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2017 DIGILAW 1185 (HP)

State of H. P. v. Dheeraj Kumar

2017-10-23

DHARAM CHAND CHAUDHARY, VIVEK SINGH THAKUR

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JUDGMENT : Dharam Chand Chaudhary, J. State of Himachal Pradesh is aggrieved by the judgment dated 22.4.2010 passed by learned Sessions Judge, Chamba (H.P).) in Sessions trial No. 26 of 2009 whereby the respondent (hereinafter referred to as the accused) has been acquitted of the charge under Sections 376/506 of the Indian Penal Code. 2. The complaint is that learned trial Court has failed to appreciate the evidence available on record in its right perspective and to the contrary based its findings on surmises and conjectures. Learned trial Court has allegedly erred in not placing reliance on the testimony of the prosecutrix who as per the prosecution version was taken by the accused to a ‘Khandhar’ (remains of a dilapidated building) and subjected to sexual intercourse against her will and without her consent. On her raising hue and cries the accused allegedly threatened her to done away with her life. Her testimony to this effect remained unshattered. The factum of there being no enmity of the complainant party with the accused, hence there was no reason of his false implication is also not taken into consideration. The impugned judgment, as such, has been sought to be quashed and set aside and the accused convicted of the offence he allegedly committed under Section 376 and 506 of the Indian Penal Code. 3. The present is a case where the prosecutrix (name withheld) at the time of occurrence was 19 years of age whereas the accused 20 years. They were resident of the same place i.e. Rajpura in the superb of Chamba town itself. It has been alleged that PW8 Saharo Begum Aunt (Bua) of the prosecutrix had cut grass in the Farm belonging to Horticulture department at Rajpura on 3.10.2008. The prosecutrix was deputed to bring grass to the house at 2:30 P.M. The accused came there around 3:30 P.M. He caught hold her arm and taken to a ‘Khandhar’ situated nearby. He subjected her to forcible sexual intercourse there. She raised hue and cries but he forced her to sit there. He threatened to kill her had she raised hue and cries and disclosed the occurrence to her parents. When it became little dark she was taken by him to his house and made to enter inside his room through a window. She was so frightened that could not even speak anything. He threatened to kill her had she raised hue and cries and disclosed the occurrence to her parents. When it became little dark she was taken by him to his house and made to enter inside his room through a window. She was so frightened that could not even speak anything. During the night also, he subjected her to sexual intercourse forcibly at 4-5 occasions. On 4.10.2008 around 5:00 A.M. on finding the accused sleeping she came out through that very window and reached in her house. There she narrated the incident to her mother Smt. Gulzar Begum (PW1). She was brought by her mother to police station. She reported the manner in which she was subjected to sexual intercourse forcibly and the threats held out to her to the police. 4. On the report so lodged by the prosecutrix, FIR Ext.PW1/A came to be registered in Police Station, Chamba. The prosecutrix was taken to hospital where she was subjected to medical examination by Dr. Mrs. Arti Gupta, Gynecologist (PW13). She disclosed the history of being subjected to sexual intercourse on 3.10.2008 and during night time also after 10.00 P.M. four times by Dheeraj (accused) against her will and without her consent. Also that in the morning she was found in his company by her parents. On her general examination no marks of injury on any part of her body were present. No marks of injury were there over thighs, private parts or nipples. Pubic hairs were not matted. The Pubic hairs were clipped and handed over to the police. On separating labia minora, old hymen tear were present. The vagina was found admitting two fingers with difficulty, however, the expert PW13 failed to indicate the time of sexual intercourse committed with the prosecutrix. The shirt and salwar of the prosecutrix as well as pubic hairs and vaginal swab preserved for analysis were sealed and handed over to the police. 