) has repeatedly raped her. Learned Court below could not ignore Ext. PA which conclusively proved that the accused was biological father of the child. She was not supposed to narrate the incident to every co-villager. It has also come on record that the prosecutrix has lost her father and was living with PW-6 Rameshwar. Her mother was also living separately. Her mother was mentally unstable. She could only confide with her mother about the incident. Statement of the prosecutrix is natural, trustworthy and inspires confidence. Her statement could not be discarded by the learned trial Court, which was duly corroborated with medical evidence. 19. Thus, the prosecution has duly proved its case against the accused under charged sections. 20. Accordingly, the appeal is allowed. Judgment dated 5.7.2011 rendered by the learned Additional Sessions Judge, Mandi, Himachal Pradesh (Camp at Karsog) in Sessions Trial No. 8 of 2007 is set aside. Accused is convicted for offence under Sections 376 and 506 IPC. He be produced to be heard on the quantum of sentence on 1.8.2016. 21. Registry is directed to prepare the production warrant of the accused and send the same to the quarter concerned.