STATE OF HIMACHAL PRADESH Vs. DOT RAM

JUDGEMENT

(1.) THE present Criminal Appeal has come up for adjudication after the grant of leave to appeal has been granted under Section 378(3) of the Code of criminal Procedure in reference to judgment dated 21.2.2002, passed by Learned Sessions Judge, Kullu H.P., in Sessions Trial No. 59 of 2001, for the offence under Section 376 of the Indian Penal Code, acquitting the alleged accused / respondent.

(2.) THE prosecution case, in brief, is that on 3.2.2001 victim -prosecutrix (name not given) at about 7.00 P.M. accompanied by her younger sister aged about 4 years went in the adjoining field of her house and while she was answering the call of the nature, accused appeared, caught her from her hair took her to the nearby bushes, forcibly made her to lie down and raped her. On cries made by her and her younger sister, their mother Subidha Devi (PW.3) and another sister Ailo Devi, ran to the spot from their nearby house and pulled the accused from the person of the victim -prosecutrix. Thereafter, accused Dot Ram quarrelled with Smt. Subidha Devi (PW.3), the mother of the victim - prosecutrix and after sometime Sh. Rattan Chand (PW.4), father of the victim -prosecutrix, along with Lal Chand a resident of the same village also reached to the spot, however, before their arrival, accused had already escaped. The victim -prosecutrix was brought to the house. Further the story of the prosecution is that due to darkness and long distance from police station, matter could not be reported to the police on that night. FIR (Ex.PA) was lodged on 4.2.2001 and victim - prosecutrix was medically examined by Dr. Neeru Pandit Kapoor (PW.5), who thereupon issued MLC (Ex.PW.5/B). The ossification test was made and radiological examination of the victim - prosecutrix was also conducted, whereby Dr. Yash Pal (PW.10) who vide certificate (Ex.PW.10/A) has opined the age of the victim -prosecutrix between 13 to 16. The accused was arrested and was medically examined by Dr. Shiv Prakash (PW.6). After registration of FIR, ASI Kamla (PW.15), visited the spot and prepared site plan (Ex.PW.15/A) and took school certificate (Ex.PW.11/A) from Head Master of the School Sh.Jaggan Nath (PW.11), where victim -prosecutrix was studying. PW. 15 also collected the copy of pariwar register (Ex.PW.9/A) from Secretary, Gram Panchayat and copy of birth entry (Ex.PW.7/A) from the office of Registrar, Births and Deaths, Kullu. After completion of investigation, the accused was charged for the above offence.

(3.) IN order to adjudicate the present criminal appeal preferred by the State, it is necessary to deal with the prosecution witnesses. Sh.Lal Chand (PW.1) has stated that on 3.2.2001, he was coming back to his house along with Rattan Chand (PW.4), the father of victim -prosecutrix, and Gehru Ram. When they reached at a place known as Palati, at about 7.00 PM, heard noise of a woman from field side. PW.4 informed that it appeared as if voices were of his wife and children. They went from the path towards that direction in the field. There were bushes, where PW.1 saw wife of (PW.4) / Rattan Chand and her three daughters, namely, victim -prosecutrix, Ailu Devi and Lata Devi aged 13 -14 years, 10 -11 years and 5 -6 years respectively. Wife of PW.4 told PW.1 that accused Dot Ram, Master, was there. PW.1 was declared hostile, however, in cross -examination, has stated that it is correct that when he was passing through the path, he heard the shrieks of a woman from a distance of 10 -12 steps from the path on which he was going. PW.1 has further stated in cross -examination that he and accompanying persons were informed by PW.3 i.e. wife of PW.4 that her daughter had come to ease and for answering the call of nature and when she reached to the spot, she found accused Dot Ram raping by lying on the victim -prosecutrix. Sh.Lal Chand (PW.1) has also stated in cross -examination that PW.3 further told him that accused was caught from back and lifted by her from the person of the victim. After lifting the accused he had put on his underwear as well as his pant and accused started arguing with PW.3 and thereafter the accused fled away from the spot. PW.1 has further stated in cross -examination that the place of occurrence was at a distance of about 100 meters from the house of Rattan Chand (PW.4). PW. 1 has, however, denied that PW.4 along with Khub Ram and Fateh Chand gave beatings to accused Dot Ram. As stated by PW.1, no such incident was took place in his presence. PW.1 however had not seen the accused on 4.2.2001 and 5.2.2001 thereafter also. PW.1 has also stated in cross -examination that he was not aware about lodging of any report to police by the accused about his beatings. PW.1 has further stated in cross -examination that bushes on edges of the fields were having thorns and no crop was sown in the field.