Himachal Pradesh High Court
State Of Himachal Pradesh vs Chaman Lal on 14 September, 2016
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 36/2014
Reserved on: September 9, 2016
Decided on: September 14, 2016
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________________________________________________________________
State of Himachal Pradesh ...... Appellant
Versus
Chaman Lal ........Respondent
________________________________________________________________
Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge
Hon'ble Mr. Justice Sureshwar Thakur, Judge
of
Whether approved for reporting? 1 yes.
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For the appellant : Mr. M.A. Khan, Additional
Advocate General.
For the Respondent
rt Mr. :
Devender
Advocate.
K. Sharma,
________________________________________________________________
Per Rajiv Sharma, Judge:
The present appeal has been filed by the State against Judgment dated 2.5.2013 rendered by the learned Additional Sessions Judge, Mandi, District Mandi, Himachal Pradesh in Sessions Trial No. 2 of 2009, whereby respondent-
accused (hereinafter referred to as 'accused' for convenience sake) who was charged with and tried for offence under Sections 376 and 506 IPC, has been acquitted.
2. Case of the prosecution, in a nutshell, is that on 22.4.2008, Jai Ram, father of the prosecutrix got registered FIR No. 68 of 2008 against the accused in Police Station Karsog with the allegations that on 1.4.2008, his wife Dhaneshwari Devi telephonically informed him at Shimla that their daughter 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:13:40 :::HCHP 2(Prosecutrix) is pregnant. It was alleged that the prosecutrix told her mother that when she used to go to jungle to graze goats and cattle, then accused also used to go to jungle to graze cattle and .
goats. Prosecutrix told her mother that three-four months ago, accused had sexual intercourse with her forcibly and without her consent. Accused threatened the prosecutrix not to disclose the incident to anyone. Due to fear and due to forgetting the same, of and further due to mental weakness, she did not disclose about the incident to anyone including her mother. Complainant was working at Shimla and was busy in treatment of another rt daughter at IGMC Shimla. Due to this reason, matter was not reported to the police earlier. During investigation, prosecutrix was got medically examined and as per Medical Officer, she was found habitual to sexual intercourse and was carrying a pregnancy of 31 weeks. Her age was stated to be 19 years.
Prosecutrix was alleged to be mentally retarded. She was medically examined at IGMC Shimla as well as PGI Chandigarh.
Birth certificate of the prosecutrix was obtained from the concerned Panchayat. Prosecutrix gave birth to a female child on 19.6.2008 at KNH Shimla. Blood samples of the prosecutrix, the bay and the accused were taken for DNA test. As per report, accused was the biological father of the female child.
Investigation was completed. Challan was put in the Court after completing all the codal formalities.
::: Downloaded on - 15/04/2017 21:13:40 :::HCHP 33. Prosecution has examined as many as twenty three witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He pleaded innocence. Trial .
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 of against the accused person.
5. Mr. Devender K. Sharma, Advocate, has supported the judgment dated 2.5.2013.
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6. We have heard the learned counsel for the parties and also gone through the judgment and record carefully.
7. PW-1 Jai Ram is the father of the prosecutrix. He testified that he had three sons and three daughters. Prosecutrix was his daughter. She was aged 20 years in the year 2008. She stammered while talking. She was medically retarded. She could understand her welfare. His elder daughter was under treatment in IGMC Shimla. His wife called him on 1.4.2008 that the prosecutrix was pregnant by eight months from the accused.
Prosecutrix did not reveal the incident due to shame. He came on 7th. He could not come earlier due to operation of his daughter.
Accused came to their house. He admitted that child belonged to him. He was ready to maintain the child but was not ready to marry the prosecutrix. He made complaint Ext. PW-1/A to the police. PW-1 resiled from his earlier statement. He was cross-
::: Downloaded on - 15/04/2017 21:13:40 :::HCHP 4examined by the Public Prosecutor. He admitted that he had told the police that the girl was mentally weak. He also admitted that he had told the police that his daughter was mentally ill and .
unable to communicate properly. Volunteered that he was confused and did not know what was written by the police. In his cross-examination by the learned defence Counsel, he has deposed that his daughter performs all household chores. She of has difficulty in speaking. She could understand everything. She was illiterate and understood local language. She was residing happily with her family and a daughter was born to her. She was rt maintaining her daughter.
