Court: HIMACHAL PRADESH HIGH COURT
Bench: JUSTICE Rajiv Sharma and Vivek Singh Thakur
State of H.P. vs. Muni Lal On 27 June 2016
Medical evidence shows prosecutrix habitual of sexual intercourse. Delay of one day in reporting the matter to police not explained by prosecution – Prosecution failed to prove its case against accused – Accused rightly Acquitted.
1. This appeal is instituted against the judgment dated 8.3.2013, rendered by the learned Addl. Sessions Judge, Mandi, H.P., in Sessions Trial No. 21 of 2008, whereby the respondent-accused (hereinafter referred to as the accused), who was charged with and tried for offences punishable under Sections 341 and 376 IPC has been acquitted. The case of the prosecution, in a nut shell, is that on 23.1.2008, the prosecutrix along with her husband Bikham Ram and niece Darshanu Devi went to PS Karsog and lodged FIR No. 17 of 2008 against the accused. According to the averments contained in the FIR, on 22.1.2008, she was away to fields to protect crop from monkeys. She was coming back to home at about 6:30 PM. She was carrying a Kilta of grass on her back. The accused started following her. When she reached near to her house, accused obstructed her path at lonely place and forcibly laid her down on the ground. He removed her salwar and committed forcible sexual intercourse with her. The accused also gagged her mouth when she raised noise. Her niece Darshanu Devi and daughter-in-law Baldasi came to the spot from the house after hearing the noise. The accused fled away from the spot. The prosecutrix narrated the incident to Darshanu Devi, Baldasi and her husband. The I.O. got the prosecutrix and the accused medically examined. On receipt of the report of medical examination, final opinion of Medical Officer was obtained. The accused was arrested. The case was investigated and challan was put up before the Court after completing all the codal formalities.
2. The prosecution, in order to prove its case, has examined as many as eleven witnesses. The accused was also examined under Section 313 Cr.P.C. He denied the prosecution allegations and pleaded innocence. The learned trial Court acquitted the accused, as noticed herein above. Hence, this appeal.
3. Mr. P.M. Negi, Dy. Advocate General has vehemently argued that the prosecution has proved its case against the accused. On the other hand, Mr. Rajiv Sirkeck, Advocate, has supported the judgment of the trial Court dated 8.3.2013.
4. We have heard the learned counsel for both the sides and have also gone through the judgment and records of the case carefully.
5. PW-1 is the prosecutrix (name withheld). She testified that on 22nd January, she had gone to guard her field from monkeys. She was returning to her home. Accused followed her for about 1/2 km. The accused hid in the bushes. The accused dragged her. He tore her clothes and raped her. She shouted for help on which her daughter-in-law and niece came to the spot. The accused ran away. Her daughter-in-law went to the house of accused and made enquiries as to why he had done so. The accused threatened her. The matter was reported to the police and FIR Ext. PW-1/A was register. Her clothes were taken into possession. In her cross-examination, she admitted that there are 8 members in her family. All these people reside in her house. Darshanu, Baldassi, Preeti, Neha and Ritik were present in the house. Darshanu had visited their house as guest. There were three houses and one school adjacent to her house. The house of Bodh Raj was located nearest to her house. Their house was located at a distance of 15-20 feet away from her house. Her house was located at a distance of about 15 feet from the road and the house of her nephew was located on the road. The school was located just adjacent to the house of Bodh Raj. House of Nek Ram Pandit was located adjacent to the house of Bodh Raj. She returned from her field at about 6:00 PM. The accused had raped her at a distance of 15-20 feet from her house towards the lower side of the house. She was carrying a Kilta of grass which was half filled. She was wearing cardigan on that day besides salwar and shirt. It takes less than one minute to cover the distance between her house and the place of incident. Her house was visible from the road. Even a feeble noise is audible in her house from the road.
6. PW-2 Baldassi testified that her mother-in-law had gone to guard the field on 22.1.2008. She reached near her house at 6:30 PM. Darshanu Devi had visited their house. She told her that she heard cries of her mother-in-law. She asked her to see as to why she was crying. She put her child down and ran thinking that she might have fallen. Her mother-in-law was lying on the field. She saw accused running away and he was tying his pants. She took her mother-in-law to the upper field from lower field. She went to the house of the accused to inquire as to why he had done so. The accused was in the verandah of his house. In her cross-examination, she admitted that it takes less than one minute to cover the distance between the house and the road.
7. PW-3 Nek Ram testified that the police prepared the site plan. The prosecutrix produced sal-war Ext. P-2 and shirt Ext. P-3. These were taken into possession vide memo Ext. PW-3/A.
8. PW-7 Rajender Prasad testified that he remained posted at Police Station Karsog since July, 2007. The prosecutrix came to the Police Station with her husband Bhikam Ram and her niece Darshana Devi. FIR Ext. PW-1/A was registered. He went to the spot. Ram Kishan and Nek Ram were associated by him in the investigation. Site plan Ext. PW-7/B was also prepared. The clothes were taken into possession.
9. PW-9 Dr. Jiya Lal has examined the accused. He issued MLC Ext. PW-9/A.
10. PW-11 Dr. Reena Thakur, has examined the prosecutrix. She issued MLC Ext PW-11/A. According to her opinion, the patient was habitual of sexual intercourse and the date of the last intercourse could not be ascertained. In her cross-examination, she admitted that if lady weighing 60-70 kg is thrown down on the ground forcibly then there may or may not be injury on the person on that lady.
11. The statement of the prosecutrix PW-1 does not inspire confidence. It is not believable that the accused would have raped the prosecutrix at a distance of about 15-20 feet from her house. PW-1, prosecutrix has admitted that the accused had raped her at a distance of 15-20 feet towards the lower side of her house. There were many family members of the prosecutrix present in the house. If she had shouted, all the members would have reached the spot. Her house was also visible from the road. She has also admitted categorically in her cross-examination that even a feeble noise was audible from the road. The house of Bodh Raj was also located near to the house of the prosecutrix. If she had shouted, it definitely would have drawn the attention of Bodh Raj. The house of Nek Ram Pandit was also located adjacent to the house of Bodh Raj. If she had raised an alarm, it would have drawn the attention of the family members of Nek Ram Pandit.
12. PW-2 Baldassi has also admitted that it takes less than one minute to cover the distance between the house and the road. PW-3 Nek Ram has admitted that his family members were present in the house on 22nd. His house was located at a distance of 15-20 ft. from the spot. He has also admitted that his house was on the same alignment as the house of the prosecutrix. PW-11 Dr. Reena Thakur has issued MLC Ext. PW-11/A. According to her, the patient was habitual of sexual intercourse and the date of last intercourse could not be given.
13. The incident has taken place on 22.1.2008 at 6:30 PM, however, the fact of the matter is that the matter was reported on 23.1.2008 at 12:45 PM though the distance between the Police Station and the house of the prosecutrix could be covered within 1-1/2 hours. PW-7 Rajender Prasad, I.O. has also admitted that he has not made any enquiry about the incident from the neighbours. The police has not taken into possession the Kilta which was carried by the prosecutrix at the time of the incident. PW-2 Baldassi has reached the spot after hearing the cries after 10 minutes though it takes less than one minute to reach the place of occurrence from the house. The natural human conduct would have been to rush to the spot immediately instead of waiting for ten minutes after hearing the noise. Thus, the prosecution has failed to prove the case against the accused beyond reasonable doubt. This Court has no occasion to interfere with the well reasoned judgment of the learned trial Court dated 8.3.2013. Accordingly, there is no merit in this appeal and the same is dismissed.