Himachal Pradesh High Court
State Of Himachal Pradesh vs Raj Kumar on 4 July, 2016
Bench: Rajiv Sharma, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 4099/2013
Reserved on: July 1, 2016
Decided on: July 4, 2016
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State of Himachal Pradesh ...... Appellant
Versus
Raj Kumar ........Respondent
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Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge
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Hon'ble Mr. Justice Vivek Singh Thakur, Judge
Whether approved for reporting? 1 yes.
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For the appellant : Mr. P.M. Negi, Deputy Advocate
rt General.
For the Respondent : Mr. Harish Sharma, Advocate.
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Per Rajiv Sharma, Judge:
The present appeal has been filed by the State against Judgment dated 22.3.2013 rendered by the learned Additional Sessions Judge, Mandi, District Mandi, HP, in Sessions Trial No. 12 of 2009, whereby respondent-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offences under Sections 363, 366 and 376 IPC, has been acquitted.
2. Case of the prosecution, in a nutshell, is that on 8.8.2009, Ghinder Singh reported the matter to the police on the basis of which an FIR No. 224/2009 was registered for offences 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:45:12 :::HCHP 2under Sections 363, 366 and 376 IPC against accused on the allegations that his daughter (prosecutrix) aged 17 years, on 5.8.2009, at about 6.30 AM had gone to Sundernagar from home .
but has not returned to the home in the evening. He searched for his daughter at all possible places but she was not found. He suspected that she had been taken away by the accused with him forcibly for the purpose of marriage. Prosecutrix was of recovered during the investigation from Tanda alongwith accused. Her medical examination was conducted. Her clothes, vaginal slides etc. were sent for chemical examination. Opinion of rt the Medical Officer was obtained. Accused was arrested. His medical examination was got conducted. Statements of the witnesses were recorded. Birth certificate of the prosecutrix was also obtained alongwith copy of parivar register. During investigation, it has come on record that on 5.8.2009, accused forcibly took away the prosecutrix with him to Chandigarh with the promise to marry and had sexual intercourse with her against her wishes. Investigation was completed. Challan was put in the Court after completing all the codal formalities.
3. Prosecution has examined as many as eleven witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He pleaded innocence. Trial Court acquitted the accused as noticed above. Hence, this appeal.
::: Downloaded on - 15/04/2017 20:45:12 :::HCHP 34. Mr. P.M. Negi, Deputy Advocate General has vehemently argued that the prosecution has proved its case against the accused person.
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5. Mr. Harish Sharma, Advocate, has supported the judgment dated 22.3.2013.
6. We have heard the learned counsel for the parties and also gone through the judgment and record carefully.
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7. Ghinder (PW-1) testified that he was a vegetable vendor. Prosecutrix was his daughter. She was found missing from the home on 5.8.2009 in the morning time. He searched for rt her on 5.8.2009 till evening time. After two days, he came to know that his daughter had been taken away by the accused to Punjab. On 8.8.2009, he got FIR lodged with PS Sundernagar vide Ext. PW-1/A. Prosecutrix told him that she was forcibly taken away by the accused.
8. Prosecutrix (name withheld) deposed that the accused was working at Chai Ka Dora since one year and was known to her. He used to ask her to marry him. She refused to him and told that without the consent of her parents she would not marry him. Accused insisted her to marry him. On 5.8.2009, she was away from her home to Sundernagar where accused met her and asked to marry him. He had come to take her. She again refused for marriage without the consent of her parents. He forcibly made her to sit in the bus and took her to Chandigarh. At ::: Downloaded on - 15/04/2017 20:45:13 :::HCHP 4 Chandigarh, accused took her to the house of his sister who was married. They stayed there for one day. On next day, accused took her to the house of his another sister at Tanda (Punjab).
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Accused committed sexual intercourse with her forcibly and without her consent despite her refusing not to perform sexual intercourse before marriage. They were alone in the room. Police took them from Tanda to Police Station, Sundernagar. Her of medical examination was got done. Her clothes were taken into possession. In her cross-examination, she admitted that on 5.8.2009 she went to Sundernagar of her own. She admitted that rt so many people were present at Sundernagar Bus Stand. She did not raise any alarm. There were a number of passengers in the bus. Bus stopped on the way. She did not raise any alarm there.
At Chandigarh also, many persons were present including police officials. She has also not raised any alarm there. She has not tried to escape.
9. Ramesh Kumar (PW-3) testified that the prosecutrix was his sister-in-law. She was taken by the accused to Punjab.
Prosecutrix told him that she was forcibly taken away by the accused to Punjab. Nothing more was told to him by the prosecutrix. He was declared hostile and cross-examined by the learned Public Prosecutor. He denied the suggestion that the prosecutrix told him that the accused used to work at Chai Ka Dora in the house of Lal Singh and asked her to marry him. He ::: Downloaded on - 15/04/2017 20:45:13 :::HCHP 5 also denied the suggestion that the clothes were taken into possession in his presence. He has signed Ext. PW-2/A. He also denied portions marked 'B' to 'B' and 'C' to 'C' of his statement .
mark 'Z'.
