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Himachal Pradesh High Court · body

2016 DIGILAW 558 (HP)

State of Himachal Pradesh v. Ravinder Kumar

2016-04-25

RAJIV SHARMA, VIVEK SINGH THAKUR

body2016
JUDGMENT : Rajiv Sharma, J. The State has come in appeal against Judgment dated 12.8.2008 rendered by the learned Additional Sessions Judge, Fast Track Court, Una, District Una, Himachal Pradesh in Sessions Case No. 15/07, whereby respondent-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence under Sections 363,366 and 376 IPC, has been acquitted. 2. Case of the prosecution, in a nutshell, is that the complainant is a house wife. She was residing in her house in village Saloh Beri, alongwith her husband and a daughter. Her husband is an Ex-serviceman and is a heart patient. Her daughter (prosecutrix) was studying in 9th standard in Maharishi Vidya Mandir School, Daulatpur Chowk. Accused was running a tailoring shop near the house of the complainant and was residing in the house of his aunt Bishambari Devi. On 6.7.2007, the complainant and her above mentioned family members went to sleep at about 10.30 PM. At around 12.30 AM, (midnight) Sh. Hari Singh, brother of the father-in-law of the complainant asked her to give torch so that he may take care of the cattle. At that time, prosecutrix was sleeping in the house with the complainant. But in the morning on 7.7.2007, at about 5.30 AM, when she woke up, she saw that the prosecutrix was not there. Thereafter, complainant and her family members searched for her the whole day but without success. Accused was also found absent from the village. So the complainant suspected that the accused had kidnapped her daughter. Accordingly, she reported the matter to the police through her complaint/ statement under Section 154 CrPC Ext PW-12/A upon which FIR Ext PW-12/B was recorded in the Police Station, Gagret. Prosecutrix was recovered from the company of the accused from Industrial Area Jalandhar. She was got medically examined at CHC Daulatpur. Her clothes were also taken into possession and her vaginal swab and blood sample were taken and sent to the chemical examiner. Accused was arrested on 12.7.2007 and he was also got medically examined at CHC Gagret. Police also got ossification test of the prosecutrix at Dr. Rajinder Prasad Government Medical College, Dharamshala. The birth certificate of the prosecutrix was also obtained. Investigation was completed. Challan was put in the Court after completing all the codal formalities. 3. Prosecution has examined as many as 24 witnesses to prove its case against the accused. Police also got ossification test of the prosecutrix at Dr. Rajinder Prasad Government Medical College, Dharamshala. The birth certificate of the prosecutrix was also obtained. Investigation was completed. Challan was put in the Court after completing all the codal formalities. 3. Prosecution has examined as many as 24 witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He pleaded innocence. Learned trial Court acquitted the accused. Hence, this appeal. 4. Mr. M.A. Khan, Additional Advocate General has vehemently argued that the prosecution has proved its case against the accused. 5. Mr. Rakesh Chauhan, Advocate, vice counsel has supported Judgment dated 12.8.2008. 6. We have heard the learned counsel for the parties and also gone through the judgment and record carefully. 7. PW-1 Ram Chand testified that he was a retired Army personnel. Lekh Ram was his younger brother. Lekh Raj has one daughter (Prosecutrix). She was 14 years of age and studying in 9th class in Maharishi Vidya Mandir School, Daulatpur. On 7.7.2007, at about 6.30 AM, mother of prosecutrix came to his house and told that her daughter who was sleeping with her in the night was missing. Thereafter, they searched for her but she was not traced. They came to know that the accused, who was also residing in the vicinity, was also missing. He and the parents of the prosecutrix lodged FIR at Police post Daulatpur. Accused used to come to the house of his brother Lekh Raj and they came to know that accused had taken the prosecutrix with him. In the evening the police came to the village and recovered a bag from the bushes in their presence. In his cross-examination, he has admitted that the Pradhan did not accompany them to the Police Post. They went to Jalandhar by engaging private vehicle. Police did not prepare any written memo in their presence. 