Himachal Pradesh High Court
State Of H.P vs Of on 2 March, 2017
Bench: Dharam Chand Chaudhary, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. Appeal No. 264 of 2009
Reserved on : 16.12.2016
Decided on: 2nd March, 2017
State of H.P. .......Appellant
Versus
of
Raghubir Singh and others ...Respondents
Coram
rt
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge. The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes.
For the appellant: Mr. D.S. Nainta and Mr. Virender Verma, Addl. A.Gs.
For the respondents: Mr. R.L. Sood, Senior Advocate with Mr. Arjun Lal, Advocate.
Dharam Chand Chaudhary, Judge.
Aggrieved by the judgment dated 24.09.2008 passed by learned Sessions Judge, Kullu in Session Trial No. 3 of 90/14 of 08, whereby the respondents Raghubir Singh, Hari Ram, Ravi Parkash, Sunil Kumar and Vijay Kumar (hereinafter referred as to 'accused No. 1 to 5') have been acquitted of the charge under Section 376(2) 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 2(g) of the Indian Penal Code framed against each of them.
.
2. The prosecution case as disclosed from the statement of the prosecutrix PW-5 (name withheld) recorded under Section 154 Cr.P.C shortly stated is that of with the permission of her mother Nimo Devi (PW-6) on 8.7.1989, she had gone to purchase shoe in the market rt at Manali. While in the market, she visited 'star video' to see matinee show. In the video parlour, accused No. 5 (Vijay Kumar) was sitting next to her. He started developing intimacy with the prosecutrix and asked her to accompany him to have bath at Vashisth. Though she was reluctant to come out from the video parlour and accompany the said accused, however, on being persuaded by him, she left the parlour. She was taken by the accused to Vashisth mor, where he brought a jeep bearing HPY-70. The same was being driven by accused Munna and occupied by accused No. 3, Ravi Parkash. She was dragged inside the jeep and taken to Solang Nalla side. On the way, vehicle was stopped on road side and accused No. 5 caught hold her hand and ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 3 took her on river bank behind a big boulder. He forcibly opened her salwar. She was made to lie down and .
thereby subjected her to sexual intercourse. After such ghastly act committed by accused No. 5, she got up and was about to move from that place, however, in the of meanwhile, one more taxi arrived there and three persons accused No. 4 Sunil, one Bittu and Ninnu rt alighted therefrom. She was again made to lie down and they all also subjected her to sexual intercourse. She being frightened could not speak anything. At that very time, one Tikam Ram and Raghu Mahant also came there. Considering them that they are local persons, she accompanied them. Accused No. 5 and accused No. 4 accompanied by Bittu left for Manali from that place in a taxi. Aforesaid Tikam Ram, Raghu Mahant, Munna and accused No. 3 Ravi Parkash and Ninnu made her to board jeep No. HPY-70, which proceeded towards Manali side. They, however, made the jeep to stop on Kenchi Mor. Raghubir Mahant allegedly picked her up and brought out of the vehicle on the road and taking benefit of night hours and darkness, they all subjected ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 4 her to sexual intercourse. It is accused Tikam who lastly subjected her to sexual intercourse. They all fled away .
by leaving her alone on the road. She any how or other could reach in her house at 11/12.00 mid night and revealed the entire episode to her mother. On the basis of of statement Ext. P-g, FIR Ext. P-N was recorded against the accused persons under Section 376 of the Indian rt Penal Code.
3. The prosecutrix during the course of investigation has made the supplementary statement mark D-A. According to her she was reluctant to accompany accused No. 5 to Solang Nalla, however, on allurement made to her, accompanied him and when after being subjected by him forcibly to sexual intercourse, she was coming back from the place of occurrence, accused No. 4 accompanied by Bittu and Ninnu came there and they also caught hold her and taken behind the big boulder. There she was threatened by them with dire consequences and succeeded in opening her salwar. First it is accused No. 4 who had subjected her to sexual intercourse and thereafter his ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 5 companion Ninnu and third person Bittu was in the process of making him prepared to assault her sexually, .
however, in the meanwhile, Raghu Mahant and Tikam Ram arrived there and, therefore, said Bittu on account of afraid of said persons, failed to do so. Said Raghu of Mahant brought her to Solang Nalla where she had tea with him. Accused No. 5 and accused No. 4 fled away rt in vehicle No. HPY 885 towards Manali side. Ninnu, Ravi Parkash, accused No. 3 and Raghu Mahant after having tea occupied jeep No. HPY-70. She was also made to sit in the said jeep. The same was about to move, however, in the meanwhile, Chuni Lal, Pradhan of Barua also arrived there and said that he was also going to Bahang.
He was also made to sit in the jeep. While in the jeep, he did not enquire about her whereabouts. The jeep when reached at Kenchi Mor was made to stop there on the road. Said Chuni Lal, Pradhan alighted therefrom and went ahead. She also want to accompany him, however, Raghu Mahant (accused No. 1 @ Raghubir Singh) caught hold her, whereas, Munna who was on the wheel of the jeep taken out one bed sheet and they all ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 6 subjected her to sexual intercourse turn by turn at an isolated place ahead Kenchi Mor.
