Himachal Pradesh High Court
State Of Himachal Pradesh vs Of on 27 February, 2017
Bench: Dharam Chand Chaudhary, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
Cr. Appeal No. 279 of 2009
Reserved on: November 18, 2016.
Date of decision: February 27, 2017.
State of Himachal Pradesh ......Appellant.
Versus
of
Pratap Singh ......Respondent.
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
rt
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 No.
For the appellant : Mr. M.A. Khan Addl. AG with Mr.
Virender Verma, Addl. AG.
For the respondent : Mr. G.R.Palsra, Advocate.
Dharam Chand Chaudhary, J.
State of Himachal Pradesh, aggrieved by the judgment dated 21.1.2009, passed by learned Presiding Officer, Fast Tract Court, Mandi in Sessions Trial No. 26 of 2008, has preferred the present appeal with a prayer to quash the same and convict the respondent (hereinafter referred to as accused) for the commission of offence punishable under Section 376 (2)
(f) and 377 IPC.
2. The complaint is that learned Trial Court has failed to appreciate the evidence available on record in its right 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes.
::: Downloaded on - 15/04/2017 21:56:51 :::HCHP 2perspective and acquitted the accused on flimsy grounds. The findings recorded by learned trial Court, allegedly are based .
upon hypothesis, conjectures and surmises. Unrealistic standards have been adopted to discard cogent and reliable evidence produced by the prosecution in support of its case against the accused. There is nothing suggesting that the of prosecution witnesses were inimical to the accused. Being so, the own testimony of the prosecutrix and that of her father Jiwa rt Nand (PW-1) and mother Narbada Devi (PW-6) should have been believed to be true and correct and that on the basis thereof, the findings of conviction should have been recorded against the accused. The testimony of Dr. Sarla Chand (PW-7) which suggests the commission of rape and also carnal intercourse with the prosecutrix is stated to be erroneously ignored. The gravity of the offence committed by the accused, none else but a school teacher, with the prosecutrix, a student of 5th standard studying in the same school where he was posted as a teacher and thereby he undermined the pious relations of teacher and a student, is also not appreciated. The plight of the prosecutrix whose career has been spoiled by her own teacher is also ignored by learned Court below. The circumstantial evidence connecting the accused with the commission of the offence has not been considered. No weightage has been given to the topography of the area where the prosecutrix and her parents ::: Downloaded on - 15/04/2017 21:56:51 :::HCHP 3 reside and also the factum of her parents illiterate has also been ignored. The approach, while appreciating the evidence .
available on record, was hyper-technical.
3. The written complaint made to the Superintendent of Police, Mandi, Ext. PW-1/A discloses the following allegations levelled by the prosecutrix (name withheld) against the accused:
of "(i) On 22.3.2008, around 5:00 AM, she was called by the accused in his house at the pretext that he will teach her some subject. He asked her to stay in rt his house during night. She stayed with him and he raped her during night.
(ii) On the next day (23.3.2008), she went to her house and apprized her mother (PW-6) about this incident. Her mother visited police post Janjehali on that very day i.e. 23.3.2008 for lodging FIR against the accused but the police has not lodged the FIR."
4. Now, if coming to the prosecution case, as disclosed from the report under Section 173 Cr.P.C. and the documents annexed therewith, on 15.3.2008 when school time was over, accused allegedly made all the children to leave the school and to go to their houses, however, asking the prosecutrix to stay back. Later on, she was taken by him to the central room of school building where she was made to stand alongside the wall over the bundles of "Tat Patti" (school mattress) and thereafter she was raped and subjected to carnal intercourse (sodomy) also. After that the accused allegedly raped the prosecutrix on ::: Downloaded on - 15/04/2017 21:56:51 :::HCHP 4 several occasions in the school and also in his house. The Investigating Agency has made out a case to this effect against .
the accused by recording supplementary statements of her father PW-1 Jiwa Nand, her mother PW-6 Narbada Devi, PW-5 Dayal Singh, the then Pradhan of the Gram Panchayat, Beli Dhar, Tehsil Thunag, Distt. Mandi and Kumari Ganga, class mate of the of prosecutrix.
