Himachal Pradesh High Court
Sumit Kumar vs State Of Himachal Pradesh on 5 June, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 96/2014
Reserved on: 1.6.2015
Decided on: 5.6.2015
.
_____________________________________________________________
Sumit Kumar ...... Appellant
Versus
State of Himachal Pradesh ........Respondent
_____________________________________________________________
CoRam:
Hon'ble Mr. Justice Rajiv Sharma, Judge
Whether approved for reporting? 1Yes.
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For the appellant : Ms. Archna Dutt, Advocate.
For the respondent
r :
Mr. Parmod Thakur, Additional
Advocate General.
_____________________________________________________________
Rajiv Sharma, Judge:
This appeal is instituted against Judgment dated 30.8.2013 rendered by learned Sessions Judge, Bilaspur, District Bilaspur, Himachal Pradesh in Sessions Trial No. 9 of 2012, whereby appellant-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offences under Sections 363, 366 and 376 of the Indian Penal Code and Section 3 (2)(v) of the Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989, was convicted and sentenced under Section 376 of the Indian Penal Code to undergo rigorous imprisonment for a period of seven 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 18:21:06 :::HCHP 2 years and to pay a fine of `10,000, and, in default of payment of fine, to further undergo simple imprisonment for one year.
He was acquitted for offences under Sections 363 and 366 of .
the Indian Penal Code and Section 3 (2)(v) of the Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act.
2. Case of the prosecution, in a nutshell, is that prosecutrix was studying in 10+1 in Government Senior Secondary School Geharwin. On 17.5.2012, prosecutrix went to attend school as usual at 8.00 am. When she did not return back in the evening, her mother Smt. Satya Devi (PW-2) started searching for her. However, she was unable to find the whereabouts of her daughter. Complaint Ext. PW-2/A was lodged with the police. PW-2 continued to search for the prosecutrix at her own level. On 23.5.2012 she came to know that accused was also missing since 17.5.2012. Therefore, she suspected that her daughter might have been kidnapped by him. Thus, complaint was made to the police vide application Ext. PW-2/B. FIR Ext. PW-17/A was registered against the accused. Information was received on 3.6.2012 that both of them were residing at village Handa Kundi at Nalagarh. Police party and parents of the prosecutrix went to the said place.
Prosecutrix was recovered. PW-2 Satya Devi identified her daughter. Site plan was prepared. Accused and prosecutrix ::: Downloaded on - 15/04/2017 18:21:06 :::HCHP 3 were brought to Bilaspur. Since no lady doctor was found in Hospital at Bilaspur, prosecutrix was taken to District Hospital at Mandi. She was examined by PW-1. Accused was also .
examined. Samples were sent for analysis to Forensic Laboratory Central Range, Mandi. Report is Ext. PW-1/C. Case was investigated. Challan was put up in the Court after completing all codal formalities. Accused was convicted as noticed above. Hence, this appeal.
3. Ms. Archna Dutt, Advocate has vehemently argued that the prosecution has failed to prove its case against the accused.
4. Mr. Parmod Thakur, Additional Advocate General, has supported the judgment of conviction dated 30.8.2013.
5. I have heard the learned counsel for the parties and also gone through the record carefully.
6. PW-1 Dr. Anuradha Sharma has examined the prosecutrix. She did not find injuries on other parts of body indicating struggle. Labia Majora and Labia Minora were well developed. However, no injury was observed. Hymen was torn at 3', 5' and 8' clock positions. Edges were not swollen. But there was slight bleeding on touch. She issued MLC Ext. PW-
1/B. According to her final opinion, person examined was exposed to sexual intercourse. She issued final opinion vide ::: Downloaded on - 15/04/2017 18:21:06 :::HCHP 4 Ext. PW-1/D. In her cross-examination, she stated that since no radiological examination of the prosecutrix was sought by the police, as such prosecutrix was not sent for radiological .
examination.