5. Since semen was found on salwar and pubic hairs of the prosecutrix, therefore, PW13 in her opinion could not rule out the possibility of rape with the prosecutrix. The MLC is Ext.PW13/B. During the course of further investigation the I.O. has prepared the spot map Ext.PW12/A of the place of occurrence i.e. the so called ‘Khandhar’ Mark ‘A’ and that of the house of accused where the prosecutrix was allegedly subjected to sexual intercourse by the accused. The MLC is Ext.PW13/B. During the course of further investigation the I.O. has prepared the spot map Ext.PW12/A of the place of occurrence i.e. the so called ‘Khandhar’ Mark ‘A’ and that of the house of accused where the prosecutrix was allegedly subjected to sexual intercourse by the accused. The bed sheet spreaded on the bed lying in the room of the accused was also taken in possession vide recovery memo Ext.PW2/C on the identification of the room given by the prosecutrix. One currency note worth Rs. 10/- lying on the place of occurrence at the so called ‘Khandhar’ was also taken into possession vide recovery memo Ext.PW12/B. The accused was also got subjected to medical examination vide MLC Ext.PY and he was found capable of doing sexual intercourse. The date of birth certificate of the prosecutrix is mark ‘Y’. Letters she allegedly written to the accused are mark D1 to D6. 6. On completion of the investigation and receipt of the report of Chemical examiner Ex.PX as well as finding a case for the commission of an offence punishable under Section 376 and 506 (II) IPC made out against the accused, report under Section 173 Cr.P.C. was filed in the Court. Learned trial Judge on going through the report and the documents annexed therewith has concluded that the same prima-facie disclose the commission of offence punishable under Sections 376 and 506(II) IPC and charge was accordingly framed against the accused. He, however, pleaded not guilty to the charge and claimed trial. The prosecution in turn has examined 13 witnesses in all. The material prosecution witnesses are however the prosecutrix who has stepped into the witness box as PW2 and her mother Smt. Gulzar Begum PW1 and also the Doctor PW13. The another material witness Jaiwant Raj PW7, the Pradhan of Gram Panchayat Rajpura, however, has not supported the prosecution case and turned hostile. Smt. Saharo Begum the Aunt of the prosecutrix is PW8. The remaining prosecution witnesses are police officials who remained associated during the investigation of the case in one way or the other, hence formal. 7. The another material witness Jaiwant Raj PW7, the Pradhan of Gram Panchayat Rajpura, however, has not supported the prosecution case and turned hostile. Smt. Saharo Begum the Aunt of the prosecutrix is PW8. The remaining prosecution witnesses are police officials who remained associated during the investigation of the case in one way or the other, hence formal. 7. On the other hand the accused in his statement recorded under Section 313 Cr.P.C. has denied all the incriminating circumstances appearing in the prosecution evidence against him being incorrect except for that he was got medically examined vide MLC Ext.PY and found capable of performing sexual intercourse as well as his underwear and pubic hairs preserved by the Medical Officer for Chemical analysis. In his defence he has come forward with the version that he is innocent and has been implicated falsely in this case by distorting the facts against him. He, however, opted for not producing any evidence in his defence. 8. Learned trial Judge as is pointed out at the outset on appreciation of the evidence available on record has arrived at a conclusion that though the prosecutrix was subjected to sexual intercourse by the accused with her consent as in the opinion of learned trial Judge the evidence is not suggestive of that resistance was shown by her. The prosecution story that the prosecutrix was forcibly subjected to sexual intercourse is doubtful and she having attained the age of majority and being competent to give consent for sexual intercourse with her such an act on the part of the accused was found to be consensual and as such, while giving benefit of doubt to him he has been acquitted of the charge framed against him. 9. Mr. D.S. Nainta, learned Additional Advocate General has vehemently argued that the present is not a case of the commission of sexual intercourse by the accused with the consent of the prosecutrix and rather as per evidence as has come on record by way of her own statement she was assaulted sexually by applying force. On the other hand Mr. Lakshay Thakur, Advocate, learned defence counsel has urged that the prosecutrix was in love with the accused. They being of same village were visiting each other frequently. The prosecution evidence according to Mr. On the other hand Mr. Lakshay Thakur, Advocate, learned defence counsel has urged that the prosecutrix was in love with the accused. They being of same village were visiting each other frequently. The prosecution evidence according to Mr. Thakur is not suggestive of that the prosecutrix was exploited sexually by the accused by applying force and rather in the given facts and circumstances she was consenting party thereto. 