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Himachal Pradesh High Court · body

2016 DIGILAW 463 (HP)

State of H. P. v. Pradeep Kumar

2016-04-11

RAJIV SHARMA, SURESHWAR THAKUR

body2016
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment dated 27.2.2010, rendered by the learned Sessions Judge, Kinnaur, Sessions Division at Rampur Bushahr, H.P., in Sessions Trial No. 21 of 2007, whereby the respondent-accused (hereinafter referred to as the accused), who was charged with and tried for offences punishable under Sections 376, 366 and 417 IPC has been acquitted. 2. The case of the prosecution, in a nut shell, is that on 14.9.2006, complainant Tej Ram, father of the prosecutrix, informed the matter in the Police Station disclosing therein that his daughter (prosecutrix) aged 20 years did not return home who had been learning tailoring work at Village Lagoti from one Vijay Kumar. She used to go daily from her house. On 9.9.2006, she did not return to her house. He thought that she might have gone to the house of his sister but on 11.9.2006 when he visited Vijay Kumar, Tailor Master, he was informed that the prosecutrix did not join her tailoring classes since 10.9.2006 and another girl who was also learning tailoring in the same shop disclosed that the prosecutrix was seen with Pradeep resident of Kua on 9.9.2006. The complainant claimed that his daughter had been taken away by Pradeep Kumar by alluring her to get married, against her consent. FIR was registered. The prosecutrix was recovered from the house of Gian Chand at village Chalathar. She was medically examined and case property was taken into possession. 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 12 witnesses. The accused was also examined under Section 313 Cr.P.C. He denied the prosecution allegations and pleaded innocence. The learned trial Court acquitted the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. Ramesh Thakur, Dy. Advocate General has vehemently argued that the prosecution has proved its case against the accused. 5. I have heard the learned Dy. Advocate General for the State and also gone through the judgment and records of the case carefully. 6. PW-1 Gian Chand deposed that he was permanent resident of village Chalathar. At about 1:00 PM about two years and six months back, the prosecutrix had visited his house. He interrogated her. 5. I have heard the learned Dy. Advocate General for the State and also gone through the judgment and records of the case carefully. 6. PW-1 Gian Chand deposed that he was permanent resident of village Chalathar. At about 1:00 PM about two years and six months back, the prosecutrix had visited his house. He interrogated her. She informed that the accused Pradeep Kumar had enticed her away with a view to marry her and had committed sexual intercourse with her. He informed the father of the prosecutrix, namely, Tej Ram. On the next day, i.e. 14.9.2006, the police visited his house along with Tej Ram and took the prosecutrix vide memo Ext. PW-1/A. In his cross-examination, he deposed that the prosecutrix had informed him that the accused had taken her and dropped her near her house and the accused left. The prosecutrix has stayed in his house on 13.9.2006 and she was taken by her father on the next day. 7. PW-2 (name withheld) is the prosecutrix. According to her, she was learning tailoring and stitching work in the shop of Vijay Kumar in Village Lagoti. On 9.9.2006, she left her house for the shop. When she was passing through the area of Harlu Nallah at about 9:00 AM, the accused appeared from behind the bushes and caught hold of her. The area of Harlu Nallah is away from the village abadi and no one was there at that time. The accused forcibly took her to a place behind the bushes and had forcibly broken the string of her salwar. She cried for help but no one was there to take care of her. The accused also tried to gag her mouth. Thereafter, the accused laid her on the ground and forcibly committed sexual intercourse with her. He released her with threatening not to disclose the matter to anyone. She then visited the tailoring shop of Vijay Kumar. After working for the day in the shop, she was on her way from Village Lagoti to her house. In the evening at about 4:00 PM, the accused again met her in the same area and again forcibly committed sexual intercourse with her without her consent and against her will. Her salwar got torn when the accused had committed sexual intercourse with her for the first time. In the evening at about 4:00 PM, the accused again met her in the same area and again forcibly committed sexual intercourse with her without her consent and against her will. Her salwar got torn when the accused had committed sexual intercourse with her for the first time. After the second act of rape the accused took her to village Tharwin