8. PW-2 Dhaneshwari Devi is the mother of the prosecutrix. She deposed that PW-4 Lajwanti told her that the prosecutrix was saying that she was pregnant. She made inquiry from her. She told her that the child belonged to the accused. she also told that the accused had threatened her not to disclose the incident at home. Her husband was attending to her elder daughter at Shimla. Her brother-in-law came. Prosecutrix used to stammer. She performed the work after reminding her twice or thrice and it was difficult to make her understand. She had told her that the accused had done wrong act in the month of Bhado.
Accused came to their house. Her agreed to take the child but refused to marry the prosecutrix. When her husband, matter was reported to the police. Police came. Photographs were taken. Girl showed the places where she was raped. In her cross-
::: Downloaded on - 15/04/2017 21:13:40 :::HCHP 5examination, she deposed that her daughter was doing all household chores.
9. Prosecutrix PW-3 testified that she used to take .
cattle to jungle for grazing. She used to do work of grazing the cattle and goats. Accused used to come to graze cattle. About three years ago, in the month of Bhado, she had gone to the jungle for grazing the cattle. She was caught by arm and was of taken to a cave. Accused gagged her mouth and raped her.
Accused threatened to kill her in case the incident was revealed to any person. She told this fact to her younger sister Lajwanti.
rt She did not tell the incident to anyone else since she was afraid.
Her mother inquired about the paternity of the child. She told that the child was of the accused. Her father came after the operation of her sister. She was medically examined. Her blood sample was taken. Police came to the village. Member, Kameshwar and her maternal aunt also came. She showed the places to the police, where she had been raped. In her cross-
examination by the learned defence Counsel, she deposed that she was 20 years of age. She performed all household work. She was married about 1 ½ year back. One daughter was born to her.
She was named Neha. She was residing at Tehsil Nihri earlier and now was residing at Tehsil Thunag. She had studied upto 5th Class at Primary School Fegal. She failed and her mother declined to send her to the school. Accused had raped her thrice.
::: Downloaded on - 15/04/2017 21:13:40 :::HCHP 6She was raped 2-3 days of the first incident and then 6-7 days after the incident. She was taking care of her daughter.
10. PW-4 Lajwanti is the sister of the prosecutrix. She .
deposed that that she was studying in 7th class in 2008. She had gone to Chanjeer (Marla Nala) for grazing cattle with her sister.
Her sister used to graze cattle. Her mental condition was not proper. She was wearing a shawl. She inquired from her as to of why she was wearing the shawl in such a hot weather. It was difficult for her to wear the cardigan and how she could wear shawl. She told that she was carrying a child in her womb. She rt was shocked. She inquired about the father of the child. She replied that the child was of accused. she told this fact to her maternal aunt Banti Devi and to her maternal uncle Bodh Raj.
Later this fact was told to her mother. In her cross-examination, she told that she used to make inquire from prosecutrix as to why she kept shawl and she used to reply that it was cold.
Prosecutrix had studied upto 5th class. Her sister was married in village Janjehli.
11. PW-5 Kameshwar testified that on 25.4.2008, police called him, Begu Devi, Shanti Devi , Dhaneshwari Devi, Banti Devi etc. Prosecutrix showed three places where she was raped.
Photographs were taken. Accused had shown one place in a cave.
Photographs of the places were taken. Site plan was prepared.
12. PW-6 Dhani Ram deposed that he came to know at Shimla that the prosecutrix was pregnant by accused. He and ::: Downloaded on - 15/04/2017 21:13:40 :::HCHP 7 Narain were called by his sister-in-law, Dhaneshwari. Accused had also come to the house. He confessed his guilt and promised to take care of the child but refused to marry the prosecutrix.
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13. PW-7 Surender Kumar deposed that police filed an application Ext. PW-7/A, on which he issued birth certificate of the prosecutrix, Ext. PW-7/B.
14. PW-8 Jitender Kumar has done the blood grouping of of the prosecutrix and the accused.
15. PW-9 Dr. Sarla Chand testified that she was posted as Medical Officer, rt Zonal Hospital Mandi 6 years back.
Application was received for conducting medical examination.
She has conducted medical examination on 23.4.2008 at 12.30 PM. Prosecutrix was brought with alleged history of sexual assault by the accused, 3-4 times, eight months prior to the examination. Patient was conscious, cooperative and well oriented to time, place and person. According to her, patient was sexually exposed. However, last date of coitus could not be given.