10. On analyzing the rival submissions and also taking into consideration the given facts and circumstances of this case, it would not be improper to conclude that the present is not a case where the accused has subjected the prosecutrix to sexual intercourse forcibly and against her will for the reasons that she being a well built and able bodied girl aged 19 years could have not been subjected to sexual intercourse forcibly by the accused aged about 20 years at the relevant time being in her age group. Though as per the prosecution case the prosecutrix had shown resistance and objected to the commission of such an act by the accused with her and also that she slapped him as well as given a push, however, nothing to this effect find recorded in the FIR Ext.PW1/A which contains the very first version qua the manner in which this incident has taken place. Though as per this document the accused asked the prosecutrix that he had some work with her and when she enquired about it he caught hold her arm and taken her to a building in dilapidated condition (‘Khandhar’) situated in the farm of Horticulture department. As per her further version she tried to raise alarm, however, he gagged her mouth with his hand. He even threatened her to done away with had she disclosed the incident to her parents. This story, however, seems to be fabricated and engineered for the reasons that as per her own version the ‘Khandhar’ where she was taken by the accused at a distance of 550 feet from the farm was also part of the property of Horticulture department. She admit that the labourer used to work in the Farm and Chowkidar remains on duty there even during holidays also. Her mother PW1 has also stated so. However, as per her version the distance of that ‘Khandhar’ from Farm house is 200 yards. She admit that the labourer used to work in the Farm and Chowkidar remains on duty there even during holidays also. Her mother PW1 has also stated so. However, as per her version the distance of that ‘Khandhar’ from Farm house is 200 yards. It is difficult to believe that in the presence of the labourers in the Farm the accused could have not taken the prosecutrix forcibly to the ‘Khandhar’ had she not been consenting party but accompany him there. Interestingly enough the accused and prosecutrix both belongs to Rajpura. The distance between their houses is not much. The same as per the version of the prosecutrix is 250 meters whereas that of her mother PW1 200 meters and as per that of the I.O. PW12 ASI Shyam Parshad 25- 30 feet. Not only this, it is also established on record from the testimony of PW1 that before house of the accused house of one Bindu falls whereas in the backside the house of one Dharam Singh is situated. The prosecutrix also admit so in her cross-examination meaning thereby that the house of the accused is surrounded by other houses. There is nothing in the prosecution evidence qua the time when the prosecutrix was brought from the Farm by the accused to his house in the evening. She, however, submits that when it fell little dark she was brought there at that time meaning thereby that the neighbours i.e. Bindu and Dharam Singh etc. must be present in their houses. The prosecutrix if was not a consenting party to such an act the accused could have not been at all in a position to make her to enter inside the room through window. Had any resistance been shown by her when was being taken away firstly to that ‘Khandhar’ and thereafter to his house by the accused, the labourers and for that matter their neighbours would have noticed them and the accused could have not taken her forcibly. The present in our considered opinion is a case where the prosecutrix was in love with the accused. The present in our considered opinion is a case where the prosecutrix was in love with the accused. The letters mark D1 to D6, though being un-exhibited, hence could not be relied upon and also that when put to the prosecutrix during the course of recording her statement she denied the same to be in her hand, however, take us nearer to the factual position that the accused and prosecutrix both were in love, hence the possibility of meeting frequently with each other cannot be ruled out. Though as per the prosecution case the parents of the prosecutrix on her going missing from the house searched her here and there but could not be traced out and rather she at her own returned to the house early in the morning around 5.00/6:00 A.M. on 4.10.2008. 