Himachal Pradesh High Court
State Of H.P vs Kushal Kumar on 9 December, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr.MP(M) No. 1408 of 2015.
Date of Decision: 9th December, 2015.
.
State of H.P. ..... Petitioner.
Versus
Kushal Kumar ....Respondent.
of
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Sureshwar Thakur,
rt
Judge.
Whether approved for reporting?
For the Appellant: Mr. M.A. Khan, Addl. A.G.
with Mr. P.M. Negi, Dy. A.G.
and Mr. Ramesh Thakur,
Assistant A.G.
For the Respondent: Nemo.
_______________________________________________________
Sureshwar Thakur, Judge (Oral)
The State of Himachal Pradesh is aggrieved by the findings of acquittal recorded in favour of the respondent/accused by the learned Special Judge, Mandi, District Mandi, H.P. Being aggrieved, it has sought the leave of this Court for instituting an appeal therefrom for assailing it.
::: Downloaded on - 15/04/2017 19:27:50 :::HCHP 22. Briefly stated the facts of the case are that prosecutrix was known to the child in conflict with law Ajay Shrivastava (hereinafter to be referred in short as .
Juvenile). He was introduced to the prosecutrix in a birthday party by her friend at village Naal. The prosecutrix remained in the house of her friend and on the next day came in a bus alongwith juvenile. The of prosecutrix alighted from the bus at Silhi and reached Chamukha. rtThe juvenile called the prosecutrix to a lonely place in a jungle and committed rape with her without her consent. The juvenile threatened the prosecutrix with dire consequences in case of disclosure to any one. When the prosecutrix did not get menstruation she disclosed this fact to juvenile who gave her Prega-news pregnancy test kit and after conducting the test, the prosecutrix found that the same was negative. The juvenile again called the prosecutrix to Sundernagar by threatening and as per the allegations the accused in the present case took the prosecutrix to Sundernagar on his scooter. The juvenile took the prosecutrix to a party from where she was taken to Naulakha and the juvenile met the ::: Downloaded on - 15/04/2017 19:27:50 :::HCHP 3 prosecutrix near a brick kiln and took her to a lonely place in the jungle and committed rape with her. The juvenile repeated sexual assault on prosecutrix near a .
rocky place in the jungle. The prosecutrix was threatened by the juvenile not to disclose this fact to anyone. The prosecutrix was thereafter left at her house by the accused on the directions of the uncle of of the prosecutrix. She disclosed everything to her mother PW-4 and FIR was registered.
rt During the investigating the prosecutrix was produced before the doctor where she was medically examined. He statement was recorded by PW-16 Vidya Devi. During the investigation, the prosecutrix identified the places where she was raped by the juvenile. The challan against the juvenile was filed before the learned Juvenile Justice Board and police during the investigating came to the conclusion that the present accused had conspired with the juvenile and in conspiracy to that the prosecutrix was subject to sexual assault by the juvenile.
3. On conclusion of the investigation, into the offence, allegedly committed by the accused, a report ::: Downloaded on - 15/04/2017 19:27:50 :::HCHP 4 under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court.
4. The accused was charged by the learned .
trial Court for allegedly committing offence punishable under Section 120-B of the Indian Penal Code. In proof of the prosecution case, the prosecution examined 17 witnesses. On conclusion of recording of the of prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure rt was recorded by the learned trial Court, in which the accused claimed innocence and pleaded false implication in the case.
5. On an appraisal of evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused/respondent.
6. The State of H.P. is aggrieved by the judgment of acquittal rendered by the learned trial Court. The learned Additional Advocate General has concerted to vigorously contend qua the findings of acquittal recorded by the learned trial Court being not based on a proper appreciation of evidence on record, rather, theirs being sequelled by gross mis-
::: Downloaded on - 15/04/2017 19:27:50 :::HCHP 5appreciation of material on record. Hence, he contends for leave being granted to the State of H.P. to institute an appeal therefrom for assailing it.
.
7. I have heard the learned Additional Advocate General at length and have also gone through the entire material on record.
8. The investigating Officer while holding an of investigating against juvenile Ajay Srivastva for his allegedly committing forcible sexual intercourse upon rt minor prosecutrix unearthed thereon of the accused/respondent herein holding a conspiracy with the juvenile in the latter's subjecting the minor prosecutrix to forcible sexual intercourse. The Investigating Officer, hence, instituted a report under Section 173 of the Code of Criminal Procedure before the committal Court which committed the respondent/accused for trial for a charge of conspiracy before the learned Special Judge, Mandi. For a charge of conspiracy as stood framed against the accused/respondent to attain success it was incumbent upon the prosecution to establish the preeminent factum of the accused/respondent herein ::: Downloaded on - 15/04/2017 19:27:50 :::HCHP 6 having hatched a conspiracy with juvenile Ajay Srivastva, comprised in an agreement or plot hatched inter se both embodying therein a commitment of the .
accused to render co-operation to juvenile Ajay Srivastva for facilitating the latter's object of perpetrating forcible sexual intercourse upon minor prosecutrix. Proof of the aforesaid essential rubrics of comprised in the incriminatory act of criminal conspiracy would rarely stand comprised in direct rt evidence especially given the elements of secretiveness, surreptitiousness besides discreteness ingraining the penal act of conspiracy, camouflage eruption of direct evidence in proof thereof. Even circumstantial evidence in proof thereof is enjoined to be both potent and firm for unerringly establishing the tenets aforesaid comprised in the offence of criminal conspiracy.
9. The evidence adduced by the prosecution for its sustaining the charge of criminal conspiracy against the accused is neither direct nor circumstantial. Non existence of both direct and indirect evidence besides its concomitant non ::: Downloaded on - 15/04/2017 19:27:50 :::HCHP 7 adduction dislodges arising from disproof thereof the canons enjoined to be implicitly imbued in the incriminating act of criminal conspiracy. In sequel, .
abysmal want of evidence direct or indirect for sustaining the indispensable tenets constituted in the inculpable act of criminal conspiracy renders unsustainable the charge for which the accused stood of tried besides stood aptly concluded by the learned trial Court to merit an acquittal from it.
rt
10. Preeminently the statement of the prosecutrix portraying the factum of the juvenile having introduced the accused to her besides, hers deposing qua the accused owing to his friendship with the juvenile having carried her in good faith on a scooter from Silhi, as also, hers admitting in her cross-
examination of the accused having not played any role in the occurrence and his after dropping her at her house, his having left therefrom when construed in conjunction with the further admission in her deposition of the accused having no knowledge nor reasons to believe of any likelihood of the juvenile subjecting her to forcible sexual intercourse, ::: Downloaded on - 15/04/2017 19:27:50 :::HCHP 8 de-establishes the factum of the accused holding any conspiracy with the juvenile at any stage in the latter's committing forcible sexual intercourse upon the minor .
prosecutrix.
11. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court below has appraised the entire evidence on of record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by rt the learned trial Court does not suffer from any perversity or absurdity of mis-appreciation and non appreciation of evidence on record, rather it has aptly appreciated the material available on record.
Consequently, the instant application is dismissed, in sequel, the prayer of the State of Himachal Pradesh for grant of leave to it to appeal against the judgment of the learned trial Court is refused.
(Rajiv Sharma) Judge.
(Sureshwar Thakur)
9 th
December, 2015 Judge.
(jai)
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