Himachal Pradesh High Court
State Of H.P vs Narayan Singh Alias Chainku on 8 July, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 271 of 2009.
Reserved on: July 03, 2015.
Decided on: July 08, 2015.
.
State of H.P. ......Appellant.
Versus
Narayan Singh alias Chainku .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? 1 No.
For the appellant: Mr. M.A.Khan, Addl. AG with Mr. P.M.Negi Dy. AG and
Mr. Ramesh Thakur, Asstt. AG.
For the respondent:
r Mr. Vinay Thakur, Advocate.
----------------------------------------------------------------------------------------------
Justice Rajiv Sharma, J.
This appeal has been instituted at the instance of the State against the judgment dated 20.11.2008, rendered by the learned Addl. Sessions Judge, Shimla, H.P. in Sessions Trial No. 11-S/7 of 2008, whereby the appellant-accused (hereinafter referred to as the accused) who was charged with and tried for offence punishable under Sections 376 & 506 IPC, has been acquitted by the learned trial Court.
2. The case of the prosecution, in a nut shell, is that the prosecutrix was a student of 6th standard. About 3-4 months before the FIR was registered, when she was returning home from the school, accused called her to his kitchen, bolted the door, laid her on the floor, removed her salwar and committed rape on her. Again, on one day, 1 Whether reporters of the local papers may be allowed to see the judgment? ::: Downloaded on - 15/04/2017 18:32:17 :::HCHP 2 accused Narayan Singh alias Chainku called her to his house and committed rape on her. Thereafter, accused Shantu enquired about her mother from her. She told him that she was in the jungle. He came to her house and committed rape on her. One Dinesh alias Chhotu took .
her to cowshed of Goverdhan and also committed rape on her. All these accused were raping the prosecutrix after intervals of 3-4 days. All of them had threatened to kill her if she narrated the incident to anyone. She could not disclose it to her parents, however, she talked with her friends, namely, Kiran, Rena, Ruchi and Suman. Her eye was operated upon on 3.1.2008. The people came to her house to know about her well being. They disclosed about the incident to her mother. Thereafter, she narrated the incident to her mother. But, due to heavy snow fall and her eye operation, they could not lodge the report. FIR was registered under Sections 376 and 506 IPC. The prosecutrix was medically examined. The statements of the witnesses were recorded under Section 161 Cr.P.C. The accused were arrested and they were also medically examined. The prosecutrix was born on 5.9.1995. The matter was investigated and challan was put up after completing all the codal formalities. At the time of framing of the charge, it transpired that the accused persons could not be tried together, as they were involved in separate incidents. The separate challans were put up against all the accused.
3. The prosecution has examined as many as 7 witnesses to prove its case. The accused was also examined under Section 313 Cr.P.C to which he pleaded not guilty. He denied that he has committed ::: Downloaded on - 15/04/2017 18:32:17 :::HCHP 3 any offence. The learned Trial Court acquitted the accused on 20.11.2008. Hence, the present appeal.
4. Mr. M.A.Khan, learned Addl. Advocate General, appearing for the State has vehemently argued that the prosecution has proved its .
case against the accused. On the other hand, Mr. Vinay Thakur, Advocate, for the accused has supported the judgment of the learned trial Court dated 20.11.2008.
5. We have gone through the impugned judgment and records of the case carefully.
6. PW-1, prosecutrix was examined without oath. According to her, they are two sisters and one brother. Her sister Mona is elder to her. Her brother Hunny is younger to her. She was studying in sixth standard. Her sister Mona was studying in the 7th standard and her brother in 6th standard. Her parents were agriculturists. She recognized the accused. All of them belong to village Kalgaon. Their houses were adjoining to her house. She was studying in the winter closing school. When she was coming back from the School, accused met her near his house. He took her to his kitchen. He bolted the door of the kitchen. Then he removed her salwar. He also removed his Pyajama. Then, he laid her on the floor and after laying on her committed "galat kaam" with her. She felt pain. The accused threatened to kill her if she narrated this incident to her parents or anyone else. The accused took her to his kitchen on several occasions and committed the same act. The accused Narayan Singh alias Chainku met her at the tap. He took her to his kitchen and bolted the door of the kitchen. He also removed her salwar ::: Downloaded on - 15/04/2017 18:32:17 :::HCHP 4 and his Pyajama and laid her on the floor. Then, he also did the same thing. She felt pain. Accused Chainku also repeated this act several times. He took her many times to his kitchen. 4-5 days after the occurrence by Nain Singh and Chainku for the first time, accused .
