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Himachal Pradesh High Court · body

2016 DIGILAW 649 (HP)

Avtar v. State of Himachal Pradesh

2016-05-03

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. The present appeal has been instituted against Judgment/Order dated 3.9.2014/8.9.2014 rendered by the learned Additional Sessions Judge, Ghumarwin, District Bilaspur, Himachal Pradesh in Sessions Trial No. 10/7 of 2014, whereby appellant-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence under Sections 341, 323 and 376 IPC, has been convicted and sentenced to undergo simple imprisonment for a period of one month and to pay a fine of Rs.500/-, in default of payment of fine, to further undergo simple imprisonment for two days for offence under Section 341 IPC. He has also been sentenced under Section 376 IPC to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/-, in default of payment of fine, to further undergo simple imprisonment for a period of six months. He has further been sentenced under Section 323 IPC to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.500/- and in default of payment of fine, to further undergo simple imprisonment for a period of ten days. 2. Case of the prosecution, in a nutshell, is that the husband of the prosecutrix was employed by a contractor on work at Tiun road as a watchman. On 27.10.2013, the prosecutrix intended to visit the house of her aunt and was also taking food for her husband. She boarded a bus. She alighted at a place called Nallian. She was going on foot from Nallian on a Kachha road at 6 PM. When she reached at a lonely place she noticed one person going ahead. He allowed the prosecutrix to pass by. The accused thereafter started following the prosecutrix and started touching her body and also indulged in making indecent gestures. The prosecutrix had opposed such act of the accused and had also hit him with her slipper, but the accused overpowered the prosecutrix. Thereafter he forcibly opened her Salwar and committed sexual intercourse against her will and consent. Thereafter, he had again started following the prosecutrix and had taken the prosecutrix to the side of the road, where he again committed forcible sexual intercourse with her. After the prosecutrix managed to come out from the clutches of the accused and had tried to go to the village Tiun, said person again caught the prosecutrix. Thereafter, he had again started following the prosecutrix and had taken the prosecutrix to the side of the road, where he again committed forcible sexual intercourse with her. After the prosecutrix managed to come out from the clutches of the accused and had tried to go to the village Tiun, said person again caught the prosecutrix. She also suffered scratched on her right arm and knee. The prosecutrix raised hue and cry. When hue and cry was raised her husband who was on his duty near by enquired what has happened. On hearing his voice, accused ran away. The prosecutrix disclosed that she could identify the person, who had committed rape upon her. She narrated the incident to her husband. Since she was not knowing the name and address of said person, who had committed rape, she did not report the matter to the police. She kept on searching the offender. On 30.10.2013, when prosecutrix was in search of accused, she noticed the accused while she was travelling in a bus at Nallian. She came out of the bus and caught him. She disclosed it to one of the boy of her village namely Kala Ram, who then telephonically informed the police. Report was entered in the daily station diary. HC Bhag Singh visited the spot and recorded the statement of the prosecutrix. FIR was recorded thereafter Prosecutrix and accused were medically examined. Vaginal swabs were also taken by the doctor and were handed over to the police. Sealed parcels alongwith samples and sealed envelopes were sent to RFSL Mandi for examination and report of chemical examiner was obtained. Statement of prosecutrix was also recorded under Section 164 CrPC. Accused made disclosure statement on the basis of which police party went to the spot and got the spot identified. Investigation was completed. Challan was put in the Court after completing all the codal formalities. 3. Prosecution has examined as many as sixteen witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He pleaded innocence. Learned trial Court convicted and sentenced the accused noticed above. Hence, this appeal. 4. Mr. Balbir Singh, learned Senior Advocate has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. Parmod Thakur, Additional Advocate General has supported Judgment/Order dated 3.9.2014/8.9.2014. 6. Accused was also examined under Section 313 CrPC. He pleaded innocence. Learned trial Court convicted and sentenced the accused noticed above. Hence, this appeal. 4. Mr. Balbir Singh, learned Senior Advocate has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. Parmod Thakur, Additional Advocate General has supported Judgment/Order dated 3.9.2014/8.9.2014. 