.
4. On the registration of FIR Ext. P-N under Section 376 read with Section 34 of the Indian Penal Code against the accused persons, the prosecutrix was of got medically examined from Dr. Shashi Thakur (PW-4) vide MLC Ext. P-F. Her salwar Ext. P-2 was also taken into rt possession by PW-4. For ascertaining the radiological age of the prosecutrix, her x-ray was conducted vide skigram Ext. P-1 by PW-4 Dr. V.K. Mutreja. The report is Ext. P-E. The school certificate of the prosecutrix Ext. P-R was taken into possession from the school vide memo Ext. P-J, whereas, copy of abstract of family register Ext.
P-T from the Gram Panchayat. The bed sheet was taken in possession vide recovery memo Ext. P-H. Two vehicles bearing No. HPY-70 and HPY-885 were also seized by the police along with documents thereof. Accused No. 3 and Bittu @ Anil Kumar were arrested on 9.07.1989. They were got medically examined vide MLCs Ext. P-A and P-
C in CHC Manali. Accused No. 1 was arrested on 22.07.1989 and also got medically examined vide MLC ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 7 Ext. P-D. On receipt of report of chemical examiner, Ext.
P-2 and completion of investigation Challan was initially .
filed against accused Nos. 3, 5, one Bittu @ Anil Kumar and accused No. 1 Raghubir Singh, however, for want of evidence, accused Chuni Lal implicated by the of prosecutrix in her supplementary statement mark D-A on 24.07.1989, he was kept in column No. 2 of the Challan.
rt Accused No. 2 Hari Ram, Ninnu, accused No. 4 Sunil Kumar and Munna had absconded, hence were proceeded under Section 82 Cr.P.C. The case against remaining accused was committed to the Sessions Court at Kullu.
5. Before order on charge was passed by learned trial Court, an application was filed by the prosecution under Section 319 Cr.P.C with a prayer to implicate accused No. 4 Sunil Kumar and accused No. 2 Hari Ram, Munna and Ninnu, who were absconded as accused persons. Notice of the application was issued to the proposed accused persons. Consequently, accused No. 2 and accused No. 4 had put in appearance and they were also added as accused persons. The remaining ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 8 accused Munna and Ninnu were already declared proclaimed offender by learned Committal Court vide its .
order dated 15.3.1990. The supplementary Challan was filed against accused No. 2 and 4 also.
6. On hearing learned Public Prosecutor and of also learned defence counsel on the point of charge, no case was found to be made out against accused Chuni rt Lal. He was accordingly discharged. However, charge under Section 376/34 IPC was framed against accused persons and also against accused Sunil.
7. The accused, however, pleaded not guilty to the charge and claimed trial, therefore, the prosecution has examined 10 witnesses in all. The material prosecution witnesses are the prosecutrix PW-5, her mother Smt. Nimo Devi (PW-6), PW-7 Atma Ram is a witness to the recovery memo of bed sheet Ext. P-3, which according to him was taken into possession in his presence vide recovery memo Ext. P-H. The date of birth certificate Ext. P-I was also taken into possession in his presence vide memo Ext. P-K. The photocopies of the RC and the jeep were also taken into possession vide ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 9 memo Ext. P-L. The remaining prosecution witnesses i.e. PW-1 Dr. R.D. Chandel, PW-2 Dr. Krishan Bihari, PW-3 Dr. .
V.K. Mutreja and PW-4 Dr. Shashi Thakur have been associated as expert witnesses because PW-4 had conducted the medical examination of the prosecutrix, of whereas, PW-3 Dr. V.K. Mutreja examined the prosecutrix to ascertain her radiological age. PW-1 and PW-2 have rt examined the accused persons to find out their competency to commit sexual intercourse. The remaining prosecution witnesses i.e. Bhagi Ram (PW-8) is the investigating Officer. Inspector Lekh Raj PW-9 has also investigated this case partly. PW-10 Gian Chand, Secretary, Gram Panchayat, Nasogi was examined to prove the date of birth certificate Ext. P-S and abstract of parivar register Ext. P-T.
8. On the other hand, accused No. 5 in his statement recorded under Section 313 Cr.P.C has admitted the prosecution case to the extent that the prosecutrix came to Manali bazaar for purchasing shoe for herself and went to video parlour and watched movie there. It was also admitted that he was sitting in ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 10 her side, but he did nothing and rather it is she who herself asked him to accompany her to Vashisth and .
Solang Nalla. She accompanied him to Solang Nalla voluntarily and it is she who took him to the Nalla. He, however, expressed his ignorance that accused Munna of and Ravi also subjected her to sexual intercourse. He, however, committed sexual intercourse with the rt prosecutrix with her consent. It was also admitted that PW-1 Dr. R.D. Chandel had conducted his medical examination and also that of accused No. 3 on 9.7.1989 vide MLC Ext. P-A. The said doctor had conducted the medical examination of accused No. 5 vide MLC Ext. P-B and that of accused Bittu @ Anil Kumar vide MLC Ext. P-
C. The rest of the incriminating circumstances appearing against him in the prosecution evidence have either been denied being incorrect or for want of knowledge.
