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2016 DIGILAW 229 (HP)

State of Himachal Pradesh v. Vishnu Pal @ Papla

2016-03-11

P.S.RANA, RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. The instant appeal has been instituted against Judgment dated 26.4.2012 passed by learned Additional Sessions Judge, Sirmaur District at Nahan, HP in Sessions Trial No. 28-N/7 of 2007, whereby respondents-accused (hereinafter referred to as 'accused' for convenience sake), who were charged with and tried for offences under Sections 363, 366 and 376 IPC, have been acquitted. 2. Case of the prosecution, in a nutshell, is that on 9.7.2007, Johari Ram, resident of Adarsh Colony, Rajban lodged a report in the police post Rajban, Police Station, Paonta Sahib that on the said date, he had accompanied Smt. Roshni Devi w/o Joginder Singh to Vikas Nagar for treatment. His grand daughters PW-1 and PW-17 (names withheld) aged about 18 years and 16 years, respectively, were in the house and when he came back, he found that his grand daughters were missing. They were recovered from the house of Vishnu Pal. According to him, prosecutrix PW- 17 had been raped by accused No.1. PW-17 was subjected to medical examination. Investigation was completed and Challan was put up in the Court after completing all the codal formalities. 3. Prosecution has examined as many as 19 witnesses to prove its case against the accused. Accused were also examined under Section 313 CrPC. According to them, they were falsely implicated. Trial Court acquitted the accused. Hence, this appeal. 4. Mr. Kush Sharma, Deputy Advocate General, has vehemently argued that the prosecution has proved its case against the accused. 5. Mr. Deepak Kaushal, Advocate, has supported the judgment of acquittal dated 26.4.2012. 6. We have heard the learned counsel for the parties and also gone through the record carefully. 7. PW-1 (name withheld) deposed that in the year 2007, she and her sister were residing with their maternal grand father at Rajban. Both the accused used to visit Rajban. On 9.7.2007, at about 2 pm, both the accused came on motor cycle to Rajban. Accused Rishipal @ Ajay promised to marry her and accused Vishnu Pal @ Papla promised to marry PW-17. Accused asked them to accompany them. On his promise, they accompanied the accused. Accused Vishnu Pal took them on motor cycle to his village in Haryana. Accused Rishipal @ Ajay came by bus from Village Tagain. Accused Ajay kept her in the fields during night. Accused asked them to accompany them. On his promise, they accompanied the accused. Accused Vishnu Pal took them on motor cycle to his village in Haryana. Accused Rishipal @ Ajay came by bus from Village Tagain. Accused Ajay kept her in the fields during night. Accused Vishnu took PW-17 to another place and thereafter accused Ajay told her that he will not marry her and left the place. Accused Vishnu went alongwith her sister to another place. Accused Vishnu left her in the house. In her cross-examination, she deposed that Vishnu used to come to Rajban prior to 9.7.2007. She had been talking with accused Rishipal @ Ajay on telephone. She did not know whether he was married or not. However, they came to know that that accused Vishnu was married and had children also. On 9.7.2007, her grand father had gone to Vikas Nagar. Accused Rishipal @ Ajay has not committed any sexual intercourse with her neither did he misbehave with her in any manner. Her marriage was solemnised on 11.3.2008. 8. PW-2 Choti deposed that PW-1 and PW-17, used to work in Mahila Samiti Club. They had gone to the club where they used to serve water to the club members. They did not come back to their house when maternal grand father came back from Vikas Nagar. He told that PW-1 and P-17 did not come back to his house. She knew the accused. They used to visit Rajban. She had seen Vishnu talking to PW-17. Prosecutrix had told her that he wanted to marry the accused. 9. PW-3 Johari Ram deposed that PW-1 and PW-17 are his maternal grand daughters. On 9.7.2007, he had gone to Vikas Nagar. In the evening when he came back to home, both were missing. He searched for them and reported the matter to the police. On the next day, he went to Mulana in search of PW-1 and PW-17. PW-1 was found in the house of accused Vishnu. They came back to Rajban on the next day. PW-17 was also recovered from the house of Vishnu. 10. PW-4 Shalender deposed that he has not seen any girl in his fields. He was declared hostile and cross-examined by the learned Public Prosecutor. He denied the suggestion that accused Rishipal @ Ajay wanted to have sexual intercourse with PW-1 and on denial, accused left her alone in the fields. PW-17 was also recovered from the house of Vishnu. 10. PW-4 Shalender deposed that he has not seen any girl in his fields. He was declared hostile and cross-examined by the learned Public Prosecutor. He denied the suggestion that accused Rishipal @ Ajay wanted to have sexual intercourse with PW-1 and on denial, accused left her alone in the fields. He denied that he took her to the house of the accused Vishnu. 11. PW-5 Balbir Singh deposed that the date of birth of PW-17 was 2.3.1989 and date of birth of PW-1 was 1.1.1991. 