State of Himachal Pradesh vs Suresh Kumar Alias Golu, Narinder Kumar Alias Bitu and Rajesh

Rajiv Sharma, Judge

The State has come in appeal against the judgment dated 01.10.2004, passed by the learned Additional Sessions Judge, Fast Track Court, Shimla, H.P. in Sessions Trial No. 43- S/7 of 2003, whereby the respondents-accused, who were charged with and tried for offence punishable under Sections 376, 457, 341, 342 read with Section 34 of the Indian Penal Code, have been acquitted. Case of the prosecution, in a nut-shell, is that on 12.06.2002, at about 12:30 a.m., respondent No. 1, Suresh Kumar alias Golu came to the house of prosecutrix alongwith respondent No. 2, Narinder Kumar alias Bitu and respondent No. 3, Rajesh. The prosecutrix has kept the doors of verandah and kitchen unbolted and the lights of the kitchen were also switched on. The respondent No. 1 came inside the kitchen followed by respondent No. 3, namely, Rajesh. The respondent No. 2, Narinder Kumar remained outside in the verandah. In the meantime, her mother Smt. Budhi Devi (PW-3), elder sister Smt. Sunita (PW-2) woke up. PW-3, Budhi Devi accosted the accused and asked them why they had come. The prosecutrix came out of the kitchen alongwith her mother and went inside the room. She was followed by accused Suresh Kumar. He bolted the room from inside and switched off the light. She asked the accused why he has switched off the light and closed the door. Her mother was standing in the verandah. He threatened her and then he tired to have forcible intercourse with her despite her protest. She resisted, but she could not resist due to the injuries received by her. He opened the string of her salwar and managed to have intercourse with her twice. She was confined in the room for one hour. She came out of the room. Thereafter, respondent No. 3 Rajesh gave her beatings. The F.I.R. was lodged. She was medically examined by PW-4, Dr. Anju Manihas. She issued M.L.C. Ex.-PC. The shirt and salwar of the prosecutrix were also taken into possession vide memo Ex.-PB and were sent to F.S.L. The F.S.L. report was received. The investigation was undertaken and the challan was put up.

Respondent No. 1, Suresh Kumar was charged with having committed offence punishable under Sections 376, 342 and 457 read with Section 34 of the Indian Penal Code. Respondent No. 2 was charged with having committed offence punishable under Sections 341 & 457 read with Section 34 of the Indian Penal Code. Respondent No. 3 was charged with having committed offence punishable u/s 457 read with Section 34 of the Indian Penal Code.

The prosecution has examined as many as eight witnesses. The statement of the accused were also recorded under Sections 313 of the Criminal Procedure Code. They pleaded not guilty and claimed trial. The learned trial Court acquitted the respondents. Hence, this appeal by the State.

We have heard the learned counsel for the parties and gone through the records carefully.

The prosecutrix has appeared as PW-1. She has deposed that in the year, 2002, her age was 18 years. The age of her younger brother, Suresh Kumar was 17 years. According to her, she was sleeping in the kitchen on 12.06.2002. Her mother was sleeping in the verandah. Her sister Sunita, who is married, was sleeping in a separate room. Her brother, Suresh Kumar was also sleeping in a separate room. Her father had gone to village Oddi. She was waiting for the arrival of her father. Thus, she has kept the door of the kitchen open. She has also not switched off the lights of the kitchen. Accused Suresh Kumar and Rajesh entered the kitchen by opening the door at 12:30 a.m. Accused Narinder Kumar was standing in the verandah. She asked accused Suresh Kumar why he had come. In the meantime, her mother and sister Sunita came there. Her mother asked all the accused persons why they had come. Thereafter, she went to another room. Her sister Sunita (PW-2) went to call her father. According to the prosecutrix, accused Suresh Kumar followed her to the room and bolted the door. He switched off the lights. She objected why he has switched off the lights. He caught hold of her from arms. Thereafter, he opened the string of salwar and made her to lay on a wooden floor. He raped her. Her younger brother, Suresh Kumar, was in the third room which was away from the room, in which she was raped. She was confined in the room by accused Suresh Kumar for one hour. He opened the door and came out. In the meantime, accused Rajesh also entered the room and caught hold of her from the hair and scuffle took place. Accused Narinder Kumar was standing in the verandah. Her sister and father returned at 2:00 a.m. In the morning at 6:00 a.m., she went to register the F.I.R. at Police Post Chella. The F.I.R. Ex.-PA was registered. She was taken to D.D.U. Hospital, Theog, from where she was referred to D.D.U., Hospital, Shimla. She was medically examined. She has identified her shirt Ex.-P2 and salwar Ex.- P3. She has admitted in her cross-examination that she remained in the verandah for one hour and all the three accused persons also remained in the verandah for an hour. Her mother also came. The accused remained in the verandah till 2:00 a.m., when her father and sister came back. She further deposed that when her father and sister came, they all went to sleep. She had gone to register the F.I.R. herself.