5. Since the complaint Ext. PW-1/A was marked by rt Superintendent of Police, Mandi to In-charge PP (Women Cell) Mandi for inquiry, therefore, vide endorsement encircled red at point "B", the In-charge (Women Cell) sent the prosecutrix to Zonal Hospital Mandi for conducting her medical examination.
Thereafter Superintendent of Police, Mandi marked the complaint made by the prosecutrix to Station House Officer, PS Gohar, Distt. Mandi for registration of a case. Consequently, a case under Sections 376 and 377 IPC came to be registered in the said Police Station against the accused vide FIR No. 67 of 2008.
The police of PS Gohar also got conducted the medical examination of the accused on 26.3.2008 vide MLC Ext. PX.
6. PW-7 Dr. Sarla Chand has medically examined the prosecutrix and in her opinion based on clinical examination, the prosecutrix was found to have been sexually exposed. The final opinion, however, was left open to be given later on after receipt of the report of the chemical examiner. Subsequently, the report ::: Downloaded on - 15/04/2017 21:56:51 :::HCHP 5 of chemical examiner Ext. PW-12/A was also received. On analysis of the exhibits i.e. salwar of the prosecutrix, her vaginal .
slides and underwear of accused, the same were not found to be having any traces of blood and semen. The blood found in traces on vaginal swab of the prosecutrix was not sufficient for further examination. Semen was not found available thereon. In anal of swab of the prosecutrix, though blood was detected, however, no semen was detected. In the semen sample of the accused, rt semen was detected. Irrespective of the report so received from FSL and perusal thereof by PW-7 Dr. Sarla Chand, her opinion remained same vis. the prosecutrix was exposed sexually. The Investigating Agency has collected the birth certificate Ext. PW-
3/A from Gram Panchayat Sunah, Saraj Block (Janjehali), District Mandi and also the extract of Pariwar Register Ext. PW-3/A from PW-3 Tek Chand, Panchayat Sahayak vide memo Ext. PW-3/C. PW-4 Dhan Dev Headmaster, Govt. Primary School, Thach Balh, Saraj-1 Janjehali, District Mandi has also issued date of birth certificate Ext. PW-4/A from the school record which was taken into possession in the presence of PW-5 Dayal Singh vide recovery memo Ext PW-4/B. PW-4 Dhan Dev has also handed over the extract of register of teachers' attendance Ext. PW-4/C and the attendance register of class 5th Ext. PW-4/D and that of class 4th Ext. PW-4/E. Site-map of the school was also procured and as per the same, the prosecutrix was allegedly raped by the ::: Downloaded on - 15/04/2017 21:56:51 :::HCHP 6 accused in the room Mark "B" at place "X". The statements of the witnesses associated by the Investigating Agency were also .
recorded under Section 161 Cr.P.C.
7. On completion of the investigation and receipt of the report of chemical examiner Ext. PW-12/A, the report under Section 173 Cr.P.C. was prepared by PW-12 SHO Hemant Kumar, of and filed in the Court.
8. Learned trial Court, on consideration of the report rt and documents annexed therewith has found a prima-facie case under Sections 376 (2)(f) and 377 of the IPC made out against the accused. Charge against him was accordingly framed. He, however, pleaded not guilty to the charge and claimed trial.
Therefore, the prosecution, in order to sustain charge against him has examined 14 witnesses in all.
9. The material prosecution witnesses are the prosecutrix herself who has stepped into the witness box as PW-
2, her father Jiwa Nand PW-1 and her mother Narbada Devi PW-6.