8. PW-2 Surinder Kaur deposed that she had a house in Dada Colony, Industrial Area, Jalandhar. It was a double storeyed house. She was residing in the ground floor. She deposed that about 3-4 months back, accused and 2-3 persons came to her alongwith some luggage. They took a room from her on rent. On the next day, accused brought a girl with him. The girl was wearing red clothes and bangles generally worn by recently married ladies and they stayed there for 2-3 days. She deposed that about 3-4 months back, accused and 2-3 persons came to her alongwith some luggage. They took a room from her on rent. On the next day, accused brought a girl with him. The girl was wearing red clothes and bangles generally worn by recently married ladies and they stayed there for 2-3 days. Rent was settled at Rs.600/-. She could not say with certainty that the accused present in the Court was the same person who had taken the room on rent from her. 9. PW-4 Ashok Kumar deposed that the prosecutrix was the daughter of Lekh Raj (sic. Des Raj). She studied upto 9th standard in Maharishi Vidya Mandir School, Daulatpur Chowk. In his presence, Mark A was produced by Lekh Raj to the police regarding which memo Ext. PW-1/A was prepared. In his cross-examination, he admitted that he has not seen the accused going with the prosecutrix anywhere at any point of time. Her house was about 200-300 feet from the house of the prosecutrix. 10. PW-7 Vinod Kumar deposed that in the month of August, 2007, he was officiating as Principal/incharge of Maharishi Vidya Mandir Public School, Daulatpur. Prosecutrix got admitted in the school on 1.5.2003. Her admission number was 529 and her date of birth was 11.5.1993. Regarding this, entry was made in the admission register at Sr. No. 19. Photocopy of register is Ext. PW-7/A and the photocopies of the supporting documents are Ext. PW-7/B. In his cross-examination, he deposed that he had handed over certificate Mark A to the police. He also admitted that entries at Sr. Nos. 528 and 529 were made by one and the same person however, entries at Sr. Nos. 530 and 531 were made by some other person. 11. PW-13 Dev Raj deposed that he had gone to Jaipur. Deputy Registrar of Nagar Nigam Jaipur had handed over the birth certificate Ext. PW-6/B of the prosecutrix. 12. PW-15 Dr. Mirnal Lakhi has examined the prosecutrix. She had noticed no injury mark over vulvae, thighs, labia majora and labia minora. No blood stains or any other stains were found on vulvae, labia majora, labia minora and thighs. Hymen was not present. Two fingers were easily going inside vagina. There was no injury on vaginal walls. After receiving chemical examiner report Ext. She had noticed no injury mark over vulvae, thighs, labia majora and labia minora. No blood stains or any other stains were found on vulvae, labia majora, labia minora and thighs. Hymen was not present. Two fingers were easily going inside vagina. There was no injury on vaginal walls. After receiving chemical examiner report Ext. PW-14/A, she opined that it could not be suggested that no rape or sexual intercourse has taken place. She issued MLC Ext. PW-15/A. 13. PW-16 Smt. Sunita Devi deposed that the prosecutrix was her daughter. She was admitted to Maharishi Vidya Mandir School, Daulatpur Chowk in 5th standard, and she was studying in the school till the date of occurrence. On 6.7.2007, they were sleeping in the verandah of their house. Prosecutrix was also with them in the verandah. They slept at 10.30 PM. At about 12.30 AM, she got up to answer the call of nature and found prosecutrix sleeping in the verandah. When she got up at 5.30 AM in the morning on 7.7.2007, she did not find her daughter (prosecutrix) in her bed. She woke up her husband who was a heart patient and told him about the same. She searched for her daughter alongwith her relatives but she could not be traced. Accused resided with Bishambari Devi whose house was situate in front of their house and he used to do tailoring work. Bishambari Devi was the younger aunt of her husband. Accused was also missing. Matter was reported to the police. 14. PW-17 Lekh Ram deposed that the prosecutrix was his daughter. On 6.7.2007, he, his wife and daughter were sleeping in the verandah. He was awakened by his wife at 5.30 AM and was told that prosecutrix was not there. They searched for her but she was not found. Matter was reported to the police. In his cross-examination, he has admitted that he has not seen the accused in the night of 6.7.2007 taking away his daughter with him. 15. PW-18 is the prosecutrix (name withheld). She testified that the accused used to reside in the house of Bishambari Devi behind their house. He was also running a tailoring shop in front of her house in the house of Bishambari Devi. Bishambari Devi had two houses. Accused used to reside in the house which was situate at the back side of their house. She testified that the accused used to reside in the house of Bishambari Devi behind their house. He was also running a tailoring shop in front of her house in the house of Bishambari Devi. Bishambari Devi had two houses. Accused used to reside in the house which was situate at the back side of their house. In the absence of her parents, accused used to come to her house and used to talk to her in vulgar manner. In February, 2007, her father became ill and was taken to Jalandhar where her mother also accompanied him and she was alone in the house. On 10th February, she was alone in the house, accused came there and committed sexual intercourse with her saying that he will marry her. He also threatened her with dire consequences. On the night intervening 6th and 7th July 2007, accused took her to Jalandhar on a scooter. He firstly took her to the house of his cousin and then to Dada Colony. , Industrial Area, Jalandhar. On 12.7.2007, police came to Jalandhar with her father and two uncles. She and accused were brought to Gagret. She was medically examined. In her cross-examination, she has admitted that she has narrated the incident of 10.2.2007 to her parents. Volunteered that she told the incident to Bishambari Devi, her grand-mother. She also admitted that she has not raised any alarm while being taken away by the accused. She has gone to Jalandhar via Talwara. She admitted that there was one barrier at Marwari and another one at Punjab border. She did not tell the police at any of these barriers that she was being taken away by the accused forcibly. 