In his defence, while answering question No. 32 and 33, it was stated that since the prosecutrix demanded Rs.
100/- from him but he could only offer a sum of Rs. 20/-
which she refused to accept, therefore, it is for this reason, she deposed falsely against him. In reply to ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 11 question No. 34, it was further stated that the prosecutrix had developed intimacy with him since the last one year .
and on 2-3 occasions, she had committed sexual intercourse with him. She used to charge money for having sexual intercourse with her. They had been of paying sometimes Rs. 20/- and sometime even less amount also.
9. rt Accused Bittu @ Anil Kumar in his statement recorded under Section 313 Cr.P.C has admitted that he was examined by PW-1 vide MLC Ext. P-C, however, denied the remaining incriminating circumstances appearing against him in the prosecution case either being incorrect or for want of knowledge. While answering question No. 33 and 34, it was stated that he was suffering from vineral decease hence did not join the prosecutrix when she invited him to have sexual intercourse with her. She demanded money from him for which he refused and it is for this reason, case was lodged against him by her falsely.
10. Accused No. 2 Hari Ram while answering question No. 11 has stated that the prosecutrix came to ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 12 Solang Nalla, where he was present along with Chuni Pradhan and accused No. 1 Raghubir Singh. He was .
told by Chuni Lal, Pradhan to board the jeep. Rest of the incriminating circumstances appearing against the said accused have either been denied being incorrect or for of want of knowledge. While answering question No. 32 and 34, it was stated that he being an employee of rt Chuni Pradhan has unnecessarily been dragged in this case.
11. Accused No. 4 Sunil Kumar while denying all the incriminating circumstances appearing against him in the prosecution evidence being wrong has stated while answering question No. 8 that accused Vijay had not committed rape with the prosecutrix at the time when he along with accused Munna and accused No. 3 Ravi Prakash reached there. While answering question No. 32 and 34, his answer was that the prosecutrix had accompanied him earlier also, however, she did not charge money on such occasion. This time she though invited him to have sexual intercourse with her, however, demanded Rs. 100/- for the same. He offered only Rs.
::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 1350/- which she refused to accept. Since he could not pay Rs. 100/- to the prosecutrix, therefore, she lodged .
this case against him falsely.
12. Accused No. 3 Ravi Prakash has admitted that the prosecutrix was brought by them to Solang of Nalla. She accompanied accused Vijay Kumar voluntarily. According to him, she was not subjected to rt sexual intercourse. He, however, admitted that he along with accused No. 1 Raghubir Singh, Ninnu, accused No. 2 Hari Ram @ Tikam and Chuni Pradhan had subjected her to sexual intercourse. He was medically examined vide MLC Ext. P-A by PW-1 Dr. R.D. Chandel on 9.7.1989.
The said doctor also examined accused Bittu @ Anil Kumar and accused Vijay Kumar vide MLCs Ext. P-B and P-C respectively. The rest of incriminating circumstances appearing against him in the prosecution evidence have either been denied being wrong or for want of knowledge. In his defence, while answering question No. 32 and 33, it was stated that the prosecutrix had demanded money, qua which he was told by accused No. 5 Vijay Kumar. According to him he was invited by ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 14 her to have sexual intercourse at her own. Since he had no money, he was falsely implicated in this case.
.
13. Accused Raghubir Singh while denying the entire prosecution case being incorrect or for want of knowledge had stated that at Solang Nalla, the of prosecutrix was advised by Chuni Pradhan and Hari Ram @ Tikam Ram to go to her house. While answering rt question No. 32 and 33 his answer was that since he has good relations with Chuni Pradhan, therefore, it is for this reason alone was implicated falsely in this case.
14. The accused, however, when given an opportunity to lead evidence in their defence have opted for not producing any evidence.
15. Therefore, learned trial Court on hearing the parties on both sides and on appreciation of the evidence available on record has arrived at a conclusion that the prosecution has failed to prove its case against the accused persons beyond all reasonable doubt and had acquitted all the accused vide judgment dated 30.9.1992.
::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 1516. A Division Bench of this Court vide order dated 28.03.2008 passed in Criminal Appeal No. 103/99, .
filed earlier by the State of Himachal Pradesh against judgment of acquittal dated 30.9.1992 passed by learned trial Court had set aside the same and of remanded the case to the trial Court to alter the charge from Section 376 read with Section 34 of I.P.C. to the rt charge of gang rape under Sub-section (2) (g) of Section 376 of the Indian Penal Code and to try and decide the case afresh as per law.
17. On remand the case when listed on 2.8.2008 in the trial Court, the prosecutrix was recalled to the witness box, however, she stated that her statement recorded earlier as PW-5 may only be read in evidence and that to the amended charge she had nothing more to add. When subjected to cross-examination her answer was that now she did not remember the facts of the case, therefore, leaned Public Prosecutor as per his statement recorded separately had adopted the statement of the prosecution witnesses recorded initially and further stated that he did not want to lead any more ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 16 evidence or to re-examine the witnesses, the prosecution already examined. The prosecution evidence was thus .
ordered to be closed. Learned defence counsel had also adopted the cross-examination of the witnesses already conducted, as per their joint statement of recorded on that day.