PW-2, Smt. Sunita Kumari has testified that she was sleeping in the room on 12.06.2002 and PW-1 was sleeping in the kitchen. Her mother was sleeping in the verandah and her brother was sleeping in the third room. According to her, accused Rajesh flashed a torch. She got up and switched on the light. She went to the kitchen where, she saw accused Suresh Kumar (Golu) sitting there. She woke up her mother. She asked the accused why they have come. PW-1 went inside the room. She was followed by accused Suresh Kumar. She also woke up her brother. PW-3 remained standing in the verandah. Accused Suresh bolted the room from inside. She and her brother went to call their father. According to her, when they came back at 2:00 a.m., by that time, the accused persons had run away. PW-3, mother of the prosecutrix has also deposed that PW-1 was sleeping in the kitchen and Sunita (PW-2) was sleeping in the room. Her son, Suresh Kumar was sleeping in the third room. The accused had come at 12:30 a.m. According to her, accused Suresh Kumar went inside the kitchen. PW-1, Reeta came out from the kitchen and went inside the room. Accused Suresh also went inside the room and bolted the door. The other accused remained outside. Her daughter Sunita and her son Suresh went to call her husband. Her daughter was crying from inside the room. She was caught in the verandah by accused Bitu and Rajesh, who were having a khokhari. She has categorically deposed that when her husband came back at 2:00 a.m., by that time, the accused persons had run away.

PW-4, Dr. Anju Manihas has medically examined the prosecutrix. According to her, there was a circular teeth mark on the right cheek and there were no marks of violence on arms, wrist, breast, chest, lower part of abdomen, inner aspect of thighs and back. She issued M.L.C. Ex.-PC. According to her, the prosecutrix was found habitual of sexual intercourse.

The investigation was carried out by PW-8, A.S.I., Om Raj. He inspected the spot on 13.06.2002 and has prepared the site plan Ex.-PD. He has also taken into possession salwar and shirt of the prosecutrix in the presence of witnesses Anita and Sat Parkash.

The age of the prosecutrix was 18 years on 12.06.2002. The prosecution story is highly improbable and cannot be believed. According to PW-1, Reeta Devi, she was sleeping in the kitchen. She has not bolted the door. Accused Suresh Kumar had come in the kitchen. Her sister, Smt. Sunita (PW-2) and mother, Smt. Budhi Devi (PW-3) also came to the spot. Thereafter, the prosecutrix went inside the room, followed by accused. She was raped and confined in the room for one hour. It was expected from PW-2, Smt. Sunita, PW-3, Smt. Budhi Devi and Suresh Kumar to save the prosecutrix. It cannot be believed that the prosecutrix remained in the room for one hour and the mother, elder sister and brother did not try to save her. According to PW-1, the accused remained in the verandah till 2:00 a.m. However, according to PW-2, Smt. Sunita and PW3, Smt. Budhi Devi, the accused were not present when the father of the prosecutrix came on the spot. It is not believable that the accused persons would come to the house when the prosecutrix, her mother, elder sister and brother were present. The younger brother of the prosecutrix was 17 years of age. Her sister Sunita was elder to her.

According to PW-4, Dr. Anju Mahihas, the prosecutrix was habitual of sexual intercourse. Though according to PW-1, she could not resist, since she has received injuries on her arm. However, no injuries were found by PW-4 on the person of prosecutrix. PW-4 has categorically deposed in her cross-examination that it cannot be said on the basis of chemical examination report as well as her findings on the basis of clinical examination report that the prosecutrix was subjected to forcible sexual intercourse.

According to the F.S.L. report, Ex.-PH though the semen was found on the salwar of the prosecutrix, but there is no finding that it was accused'' s semen. Neither any blood nor any semen has been found on the shirt of the prosecutrix. There is variance in the statements made u/s 154 of the Criminal Procedure Code and the statements made by the witnesses in Court. It is not mentioned in the F.I.R. that the accused had threatened the mother of the prosecutrix with khokhari. Moreover, the khokhari was never recovered. In view of the abovesaid position, we see no reason to interfere with the judgment of the trial Court. Hence, the appeal is dismissed. Bail bonds are ordered to be discharged.