Himachal Pradesh High Court
State Of H.P vs Sunder Kumar on 9 December, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr.MP(M) No. 1083 of 2015.
Date of Decision: 9th December, 2015.
.
State of H.P. ..... Petitioner.
Versus
Sunder 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 Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, District Shimla, 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 on 11.8.2013 at about 4.00 p.m. at Shintidhar Neval Dograi Jungle, Tehsil Rampur, District Shimla, H.P. and .
on 15.8.2013 at Village Molgi, Tehsil Rampur, District Shimla, H.P., the accused subjected the prosecutrix to forcible sexual intercourse and criminally intimidated and threatened her with dire consequences in the of event of disclosure of the incident to her parents or elsewhere. On 1.9.2013 at about 4 p.m. , at village rt Molgi, the accused abducted the prosecutrix and forcible took her to Shivam Hotel, Bhadrash, Tehsil Rampur, District Shimla and subjected her to forcible sexual intercourse. He stayed in the hotel with false identity. On 2.9.2013, the accused and the prosecutrix left Shivam Hotel at 6.a.m. for Jeori. The accused dropped the prosecutrix at Jeori asking her to return back home. The prosecutrix out of fear did not return home and took shelter in an under construction house at Jeori. She stayed there till 9.9.2013 and thereafter went to village Bishdaur to the house of her Bua and disclosed the entire incident to her. On 11.9.2013, she called her maternal aunt Chandermani ::: Downloaded on - 15/04/2017 19:27:50 :::HCHP 3 and narrated the incident to her. Later, her father Purshottam Dass came to know about the incident and on 12.9.2013, the matter was reported at police .
station, Jhakri leading to registration of FIR. Pursuant to the registration of FIR, the prosecutrix was sent for medical examination to MGMSC, Khaneri where she was examined by Dr. Anupam Gupta. During the of course of investigating, the preserved clothes, vaginal slides, vaginal swabs, pubic hair etc were sent for rt chemical and forensic examination and the Investigating Officer prepared the spot maps of the places where the prosecutrix was subject to forcible sexual intercourse by the accused on the identification of the prosecutrix. The statements of the witnesses were recorded separately and forensic report from FSL, Junga was procured separately.
3. On conclusion of the investigation into the offences allegedly committed by the accused, a report 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 offences ::: Downloaded on - 15/04/2017 19:27:50 :::HCHP 4 punishable under Sections 366, 376, 419 and 506 of the Indian Penal Code. In proof of the prosecution case, the prosecution examined 19 witnesses. On .
conclusion of recording of the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded by the learned trial Court, in which the accused claimed of innocence and pleaded false implication in the case.
5. On an appraisal of evidence on record, the rt 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-
appreciation 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.
::: Downloaded on - 15/04/2017 19:27:50 :::HCHP 57. I have heard the learned Additional Advocate General at length and have also gone through the entire material on record.
.
8. The sole testimony of the prosecutrix if inspiring confidence besides worthy of credit would solitarily be sufficient for anchoring thereupon findings of conviction against the accused. However, before of imputing solemnity to the testimony of the prosecutrix, it is incumbent to on its keen wholesome rt discernment gauge therefrom qua hence of a truthful version qua the incident standing upsurged therefrom for rendering her unfoldments qua the occurrence being bereft of any taint of unnaturalness besides invention. For disinterring from the deposition on oath of the prosecutrix, the preeminent factum of her version qua the incident being bereft of any taint of unnaturalness especially when she alleges the accused having perpetrated forcible sexual intercourse upon her obviously no occurrence in her deposition in portrayal of hers having meted consent to the accused in the latter's subjecting her to sexual intercourses ought to exist. The prosecutrix being a ::: Downloaded on - 15/04/2017 19:27:50 :::HCHP 6 major was competent to accord consent to the accused in the latter subjecting her to sexual intercourses. Withholding of consent by the .
prosecutrix to the accused would stand aroused from hers having repulsed the sexual overtures of the accused denoted by existence of injuries on her person besides on the person of the accused.
of Moreover, a quick reporting of the occurrence to the police station concerned would vividly display the rt prosecutrix having withheld her consent to the accused subjecting her to sexual intercourses.