18. Learned trial Judge on hearing learned rt Public Prosecutor and learned defence counsel has again arrived at a conclusion that from the evidence available on record, neither it is proved that the prosecutrix was below 16 years of age nor that she was subjected to sexual intercourse forcibly i.e. against her will and without her consent. In view of the evidence available on record, the present, however, was found to be a consensual act of intercourse. The accused have, therefore, been acquitted of the charge framed under Section 376(2) (g) IPC against each of them.
19. Aggrieved by the impugned judgment, the appellant-State has questioned the legality and validity thereof on the grounds inter-alia that the prosecution evidence as has come on record by way of own ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 17 testimony of the prosecutrix and also the admission of the accused persons in their statements recorded under .
Section 313 Cr.P.C is suggestive of that the accused have subjected the prosecutrix, a minor below 16 years of age to sexual intercourse against her will and without of her consent. The evidence qua her age below 16 years produced by the prosecution has erroneously been rt ignored. The medical evidence as has come on record by way of the testimony of PW-4 Dr. Shashi Thakur has also been erroneously brushed aside. As a matter of fact, the testimony of PW-4 has satisfactorily established that the prosecutrix was subjected to sexual intercourse.
Undue weightage was given to that part of her statement in which it was stated that no injury could be noticed by her on the person of the prosecutrix irrespective of her categoric statement in cross-
examination that in case of forcible intercourse the injuries on the body of the prosecutrix are bound to occur.
20. As per the prosecution case, the prosecutrix was subjected to sexual intercourse by nine persons. Out ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 18 of whom Challan was prepared against six accused persons, whereas, two had absconded and name of .
Chuni Pradhan specifically disclosed by the prosecutrix in her statement recorded during the course of trial was initially deleted by the police from the array of accused of being Pradhan of Ilaqua. It has further been submitted that the evidence available on record has been rt appreciated in a slip-shod and perfunctory manner and the findings acquitting the accused persons of the charge have been based on hypothesis, conjecture and surmises. The impugned judgment as such, has been sought to be quashed and set aside.
21. Mr. D.S. Nainta, learned Additional Advocate General has argued that the solitary statement of the prosecutrix in this case is sufficient to bring guilt home to the accused, in view of the plea they themselves raised in their defence. It is also argued that the prosecutrix was minor at the time of occurrence, therefore, the plea that she was the consenting party as sought is hardly of any consequence. It is established that all the accused had ravished an innocent village and minor girl and for ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 19 such ghastly act, they should have been convicted and sentenced in accordance with law.
.
22. On the other hand, according to Mr. R.L. Sood, learned Senior Advocate assisted by Mr. Arjun Lal, Advocate the prosecution has failed to prove its case of against the accused persons beyond all reasonable doubt. According to Mr. Sood, it is not at all proved that rt the prosecutrix was minor but the own evidence produced by the prosecution itself reveals that she was major and had attained the age of discretion. Even her own statement is suggestive of that she was a consenting party to sexual intercourse committed with her by the accused persons. He, therefore, has urged that well considered and reasoned judgment, whereby the accused have been acquitted of the charge need no interference by this Court in the present appeal. The appeal has, therefore, been sought to be dismissed.
23. At the very out set, it is clarified that out of nine accused, charge was framed against six namely, Raghubir Singh, Hari Ram, Ravi Parkash, Sunil Kumar, Vijay Kumar and Anil Kumar @ Bittu. Accused Munna ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 20 and Ninnu had absconded and were declared proclaimed offender. Challan against Chuni Pradhan .
was not filed allegedly for want of sufficient evidence and his name was placed in column No. 2 of the Challan. Later on an application under Section 319 of Cr.P.C filed by the prosecution though he was arrayed as one of the accused persons, however, vide order rt dated 24.12.1991 passed in the trial at the stage of consideration of charge, no case was found to be made out against him even prima-facie and as such, he was discharged. The order of discharge of the said accused was not assailed, however, in the grounds of present appeal and also in that of criminal appeal No. 103/93, previously filed against the judgment dated 30.9.1992 passed by learned trial Court initially in this case the order discharging the said accused has been assailed on the ground that irrespective of statement Ext. P-G and the supplementary statement mark D-A of the prosecutrix not implicate accused Chuni Lal, Pradhan in the commission of the offence, however, she in her statement recorded in the Court has specifically stated ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 21 that said Chuni Lal Pradhan had also exploited her sexually and this fact was revealed by her to the police .
when her statement (supplementary) was recorded. The complaint, therefore, is that the police had deleted the name of said accused merely on account of he being of the Pradhan of ilaqua. This part of the controversy is left open to be considered in this judgment at a later stage.
rt Such detail, however, was necessary for the purpose of completion of the facts because initially six accused were charged and tried with the commission of offence punishable under Section 376 IPC. However, on finding that in the impugned judgment the name of only five accused figured, it transpired from the trial Court record that after remand of the case vide order dated 28.3.2008, passed by a co-ordinate Bench of this Court, learned trial Judge had to issue summons to the accused as they failed to put in appearance on the ate fixed by this Court. It is accused Raghubir Singh, Vijay Kumar, Ravi Parkash, Hari Ram and Sunil Kumar could be served with the summons so issued and as regards accused Anil Kumar @ Bittu, he was reported to have ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 22 expired. It is so recorded by learned trial Court in the order passed on 28.5.2008.
