Himachal Pradesh High Court
Smt. Roma Sharma vs Sameer Beg And Another on 13 April, 2017
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.: 237 of 2015.
Reserved On : 28.03.2017.
.
Decided on: 13.04.2017.
Smt. Roma Sharma ....Appellant.
Versus
Sameer Beg and another ... Respondents.
Coram
The Hon'ble Mr. Justice Sanjay Karol, Judge.
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 Yes For the appellant : Mr. P.S. Chandel, Advocate.
For the respondents : None for respondent No. 1.
Mr. Punit Rajta, Dy. Advocate General for respondent No. 2.
Ajay Mohan Goel, Judge By way of this appeal, complainant has challenged the judgment passed by the Court of learned Sessions Judge, Bilaspur, in Sessions Trial No. 7 of 2012, dated 05.04.2013, vide which, learned Trial Court acquitted the present respondent No. 1 (hereinafter referred to as 'accused') for commission of offence punishable under Section 376 of Indian Penal Code (in short 'IPC').
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 18/04/2017 00:09:56 :::HCHP 22. The case of the prosecution in brief was that on 07.06.2012, complainant Smt. Roma Sharma (PW1), who is .
the mother of the prosecutrix (name withheld), lodged a complaint in Police Station Sadar, Bilaspur Ext. PW1/A to the effect that on 05.06.2012, her elder daughter (prosecutrix), who was a student of class (X) in Government Senior Secondary School, Bilaspur left their house at 9:30 a.m. on the pretext that her result was to be declared on internet and when she (prosecutrix) returned home at around 1:30 p.m., PW1 asked her as to why she had come so late, but the prosecutrix did not answer anything and went straightway in her room. Further as per prosecution, on 07.06.2012, prosecutrix told PW1 her that she had friendship with one Sameer Beg, who had taken her to Dholra Hotel on 05.06.2012 during day time and had raped her.
3. On the basis of said complaint, FIR Ext. PW10/A was registered against the accused. In the course of investigation, prosecutrix was got medically examined, accused was arrested and he was also medically examined.
Father of the prosecutrix produced photocopy of middle standard examination of the prosecutrix Ext. PW12/A which was taken into possession vide memo Ext. PW4/A. ::: Downloaded on - 18/04/2017 00:09:56 :::HCHP 3 Prosecutrix lead the police to Dholra Hotel and she identified the room where accused raped her. Investigating Officer .
prepared site plan of the same. Further as per prosecution, during his custody accused made a statement Ext. PW5/A, on the basis of which he got identified the place where he had taken the prosecutrix on 05.06.2012. Birth certificate of the prosecutrix Ext. PW7/A was also obtained alongwith a copy of parivar register Ext. PW7/B. Report of SFSL alongwith opinion of the Doctor was also obtained.
4. After the completion of the investigation, challan was filed in the Court and as a prima-facie case was found against the accused, he was charged for commission of offence punishable under Sections 376 of IPC, to which he pleaded not guilty and claimed trial.
5. Learned trial Court on the basis of evidence produced before it by the prosecution acquitted the accused by giving him benefit of doubt. While arriving at the said conclusion it was held by learned trial Court that prosecution had failed to prove its case against the accused beyond reasonable doubt. It was held by learned trial Court that the material witness of the prosecution i.e. the prosecutrix had turned hostile and had not supported the case of the ::: Downloaded on - 18/04/2017 00:09:56 :::HCHP 4 prosecution. Learned trial Court took note of the fact that it is not as if the evidence of the hostile witness is liable to be .
rejected in totality and part of the statement which favours the prosecution can be relied upon. However, it went on to hold that a scrutiny of statement of the prosecutrix demonstrated that she had not supported the case of the prosecution and nothing favourable could be extracted by the prosecution during her lengthy cross examination. Learned trial Courtr held that in her examination-in-chief, the prosecutrix had categorically deposed that accused had not met her on 05.06.2012 at Champa Park and had not done anything wrong with her. Learned trial Court held that prosecutrix had categorically denied that accused had forcibly raped her and she also denied that she had narrated any such incident to her mother and that Doctor had taken her consent before taking her signatures on the MLC. Learned trial Court held that rather the prosecutrix had stated that she was having friendship with the accused for the last two and half years and both of them used to talk with each other on telephone quite often. Learned trial Court thus held that in view of the categorical stand taken by the prosecutrix that accused never committed rape with her on 05.06.2012, it ::: Downloaded on - 18/04/2017 00:09:56 :::HCHP 5 could not be said that accused had physically molested/raped the prosecutrix on 05.06.2012. Learned trial Court also took .
note of the fact that PW3, owner of the Dholra Guest House had also not supported the case of the prosecution. It further held that even the testimony of complainant PW1 i.e. the mother of the prosecutrix did not inspire confidence and moreover the statement of PW1 (mother of the prosecutrix) as well as of PW4 i.e. father of the prosecutrix were based on hear say evidence and as such, same was not admissible in law. On these bases, learned trial Court held that from the perusal of entire material placed on record by the prosecution it could not be said that accused Sameer Beg had committed rape on prosecutrix on 05.06.2012 and by giving the benefit of doubt it acquitted the accused.
