Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 588 (HP)

State of H. P. v. Manoj Kumar alias Chhotu

2016-04-28

CHANDER BHUSAN BAROWALIA, RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment dated 8.8.2006, rendered by the learned Sessions Judge, Kinnaur, Sessions Division at Rampur Bushahr, H.P., in Sessions trial No. 24 of 2004, whereby the respondent-accused (hereinafter referred to as the accused), who was charged with and tried for offences punishable under Sections 323, 376, 511 and 506 IPC has been acquitted. 2. The case of the prosecution, in a nut shell, is that on 1.4.2005 at about 10:30 PM, the prosecutrix (name withheld) accompanied by her daughter-in-law Sudi Devi visited Police Station Rampur and lodged FIR to the effect that on 1.4.2005, when she along with Phula Devi went to the forest for grazing cattle then at about 4:50 PM, on her returning back to her house, accused Manoj Kumar alias Chhotu came there and closed her eyes from behind and thereafter he laid her forcibly on the ground. At the point of “khukhri”, he asked her to unstring her salwar otherwise she would be done to death. The accused gagged her mouth when she shouted. He opened her salwar and removed the same. Thereafter, he laid himself upon her and attempted to commit rape upon her. However, she resisted and thereafter she fell unconscious. The accused fled from the place of occurrence after some time and threatened the prosecutrix at the point of “khukhri”. The prosecutrix narrated the entire incident to Phula Devi who was following her and also narrated the same to her family members. FIR Ext. PW-1/A was registered. She was medically examined and accused was arrested. 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 ten 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. On the other hand, Mr. B.S. Thakur, Advocate for the accused has supported the judgment of the learned trial Court dated 8.8.2006. 5. We have heard learned counsel for both the sides and have also gone through the judgment and records of the case carefully. 6. On the other hand, Mr. B.S. Thakur, Advocate for the accused has supported the judgment of the learned trial Court dated 8.8.2006. 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, the prosecutrix testified that she had gone to graze cattle in the forest. Smt. Phula Devi was also with her. At 4:00 PM, while she was returning back from the forest, the accused came there and closed her eyes from the back side. She asked the accused to leave her but he threatened her. The accused laid upon her on the ground and removed her salwar. The accused had broken the sting of her salwar. Thereafter, he removed her salwar and had committed forcible sexual intercourse with her after closing her mouth. She fell unconscious. The accused was having “khukhri” with him and threatened to kill her with the same. Thereafter, the accused ran away from the spot. Phula Devi came on the spot. She narrated the entire incident to Phula Devi. She came to her house and narrated the incident to Sudi Devi, her daughter-in-law. She visited the Police Station along with Sudi Devi and lodged FIR Ext. PW-1/A. She was sent to medical examination at MGMSC Khaneri. In her cross-examination, she admitted that Major Dass was her nephew. Major Dass was also known as Meju Ram. She admitted that Meju Ram had enticed away Usha Devi cousin of the accused and police case was registered. She admitted that Meju Ram met her at her house before lodging the FIR. Phula Devi was her maternal aunt. 7. PW-2 Sudi Devi testified that the prosecutrix had gone to the forest for grazing cattle. She returned back at about 5:00 PM. The prosecutrix told that accused Manoj Kumar had committed forcible sexual intercourse with her in the forest. She and the prosecutrix had gone to Police Station Rampur and lodged FIR Ext. PW-1/A. In her cross-examination, she admitted that her mother-in-law when came at house, she was naked from the legs with salwar in her hands. 8. PW-3 Rajinder Singh deposed that accused made disclosure statement to the effect that he has concealed “khukhri” near the passage of the village vide Ext. PW-3/A. The accused produced the “khukhri” before the police. 9. PW-4 Dr. (Mrs.) Tara Negi, has initially in her report Ext. 8. PW-3 Rajinder Singh deposed that accused made disclosure statement to the effect that he has concealed “khukhri” near the passage of the village vide Ext. PW-3/A. The accused produced the “khukhri” before the police. 