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2016 DIGILAW 493 (HP)

State of H. P. v. Raj Kumar

2016-04-18

RAJIV SHARMA, VIVEK SINGH THAKUR

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JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment dated 23.12.2009, rendered by the learned Addl. Sessions Judge (FTC), Kangra at Dharamshala, H.P., in RBT Sessions Case No. 7-B/VII/09, whereby the respondent-accused (hereinafter referred to as the accused), who was charged with and tried for offences punishable under Sections 376 and 506 IPC has been acquitted. 2. The case of the prosecution, in a nut shell, is that the prosecutrix lodged the FIR in Police Station Baijnath on 28.4.2008 on the allegations that she was resident of village Kahan, PO Dagoh, Tehsil Jaisinghpur, Distt. Kangra, H.P. She had appeared in 10th standard examination. Her father was in private job at Delhi whereas she alongwith her mother and two younger brothers used to reside in the village. In September, 2007, when she was alone in her house, the accused came to her house and without her consent forcibly committed rape with her. The accused threatened her not to reveal this occurrence to anybody otherwise he would kill her. Thereafter, again in December, 2007, accused committed sexual intercourse with her and out of fear she did not reveal it to anybody. On 26.4.2008, the accused took the prosecutrix to the fields after deceiving her and again committed rape with her. The occurrence was narrated by the prosecutrix to her mother and consequently the matter was reported to the police. The FIR was registered. The police took into possession the clothes of the prosecutrix and underwear of the accused. The prosecutrix was taken to the Medical Officer for medical examination but she refused. Her statement was recorded under Section 164 Cr.P.C. 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 was also examined under Section 313 Cr.P.C. He 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, Mr. Rajesh Mandhotra, Advocate for the accused has supported the judgment of the learned trial Court dated 23.12.2009. 5. We have heard learned counsel for both the sides and have also gone through the judgment and records of the case carefully. 6. PW-1 Dr. On the other hand, Mr. Rajesh Mandhotra, Advocate for the accused has supported the judgment of the learned trial Court dated 23.12.2009. 5. We have heard learned counsel for both the sides and have also gone through the judgment and records of the case carefully. 6. PW-1 Dr. Priti Sood testified that on 28.4.2008, the police moved an application Ext. PW-1/A for examining the prosecutrix. She issued MLC Ext. PW-1/B. The victim had refused to get pelvic medical examination. There was an alleged history of rape in September, 2007 and on 26.4.2008. Again on 4.6.2008, the prosecutrix was examined by her and Dr. Mrs. Sushma Sood on the application of police Ext. PW-1/C. On that day, the prosecutrix had given in writing not to get herself medically examined. She issued MLC Ext. PW-1/D. 7. PW-2 is the prosecutrix. She testified that accused had come to her in the month of September, 2007. She was alone in her house. Her mother had gone to market and her brothers had gone out to graze cattle. The accused committed sexual intercourse with her forcibly. Accused had threatened her not to reveal this incident to her mother otherwise he would kill her. In December, 2007 again accused committed sexual intercourse with her. On 26.4.2008, accused again came to her and gave her a letter and took her to jungle where he forcibly committed sexual intercourse with her. She identified letter mark-K. On 26.4.2008 she narrated to her mother the episode of sexual intercourse. Next day her father came from Delhi and her mother informed him. He went to the Police Station and informed the incident to the police. FIR Ext. PW-2/A was registered. In her cross-examination, she admitted that many houses are situated around her house. Her father used to visit home after 2/3 months. She knew accused Raj Kumar for the last 4/5 years. She admitted that on 26.4.2008, she had gone out on foot. Accused had taken her out at a distance of 1 ½ km. It was evening time. 8. PW-3 Jaswant Singh testified that on 26.4.2008, his wife telephonically informed him qua the incident. When he came to his house, her daughter handed over Mark-K which was given to her by the accused. 9. PW-8 Dr. Sudesh Kaul has examined the accused and issued MLC Ext. PW-8/B. 10. It was evening time. 8. PW-3 Jaswant Singh testified that on 26.4.2008, his wife telephonically informed him qua the incident. When he came to his house, her daughter handed over Mark-K which was given to her by the accused. 