Himachal Pradesh High Court
State Of Himachal Pradesh vs Amit Kumar on 20 June, 2016
Bench: Rajiv Sharma, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 463/2012
Reserved on: June 17, 2016
Decided on: June 20, 2016
.
________________________________________________________________
State of Himachal Pradesh ...... Appellant
Versus
Amit Kumar ........Respondent
________________________________________________________________
Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge
of
Hon'ble Mr. Justice Vivek Singh Thakur, Judge
Whether approved for reporting? 1 yes.
________________________________________________________________
For the appellant : Mr. M.A. Khan, Additional
rt Advocate General.
For the Respondent :
Mr. K.D. Sood, Senior Advocate
with Mr. Ankit Aggarwal, Advocate.
________________________________________________________________
Per Rajiv Sharma, Judge:
The present appeal has been filed by the State against Judgment dated 13.7.2012 rendered by the learned Sessions Judge, Bilaspur, HP, in Sessions Trial No. 09 of 2011, whereby respondent-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offences under Sections 452, 376 and 506 IPC, and, Section 3 (1)(XI) of The Scheduled Castes & The Scheduled Tribes (Prevention of Atrocities) Act, has been acquitted.
2. Case of the prosecution, in a nutshell, is that on 23.3.2011, the prosecutrix (name withheld) wife of Kishori Lal 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:37:05 :::HCHP 2came to Police Station, Barmana alongwith her husband and mother-in-law and lodged a report that her marriage was solemnised with Kishori Lal, resident of village Karot, about 9 .
years back ,according to Hindu rites. She had three children, two sons and one daughter. Daughter was six years old. Her house was situated at a lonely place. Her parents-in-law were residing at village Mugrani alongwith brother of her husband. On of 22.3.2011 at about 8.30 AM, her husband had gone to see the Nalwari fair at Bilaspur and she was alone in her house with her children. She further stated that her husband did not return to rt his house till evening. She and her children took meals and went to sleep at 9.00 PM. During the intervening night of 22 and 23.3.2011 at about 1.10 AM, somebody knocked at the door of her house from outside. She thought that her husband might have come back from the fair. She went to open the door. As soon as she opened the door, she found accused standing there. He caught hold of her from her arms and twisted the same towards her back. She started crying. He gagged her mouth with another hand. She stated that the accused lifted her and brought her in a room and made her to lie on a big trunk (box). She tried to rescue herself and raised hue and cry but due to gagging of her mouth, she was helpless. Accused opened the string of her Salwar, committed rape upon her forcibly and ran away from the spot.
She sustained injuries on her body and abrasions on her wrist, ::: Downloaded on - 15/04/2017 20:37:05 :::HCHP 3 her bangles were also broken. She further stated that due to fear she closed the door from inside and sat in a room. Her daughter Shivani who had hidden herself in a corner of a room, told the .
prosecutrix that "Mami main dar gaye thi, maine socha ki mujhe bhi marein gay". Thereafter, she slept in the bed with her children and asked her husband over telephone as to where he has reached. Her husband told that he had reached Jabal bridge of and would reach the house in a while. She also mentioned that at 2.15 AM, her husband Kishori Lal reached home but she did not tell him about the incident during night. In the morning, she rt narrated whole incident to her husband and also told her mother-in-law Smt. Krishani Devi on telephone. She belonged to a Scheduled Caste and accused had committed rape on her after trespassing into her house during midnight. Prosecutrix was medically examined by Dr. Supriya Atwal vide MLC Ext. PW-
11/A. Clothes of the prosecutrix were taken into possession. Site plan was also prepared. Accused was also medically examined.
Case property was sent to FSL Gutkar through Constable Hussan Lal. Investigation was completed. Challan was put in the Court after completing all the codal formalities.
3. Prosecution has examined as many as fifteen witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He pleaded innocence. Trial ::: Downloaded on - 15/04/2017 20:37:05 :::HCHP 4 Court acquitted the accused as noticed above. Hence, this appeal.
4. Mr. M.A. Khan, Additional Advocate General has .
vehemently argued that the prosecution has proved its case against the accused person.
5. Mr. K.D. Sood, learned Senior Advocate with Mr. Ankit Aggarwal, Advocate, has supported the judgment dated of 13.7.2012.
6. We have heard the learned counsel for the parties and also gone through the judgment and record carefully.
rt
7. Prosecutrix (name withheld) (PW-1) testified that she was married about nine years back. She had three children. Her husband had gone to see Nalwari fair at Bilaspur in the morning at 8.30 AM on 22.3.2011. He told her that he would come back after watching the night programme. She was present in her house alongwith her three children. They had gone to sleep at about 9 PM. In the intervening night of 22 and 23.3.2011 at about 1 AM, someone knocked at the door of her house. She thought that her husband has come back. She went to the ground floor and opened the door. When she opened the door, accused entered her house and caught hold of her from arms and breast and asked her about her husband. On this, she told the accused that her husband was sleeping, but he told that her husband was present in the Nalwari fair and he had consumed ::: Downloaded on - 15/04/2017 20:37:05 :::HCHP 5 liquor and that was why he has come to her house. When accused caught hold of her, she cried and tried to rescue herself but there was no one to save her. She also tried to push the .