6. I have heard the learned counsel for the parties and also gone through the record carefully. 7. PW-1 prosecutrix (name withheld) deposed that her husband was working with a contractor at village Nallian. On 27.10.2013, during the evening she was going to village Tiun to meet her Aunt (Bua). She alighted from the bus at village Nallian. She started walking on foot through a Kachha path to village Tiun. Accused who was walking in front of her stopped and allowed her to pass. He then started following her and he made indecent advances. She cried for help and had also given a blow with her slipper. Accused threw her down on the ground and raped her. Thereafter, she started walking towards village Tiun but accused again followed her and at some distance had taken her to the side of road. There he again raped her. She raised alarm but it was a lonely place so none came to her rescue. Accused then throttled her neck. She saved herself from the clutches of accused. He again started walking towards village Tiun but accused again caught her after moving some distance. She kept on crying throughout her ordeal. Her husband enquired what has happened. When her husband came towards her, accused pushed her aside and fled away. She received injuries on her back, right arm and right knee. Accused was not known to her. She narrated the entire incident to her husband. They searched for the accused. He was traced after three days at Nallian. She caught the accused with the help of co-villager Kala Ram. Police was informed by Kala Ram Police came on the spot and recorded her statement Ext. PW-1/A. In her cross-examination, she deposed that on the day of occurrence, she was in possession of mobile phone No. 86795-28373. She told the police that at the first instance of rape, she had cried for help. (confronted with her statement Ext. PW-1/A, wherein it is not so recorded). PW-1/A. In her cross-examination, she deposed that on the day of occurrence, she was in possession of mobile phone No. 86795-28373. She told the police that at the first instance of rape, she had cried for help. (confronted with her statement Ext. PW-1/A, wherein it is not so recorded). She had not told the police that on the second occasion when she was raped by accused, she raised alarm. She had told the police that accused had throttled her neck. (confronted with her statement Ext. PW-1/A, wherein it is not so recorded). She admitted that she met her husband at 9.00 PM. She admitted that in the morning she had informed her husband on telephone that in the evening she would be bringing food for him. She also admitted that she had reached the National Highway at Nallian at about 6.00 PM. She admitted further that at that time it had started getting dark. She had not seen the accused prior to the alleged incident. Her husband was just at a distance of half a kilometre upwards. She admitted that her husband was working as a Chowkidar with the contractor. She admitted that on the first occasion she was left by the accused after half an hour and during this time, accused had sexual intercourse with her. She was made to lie on hard surface. She had scratched the face of accused with nails and also slapped him. After about 15 minutes accused had again raped her. She stated that after first incident she started walking towards Village Tiun. Accused followed her. On second occasion, he took her towards the jungle by the side of the path and had sexual intercourse with her. Her Salwar was totally removed. Thereafter at a distance of 50 metres accused again caught her when she raised alarm. She admitted that her husband used to come home once a week. 8. PW-2 Dr. Anant Ram has examined the accused. He issued MLC Ext. PW-2/C. He admitted in his cross-examination that he had not seen any scratch mark on the face and chest of the accused. He admitted that injuries mentioned in Ext. PW- 2/C are possible while doing agricultural work. 9. PW-3 Ram Lal deposed that he was working as a Chowkidar with contractor Ram Murti at Nallian. On 27.10.2013, his wife was going to her Aunt’s house in village Tiun. He admitted that injuries mentioned in Ext. PW- 2/C are possible while doing agricultural work. 9. PW-3 Ram Lal deposed that he was working as a Chowkidar with contractor Ram Murti at Nallian. On 27.10.2013, his wife was going to her Aunt’s house in village Tiun. He had telephonically informed her in the morning to bring food for him. He was resting in the hut uptil 9 PM. When he heard her cries for help, he went out and raised an alarm. He had seen abrasions on various parts of body of his wife. The accused fled away. Prosecutrix told him that she had been raped by the accused on the way twice. They searched for the accused. He was nabbed on 30.10.2013. Prosecutrix identified accused in a tea stall at Nallian. At that time, Kala Ram was present. In his cross-examination he admitted the suggestion that National Highway from the place of work was 500-600 metres. It takes 10 to 15 minutes to reach that place from National Highway. He admitted that