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2016 DIGILAW 307 (HP)

State of Himachal Pradesh v. Suresh Kumar

2016-03-21

P.S.RANA, RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. The instant appeal has been instituted by the State against judgment dated 30.6.2008 rendered by learned Sessions Judge, Chamba Division, Chamba, Himachal Pradesh in Sessions Trial No. 63/2007, whereby respondent-accused, (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence under Section 376 IPC, has been acquitted. 2. Case of the prosecution, in a nutshell, is that on 5.6.2007, prosecutrix alongwith her parents had gone to the Police Station Chuwari and lodged a report disclosing therein that she studied upto 4th standard and now she was doing household work. She is the youngest in her family. She had gone to the jungle. Accused Suresh Kumar chased her and asked her to get marry with him and when she refused, accused committed rape upon her. She raised alarm but her cries were not heard by anybody as none was nearby. Accused threatened her that in case she disclosed the matter she would be defamed in the village and nobody would marry her. She did not disclose the fact to anyone. Whenever she used to go to jungle, accused used to come and commit sexual intercourse with the assurance to marry her. 4-5 months ago, when she was alone in the house, accused came again and committed rape upon her. She approached accused and requested to marry her, however, accused kept on delaying the matter on one pretext or the other. FIR under Section 376 IPC was registered on 6.6.2007. Investigation was completed and Challan was put up in the Court after completing all codal formalities. 3. Prosecution has examined as many as 13 witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. His case was that of denial simpliciter. Accused was acquitted. Hence, this appeal. 4. Mr. J.S. Guleria, Assistant Advocate General, has vehemently argued that the prosecution has proved its case against the accused. 5. Mr. Naresh Kaul, Advocate, has supported the judgment of acquittal dated 30.6.2008. 6. We have heard the learned counsel for the parties and also gone through the record carefully. 7. PW-1 Chuni Lal is the father of the prosecutrix. He testified that he had two sons and two daughters. Prosecutrix was the youngest. On 4.6.2007, Kamla Devi told him that accused had committed forcible sexual intercourse with the prosecutrix when she used to graze her cattle. 7. PW-1 Chuni Lal is the father of the prosecutrix. He testified that he had two sons and two daughters. Prosecutrix was the youngest. On 4.6.2007, Kamla Devi told him that accused had committed forcible sexual intercourse with the prosecutrix when she used to graze her cattle. He promised to marry her. Thereafter, he contacted the father of the accused and told him about the incident. However, accused was made to flee from the house and did not meet them. His daughter became pregnant. Accused was committing forcible sexual intercourse with his daughter for 5-6 months prior to 4.6.2007. The date of birth of the prosecutrix was 1.3.1992. He enquired from his daughter about the incident and she told him that accused used to commit sexual intercourse forcibly under the pretext of marrying her. However, thereafter, accused fled away from the house. He asked his daughter as to why she did not narrate the incident to anyone and she told that accused assured to marry her and that is why she did not narrate the incident to him. Daughter also told him that accused had committed forcible sexual intercourse. Matter was reported to the police on 5.6.2007. FIR Ext. PW-1/A was registered. In his cross-examination, he deposed that his wife told him name of accused was Chamaru Ram. Chamaru Ram had committed rape on his daughter. He did not report the matter to the Pradhan of the Panchayat. Volunteered that he had disclosed the matter to Netar Singh, Pradhan of the Gram Panchayat, who told him to report the matter to the police. 8. PW-2 Dr. N.K. Surya has conducted post mortem. According to him, prosecutrix was pregnant. In his cross-examination, he admitted that X-ray in this case was not conducted. 9. PW-7 Chamel Singh deposed that on 15.6.2007, MHC Hakam Singh handed over to him vaginal swab of prosecutrix, one parcel said to be containing underwear, one envelope said to be containing pubic hair, two letters written by Dr. Harmit Kaur and Dr. Samir. He took them to FSL Junga vice RC No. 40/2007 and deposited them on 16.6.2007. 10. PW-8 Hem Raj has proved certificate Ext. PW-8/A. 11. PW-9 Harbans Lal deposed that date of birth of prosecutrix was 1.3.1992 as per original record of the family. He proved Ext. PW-9/A. 12. PW-11 Hans Raj deposed that investigation was handed over to him on 5.6.2007. 