PW-5 Dayal Singh Pradhan of Gram Panchayat and PW-8 Labh Singh though were associated by the prosecution to establish that the accused exposed the prosecutrix sexually on 15.3.2008 in the school and thereafter also in the school as well as in his house, however, they both turned hostile to the prosecution case. PW-3 Tek Chand Panchayat Sahayak and PW-4 Dhan Dev Headmaster, Govt. Primary School Thach Bahl are formal as on ::: Downloaded on - 15/04/2017 21:56:51 :::HCHP 7 asking by the I.O, they have prepared and handed over the date of birth certificate(s) of the prosecutrix. PW-7 Dr. Sarla Chand .
has examined the prosecutrix in Zonal Hospital, Mandi vide MLC Ext. PW-7/B. The other prosecution witnesses PW-9 SI Kamla, PW-10 HC Inder Dev, PW-11 Const. Farzand Ali, PW-12 Insp. SHO Hemant Kumar, PW-13 ASI Shakti Chand who have partly of investigated the case and PW-14 Insp. SHO Jagdish Chand, I.O in this case are formal witnesses because they have remained rt associated during the investigation of the case in one way or the other.
10. On the other hand, the accused in his statement recorded under Section 313 Cr.P.C., while admitting that he was working as teacher in Govt. Primary School, Thach Bahl where the prosecutrix was studying, has denied rest of the incriminating circumstances appearing in prosecution evidence against him being incorrect. However, according to him, he was got medically examined by PW-14 Insp. Jagdish Chand vide MLC Ext. PX. In his defence, he raised the plea that he has been implicated falsely in this case due to enmity on account of dispute of path as well as on account of political rivalry because he and parents of the prosecutrix belongs to different political parties. According to him, the case has been registered against him after due deliberation. He, however, not opted for producing any evidence in defence.
::: Downloaded on - 15/04/2017 21:56:51 :::HCHP 811. Learned trial Judge, on appreciation of the evidence available on record and affording the parties an opportunity of .
being heard, has framed the following points for consideration:
"(1) Whether the prosecution has proved that on 15.3.2008 after 3:30 PM in the room of the school building of Govt. Primary School, Thachi Behli the accused has committed rape upon the prosecutrix a of woman under 12 years of age and before this date the accused had been regularly committing rape upon the prosecutrix in the room of the above said rt school building and at his residential house at Thach when the prosecutrix was studying in 4th class, as alleged?
(2) Whether the prosecution has proved that on the aforesaid dates, times and places the accused has committed carnal intercourse which is against the order of nature with the prosecutrix, as alleged?
(3) Final order."
12. On appraisal of the evidence available on record, points No. 1 & 2 were answered in negative and as a result thereof, the accused has been acquitted of the charge under Sections 376(2)(f) and 377 IPC, as was framed against him while arriving at a conclusion that no case is made out against him.
13. Mr. M.A.Khan, learned Addl. Advocate General has argued with all vehemence that own testimony of the prosecutrix supported by that of her father PW-1 Jiwa Nand and PW-6 Narbada Devi as well as link evidence collected during the course ::: Downloaded on - 15/04/2017 21:56:51 :::HCHP 9 of trial, leave no manner of doubt that the accused has subjected the prosecutrix, a minor to sexual intercourse, including carnal .
intercourse. The commission of such an offence by a teacher against a minor child of his own school, according to Mr. Khan is a most hatred crime and as such the accused should have not only been convicted but deterrent punishment should also have of been imposed upon him.
14. rtOn the other hand, Mr. G.R.Palsra, Advocate, learned defence counsel, while controverting the arguments addressed on behalf of the appellant-State has urged that what to speak of cogent and reliable evidence produced by the prosecution to connect the accused with the commission of offence, the present is a case of no evidence. According to Mr. Palsara, the accused has rightly been acquitted of the charge framed against him.
