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STATE OF H.P. V/S BIJA RAM, decided on Wednesday, September 22, 2010.
[ In the High Court of Himachal Pradesh, Cr.Appeal No. 535 of 2000. ] 22/09/2010
Judge(s) : R.B. MISRA & V.K. SHARMA
Advocate(s) : R.K. Sharma, Rajinder Dogra, Romesh Verma.
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    Code of Criminal Procedure 1973 - Section 378(3) Section 313 -Indian Penal Code 1860 - Section 376 -     R.B. MISRA J.(1.) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure in reference to judgment dated 1.6.2000 passed by learned Sessions Judge Shimla in S. Tr. No. 12-S/7 of 1999 thereby acquitting the respondent/accused for the offence under Section 376 of IPC.(2.) The prosecution case is that the victim (since expired) aged about 19 years used to reside in a Dogri (out house) in the area of village Manalag along with her husband Mohan Singh. On 2.10.1997 her husband went to work as a labourer for one Nikka Ram at latter's house situated at a distance of about 300 yards Whether the reporters of the local papers maybe allowed to see the judgment? from the out house where she used to reside with her husband. She herself went to a field situated just in front of her out house to mow grass. Around 12 noon when she was busy in cutting the grass the accused appeared from somewhere in drunken state snatched the scythe from the hands of victim-deceased and threw the same into a nearby field and after holding her arms with one of his hands and after breaking the string of her salwar with the other hand sexually assaulted the victim-deceased however while doing such sexual assault on the victim-deceased accused caused tooth bite injuries on her cheeks and breast she cried for help. Her husband who was working at the house of Nikka Ram came running. On seeing him the accused ran away. After being chased accused picked up stones and shouted that better to take care of his wife rather to run after him and in that respect FIR No. 128/97 was lodged and the victim-deceased was also medically examined on 4.10.1997 The victim-deceased was found used to sexual intercourse and was also found delivered a child about a month back. After investigation accused was charged for the aforesaid offence and the case was committed to the Session court. 2. In order to prove its case prosecution has examined as many as eight witnesses whereas through his statement under section 313 Cr.PC accused denied the prosecution case.(3.) Material witnesses are PW-1 Mohan Singh the husband of the victim-deceased PW-2 Daulat Ram the father-in- law of the victim-deceased PW-8 Dr. Shyam Lal Chauhan who conducted the medico legal examination of victim-deceased and PW-6 Daya Ram HC who conducted the main investigation of the case.(4.) PW-1 Mohan Singh husband of the victim-deceased has stated that he had gone to Nikka Ram's place situated at a distance of 100 to 150 yards from the field when he heard the cries of his wife when he reached the spot he noticed that the accused was going towards upper side and that when he tried to follow him accused threw stones at him and shouted that instead of following him he (the witness) should take care of his wife. When (PW-1) went to the field his wife told him that she was sexually assaulted by the accused. PW-1 has further stated in the cross examination that he was employed as a Conductor on a bus and has also stated that there were 4-5 persons at the house of Nikka Ram that day. Those persons were Nikka Ram's father sister named Devku Nikka Ram's wife Nikka Ram himself and two small children of Nikka Ram. Further that Khayian's house was situated near the house of Nikka Ram. There were 4-5 members in the family of Khayian Ram and not 10-12 as suggested by the defence counsel.(5.) PW-2 Daulat Ram father in law of the victim- deceased has endeavoured to support the prosecution case. He has stated that his daughter in law told him that when she was cutting grass in the field accused came there and sexually assaulted her and also put bite injuries on her face and breasts.(6.) PW-3 Roshan Lal Pradhan of Gram Panchayat has stated that he has put some signature without going through the contents on the papers purported to have been made his statement. PW-3 has in fact not supported the prosecution case. PW-4 Gita Ram HC PW-5 Laiq Ram Constable PW-6 Daya Ram HC PW-7 Bidhi Singh Incharge CIA have made endeavour to support the prosecution case to the extent the role assigned to them. However they are not very material to provide the case of the prosecution.(7.) PW-8 Dr. Shyam Lal Chauhan who medically examined the victim-deceased-prosecutrix aged about 19 years has found that she had delivered a child about a month back and no injury was seen on any part of her body. Tooth bite mark which was alleged by the police to be there had disappeared and in the opinion of PW-8 lady was used to sexual intercourse. Medico Legal examination was conducted of the accused on 6.10.1997 and no mark of injury was noticed on her body.(8.) On the analysis of the prosecution witnesses and materials on record we notice that the victim-deceased-prosecutrix (not live) was the married lady and was the mother of a child. She was alleged to have been sexually assaulted at the place while working the field from where at a distance of 100 to 150 yards her husband was also working. Victim's husband could not apprehend the accused out of fear and when the victim was examined no mark of injury or anything could be noticed in her body which could have indicated that on the fateful day she was sexually assaulted.(9.) It has been submitted by the learned counsel for the accused/respondent that for the sake of argument without admitting if the accused had sexually assaulted the victim- deceased-prosecutrix in any case her testimony could not be relied because by the time she was not alive and in view of disharmony and contradictions of ocular evidence and the complaint of victim-deceased the medical evidence has not been supported the case of the prosecution. No tooth bite was noticed on the face and breasts of the victim-deceased-prosecutrix as alleged by the victim-prosecutrix herself.(10.) Therefore in the facts and circumstances the testimony of victim-deceased-prosecutrix is not inspiring confidence. The accused cannot be held guilty on conjectures and surmises and on imaginary conduct(11.) In our considered view the prosecution has failed to prove its case beyond reasonable doubt. Therefore we find no scope for interference in the impugned judgment. The criminal appeal being devoid of merit is accordingly dismissed.(12.) The bail bonds furnished by the accused/ respondent are discharged.