Himachal Pradesh High Court
State Of H.P vs Bir Singh on 5 May, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 268 of 2013.
Reserved on: May 04, 2016.
.
Decided on: May 05, 2016.
State of H.P. ......Appellant.
Versus
Bir Singh .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
of
Whether approved for reporting? 1 Yes.
For the appellant: Mr. Parmod Thakur, Addl. Advocate General.
For the respondent: Mr. N.K.Thakur, Sr. Advocate, with Ms. Jamuna Kumari,
Advocate.
----------------------------------------------------------------------------------------------
rt
Justice Rajiv Sharma, J.
This appeal is instituted against the judgment dated 12.3.2013, rendered by the learned Sessions Judge, Bilaspur, H.P, in Sessions trial No. 11/2008, whereby the respondent-accused (hereinafter referred to as the accused), who was charged with and tried for offence punishable under Section 376 (f) and Section 511 IPC has been acquitted.
2. The case of the prosecution, in a nut shell, is that on 22.5.2007, Reeta Devi (PW-1), mother of the prosecutrix (name withheld) got her statement recorded under Section 154 CrPC before the police that she was resident of village Kothi, Tehsil Jhandutta,PS Sadar,Distt.
Bilaspur. She had one son, namely, Ravi Kumar aged 10 years and daughter (prosecutrix) aged 8 years. Both of them used to go to their school together. On 20.5.2007, the prosecutrix told her that on 19.5.2007 when she and her brother were coming back to home at about 2:00 PM 1 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:16:47 :::HCHP 2(day time), accused who is son of elder brother of the husband of Reeta Devi (PW-1) met them and he told her daughter that he would give her .
sweets and caught hold of her from her arm. He took her towards the bushes where the accused opened the salwar of the prosecutrix and also opened his pants and laid her on the ground. He tried to commit rape with her, as a result of which she felt pain and cried for help. When the brother of the prosecutrix asked the accused to leave his sister, then he left her of and left the place after giving threats to both of them not to disclose the incident to anyone. The prosecutrix was feeling pain and itching on her rt private part then Reeta Devi, her mother administered medicine to her.
Swelling was also noticed on her private part. FIR was registered. The prosecutrix was examined by PW-8 Dr. Savita Mehta. The accused was also medically examined. The police took into possession salwar Ext. P-1 and shirt Ext. P-2 of the prosecutrix. The accused also produced his towel Ext. P-3, shirt Ext. P-4 and underwear Ext. P-5 and pants Ext. P-4 before the police which were taken into possession vide memo Ext. PW-1/C. Copy of parivar register Ext. PW-5/B was taken into possession. The case was investigated and challan was put up before the Court after completing all the codal formalities.
3. The prosecution, in order to prove its case, has examined as many as 11 witnesses. The accused was also examined under Section 313 Cr.P.C. He pleaded innocence. The learned trial Court acquitted the accused, as noticed hereinabove. Hence, this appeal.
4. Mr. Parmod Thakur, Addl. Advocate General has vehemently argued that the prosecution has proved its case against the accused. On ::: Downloaded on - 15/04/2017 20:16:47 :::HCHP 3 the other hand, Mr. N.K.Thakur, Sr. Advocate for the accused has supported the judgment of the learned trial Court dated 12.3.2013.
.
5. We have heard learned counsel for both the sides and have also gone through the judgment and records of the case carefully.
6. PW-1 Reeta Devi deposed that her children were studying in Primary School, Kothi. They went to school together and came together.
On 20.5.2007, her daughter told her that on 19.5.2007 when the of prosecutrix and her brother were returning to home accused met them.
He took her towards the bushes where the accused opened the salwar of rt the prosecutrix and also opened his pants and laid her on the ground. He tried to commit rape with her, as a result of which, she felt pain and cried for help. Her son Ravi Kumar who was standing at some distance asked the accused to leave his sister, then he left her and left the place after giving threats to both of them not to disclose the incident to anyone. The prosecutrix was feeling pain and itching on her private part then she applied medicine on her private part. Swelling was also noticed on her private part. She narrated the incident to the member Gram Panchayat, who called the police. The police visited the spot. She handed over the clothes of her daughter i.e. salwar and shirt to the police. The police took the same into possession. In her cross-examination, she admitted that children of Ramesh alias Bhuto were also with her children on that day but they left to their house on the way. The house of Ramesh was situated nearby. It was summer day. She denied the suggestion that the cries from the place of incident could be heard in the house of Ramesh. She admitted that they had demanded from her father-in-law partition of the property, ::: Downloaded on - 15/04/2017 20:16:47 :::HCHP 4 however, he was adamant. She also admitted that the father of the accused also supported her father-in-law in this matter. She also admitted .