15. The offence, the accused allegedly committed, is not only grievous in nature but heinous also. An offence of this nature not only affects an individual but has wider repercussions in the society at large. However, the question which has engaged our attention is as to whether the prosecution was able to prove the tone and tenor in which the accused has allegedly committed the offence in question or not. In our considered opinion, the answer to this poser, in all fairness and in the ends of justice, would be in negative for the reason that on close ::: Downloaded on - 15/04/2017 21:56:51 :::HCHP 10 scrutiny of the own testimony of the prosecutrix as well as that of her father and mother, the family of the prosecutrix was .
inimical to the accused on account of some dispute relating to path. The suggestions in this regard put to them in their cross-
examination have been admitted as correct not only by the prosecutrix but also by her mother PW-6 Narbada Devi. Even of PW-6 Narbada Devi has also admitted that both the families were inimical to each other over a dispute regarding path. PW-1 Jiwa rt Nand has admitted that he quarreled with the accused in June, 2006 when a road was being constructed in the village. This witness further tells us that he had given beatings to the accused, of course in retaliation because as per his further version it is the accused who had first administered beatings to him. The prosecution case that the accused has subjected the prosecutrix to carnal intercourse firstly on 15.3.2008 in the manner as detailed hereinabove in this judgment and thereafter also in the school as well as in his house, including during the night intervening 22/23.3.2008 does not find support from the prosecution case. True it is that the prosecutrix (PW-2) has stated in her examination-in-chief that on 15.3.2008 when the other students went to their respective places after school time was over, the accused detained her and made to stand by the side of wall of the room on "Tat Patti" and thereby committed rape upon her person. According to her, the accused even ::: Downloaded on - 15/04/2017 21:56:51 :::HCHP 11 committed carnal intercourse with her in his house and in the school on 9-10 occasions. Blood oozed out from her private part .
as and when the accused subjected her to rape. The incident of rape was revealed by her to her mother Narbada Devi (PW-6), who in turn apprized her father about it. She was withdrawn from Primary School Thach Bahl and was admitted in Govt.
of Primary School Rah Kot. She has also admitted that her signature at point "B" on the complaint Ext. PW-1/A were obtained and she rt was got medically examined in Zonal Hospital, Mandi where her blood stained slawar Ext. P-1 was also taken into possession by the doctor who examined her.
16. Interestingly enough, the other important dates which came across during her life except 15.3.2008 could not be remembered by her nor the meaning of word "Balatkar" was known to her. She, therefore, seems to be a tutored witness.
She further tells us in her cross-examination that on 15.3.2008, as usual, she along with Ganga Devi, her class-mate reached in the house at 3:00 PM and went to the fields to spread cowdung/manure with her parents. The salwar Ext. P-1 worn by her on 15.3.2008 was washed on Sunday. She is specific in telling that she was not called by the accused to his house on 22.3.2008 nor she stayed with him in his house during night.
The complaint Ext. PW-1/A to this effect is, therefore, contradicted by her. Her admission that there was a dispute ::: Downloaded on - 15/04/2017 21:56:51 :::HCHP 12 between her parents and the accused qua construction of road and that it is her father who had called the police leads to the .
only conclusion that the complainant party and the accused were inimical with each other. Not only this, but her mother had gone to Police Post Janjehali on 21.3.2008 to lodge the report. She has denied her signature on the complaint Ext. PW-1/A. She of expressed her ignorance as to who had written her name at point "A" on this document. She also expressed her ignorance as to rt where and from whom complaint Ext. PW-1/A was got typed nor was she aware of its contents. The same were even not read over and explained to her by the police officials at Mandi. Her statement was not recorded by the police under Section 161 Cr.P.C. either on 25.3.2008 or after that also. The prosecutrix even has admitted that she was tutored by her parents and the police officials to remember and to tell in her statement the date i.e. 15.3.2008 and it is for this reason she could remember the said date.