9. PW-4 Dr. (Mrs.) Tara Negi, has initially in her report Ext. PW-4/C opined that as per report available from the chemical examiner, Junga vide report No. 2499/5A dated 4.4.2005, no blood and sperm was detected in the samples sent. Hence, on the basis of report and examination, there was no evidence of sexual intercourse. However, we have gone through Ext. PW-4/C. PW-4 Dr. (Mrs.) Tara Negi, has initially written that on the basis of report and examination, the possibility of sexual attempt cannot be ruled out. She has scored off words “possibility of sexual attempt cannot be ruled out”. She subsequently gave the report on the basis of letter dated 1.6.2005 No. 3824A, where she stated that the possibility of penetration could not be ruled out. In her cross-examination, she deposed that she has not seen letter dated 1.6.2005 No. 3824A, on the basis of which the second opinion was given by her. A Court question was put to her: “Can after going through the record you tell whether penetration was there or not?” In her answer, she replied that she could not tell as the prosecutrix was an old lady. 10. PW-7 Phula Devi testified that she had gone to graze cattle in the forest along with the prosecutrix. In the evening, the prosecutrix had gone to collect the cattle but she did not come back. The prosecutrix was found lying in the Nullah. Her salwar was also lying nearby her. She tied her salwar. The prosecutrix told her that the accused had closed her eyes and removed her salwar and he did “GALAT KAAM” with her. In her cross-examination, she admitted that she was interrogated by the police. She disclosed to the police that the salwar was lying nearby her. (Confronted with statement mark-X wherein it is not so recorded). She admitted that nothing had happened in her presence. She had disclosed to the police that the prosecutrix was lying in the nullah. (Confronted with statement mark-X wherein it is not so recorded). 11. According to the FIR Ext. PW-1/A, the accused has attempted to rape the prosecutrix. (Confronted with statement mark-X wherein it is not so recorded). She admitted that nothing had happened in her presence. She had disclosed to the police that the prosecutrix was lying in the nullah. (Confronted with statement mark-X wherein it is not so recorded). 11. According to the FIR Ext. PW-1/A, the accused has attempted to rape the prosecutrix. However, when the prosecutrix appeared in the Court as PW-1, she deposed that the accused had raped her. She also admitted that Major Dass alias Meju Ram had enticed away Usha Devi, cousin of the accused and police case was registered. Meju Ram was arrested in that case. She also admitted that the case ended into compromise. She also admitted that Meju Ram met at her house before lodging the FIR. Thus, there was litigation between the family of the prosecutrix and the accused. 12. PW-2 Sudi Devi deposed that her mother-in-law came to her house. She was carrying salwar in her hands. However, PW-7 Phula Devi deposed that the prosecutrix was found in Nullah and her salwar was lying nearby her. She tied her salwar. The prosecutrix has improved her version vis-à-vis the contents of the FIR Ext. PW-1/A. Similarly, PW-7 Phula Devi has also made improvements in her statement. In the statement of the prosecutrix recorded under Section 161 Cr.P.C., Mark-X, it is not mentioned that the prosecutrix was raped but in her statement before the Court vide PW-1, she deposed that the accused had done “GALAT KAAM” with her. In case the accused had raped the prosecutrix, she should have mentioned the same in the FIR. 13. PW-8 ASI Hari Bhagat as well as PW-9 Insp. B.D. Bhatia, have admitted in their cross-examination that document Sr. No. 3824-A, dated 1.6.2005, on the basis of which second opinion was given by the doctor, was not available on record. On the basis of the harmonious reading of the evidence of PW-4 Dr. (Mrs.) Tara Negi, it cannot be conclusively said that penetration has taken place. There was no blood stains or stains of semen present on the salwar, pubic hair and vaginal swab of the prosecutrix. 14. PW-3 Rajinder Singh has admitted that the place where the “khukhri” was recovered was easily accessible to the public. The prosecution has not led any evidence that the accused had voluntarily caused hurt to the prosecutrix. There was no blood stains or stains of semen present on the salwar, pubic hair and vaginal swab of the prosecutrix. 14. PW-3 Rajinder Singh has admitted that the place where the “khukhri” was recovered was easily accessible to the public. The prosecution has not led any evidence that the accused had voluntarily caused hurt to the prosecutrix. Moreover, the prosecutrix, while appearing as PW-1 before the Court, has not stated anything about this fact. Similarly, the prosecution has not proved the charge under Section 506 and Section 511 IPC beyond reasonable doubt. Accordingly, 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 8.8.2006. 15. Consequently, there is no merit in this appeal and the same is dismissed.