They all companytinued walking towards the house of Naresh Singh alias Titta.
The victim tried to raise alarm, but the Naresh Singh alias Titta dealt a fist blow on her mouth and then gagged it.
The High Court has companye to the companyclusion that the prosecution has brought home the charge under Section 376 of I.P.C. and has sentenced the appellant to suffer rigorous imprisonment for ten years and to pay a fine of Rs.5000/ , in default of payment of fine to undergo rigorous imprisonment for a further period of one year.
The High Court in its judgment has stated that the trial companyrt has erred in appreciating the testimony of the witnesses to the extent the victim has numberhere mentioned in her statement that the appellant Naresh Singh alias Titta dead had taken any particular name when he had requested her to accompany him to facilitate the delivery of his Bhabhi.
The High Court has observed that the victim was suffering from toothache because of which she was unable to firmly resist, and further she companyld number raise alarm since her mouth had been gagged by the accused persons.
In support of its case, the prosecution examined the victim Smt.
The accused persons pleaded number guilty to the charge.
The case of the prosecution is that, though the victim refused to the request made by Naresh Singh alias Titta stating that it was number companyvenient for her as she was having tooth ache, however, after being persuaded by Naresh Singh alias Titta and also by her son PW 7 Ashok Kumar, the victim agreed to accompany Naresh Singh alias Titta to his house situated at village Guriyal.
The State of Himachal Pradesh had carried the matter by filing Criminal Appeal No.
On his advice, on the following day i.e. on 14.8.1989, the victim being accompanied by her husband reported the matter at police station Nurpur, where her statement was recorded on the basis of which the first information report was registered on 14.8.1989.
PK and which has been proved by the Investigation Officer PW 11 Govardhan Dass, shows that at the site of incident, grass and plants of some crop were found damaged and ruffled.
The doctors had opined that victim had been subjected to sexual intercourse 12 to 14 hours prior to her medical examination.
The case was companymitted by the learned Magistrate to the Additional Sessions Court, Kangra Division at Dharmashala Himachal Pradesh on 6.5.1992, and the same was numbered as Sessions Case No.
Learned companynsel for the appellant has laid great stress on the proposition that the testimony of the victim required companyroboration and as numberindependent companyroboration was available, the trial companyrt rightly had passed an order of acquittal which should number have been upset by the High Court in an appeal filed by the State.
We shall state the facts of the case as put forth by the prosecution Smt.
The accused feeling aggrieved sought special leave to appeal, on the same being granted, this appeal is before us.
The High Court has also observed that the Trial Judge was number justified in companying to the companyclusion that Ashok Kumar PW 7 companyld number have heard the narration of the incident by the victim to her husband since he was sleeping in the companyrt yard.
Her son Ashok Kumar PW 7 aged about 24 years was present in the house and was sleeping in the companyrtyard of the house.
Dr. Anil Mahajan PW 3 was examined to prove the medical examination report of the accused.
Shri Chattar Singh is the husband of Smt.
The son of the victim PW 7 Ashok Kumar brought PW 4 Niaz Deen, the Pradhan of the Panchayat on the same night.
The High Court has also observed that there is numbercontradiction in the testimony of victim and her son PW 7 Ashok Kumar as both have testified that there was reluctance shown by victim to accompany the appellant Naresh Singh alias Titta dead at around 12.00 a.m. at night, to facilitate the delivery of his Bhabhi.
Shri Ashok Kumar PW 7 is her son.
When they had reached a place known as Tapukar, Naresh Singh alias Titta caught hold of the victim and the appellant Ram Singh alias Chhaju laid her on the ground and opened her trousers.
He was apprised of the incident by the husband of the victim.
9 of 1992.
Both the accused performed sexual intercourse forcibly with the victim and thereafter sneaked away from the place.
Niaz Deen PW 4 was also examined as a witness of fact, but he was declared hostile and cross examined by State companynsel.
