Himachal Pradesh High Court
State Of H.P vs Sunil Kumar on 30 November, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 803 of 2008.
Reserved on: November 20, 2015.
Decided on: November 21, 2015.
.
State of H.P. ......Appellant.
Versus
Sunil Kumar .......Respondent.
Coram
of
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? 1 Yes.
For the appellant: rt Mr. M.A.Khan, Addl. AG.
For the respondent: Ms. Kiran Lata Sharma, Advocate.
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Justice Rajiv Sharma, J.
This appeal has been instituted at the instance of the State against the judgment dated 9.9.2008, rendered by the learned Presiding Officer/ Addl. Sessions Judge (FTC), Hamirpur, H.P. in Sessions Trial No. 7 of 2008, whereby the respondent-accused (hereinafter referred to as the accused) who was charged with and tried for offence punishable under Sections 376 & 511 IPC, has been acquitted by the learned trial Court.
2. The case of the prosecution, in a nut shell, is that Sh. Deep Chand father of the prosecutrix and her brother came to the Police Station Sujanpur on 3.10.2007 to lodge the complaint. Deep Chand informed that he was working as Cook in the N.I.T., Hamirpur. He came from Hamirpur at about 6:30 AM to his village and his wife Anju 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 19:24:45 :::HCHP 2Devi told him that the prosecutrix aged about 8 years, complained of pain in her private part. In the meantime, the daughter of Rangila Ram, .
namely, Kiran Kumari alis Indu aged about 10 years came to his house and told that on 2.10.2007 at about 2:30 PM, after school the prosecutrix was coming home from the school and accused met her on the way. He lifted the prosecutrix and took her to the cowshed of Narain Singh. Upon this, the prosecutrix further disclosed that on 2.10.2007 of when she was coming back from the school, the accused lifted her and took her inside the cowshed. Thereafter the door of the cowshed was rt closed and the accused opened her 'Pyjami' and attempted to rape her.
However, no blood stains were noticed on the clothes of the prosecutrix.
On the basis of the statement, FIR Ext. PW-7/A was registered against the accused. The spot was inspected with the help of witnesses. The attendance certificate of the prosecutrix Ext. PW-10/B was obtained from Govt. Primary School, Bhater. During investigation, it was found that the occurrence in fact took place on 29.9.2007 at about 3:30 PM when the prosecutrix was coming from school to her house and the occurrence took place on the path below the cowshed on the grass when the accused was found to have attempted to rape the prosecutrix. The clothes of the prosecutrix were taken into possession. The same were sent to FSL, Junga. According to the FSL, report Ext. PW-12/C, human blood was found on exhibit (vaginal swab of the prosecutrix), but no semen was found on any exhibit. The investigation was completed and ::: Downloaded on - 15/04/2017 19:24:45 :::HCHP 3 challan was put up before the Court after completing all the codal formalities.
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3. The prosecution has examined as many as 16 witnesses to prove its case. The accused was also examined under Section 313 Cr.P.C to which he pleaded not guilty. According to him, he was falsely implicated. The learned Trial Court acquitted the accused on 9.9.2008.
Hence, the present appeal.
of
4. Mr. M.A.Khan, learned Addl. Advocate General, appearing for the State has vehemently argued that the prosecution has proved its rt case against the accused. On the other hand, Ms. Kiran Lata Sharma, Advocate, for the accused has supported the judgment of the learned trial Court dated 9.9.2008.
5. We have gone through the impugned judgment and records of the case carefully.
6. PW-1, Munshi Ram deposed that he was associated by the police during investigation. The prosecutrix identified the place of occurrence near the electric pole and cowshed of Narain Singh in his presence and in the presence of her parents. The mother of the prosecutrix Anju Devi handed over to the police shirt and payjami of the prosecutrix which were worn by her at the time of occurrence.
7. PW-2 Ashok Kumar issued the birth certificate of the prosecutrix vide Ext. PW-2/A. The date of birth of the prosecutrix was ::: Downloaded on - 15/04/2017 19:24:45 :::HCHP 4 31.3.2001. He also issued birth certificate of the accused vide Ext. PW-
2/B. .
8. PW-3 Narain Singh deposed that his cattle shed was situated on one side of the path which leads to Primary School, Bhater.
It generally remains locked and key remains with him. The lock of his cattle shed was never broken.
9. PW-4 is the prosecutrix (name withheld). She testified that of when the incident took place, she was studying in 3rd class. She did not know the date, month and year of the occurrence. On that day, the rt school was closed at about 3:30 PM. She was coming back from school.
On the way, Bikku (accused) met her. He took her to the cowshed and opened her salwar and he also opened his pant. Thereafter, the accused lied upon her. She felt pain in her private part. Thereafter, accused ran away from the spot. She went to her house. On the way, she also met Indu to whom she told about the incident. Her father resides at Hamirpur. There was holiday on the next day. Her father came home on the next day of the occurrence. Her father did not inquire anything about the occurrence. However, her mother inquired about the same.