6. Feeling aggrieved by the judgment so passed by learned trial Court, the complainant has filed this appeal.
7. We have heard the learned counsel for the complainant as well as learned Deputy Advocate General appearing for respondent No. 2. We have also gone through the records of the case as well as the judgment passed by learned trial Court.
::: Downloaded on - 18/04/2017 00:09:56 :::HCHP 68. Before proceeding further, it is relevant to mention that against the judgment of acquittal so passed by the .
learned trial Court in favour of accused, no appeal has been preferred by the State.
9. In order to appreciate as to whether the findings of acquittal returned in favour of accused by learned trial Court are based on evidence adduced on record or are perverse, we have minutely gone through the records of the case.
10. Learned trial Court has primarily returned the finding of acquittal in favour of accused by holding that prosecutrix had not supported the case of the prosecution and she had denied that she was raped by the accused on 05.06.2012 as was the case against the accused put forth by the prosecution. A perusal of the statement of the prosecutrix, who entered the witness box as PW2, demonstrates that she stated on oath that she knew the accused since August, 2010 and that accused used to drive Van of Radhey Govind School, Bilaspur and used to collect children from village Chandpur and adjoining areas and said Van used to pass through the house of the prosecutrix. Prosecutrix further deposed on oath that she used to take lift in the aforesaid Van at times for coming to School and accused used to drop her at her school.
::: Downloaded on - 18/04/2017 00:09:56 :::HCHP 7She further stated that they used to talk with each other on mobile phone. She further deposed that on 05.06.2012, her .
father had left her at school as her result was to be declared on the internet. She further deposed that she left her house at 9:30 a.m. for going to Bilaspur and alighted from bus at Champa Park and enquired about the result from a nearby shop and came to know that her result was not declared. She further deposed that thereafter she went to Laxmi Narayan Mandir and from there she went to Gurdwara market where she purchased some articles and thereafter she came back to her house and reached there at 1:30 p.m. She further deposed that on reaching her house, her mother enquired her about the result and she told that her result was not declared as yet. She further deposed that except this, she had not disclosed anything else to her mother. She further deposed that she had not met the accused at Champa Park on 05.06.2012 and accused had not done anything wrong with her. As she was declared hostile, she was subjected to lengthy cross examination by learned Public Prosecutor. In her cross examination, she denied that during the course of investigation any statement of her was recorded by the police.
She also denied that on the fateful day when she reached ::: Downloaded on - 18/04/2017 00:09:56 :::HCHP 8 home, she straightway went to her room and locked herself and at about 4:00 p.m. "Mama" of her mother came to their .
house and asked her to open the door and only thereafter she opened the door. Though in her cross examination she did not deny that fact that she accompanied her parents to the police station for the purpose of lodging FIR and that she was subjected to medical examination but she stated that she was forcibly taken to police station by her father and was also forced to undergo medical examination. She denied that her medical examination was conducted by Doctor with her consent. In her cross examination by learned defence counsel, she admitted that on 05.06.2012 accused never met her nor he committed rape on her. She also stated that her date of birth was 11.11.1996 and in the school records it was wrongly recorded as 11.03.1997. She also stated that her parents had planted a false case against the accused in connivance with the police.
11. Now in this background, when we examine statements of complainant PW1 Smt. Roma Sharma and PW4 Shri Krishan Kumar, mother and father of the prosecutrix respectively, we find that their testimonies do not inspire confidence. As per PW1, on 05.06.2012, at around 9:30 a.m. ::: Downloaded on - 18/04/2017 00:09:56 :::HCHP 9 prosecutrix had left home for Bilaspur on the pretext that her result was to be declared on the internet and when she came .
back home at 1:30 p.m. she was perplexed and under fear and when she asked the reason of her coming late, the prosecutrix without disclosing anything to her straightway went to her room and bolted the door from inside and did not open the door for about 6-7 hours despite her repeated requests. This witness thereafter deposed that she called her "Mama" Shri Mast Ram telephonically and on his pursuation, the prosecutrix opened the door. This witness further deposed that prosecutrix did not disclose anything to her on that day and it was on 07.06.2012 that prosecutrix disclosed to her that she was having friendship with accused and on 05.06.2012 accused had met her at Champa Park and took her to a Hotel at Dholra where after taking lunch accused took her in a room of the hotel and committed rape with her (prosecutrix). This witness thereafter deposed that she narrated the entire incident to her husband and she alongwith her husband and prosecutrix went to police station Sadar, Bilaspur and filed the complaint. In her cross examination, she stated that her husband had reached their house at 3:30 p.m. on 05.06.2012 and requested the ::: Downloaded on - 18/04/2017 00:09:56 :::HCHP 10 prosecutrix to open the door but she did not open the door even at his request. She further deposed in her cross .
