2019 Supreme(HP) 1072

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SURESHWAR THAKUR, JYOTSNA REWAL DUA, JJ.
Pankaj - Appellant
Versus
State of Himachal Pradesh - Respondent
Criminal Appeal No. 251 of 2018, 257 of 2018, 258 of 2018
Decided On : 12-07-2019

The court held that the prosecution had failed to establish its case against the accused persons because (i) the prosecutrix had resiled from her statement recorded under Section 164 Cr.PC; (ii) the DNA profiling test did not match the DNA profile of the accused Pankaj with that of the prosecutrix; (iii) there were no signs of injuries visible either on the prosecutrix or on the accused persons.

Headnote:

CRIMINAL APPEAL - [SECTION 452, 365 AND 376(D) READ WITH SECTION 34 OF THE IPC] - [FACTS OF THE CASE] - Prosecutrix alleged that 2/3 persons entered her room, gagged her mouth and lifted her outside her quarter. She further stated that it was dark and she could not see the faces of the accused persons. She was sleeping with her husband and three years old son. She made efforts to raise the alarm, but her husband did not wake up. She further testified that she had not disclosed the names of accused persons as the persons who had committed sexual intercourse with her and further that she had disclosed the names of the accused persons as those who consumed liquor with her husband in their quarter and that is how their names were mentioned in her statements Ex.PW1/A and Ex.PW1/D. [FINDING OF THE COURT] - The court found that the prosecutrix had resiled from her statement recorded under Section 164 Cr.PC and had feigned ignorance as to who assaulted her sexually. The court also found that the DNA profiling test did not match the DNA profile of the accused Pankaj with that of the prosecutrix. The court further found that there were no signs of injuries visible either on the prosecutrix or on the accused persons. [ISSUES] - Whether the accused persons were guilty of the offences punishable under Sections 452, 365 and 376(D) read with Section 34 of the IPC. [RATIO DECIDENDI] - The court held that the prosecution had failed to establish its case against the accused persons. The court relied on the following factors: (i) the prosecutrix had resiled from her statement recorded under Section 164 Cr.PC; (ii) the DNA profiling test did not match the DNA profile of the accused Pankaj with that of the prosecutrix; (iii) there were no signs of injuries visible either on the prosecutrix or on the accused persons. [FINAL DECISION] - The court allowed the appeals filed by the accused persons and acquitted them of the commission of offences punishable under under Sections 452, 365 and 376(D) read with Section 34 of IPC.

Fact of the Case:

Prosecutrix alleged that 2/3 persons entered her room, gagged her mouth and lifted her outside her quarter. She further stated that it was dark and she could not see the faces of the accused persons. She was sleeping with her husband and three years old son. She made efforts to raise the alarm, but her husband did not wake up. She further testified that she had not disclosed the names of accused persons as the persons who had committed sexual intercourse with her and further that she had disclosed the names of the accused persons as those who consumed liquor with her husband in their quarter and that is how their names were mentioned in her statements Ex.PW1/A and Ex.PW1/D.

Finding of the Court:

The court found that the prosecutrix had resiled from her statement recorded under Section 164 Cr.PC and had feigned ignorance as to who assaulted her sexually. The court also found that the DNA profiling test did not match the DNA profile of the accused Pankaj with that of the prosecutrix. The court further found that there were no signs of injuries visible either on the prosecutrix or on the accused persons.

Issues: Whether the accused persons were guilty of the offences punishable under Sections 452, 365 and 376(D) read with Section 34 of the IPC.

Ratio Decidendi: The court held that the prosecution had failed to establish its case against the accused persons. The court relied on the following factors: (i) the prosecutrix had resiled from her statement recorded under Section 164 Cr.PC; (ii) the DNA profiling test did not match the DNA profile of the accused Pankaj with that of the prosecutrix; (iii) there were no signs of injuries visible either on the prosecutrix or on the accused persons.

Final Decision: The court allowed the appeals filed by the accused persons and acquitted them of the commission of offences punishable under under Sections 452, 365 and 376(D) read with Section 34 of IPC.