State of Himachal Pradesh vs Tanzin Giachho

R.B. Misra, J.—The present criminal appeal has come up for consideration after leave to appeal u/s 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment dated 16.5.2000 passed by the learned Sessions Judge, Kinnaur at Rampur Bushahr, Camp at Reckong Peo, H.P. in Sessions Trial No. 11 of 1998 acquitting the accused/Respondent for the offences under Sections 452 and 376 of the Indian Penal Code.

Prosecution case in brief is that on 8.10.1996 PW-3 (name not given) was alone in her house, whereas, her husband had gone out. In the evening time at about 7.00 p.m., accused/Respondent came to her house, caught hold of the victim/ prosecutrix and taken her in her room, forcibly breaking the strings of the salwaar, put her on the ground, committed sexual intercourse against her will thereafter managed to escape. On the same day wife of the brother of the victim who came to her house was told about the incident and her husband was also revealed about the incident and accordingly the victim and her husband went to make complaint (Ext. PW 3/A) before the Superintendent of Police, Kinnaur. The victim was medically examined and after investigation accused/ Respondent was charged for the aforesaid offences. The case was committed to the Court of Sessions.

Learned Sessions Court examined as many as twelve prosecution witnesses, whereas, Respondent/accused in his statement u/s 313 Cr. P.C. denied the prosecution case.

Dr. Anand (PW-1) examined the accused/Respondent and has indicated no external marks of injury on the body of the accused. However, PW-1 has opined that the accused was capable of performing sexual act. PW-1 only noticed a cut mark on the nose of the accused person which was healed up with the passage of time. However such cut mark on the nose was not relatable to have been caused during sexual intercourse.

Dr. Daljit Kaur (PW-2) had medically examined the victim/prosecutrix and had also not noticed any mark of external injury on her body. PW-2 had opined that there had been forcible penetration in the private part of the victim which could have been even seven days prior to the medical examination and could have been also done by the husband of the victim. PW-2 however did not make any specific opinion that the victim has been sexually assaulted.

PW-3 victim/prosecutrix, aged about 30 years, in her endeavour to support the prosecution case has stated in the examination-in-chief that she did not remember that she had suffered any injury when the accused person sexually assaulted her against her will. PW-3, however, had denied any enmity of the accused with her husband and also denied that her husband had quarreled with the accused person in the village fair and had also denied that accused had slapped her husband and also denied implicating the accused/Respondent falsely.

PW-4 Prem Singh belongs to the village of the accused has not supported the prosecution case. PW-5 Panna Ram, PW-6 Ringchain Namgial, Gram Pradhan has though made narration in favour of the prosecution has, however, not given any conclusive proof in support of the prosecution case. PW-7 HC Lalit Kumar, PW-8 Sub Inspector Dhani Ram, PW-9 ASI Shankar Dass, PW-10 Constable Vinay Singh and PW-11 SI Prem Dass in due discharge of their official duty has endeavoured to support the prosecution case to the extent role assigned to them, however, their testimonies were not conclusive.

PW-12 Smt. Satish Kumari, wife of brother of the victim/prosecutrix has stated that on 8.10.1996 when she came to the house of the victim she was told that the accused person after trespassing into her house had ravished her and PW-12 had asked the victim not to disclose the matter to anyone. In cross examination PW-12 has stated that she had visited six days prior to the occurrence the house of her brother and she did not remember on which date she visited the house, however, she remember the date 8.10.1996.

From the analysis of the prosecution witnesses and materials on record it is noticed that victim/prosecutrix PW-3 is the sole prosecution witness, however, her statement is un-natural, as she being young married lady, if she was sexually assaulted, she did not put resistance to the desired level. She has not stated anywhere in her testimony that she made hue and cry or had put any resistance opposing sexual assault. It cannot be believed that a woman being sexually assaulted against her will would not put resistance to save her honour and will not try to escape from the clutches of the accused. It is also not indicative anywhere that the house of the victim/prosecutrix was at a lonely place. Unusual behaviour of the victim/prosecutrix and her testimony does not inspire confidence, more so, the same has not been corroborated by any other prosecution witness. PW-12 Smt. Satish Kumari who even did not remember the exact date of visiting the house of the victim, in cross examination has stated that she visited the house of the victim six days prior to the occurrence, however, surprisingly she remember the date of visit to the place of the victim as 8.10.1996. She subsequently also admits in cross examination that the reason for remembering of that date is also not known to her. In facts and circumstances, the sole testimony of the victim/prosecutrix cannot be relied upon for the lack of corroboration by any other prosecution witness. Learned Sessions Judge has rightly come to the conclusion that the prosecution has not been able to prove its case beyond reasonable doubt. In our considered view the prosecution has failed to bring home the guilt of the accused/Respondent. Appeal is dismissed. The bail bonds of the accused/Respondents are discharged.