9. For rendering a determination qua the prosecutrix having withheld her consent to the accused subjecting her to sexual intercourses, the factum of (a) the initial sexual intercourse standing occurred on 11.8.2013 at Shintidhar Newal Dogri Jungle which adjoins a public path traversed by local villagers for accessing village Ghanvi, is significant, especially when there is a palpable omission of the prosecutrix to solicit by raising shrieks and cries, the presence of villagers who trudge the path, in sequel rendering open an inference of hers having ::: Downloaded on - 15/04/2017 19:27:50 :::HCHP 7 consensually succumbed on 11.8.2013 to the sexual overtures of the accused; (b) the sexual encounter succeeding the initial sexual encounter inter se the .
prosecutrix and the accused occurred on 15.8.2013 at the house of the prosecutrix where she at the relevant time was alone also appears to be consensual given hers having permitted the accused to access her at of her home even when she stood previously on 11.8.2013 subjected rt to alleged forcible sexual intercourse by the accused. The factum of the prosecutrix omitting to promptly report the sexual encounters of 11.8.2013 and 15.8.2013 which occurred inter se her and the accused, constrains an inference of hers having consented to the aforesaid sexual overtures of the accused and (c) the third sexual encounter inter se the accused and the prosecutrix occurred on 1.9.2013 in room No.704 in Shivam Hotel at Village Bhadrash whereto she was purportedly abducted by the accused from her village Molgi, nonetheless, the factum of hers having not awakened the staff of Shivam hotel at Bhadrash qua the penal misdemeanors of the accused bolsters an ::: Downloaded on - 15/04/2017 19:27:50 :::HCHP 8 inference of hers having voluntarily accompanied the accused to the place aforesaid besides of hers consensually succumbing to the sexual overtures of .
the accused which stood consummated thereat. Even though the accused dropped the prosecutrix on 2.9.2013 at Jeori yet she did not return home rather preferred to purportedly from 2.9.2013 to 9.9.2013 of stay/inhabit a house under construction at Jeori. The factum of the prosecutrix having from 2.9.2013 to rt 9.9.2013 stayed in a house under construction at Jeori stands belied by PW-18 deposing qua hers noticing the prosecutrix in a hale and hearty condition which state of felicity would not have stood bestowed upon her given hers remaining without food and water for eight days in a house under construction at Jeori.
Dehors the prosecutrix standing belied qua the factum aforesaid, the further factum of hers not apprising the owners of the building or of the house under construction at Jeori whereat she had put up for eight days qua the constraints which beset her for residing thereat does render the aforesaid explanation qua absence of the prosecutrix from her house since ::: Downloaded on - 15/04/2017 19:27:50 :::HCHP 9 1.9.2013 to 9.9.2013 being ridden with a vice of falsity. Given the falsity gripping the aforesaid explanation meted by the prosecutrix for her absence .
from her house w.e.f. 1.9.2013 to 9.9.2013 besides its being conjunctively construed with the delay in the lodging of an FIR qua the initial sexual encounter inter se her and the accused since its occurrence on of 11.8.2013 upto 12.9.2013 fosters an inference of even the sexual encounters inter se the prosecutrix and the rt accused succeeding it being a sequel to hers meteing consent to the latter. Furthermore, Ex.PW13/B MLC prepared by the doctor concerned in sequel to hers subjecting the prosecutrix to medical examination belies the version of the prosecutrix of hers on 11.8.2013 having resisted the sexual overtures of the accused in which concert she had received an injury on her back especially when it omits to inconsonance with her version depict any injury on her back.
10. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court below has appraised the entire evidence on record in a wholesome and harmonious ::: Downloaded on - 15/04/2017 19:27:50 :::HCHP 10 manner apart therefrom the analysis of the material on record by 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 of for grant of leave to it to appeal against the judgment of the learned trial Court is refused.
rt (Rajiv Sharma) Judge.
(Sureshwar Thakur)
9 th
December, 2015 Judge.
(jai)
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