Bal Kishan vs State Of H.P

The prosecutrix accompanied her son to the forest. They returned with the herd in the evening. By then the last bus going towards the village of the 2 prosecutrix, had already left. The butcher offered that she could stay with her son in the upper storey of the shop for the night. She accepted the offer. Around 9.30 p.m., when the prosecutrix and her son were sitting in the room on the upper storey of the shop of the butcher, accused Kamlesh, Arjun Singh and Suresh Kumar went there. They forcibly dragged the prosecutrix out of that room and when they reached the ground floor of the structure, two other persons, appellants, Bal Kishan and Sonu joined them. One more person, named Chuni Lal, who too was tried along with the appellants, also joined them. The prosecutrix was forcibly carried to a near forest. She cried for help. One old lady, living nearby intervened, but she could not get her released. The son of the prosecutrix got so scared that he climbed a truck parked nearby and hid himself in the tool-box. Someone informed the police telephonically. Soon the police reached the forest and over-powered two of the appellants, namely, Kamlesh and Suresh and the sixth accomplice of the appellants, named Chuni lal (who stands acquitted by the Trial Court), when they tried to flee from the spot on seeing the police. Statement of the prosecutrix was recorded by HC Pawan Sharma, heading the police party that reached the spot. The prosecutrix besides narrating the details about her visit to Baijnath and having gone to the upper storey of the shop of the butcher for night stay and having then been dragged and taken to the 3 forest in the manner as summarized hereinabove, stated that those who committed the rape, were calling each other by the names of Bal Kishan, Arjun, Sonu, Kamlesh etc. Police investigated the matter and filed the case against the six accused persons. The trial Court charged all the six for offences punishable under Sections 452 read with Section 34, 323 read with Secftion 34, 376(2)

Appellants' plea was that they were not involved in the crime and have been implicated just on suspicion. Learned counsel, representing the appellants, argued that there is no evidence on record establishing the identity of the appellants as the perpetrators of the crime. 4 Prosecution examined the prosecutrix as PW-1, her son Onkar Chand as PW-3, an old woman, named Gitan Devi, PW-4, who allegedly tried to get the prosecutrix rescued from the accused persons, D.R. Thakur, PW-7, the then Judicial Magistrate Baijnath, who conducted the test identification parade, police Head Constable Pawan Sharma, PW-15, who on the receipt of telephonic information at the police station about the incident went to the spot and over-powered three of the alleged rapists on the spot and recorded the statement of the prosecutrix, under Section 154 of the Code of Criminal Procedure, 1973 (in short `Cr.P.C.'), and ASI Chain Lal, PW-16 and Dy. S.P. Prittam Singh, PW-18, who conducted the investigation of the case. The police also examined lady doctor named, Bindu Sood, PW-19, who conducted the medico legal examination of the prosecutrix and Dr. S.K. Sood, PW-2, who medically examined the accused persons with a view to ascertaining whether there were any injury marks on their persons and whether they were capable of performing sexual intercourse. All the accused persons took the plea of denial simpliciter and claimed that they were innocent and had been falsely implicated at the behest of the police.

7. No evidence was led to show the presence of the appellant at the spot of occurrence or to have participated in the crime. That being so, the prosecution has miserably failed to prove the accusations so far as the 7 appellant is concerned. He is acquitted of the charges. He shall be released forthwith from custody unless required to be in custody in connection with any other case.

8. The appeal is allowed.