She told her mother about what had happened with her. When she told her mother about the occurrence, Indu also came there. Thereafter, she was taken to Doctor to Hamirpur and police also came there. In her cross-examination, she deposed that accused shut the door of the cowshed. She went to school regularly for six days after the incident.
::: Downloaded on - 15/04/2017 19:24:45 :::HCHP 5When accused took her to the cowshed, she also cried. However, no one came to the spot from the adjoining houses. She told the police about .
taking her to the cowshed. Confronted with her statement Mark D-1, under Section 161 Cr.P.C. wherein it is not so recorded. She told her mother about the occurrence on her reaching home on the same day.
She was told by her mother to make statement before the Court.
10. PW-5 Munisha Kumari was also minor. She deposed that of on 29th, it was Saturday. She was studying in the 4th class. On that day, the school closed at about 3:30 PM. She was going home from the rt school. On the way, the cowshed of Sh. Narain Singh falls on the side of the path. She saw accused near the cowshed. The prosecutrix was also with her. Thereafter, she went towards her home. On the way, she also met Indu. Thereafter, she went home. Indu came to her house and told her that she was told by the prosecutrix that the accused lied on her.
Nothing else was told by the prosecutrix in her presence.
11. PW-6Kiran Kumari alias Indu is the most material witness.
She was student of 6th class. According to her, last year, she was studying 5th class in Bhater school. She knew the prosecutrix and PW-5 Munisha, who were studying with her in the same school. On 29th the school closed at 3:30 PM. Thereafter, she was coming home from the school. When she reached at place Faat, where cowshed of Narain Singh is situated, she saw the accused and prosecutrix. On seeing her, the accused put on his pant. Thereafter, she went towards her house and ::: Downloaded on - 15/04/2017 19:24:45 :::HCHP 6 did not stop on the way. She did not come across anybody on the way.
The prosecutrix did not tell her anything. She denied the suggestion .
that PW-5 Munisha met her. She also denied that the prosecutrix told her about the occurrence after about 10 to 15 minutes. She also denied that thereafter in the evening Munisha came to her house and told her that prosecutrix told her about the occurrence. She also denied that when the mother and father of the prosecutrix were inquiring from her, of she came to the house of the prosecutrix and told them about the occurrence.
12. rt PW-7 Deep Chand is the father of the prosecutrix. He deposed that on 3.10.2007, he went to his house along with his daughter and reached there at about 6:30 AM. On reaching there, his wife told him that the prosecutrix was complaining of pain in the abdomen and private part at night. They enquired from the prosecutrix but she did not tell about the incident. Thereafter, Indu came there and told him that on 29.9.2007, the accused committed rape on the prosecutrix in the cowshed. Thereafter, on enquiry by her mother, the prosecutrix also told that such act had been committed by the accused with her. He went to the Police Station and lodged the FIR Ext. PW-7/A. In his cross-examination, he deposed that in the FIR Ext. PW-7/A, the date of the incident mentioned as 2.10.2007, has been wrongly mentioned by the police, though it was 29.9.2007. He told the police the ::: Downloaded on - 15/04/2017 19:24:45 :::HCHP 7 date of the incident as 29.9.2007. The police read over the FIR to him and thereafter he put his signatures over the same.
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13. PW-8 Dr. P.K. Soni has conducted the radiological age verification of the prosecutrix. According to him, the radiological age of the prosecutrix was more than 6 years and less than 8 years. The opinion is Ext. PW-8/E.
14. PW-11 Anju Devi is the mother of the prosecutrix. She of deposed that on 29.9.2007, her daughter came from the school late. She asked her daughter as to why she was late on that day. She did not say rt anything. Her daughter was not feeling well. On 3rd day i.e. on Monday, her daughter went to school and she went to the fields for work. She came back in the evening. Her mother-in-law told her that the prosecutrix had come early from the school. On 2.10.2007 in the night when she was going to sleep, the prosecutrix complained of pain in her private part. She asked her daughter as to what had happened with her.
However, she did not tell her anything. Next day morning her husband came home. She told her husband that the prosecutrix was feeling some pain in her private part. Indu also came to their house. Indu told them that she was told by the prosecutrix that accused took her to cowshed where he opened her Salwar and also opened his Pant. Thereafter accused lied on her. Then, she also asked the prosecutrix about it. She confirmed the incident. Her husband went to the Police Station alongwith the prosecutrix. The clothes were handed over to the police.
::: Downloaded on - 15/04/2017 19:24:45 :::HCHP 8The police also visited the spot on 4th at 4:00 PM. She has not made the statement to the police that PW-6 Indu and prosecutrix told her that the .
occurrence took place outside the cowshed. Confronted with the statement Mark-A, wherein it is so recorded.
15. PW-12 Dr. Archna Soni has medically examined the prosecutrix. According to the alleged history, prosecutrix was sexually assaulted by Bikku on 2.10.2007 at 2:30 PM. She gave her final opinion of vide Ext. PW-12/D. According to her final opinion, no semen (spermatozoa) was found in the vaginal smears, however, the possibility rt of attempt to do sexual assault could not be ruled out.