the path which started from National Highway at Nallian led to a number of villages i.e. Kathla, Beppar, Pang, Narli, Tiun etc. He admitted that the place from where he heard the noise, was just 15 metres away from the hut. 10. PW-4 Kala Ram deposed that on 30.10.2013, he was present at a tea stall at village Nalian. Prosecutrix after alighting from a bus had told her that accused had raped her. At that time, accused was also present at the tea stall. She had told him that on 27.10.2013 accused had committed rape with her. He informed the police. Police visited the spot. Accused was nabbed by the prosecutrix and some other persons present there and handed over to the Police. In his cross-examination, he has admitted that he frequently took tea at tea stall at Nallian. He also knew Jeet Ram. He admitted that he was present before the arrival of the accused at tea stall. He admitted that accused had come at about 4.30 PM. He admitted that he had telephonically informed the prosecutrix to come to the tea stall, as the accused was present at the tea stall. He also admitted that the owner of the tea stall had asked them not to quarrel. 11. PW-5 Jeet Ram deposed that he runs a tea stall at village Nallian in the year 2013. He admitted that he had telephonically informed the prosecutrix to come to the tea stall, as the accused was present at the tea stall. He also admitted that the owner of the tea stall had asked them not to quarrel. 11. PW-5 Jeet Ram deposed that he runs a tea stall at village Nallian in the year 2013. On 30.10.2013 in the evening when he was present at the tea stall, Kala Ram had come there. He slapped the accused. He objected to it. Prosecutrix also came there and she also gave beatings to the accused. He asked them to quarrel outside. Lateron police had come at the tea stall. Prosecutrix had told that accused had committed indecent act with her. In his cross-examination he admitted that Kala Ram was a frequent visitor to his tea stall. He admitted that the path leads to village Tiun from National Highway at Nallian which was being used frequently by the villagers. 12. PW-6 Dr. D. Bhangal has medically examined the prosecutrix. According to him, duration of injuries was two to five days. According to his final opinion based on report of the chemical examiner, possibility of rape could not be ruled out. He issued MLC Ext.PW-6/B. In his cross-examination, he has admitted that there was no injuries of nail scratch marks of on the face of the prosecutrix. 13. PW-11 L.C. Lata Kumari has taken the prosecutrix for medical examination. 14. PW-16 ASI Sewa Singh deposed that he received case file for investigation. He moved two applications Ext. PW-2/A and Ext. PW-6/A for medical examination of accused and the prosecutrix. Accused made disclosure statement Ext. PW-7/A which led to identification of the spot. He prepared spot map Ext. PW-16/C. In his cross-examination, he admitted that the place where husband of the prosecutrix was working was about 750 metres from the National Highway. It takes 20-25 minutes to cover such distance. He also admitted that adjacent to the National Highway, there is a Dhaba. He admitted that the prosecutrix did not know the accused. He has not taken any call details of Kala Ram, the prosecutrix and her husband. 15. Case of the prosecution is that the accused raped the prosecutrix twice when she was going from her house to Tiun. The distance between National Highway and the place where PW- 3 Ram Lal was working, was only 500-600 metres. He has not taken any call details of Kala Ram, the prosecutrix and her husband. 15. Case of the prosecution is that the accused raped the prosecutrix twice when she was going from her house to Tiun. The distance between National Highway and the place where PW- 3 Ram Lal was working, was only 500-600 metres. According to PW-3, Ram Lal, it takes only 10-15 minutes to reach the place where he was working from National Highway. Path starting from National Highway at Nallian goes to a number of villages i.e. Kathla, Beppar, Pang, Narli, Tiun etc. He admitted that the place from where he heard the noise, was just 15 metres away. Prosecutrix’ version is that the accused was walking in front of her stopped and allowed her to pass. He then started following her and from behind had started touching her body. She cried for help and had also given a blow with her slipper. Accused threw her down on the ground and raped her. Thereafter, she started walking towards village Tiun but accused again followed her and at some distance had taken her to the side of road. There he again raped her. She raised alarm but it was a lonely place so none came to her rescue. Accused then throttled her neck. She saved herself from the clutches of accused. He again started walking towards village Tiun but accused again caught her after moving some distance. She had been crying for help throughout. Her husband called her and enquired what has happened. When her husband came towards her, accused pushed her aside and fled away. The