.
24. The present is a case of gang rape.
Therefore, the accused have been charged with the commission of offence punishable under Section 376(2) of
(g) of the Indian Penal Code. What is rape is defined under Section 375 of the Indian Penal Code. The rt necessary ingredients to infer the commission of offence of rape against a woman are: firstly, the accused committed sexual intercourse with a woman secondly, such sexual intercourse was (i) against her will, and (ii) without her consent, thirdly, whether such consent was obtained by putting her or any of her relation or interested person in fear of death or hurt, fourthly consent was taken under deceitful belief that accused was her husband fifthly, the consent was taken when she was incapable of understanding its nature and consequences due to (i) unsoundness of mind, (ii) intoxication, (iii) administration of any stupefying drug or substance by the accused personally or through some ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 23 one else and sixthly, when accused is husband and woman was below 16 years of age (now 18 years).
.
25. The present is a case where according to the prosecution, the prosecutrix a minor below 16 years was subjected to sexual intercourse by the accused persons of and as such falls within the sixth situation hereinabove.
26. In a case of rape of a minor, it is the age rt aspect which assumes considerable significance. The prosecution claims the age of the prosecutrix below 16 years. As per date of birth certificate Ext. P-S issued by PW-10, the Secretary, Gram Panchayat, Nasogi. The date of birth of the prosecutrix is 1.1.1978. The school leaving certificate Ext. P-R find mentioned her date of birth as 2.2.1974. The third document is the extract of parivar register, in which her age find mentioned as four years. Now if coming to the legal position, the entries in the birth and death register have to be believed as primary evidence of course if original record is produced. The particulars of the person who got entered entries qua birth of the persons whose age is to be determined must establish on record. The another ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 24 primary piece of evidence in this regard can be the date of birth entered in the primary school or the school .
where such person was admitted in first/nursery/K.G class as the case may be, however, subject to further evidence i.e. statement of the person at whose instance of such admission was made in the school and declaration qua the date of birth and other particulars mentioned in rt the admission form, in case such person is alive and also the production of the original record maintained in the school by the headmaster or any other employee of the school in the discharge of his official duties. We may draw support in this regard from the judgment of a Single Bench of this Court in Criminal Appeal No. 419 of 2012, titled Ramu V. State of Himachal Pradesh, decided on 21st November, 2014. The relevant extract of this judgment is reproduced here as under:-
19. The primary evidence qua the date of birth of a person is the entry in the Birth and Death Register.
As noticed supra, the date of birth of the prosecutrix has been entered in the Birth and Death Register at the instance of some Govind Ram. Said Govind Ram has not been associated ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 25 during the course of investigation. In case the entries were made at the instance of grand-father .
of the prosecutrix, he should have been examined.
The production of a certificate allegedly from the Birth and Death Register, which is neither properly paged nor contains any certificate and rather pages in between the last entry dated 4th of September, 1996 and the entry qua the date of birth of the prosecutrix are blank, is not sufficient to discharge the onus by the prosecution to prove rt that the prosecutrix is born on 5th August, 1997. A reference can be made to the judgment of the Apex Court in Birad Mal Singhvi v. Anand Purohit 1988 (Supp) SCC 604, which reads as follows:
"To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 26 in a school register is of not much evidentiary value to prove the age of the person in the .
absence of the material on which the age was recorded."
20. Similar is the ratio of the judgment again that of Hon'ble Apex Court Madan Mohan Singh and of others v. Rajni Kant and another, AIR 2010 SC 2933, which reads as follows:
"18.
rt Therefore, a document may be admissible, but as to whether the entry contained therein has any probative value may still be required to be examined in the facts and circumstances of a particular case.
The aforesaid legal proposition stands fortified by the judgments of this Court in Ram Prasad Sharma Vs. State of Bihar AIR 1970 SC 326; Ram Murti Vs. State of Haryana AIR 1970 SC 1029; Dayaram & Ors. Vs. Dawalatshah & Anr. AIR 1971 SC 681; Harpal Singh & Anr. Vs. State of Himachal Pradesh AIR 1981 SC 361; Ravinder Singh Gorkhi Vs. State of U.P. (2006) 5 SCC 584; Babloo Pasi Vs. State of Jharkhand & Anr. (2008) 13 SCC 133; Desh Raj Vs. Bodh Raj AIR 2008 SC 632; and Ram Suresh Singh Vs. Prabhat Singh @Chhotu Singh & Anr. (2009) 6 SCC 681. In these cases, it has been held that even if the entry was ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 27 made in an official record by the concerned official in the discharge of his official duty, it .
may have weight but still may require corroboration by the person on whose information the entry has been made and as to whether the entry so made has been exhibited and proved. The standard of proof of required herein is the same as in other civil and criminal cases.
19. ........................................................ rt
20. So far as the entries made in the official record by an official or person authorized in performance of official duties are concerned, they may be admissible under Section 35 of the Evidence Act but the court has a right to examine their probative value.
