State Of Himachal Pradesh vs Manga Masih on 13 November, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No.: 4228 of 2013.

.

Reserved on : 24.10.2017.

Decided on: 13.11.2017.

State of Himachal Pradesh. ….Appellant.

Versus

Manga Masih … Respondent.

Coram

The Hon’ble Mr. Justice Sanjay Karol, Judge.
The Hon’ble Mr. Justice Ajay Mohan Goel, Judge.

Whether approved for reporting?1 Yes

For the appellant : Mr. Shrawan Dogra, Advocate
General with Mr. R.S. Verma,
Addl. Advocate General and M/s.

J.K. Verma and Kush Sharma,

Dy. Advocate Generals.

For the respondent : Mr. Hemant Kumar, Advocate as
vice Counsel.

Ajay Mohan Goel, Judge

By way of this appeal, appellant/State has

challenged the judgment passed by the Court of learned

Additional Sessions Judge-(III), Kangra at Dharamshala,

District Kangra, in Sessions Trial No. 70-I/VII/12, dated

08.08.2013, vide which, learned Trial Court has acquitted the

present respondent (hereinafter referred to as ‘accused’) for

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commission of offence punishable under Section 376 of Indian

Penal Code (in short ‘IPC’).

.

2. The case of the prosecution in brief was that

prosecutrix was married to one Shri Sewak Kumar in the year

1996. Out of said wedlock, two sons and one daughter were

born. Her husband died in the year 2003. Accordingly,

prosecutrix was appointed in his place in the IPH

Department. She purchased a house at New Harijan Basti,

Dhaka Colony, Dhangu Peer, Indora, where she started

residing with her children. Further as per the prosecutrix,

accused started sexually assaulting her in the year 2007 on

the pretext of marrying with her. However in the year 2012,

he married some other lady and thereafter, the prosecutrix

lodged report with the police which led to recording of her

statement under Section 154 of Criminal Procedure Code

(hereinafter referred to as ‘Cr.P.C.’ for short), on the basis of

which, FIR No. 253 of 2012 was registered on 23.8.2012 at

Police Station Indora under Section 376 of IPC.

3. After the completion of investigation, challan was

filed in the Court and as a prima-facie case was found against

the accused, he was charged for commission of offence

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punishable under
Section 376 of IPC, to which he pleaded not

guilty and claimed trial.

.

4. Vide judgment dated 08.08.2013, learned trial

Court acquitted the accused by holding that the prosecution

had not been able to establish that accused had sexually

assaulted the prosecutrix. Learned Trial Court also held that

considerable delay in lodging the FIR was not satisfactorily

explained by the prosecution and prosecution had also failed

to prove that accused committed rape on prosecutrix from the

year 2007 to 2012 and it was also not proved that accused

had promised to marry the prosecutrix. Learned trial Court

held that as in the year 2007 accused was merely 16-17 years

old whereas the prosecutrix was quiet years elder to him. No

report was lodged at that stage by the prosecutrix about her

being sexually harassed by the accused. Learned trial Court

also held that sexual relations, if any, might be consensual as

no report to this effect was lodged by the prosecutrix from the

year 2007 to 2012. Learned trial Court also held that accused

was minor in the year 2007 who used to play with children of

the prosecutrix, whereas prosecutrix was doing a government

job at Pathankot. It also held that theory of alleged promise of

marriage made by the prosecutrix also did not seem to be

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correct in the facts of the case keeping in view of the fact that

accused besides being minor in the year 2007 was also an

.

unemployed. Learned trial Court also held that prosecutrix

was capable of understanding the complications of issues

surrounding her marriage with the accused taking into

consideration the age difference at the time she entered into

physical relations with the accused. Learned trial Court also

held that accused was married to some other lady on

20.08.2012 but no FIR was lodged by the prosecutrix till

23.8.2012. It also held that prosecutrix told to Doctor that

she was lastly sexually assaulted by the accused on

12.08.2012 yet she waited to lodge FIR till 23.8.2012 and

delay in lodging FIR was not explained by the prosecution.

On these bases, learned trial Court acquitted the accused.

Judgment of acquittal so returned by the learned trial Court

is under challenge by way of this appeal.

5. We have heard the learned Advocate General as

well as learned counsel appearing for the respondent/

accused. We have also gone through the records of the case

as well as the judgment passed by the learned trial Court.

6. In order to prove its case, prosecution in all

examined 11 witnesses. We will be referring to the testimony

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of relevant witnesses. Father of the prosecutrix entered the

witness box as PW1 and he stated that prosecutrix was his

.

daughter who was earlier married with Sewak Kumar in the

year 1996, who died in the year 2001. He further deposed

that prosecutrix was employed after the death of her husband

in the year 2003 and that she had three children. In his

examination in chief, he stated that accused was putting up

in the house of prosecutrix since the year 2007. He also

stated that his daughter informed him that accused used to

sexually molest her and he had promised to marry her. He

further stated that the accused stayed with his daughter till

the year 2012 and thereafter when he refused to marry his

daughter, she (prosecutrix) lodged complaint against accused.