that on 21.5.2007, her husband demanded his share in the property from his father, upon which altercation took place in which father of the accused intervened. She also admitted that an altercation took place between her husband and father of the accused. She denied the suggestion that thereafter they hatched a conspiracy to implicate the of accused in the present case falsely. The report was lodged with the police on 22.5.2007. rt
7. PW-2 Master Ravi Kumar was minor at the time of recording of his statement. He was examined without oath. He testified that on 19.5.2007, when they were coming back from the school, at 2:00 PM, on the way, accused met them. He was carrying a drum. Accused told the prosecutrix (his sister) that he would offer sweets to her and took her in the bushes. The accused spread his towel on the ground and took off the salwar of his sister and took off his pants and underwear. He laid the prosecutrix on the towel. The accused put his private part into the private part of the prosecutrix. The prosecutrix started crying. He asked the accused to leave her but he refused to do so. On his insistence, the accused left the prosecutrix and thereafter, they came to their house.
Accused told them not to disclose the incident to anyone. On the second day, he told about the incident to his mother. The police came to the spot.
In his cross-examination, he admitted that the house of Ramesh was also on the way and thereafter there is a hand pump. The place of occurrence was at some distance from the hand pump. The fields of Madan Lal were ::: Downloaded on - 15/04/2017 20:16:47 :::HCHP 5 near the hand pump. Saroj Madam and her two children were also with them when they were returning from the school but they left to their house.
.
He admitted that on the subsequent day, there was altercation between his father and grandfather upon which the police was called to the spot. He admitted that Pyare Lal, elder brother of his father reported the matter to the police. He also admitted that his mother had asked him to narrate whatever was seen by him in the Court. He also admitted that his father of had also instructed him to disclose the incident in the Court. He was 10 years of age at the time of occurrence and the prosecutrix was 8 years of rt age.
8. PW-3 is the prosecutrix (name withheld). Her statement was recorded without oath. She testified that she was student of 3rd standard and her brother was student of 5th standard in Primary School, Kothi. On 19.5.2007, when they were returning to their house from the school at about 2:00 PM, her brother was also with her. On the way, accused met them. He asked her to play and also assured her to give sweets. He caught hold of her from her arms and took her towards the bushes. He made her to lie on a towel and took off her salwar and the accused also took off his pants and underwear and inserted his private part into her private part. She started crying due to pain, upon which her brother came there and asked the accused to leave her. Thereafter, accused left her and asked them not to narrate the incident to anyone and threatened to beat them. She narrated the incident to her mother on 22.5.2007 as she was feeling pain and her mother applied some medicines on her private part.
The police came to the spot. She admitted in her cross-examination that ::: Downloaded on - 15/04/2017 20:16:47 :::HCHP 6 the date of occurrence was told to her by her parents. She denied the suggestion that her parents had instructed her to make statement against .
the accused. There was no bleeding from her private part. Her salwar was spoiled with some watery substance during the incident. Her brother was at some distance from the place of occurrence. She denied that they had concocted a false case against the accused due to enmity in order to teach lesson to the accused.
of
9. PW-4 Kamla Devi deposed that 2-3 years ago, at about 8:30 PM, she and her husband were called by her father-in-law in his house and rt they saw Roshan Lal and Sukh Ram quarrelling with each other. When the police came on the spot, Roshan Lal disclosed to the police that the son of Sukh Ram had committed rape with his daughter. It was not disclosed to her earlier before the arrival of the police. The tooth of Roshan Lal was broken in the scuffle. Thereafter, they informed the police. Reeta Devi, mother of the prosecutrix produced clothes of her daughter before the police. In her cross-examination, she admitted that they were not in talking terms with the father of the accused.
10. PW-7 Dr. S.P. Bhangal, has examined the accused and issued MLC Ex. PW-7/A.
11. PW-8 Dr. Savita Mehta, has examined the prosecutrix.
According to her, the possibility of attempt to rape could not be ruled out.
There were no marks of violence on private part. Hymen was found intact.
The nature of injuries on her person were simple and the probable duration was within 48 hours. She issued MLC Ext. PW-8/A. In her cross-
::: Downloaded on - 15/04/2017 20:16:47 :::HCHP 7examination, she admitted that there were no signs of sexual intercourse.
The girl was physically weak.
.
12. PW-10 SI Iqbal Mohd. was the I.O. He reached the spot. The statement of the mother of the prosecutrix was recorded under Section 154 Cr.P.C. vide Ext. PW-1/A. The medical examination of the prosecutrix and the accused was got undertaken. The case property was taken into possession.
of
13. The case of the prosecution, precisely, is that the prosecutrix was studying in Private School, Kothi in 3rd standard. She was 8 years of rt age at the time of the incident. She was coming back to house at 2:00 PM along with her brother PW-2 Master Ravi Kumar. Accused met them on the way. He took the prosecutrix to the bushes and he committed rape on her person. She narrated the incident to her mother. She was medically examined by PW-8 Dr. Savita Mehta. FIR was registered.