7. PW-2 Satya Devi is the mother of the prosecutrix.
She testified that prosecutrix was studying in 10+1 at Government Senior Secondary School Geharwin. Her husband was serving in CRPF in J & K. On 17.5.2012, prosecutrix aged 15 years, had gone to the school and did not come back. She searched for her in the houses of her relations. She also made a missing report, Ext. PW-2/A. She came to know that accused was also missing from the same date, thus, she suspected that accused might have kidnapped her minor daughter. Thereafter, she went to the police station. Police also made search for her daughter at various places. She went to Nalagarh and visited the village Bagwania. In the house of Teja Ram, accused alongwith prosecutrix was found in a room.
Thereafter, they came back to Bilaspur. Prosecutrix was medically examined.
8. PW-3 is the prosecutrix. She was a student of 10+1 in Government Senior Secondary School Geharwin. She knew the accused. She identified him in the Court. They were having friendship with each other since November, 2011 and ::: Downloaded on - 15/04/2017 18:21:06 :::HCHP 5 thereafter they used to talk to each other over the telephone.
Accused used to come to meet her outside the school. Accused stated that he was working in some agency at Nalagarh and .
told that he wanted to marry her. She did not want to marry him. On 17.5.2012, she was going to school. Accused met her at Geharwin. He allured her and made to sit in a bus and told that bus was going to village Bhager. On his allurement, she accompanied him in the bus and came to Bhager. At Bhager, uniform r to accused made her to sit in the bus, which was bound for Bilaspur. They came to Bilaspur. Thereafter she changed her in a public toilet at Bus Stand Bilaspur. She went with the accused to Nalagarh. Accused took her to village Bagwania in a room. Accused committed sexual intercourse with her 5-6 times without her consent. She asked the accused to marry her but he refused to marry her and told that he would leave her back home but she could not come to village all alone. On 3.6.2012, her parents came to village Bagwania. In her cross-examination, she admitted that she came alongwith accused many times on foot from school to house. She has also admitted that during these walks, they used to talk about love and their future lives. She admitted that she wanted to marry the accused but with the consent of her parents. She has not made any attempt to run away from ::: Downloaded on - 15/04/2017 18:21:06 :::HCHP 6 the company of the accused at any point of time. She also admitted that they used to talk to each other mostly during night hours over the telephone.
.
9. PW-4 Dr. Ambudhar Sharma has examined the accused and issued MLC vide Ext. PW-4/B.
10. PW-5 Sita Ram testified that he was posted in CRPF for the last three years. He had three children out of whom, prosecutrix was the eldest one and completed 15 years of age. Satya Devi informed him on 22.5.2012 that prosecutrix had gone missing on 17.5.2012 and did not return home. She asked him to proceed on leave. He reached home on 28.5.2012. They went to Shri Teja Ram, owner of the building, who disclosed that one person Sumit was also his tenant. In his cross-examination, he has admitted that he has got recorded entry regarding date of birth of his daughter at Behna Jattan Panchayat. He admitted that date of birth of his daughter Pooja Devi was not mentioned. He also admitted that copy of Parivar Register, in which details of his family have been recorded is not correct. According to him, he got prosecutrix admitted to school at the age of six years.
11. PW-6 Sanjiv Kumar is a formal witness.
12. PW-7 Raj Kumar deposed that he being Pradhan of Gram Panchayat Behna Jattan went alongwith uncle of the ::: Downloaded on - 15/04/2017 18:21:06 :::HCHP 7 prosecutrix and police officials to the house of accused in village Geharwin. However, he was not present. On the same day, he alongwith parents and uncle of the prosecutrix and .
police officials went towards Nalagarh in search of the prosecutrix. He was declared hostile and cross-examined by the learned Public Prosecutor.
13. PW-8 Teja Ram deposed that he had a two storeyed building at Handa Kundi village comprising of 24 rooms.
Accused approached him on 17.5.2012 for a room on rent basis. He rented out one room on the ground floor of the building to him. He rented out it for `1600 per month. He was called from his house by the police on 4.6.2012. Prosecutrix and accused were recovered from the room by the police in his presence.