10. Leela Devi (PW-4) testified that the prosecutrix was her daughter. She did not come back home in the evening. They tried to search for her. She was not found. Later on she was of traced in Punjab. She suspected that her daughter was taken away by Naresh and Bittu but she was taken away by the accused to marry her. Accused was not known to her. She was rt declared hostile and cross-examined by the learned Public Prosecutor.
11. Ramesh Kumar (PW-5) deposed that he prepared date of birth certificate Ext. PW-5/A of the prosecutrix as was demanded by the police. In his cross-examination, he has admitted that there was no certificate about the pagination of the register. It was not mentioned in the register on what basis date of birth was entered.
12. Hans Raj (PW-6) deposed that he was working as a Secretary, Gram Panchayat, Tihri. He prepared the birth certificate of the prosecutrix Ext. PW-6/A. Date of birth of the prosecutrix was 4.6.1993. In his cross-examination, he has admitted that the date of birth register is stitched with thread and is not properly bound. He admitted that there was no ::: Downloaded on - 15/04/2017 20:45:13 :::HCHP 6 certificate on the register about number of pages. Entry was made as per order of SDM and as informed by the father of the prosecutrix. Order of the SDM was on record.
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13. Dr. Hemender Mahajan (PW-9) examined the accused. He issued MLC Ext. PW-9/B.
14. Dr. Anupma Sharma (PW-10) examined the prosecutrix. She issued MLC Ext. PW-10/A. of
15. ASI Surender Kumar (PW-11) deposed that he recorded the statement of the prosecutrix. She was medically examined. Accused was also medically examined. Site map was rt prepared. Case property was taken into possession. In his cross-
examination, he has admitted that the call details of the prosecutrix were not obtained because she told that she was not having any mobile phone.
16. Prosecutrix has deposed that she had gone to Sundernagar. Accused met her. He insisted to marry her. She told him that she would not marry him without the consent of her parents. Accused took her to Chandigarh and thereafter from Chandigarh to Tanda. Prosecutrix has admitted, in her cross-
examination, that many people were present at Sundernagar Bus Stand. She has not raised any alarm. She has not raised any alarm at Chandigarh Bus stand and also when she travelled from Chandigarh to Tanda. It has come in the statement of the father of prosecutrix, PW-1 that Tanda was thickly populated. People ::: Downloaded on - 15/04/2017 20:45:13 :::HCHP 7 were present there. Date of birth of the prosecutrix has been shown to be 4.6.1993 in Ext. PW-5/A and Ext. PW-6/A. According to MLC Ext. PW-10/A, as per ossification test, age of .
the prosecutrix was more than seventeen years. PW-5 Ramesh Kumar and PW-6 Hans Raj, have not deposed that on what basis, the date of birth of the prosecutrix was entered. Learned trial Court has rightly come to the conclusion that the age of the of prosecutrix was 18-19 years at the time of alleged occurrence.
17. Surprisingly, the mother of the prosecutrix, Leela Devi (PW-4) and her brother Ramesh Kumar (PW-3) were declared rt hostile. It is apparent that the accused was known to the prosecutrix. They had intimate relations with each other. It is not the case of the prosecution that the accused has made the prosecutrix to sit in the bus from Sundernagar to Chandigarh and then from Chandigarh to Tanda, forcibly. She had numerous opportunities to raise alarm while going from Sundernagar to Chandigarh and then from Chandigarh to Tanda. She has not tried to escape. According to the opinion given by PW-10 Dr. Anupma Sharma, no injury was seen on labia majora, labia minora, thighs and there was no tenderness or injury in the vagina and cervix though hymen was ruptured. Duration of last sexual intercourse act could not be ascertained. There was no external injury on vagina including internal genitalia. In case, there was forcible sexual intercourse, there should have been ::: Downloaded on - 15/04/2017 20:45:13 :::HCHP 8 some injury on the person of prosecutrix, external or internal.
However, fact of the matter is that no injuries were found.
Prosecutrix could also make complaint to the sister of the .
prosecutrix at Chandigarh or at Tanda but she has chosen not to do so.
18. Thus, the prosecution has failed to prove its case against the accused under charged sections.
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19. Accordingly, we find no occasion to interfere with the well reasoned judgment passed by the learned trial Court. The appeal is dismissed. All pending applications, are also disposed rt of. Bail bonds of the accused are discharged.
(Rajiv Sharma) Judge (Vivek Singh Thakur) Judge July 4, 2016 (vikrant) ::: Downloaded on - 15/04/2017 20:45:13 :::HCHP