11. However, if the testimony of PW8 Saharo Begum the Aunt of the prosecutrix is seen she has not uttered even a single word that the efforts to trace out the prosecutrix were made by them. As per her version she had cut grass in the Farm at Rajpura and the prosecutrix was sent to bring the same. She expressed her ignorance that the prosecutrix returned to home with grass or not. This witness is also resident of Rajpura, therefore, had the prosecutrix been gone missing and efforts made to trace her out, this fact should have come to her notice also. The story that the prosecutrix had gone missing when deputed to bring grass from the Farm seems to be false because as per the history given to the Doctor PW13 by the prosecutrix she was taken to some place by the accused on 3.10.2008 and during night time i.e. after 10:00 P.M. he committed sexual intercourse with her four times against her consent. In the morning she was found there (on the spot) by her parents. Such version of the prosecutrix before Medical officer seems to be correct because she being in love with the accused, the possibility of she accompanied him at her own cannot be ruled out. 12. In the morning she was found there (on the spot) by her parents. Such version of the prosecutrix before Medical officer seems to be correct because she being in love with the accused, the possibility of she accompanied him at her own cannot be ruled out. 12. The further testimony of PW13 the Doctor belies the prosecution version qua resistance shown by the prosecutrix to such an act and conduct on the part of the accused for the reasons that on her general examination no mark of injury could be found on any part of her body including thighs and private parts or over nipples when as per her version while subjecting her to sexual intercourse the accused had given tooth bites on her cheeks and breasts. Therefore, had it been so, some marks of injury were bound to occur on her cheeks and breasts. Though as per her version she received injury on her left leg due to forcible sexual act committed with her by the accused and she allegedly disclosed the same to the Medical Officer, however, nothing to this effect is there in the MLC Ext.PW13/B. While in the witness box the prosecutrix tells that she was subjected to sexual intercourse four times in the ‘Khandhar’ whereas 4-5 times in his house during the night, however, such version is an improvement as in the FIR Ext.PW1/A nothing has come as to how many times she was subjected to coitus at that ‘Khandhar’. PW7 Jaiwant Raj, the Pradhan of Gram Panchayat could have said something positive qua the manner in which the investigation having taken place in his presence, however, he did not support the prosecution case and rather turned hostile. Otherwise also his testimony in cross examination conducted on behalf of the prosecution only show that the parcel containing bed sheet Ex.P1 already sealed was taken in possession in his presence vide memo Ext.PW2/C. 13. The I.O. of the Case PW12 ASI Shyam Parshad has not stated something special while in the witness box and his testimony in cross-examination that he did not record the statement of the Chowkidar nor tried to verify the labourers who were working in the Farm on that day lead to the only conclusion that he has conducted the investigation in cursory manner without taking much interest. His testimony that house of Dharam Singh is near to the house of accused and the house of the prosecutrix is at a distance of 25-30 feet from the house of the accused lends support to the defence version instead of the prosecution case. 14. In view of what has said hereinabove, the evidence as has come on record by way of the testimony of so called material prosecution witnesses is not at all suggestive of that the prosecutrix was subjected to sexual intercourse by the accused forcibly. Learned trial Judge rather on appreciation of the evidence available on record in its right perspective has rightly concluded that such an act on the part of the accused with her was consensual. He, therefore, has rightly been given the benefit of doubt and resultantly acquittal of the charge framed against him. 15. The remaining prosecution witnesses i.e. PW3 HC Kailash Chand the then MHC, Police Station, Sadar Chamba, C. Mehar Singh PW4, C. Rakesh Kumar PW5, LC Bimla Devi PW6, ASI Karan Singh PW9, ASI Dharam Pal PW10 and C. Madan Singh PW11 are formal and their testimony could have been used as link evidence had the prosecution been otherwise able to bring guilt home to the accused. Therefore, it is not desirable to discuss the evidence as has come on record by way of their respective testimony. 16. For all the reasons hereinabove, the appeal fails and the same is accordingly dismissed. Consequently, the impugned judgment is affirmed. The personal bond executed by the accused will stand cancelled and the surety discharged.