14. PW-9 Ramesh Kumar and PW-10 Dev Raj, are formal in nature.
15. PW-11 Om Parkash deposed that he prepared the date of birth certificate of the prosecutrix vide Ext. PW-11/A. Date of birth was recorded as 13.4.1997. He handed over the extract of the Parivar Register on an application Ext. PW-11/B moved by the police. The abstract of the same is Ext. PW-
11/C. In his cross-examination, he has admitted that entries in the record in the Parivar Register were not in his hand. As ::: Downloaded on - 15/04/2017 18:21:06 :::HCHP 8 per birth register entry at Sr. No. 26, was made at the instance of Mahanta on 26.4.1997. He also admitted that original record of Behna Jattan was lying with parental .
Panchayat namely Badol Panchayat.
16. PW-12 Sushil Kumar is a formal witness.
17. PW-13 Prem Lal deposed that at the request of police vide Ext. PW13/A, he prepared copy of Parivar register of Sumit Kumar son of Piar Singh and handed over to the Police. Copy is Ext. PW-13/B. He admitted in his cross-
examination that at Sr. No. 5 of the register, in the family of Piar Singh name of accused was written in a different ink.
18. PW-14, Bharat Bhushan, PW-15 Nirmla Devi and PW-16 Jiwan Singh are formal witnesses.
19. PW-17 Raj Kumar deposed that on 23.5.2012 FIR Ext. PW-17/A was registered by him on the basis of Ext. PW-
2/B (complaint). On 29.5.2012, he recorded the statement of the parents of the prosecutrix. On 3.6.2012, the police came to know that accused was residing in a rented house at village Handa Kundi in Nalagarh area. They went to the building owned by Teja Ram. Girl and the accused were recovered. Girl was identified by her mother. They came back to Bilaspur on 4.6.2012. Prosecutrix was medically examined.
20. PW-18 Manohar Lal is a formal witness.
::: Downloaded on - 15/04/2017 18:21:06 :::HCHP 921. PW-19 Bhagmal deposed that he recorded the statement of prosecutrix and obtained copies of Parivar Register of the family of the victim from the Panchayat .
Secretary at Jangla and Behna Jattan Panchayats vide Ext.
PW-11/C and PW-13/B.
22. Case of the prosecution, precisely, is that the prosecutrix was a student of 10+1 in Government Senior Secondary School Geharwin. She was allured by the accused r to on 17.5.2012. She was firstly taken to village Bhager and from Bhager to Bilaspur and then from Bilaspur to Accused has hired accommodation from PW-8 Teja Ram.
Nalagarh.
Missing report was filed. Thereafter a regular FIR was registered. Police alongwith parents of the prosecutrix went to village Bagwania. Girl was recovered and was brought back to Bilaspur. Since no female doctor was available at Bilaspur, the prosecutrix was medically examined by PW-1 Dr. Anuradha Sharma.
23. According to PW-11, Om Parkash, in the family register of Panchayat, entry of date of birth at Sr. No. 26 was made at the instance of Mahanta on 26.4.1997. However, PW-
2 Satya Devi deposed that entry was made at the instance of PW-5. Learned trial Court has taken into consideration the statement of PW-2 Satya Devi, PW-3 (prosecutrix) and PW-11 ::: Downloaded on - 15/04/2017 18:21:06 :::HCHP 10 Om Parkash and has come to a right conclusion that there was suspicion about the authenticity of Panchayat record.
There is no evidence on record to prove that the entry in the .
family register was made on the basis of birth register issued by the Hospital where the prosecutrix was born. Age of the Prosecutrix was not got determined from the radiologist in order to corroborate the entry made in the Parivar Register.