The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entries in School Register/ School Leaving Certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases."
21. Significantly, in the statement under Section 313 of the Code of Criminal Procedure of the accused ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 28 a question has been put to him that the age of the prosecutrix was between 15½ - 16½ years. This .
reveals that the prosecution itself is not sure as to what was the exact age of the prosecutrix at that time and rather as per its own version, her age was 15½ - 16½ years. No question has been put to the accused that the prosecutrix being born on 5th of August, 1997 was minor, in his statement under Section 313 of the Code of Criminal Procedure. Therefore, such incriminating circumstance rt appeared in the prosecution evidence cannot be used against him. It is held so by the Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, as under:
"142. Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz., circumstances Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement under Section 313 of the Criminal Procedure Code they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 29 Singh v. State of Madhya Bharat AIR 1953 SC 468 this Court held that any circumstance in .
respect of which an accused was not examined under Section 342 of the Criminal Procedure Code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the of view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 or Section 313 rt of the Criminal Procedure Code, the same cannot be used against him. In Shamu Balu Chaugule v. State of Maharashtra, (1976) 1 SCC 438 this Court held thus:
"The fact that the appellant was said to be absconding, not having been put to him under Section 342, Criminal Procedure Code, could not be used against him.
144. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code have to be completely excluded from consideration."::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 30
22. This Court has held in State of H.P. v. Phurva and .
others, Latest HLJ 2011 (HP) 490, as under:
"19. In present like cases, age of the Prosecutrix is of utmost importance.
Prosecutrix though at the time of her examination has stated that she was 17 years of of age, yet there is no document with respect to the date of birth obtained by the police during investigation of the case, from rt the concerned Panchayat or from any School or Institution where she was admitted and studied. However, the prosecution has put its reliance only on the ossification report Ext. PW10/C showing her between 16-17 years on the basis of the epiphysis of bones.
To prove this report PW10 Dr. G. D. Gaur was examined. His opinion is based upon the study of Dr. M.L. Aggarwal and I.C. Pathak in Punjab Region which has no hilly terrace. He also admitted that the development of bone depends on hereditary, dietary, harmonious factors, climatic condition and it varies from place to place. He also admitted that assessment of the age on the basis of fusion of bones is not a perfect science. It is also equally fallacious to apply the study of Dr. ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 31 M.L. Aggarwal and I.C. Pathak to hilly terrace with respect to their studies which they have .
conducted in Punjab region. Admittedly, both the parties, in this case belong to tribal area of Lahaul where development of the bones differs considerably from the subject which is in the plain and warmer areas. The of pubic signs appear early in warmer and lower parts of India whereas physical development, fusion of bones and also rt puberty is always delayed in the hilly areas.
Thus giving the benefit of +2 years on both sides, as per the Modi's Jurisprudence, the age of the prosecutrix comes to 18-19 years at the relevant time and in any case above the age of discretion."
27. If coming to the case in hand, neither certificate Ext. P-S nor Ext. P-R can be termed as primary evidence to infer that the prosecutrix was born on 1.1.1978 or 2.2.1974 for the reason that PW-10 Gian Chand, Secretary Gram Panchayat, Nasogi has not produced the original Birth and Death register being not available as the same according to him was deposited in the office of Chief Medical Officer, Kullu. Since no-one ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 32 has been associated nor examined during the course of trial from the school nor record such as admission and .
withdrawal register produced, therefore, school leaving certificate Ext. P-R cannot be treated as legal and valid evidence qua the date of birth of the prosecutrix as of 2.2.1974.
28. Now if coming to the extract of parivar rt register Ext. P-T, the same is again of no help to the prosecution for the reason that firstly the date of birth of the prosecutrix does not find mentioned therein and rather she has been shown four years of age in this document and secondly, the entries in the parivar register cannot be treated as legal and acceptable evidence qua date of birth or age of a person. Support in this regard can also be drawn from the judgment of a Co-ordinate Bench of this Court in Ajnana Devi @ Anju V. State of Himachal Pradesh along with its connected matters, decided on 24th June, 2016. The relevant extract of the judgment reads as follows:-
19. In similar circumstances this Court has already held such certificate not to have established the correct ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 33 date of birth. [State of H.P. v. Narender Kumar alias Hira and others, 2010 Cri.L.J. 3545].
.
20. The Apex Court in Birad Mal Singhvi v. Anand Purohit, (1988) Supp. 1 SCC 604 has held that "To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register of or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any rt other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded." [Emphasis supplied]
21. The principle stands reiterated in Ravinder Singh Gorkhi vs. State of U.P, (2006) 5 SCC 584 and Ram Suresh Singh vs. Prabhat Singh, (2009) 6 SCC 681.
22. As such, not much credence can be lent to the certificates more so when it has not come on record as to who got these entries recorded at the time of admission of the child in the school. Consequently certificates (Ext.PW-8/B and Ext.PW-12/A) cannot be accepted to be legal evidence proving the factum of date of birth of the prosecutrix.
::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 3423. Thus, it can safely be held that the findings returned by the Court below qua the age of the prosecutrix are .
totally borne out from the record.