17. Her father PW-1 Jiwa Nand, no doubt, tells us that he was away to Shimla to earn his livelihood, however, called by his wife to the house. When he returned to his house on 23.3.2008, he was apprised by the prosecutrix about the commission of rape upon her person by accused and also that he even committed unnatural carnal intercourse with her in the school as well as in his house. Such incident was stated to be narrated by ::: Downloaded on - 15/04/2017 21:56:51 :::HCHP 13 the mother of the prosecutrix to her father on 15.3.2008. The prosecutrix, as noted hereinabove, has, however, not supported .
the prosecution case at all except for that she was subjected to sexual intercourse by the accused in school on 15.3.2008. The incident of 15.3.2008 if had taken place in the manner as claimed and the prosecutrix apprised her mother qua the same, of it is not understandable as to why the matter was not reported to the police or the Gram Panchayat because as per the evidence rt available on record PW-1 Jiwa Nand, the father of the prosecutrix was also present in the house on that day as he left to Shimla on 18.3.2008. Though, he has supported the complaint Ext. PW-1/A having been made by him accompanied by the prosecutrix, however, as noticed supra, the prosecutrix has not supported the prosecution case in this regard at all. Above all, the complaint Ext.PW1/A is silent about the alleged incident of rape dated 15.3.2008.
18. Interestingly enough, when PW-1 Jiwa Nand was cross-examined, he was present in the school on 15.3.2008 in connection with repairs of desks and chairs. How the accused could have dared to subject the prosecutrix to sexual intercourse in the presence of her father in the school? His testimony, in cross-examination, reveals that the prosecutrix was not keeping good health and as such was under treatment in the hospital at Thunag. As per his own admission, she had been going to the ::: Downloaded on - 15/04/2017 21:56:51 :::HCHP 14 school occasionally. She was not subjected to sexual intercourse by the accused after 15.3.2008. Being so, the prosecution case .
that on and after 15.3.2008, she was subjected to sexual intercourse by the accused on several occasions, is therefore false. It has also come in his cross-examination that he went to Mandi along with his brother Nikka Ram who is matriculate and of Mohar Singh, his brother-in-law, who is also educated. He admitted that on 5.6.2006, during the construction of road, he rt quarreled with accused and administered fist and kick blows as their houses are adjoining to each other. He had brought the police also to the spot. The dispute, however, got patched up with the help of the Pradhan of the Gram Panchayat and the police.
19. PW-1 Jiwa Nand has further admitted that he is member of Sewa Dal of Congress party and is having good relations with the leaders of this party. The father of the accused and other members of his family are stated to be supporters of BJP. Also that, it is on account of political rivalry, they quarreled with each other on 5.6.2006 during the construction of road.
Though, as per his version his wife has visited police post Janjehali on 21.3.2008 to lodge complaint against accused, however, this fact has been denied by the prosecutrix in her cross-examination. He has admitted that on his arrival to the village from Shimla, with due deliberation with his wife, Mohar ::: Downloaded on - 15/04/2017 21:56:51 :::HCHP 15 Singh and Nikka Ram, his brother-in-law and his brother, respectively, it was decided to lodge the report with .
Superintendent of Police Mandi to set the accused right, meaning thereby that the complainant party wanted to teach a lesson to the accused on account of being offended by the construction of road in the village and their quarrel with the accused. Even if of complaint Ext. PW-1/A was reduced into writing, he being illiterate, cannot be said to have knowledge of the contents thereof.
rt Though, he tells us that his brother Nikka Ram and Mohar Singh accompanying him were well aware of Hindi and English language, however, nothing has come on record that they explained the contents of the complaint to him and also to the prosecutrix before they put their signatures thereon. Even Mohar Singh and said Nikka Ram have not been examined by the prosecution to substantiate its case against the accused.
20. PW-1 has denied the contents of the complaint in its portion marked as A to A, and B to B as incorrect. Being so, PW-
1 Jiwa Nand has himself demolished the entire prosecution case qua making the complaint Ext. PW-1/A by the prosecutrix or by him to Superintendent of Police, Mandi. Not only this, as per his further version in cross-examination, his statement under Section 161 Cr.P.C. was not recorded by the police.
::: Downloaded on - 15/04/2017 21:56:51 :::HCHP 1621. Now, if coming to the statement of Smt. Narbada Devi (PW-6), the mother of the prosecutrix, she has only deposed .
about the withdrawal of the prosecutrix from Govt. Primary School Thach Bahl and her admission in Govt. Primary School Rah Kot, allegedly on account of she was raped in the school by the accused. Though, as per her version, the prosecutrix came of while weeping to her from school, however, in the complaint it is neither reported so to the police nor the prosecutrix has said so rt while in the witness-box that she was weeping when reached at home from school and revealed that she was subjected to sexual intercourse by the accused to this witness. PW-6 Narbada Devi has denied that her husband PW-1 Jiwa Nand was repairing desks and chairs in Govt. Primary School, Thach Bahl on 15.3.2008.