She was pregnant at the time of examination. She advised ultrasound of the abdomen to determine the size of foetus and time of pregnancy. As per final opinion, patient was habitual of sexual intercourse and she was pregnant for 31 weeks. Her age was 19 years. Her blood group was A+. She issued MLC Ext. PW-
9/B.
16. PW-10 Dr. Rakesh Kumar is the radiologist.
Prosecutrix was referred to him by Dr. Sarla Chand for age ::: Downloaded on - 15/04/2017 21:13:40 :::HCHP 8 verification. He issued report Ext. PW-10/B. He has also undertaken ultrasound examination of the prosecutrix. He issued Ext. PW-10/D. .
17. Dr. Ramesh Kumar (PW-11) testified that he was posted as Assistant Professor, Department of Psychiatry in 2007.
He examined the prosecutrix on 2.5.2008. History was obtained from her father. Based on the history and mental state of examination, she appeared to be mentally retarded. She was referred to PGI Chandigarh for determination of her IQ as per the report received from PGI MER, her IQ was 62. Based on the rt history and mental state examination and IQ assessment report, she had mild mental retardation. She was not in a position to understand the good and bad aspects of the alleged sexual assault. He sent his report alongwith the report of PGI to the Senior medical Superintendent vide letter Ext. PW-11/A. In his cross-examination, he deposed that he had given in his opinion that she was unable to understand good and bad aspects of the sexual assault on the basis of questions, activities and IQ record.
He recorded history of the patient on the basis of information. He had talked to the prosecutrix.
18. PW-12 Dr. Jeeva Nand Chauhan has examined the accused on 29.4.2008 at 11.10 AM. He issued MLC Ext. PW-
12/B. ::: Downloaded on - 15/04/2017 21:13:40 :::HCHP 9
19. PW-13 Sh. Nand Singh has deposed that the blood samples of the baby of the prosecutrix were taken by Dr. Joyti Sharma, for analysis of blood group.
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20. Dr. Monika Sharma (PW-14) has taken blood samples of accused.
21. PW-15 MHC Sarwan Kumar has handed over parcels with box and all the articles deposited with him to Constable of Rameshwar on 25.6.2008 with the direction to carry these to CFSL Chandigarh vide RC No. 36/08.
22. PW-19 SI Sunder Singh went to the spot on rt 25.4.2008 and associated the prosecutrix, Ward Panch Begu Devi, Dhaneshwari Devi and Kameshwar Dutt. He went with the victim and Shyam Lal to the spot in Dachihar Jungle. Prosecutrix pointed out a cave where one storied house was being constructed. Banti Devi was present. Site plan was prepared.
Photographs of the spot were taken. Blood samples of accused and prosecutrix were taken. Application Ext. PW-19/F was moved for conducting the mental examination of the victim. She was referred to the PGI Chandigarh.
23. PW-20 Dr. Rajiv Sood deposed that the prosecutrix has delivered a full term female child on 18.6.2008.
24. PW-21 Dr. Joyti Sharma testified that she collected blood of prosecutrix on 20.6.2008 at 11.15 AM.
25. PW-22 Dr. Rama Malhotra is a material witness. She has examined the prosecutrix. According to her mean IQ 62 falls ::: Downloaded on - 15/04/2017 21:13:40 :::HCHP 10 in the category of mild mental retardation. She issued Ext. PW-
22/A. Report was warded to the Senior Medical Superintendent.
In her cross-examination, she deposed that a person having .
mental retardation can enter marriage if the other person is made aware of this fact and volunteers to marry her. Such a person can not take care of a child. A person having mild mental retardation can tell about the sexual assault committed upon her of after three years. She does not have the ability to manipulate the facts.
26. PW-23 Dr. Sanjeev, Assistant Director, CFI Bhopal rt has proved report Ext. PW-23/A. As per Ext. PW-23/A, the accused was the father of the baby of the prosecutrix.
27. What emerges from the appraisal of evidence is that the prosecutrix PW-3 has testified that three years back, in the month of Bhado, she had gone to the jungle to graze the cattle.
She was caught by the accused, from the arms. She was taken to a cave by the accused. accused gagged her mouth and raped her.
He threatened to kill her in case the incident was disclosed to any one. She told the incident to her younger sister Lajwanti. She did not tell the incident to any other person because she was scared.