29. If coming to the ocular version qua this aspect of the matter, the prosecutrix on 8.4.1992 while in the witness box had disclosed her age as 17 years. Since of the occurrence is dated 8.7.1989, therefore, if the age so given by her on the date of her examination is believed rt to be true, she was +14 years when assaulted by the accused sexually. Though, she has not been cross-
examined qua her age aspect as she disclosed in her examination-in-chief. There being no documentary evidence showing her age below 16 years of age and the certificates Ext. P-S and P-R rather contain two different date of births i.e. 1.1.1978 and 2.2.1974 respectively. Therefore, it cannot be believed that she was 17 years of age on the date of her examination i.e. 8.4.1992 or above fourteen years on the date of occurrence i.e. 8.7.1989.
30. Now if coming to the testimony of her mother PW-6, the prosecutrix was her second child as the eldest ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 35 one has died. According to her she had married at the age of 16 years, however, voluntarily stated that at the .
age of 14 years and the child who had expired was born to her when she was 18 years of age. However, again said that at the age of16 years. She expressed her of ignorance that prosecutrix was born to her after two years of her marriage, however, it is denied that the rt prosecutrix is of 20 years of age. Her statement is vague and absurd so far as the age of the prosecutrix is concerned. Therefore, the same cannot also be believed to be true to arrive at a conclusion that on the day of occurrence the prosecutrix was below 16 years of age.
31. On the other hand, the radiological age of the prosecutrix has been assessed between 16 to 17 years as has come in the statement of PW-3 Dr. V.K. Mutreja. This witness has also admitted that there could be variation of three years on either side while determining the radiological age. Therefore, the medical evidence which has been considered in its right ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 36 perspective by learned trial Court, it cannot be said that the prosecutrix was below 16 years of age.
.
32. In view of the discussion qua age aspect of the prosecutrix, the prosecution has miserably failed to prove that she was 16 years of age on the day when of assaulted sexually.
33. Therefore, assuming her age above 16 rt years, the next question which has engaged our attention is whether the present is a case of commission of sexual intercourse with the prosecutrix by the accused persons with her consent or forcibly, i.e. without her consent and against her will. In the given facts and circumstances and also the evidence as has come on record by way of sole testimony of the prosecutrix, the present, to us, appears to be a case where the prosecutrix at the most can be said to have accompanied accused No. 5 Vijay Kumar voluntarily because as per her own testimony, the said accused was sitting by her side in the video parlour and he made her to agree to accompany him to Vashisth bath, though she was taken to Solang Nalla side. She seems to ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 37 have acquaintance with the said accused as it has come in her statement that he had shown his interest to .
solemnize marriage with her. As per arrangement between them, when came out of the parlour, she walked ahead of accused No. 5 as he had told her to of wait for him on the bridge in the town itself. Accordingly, she reached on the bridge and accused No. 5 came rt behind in a taxi which was being occupied by accused Munna and accused No. 3 Ravi Prakash. She was made to sit in the jeep and taken to Solang Nalla side.
Meaning thereby that she only agreed to accompany accused Munna and Ravi Prakash. As per further version, accused stopped the vehicle on road side and she was taken by accused No. 5 Vijay to Nalla in the valley side, whereas, his co-accused Munna and Ravi Prakash got themselves concealed on the road nearby the jeep. Accused No. 5 behind a big boulder committed sexual intercourse with her without her consent as according to her she resisted (I said no) commission of rape with her by the said accused.
Though she had got up, however, in the meanwhile ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 38 accused Munna and accused No. 3 Ravi Prakash as well as accused No. 4 Sunil @ Bittu (since dead) had also .
came there in a Gypsy with accused Ninnu. Accused No. 4 caught hold her arm and he as well as his co-
accused Anil @ Bittu, Ninnu and Munna (proclaimed of offender) have also assaulted her sexually. She cried before they could commit sexual intercourse with her, rt howver, accused No. 4 threatened her to keep shut lest they would do away with her life. Not only this but as per her further testimony, around 6.00 p.m. accused No. 1 Raghubir, accused Chuni Pradhan, accused Hira Lal (name wrongly stated as he is accused No. 2 Hari Ramj) met her at Solang Nalla. On seeing them that they are local persons, she went to them. Accused Chuni Pradhan and Raghubir (Accused No. 1) told her to go to her house. She could not reveal the incident of rape having taken place with her to the said accused as she was immediately lifted and put in the Gypsy which was boarded by accused No. 1 Raghubir Singh, Munna, Chuni Pradhan and accused No. 2 Hari Ram @ Tikam.
She was brought by them to Kenchi Mor. By that time, it ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 39 was almost dark. At Kenchi Mor, accused No. 1 Raghubir Singh, Accused Ninnu, Accused No. 3 Ravi Prakash, .
accused No. 2 Hari Ram and accused Chuni Pradhan had subjected her to sexual intercourse. She insisted and requested the said accused persons that she of wanted to go home and that drop her at her place lest her parents would beat her, but of no avail. She was left rt in the road and they all went to her respective places.
She shouted on them that she also wants to go with them but they did not stop the Gypsy and as such she was left behind on the road. She remained on the road for longtime and when a truck came from Lahaul side, she took lift in that truck and came to Manali bazaar from where she went to her house.
