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 wasdetermined 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), but13/11/2017 23:07:01 :::HCHP
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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