9. PW-8 Dr. Sudesh Kaul has examined the accused and issued MLC Ext. PW-8/B. 10. PW-12 ASI Rajinder Paul deposed that he was handed over the investigation of the case. On 29.4.2008, he visited the spot and prepared spot map Ext. PW-12/A. On 28.4.2008, the prosecutrix was sent for medical examination. No lady doctor was available in Baijnath hospital, so she was taken to Palampur hospital where she refused to get her medically examined. On 8.5.2008, father of the prosecutrix came to the Police Station and handed over the letter allegedly written by the accused. In this regard memo Ext. PW-6/A was prepared. On 1.7.2008, SHO Mangat Ram moved an application before the JMIC, Baijnath for obtaining specimen handwriting of the accused. He obtained the specimen handwriting of the accused vide Ext. PW-12/D to PW-12/P. On 29.5.2008 the statement of the prosecutrix was recorded under Section 164 Cr.P.C. vide Ext. PW-12/Q before the JMIC, Baijnath. The prosecutrix was taken to Baijnath hospital for medical examination but she again refused for medical examination. 11. The prosecutrix was major at the time of the incident. The version of the prosecution cannot be believed that accused had raped her in the month of September, December, 2007 and on 26.4.2008. In case she had been raped in the month of September/December, 2008, she should have definitely narrated the incident to her mother. The prosecution case is that on 26.4.2008, the prosecutrix was deceived by the accused and raped against her will. It has come in the statement of the prosecutrix that she knew the accused for the last 4/5 years. According to the prosecutrix, the accused had handed over letter to her. The letter was sent for comparison to question document examiner to compare it with specimen handwriting. The expert opinion is Ext. PC. It is proved that Mark-K, letter is in the hand of accused Raj Kumar. The contents of the letter demonstrate that the accused and the prosecutrix were closely intimated to each other. 12. The statement of the prosecutrix was also recorded under section 164 Cr.P.C. before the learned JMIC, Baijnath vide Ext. The expert opinion is Ext. PC. It is proved that Mark-K, letter is in the hand of accused Raj Kumar. The contents of the letter demonstrate that the accused and the prosecutrix were closely intimated to each other. 12. The statement of the prosecutrix was also recorded under section 164 Cr.P.C. before the learned JMIC, Baijnath vide Ext. PW-12/Q. According to her statement, in the month of September, 2007, accused had raped her 1-2 times and in the month of December, 2007, he had raped her 3-4 times. However, in the FIR, the prosecutrix stated that the accused had raped her on one occasion each in the month of September and December, 2007. 13. The prosecutrix was taken for medical examination before PW- 1 Dr. Preeti Sood. The application was moved by the police vide Ext. PW- 1/A. The prosecutrix was not willing for medical examination. She was again taken for medical examination. The prosecutrix again was not willing for the same rather on the second occasion, she has given in writing before the lady doctor that she was not willing for medical check-up. PW-1 Dr. Preeti Sood has testified that the prosecutrix revealed that she was subjected to rape but there is no such written statement of the prosecutrix on MLC Ext. PW-1/D. If the prosecutrix could inform the doctor about the alleged rape, there is no reason why she has not subjected herself to medical examination. 14. On 26.4.2008, the prosecutrix was missing. She was traced in the cowshed at 11:30 PM. This fact has been admitted by PW-3 Jaswant Singh, father of the prosecutrix. PW-12 ASI Rajinder has also admitted this fact. PW-15 Manoj Kumar who is cousin of the prosecutrix deposed that on 26.4.2008, he received telephone that the prosecutrix had run away. Consequently, he along with Sanjay, Purshotam and Des Raj went in search of the prosecutrix and she was found in the cowshed. She was brought back and handed over to her mother. He has admitted that when he went in search of the prosecutrix, accused Raj Kumar was also with him. This establishes that the accused could not be culprit as he had joined the persons who had gone in search of the prosecutrix. According to the prosecutrix, she was taken after deceiving her at 3:30 PM. The accused threatened not to move out of the cowshed. This establishes that the accused could not be culprit as he had joined the persons who had gone in search of the prosecutrix. According to the prosecutrix, she was taken after deceiving her at 3:30 PM. The accused threatened not to move out of the cowshed. However, the fact of the matter is that she was recovered at 11:30 PM. If the prosecutrix has remained alone from 3:30 PM to 11:30 PM, she could always escape from the cowshed. 15. 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 23.12.2009. 16. Accordingly, there is no merit in this appeal and the same is dismissed.