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2016 DIGILAW 437 (HP)

State of H. P. v. Arun Kumar alias Ashu

2016-04-07

RAJIV SHARMA, SURESHWAR THAKUR

body2016
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment dated 14.9.2009, rendered by the learned Addl. Sessions Judge, Una, H.P., in Sessions Case No.19 of 2008, whereby the respondents-accused (hereinafter referred to as the accused), who were charged with and tried for offences punishable under Sections 363, 376 and 120-B IPC have been acquitted. 2. The case of the prosecution, in a nut shell, is that on 11.5.2008, at about 12:00 (noon), while the prosecutrix was returning back from Satsang alongwith the co-accused Neelam, at Sohari, the accused were following them. At a place known as Kunde-Wala-Chowe, the girl named Neelam tied the hands of the prosecutrix. Accused Arun Kumar carried the prosecutrix towards Dehri. Thereafter, the accused forcibly untied the string of her salwar and committed sexual intercourse with her, after gagging her mouth with a piece of cloth. The paternal aunt (Chachi) of the prosecutrix, namely, Neelam (PW-2) came towards the Kunde-Wala-Chowe in search of the prosecutrix. The accused fled away from the spot. On the basis of the statement of PW-2 Neelam, FIR Ext. PW-1/A was registered at PS Bangana on 11.5.2008. The prosecutrix was medically examined by PW-6 Dr. Pushpawali Raizada. She issued MLC Ext. PW-6/B. The case was investigated and challan was put up before the Court after completing all the codal formalities. 3. The prosecution, in order to prove its case, has examined as many as 15 witnesses. The accused were also examined under Section 313 Cr.P.C. They pleaded innocence. The learned trial Court acquitted the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. M.A. Khan, Addl. Advocate General has vehemently argued that the prosecution has proved its case against the accused persons. On the other hand, M/S Bhupinder Singh and Arvind Sharma, Advocates for the respective accused have supported the judgment of the learned trial Court dated 14.9.2009. 5. I have heard the learned counsel for both the sides and have also gone through the judgment and records of the case carefully. 6. PW-1 (name withheld) is the prosecutrix. According to her, on 11.5.2008, she along with Neelam were coming back from Satsang at village Sohari at about 12:00 noon. Two boys were following them. When they reached near the Kunde-Wala-Chowe, accused Neelam caught hold of her hands and tied her hands behind her back. One boy stayed back with Neelam and the other carried her towards Dehri. According to her, on 11.5.2008, she along with Neelam were coming back from Satsang at village Sohari at about 12:00 noon. Two boys were following them. When they reached near the Kunde-Wala-Chowe, accused Neelam caught hold of her hands and tied her hands behind her back. One boy stayed back with Neelam and the other carried her towards Dehri. He forcibly untied the string of her salwar. He kept both the hands on her breasts and committed sexual intercourse with her. Her paternal aunt (Chachi) Neelam came on the spot. On hearing her voice, the accused fled away from the spot. She was crying and her aunt took her back to home. When her Uncle came back at about 5:00 PM, he was narrated the incident. Thereafter, the matter was reported to the police. The police recorded her statement, upon which FIR Ext. PW-1/A was registered at PS Bangana. She was got medically examined on 11.5.2008. In her cross-examination, she admitted that the distance between the road and Kunde-Wala-Chowe was about 10-12 meters. The distance between Kunde-Wala-Chowe to the house is also about 10-12 meters. She admitted that if one has to go from the road to Chowe, he has to cross by the side of her house. 7. PW-2 Neelam Devi testified that she had gone for looking the prosecutrix towards Kunde-Wala-Chowe. The prosecutrix was crying. She took her and asked her as to why she was crying. She narrated the incident to her. The accused ran away from the spot. 8. PW-3 Madan Lal deposed that when he came back to his house at about 5:00 PM, the prosecutrix was crying. She narrated the entire incident to him. He along with his wife took the prosecutrix to the Police Station and FIR was lodged. 9. PW-4 Pawan Thakur deposed that the police has taken into possession the birth certificate of the prosecutrix on 12.5.2008 from the Panchayat Secretary of Gram Panchayat, Sohari. The accused Arun Kumar handed over the undergarments to the police vide memo Ext. PW-4/B. 10. PW-5 Des Raj deposed that accused Arun Kumar made disclosure statement to the effect that he has concealed his under garments behind a trunk and he could get the same recovered. In this behalf, memo Ext. PW-5/A was prepared. 11. PW-6 Dr. (Mrs.) Pushpavali Raizada is the material witness. PW-4/B. 10. PW-5 Des Raj deposed that accused Arun Kumar made disclosure statement to the effect that he has concealed his under garments behind a trunk and he could get the same recovered. In this behalf, memo Ext. PW-5/A was prepared. 