In his cross-examination, he stated that Rammi Devi was

born in the year 1979. This witness further mentioned in his

cross-examination that before the marriage of accused, he

was aware about accused sexually harassing his daughter yet

he did not lodge any report/complaint in this regard against

the accused. He also deposed in his cross-examination that

he had never informed the villagers about the said facts. He

also admitted that even on the date of marriage of the

accused, no complaint was lodged either by him or his

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daughter. He denied the suggestion that services of the

accused was engaged by his daughter (prosecutrix) as a

.

servant.

7. Prosecutrix entered the witness box as PW2 and

she deposed in the Court that she was married to Sewak

Kumar in the year 1996 who died in an accident in the year

2001. She further stated that she was given employment in

the year 2003 and that she had three children. She also

stated that she purchased a house in the Dhaka Colony in the

year 2007 where she started residing with her children. She

further stated that accused was her brother-in-law in relation

and he started residing with her since 2007. She also stated

that accused developed physical relations with her on the

pretext of marriage but on 15.8.2012, he refused to marry

her. In her examination in chief, she stated that last time

accused established physical relations with her on 15.8.2012.

She deposed that she disclosed all the facts to her parents

and even after 15.8.2012, she kept on waiting for accused,

but on 20.08.2012, she came to know that accused had

married someone else and thereafter on 23.8.2012, she

reported the matter to the police. In her cross-examination,

she stated that she did not recollect the month and date when

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accused established physical relations with her. She

thereafter stated that accused established physical relations

.

with her in the year 2007. She also deposed in her cross-

examination that she had informed family members of the

accused about his activities. In her cross-examination, she

further stated that she for the first time informed her parents

about the factum of accused establishing physical relations

with her on 23.8.2012. She further stated that in fact she had

informed her mother about the factum of accused sexually

molesting her after the first incident and her mother had

informed her father about this. She admitted the suggestion

that house of accused is at a distance of about 3 to 3 ½ kms

away from her house. She admitted the suggestion that

during day hours, she used to go on her duty and her

children used to remain at home. She admitted that accused

used to play with her children and used to look after them.

She denied that she had informed the doctor that accused

had lastly established sexual relations with her on 12.8.2012.

She stated that she had informed the police that last time

accused raped her on 15.8.2012. She further deposed in her

cross-examination that she lodged FIR two day after the

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marriage of accused. She also stated that she came to know

about the marriage of accused on 20.8.2012.

.

8. PW6 Dr. Mini Sharma, who has medically

examined the prosecutrix, stated in the Court that after

receiving the RFSL report, she had given her final opinion

which was Ext. PW6/B. A perusal of Ext. PW6/B

demonstrates that final opinion given by PW6 was that no

semen was detected on the clothes of the prosecutrix or the

swab and it could not be determined that sexual intercourse

had occurred or not.

9. Investigating Officer PW11 ASI Ramesh Chand

deposed in the Court that in the year 2012, he was posted as

Incharge, Police Post Dhangu Peer and on 23.8.2012 when he

was on patrol duty with other police officials, prosecutrix met

him in the bazaar where she got her statement Ext. PW2/A

recorded, pursuant to which the same was sent to police

station Indora for the purpose of lodging of FIR. He further

deposed that thereafter the house of the prosexcutrix was

investigated and photographs of the same were clicked and a

spot map was also prepared. He also stated that prosecutrix

was referred to CHC Indora for the purpose of medical

examination and thereafter he deposed about the mode and

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manner in which investigation was carried out. In his cross-

examination, he stated that prosecutrix met him at around

.

6:00 p.m. He stated that her father was with her. He further

stated that the mother of the prosecutrix was also present at

the spot.

10. Accused was medically examined by PW3 Dr.

Randhir Kumar and MLC so issued by him is on record as

August 2012 was 22 years.

r to
PW3/A. As per the said MLC, the age of the accused as in

11. Results which are mentioned in Regional Forensic

Science Laboratory, Himachal Pradesh, Dharamshala report

Ext. P-y are quoted herein below.

“Result

The exhibits/cutting were subjected to biological
and serological analysis in the laboratory.

Benzidine test was performed to detect the
presence of blood. The species of origin was

determined by the gel diffusion technique and
blood grouping was done by the absorption-elution
method. Acid phosphate test and microscopic
examinations were carried out to detect the
presence of semen. On the basis of aforesaid
examinations, result were as under:-

1. Human blood was detected on exhibit-1a
(vaginal swab, Rimmy Devi), Exhibit-1b (vaginal
slides, Rimmy Devi), exhibit-2a (salwar, Rimmy
Devi) and exhibit-2d (underwear, Rimmy Devi), but

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the results were inconclusive in respect of blood
groups. Semen was not detected on the exhibits.

2. Human blood was detected in exhibit-4a

.

(underwear, Manga Masih), but the result was

inconclusive in respect of blood group. Human
semen was detected on the exhibit.

3. Blood was detected in traces on exhibit-4b

(pubic hair, Manga Masih), but was insufficient for
further serological examinations. Semen was not
detected on the exhibit.