examination that she had disclosed to the police that prosecutrix had told her that accused met her at Champa Park and took her to Dhaulra Hotel in an Auto Three Wheeler for lunch and after taking lunch accused took prosecutrix in a room of said Hotel, but she was confronted with complaint Ext. PW1/A wherein it was not so recorded. She also stated in her cross examination that result of the prosecutrix was declared on 06.06.2012 and they came to know about result on 07.06.2012 in which prosecutrix had failed. She denied the suggestion that as a result of the prosecutrix failing in the examination they got infuriated and had lodged a false complaint against the accused. She further stated that FIR was not signed by her and it was her husband who lodged the FIR.
12. PW4 Shri Krishan Kumar, father of the prosecutrix, deposed that on 05.06.2012 when he reached their house at 3:30 p.m., his wife told him that prosecutrix had returned home at 1:30 p.m. and had bolted herself in a room and was not opening the same. This witness further deposed that thereafter his wife rang her "Mama" Shri Mast ::: Downloaded on - 18/04/2017 00:09:56 :::HCHP 11 Ram and informed him that prosecutrix had bolted the room from inside and was not opening the door despite repeated .
requests, pursuant to which, "Mama" of his wife reached their house at about 4:30 p.m. and on pursuation of "Mama" of his wife, prosecutrix opened the door. It has further come in the testimony of this witness that on 07.06.2012 when he was present in the school, his wife telephonically informed him that prosecutrix had disclosed to her that she was having friendship with accused and on 05.06.2012, accused had taken prosecutrix to Dholra Hotel where he sexually molested her.
13. In our considered view, both mother and father of the prosecutrix are interested witnesses and the statement of prosecutrix is very categoric to the effect that a false case was lodged against the accused on the behest of her parents. In these circumstances, especially keeping in view the fact that prosecutrix herself did not support the case of the prosecution, statements of PW1 and PW4 cannot solely be made basis for convicting the accused. Incidentally, in the present case, as has also been taken note of by learned trial Court, PW3 Shri Dharmender Singh has also not supported the case of the prosecution. He has denied that prosecutrix ::: Downloaded on - 18/04/2017 00:09:56 :::HCHP 12 had visited said Guest House/Hotel alongwith the accused on 05.06.2012 as is the very case put forth by the prosecution.
.
14. From what has been discussed above by us it is apparent and evident that the prosecutrix in the present case has not supported the case of the prosecution at all. It has come in the cross examination of the prosecutrix that her date of birth was 11.11.1996 and not 11.03.1997 and as such, on the date of occurrence, she was more than 16 years. Be that as it may, the fact of the matter still remains that the prosecutrix has denied the factum of accused having met her on 05.06.2012 or having had sexually molested her on that date. As we have already held above that the statements of PW1 and PW4, mother and father of the prosecutrix respectively are neither trustworthy nor inspire confidence. It has come on record that prosecutrix and accused were known to each other and factum of her friendship with accused has in fact been categorically stated by the prosecutrix in her deposition in the Court. She admitted the suggestion of the defence that a false case was put up by her parents against the accused in connivance with the police. In this background when the prosecutrix herself has denied that any offence, as was alleged against accused, was committed against her by ::: Downloaded on - 18/04/2017 00:09:56 :::HCHP 13 the accused and the statements of PW1 and PW4 are not worth inspiring any confidence, it cannot be said that the .
judgment of acquittal passed by learned trial Court in favour of accused either suffers from any illegality or perversity.
15. We also concur with the finding of the learned trial Court that the material on record is not sufficient to show that prosecution had proved its case against the beyond reasonable doubt. Medical evidence on record also does not further the case of the prosecution especially in view of the fact that prosecution has failed to prove that on 05.06.2012 accused had taken the prosecutrix to Dholra Hotel and had committed rape on her there.
16. Besides this, we have also carefully gone through the judgment passed by the learned trial Court and a perusal of the judgment passed by learned trial Court demonstrates that the entire evidence produced on record by the prosecution had been minutely taken into consideration by the learned trial Court and after a careful consideration of the same, learned trial Court had returned the finding of acquittal in favour of accused.
17. Therefore, while concurring with the findings of acquittal returned by learned trial Court, we dismiss the ::: Downloaded on - 18/04/2017 00:09:56 :::HCHP 14 present appeal being devoid of any merit, so also pending miscellaneous application(s), if any.
.
(Sanjay Karol) Judge (Ajay Mohan Goel) Judge April 13, 2017.
(narender)
r to
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