prosecutrix was carrying a mobile number 86795-28373. It has come in the statement of PW-3 Ram Lal that on 27.10.2013, his wife was going to her Aunt’s house at Tiun. He had telephoned her to bring food for him. It is evident that PW-3 Ram Lal and PW-1 prosecutrix were having mobile phones. In case incident had happened in the manner in which it has been projected, PW-1 prosecutrix should have informed her husband on the telephone that the accused was shadowing her. In fact, if she had raised alarm, same could be heard by her husband since the distance was only 500 metres from the place Nallian to the hut. PW-1 prosecutrix has admitted that it was dark at 6 PM. In fact, if she had raised alarm, same could be heard by her husband since the distance was only 500 metres from the place Nallian to the hut. PW-1 prosecutrix has admitted that it was dark at 6 PM. She had never seen the accused before the alleged incident. According to her, she was throttled. Prosecutrix was married for the last 19 years as per statement of PW-6 Dr. D. Bhangal. Statement of prosecutrix was recorded under Section 154 CrPC on 30.10.2013. She was searching for the accused. She noticed accused while she was travelling in a bus at Nallian. She came out of bus and caught the accused. However, PW-4 Kala Ram deposed that on 30.10.2013, he was present at a tea stall at village Nalian. He admitted that he had telephonically informed the prosecutrix to come there as accused was at the tea stall. How could he tell the prosecutrix about the presence of accused when he had no prior information of the incident which has happened on 27.10.2013. Though the version of the prosecutrix is that she saw the accused from the bus and came down and caught hold of him, it is not the case of the prosecution that the prosecutrix told the incident to PW-4 Kala Ram at any point of time before coming to the tea stall. Similarly, PW-5 Jeet Ram deposed that on 30.10.2013 in the evening when he was present at the tea stall, Kala Ram had come there. He slapped the accused. He objected to it. Prosecutrix also came there and she also gave beatings to the accused. Prosecutrix has left the National Highway at 6 PM and was met her husband only at 9 PM. Though distance between National Highway and the place where PW-3 Ram Lal was working was only at 500-600 metres and distance could be covered within 10-15 minutes, as per PW- 3 Ram Lal. PW-16 ASI Sewa Singh also admitted that distance where husband of prosecutrix was working was 750 metres and it takes around 20-25 minutes to cover the distance. However, fact of the matter is that it has taken for the prosecutrix three hours to reach the hut. Further, she has never met the accused before. The incident has taken place at night. It is also not believable that the husband and wife kept on searching for the accused randomly. However, fact of the matter is that it has taken for the prosecutrix three hours to reach the hut. Further, she has never met the accused before. The incident has taken place at night. It is also not believable that the husband and wife kept on searching for the accused randomly. The manner in which accused has been apprehended is not believable in view of inherent contradictions in the statements of PW-1 prosecutrix and PW-4 Kala Ram. Further, the incident has happened on 27.10.2013 and FIR was registered on 30.10.2013. There is delay in lodging FIR. Prosecutrix has made improvements in her statement recorded before the Court from the previous statement recorded under Section 154 CrPC, Ext. PW-1/A. 16. Further, though the statement was recorded under Section 164 CrPC, Ext. PW-16/B, the Judicial Magistrate, who has recorded her statement, has not been examined. Said witness should not have been given up in order to prove that the statement of the prosecutrix under Section 164 CrPC was recorded in accordance with law. Prosecution has also failed to prove offence under Section 341 IPC in view of the observations made herein above. PW-6 Dr. D. Bhangal has noticed only three abrasions on the body of the prosecutrix and no other injury was visible on the body of the prosecutrix. Since identification of accused itself is doubtful, alleged injuries inflicted by him on the person of the prosecutrix are also ruled out. Thus the prosecution has also not proved the case under Section 323 IPC. 17. In view of the discussion and analysis made herein above, the present appeal is allowed. Judgment/Order dated 3.9.2014/8.9.2014 rendered by the learned Additional Sessions Judge, Ghumarwin, District Bilaspur, Himachal Pradesh in Sessions Trial No. 10/7 of 2014 is set aside. Accused is acquitted of the offences under Sections 341, 323 and 376 IPC. He is ordered to be released forthwith, if not required in any other offence. Fine amount, if any, be also ordered to be refunded to the accused, if any paid. 18. Registry is directed to prepare and send the release warrant of the accused to the Superintendent of Jail concerned, forthwith. All pending applications are also disposed of.