The conclusive findings of the trial Court are that the prosecutrix was not below the age of 18 years. This Court agrees with the findings recorded by the trial Court qua the age of the prosecutrix.
24. According to PW-1, no injury was observed on other parts of body indicating struggle. She has given opinion that the prosecutrix was exposed to sexual intercourse.
25. PW-2 Satya Devi has testified that on 17.5.2012, her daughter did not come back from school. Missing report was lodged vide Ext. PW-2/A on 19.5.2012. Thereafter, she submitted an application to the Police vide Ext. PW-2/B. However, surprisingly, PW-2 Satya Devi has called her husband PW-5, Sita Ram, only on 22.5.2012. This conduct on the part of the mother of prosecutrix is unusual. She should have immediately informed her husband PW-5 Sita Ram that ::: Downloaded on - 15/04/2017 18:21:06 :::HCHP 11 the girl had gone missing on 17.5.2012. PW-5 has come to his home only on 28.5.2012.
26. Statement of PW-3, prosecutrix is most important.
.
According to her prosecutrix and accused had friendship with each other since November, 2011. Accused used to come to meet her outside school at Geharwin. He allured her and made her to sit in a bus and told her that the bus was going to Bhager. She accompanied him and came to Bhager and thereafter accused made her to sit in a bus which was bound for Bilaspur. She came to Bilaspur and she changed her school uniform in a public toilet at Bus Stand Bilaspur.
Thereafter she went to Nalagarh. She has not raised any alarm when she was taken from Geharwin to Bhager and then to Bilaspur. She has, in fact, changed her school uniform in a public toilet at Bus Stand Bilaspur. She could raise alarm at Bilaspur. Thereafter, she has voluntarily gone in the bus to Nalagarh. She was staying in the house owned by Teja Ram.
Teja Ram has deposed in his statement that he had 24 rooms.
He has rented out one room to accused. She has not raised any alarm while staying with the accused in the building owned by PW-8 Teja Ram. She has admitted in her cross-
examination that she has not made any attempt to run away.
If she had been allured by the accused and subjected to ::: Downloaded on - 15/04/2017 18:21:06 :::HCHP 12 intercourse by the accused, she should have apprised the co-
tenants residing in the same building owned by PW-8 Teja Ram. She has admitted that she used to talk with the accused .
over the telephone. Rather she has admitted that they used to talk on the telephone mostly during the night hours. She has also admitted that she wanted to marry the accused but with the consent of her parents. She used to prepare meals and sometime the accused used to prepare the same. She was a
27.
r to student of plus one when she went with the accused on 17.5.2012 till 4.6.2012.
What emerges from the record, is that prosecutrix has voluntarily/willingly gone with the accused from Geharwin to Nalagarh. She stayed with him from 17.5.2012 to 4.6.2012.
There is no material on record to come to the conclusion that she was allured to come to Nalagarh from Geharwin under the pretext of accused marrying her. Rather the Court has noticed that prosecutrix also wanted to marry the accused but with the consent of her parents. They knew each other very intimately.
28. Thus, in these circumstances, it can not be said that the accused has raped the prosecutrix. It was a consensual act. Learned trial Court has come to a wrong ::: Downloaded on - 15/04/2017 18:21:06 :::HCHP 13 conclusion that accused has allured and mis-represented to the prosecutrix by assuring her to marry her.
29. Accordingly, the present appeal is allowed.
.
Judgment of conviction passed by learned Sessions Judge, Bilaspur in Sessions Trial No. 9 of 2012 on 30.8.2013 is set aside. Accused is acquitted of the offence under Section 376 of the Indian Penal Code. The accused is ordered to be released forthwith, if not wanted by the police in any other case. Fine amount, if any deposited by the accused, be also refunded to him. Registry is directed to prepare the release warrant of the accused and send the same to the concerned Superintendent of Jail immediately.
(Rajiv Sharma) Judge June 5, 2015 (vikrant) ::: Downloaded on - 15/04/2017 18:21:06 :::HCHP