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2011 Supreme(HP) 2443
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Before (Division Bench)
The Hon’ble Mr. Justice Deepak Gupta, Judge.
The Hon’ble Mr. Justice Sanjay Karol, Judge.
Cr. Appeal No. 692 of 2002 Date of decision: 4th November, 2011
State of H.P. Vs. Sunil Kumar
For the appellant : Mr. Vivek Thakur, Addl. A. G.
For the respondent:Mr. B. N. Mehta, Advocate
The prosecution must prove the guilt of the accused beyond reasonable doubt, and failure to do so may result in acquittal.
Headnote:
rape - prosecution evidence - Section 376 IPC, Section 313 Cr.PC, Registration of Births and Deaths Act, 1969 - The court discussed the prosecution's failure to prove the exact date of birth of the prosecutrix, the delay in lodging the FIR, and the compromise agreement. The court found the evidence unconvincing and acquitted the accused.
Fact of the Case:
The prosecutrix, a deaf, dumb, and blind minor, was allegedly raped. The accused was acquitted by the trial court, and the prosecution appealed.
Finding of the Court:
The court found the prosecution evidence unconvincing and acquitted the accused.
Issues: Failure to prove the exact date of birth, delay in lodging the FIR, and the validity of the compromise agreement.
Ratio Decidendi: The prosecution failed to prove the exact date of birth, and the delay in lodging the FIR was unconvincingly explained. The compromise agreement did not establish the guilt of the accused beyond reasonable doubt.
Final Decision: The appeal was dismissed, and the accused was acquitted.
Sanjay Karol J. (Oral. For an offence, which is alleged to have been committed on 7.4.2001, accused was put to trial. In terms of judgment dated 29.6.2002 passed by learned Sessions Judge, Hamirpur, in Sessions Trial No. 24 of 2001 titled as State of H.P. vs. Sunil Kumar, accused stands acquitted of the charged offence.
2.It is the case of the prosecution that prosecutrix is deaf, dumb and blind. She is also mentally retarted. She has no control over her senses. She was born on 9.8.1987 to Ms. Rani Sharma (PW-1) through her husband Sh. Satish Kumar (PW-3). Prosecutrix has got one elder sister and one younger brother. On 7.4.2001 at about 5.30 p.m. while PW-1 was cutting grass in the court yard of her house, she heard cries of the prosecutrix coming from one of the rooms of her house. She went into the road to see as to what had happened. She found that the accused had opened his pants and was standing besides the prosecutrix. Seeing PW-1, accused apologized for having raped the prosecutrix. Immediately PW-1 examined her daughter and found blood on her private parts. She had also urinated. In the meanwhile, accused ran away from the spot. PW-1 complained about the incident to the mother of the accused but was told her that since accused had ran away from the house, she would take-up the matter upon his return. She was requested not to make the incident public. PW-1 changed the clothes of the prosecutrix and washed the soiled clothes. On 9.4.2001 when PW-3 who was away for work returned home, PW-1 narrated the incident to him. Immediately PW-3 approached the father of the accused and narrated the incident to him. He was also told by parents of the accused that since accused was absconding, they would look into the matter upon his return. Accused returned home only on 28.5.2001. At that time PW-3 was away for work. On 30.5.2001 when PW-3 returned home, he convened meeting of the Panchayat and in the presence of residents of the village and certain members of the Panchayat i.e. Smt. Shakuntla Devi (PW-4), Sh. Bishambhar Dutt (PW-5) and Sh. Jaswant Singh (PW-6), accused admitted his guilt in terms of compromise (Ext.PW-4/A). Accused promised to mend his behaviour and not to be seen around the house of the prosecutrix. Since on 20.7.2001 accused was seen around the house of the complainant, on 21.7.2001 PW-1 lodged F.I.R. No.112/2001 (Ext.PW-1) under Section 376 IPC with Police Station, Nadaun. Sh. Nathu Ram (PW-15), SHO, Police Station, Nadaun commenced investigation. During investigation, compromise (Ext.PW-4/A) was taken on record. Certificate (Ext.PW-9/A) showing date of birth of the prosecutrix to be 9.8.1987, was taken on record. Prosecutrix was got medically examined through Dr. Dinesh Thakur (PW-16) who issued MLC Ext.PW-16/A. Accused was also got medically examined through the very same doctor. As per medical record, accused was found fit to perform sexual intercourse. Possibility of the prosecutrix being subjected to rape could not be ruled out for the reason that two fingers could be inserted inside her vagina. Investigation revealed complicity of the accused to the crime. Hence challan was presented in the Court for trial.
3.Accused was charged for having committed an offence punishable under Section 376 IPC, to which he did not plead guilty and claimed trial.
4.In order to prove its case prosecution examined 16 witnesses and statement of the accused under Section 313 Cr.PC was also recorded in which he pleaded innocence and false implication.
5.Accused stands acquitted by the Court below. Hence the present appeal.
6.A deaf, dumb and blind girl, supposedly minor is alleged to have been raped by the accused. It is one of those rare caseswhere the complainant, unfortunately has not come out with the whole truth. It cannot be said with certainty that the accused had committed the crime or that the prosecution has been able to prove the case, beyond reasonable doubt sharing complicity of the accused to the charged offenc
