2014 (6) TMI 1047 - HC - Indian Laws

Sexual assault - offences punishable under sections 452, 342, 376 (2) (g) and 506 read with section 34 of the Indian Penal Code - HELD THAT - The incident is stated to happened on 29.2.2008 at 10.30 P.M. From the variance in the contents of Ex.PW-3/A and the statement of PW-3 Vidya Devi coupled with statements of PW-1 Ved Parkash and PW-2 Rajinder Singh, it cannot be held that the prosecutrix was subjected to forcible sexual act. She had an opportunity to raise alarm when the boys were standing in front of the door of her house for 10 minutes and insisted to have sex with her. She had again an opportunity to raise alarm when Tara Devi came to her, but she did not raise alarm. She knew that PW-2 Rajinder Kumar was residing in the adjoining room. He was in the room. The door of one of the rooms of prosecutrix goes to the room of Rajinder Kumar. PW-1 Ved Parkash though has stated that it was locked. However, it is apparent that what was happening in the room was being heard by Rajinder Kumar. It is for this reason that Rajinder Kumar told the boys to come out. According to rukka, when she raised alarm PW-1 Ved Parkash and PW-2 Rajinder Kumar had come on the spot. However, in her statement, she has stated that she came out and went to the house of Ved Paraksh and stayed there over night with him. PW-11 Gopal Dutt has not supported the prosecution case at all. In fact, PW-1 Ved Parkash and PW-2 Rajinder Kumar have been declared hostile. The only conclusion, which can be drawn from the evidence of the prosecution, is that the sexual act was consensual. The prosecutrix was 32 years of age having two children. There are material contradictions, inconsistencies and embellishments in the statements of the prosecution witnesses. The prosecution has failed to prove its case against the accused. The prosecution has failed to prove the charge under section 342 of the Indian Penal Code. It is duly proved from the statement of PW-2 Rajinder Kumar that prosecutrix was not wrongfully confined. She had an opportunity to raise alarm when the landlord s daughter Tara Devi had come and more particularly when PW-2 Rajinder Kumar was residing in the adjoining room. In order to prove charge under section 452 of the Indian Penal Code, the prosecution is required to prove that the accused committed house trespass as defined in section 442 of the Indian Penal Code and that the house trespass was committed after the accused made preparation for causing hurt to, or for assaulting, or for wrongfully restraining some person, or for putting some person in fear of hurt, assault or wrongful restraint. The prosecution has failed to prove the charge under section 452 of the Indian Penal Code. The accused were standing, according to the statement of PW-3 Vidya Devi, in front of door of her house for ten minutes. It is not the case of the prosecution that accused used some force to enter the house - Similarly, prosecution has failed to prove charge under section 506 of the Indian Penal Code in view of the statements of PW-1 Ved Parkash, PW-2 Rajinder Kumar, PW-3 Vidya Devi and PW-11 Gopal Dutt. Accused are acquitted of the charges framed against them. Fine amount, if any, already deposited by the accused is ordered to be refunded to them. Since the accused are in jail, they be released forthwith, if not required in any other case - appeal allowed.

Summary

Issues Involved:
1. Conviction under Section 376(2)(g) of the Indian Penal Code (IPC) - gang rape.
2. Conviction under Section 452 read with Section 34 IPC - house trespass after preparation for hurt, assault, or wrongful restraint.
3. Conviction under Section 342 read with Section 34 IPC - wrongful confinement.
4. Conviction under Section 506 read with Section 34 IPC - criminal intimidation.

Issue-wise Detailed Analysis:

1. Conviction under Section 376(2)(g) IPC:
The prosecution's case was based on the testimony of the prosecutrix, who alleged that the accused forcibly entered her room, gagged her, and raped her. The prosecutrix's account contained inconsistencies, including variances between her initial complaint (Ex. PW-3/A) and her court testimony. The court noted that she had opportunities to raise an alarm when the accused were outside her door for ten minutes and when her landlord's daughter, Tara Devi, came to her room, but she did not. The court found that the prosecutrix's actions and the timeline of events, as described, did not support the claim of forcible rape. Additionally, the medical evidence did not conclusively support the prosecution's case, as no blood or semen was found on the prosecutrix's clothes or the scene. The court concluded that the sexual act was consensual, leading to the acquittal of the accused under Section 376(2)(g) IPC.

2. Conviction under Section 452 read with Section 34 IPC:
To establish house trespass under Section 452 IPC, the prosecution needed to prove that the accused entered the prosecutrix's house with the intent to cause hurt, assault, or wrongful restraint. The court found that the prosecution failed to prove that the accused used force to enter the house. The prosecutrix's statement that the accused gagged her mouth and threatened her with a knife was not credible, given the inconsistencies in her testimony and the lack of supporting evidence. Consequently, the court held that the prosecution did not prove the charge of house trespass under Section 452 IPC.

3. Conviction under Section 342 read with Section 34 IPC:
The charge of wrongful confinement required proof that the accused voluntarily obstructed the prosecutrix's movement. The court noted that the prosecutrix had opportunities to raise an alarm and seek help, particularly when Rajinder Kumar, who was residing in the adjoining room, inquired about the commotion. The court concluded that the prosecutrix was not wrongfully confined, and the prosecution failed to establish this charge under Section 342 IPC.

4. Conviction under Section 506 read with Section 34 IPC:
For the charge of criminal intimidation under Section 506 IPC, the prosecution needed to prove that the accused threatened the prosecutrix with injury to her person, reputation, or property, intending to cause alarm. The court found that the essential ingredients of criminal intimidation were not met, as the prosecutrix's testimony and the statements of other witnesses (PW-1 Ved Parkash, PW-2 Rajinder Kumar, and PW-11 Gopal Dutt) did not support the claim that the accused threatened her with injury. The court, therefore, held that the prosecution failed to prove the charge under Section 506 IPC.

Conclusion:
The appeal was allowed, and the judgment of conviction and sentence dated 30.3.2010 by the Additional Sessions Judge, Sirmaur District at Nahan, was set aside. The accused were acquitted of all charges, and the fine amount, if any, was ordered to be refunded. The court directed the immediate release of the accused from jail if not required in any other case.