14. PW-3, prosecutrix has deposed that the accused had asked her to play and also assured her to give sweets. He caught hold of her from her arms and took her towards the bushes. He made her to lie on a towel and took off her salwar and the accused also took off his pants and underwear and inserted his private part into her private part. She started crying due to pain, upon which her brother came there and asked the accused to leave her. She narrated the incident to her mother on 22.5.2007. She has narrated the incident in a natural way. She has denied the suggestion that she was instructed by her parents to make deposition in a particular manner in the Court. PW-2 Master Ravi Kumar was accompanying her on 19.5.2007. He also deposed that the accused had offered sweets to the ::: Downloaded on - 15/04/2017 20:16:47 :::HCHP 8 prosecutrix. The accused spread his towel on the ground and took off the salwar of his sister and took off his pants and underwear. He laid the .
prosecutrix on the towel. The accused put his private part into the private part of the prosecutrix. The prosecutrix started crying. He asked the accused to leave her but he refused to do so. On his insistence, the accused left the prosecutrix and threatened them. In his cross-
examination, he admitted that his mother had asked him to narrate of whatever was seen by him in the Court. He has categorically denied that he has made the statement at the instance of his mother. His version is rt also natural.
15. PW-1 Reeta Devi is mother of the prosecutrix. She has noticed swelling on the private part of her daughter. She administered medicine to her. She narrated the incident to PW-4 Kamla Devi, who in turn called the police.
16. Mr. Naresh Thakur, learned Sr. Advocate, for the accused has vehemently argued that his client has been falsely implicated due to the litigation. PW-1 Reeta Devi has admitted that her husband was demanding partition of the suit property and altercation also took place with the father of the accused. The quarrel has also taken place between the father of the prosecutrix and the father of the accused over the property dispute. PW-2 Master Ravi Kumar has also deposed that on the subsequent day, there was altercation between his father and grandfather and thereafter the police was called to the spot. He also admitted that Pyare Lal, elder brother of his father reported the matter to the police. The statement of the mother of the prosecutrix was also recorded under Section 154 Cr.P.C. vide ::: Downloaded on - 15/04/2017 20:16:47 :::HCHP 9 Ext. PW-1/A on 22.5.2007. It is averred in Ext. PW-1/A that the accused has only tried to rape the prosecutrix. PW-1 Reeta Devi, in her statement, .
also deposed that the prosecutrix has told her that on 19.5.2007 at 2:00 PM, when her son and daughter were coming back to home, accused met them on the way. He took her daughter behind the bushes where the accused opened the salwar of her daughter and also opened his pants and laid her on the ground and started committing rape on her. In case rape of had been committed, it should have been mentioned by her in her statement recorded under Section 154 Cr.P.C. It is reiterated that she has rt only stated about the attempt made by the accused to commit rape on the prosecutrix.
17. The prosecutrix was examined by PW-8 Dr. Savita Mehta. In her opinion, the possibility of attempt to rape could not be ruled out. She has not noticed any marks of violence on private part of the prosecutrix, however, the nature of injuries on her person were simple and the probable duration was within 48 hours. In her cross-examination, she has admitted that there were no signs of sexual intercourse. The statement of PW-8 Dr. Savita Mehta is contrary to the occular statements made by PW-1 Reeta Devi and PW-3, prosecutrix. According to PW-8 Dr. Savita Mehta vulva was normal and hymen was intact, though she has noticed abrasion on right cheek. The doctor has noticed that the prosecutrix told that small boy had pinched her cheeks with his nails yesterday. There were no marks of violence on private part of the prosecutrix. Though PW-2 Master Ravi Kumar and PW-3 prosecutrix deposed that the accused has inserted his private part into the private part of the prosecutrix, but according to PW-8 ::: Downloaded on - 15/04/2017 20:16:47 :::HCHP 10 Dr. Savita Mehta, the possibility of attempt to rape could not be ruled out.
However, she has categorically deposed that there were no signs of sexual .
intercourse. The prosecution has only proved that the accused has attempted to commit rape upon the prosecutrix and as per the medical evidence available on record, there were no signs of sexual intercourse.
Thus, the accused is liable to be convicted for attempting to commit rape upon the prosecutrix under Section 376(f) read with Section 511 IPC.
of
18. Accordingly, the appeal is partly allowed. The judgment of the learned trial Court dated 12.3.2013 is set aside. The accused is convicted rt for attempting to rape the prosecutrix. The accused be heard on quantum of sentence on 18.5.2016. Production warrant be issued accordingly.
( Rajiv Sharma ), Judge.
May 05, 2016, ( Chander Bhusan Barowalia ),
(karan) Judge.
::: Downloaded on - 15/04/2017 20:16:47 :::HCHP