Cr. Appeal No. 357 of 2008. Case: State of H.P. Vs Rajak Mohammad. Himachal Pradesh High Court
| Case Number | Cr. Appeal No. 357 of 2008 |
| Counsel | For Appellant: Ashok Chaudhary, V.S. Chauhan, Addl. Advocate General and J.S. Guleria, Assistant Advocate General and For Respondents: Anand Sharma, Advocate |
| Judges | Sanjay Karol and Piar Singh Rana, JJ. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Sections 154, 313; Indian Evidence Act, 1872 - Sections 114A, 35; Indian Penal Code 1860, (IPC) - Sections 361, 363, 366, 376 |
| Judgement Date | April 09, 2015 |
| Court | Himachal Pradesh High Court |
Judgment:
Piar Singh Rana, J.
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Present appeal is filed against the judgment passed by learned Additional Sessions Judge Solan HP in Session Trial No. 5-NL/7 of 2007/2004 titled State of HP Vs. Rajak Mohammad decided on 12.3.2008.
BRIEF FACTS OF THE PROSECUTION CASE:
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Brief facts of the case as alleged by prosecution are that on dated 13.8.2003 at about 9 PM co-accused Rajak Mohammad along with co-accused Vinod @ Negi kidnapped the prosecutrix in a truck bearing registration No.HP-11-3361 from Baner. It is alleged by prosecution that truck bearing registration No. HP-11-3361 was owned by PW 4 Lok Pal and driven by PW 2 Om Parkash. It is further alleged by prosecution that truck was taken to Kullu and thereafter truck was abandoned at Kullu and co-accused Rajak Mohammad asked cleaner PW 19 Tilak Raj to take truck back. It is further alleged by prosecution that co-accused Rajak Mohammad kidnapped prosecutrix and committed sexual intercourse with her while on way to Kullu. It is further alleged by prosecution that thereafter co-accused Rajak Mohammad kept prosecutrix in a house at Kullu for 3/4 days and thereafter prosecutrix was took to different destinations and finally prosecutrix was recovered from the house of the sister of co-accused Rajak Mohammad at village Anand Ghat post office Jhanduta District Bilaspur and recovery memo Ext. PW 3/A was prepared. It is further alleged by prosecution that age of the prosecutrix was fifteen years as per school certificate placed on record. It is further alleged by prosecution that prosecutrix was medically examined by PW 16 Dr. Sarita Agnihotri and as per MLC Ext. PW 16/B sexual intercourse was committed. It is further alleged by prosecution that as per MLC Ext. PW 15/B co-accused Rajak Mohammad was capable to perform sexual intercourse. It is further alleged by prosecution that FIR Ext. PW 10/A was recorded and thereafter T-shirt and underwear of co-accused Rajak Mohammad took into possession vide seizure memo. It is further alleged by prosecution that spot map Ext. PW 18/A was prepared. It is further alleged by prosecution that as per report of chemical analyst human semen were found upon underwear Ext. P5. It is further alleged by prosecution that disclosure statement of co-accused Rajak Mohammad was recorded and accused located the place of occurrence near Pandoh District Mandi HP where co-accused Rajak Mohammad has committed sexual intercourse with prosecutrix. Charge was framed by learned Additional Sessions Judge Solan HP against co-accused Rajak Mohammad under Sections 363, 366 and 376 I.P.C. Accused Rajak Mohammad did not plead guilty and claimed trial.
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Prosecution examined nineteen witnesses in support of its case:
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Prosecution also produced following piece of documentary evidence in support of its case:-
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Statement of accused Rajak Mohammad was also recorded under Section 313 Cr.P.C. Accused has stated that prosecutrix voluntarily joined him and took accused to Sunder Nagar HP. Accused has stated that he had married prosecutrix. Accused did not examine any defence witness. Learned trial Court acquitted the accused.
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Feeling aggrieved against the judgment of acquittal passed by learned Additional Sessions Judge Solan State of HP filed present appeal.
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We have heard learned Additional Advocate General appearing on behalf of the appellant and learned Advocate appearing on behalf of respondent and also gone through the entire record carefully.
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Point for determination before us is whether learned trial did not properly appreciate oral as well as documentary evidence placed on record Court and whether learned trial Court had committed miscarriage of justice.
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ORAL EVIDENCE ADDUCED BY PROSECUTION:
9.1 PW 1 Smt. Raj has stated that she is running a hotel a village Baner. She has stated that her daughter Sushma along with her three daughters are residing with her after the death of her husband. She has stated that on dated 13.8.2003 at 9 PM she along with her grand daughter prosecutrix went to road side to fetch fuel wood. She has stated that in the meanwhile prosecutrix was caught by co-accused Rajak Mohammad and co-accused Vinod Kumar @ Negi and thereafter lifted the prosecutrix and put her in truck No. HP-11-3361 and driven the truck towards Bilaspur (HP) side. She has stated that she raised hue and cry and thereafter reached her home. She has stated that thereafter Ashok Kumar informed at Police Station Bilaspur about kidnapping of prosecutrix. She has stated that police reached at the spot and recorded her statement Ext. PA. She has stated that prosecutrix was traced after about 14/15 days. She has stated that co-accused Rajak Mohammad was also arrested. She has stated that during custody co-accused Rajak Mohammad had made disclosure statement that he could identify the place where he committed sexual intercourse with the prosecutrix. She has stated that prosecutrix also located the site of incident. She has stated that prosecutrix was aged about fifteen years at the time of incident. She has denied suggestion that the age of the prosecutrix was 19/20 years at the time of incident. She denied suggestion that prosecutrix voluntarily joined the company of co-accused Rajak Mohammad.
9.2 PW 2 Om Parkash has stated that he was driver in truck No. HP-11-3361 owned by Sh. Lekh Raj. He has stated that Tikal Ram was conductor of the truck. He has stated that on dated 13.8.2003 he was driving truck from Roper to Darlaghat and stopped truck at Baner for taking tea. He has stated that after about half an hour he heard noise and came out from the truck and found that his truck was removed from the spot. He has stated that truck was recovered on the next day by police from Bilaspur and was took into possession vide memo Ext. PW 2/A. He has stated that he does not know co-accused Rajak Mohammad present in Court. He has stated that he did not see co-accused Rajak Mohammad on that day. He has denied suggestion that co-accused Rajak Mohammad has kidnapped prosecutrix in a truck. Witness was declared hostile by prosecution. He has denied suggestion that in order to save accused he had deposed falsely.
9.3 PW 3 Dalip Singh has stated that he was President of Gram Panchayat Balgarh in the year 2001. He has stated that on dated 25.8.2003 police officials came to his residence at 4 PM. He has stated that thereafter he went along with police officials to the residence of Taj Din at village Anandghat. He has stated that co-accused Rajak Mohammad and prosecutrix were sleeping in one room. He has stated that he identified co-accused Rajak Mohammad in Court. He has stated that police officials prepared recovery memo Ext. PW 3/A. He has stated that prosecutrix did not disclose to police officials in his presence that prosecutrix had solemnized marriage with co-accused Rajak Mohammad.
9.4 PW 4 Lok Pal has stated that he is owner of truck bearing registration No. HP-11-3361. He has stated that on dated 13.8.2003 the driver of the truck was Om Parkash...
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