16. PW-20 HC Prabhat Chand has partially investigated the case. He has gone to Jalandhar and recovered the girl and the accused. 17. PW-21 Dr. D.P. Swami deposed that the estimated age of the prosecutrix was between 15 years and 16 years, as per ossification/dental x-ray examination. 18. PW-22 ASI Darshan Singh has recorded the statement of the prosecutrix on 12.7.2007. She was medically examined. He also prepared the site plan. 19. PW-23 Dr. Arun Sharma has proved Ext. PW-14/A. In his cross-examination, he has admitted that no semen was detected on the exhibits sent for examination. Semen could be detected in the vagina upto 3 days and occasionally upto 5 days. 20. She was medically examined. He also prepared the site plan. 19. PW-23 Dr. Arun Sharma has proved Ext. PW-14/A. In his cross-examination, he has admitted that no semen was detected on the exhibits sent for examination. Semen could be detected in the vagina upto 3 days and occasionally upto 5 days. 20. Case of the prosecution is that the prosecutrix was sleeping in the verandah on 6.7.2007. Mother found the prosecutrix missing at about 5.30 AM. She told this incident to her husband. They searched for her. Accused was also found missing. They suspected involvement of the accused. Matter was reported to the police. Police recovered the girl and the accused from Jalandhar. None of the witnesses has seen the accused taking away the prosecutrix from her house. PW-17 Lekh Ram, father of the prosecutrix, in his crossexamination stated that he has not seen the accused in the night of 6.7.2007 taking away his daughter with him. There is no evidence that the accused had visited their house prior to 6.7.2007. Accused is permanent resident of village Saloh. According to the prosecutrix, she was taken to Jalandhar via Talwara on scooter by the accused. She has not raised any alarm while being taken away from the house to Jalandhar via Talwara. She admitted that there were two barriers on the way but she has not informed the police that she was being forcibly taken away by the accused to Jalandhar. Scooter was not even owned by the accused. Owner of the scooter has not been examined. No one has seen the accused taking the prosecutrix on scooter to Jalandhar. There is no tangible evidence on record that the accused has ever used force, threat or inducement upon the prosecutrix in any manner. It is apparent that the prosecutrix has left the house at her own. Since she has not raised any alarm and not informed her parents, same lends credence to the defence version that she had left the house voluntarily. Thus, the story of abduction or kidnapping is not plausible. Prosecutrix deposed that the accused had come to her house when she was alone and her parents had gone to Jalandhar. Accused raped her. However, fact of the matter is that the prosecutrix has not narrated this incident to her parents. She explained that she has narrated the incident to her grand-mother. Prosecutrix deposed that the accused had come to her house when she was alone and her parents had gone to Jalandhar. Accused raped her. However, fact of the matter is that the prosecutrix has not narrated this incident to her parents. She explained that she has narrated the incident to her grand-mother. In case grand-mother had been apprised of this serious incident, she would have immediately taken up the matter with the parents of the prosecutrix. There was no mark of injury on the vulva, thighs, labia majora or labia minora and vaginal walls. Prosecutrix has not mentioned the exact date and time of alleged rape upon her by the accused. Medical evidence does not show the symptoms of sexual intercourse with the victim in the near past. 21. Prosecution case is also that the accused raped the prosecutrix at Jalandhar between 7.7.2007 to 12.7.2007. The house where she was allegedly kept was a double storeyed house. She could raise alarm in case she was forcibly raped. Version of the prosecutrix is that she did not narrate the incident due to fear. It has not been stated so by her while recording her statement under Section 161 CrPC. The learned trial Court has given a reasoned judgment while acquitting the accused. There is no occasion for us to interfere with the same. 22. In view of the discussion and analysis made herein above, the appeal has no merit and the same is dismissed. Bail bonds of accused are discharged. All pending applications are also disposed of.