11. PW-6 Dr. (Mrs.) Pushpavali Raizada is the material witness. According to her, no injury marks were seen on the whole body. Hymen was ruptured and old tags were present. Vagina admitted one finger. She issued MLC vide Ext. PW-6/B. In her cross-examination, she admitted that as per the alleged history recorded in the MLC, it was shown that two boys had dragged the prosecutrix from the road to a Nalla while she was coming from Satsang. Keeping in view the entire examination and the old tags found in hymen, it could not be said that there had been recent sexual intercourse. According to her, ‘recent’ signifies one day or more. 12. PW-7 Subhash Chand prepared the birth certificate of the prosecutrix vide Ext. PW-7/A. In his cross-examination, he admitted that he has not brought the original record. He also admitted that he was not posted at Sohari nor the entry was made during his tenure. He remained as Panchayat Secretary for two years at Gram Panchayat Sohari before he was transferred to Chowli on 23.8.2008. He also admitted that entry in the register is made on the basis of the information furnished by the parents of the child. He was re-examined and he admitted in his cross-examination that he has brought the original record on the basis of which certificate Ext. PW-7/A was issued. In his further cross-examination, he admitted that he could not say as to who had got the entry of the birth of the prosecutrix recorded. He also admitted that there was some over-writing over one of the words. He also admitted that the register was not paginated. He also admitted that the signatures of the District Panchayat Officer were not present on the register. 13. PW-8 Dr. Ravinder Mohan has examined the accused. He noticed that the secondary sexual character of the boy was fully developed within normal limits. He issued MLC Ext. PW-8/B. 14. PW-13 Kaur Chand deposed that on 11.5.2008, the prosecutrix accompanied by her Aunt Neelam Kumari, grandmother Kalan Devi, Uncle Madan Lal came to the Police Station. The statement of the prosecutrix was recorded. He noticed that the secondary sexual character of the boy was fully developed within normal limits. He issued MLC Ext. PW-8/B. 14. PW-13 Kaur Chand deposed that on 11.5.2008, the prosecutrix accompanied by her Aunt Neelam Kumari, grandmother Kalan Devi, Uncle Madan Lal came to the Police Station. The statement of the prosecutrix was recorded. She was sent to RH Una for medical examination. He inspected the spot and prepared spot map Ext. PW-13/B. The clothes of the prosecutrix were taken into possession. The underwear of the accused was also seized vide seizure memo Ext. PW-4/B, on the basis of the disclosure statement made vide Ext. PW-5/A. 15. The prosecutrix was re-examined on 28.4.2009. According to her, she was medically examined at RH Una on 11.5.2008. The doctor had taken her shirt, salwar and dupatta into possession. 16. According to the prosecutrix (PW-1), on 11.5.2008, when she along with Neelam was coming back from Satsang at village Sohari at about 12:00 noon, two boys followed them. When they reached near the Kunde-Wala-Chowe, accused Neelam caught hold of her from hands and tied her hands behind her back. One boy stayed back with Neelam and the other carried her towards Dehri. He forcibly untied the string of her salwar. He kept both the hands on her breasts and committed sexual intercourse with her. In the meantime, her paternal aunt (Chachi) Neelam came on the spot. On hearing her voice, the accused fled away from the spot. PW-6 Dr. (Mrs.) Pushpavali Raizada has medically examined the prosecutrix. According to her, no injury marks were seen on the whole body. Hymen was ruptured and old tags were present. Vagina admitted one finger. She issued MLC vide Ext. PW-6/B. In her cross-examination, PW-6 Dr. (Mrs.) Pushpavali Raizada has admitted that as per the alleged history recorded in the MLC, it was shown that two boys had dragged the prosecutrix from the road to a Nalla when she was coming back to house from Satsang. However, the fact of the matter is that no injuries have been noticed on the whole body of the prosecutrix. The place where the alleged incident took place was uneven. In case, the prosecutrix was dragged to a distance of more than 400 meters, she was bound to receive injuries on her body. 17. However, the fact of the matter is that no injuries have been noticed on the whole body of the prosecutrix. The place where the alleged incident took place was uneven. In case, the prosecutrix was dragged to a distance of more than 400 meters, she was bound to receive injuries on her body. 17. It is also not believable that the friend of the prosecutrix would have tied her hands and the prosecutrix would not have resisted the same. It has also come in the statement of PW-6 Dr. (Mrs.) Pushpavali Raizada that keeping in view the entire examination and the old tags found in hymen, it could not be said that there had been recent sexual intercourse. PW-6 Dr. (Mrs.) Pushpavali Raizada has explained the word “recent” which signifies one day or more. 18. In FIR Ext. PW-1/A, the prosecutrix has specifically stated that her mouth was gagged and thus, she could not raise the alarm. However, while appearing in the Court as PW-1, the prosecutrix has not stated so that her mouth was gagged by the accused. It is also not believable that accused physically carried the prosecutrix to a distance of 400 meters. The place, where the hands of the prosecutrix were tied by Neelam Kumari is about 400 meters away from the scene of occurrence as per the spot map Ext. PW-13/B. PW-3 Madan Lal has admitted in his cross-examination that there are two groups in the village. He and his family belong to one group and the family of accused belongs to other group for litigation. 19. PW-7 Subhash Chand has issued birth certificate of the prosecutrix vide Ext. PW-7/A. In his cross-examination, he has admitted that the original register was not paginated. He also admitted that the signatures of the District Panchayat Officer were not present on the register. He also admitted that the entry in the register is made on the basis of the information furnished by the parents of the child. He also admitted that he was not working at Sohari nor the entry in the birth register was made during his tenure. 20. Thus, the prosecution has failed to prove the case against the accused. This Court has no occasion to interfere with the well reasoned judgment of the learned trial Court dated 14.9.2009. 21. Accordingly, there is no merit in this appeal and the same is dismissed.