State of Himachal Pradesh vs Desh Raj

Sanjay Karol, Judge

For an offence, which is alleged to have been committed on 26th December, 2001, accused was put to trial. In terms of judgment dated 16th August, 2005, passed by learned Sessions Judge, Shimla, in Sessions Trial No. 31-S/7 of 2004, titled as State versus Desh Raj, accused stand acquitted of the charged offence. It is the case of the prosecution that prosecutrix (PW-3), a resident of Theog, had come to stay with her aunt Smt. Sheetal (PW-12) at Totu (Shimla). Smt. Sheetal got the prosecutrix employed in the office of the accused as a helper. The accused is an Architect. On 26th December, 2001, accused asked the prosecutrix to accompany him to his house. Initially, prosecutrix resisted but she was persuaded by the accused to come. There she was forcibly subjected to sexual intercourse. Accused threatened the prosecutrix not to disclose the incident to any person, lest she be ashamed publicly. She spent the night in the house of the accused and attended to her work in the office next day. Prior to that, on the asking of the accused, prosecutrix washed her blood stained clothes which she was wearing at the time of commission of the alleged crime. Thereafter, on the asking of the accused, prosecutrix continued to visit the house of the accused where she was continuously subjected to sexual intercourse, against her wishes, on several occasions. On 1st February, 2002, the accused put "Sindoor" (vermilion) on the head of the prosecutrix and declared her as his wife. Thereafter, she started residing with him as his wife. She informed PW-12 about her visits to the house of the accused. On 6th February, 2002, father of the prosecutrix Shri Hari Ram (PW-2) alongwith his relative Shri Roshan Lal (PW-4) and Smt. Sheetal (PW-12) visited the office of the accused and enquired the capacity in which prosecutrix was residing with him. Accused informed them that prosecutrix was his wife and he would get the marriage solemnized according to the customary rites lateron. On 13th February, 2002, prosecutrix discovered that the accused was already married, when his wife alongwith two children came to the residence of the accused. On 21st February, 2002, Shri Hari Ram (PW-2) again visited the office of the accused alongwith PW-4 and confronted the accused with the said fact, but however, accused denied the same and assured them that he would solemnize his marriage with the prosecutrix on 25th February, 2002. Father of the prosecutrix waited till then and only when he did not solemnize the marriage, complaint (Ex. PC) dated 25th February, 2002 was lodged by the prosecutrix with the Women Cell, Shimla, on the basis of which FIR No. 39, of the same date (Ex. PD) was registered at Police Station Boileauganj. On the very same day prosecutrix was got medically examined by Dr. Madhuri (PW-9), who issued MLC (Ex.P-1). Police also got the accused medically examined.

Investigation revealed that the prosecutrix belonged to Scheduled Caste category and certificate (Ex. PF) to that effect was obtained by the police. Birth certificate (Ex. PG), issued by Shri Dalip Kumar, Secretary of the Gram Panchayat (PW-7) was also obtained by the police.

With the completion of the investigation, police filed challan in the Court for trial.

Accused was charged for having committed an offence punishable u/s 376 of the Indian Penal Code 1860, read with Section 3 (xii) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities Act), 1989, to which the accused did not plead guilty and claimed trial.

In order to prove its case prosecution examined as many as twelve witnesses and statement of the accused u/s 313 of the Code of Criminal Procedure was also recorded.

Appreciating the evidence adduced on record, the Court below acquitted the accused of the charged offence, hence, the present appeal.

We have heard Shri R. K. Sharma, learned Senior Additional Advocate General duly assisted by Shri J. S. Guleria, Assistant Advocate General on behalf of the State as also Shri T.S. Chauhan, Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence placed on record by the prosecution. Having minutely examined the record, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is well reasoned and is based on complete and proper appreciation of evidence (documentary and ocular) placed on record. There is neither any illegality/infirmity nor any perversity in the same.

Prosecution case primarily rests upon the testimonies of four witnesses, i.e. Shri Hari Ram (PW-2), prosecutrix (PW-3), Shri Roshan Lal (PW-4) and Smt. Sheetal Kashyap(PW-12).