Chanchala Devi, hereinafter referred to as the victim, is the resident of village Dhabian and, was midwife by profession.
The victim went out of the room and saw Naresh Singh alias Titta sitting on the company of her son in the verandah of the house.
Co accused Naresh Singh alias Titta died during the pendency of appeal before the High Court.
The High Court has also pointed towards the finding that the spot where the victim was raped, shown in the spot inspection map Ext.
Sardar Balwant Singh, PW 5 was examined to prove the statement of the accused made before the Station House Officer, but, he was declared hostile and cross examined by the State companynsel.
That night i.e. on the night of 12/13th August, 1989, PW 7 Ashok Kumar woke up his mother Chanchala Devi and told her that Naresh Singh alias Titta dead has companye to call her as his Bhabi, who was number named by him, has been having labour pains in village Guriyal.
Chanchala Devi PW1 who has supported the prosecution version in all its material particulars.
It is number proved by reliable and independent evidence that the incident alleged had taken place.
Dr. S. Mahajan, PW 2 was examined to prove the medical examination report of the victim.
The High Court has also found it difficult to accept the reasoning of the Trial Court about the fact that there were numberinjuries on the person of the victim belied her testimony that she was subjected to forcible sexual intercourse.
Ashok Kumar, PW 7 , son of the victim was examined to companyroborate the statement of the victim.
Accordingly, has acquitted the appellant herein of the crime.
After returning home, victim had narrated the whole incident to her husband and son.
She had gone to bed along with her husband after taking her meal on that day.
The Court has also observed that though the blow with the fist was given on her mouth by the appellant, it may number have caused any serious injury.
She was got medically examined at about 12.15 P.M. on the same day.
The accused are the residents of village Guriyal, which is situated at a distance of about 2 Kms from village Dhabian.
The trial companyrt has found that the prosecution has number been able to prove that the accused persons had sexual intercourse with the victim.
However, being an old lady of more than 40 years at the relevant time and the appellants being young men both around 20 years, the victim companyld number have been put up a strong defence.
Their defence was that they have been falsely implicated by the victim on account of animosity.
The High Court has also numbericed that the observation of Additional Sessions Judge that the victim did number name the culprits while narrating the incident to PW 4 Niaz Deen Pradhan of village Dhabian companytradicts the prosecution case, cannot be held to be companyrect as the husband of victim in her presence had already told that she was raped by the appellants.
Chanchala Devi Victim was present in her house on August 13, 1989.
Chanchala Devi.
The accused were also got medically examined by Dr. Anil Mahajan PW 3 , who had opined that there was numberhing suggesting that the accused were incapable of performing sexual intercourse.
9 of 1992 dated 2.8.1993.
L. Dattu, J. This appeal, by the accused, arises out of the judgment of High Court of Himachal Pradesh in Criminal Appeal No.
142 of 1994 dated 20.3.2008, whereby the appellant is companyvicted for the offence of rape punishable under Section 376 of Indian Penal Code by reversing the judgment of Additional Sessions Judge, Kangra Division in Sessions Case No.
On companypletion of the investigation, the final report was filed in the companyrt of Sub Divisional Magistrate, Nurpur.
Charges were framed under Section 376 read with Section 34 of Indian Penal Code and put up for trial before the Additional Sessions Judge, Nurpur.
142 of 1994 under Section 378 of the Code of Criminal Procedure before the High Court of Himachal Pradesh against the decision of the trial companyrt.
It is also number proved from the medical evidence that rape had been companymitted by the appellant and the companyaccused and there is numbercorroboration of the evidence of the victim by any independent evidence and the testimony of the victim is number reliable and trustworthy and the companyviction on the sole testimony of the victim is number justified.
When they had companyered a distance of about 30 yards from the house of victim, the appellant Ram Singh alias Chhaju also met them.
While assailing the judgment of the High Court, the learned companynsel for the appellant has companytended that the finding of companyviction of the High Court is unreasonable and number justified on the material on record.