16. PW-16 SI Anil Verma is the I.O in the case. He sent the prosecutrix to RH Hamirpur with LC Himani. He went to village Bhater and recorded the statements of Kiran Kumari alias Indu, Munisha Kumari and Narain Singh under Section 161 Cr.P.C. He obtained the birth certificate of the prosecutrix vide Ext. PW-2/A and PW-2/B, respectively. Shirt and Payjama were taken into possession. The accused was arrested on 4.10.2007. In his cross-examination, he deposed that he visited the spot and found the cowshed of Narain Singh locked. He also admitted that whatever was stated by Deep Chand was recorded in the FIR. The contents of the FIR were read over and explained to Deep Chand who admitted the contents of the same to be correct and thereafter put his signatures over the same.
::: Downloaded on - 15/04/2017 19:24:45 :::HCHP 917. According to the FIR Ext. PW-7/A, the incident has taken place on 2.10.2007. However, the case of the prosecution is that the .
incident has happened on 29.9.2007. The FIR was got registered by the father of the prosecutrix PW-7 Deep Chand. He has admitted categorically that the police has read over the contents of the FIR to him and thereafter, he has put his signatures. The statement of PW-7 Deep Chand that he had told the police that incident has taken place on of 29.9.2007, which was wrongly recorded as 2.10.2007, cannot be believed. PW-16 SI Anil Verma has also admitted in his cross-
rt examination that the FIR was written under his supervision. Whatever was stated by Deep Chand, father of the prosecutrix, was stated in the FIR. According to him, the contents of the FIR were read over and explained to Deep Chand who admitted the contents of the same to be correct and thereafter put his signatures.
18. Now, we will also advert to the statement of PW-12 Dr. Archana Soni. She has medically examined the prosecutrix. In the case history recorded by her, the date of assault has been mentioned as 2.10.2007 at 2:30 PM and not 29.9.2007. Thus, the statements of the prosecutrix PW-4, PW-6 Kiran Kumari alias Indu and PW-16 SI Anil Verma does not inspire confidence.
19. According to PW-4 prosecutrix, the incident has taken place inside the cowshed, however, as per PW-5 Munisha Kumari, she was told by the prosecutrix that the occurrence has taken place near the ::: Downloaded on - 15/04/2017 19:24:45 :::HCHP 10 electric pole and bushes. PW-6 Kiran Kumari alias Indu also has not deposed as to where the incident has taken place. According to PW-7 .
Deep Chand, the father of the prosecutrix, he was told by PW-6 Kiran Kumari alias Indu that the occurrence has taken place inside the cowshed, though PW-6 Kiran Kumari alias Indu has never stated so in her statement. Different versions have been given by the witnesses regarding the place of occurrence. According to some witnesses, the of incident has taken place inside the cowshed, however, according to others, as discussed hereinabove, the incident has taken place near the rt electric pole and bushes. The case of the prosecution is that PW-6 Kiran Kumari alias Indu has narrated the incident to the parents of the prosecutrix but PW-6 Kiran Kumari alias Indu has categorically denied that she has ever narrated the incident to them. It has also come in the statement of PW-3 Narain Singh that the cowshed used to remain locked.
20. According to the prosecution case, the prosecutrix told her mother about the occurrence on the same day. However, the mother stated that the prosecutrix told her about the incident after three days.
PW-4 prosecutrix has not mentioned date, month or year of the occurrence. According to her, it has happened on Wednesday, but other witness deposed that the incident has taken place on Saturday. There are inconsistencies in the statements of the witnesses. The prosecutrix has also admitted in her cross-examination that she has made the ::: Downloaded on - 15/04/2017 19:24:45 :::HCHP 11 statement in the Court at the behest of her mother. Even if hypothetically it is assumed that the incident has taken place on .
29.9.2007 and not on 2.10.2007, then also there is delay of 4 days in lodging the FIR. No explanation, whatsoever, has been put forth as to why the FIR was not lodged promptly.
21. PW-12 Dr. Archana Soni, in her cross-examination, has also admitted that she has given the date of incident as 2.10.2007 for the of alleged history on MLC Ext. PW-12/B, as per the police papers Ext. PW-
12/A. She denied the suggestion that since the human blood was found rt in the swab of the prosecutrix, slight penetration has taken place. In her further cross-examination, she has admitted that she has given the opinion on the basis of the possibilities and she could not say definitely whether any rape has been committed by way of penetration or not.
Thus, the prosecution has failed to prove the case against the accused.
There is no occasion for this Court to interfere with the well reasoned judgment of the learned trial Court dated 9.9.2008.
22. Accordingly, there is no merit in this appeal and the same is dismissed.
( Rajiv Sharma ), Judge.
November 21, 2015, ( Sureshwar Thakur ),
(karan) Judge.
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