Himachal Pradesh High Court
State Of Himachal Pradesh vs Kamal Dev on 16 April, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 419 of 2008
Reserved on: April 10, 2015.
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Decided on: April 16, 2015.
State of Himachal Pradesh ......Appellant.
Versus
Kamal Dev .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the appellant: Mr. M.A.Khan, Addl. AG.
For the respondent: Mr. Lakshay Thakur, Advocate.
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Justice Rajiv Sharma, J.
This appeal is instituted against the judgment dated 15.3.2008, rendered by the learned Sessions Judge, Chamba, H.P. in Sessions Trial No. 3 of 2008, whereby the respondent-accused (hereinafter referred to as the accused), who was charged with and tried for offences punishable under Sections 376 and 506 IPC, has been acquitted.
2. The case of the prosecution, in a nut shell, is that the prosecutrix (PW-1), had gone to her maternal Uncle's house in Village Kumarkha, in the month of March. When she was returning to her home from her maternal Uncle's house, accused followed her. He asked her to marry him. Thereafter, he caught hold of her from arm and took her aside and committed rape without her consent and also criminally intimidated her with dire consequences. The prosecutrix narrated the incident to her mother after about 4-5 months. Thereafter, FIR was registered. The prosecutrix was medically examined and on completion of the ::: Downloaded on - 15/04/2017 18:00:06 :::HCHP 2 investigation, challan was put up after completing all the codal formalities.
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3. The prosecution, in order to prove its case, has examined as many as 7 witnesses. The accused was also examined under Section 313 Cr.P.C. He has denied the prosecution case. The learned trial Court acquitted the accused, as noticed hereinabove.
4. Mr. M.A.Khan, learned Addl. Advocate General, for the State has vehemently argued that the prosecution has proved the case against the accused. On the other hand, Mr. Lakshay Thakur, Advocate, has supported the judgment of the learned trial Court dated 15.3.2008.
5. We have heard learned counsel for both the sides and gone through the records of the case carefully.
6. The prosecutrix has appeared as PW-1. She deposed that she had gone to her maternal Uncle's house at Kumarkha. The accused followed her when she was returning to home from Uncle's house. He caught hold of her from her arm and took her to the side of path and committed forcible intercourse with her twice or thrice. She conceived and was having pregnancy of 4-5 months. She asked the accused to marry her but he refused and asked her to terminate the pregnancy. She told her mother that she was pregnant by 4-5 months. She was medically examined. In her cross-examination, she deposed that the passage where the incident has happened was frequently visited by the passersby. The accused took her from the passage upto a distance of five yards. She ::: Downloaded on - 15/04/2017 18:00:06 :::HCHP 3 raised hue and cry at that time. It was 2:00 PM. She did not raise any alarm when the accused was committing sexual intercourse with her.
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She gave tooth bite and she also scratched the face of the accused. The accused again committed rape with her when she was grazing cattle at jungle Kazalkot. She disclosed to her mother about the conceiving of child in the month of June, 2008. Volunteered that she did not remember the exact date. Her mother discussed the matter with Mama and Mami.
Enquiries were made from the accused. Her statement was recorded by the police. The police did not inquire from her about the place of subsequent rape. She did not disclose to the police about the subsequent rape with her by the accused at Kajalkot jungle. She came to Chamba and went to the Office of Deputy Commissioner and filed an application.
Her stomach started bulging out after 6 months pregnancy. None of the villagers asked her about it.
7. Smt. Devki PW-2 is the mother of the prosecutrix. She deposed that in the month of March, 2007, her daughter had gone to her maternal Uncle's house in village Kumarkha. She came to her house but she did not report about the incident. After 5-6 months, she disclosed to her that she is carrying a pregnancy of 5-6 months in her womb and that child belongs to the accused. The prosecutrix told her that in the month of March, when she was on way to her home, accused committed rape with her on the pretext of marrying her. Thereafter, she filed an application Ext. PA before the Deputy Commissioner, Chamba. When the ::: Downloaded on - 15/04/2017 18:00:06 :::HCHP 4 rape was committed, the prosecutrix was 16 years old. She has studied up to 4th Class. Her daughter was medically examined at Chamba .
Hospital. She did not know the date of birth of prosecutrix nor the date of her marriage.
8. Dr. Bandana, PW-3 has medically examined the prosecutrix.
On the basis of the report of ultra sound Ext. PW-3/B, the gestational age of foetus was 29 weeks. She proved X-ray film Ext. PW-3/C and PW-3/D. According to report of the Radiologist, the radiological age of the prosecutrix was between 17 to 19 years. She issued MLC Ext. PW-3/E.