Her statement to this effect is contrary to that of her husband PW-1 Jiwa Nand who has categorically stated that on 15.3.2008, he was present in the school in connection with repairs of desks and chairs of the school. She has further denied that cow-dung was being spread in the fields by her and her husband and also the prosecutrix on 15.3.2008, however, to the contrary, the prosecutrix has stated that on reaching home, she went to fields and spread cow-dung/manure with her parents. When she did not notice any injury on the person of the prosecutrix, either on 15.3.2008 or on any other occasion when she allegedly was sexually exploited by the accused, how it can be said that the ::: Downloaded on - 15/04/2017 21:56:51 :::HCHP 17 accused had been doing all such acts with the prosecutrix. While stating that her brother (Mohar Singh) and brother-in-law (Nikka .
Ram) were not accompanying her husband and the prosecutrix to Mandi is contrary to that of her husband PW-1 Jiwa Nand.
According to her, Ganga Devi, class-mate of the prosecutrix had also obtained school leaving certificate and got herself admitted of in Govt. Primary School Rah Kot. She further admitted that the father of said Ganga Devi had expired 2-3 months back from rt their obtaining the school leaving certificate of said Ganga Devi and the prosecutrix and that the cremation ground was situated at walkable distance of 15 minutes from Primary School, Thach Bahl. The suggestion that the prosecutrix used to frighten Ganga Devi that her father cremated there was looking at her and due to which Ganga Devi got scared and that it is for this reason they obtained school leaving certificate as well as got admitted them in Govt. Primary School, Rah Kot were denied being wrong. Her statement under Section 161 Cr.P.C. was also stated to be not recorded by the police.
22. Therefore, the evidence, as has come on record by way of own testimony of the prosecutrix and her parents does not support the prosecution case at all. The close scrutiny of the evidence reveals that the prosecutrix was never subjected to sexual/carnal intercourse by the accused on 15.3.2008 or after that in the school or in his house. As a matter of fact, the alleged ::: Downloaded on - 15/04/2017 21:56:51 :::HCHP 18 incident of exploiting the prosecutrix sexually by the accused in his house during night intervening 22/23.3.2008 is not at all .
proved. Even no evidence has come on record that the mother of the prosecutrix, though went to Police Post Janjehali on 22.3.2008 to lodge complaint against the accused, however, the police refused to do so. The complaint Ext. PW-1/A, as such, is of false. As a matter of fact, in view of the own testimony of the prosecutrix and her father PW-1 Jiwa Nand and for that matter of rt her mother PW-6 Narbada Devi, leaves no manner of doubt that the accused was implicated in this case falsely on account of enmity.
23. True it is that the enmity is a double edged weapon, however, the present is not a case where in the given facts and circumstances and the evidence available on record, it can be said that on account of such enmity it is the accused who subjected the prosecutrix to sexual/carnal intercourse.
24. It is also relevant to make mention here to the testimony of Sh. Dayal Singh (PW-5) and Labh Singh (PW-8).
They both have not supported the case of the prosecution qua the accused subjected the prosecutrix to sexual intercourse during the night intervening 22/23.3.2008. They even have not supported the prosecution case qua the prosecutrix being exploited sexually on 15.3.2008 in the school. They both rather ::: Downloaded on - 15/04/2017 21:56:51 :::HCHP 19 had turned hostile to the prosecution. According to PW-5 Dayal Singh, the mother of the prosecutrix never complained to him on .