to the house of Bimla Devi. The accused informed Bimla Devi that they had been away to Kullu for appearing in examination. The accused further informed that he was from Village Didi Dhar and she was informed of village Ropa. Smt Bimla Devi offered them shelter in a separate room. The accused committed sexual intercourse with her for the third time at the house of Smt. Bimla Devi on the night intervening 9.9.2006 and 10.9.2006. The accused then took her to his house in village Mool on 10.9.2006. The mother of the accused was present in the house. The accused left for his another house in village Kua on 11.9.2006. The accused and his wife were putting up in village Kua. The accused thereafter did not return to his house in village Mool. The mother of the accused left for village Kua on 12.9.2006. She was asked to stay in village Mool. The mother of the accused returned to her house on 12.9.2006. She was told that quarrel has taken place between the accused and his wife. On 13.9.2006, the wife of the accused visited village Mool and started quarrelling with her. She was beaten up badly and turned her out of the house. She had to run for life and took shelter in the house of one Gian Chand (PW-1). She was interrogated by Gian Chand. Thereafter her father and police reached there on 14.9.2006. She was handed over to the police vide memo Ext. PW-1/A. The police took into possession her clothes and sent her for medical examination to CHC Ani on 15.9.2006. In her cross-examination, she deposed that she informed the police that the accused tried to gag her mouth. (Confronted with statement under Section 161 Cr.P.C. wherein it is not so recorded). She informed the police that accused was from Didi Dhar and she was stated to be from Village Ropa. (Confronted with statement under Section 161 Cr.P.C. wherein it is not so recorded). She had told the police that the accused had threatened her. (Confronted with statement under Section 161 Cr.P.C. wherein it is not so recorded). She informed the police that accused was from Didi Dhar and she was stated to be from Village Ropa. (Confronted with statement under Section 161 Cr.P.C. wherein it is not so recorded). She had told the police that the accused had threatened her. (Confronted with statement under Section 161 Cr.P.C. wherein it is not so recorded). She also admitted that FIR Ext. PW-2/C was recorded after more than a month. Village Lagoti is at a distance of 2-3 hours’ walk from village Tharwin. She also admitted that the wife of the accused had dragged her out of the house and her mother-in-law on 13.9.2006. She has not told anything about this incident to Smt. Bimla Devi after departure from her house. 8. PW-3 Tej Ram is the father of the prosecutrix. According to him, on 9.9.2006 the prosecutrix left for the tailoring shop of Vijay Kumar. She did not return back. On 11.9.2006, he visited the shop of Vijay Kumar who confirmed that the prosecutrix was not attending to her work w.e.f. 10.9.2006. He was informed by apprentice girl at the shop of Vijay Kumar that the accused was noticed with his daughter on 9.9.2006. On 13.9.2006 Gian Chand informed that his daughter was at his house. He reported the matter to the police vide FIR Ext. PW-3/A. She accompanied the police to the house of PW-1 Gian Chand. The prosecutrix was recovered from the house of PW-1 Gian Chand where she told that the accused had forcibly taken her to bushes in the area of Harlu Nallah. He committed sexual intercourse with her. In his cross-examination, he admitted that he lodged FIR Ext. PW-3/A after the prosecutrix was recovered. 9. PW-4 Bimla Devi testified that the accused and the prosecutrix visited her house. They wanted to stay for the night. The accused informed her that they had been on way from Kullu to their house and wanted shelter for the night. She provided food to them. The prosecutrix had kept mum when she was interrogated by her. The accused and the prosecutrix were provided bed by her in a separate room. They left unannounced on 10.9.2006 in the early hours. In her cross-examination, she admitted that when separate room was provided, the prosecutrix did not object to the same. She provided food to them. The prosecutrix had kept mum when she was interrogated by her. The accused and the prosecutrix were provided bed by her in a separate room. They left unannounced on 10.9.2006 in the early hours. In her cross-examination, she admitted that when separate room was provided, the prosecutrix did not object to the same. She did not refuse to stay with the accused. 10. PW-5 Dhian Singh deposed that the police has taken piece of cloth Ext. P-2 of the bed sheet vide memo Ext. PW-2/B and sealed in a cloth parcel with seal. He told that his wife informed him that the accused and the prosecutrix stayed in their house on the night intervening 9.9.2006 and 10.9.2006. 