In the cross-examination, she has deposed that the accused has raped her thrice. She was raped 2-3 days after the first assault and then 6-7 days thereafter. PW-4 Lajwanti corroborated the statement of the prosecutrix. She deposed that her sister used to wear a Shawl in the summers also, in hot weather. Her sister told ::: Downloaded on - 15/04/2017 21:13:40 :::HCHP 11 that she was pregnant. Incident was also narrated by the prosecution to her mother i.e. PW-2 Dhaneshwari Devi. PW-2 Dhaneshwari Devi has told the incident to PW-1 Jai Ram. Jai .
Ram was away to Shimla to look after his elder daughter. PW-7 Surinder Kumar has proved the birth certificate of the prosecutrix Ext. PW-7/B. PW-9 Dr. Sarla Chand has proved has examined the prosecutrix. According to her opinion, patient was of habitual of sexual intercourse. She was carrying a pregnancy of 31 week and her age was 19 years. As per the report of the Radiologist the age of the prosecutrix was 19 years. She issued rt MLC Ext. PW-9/B. Statements of PW-11 Dr. Ramesh Kumar and PW-22 Dr. Rama Malhotra are material. According to PW-11 Dr. Ramesh Kumar, he had referred the patient to PGI Chandigarh to determine the IQ. As per the report, her IQ was 62 based on history, mental state examination. She had mild mental retardation. She was not in a position to understand the good and bad aspects of the sexual assault. In his cross-examination, he has admitted that he had given the opinion that the prosecutrix was unable to understand the good and bad of the sexual assault on the basis of questions put to her by him. PW-
22 Dr. Rama Malhotra has also examined the prosecutrix to assess the mental IQ. According to her report, Ext. PW-22/A, mean IQ of 62. She has categorically deposed in her cross-
examination that a person having mental retardation can enter into marriage if the other person is made aware of this fact and ::: Downloaded on - 15/04/2017 21:13:40 :::HCHP 12 volunteers to marry her. Such a person can not take care of a child. A person having mild mental retardation can tell about the sexual assault committed upon her after three years. Such a .
person does not have the ability to manipulate the facts.
28. What emerges from the statements of PW-11 Dr. Ramesh Kumar and PW-22 Dr. Rama Malhotra is that the prosecutrix was suffering from mental retardation. She was not of in a position to understand the consequences of the sexual assault. Merely that she was married and looking after a baby does not prove that she was of a sound mind. Learned trial Court rt has erred while making observation that according to him, girl was intelligent. Statement of the prosecution P-3 has been duly corroborated by her sister Lajwanti and mother Dhaneshwari Devi, regarding the manner in which the incident has taken place. Statement of the prosecutrix PW-3 is also corroborated by medical evidence, as per the statement of PW-9 Dr. Sarla Chand, who has issued MLC Ext. PW-9/B. Accused has taken advantage of the mental retardation of the prosecutrix.
29. There is delay in lodging the FIR but the same is due to the fact that the prosecutrix did not know the consequences of the sexual assault by the accused. The ocular evidence of the prosecutrix has been duly corroborated by the statements of PW-
11 Dr. Ramesh Kumar and PW-22 Dr. Rama Malhotra. Blood samples of the accused, the baby and the prosecutrix were taken and the report has been submitted by PW-23 Dr. Sanjeev, ::: Downloaded on - 15/04/2017 21:13:40 :::HCHP 13 Assistant Professor, CFI, Bhopal. He has proved the report Ext.
PW-23/A. It is clear from the Ext. PW-23/A that the accused (Chaman Lal) is the biological father of the baby of the .
prosecutrix. Learned trial Court has also brushed aside Ext. PW-
23/A, which conclusively proves that the accused is father of the baby of the prosecutrix as per Ext. PW-23/A. It has come in the statement of PW-3 (Prosecutrix) that the accused used to of threaten to kill her in case the incident was divulged to anyone.
Thus, the prosecution has duly proved its case against the accused under charged sections.
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30. Accordingly, in view of the discussion and analysis made hereinabove, the present appeal is allowed. Judgment dated 2.5.2013 rendered by the learned Additional Sessions Judge, Mandi, District Mandi, Himachal Pradesh in Sessions Trial No. 2 of 2009, is set aside. Accused is convicted for the commission of offence under Sections 376 and 506-II IPC. He be produced to be heard on quantum of sentence on 19.9.2016.
31. Registry is directed to prepare and send the production warrants forthwith.
(Rajiv Sharma) Judge (Sureshwar Thakur) Judge September 14, 2016 (vikrant) ::: Downloaded on - 15/04/2017 21:13:40 :::HCHP