22.3.2008 qua the accused subjected her daughter to sexual intercourse whereas according to him, the relations of the mother of the prosecutrix with accused and his family members were not cordial as she used to pick up quarrel with them of without any rhyme and reason for the last so many years. PW-8 Labh Singh is water carrier in Govt. Primary School, Thach and as rt per his version, on 15.3.2008 in the absence of the Headmaster of the School, it is he who locked the school in the evening after school time was over at 3:30 PM. The extract of teachers' attendance register Ext. PW-4/C corroborates the testimony of PW-8 Labh Singh because as per the entries in this document PW-4 Dhan Dev, Headmaster was on casual leave on that day.
Therefore, the testimony of PW-5 Dayal Singh also belies the prosecution case being wrong.
25. The prosecutrix, as per the date of birth certificate Exts. PW-3/A and PW-4/A, being born on 1.2.1998 was 10 years of age on the day of occurrence. In the case in hand, whether the evidence qua her age as has come on record is cogent and reliable or not need not be gone into for the reason that in view of the findings hereinabove, the involvement of the accused in the commission of the offence, he allegedly committed, is not at all established. Therefore, it is not deemed appropriate to ::: Downloaded on - 15/04/2017 21:56:51 :::HCHP 20 elaborate the evidence as has come on record by way of the testimony of PW-3 Tek Chand Panchayat Sahayak and PW-4 .
Dhan Dev Headmaster of the school as well as the documentary evidence i.e. date of birth certificates Ext. PW-3/A and PW-4/A.
26. If coming to the medical evidence as has come on of record by way of the testimony of PW-7 Dr. Sarla Chand and the MLC Ext. PW-7/B and also the report of Forensic Science Laboratory Ext. PW-12/A, the same is also not suggestive of that rt sexual/carnal intercourse was committed with the prosecutrix for the reason that semen and blood was not found on the salwar and vaginal slides of the prosecutrix and on underwear of the accused. The blood, no doubt, was found on vaginal swab of the prosecutrix, however, the same was not sufficient for further examination. No semen was, however, found on this exhibit.
Though, human blood was detected on anal swab of the prosecutrix, however, semen could not be found therein. The opinion of PW-7 Dr. Sarla Chand, no doubt, is that the prosecutrix was subjected to sexual intercourse which remained as it is even on the perusal of report of chemical examiner Ext. PW-12/A. However, while in the witness-box, she failed to give reasons in support of the opinion so given by her. Even if it is believed that hymen of the prosecutrix was ruptured, it cannot be said that it happens so only on account of commission of sexual intercourse with her by the accused, particularly when PW-7 Dr. Sarla Chand ::: Downloaded on - 15/04/2017 21:56:51 :::HCHP 21 has admitted that in a case of false implication, the possibility of the complainant party may have ruptured the hymen of the .
prosecutrix by inserting finger(s) in her vagina cannot be ruled out. Such possibility, in the present case, cannot be ruled out for the reason that the parents and other family members of the prosecutrix were inimical to the accused.
of
27. The remaining prosecution witnesses are police officials and remained associated during the investigation of the rt case in one way or the other. Their testimony could have been used as link evidence, however, had the prosecution been otherwise able to bring guilt home to the accused by producing cogent and reliable evidence. What to speak of cogent and reliable evidence connecting the accused with the commission of the offence, the present is a case of no evidence and as such it would not be improper to conclude that the accused has been falsely implicated in this case on account of enmity with the complainant party.
28. In view of what has been said hereinabove, the present is not a case where a view other than the one taken by the learned trial Court can be taken. Learned trial Court has rather rightly acquitted the accused of the charge as was framed against him. The impugned judgment, being legally and factually sustainable, calls for no interference.
::: Downloaded on - 15/04/2017 21:56:51 :::HCHP 2229. For all the reasons hereinabove, this appeal fails and .
the same is accordingly dismissed. The personal bonds furnished by the accused shall stand cancelled and the surety discharged.
(Dharam Chand Chaudhary), Judge.
of (Vivek Singh Thakur), Judge.
February 27, 2017.
rt (karan-) ::: Downloaded on - 15/04/2017 21:56:51 :::HCHP