State of H.P. vs Kuldeep Kumar Alias Kaku

V.K. Ahuja, J.—This is an appeal filed by the State of H.P. u/s 378 Cr.P.C. against the judgment of the Court of learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala, dated 27.2.2006, vide which he had acquitted the respondent of the charge framed against him u/s 376 I.P.C. A notice of the appeal was issued to the respondent.

Briefly stated, the facts of the case are that on 24.11.2003, when the victim was at her home, who is simpleton and is not in position to talk and her mother was a way to work in the fields. The respondent came to their house, took the victim to his house, which is adjacent to the house of the prosecutrix since they happened to be cousins. The accused after taking prosecutrix to his house, committed rape upon her. The mother of the prosecutrix came back in the evening and she was informed by her daughter about the rape committed by the respondent. The case was registered, the challan was filed in the Court of learned Judicial Magistrate 1st Class (I), Palampur, who committed the case to the Court of learned Sessions Judge, Kangra at Dharamshala, who assigned the case to the Court of learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala, who tried the respondent, leading to his acquittal.

We have heard the learned counsel for the parties and have gone through the record of the case.

On appraisal of the facts of the case, it is clear that there is statement of the mother of the prosecutrix as well as the medical evidence, which establishes that the prosecutrix was subjected to rape, which findings are there and not specifically under challenge. The main findings which have been challenged by the State are the findings of the learned trial Court holding that the identity of the respondent was not established from the prosecution evidence. These findings was supported by the learned counsel for the respondent during the course of arguments.

On appraisal of the record of the case, it is clear that the prosecution was produced for examination during the trial of the case and the learned Presiding Officer had observed as under:-

The witness is not in position to tell her age, name of village nor she is in position to express herself. From the conduct of the witness it seems that she does not understand anything whereby she cannot be deemed to be a fit witness. Thereby I feel that she being not fit witness for want of understanding cannot be permitted to be examined. Hence she is discharged.

It is, therefore, clear that the statement of the prosecutrix was not recorded, since she was not found to be a competent witness to depose.

A perusal of record of the case shows that the Medical Officer PW-2 Dr. Meenakshi Gupta, who had examined the prosecutrix had observed that the patient was not able to communicate properly. She also made the observation in the cross-examination as under:-

It is correct that at the time of examination prosecutrix was not in position to put her signatures on the medical certificate. It is correct that on enquiry the prosecutrix could not tell the history of the allegations which could only be provided by her mother.

The Investigating Officer PW-9 ASI Surjit Singh had observed that the Medical Officer had advised that the victim be taken to Psychiatrist, but she was not taken to Psychiatrist.

The mother of the prosecutrix was examined as PW-1 Daya Devi, who stated that when she came back in the evening, her daughter had told her that the accused present in Court called her to his house and committed rape with her. She did not substantiate her statement that the prosecutrix was able to communicate with her by gesture or in what manner, since it has come up in evidence that she was not able to speak properly. She admitted in her cross-examination that on account of mental problem, her daughter was not in a position to tell anything, which, therefore, clearly proves that the identity of the respondent was not established from the statement of her mother.

The other relative examined by the prosecution is PW-6 Swarna Devi, who stated that the prosecutrix was raped by the accused. However, she stated that the victim had also told to her so, but admitted that the victim was not able to talk and could talk with some difficulty. PW-1 Daya Devi, mother of the prosecutrix and her aunt PW-6 Swarna Devi, have never stated that the prosecutrix was able to communicate with them on the basis of gestures or otherwise and there is nothing on the record to prove as to how they were told by the prosecutrix about the accused, when they have stated that she was unable to talk.

From the above discussion, it is clear that the findings recorded by the learned trial Court holding that the identity of the accused was not established, cannot be said to be perverse, calling for an interference by this Court. In view of the above discussion, we accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged forthwith.