The State of H.P. vs Mahender Singh

R.B. Misra, J.—Mr. Malay Kaushal, Advocate, has been requested to assist this Court as Amicus Curiae and he has kindly agreed to the same. Accordingly, Mr. Malay Kaushal, Advocate, has assisted this Court in response to the submissions made on behalf by Mr. R.K. Sharma, Sr. Additional Advocate General, for the appellant-State.

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 and order dated 01.10.1999, passed by learned Sessions Judge, Solan, District Solan, Himachal Pradesh, in Sessions Trial No. 29-S/7 of 1998, acquitting the alleged accused under Sections 376 and 506 of the Indian Penal Code in reference to FIR No. 103 of 1997 dated 01.08.1997.

Prosecution case in brief is that on the complaint of the victim-prosecutrix (name withheld) that while she had gone to answer the call of nature in the nearby field, accused suddenly pounced over her and sexually assaulted her and also threatened her with dire consequences. Accordingly, on the complaint of the victim-prosecutrix, FIR was registered and the accused was charged for the offence u/s 376 and 506 of the Indian Penal Code and the case was committed to the Sessions Court.

In order to prove its case, prosecution examined as many as nine witnesses, whereas, accused through his statement u/s 313 Cr.P.C. denied the prosecution case.

On analysis of the prosecution witnesses and the material on record, we notice that according to the victim-prosecutrix, she was a married lady, having three children and during the course of sexual assault she had tried to raise hue and cry, but her mouth was gagged by the accused-respondent with dupatta, however, Ram Piari came to the spot on hearing her voice and the accused-respondent ran away on seeing her. The said occurrence was also reported to the Panchayat. In the cross-examination, the victim-prosecutrix also mentioned that Ram Piari was present at a distance of about 20 meters from the place of occurrence.

Ram Piari has not at all supported the prosecution case and was declared hostile. The husband of the victim-prosecutrix, Jia Lal (PW-7), has mentioned that no report was made to the Panchayat about this incident nor any proceedings were conducted by the Panchayat regarding this episode.

The victim-prosecutrix was medically examined and was found capable of sexual intercourse and in a habit of sexual intercourse, however, in medical examination no mark of injury or any violence was noticed. The occurrence said to have taken place at 5 o''clock in the evening, but the case was registered on the next date at about 2:30 p.m. and the police station was only about 7 kilometers from the place of occurrence and no explanation was given for the delay in lodging the FIR.

On analysis of the prosecution witnesses and the material on record, we notice that the testimony of the victim-prosecutrix is not inspiring confidence and prosecution in entirety of the facts and circumstances has not been able to prove its case beyond reasonable doubt.

In these facts and circumstances, the prosecution has failed to bring home the guilt against the accused-respondent and we do not find any scope of interference in the judgment of the trial court. Appeal being devoid of merit is dismissed.

The Court appreciate the efforts made by Mr. Malay Kaushal, Advocate, in assisting the Court on behalf of accused-respondent as Amicus Curiae.