accused away from her but accused had laid her on the box forcibly and committed sexual intercourse with her against her consent. After committing rape, accused fled away. He also threatened her not to disclose the incident to anybody otherwise of he kill her. Her husband came to the house at 2.30 AM. He was under the influence of liquor. She asked him if he wanted to take meals. He refused. Prosecutrix did not disclose to him anything rt due to the fear that he might kill the accused. At about 6 AM, she disclosed to her husband that the accused had committed rape upon her. She also disclosed this fact to her mother-in-law over the telephone. Her mother-in-law reached her house. Her bangles were broken and she had received injuries on her body.
She, alongwith her husband and mother-in-law, went to the Police Station Barmana and lodged report against the accused.
She was medically examined in Zonal Hospital Bilaspur. Police visited the spot and took into possession the broken bangles and Dupatta and sealed in a separate parcel and took into possession vide memo Ext. PW-1/B. In her cross-examination she admitted that the house of maternal uncle of her husband was situated adjoining to their house at the same level. Her house was double storied. There were two rooms in ground floor and one room and ::: Downloaded on - 15/04/2017 20:37:05 :::HCHP 6 store room on the upper storey. At the time of knocking of door, she did not hear any voice. When she opened the door, she did not have any talk with the accused nor the accused uttered any .
word. Accused talked to her in the room. When she tried to save herself from the accused, she received abrasions/ injuries on her wrists, breast and legs. Blood also oozed out from the injuries.
She had shown injuries to the lady constable as well as to the of Doctor. Accused remained in the house for about one hour. The fact that when accused entered her house, she asked about her husband and she told him that he was sleeping, then accused rt told her that her husband was lying in the Mela after consuming liquor and that was why he had come, was disclosed by her to the police at the time of lodging FIR. (confronted with Ext. PW-
1/A, wherein it is not so recorded). Fact that accused had threatened her not to disclose about sexual intercourse to anybody otherwise he would kill her, was disclosed by her to the police at the time of lodging FIR. (confronted with Ext. PW-1/A, wherein it is not so recorded). The fact that when her husband arrived home in the night, she did not disclose about the sexual intercourse to him thinking that if she disclosed the same, her husband might kill the accused, was disclosed by her to the police at the time of recording FIR. (confronted with Ext. PW-1/A, wherein it is not so recorded).
::: Downloaded on - 15/04/2017 20:37:05 :::HCHP 78. Krishani Devi (PW-2) is the mother-in-law of the prosecutrix. She received a telephonic call from the prosecutrix.
She went to village Karot. She alongwith prosecutrix and Kishori .
Lal went to the Police Station. Prosecutrix lodged FIR Ext. PW-
1/A with the Police Station. Police visited the spot and took into possession broken bangles, bed sheet and Dupatta. Police sealed the articles and took the same into possession.
of
9. Kishori Lal (PW-3) is the husband of the prosecutrix.
He testified that he reached his house at 2.15 AM on the intervening night of 22 and 23.3.2011.
rt His wife asked him to take meals. He refused. He went to sleep. In the morning, his wife disclosed to him that at about 1.15 AM, in the midnight, accused had come to the house and committed rape upon her. In his cross-examination, he admitted that when he reached his house, door was opened by his wife on his knocking. He had called his wife from outside and asked her to open the door. He admitted that whenever he reached house during night, either he used to call his wife from outside or on the telephone before entering the house. He also admitted that the house of his maternal uncle Mansha Ram was situate near to his house and there were about 7/8 family members in that house.
10. Sant Ram (PW-4) testified that he accompanied the police to the house of Kishori Lal where they took photographs in the house of Kishori Lal. Police took into possession the broken ::: Downloaded on - 15/04/2017 20:37:05 :::HCHP 8 bangles of prosecutrix which were sealed and put in a parcel.
Police also took into possession bed sheet and Dupatta.
11. Brij Lal (PW-5) deposed that he visited the house of .
Kishori Lal and prepared site plan.
12. Kumari Shivani (PW-6) is the daughter of the prosecutrix. In answer to Question No. 9 put to her by the Public Prosecutor, she testified that she had heard cries of her mother of and saw from the hole of the stair case that her mother was lying on the tin box and accused was doing 'Ghoolna' with her mother.
She also deposed that when her father entered the house, during rt nighttime, her mother asked him to take meals but she had not disclosed anything else to him. Her father slept in the ground floor on that night.
13. Gandhi Ram (PW-7) recorded FIR Ext. PW-1/A.
14. Dr. Kuldeep Singh (PW-8) has medically examined the accused. He issued MLC Ext. PW-8/A. No blood was present on the injuries of the accused. Abrasions were dark brown.
Abrasions were horizontal on forehead and vertical on nose and forearms.