Shantu arrived at her home. On that day, she was present at home as the school was closed. Her parents were in the fields. Her brother had gone out for playing in the village. Accused Shantu came to her in her kitchen and did the same wrong act. Three days after the occurrence, accused Dinesh alias Chhotu, while she was playing, took her to the cowshed of Goverdhan. He also did the same act with her. All the accused threatened to kill her if she dare to narrate about the incident to anyone. Her brother Hunny, saw the accused Nain Singh doing "galat kaam" with her. Her eye was operated upon during winter vacations. People came to her to know about her well being. One lady Thissi also arrived at their house. She had disclosed about the misdeeds of the accused persons to Thissi. She had also stated about this to Ruchi, Kiran, Renu and Suman. When Thissi had come to see her, she narrated about the incident to her mother. When Thissi narrated the incident to her mother, thereafter they went to the Police Station. She made statement Ext. PW-1/A. In her cross-examination, she deposed that the accused Nain Singh might have done "galat kaam" with her even more than ten times. Every accused did the same act with her at the same place at which he did for the first time. She, in her cross- examination, has categorically stated that Thissi had told about this incident to her mother 3-4 months after she had stated about this ::: Downloaded on - 15/04/2017 18:32:17 :::HCHP 5 incident to Thissi. She told Thissi about this incident 3-4 months after accused Dinesh did the misdeed last time with her. She talked to Ruchi when the misdeed was done for the first time with her. There were many houses in her village.
.
7. PW-2 Hunny was also examined without oath. According to him, he was changing his clothes in his room. He heard some noise from the upper room. He went up and saw accused Narayan Singh in the room with his sister. He saw that the accused was lying on his sister with her salwar down. On seeing him, his sister put on her salwar and the accused told him that she was quarrelling with him. He did not narrate this incident to his parents as his sister had told him not to tell. In his cross-examination, he deposed that he saw Narayan Singh doing misdeed with his sister at Narayan Singh's house.
8. PW-3 Usha Dutta is the mother of the prosecutrix. According to her, her children go to school on foot. The eye of her daughter was operated upon on 3.1.2008 at Rohru. She brought her daughter to their house at village Kalgaon. While the prosecutrix was ill, people used to come to see her. One Thissi also came there. Thissi disclosed that four persons of the village, namely Narayan Singh, Chainku, Shanta Kumar and Dinesh alias Chhotu used to commit rape on her. When she asked the prosecutrix, she stated that they had been committing rape on her for the last 3-4 months before January. The accused used to give her threatenings. They came to know about this incident from Thissi. Thissi came to their house on 7th January. They went to the Police Station Rohru on 18th January, when the FIR was ::: Downloaded on - 15/04/2017 18:32:17 :::HCHP 6 lodged. In her cross-examination, she deposed that Thissi told her about the incident during October-November. Between October- November and 7th January, Thissi had met them about 20 to 25 times.
9. PW-4 Chunu Ram, has proved the copy of Parivar Register .
Ext. PW-4/A and original certificate Ext. PW-4/B.
10. PW-5 Rajesh Dutta, has proved the date of birth of the prosecutrix Ext. PW-5/A. The date of birth of the prosecutrix was 5.9.1995.
11. PW-6 Lal Man, has investigated the matter. The prosecutrix was got medically examined. He obtained the original MLC. He also prepared the spot map.
