Prosecutrix in her statement on oath has given statement that
one day in the month of October 2008 the accused called her in the
office room in the interval and committed rape upon her. Her
further statement is that after 20-25 days of the above incident the
accused called her in that very room and took her naked photo on
mobile and also took photo when he was committing rape on her.
This witness also admitted that she did not tell the incident to any
one due to the threats extended to her by the accused.
P.W.1, Dalip Singh in his cross-examination has stated that
prosecutrix had left the Gairad School after passing her class 8th in
the year 2007 to 2009 and in the year 2010 she was studying in class
10th in Inter College Tuped. Suggestion has been given to P.W.1,
Dalip Singh that the accused has been implicated in false case due to
the reason that prosecutrix was weak in her studies and she was
failed in her class and he was annoyed with the accused. This
witness also stated in
cross examination that the parents of
prosecutrix are alive. She has one brother and grand mother and the
prosecutrix never narrated the incident to them. It also creates a
doubt to this fact that the accused committed rape on the prosecutrix
once in the month of October, 2008 and then again in the month of
November 2008 and also prepared video clipping but surprisingly
enough no one had seen the incident particularly when it has come in
the statement of prosecutrix that the accused had used force and she
had raised alarm. This fact cannot be ignored that there were many
students and teachers, clerks and chukidar in the school but no one
had noticed the incident. Further when the prosecutrix left the school
then also she did not narrate the incident to her family members.
Again when the M.M.S. had come to light two years earlier as has
been stated by the I.O. in his statement, then also no action was
taken in the matter and there is no explanation from the side of
complainant as to why the action was not taken at that time. P.W.7,
11
Darshan Singh is alleged to have noticed the video clipping from the
mobile of a Nepali who had come to his shop to down load Nepali
songs and Darshan Singh saved the video clipping on his computer
and deleted the same from the mobile of that Nepali, but this witness
did not try to report the matter to the police and allowed him to go
away. P.W.7, Darshan Singh also stated before the court that the
Nepali person had told him that the video clipping was loaded to his
mobile from the mobile of his friend. Darshan Singh also admitted
that he has no registration under I.T. Act to do the work of preparing
C.D. from mobile and to do the work of downloading the songs on
mobile. All the above circumstances of video clipping don’t make a
complete chain of events so that it may be inferred that the video
clipping was prepared by the accused.
It is to be mentioned here that according to prosecutrix the
accused asked her to lift the border of her shirt and to pull down her
Salwar and she did that due to fear of the accused. The prosecutrix
was in school dress at that time and the accused took naked photos of
her body and when she refused to take her naked photos the accused
told her that he would delete the same. She further stated that the
accused committed rape on her on that day also and also prepared
video himself when he was committing rape on her. This part of
statement of prosecutrix is unbelievable. How a person can prepare a
video while he was doing sexual intercourse by using force with the
prosecutrix. In the situation like this some other person could have
prepared the video, but it is not a case of prosecution and as per
statement of prosecutrix
the accused himself prepared video of
naked part of her body when he was committing rape on her. This
possibility cannot be ruled out that some other person might have
done sexual intercourse with prosecutrix and she has falsely named
the accused- her teacher. Apart from this P.W.7, Darshan Singh,
owner of Kumaun Photo Studio, did not produce the hard disc of the
computer as a primary evidence to prove the factum of recovery of
M.M.S. from mobile of Nepali person and he has prepared the
C.D. without forensic examination of mobile of the accused, it can
not be said that the accused prepared the video of naked parts of the
body of the prosecutrix, particularly when in the disputed video the
person
shown committing rape is not identifiable and thus the
charges levelled against the accused-appellant are not proved.
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 286 of 2011
Raju Thapa S/o Late Sri Bahadur Singh Thapa V State of Uttarakhand
Citation;2014 CRLJ 324 uttarkhand
Hon’ble B.S. Verma, J.