15. Lady Constable Maya Devi (PW-10) testified that she accompanied the prosecutrix to Regional Hospital Bilaspur.
16. Dr. Supriya Atwal (PW-11) has medically examined the prosecutrix. She issued MLC Ext. PW-11/A. In her final opinion, she stated that there were signs of physical violence and ::: Downloaded on - 15/04/2017 20:37:05 :::HCHP 9 possibility of sexual intercourse could not be ruled out. In her cross-examination she admitted that injuries were superficial and no blood was oozing out from the abrasions. Semen, which was .
detected, as per report of FSL, Ext. PW-11/B, could not be identified.
17. Balak Ram (PW-12) prepared the Tatima of the house of Kishori Lal.
of
18. Bhagat Ram (PW-15) testified that he was posted as Additional Superintendent of Police, Bilaspur since April, 2010.
On 23.3.2011, after registration of FIR, Ext. PW-1/A, he visited rt the spot He took photographs Ext. P-14 to Ext. P-23 and took into possession broken pieces of bangles. In his cross-
examination, he has admitted that he has seen the memo of information of arrest of accused. There was no reference to any injury on the person of the accused. He admitted hat there was a ventilator near entrance door but it was not shown in Ext. PW-
15/A. He has not recorded the statements of Mansha Ram or his family member during investigation.
19. Case of the prosecution, precisely, is that when PW-1 (Prosecutrix) was alone and Kishori Lal (PW-3) was away, accused entered the house and committed forcible sexual intercourse with the prosecutrix.
20. Prosecutrix, in her examination-in-chief, has testified that accused entered the house at 1 AM and thereafter ::: Downloaded on - 15/04/2017 20:37:05 :::HCHP 10 committed forcible intercourse with her. Her husband came to the house at 2.30 AM. However, she did not disclose the incident to him. Incident was disclosed to the husband only at 6 AM in .
the morning. It is an unusual conduct on the part of prosecutrix.
It was expected from the prosecutrix to immediately inform her husband about the incident instead of waiting till 6 AM.
Explanation given by her that she apprehended that her husband of would kill the accused, is not believable. PW-3 Kishori Lal, in his cross-examination, has categorically stated that when he usually entered the house at night, he either used to call his wife or rt inform her over the telephone. Prosecutrix, thus, was not supposed to open the door when it was knocked by a stranger.
Prosecutrix has informed her mother-in-law over the telephone. It has come on record, as noticed above, that husband used to inform the prosecutrix of his whereabouts on the telephone as and when he reached near the house. Thus telephone was available with her. She could immediately inform her mother-in-
law or husband about the incident. PW-1 (Prosecutrix) has admitted that the house of maternal uncle namely Mansha Ram was adjoining to their house on the same level. PW-3 Kishori Lal has also admitted in his cross-examination that the house of his maternal uncle Mansha Ram was situate near to his house and there were 7-8 family members in that house. Had the prosecutrix raised alarm, same could not go unnoticed by ::: Downloaded on - 15/04/2017 20:37:05 :::HCHP 11 Mansha Ram or his family members. Accused, according to the prosecutrix, remained in the house for about one hour. She had sufficient time to raise alarm. According to the prosecutrix, blood .
oozed out from the injuries but no blood was noticed by the Doctor who examined her. It has also come in the statement of PW-3 Kishori Lal that on the relevant day also when he reached his house, he knocked the door and asked his wife to open the of door. Thereafter door was opened by his wife. Thus, prosecutrix was not supposed to open the door without identifying the person who was knocking the door at night. Natural conduct of the rt prosecutrix would have been to disclose immediately the incident to her husband instead of trying to save the accused. She could also visit the house of Mansha Ram which was adjoining to their house till her husband had not come, immediately after the incident had taken place. Prosecutrix has testified that the box was covered with bed sheet and she had spread Dupatta on the box whereas Sant Ram testified that the bed sheet and Dupatta were lying on the cot. Prosecutrix has deposed that she had received injuries and bruises on her body but in the medical examination, these injuries were not noticed by the doctor.
21. Prosecutrix has made various improvements in her statement. In her examination-in-chief, she deposed that accused entered the house and inquired about her husband upon which she told that her husband was sleeping. However, it is not so ::: Downloaded on - 15/04/2017 20:37:05 :::HCHP 12 recorded in the FIR. She also stated that accused had threatened not to disclose the incident to anybody otherwise he would kill her. This fact is also not mentioned in the FIR. Prosecutrix .
deposed that she apprehended that if she narrated the incident to her husband, her husband would kill the accused. It is also not so mentioned in the FIR.
22. The statement of the prosecutrix is neither of trustworthy nor natural and does not inspire confidence. Shivani (PW-6) has not answered the most of the relevant questions put to her by the learned defence Counsel. Even according to her, rt when she saw accused and her mother (prosecutrix), both of them were wearing their clothes. Thus, the prosecution has failed to prove its case against the accused beyond reasonable doubt.
23. 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 of. Bail bonds of the accused are discharged.
(Rajiv Sharma) Judge (Vivek Singh Thakur) Judge June 20, 2016 (vikrant) ::: Downloaded on - 15/04/2017 20:37:05 :::HCHP