4. Blood and semen were not detected on exhibit-
2b (shirt, Rimmy Devi) and exhibit-2e (dupatta,
Rimmy Devi).”

12. Records demonstrate that it has come in the

statement of father of the prosecutrix itself that the

prosecutrix was born in the year 1979. It is further evident

from the record of the case that as in the year 2007, at the

most, the accused was around 17 years old. Meaning thereby

that in the year when allegedly the accused sexually molested

the prosecutrix for the first time he was only 17 years old,

whereas the age of the prosecutrix was about 27-28 years at

that time. It has come both in the statement of father of the

prosecutrix as well as her statement that prosecutrix used to

reside in a house purchased by her in Dhaka Colony with her

three children and she was employed at Pathankot. As per the

prosecutrix, she used to attend her duties during day hours

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and it is the accused who used to look after her children and

who also used to play with them while sometimes performing

.

household job. Be that as it may, it is a matter of record that

though as per the prosecutrix, she was sexually assaulted by

the accused right from the year 2007 up to 2012 on the

pretext of marriage, however, at no stage, any complaint in

this regard was lodged by her either before the police or any

other authority. In fact, in her cross examination on one hand

she had stated the factum of accused sexually molesting her

was narrated by her to her parents for the first time on

23.8.2012, but in the same breath she stated that she

informed her mother about this fact after the very first act of

sexual molesting committed by accused upon her. These

contradictions in the testimony of the prosecutrix go

unexplained. According to her, she narrated all these facts to

her father for the first time only on 23.8.2012 but her father

(PW1) has deposed in his cross examination that he was

aware about the physical relations between the accused and

his daughter even before the marriage of the accused. He

further stated that he did not lodge any complaint/report in

this regard before anyone. He also admitted in his cross

examination that accused was brother-in-law of the

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prosecutrix. Medical Legal Certificate of prosecutrix Ext.

PW11/D finds mention that prosecutrix was lastly sexually

.

assaulted by the accused on 12.8.2012. However, the

prosecutrix in her cross-examination has deposed that it was

incorrect that she had informed the Doctor that she was lastly

physically assaulted by the accused on 12.8.2012 rather she

stated that she had informed the doctor that she was lastly

sexually assaulted by the accused on 15.8.2012. Why

prosecutrix wants to improve the contents of the MLC also

creates doubt over the veracity of version of the prosecution

because it is not the case of the prosecution that contents as

they find mention in the MLC were not correctly recorded by

the doctor. Not only this, it has come in the statement of the

prosecutrix that she came to know about the marriage of

accused on 20.08.2012. Why FIR was not immediately lodged,

has also not specifically been explained by the prosecution. It

is difficult to believe that the factum of marriage of the

accused was not in the knowledge of prosecutrix or her family

because it is not the case of the prosecution that accused got

secretly married especially when it has come on record that

the families of the prosecutrix as well as accused were related

to each other. All these facts lead towards the inference that

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lodging of the FIR was just an afterthought. Now though the

version of the prosecutrix was that the accused maintained

.

physical relations with her on the pretext of marriage,

however, no cogent evidence has been produced on record by

the prosecution on the basis of which it could be inferred by

the accused that some allurement of marriage was given by

the accused while establishing physical relations with the

prosecutrix. Incidentally in the year 2007, accused was hardly

17 years old boy whereas the prosecutrix was a widow with

three children who was also gainfully employed. It is

otherwise also difficult to believe that a married lady having

three children, who was elder to the accused, would have had

established physical relations with the accused who was a

minor on the allurement of accused of marrying her. This also

appears to be a concocted story. The allegation of the

prosecutrix that she was lastly raped by the accused on

15.8.2012, has also not been proved on record by the

prosecution. Neither from the MLC of the prosecutrix nor from

the forensic report, it stand established that prosecutrix was

raped by the accused either on 12.8.2012 or on 15.8.2012.

Therefore, from what we have discussed above, the only

inference which could be drawn is that the prosecution had

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miserably failed to prove its case against the accused that he

has committed an offence punishable under Section 376 of

.

IPC. A perusal of the judgment passed by the learned trial

Court also demonstrates that after discussing the entire

evidence on record, both ocular as well as documentary, the

findings of acquittal were returned by the said Court in favour

of the accused. Findings so returned by learned trial Court

cannot be said to be perverse as the same are duly borne out

from the records of the case. We find the judgment of the

learned trial Court to be a well reasoned judgment. Even

otherwise, it is settled law that when an accused has the

benefit of acquittal in his favour, then the said judgment of

acquittal is not to be interfered with until and unless the

judgment so returned by the Court below is perverse or is not

sustainable on facts and/or law. In the present case, it cannot

be said that judgment of acquittal passed by the learned trial

Court is either perverse or the same is not sustainable on

facts and/or law.

In view of above discussion, while upholding the

judgment of acquittal passed in favour of the accused by the

learned trial Court (Additional Sessions Judge-(III), Kangra at

Dharamshala, District Kangra), in Sessions Trial No. 70-

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I/VII/12, dated 08.08.2013, we dismiss this appeal being

devoid of merit. Pending miscellaneous application(s), if any

.

also stand disposed of.

(Sanjay Karol)
Judge

(Ajay Mohan Goel)
Judge

November 13, 2017.

(narender)

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