From the testimony of the prosecutrix, it is apparent that at no point of time did the accused ever intimidate, threaten, coerce or seduce her to have sex with him. According to the prosecutrix, she was employed with the accused only on 4th December, 2001 and just within a short span of 22 days she visited the house of the accused, though on his asking. There she was allegedly raped by the accused. Significantly, prosecutrix admits that after the commission of the alleged crime she herself washed her blood stained clothes and spent the night in the house alongwith the accused and attended office work the following morning. She admits that she again visited the house of the accused on several occasions, where again she was subjected to sexual intercourse. Significantly, she admits that it was only lateron that the accused started assuring her of marrying her. She states that after some time she started living with the accused on permanent basis, when the accused had put "Sindoor" on her head and declared her to be his wife. On 6th February, 2002 her uncles Shri Roshan Lal, Shri Mohan Lal and aunt Smt. Sheetal came to the office to make enquiries. She states that on 13th February, 2002 wife of the accused came with two children and when she confronted the accused with this fact, he promised to marry her. She states that on 21st February, 2002, her father again came to the office, when accused promised to marry her on 25th February, 2002. Since it did not materialize, the mater was reported to the police.

We find version of the prosecutrix not to be inspiring confidence at all. In cross-examination, significantly she admits that there are 15-20 houses adjoining to the house of the accused. Why is it that the prosecutrix did not raise any alarm at the time when she was alleged raped by the accused and that too during broad day light? Also, what made her to repeatedly visit the house of the accused where again she was subjected to sexual intercourse again and again? To us, it appears that the prosecutrix, who is major, went to the house of the accused on her own volition. Sex, if any, is consensual in nature. Alleged promise of marriage was much after the prosecutrix has had sex on several occasions. It is not the case of the prosecution that she was intimidated/threatened after commission of the crime or was otherwise prevented from disclosing the incident to any person. She had free access to public places and could have conveniently disclosed the incident to any person. Prosecutrix lived a normal life and returned to work in a normal manner even after occurrence of the first incident. To us version of the prosecutrix does not inspire confidence at all and it would be totally unsafe to rely upon her testimony.

Significantly, Smt. Sheetal (PW-12), aunt of the prosecutrix, has not supported the prosecution during trial. She was examined in Court and declared hostile. She was subjected to extensive cross-examination by the Public Prosecutor and in spite thereof, nothing fruitful could come out in her testimony.

Coming to the testimony of PW-2 and PW-4, no doubt they have supported the prosecution case and corroborated the testimony of PW-3 with regard to their visits to the office of the accused on 6th February, 2002 and 21st February, 2002, but however we find that their testimony also does not inspire confidence. Shri Hari Ram (PW-2) is the father of the prosecutrix. Having learnt that prosecutrix, without being lawfully wedded, was residing with the accused in his house, he still continued allowed his daughter to reside and accepted false promises made by the accused of solemnizing marriage on 25th February, 2002. No father, in the social set-up prevalent in the area at the relevant time, would have allowed his daughter to reside in the house of a stranger. His testimony to the effect that the accused promised to marry his daughter does not inspire confidence for the simple reason that as on 21st February,2 002 he was fully aware that the accused was married and had two children from the said wedlock and as such he could not have legally performed the second marriage. There is no justification or plausible explanation for having accepted such false promises. Why is it that he immediately did not report the matter to the police? We also find that prosecution has not examined Shri Mohan Lal, who allegedly visited the office of the accused alongwith this witness.

There is yet another major contradiction in the testimonies of the prosecution witnesses. According to the prosecutrix, she had come to reside with her aunt, i.e. Smt. Sheetal (PW-12) at Shimla, whereas according to her father she used to reside with Smt. Promila, who also is his sister. Now, Smt. Promila has not been examined in Court. Why is it so? Has not been explained. Her examination would have elicited complete truth.

Thus, it cannot be said that the prosecution has been able to prove its case beyond reasonable doubt by leading clear, cogent, convincing and reliable piece of evidence so as to prove the charged offence.

For all the aforesaid reasons, we find no reason to interfere with the well reasoned judgment passed by the trial Court. The Court has fully appreciated the evidence placed on record by the parties. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., , it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.