Decided on April 01,1997

STATE OF H.P. Appellant
Suneet Chand Respondents


A.K.GOEL,J. - (1.)STATE has filed this appeal against the judgment dated 27.9.1988 passed by Shri M.R. Chaudhary, Sessions Judge, Chamba Division at Chamba in sessions trial No. 4 of 1988. By means of impugned judgment, the respondent who was tried under Section 376 IPC has been acquitted which has been questioned by the appellant in the present appeal.
(2.)FACTS out of which this case has arisen are that on 9.4.1987 at about 3.30 P.M. the prosecutrix (PW-7, not examined) had gone for bringing water from the water source (Bowli). It may be pointed out here that this prosecutrix is a deaf and dumb person having been deserted by her husband and residing with her brother, Karam Chand (PW-4). For bringing water, she had taken a Batlohi (pitcher). When the prosecutrix was coming on her way back from the Bowli, she was caught hold of by the respondent and in this exercise, her Batlohi was thrown away and the respondent after lifting the prosecutrix from the path towards the Rest House side committed forcible sexual intercourse against her wish. Further prosecution case against the respondent was that this act was witnessed by Smt. Kaushalaya Devi, Bhabi (brother's wife) of the prosecutrix (PW-2). This PW-2 had come out of her house for throwing saw dust. When she heard some noise of hun, hun, she went a few paces and found the Batlohi lying there and water was coming out of it. This was recognized to be belonging to her by this witness and had been taken by the prosecutrix for fetching water. She had gone hardly a few steps ahead, when she found the prosecutrix on the road with her Salwar being there by her side and the respondent committing the act of sexual intercourse upon the prosecutrix. PW-2 made her presence felt at that point of time by clearing her throat. When the respondent saw her, he immediately ran away from the scene of occurrence alongwith his underwear. Prosecutrix had been gagged with her Dupatta, on removal whereof from her mouth, blood came out. Prosecutrix was brought home by PW-2 and on way both of them met Haria Ram (PW-5). Since there was none else at home, the incident was narrated to one Smt. Simro Devi, who was working in the field at that point of time. When the husband of PW-2, Kaushalaya Devi came back in the evening al about 7/7.30 P.M., the entire incident was narrated by PW-2 to her husband Karam Chand (PW-4), who also questioned the prosecutrix and she narrated the incident to her brother as narrated by Kaushalaya Devi to her husband. Karam Chand went to the Pradhan of Gram Panchayat, Malan alongwith PW-2 and informed the Pradhan about this incident. The Pradhan after verifying the factual position from the spot advised Karam Chand to go and lodge a report at Police Station, Sihunta for which purpose the latter accompanied by his wife Kaushalaya Devi went to the said Police Station for lodging the report. Since the Incharge of Police Station was not available and one Constable was present there, who asked them to go to Bhatet. At about 6.00 P.M., after having reached Village Bhatet, the entire incident was narrated to ASI Bhim Singh. On 11.4.1987, the Investigating Officer visited the spot and took investigation in hand. Thereafter, the prosecutrix was taken to Civil Hospital, Dalhousie for her medical examination where she was examined on the same day. Statement of Smt. Kaushalaya Devi (PW2) was also recorded by the Investigating Officer vide Ext. PB which was sent to Police Station, Chawari for registration of the F.I.R. which was recorded vide Ext. PC. After completion of the challan, it was filed in the court of Chief Judicial Magistrate, Chamba. Since the case was under Section 376 IPC, it was committed to the Sessions Judge, Chamba. After the trial Court was satisfied that there are prima facie grounds for framing charge against the respondent, he was charged for having committed rape on Smt. Shimlo Devi to which he pleaded not guilty and claimed trial.
In order to sustain its case, the prosecution examined as many as 14 witnesses. Material witnesses in this case are Smt. Kaushalaya Devi (PW-2), Karam Chand (PW-4), Haria Ram (PW-5) besides Dr. Madhupa Sood (PW-1), who had examined the prosecutrix after she had been referred by the police to her for such examination.

(3.)IN this case prosecutrix Shimlo Devi was put into the witness box as PW-7, but she could not be examined because she is deaf and dumb. In the order sheet dated 14.6.1988, the learned Sessions Judge passed the following order :-
"Yesterday, examination of the prosecutrix Smt. Shimlo Devi could not be completed as she is deaf and dumb. She was discharged. Though the relatives of the prosecutrix Shimlo Devi state that they understand and interpret the language of Shimlo Devi which she expresses by sounds, gestures and signs, but it will not be appropriate to get assistance of any one of them in interpreting the statement of the prosecutrix. The learned PP will file an application for summoning an appropriate expert to interpret the evidence of the prosecutrix. The application be filed within ten days and thereafter summons shall be issued to the witness."

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