10. PW-8 Hem Raj has proved certificate Ext. PW-8/A. 11. PW-9 Harbans Lal deposed that date of birth of prosecutrix was 1.3.1992 as per original record of the family. He proved Ext. PW-9/A. 12. PW-11 Hans Raj deposed that investigation was handed over to him on 5.6.2007. He recorded the statement of Kamla Devi and Chuni Lal under Section 161 CrPC. He got the prosecutrix medically examined and obtained MLC. He prepared site plan Ext. PW-11/A. Accused was arrested on 6.6.2007. Accused Suresh Kumar was also known as Chamaru Ram. He was got medically examined. Accused gave demarcation of the place where he used to rape the prosecutrix. Ext PW-11/C, site plan was prepared by him at the instance of accused. He obtained birth certificate of prosecutrix from CMO and also the Parivar register. In his cross-examination, he admitted that he has not recorded in the investigation that Suresh Kumar was also known as Chamaru Ram. He admitted that no evidence of rape was found in the house of the prosecutrix. He also admitted that no evidence of rape was found in the jungle also. He has not got the DNA test of prosecutrix conducted. Prosecutrix had died. Prosecutrix had not given any specific date of rape. Statement of Kamla Devi was recorded on 5.6.2007. 13. PW-12 Kamla Devi is the mother of the prosecutrix. She deposed that her daughter told her in the month of ‘Jeth’ that when she had gone to Jungle for grazing cattle, accused had committed forcible sexual intercourse with her. She cried but no one heard her cries. There was no inhabitation. She asked her daughter why she has not told the incident earlier. She told her that due to shame she could not narrate the incident to her and that the accused had advanced threats to her also. Accused had assured to marry her daughter. Accused again committed rape with her daughter when she was alone in the house. She narrated this incident when she was 4-5 months pregnant. She informed her husband. She was cross-examined. She did not disclose the incident to Panchayat. She contacted father of accused but he flatly refused to compromise the matter. She disclosed the incident to her husband. They demanded Rs.10,000/- from accused. She also admitted specifically that prosecutrix refused to depose against the accused. When they insisted, she reported the matter to the police. She was cross-examined. She did not disclose the incident to Panchayat. She contacted father of accused but he flatly refused to compromise the matter. She disclosed the incident to her husband. They demanded Rs.10,000/- from accused. She also admitted specifically that prosecutrix refused to depose against the accused. When they insisted, she reported the matter to the police. They were not on speaking terms with the accused. Statement of prosecutrix in this case could not be recorded as she died during trial. 14. PW-13 Dr. Harmit Kaur has issued MLC Ext. PW- 13/B. She admitted that the ossification test in medical science is the best test to determine the age of a person. In her cross-examination, she admitted that she has not conducted or advised DNA test. She admitted that without DNA test, doctors can not opine about paternity of the foetus. 15. Statement of PW-12 Kamla Devi does not inspire confidence. According to her, her daughter has told her about the incident only when she was 4 months’ pregnant. In case prosecutrix was pregnant, she should have told the incident to her mother. PW-12 Kamla Devi being the mother of prosecutrix was bound to notice the pregnancy. According to PW-13, Dr. Harmit Kaur, she was found pregnant for a period of six months i.e. 24 weeks. Pregnancy could not go unnoticed by the mother of the prosecutrix. PW-12 Kamla Devi demanded Rs.10,000/- from accused for compromise. It has come in the statement of PW-12 Kamla Devi as noticed above, that the prosecutrix has refused to depose against accused and when they insisted, she reported the matter to the police. PW-1 Chuni Lal has initially deposed that the matter was not brought to the notice of Pradhan and then volunteered that it was brought to the notice of Pradhan. But, Pradhan, despite a material witness, has not been examined. PW-11 ASI Hans Raj admitted in his cross-examination that there was no evidence of rape in the house with the prosecutrix and there was no evidence of rape in the jungle also. No DNA test of the prosecutrix was conducted. Even PW-13 Dr. Harmit Kaur has neither conducted nor advised DNA test to determine the paternity of the foetus. 16. According to the prosecutrix, when she was raped for the first time, in the jungle, she cried however, nobody heard her cries. No DNA test of the prosecutrix was conducted. Even PW-13 Dr. Harmit Kaur has neither conducted nor advised DNA test to determine the paternity of the foetus. 16. According to the prosecutrix, when she was raped for the first time, in the jungle, she cried however, nobody heard her cries. Had she raised alarm in the jungle, she was bound to disclose the incident to her mother immediately. A girl aged 15 and ½ years, is mature. According to PW-1 Chuni Lal, Chamaru Ram had committed rape upon his daughter. PW-11 Hans Raj in his cross-examination has admitted that he has not recorded in the investigation that Suresh Kumar was also known as Chamaru Ram. PW-1 Chuni Lal, in his cross-examination has deposed that when his daughter narrated the incident to mother, his daughter Salochna was also present but she has also not been examined. 17. Accordingly, the prosecution has failed to prove its case against the accused. There is no occasion for us to interfere with the well reasoned judgment of the learned trial Court. 18. In view of the discussion and analysis made hereinabove, there is no merit in the present appeal and the same is dismissed, so also the pending applications, if any.