9. Sh. Jai Singh, PW-4 has proved the birth certificate of the prosecutrix vide Ext. PW-4/A. In his cross-examination, he admitted that the admission form is filled in at the time of admission of a student. He has not produced the same before the Court.
10. HC Charan Singh, PW-5 deposed that on 23.8.2007, LC Indu Bala deposited with him one parcel duly sealed with the seals of RH Chamba, one envelope addressed to Director FSL, Junga. On 26.8.2007, HHC Rashid Mohammad deposited with him blood sample of accused alongwith one envelope which were duly entered by him in malkhana register. All these articles were sent to FSL Junga vide RC No. 49/07 dated 6.10.2007.
11. Const. Raj Singh, PW-6 deposed that on 6.10.2007 MHC Charan Singh handed over to him one parcel, one vial, one envelope for ::: Downloaded on - 15/04/2017 18:00:06 :::HCHP 5 being taken to FSL Junga vide RC No. 49/07. He deposited the same at FSL Junga on 8.10.2007.
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12. Sh. Krishan Lal, PW-7 testified that application Ext. PA was received in the Police Station, on the basis of which, FIR Ext. PW-5/A was registered at PS Tissa. He has investigated the case. He got the prosecutrix medically examined. He also obtained report of the Radiologist alongwith the X-ray report. The date of birth certificate was also obtained. The prosecutrix was medically examined on 21.8.2007.
The prosecutrix had not stated the place of first sexual intercourse with her though he asked her about it. The prosecutrix has not disclosed the place of subsequent sexual assaults with her. He did not prepare any site plan. He has also not obtained the birth record of the prosecutrix from the concerned Panchayat.
13. According to the case of the prosecution, the incident has happened in the month of March, 2007, however, FIR was registered vide Ext.PW-5/A on 21.8.2007. The version of the prosecutrix is that the accused has committed rape with her when she was coming back from the house of her maternal Uncle. However, she has not narrated this incident to her mother. According to the prosecutrix, she was again sexually assaulted when she was grazing cattle at Jungle Kajalkot. She narrated the incident to her mother when she was carrying pregnancy of 4-5 months. It is not believable that mother could not notice the pregnancy of her daughter. She would be rather the first person to know ::: Downloaded on - 15/04/2017 18:00:06 :::HCHP 6 the pregnancy of her daughter. The prosecutrix was medically examined by Dr. Bandana, PW-3. According to Dr Bandana (PW-3), the gestational .
age of the foetus, on the basis of the report of ultra sound Ext. PW-3/B, was 29 weeks. According to report of the Radiologist, the radiological age of the prosecutrix was between 17 to 19 years.
14. The mother of the prosecutrix has not reported the matter to the police about the incident. It was only after 5-6 months, the prosecutrix disclosed to her mother that she was carrying pregnancy of 5- 6 months. Thereafter, application Ext. PA was filed before the Deputy Commissioner, which led to the registration of FIR Ext. PW-5/A. The mother of the prosecutrix did not remember the date of her marriage. She did not know even the date of birth of the prosecutrix.
15. SHO Krishan Lal, PW-7 in his cross-examination, has admitted that the prosecutrix has not disclosed the place where she was firstly raped by the accused. She did not disclose even the place of subsequent sexual assault also. PW-7 Krishan Lal has not even prepared the site plan. He has not obtained the birth record of the prosecutrix from the Panchayat. Sh. Jai Singh (PW-4) has proved Ext. PW-4/A. The date of birth of the prosecutrix as per Ext. PW-4/A was 3.2.1992. He has neither brought the school admission register nor the admission form of the prosecutrix. The radiological age of the prosecutrix as per the report of the radiologist was between 17 to 19 years. It is settled law that the registration of the FIR should be prompt but if there is any delay, the ::: Downloaded on - 15/04/2017 18:00:06 :::HCHP 7 same is required to be explained. In the instant case, the prosecution has not at all explained the delay in lodging the FIR. We have already noticed .
that it is not believable that the mother was not aware about the incident and she came to know about it only after 5-6 months. The prosecutrix, at least should have told her mother about the incident immediately in the month of March, 2007. She has remained silent for a period of 4-5 months. The learned trial Court has correctly scanned the entire evidence and there is no reason for us to interfere with the well reasoned judgment of the learned trial Court.
15. Accordingly, there is no merit in this appeal, the same is dismissed.
( Rajiv Sharma ), Judge.
April 16, 2015, ( Sureshwar Thakur ),
(karan) Judge.
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