11. PW-6 Dr. Rina Sharma, has medically examined the prosecutrix. She issued MLC Ext. PW-6/A. According to her, the possibility of sexual intercourse with the prosecutrix could not be ruled out at the time of occurrence. In her cross-examination, she admitted that on the basis of rupture of hymen, she could not say when exactly the sexual intercourse had taken place for the first time. 12. PW-9 Vijay Kumar testified that he was running tailoring shop in the name and style of Verma Tailor at Lagoti for several years. The prosecutrix was learning tailoring and stitching work. On 9.9.2006, the prosecutrix visited his shop for learning, however, on the next day, she did not attend the shop. She was also absent on 11.9.2006. Thereafter, the father of the prosecutrix visited his shop and informed that the accused had enticed the prosecutrix away. 13. PW-11 Insp. Daya Sagar deposed that on 14.9.2006, the father of the victim Tej Ram reported the matter to the police and FIR Ext. PW- 3/A was registered. The victim was recovered from the house of Gian Chand at village Gharathal vide memo Ext. PW-1/A. She was medically examined and her clothes were taken into possession. In his cross-examination, he admitted that what emerged during the investigation was that before registration of the FIR, the victim had stayed in the house of the accused for 4 days. He also admitted that the family members of the accused were residing in the same house. The prosecutrix and the accused also stayed in the house of Bimla Devi on 9.9.2006. 14. He also admitted that the family members of the accused were residing in the same house. The prosecutrix and the accused also stayed in the house of Bimla Devi on 9.9.2006. 14. The case of the prosecution, precisely, is that the prosecutrix, when she was going to Village Lagoti on 9.9.2006, was overpowered by the accused, who raped her in Harlu Nallah. Thereafter, she went to the shop of Vijay Kumar. When she was coming back around 4:00 PM on the same day, the accused again met her at the same place and he again raped her. Thereafter, the accused took her to village Tharwin to the house of Bimla Devi. She was offered separate room by Bimla Devi. The accused again committed sexual intercourse with her for the third time in the house of Bimla Devi. Thereafter, the accused took her to his house in village Mool on 10.9.2006. 15. The age of the prosecutrix at the time of incident was 20 years. In case, she had been raped forcibly and against her will by the accused, she should have narrated the incident to PW-9 Vijay Kumar (tailor master), in whose shop she was learning tailoring and stitching work. He could have informed her parents. The prosecutrix had travelled with the accused from Village Lagoti to village Tharwin where she stayed in the house of Bimla Devi. She should have disclosed the incident to Bimla Devi. She, instead of disclosing the incident to Bimla Devi agreed to live in separate room. She must have met number of persons on the way from Village Lagoti to village Tharwin, to whom she could disclose the incident. She instead of coming back from the house of Bimla Devi accompanied the accused to his house at village Mool on 10.9.2006. She stayed in the house of the accused till 13.9.2006. It is only when the wife of the accused came back to village Mool, the prosecutrix was forced to leave the house of the accused. PW-2, the prosecutrix has categorically stated in her statement that she was forcibly dragged out of the house of the accused by the wife of the accused. Thereafter, she came and stayed in the house of Gian Chand from where she was recovered. The prosecutrix, being major, has accompanied the accused voluntarily from Village Lagoti to village Tharwin and from village Tharwin to village Mool. 16. Thereafter, she came and stayed in the house of Gian Chand from where she was recovered. The prosecutrix, being major, has accompanied the accused voluntarily from Village Lagoti to village Tharwin and from village Tharwin to village Mool. 16. The prosecutrix has gone missing on 9.9.2006, however, surprisingly enough, the father of the prosecutrix visited the shop of Vijay Kumar only on 11.9.2006. PW-3 Tej Ram, father of the prosecutrix, in his statement has admitted that the FIR Ext. PW-3/A was only registered when the prosecutrix was recovered. PW-11 Insp. Daya Sagar has admitted that the prosecutrix has remained in the house of accused for 4 days. The family members of the accused were also present in the house. In case, it was the case of forcible sexual intercourse, the prosecutrix would have told the family members of the accused, including his mother, who were present in the house at village Mool. 17. 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 27.2.2010. 18. Accordingly, there is no merit in this appeal and the same is dismissed.