12. PW-7 Dr. Pavitra Maitan, has medically examined the prosecutrix. In her opinion, there was nothing suggestive of the fact that the prosecutrix was habitual of sexual intercourse. She also admitted in her cross-examination that there was no evidence of any penetration. She also interrogated the victim for about one hour. She gave the following findings:
"1. The secondary sexual character Breasts were not well developed, public and axiliary hair had not appeared as yet.
2. No injury marks were seen over any part of the body.
3. Local examination Per speculum; hymen was intact, no bleeding per vagina was seen.
Per vaginal: It was not done as the hymen was intact.
4. Menstrual history.
No history of menarche was there.::: Downloaded on - 15/04/2017 18:32:17 :::HCHP 7
5. Pregnancy test was negative."
13. We have gone through Ext. PW-7/A, copy of MLC of the prosecutrix. According to the prosecutrix, the accused after removing .
her salwar and their pant used to try for penetration. However, they could not perform it and they used to rub their penis on her private parts (perineum and genitals) and ejaculate outside. Her hymen was found intact. No blood was seen on her vagina. No injury was noticed on any part of the body.
14. The prosecutrix has narrated this incident to her friends, namely, Ruchi, Kiran, Renu and Suman. She also talked to Ruchi, when the misdeed was done for the first time with her, as per her cross- examination. The prosecutrix has narrated the incident to Thissi 3-4 months back. Thereafter, Thissi told her mother about the incident and they went to the Police Station. In her cross-examination, she has specifically stated that Thissi narrated the incident to her mother 3-4 months after she had narrated this incident to Thissi. She talked to Thissi about this incident 3-4 months after accused Dinesh did the misdeed with her.
15. PW-3 Usha Dutta, the mother of the prosecutrix, deposed that one Thissi also came to see her daughter. Thissi disclosed that four persons of the village used to commit rape on the prosecutrix. Thissi came to their house on 7th January and she alongwith the prosecutrix went to the Police Station, Rohru on 18th January to lodge the report. In her cross-examination, PW-3 Usha Dutta has admitted that Thissi stated ::: Downloaded on - 15/04/2017 18:32:17 :::HCHP 8 to her that the girl had spoken to her about this incident during October-November. She met Thissi between October, November and 7th January about 20 to 25 times. If the prosecutrix had told Thissi about the incident in the month of October-November, it is not expected that .
she would not have narrated the incident to the mother of the prosecutrix, moreover, when she has met her about 20-25 times between October, November and 7th January. The prosecutrix has though narrated the incident to her friends but she has not disclosed it to her mother. She would have disclosed the incident to her parents instead of narrating it to Thissi. Thissi has told this incident to her mother after 3- 4 months of the incident. According to the prosecution case, Thissi has narrated the incident to PW-3 Usha Dutta on 7th January. Still the FIR was registered on 18.1.2008. The feeble explanation given for registration of FIR even after the incident was brought to the notice of the mother i.e. PW-3 Usha Dutta by Thissi Devi was that there was snowfall.
16. In the instant case, there is inordinate delay of more than 3 months in lodging the FIR. It is settled law that FIR must be lodged promptly and in case there is inordinate delay, the same has to be explained. However, in this case, the version of the prosecution, the manner in which the incident has been narrated by the prosecutrix to Thissi and by Thissi to her mother after 3-4 months, does not inspire confidence. The learned trial Court, after correct appraisal of the evidence brought on record, has acquitted the accused. ::: Downloaded on - 15/04/2017 18:32:17 :::HCHP 9
17. Accordingly, there is no merit in this appeal and the same is dismissed. There is no occasion for this Court to interfere with the well reasoned judgment of the learned trial Court dated 20.11.2008.
.
( Rajiv Sharma ), Judge.
July 08, 2015, ( Sureshwar Thakur ),
(karan) Judge.
r to
::: Downloaded on - 15/04/2017 18:32:17 :::HCHP