IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 297 of 2001 Date of decision: 09.03.2010 __________________________________________________________________ The State of H.P. .....Appellant. Versus Hans Raj. .....Respondent. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? __________________________________________________________________ For the appellant: Mr. R.K. Sharma, Sr. Addl. Advocate General with Mr. Rajinder Dogra, Additional Advocate General. For the respondent: Mr. Sunil Awasthy, Advocate, Amicus Curiae. R.B. Misra, J (Oral). Mr. Sunil Awasthy, Advocate, has been requested to assist this Court as Amicus Curiae and he has kindly agreed to the same. Accordingly, Mr. Sunil Awasthy, Advocate, has assisted this Court in response to the submissions made on behalf by Mr. R.K. Sharma, Sr. Additional Advocate General, for the appellant-State. 2. The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... Code of Criminal Procedure has been granted in reference to the impugned judgment and order dated 22.02.2001, passed by learned Sessions Judge, Shimla, District Shimla, Himachal Pradesh, in Sessions Trial No. 27-S/7 of 2000, acquitting the alleged accused under Section 376 of Indian Penal Code. 3. Prosecution case in brief is that the victim- prosecutrix while deployed as maid servant in Shimla, on 17.08.1999, around 8 p.m., left the place of her master to dump garbage. The respondent-accused, employed as barber in a shop situated near the site of dumper, called the victim- prosecutrix and took her to the shop of his employer and after pulling down the shutter of the shop, sexually assaulted her. When the victim-prosecutrix tried to raise hue and cry, accused-respondent shut her mouth. When the victim- prosecutrix did not return for a considerable time, her master's wife became apprehensive. She went in search of the victim-prosecutrix in the company of a few ladies living in her neighbourhood. On hearing her master's wife's shouts, the victim-prosecutrix somehow got herself released from the clutches of the accused-respondent. The victim-prosecutrix narrated the incident to her master's wife and the ladies accompanying her. The FIR was lodged and on investigation, the accused-respondent was charged for the aforesaid offence. ...3... 4. In order to prove its case, prosecution examined as many as eleven witnesses, whereas, accused-respondent through his statement under Section 313 Cr.P.C. denied the prosecution case. 5. In support of prosecution case, victim-prosecutrix, PW-1 (name not given), has stated that at about 8 p.m. when she was returning to her employer's place after dumping garbage, the accused-respondent, who was employed as a barber in a nearby shop, called her to the shop and lowered the shutter of the shop and committed rape on her. It is also noticed that number of shops and houses are situated around the shop, where the incident took place. As per the testimony of PW-1, victim-prosecutrix, there are windows in the shop in question. PW-1 has also stated that when she was called by the accused-respondent, shutter of the shop was down and accused raised it and took her inside and after taking her inside, accused pulled the shutter down. However, she did not raise any hue and cry when the accused-respondent was busy in pulling the shutter down. PW-1 has not offered any explanation for going with the accused-respondent inside the shop and not raising any hue and cry when the accused- respondent was busy in pulling the shutter down. PW-1 has also stated that when she heard the shouts of her mater's wife, ...4... she got herself released from the accused-respondent. It may be seen that if she was capable of freeing herself on hearing the shouts of her master's wife, what prevented her to get herself released from the clutches of the accused-respondent when she was being sexually assaulted by the accused- respondent. 6. The medical evidence of PW-5, Dr. Anjli soni, who conducted the medical examination of the victim-prosecutrix, has also not supported the prosecution case, as the medical report revealed that the sexual intercourse had taken place on the victim-prosecutrix before the alleged incident in question took place. 7. It is also surprising that sexual assault was allegedly committed in that shop, where the accused was employed as barber. It was on 17.08.1999 (Tuesday) when the alleged crime was committed but generally on Tuesday barber's shop remains closed. PW-4, (Rakesh Kumar), at whose shop the accused-respondent was employed as a barber, has stated that the key of the shop used to remain with him. PW-4 has further stated that on the fateful day, he himself had locked the shop and the key was with him. PW-11 (Amin Chand), has also stated that the key of the shop was with the owner of the shop, when he got the shop opened for ...5... spot inspection. If the key of the shop was with the owner of the shop, it is nobody's case that the accused had a duplicate key and the statement of the victim-prosecutrix (PW-1) that accused-respondent raised the shutter and took her inside the shop becomes doubtful. 8. In view of the testimony of PW-2 (Rajni Devi), wife of the employer of the victim-prosecutrix, the victim- prosecutrix remained away from her house for about an hour. As per testimony of PW-2, the victim-prosecutrix had gone to dump the garbage and after some time her husband returned from his place of work and inquired about the victim- prosecutrix. PW-2 told that prosecutrix had gone to throw garbage, but had got late. Then her husband went by car and returned after half an hour and told that he could not locate her. Thereafter, PW-2 accompanied by 2-3 ladies living in her neighbourhood went in search of the prosecutrix, but could not find her but when they were returning and climbing the stairs leading to their houses, the ladies accompanying her, heard the cries of the prosecutrix, standing in one corner. The testimony of PW-2 indicates that the victim-prosecutrix remained absent from her house for about one hour. Such aspect reveals that the victim-prosecutrix willingly went with the accused-respondent for about one hour. Such an incident ...6... could not be said to have taken place in the barber's shop, more so, in view of testimony of the victim-prosecutrix, the shop was surrounded by a number of shops and houses and as per site plan, Ex. PF, there are windows in the shop in question. In these circumstances, the prosecution case becomes doubtful. 9. On analysis of the prosecution witnesses and the material on record, the learned Sessions Judge has rightly arrived at the finding that the prosecution has failed to prove its case beyond reasonable doubt and in our considered view also prosecution has failed to bring home the guilt against the accused. Appeal, being devoid of merit is dismissed. 10. Bail bonds of the accused-respondent are discharged. 11. The Court appreciate the efforts made by Mr. Sunil Awasthy, Advocate, in assisting the Court on behalf of accused- respondent as Amicus Curiae. (R.B. Misra) Judge (V.K. Sharma) Judge 9th March, 2010 (virender)