12. PW-6 Ranjeet Singh deposed that accused Vishnu was married and had four issues. 13. PW-7 Dr. Daljeet Kaur has medically examined PW-17. According to her opinion, she was used to sexual intercourse. However, there was no evidence of recent sexual intercourse. She issued MLC Ext. PW-7/B. she also examined PW-1 on 11.7.2007. According to P/V examination and local examination, there was no evidence which suggested that sexual intercourse has taken place with her. She issued MLC Ext. PW-7/C. 14. PW-12 Mahinder Singh being Panchayat Assistant has issued certificate Ext. PW-12/A qua PW-1 and PW-17. 15. PW-13 Vijay Kumar deposed that he was posted as TGT in GMS Muglawala Kartarpur. He issued date of birth certificate of PW-1 and PW-17, daughters of Chaman Lal. 16. PW-17 (name withheld), deposed that the accused Vishnu asked them to have friendship with him. He told her that he was unmarried and would marry her. Thereafter, Vishnu used to talk on telephone and stated that in case she does not marry him, he will consume poison. On 9.7.2007, at 3 pm, accused Vishnu and Ajay came to their village on motor cycle. Both the accused promised to solemnise marriage with them and took them on motor cycle to village Tagain. Accused Ajay came by bus. Accused Vishnu took her to the fields at village Tagain and stayed there during night. Ajay reached the village and promised to marry the younger sister. During night, Ajay left her sister by saying that he will not marry her. Brother of Vishnu, Golu came there and took PW-1 to the house of Vishnu Pal. Vishnu forcibly and without her consent committed rape upon her in the fields. Vishnu kept her in the fields for two nights and committed sexual intercourse with her without her consent. During night, Ajay left her sister by saying that he will not marry her. Brother of Vishnu, Golu came there and took PW-1 to the house of Vishnu Pal. Vishnu forcibly and without her consent committed rape upon her in the fields. Vishnu kept her in the fields for two nights and committed sexual intercourse with her without her consent. On the third day, Vishnu took her to his house where she found that the wife and three children were in the house. In her cross-examination, she deposed that the family members including Golu, brother of Vishnu, were sleeping outside the house and she alongwith Vishnu slept and stayed in the house. She has not complained to the members of the family of the accused about the incident. There were many houses in the village of Vishnu but she did not complain to any villagers about this. She was already married at the time of recording her statement. Name of her husband is Suresh 17. PW-19 ASI Ram Pal Yadav was the IO. He recovered PW-1 and PW-17. He also took into possession the motor cycle. He obtained the birth certificates of PW-1 and PW-17. 18. According to the statement of PW-1, accused Rishipal @ Ajay had no sexual intercourse, nor did he misbehave with her in any manner. She was medically examined by PW-7 Dr. Daljeet Kaur and she issued MLC Ext. PW-7/C. According to her, there was no evidence to suggest that sexual intercourse has taken place with her. It has come in her statement that she was on talking terms with Rishipal @ Ajay on the telephone. Both the sisters knew that accused Vishnu was married and had children also. PW-17 deposed that accused forcibly raped her in the fields and thereafter took her to his house. She found that her wife and three children were present in the house. Version of PW-17 is not believable that she was raped in the house in the presence of the members of the family of the accused. There were houses in the village. She has not made complaint to any one. Her version that she slept with the accused Vishnu inside the room and other family members were sleeping outside the house, is also not believable. There were houses in the village. She has not made complaint to any one. Her version that she slept with the accused Vishnu inside the room and other family members were sleeping outside the house, is also not believable. In case, she has been raped by the accused No.1, Vishnu, she could have told this incident to the wife of the accused No.1. According to PW-7, Dr. Daljeet Kaur, prosecutrix was used to sexual intercourse however, there was no evidence of recent intercourse. She was examined on 12.7.2007. Age of PW-1 is more than 16 years and age of PW-17 was more than 18 years. PW-1 was not raped even according to her own version. Act of PW-17 was consensual. She has gone voluntarily on motor cycle to the village of accused No.1. Since both the sisters knew that the accused Vishnu was married, there was no occasion for him to hold out a promise to marry PW-17. PW-17, in her cross-examination, admitted that she has not shown the fields and the room, where accused had sexual intercourse with her nor the police inquired about this aspect. 19. The prosecution has failed to prove its case against the accused. Accordingly, there is no occasion for us to interfere in the well reasoned judgment of acquittal passed by the learned trial Court. 20. The appeal fails and is accordingly dismissed. Pending applications, if any, are also disposed of. Bail bonds of both the accused persons are discharged.