34. Above statement of the prosecutrix that she was subjected to sexual intercourse by each and very accused persons need no corroboration because as noticed hereinabove, accused No. 5 Vijay Kumar, deceased accused Anil Kumar @ Bittu, accused No. 1 Raghubir Singh, accused No. 2 Hari Ram, accused No. 3 Ravi Prakash and accused No. 4 Sunil Kumar who have ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 40 been charged with the commission of offence punishable under Section 376(2)(g) IPC have admitted .
that they subjected the prosecutrix to sexual intercourse.
The explanation as set-forth by them, however, is that it is she who invited them to have sexual intercourse with her.
of They were subjecting her to sexual intercourse with her consent earlier also. However, on this occasion, she rt demanded money i.e. Rs. 100/- from each of them and as accused No. 5 offered Rs. 20/-, whereas, accused No. 4 Rs. 50/- and accused No. 3 Ravi Prakash and accused Anil @ Bittu had no money to pay to her, therefore, it is for this reason, she implicated them in this case falsely.
35. Mr. R.L. Sood, learned arguing counsel while drawing the attention of this Court to the statement of prosecutrix in her cross-examination that she walked ahead of accused No. 5 and waited for him at the bridge where he came with his co-accused Munna (proclaimed offender) and accused No. 3 Ravi Prakash in a vehicle, she boarded the vehicle, her admission that it was a crowded area where shops and residences were in existence, went to Nalla with accused Vijay ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 41 Kumar by covering a distance of two furlang where she was sexually assaulted by the said accused, accused .
Munna and accused No. 3 came there in another Gypsy, accused No. 4 Sunil, accused Anil @ Bittu (since dead) and accused Ninnu (proclaimed offender) also of came there in the said Gypsy and subjected her to sexual intercourse, establish that she was a consenting rt party to sexual intercourse by the accused with her.
According to Mr. Sood, she did not raise any hue and cry and rather walked ahead of accused No. 5 while going to bridge through Manali market. She boarded the Gypsy voluntarily at her own. The Gypsy crossed the shops in existence on road side. She did not cry for help.
Her further testimony that she saw accused Raghubir Singh, accused Chuni Pradhan and accused Hari Ram sitting in Solang Nalla and went to them who advised her to go to house, her conduct in not narrating the incident of sexual assault with her to them and her admission that she took tea and biscuits with them at Solang Nalla also demonstrates that she had no grudge against the accused persons, who according to him had subjected ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 42 her to sexual intercourse with her consent. Had it not been so, she would have complained to accused No. 1 .
Raghubir Singh, accused Chuni Pradhan and accused No. 2 Hari Ram against their co-accused who had already assaulted her sexually when she met them. Also of that instead of going to home as advised by the said accused, she took tea and biscuits with them. Not only rt this but she according to her statement accompanied the said accused persons in the Gypsy to Kenchi Mor.
Therefore, if she was subjected to sexual intercourse by the said accused also, such an act with her was also voluntary and consensual.
36. We are not in agreement with the argument so addressed on behalf of the accused person for the reason that all the accused had ganged up and in a planned manner. Accused No. 5 managed her to accompany him from the video parlour. As already pointed out, the present at the most can be said to be a case of voluntarily accompanying the said accused by the prosecutrix. She was not a consenting party to accompany the other accused. She was not a ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 43 consenting party even with accused No. 5. The said accused has rather subjected her to sexual intercourse .
forcibly against her will and without her consent because she has categorically stated that she resisted the commission of such an act with her by the said accused of 'by saying no' but he did not stop. Even if it is believed that she was a consenting party, the said consent was rt only qua commission of sexual intercourse with her by accused No. 5 and not by the said accused persons for the reason that firstly it is accused No. 5 who had taken her to the Nalla behind the big boulder and subjected her to sexual intercourse there. His co-accused i.e. accused No. 4 Sunil, accused Anil @ Bittu (since dead), accused Ninu and Munna (proclaimed offender) had also come down at such a stage when she had already got up after being assaulted sexually by accused No. 5.
Though she cried before the aforesaid accused persons who have ravished her sexually but of no avail as accused No. 4 threatened her to keep shut lest, they would do away with her life. No cross-examination of the prosecutrix qua this aspect of the matter has been ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 44 conducted. While in the witness box she has categorically stated that accused No. 1 Raghubir Singh, .
accused No. 2 Hari Ram and accused Chuni Lal Pradhan who were present at Solang Nalla had made her to board Gypsy with them and they also boarded of the same with accused Munna and Ninnu (proclaimed offender) and accused No. 1 Raghubir Singh. They all rt subjected her to sexual intercourse at Kenchi Mor. She was subjected to sexual intercourse by all of them at that place. By that time it became dark. A tender age girl in the company of five able bodied persons could have not got herself freed from them. Therefore, the argument so addressed on their behalf that she did not raise any hue and cry is hardly of any help to the accused for the reason that raising hue and cry would have been of no help to her nor she could have got herself freed from their clutches by anyone as it was a case of gang rape. How such a ghastly act with a girl of tender age like the prosecutrix by the accused many in number could have been avoided by her or can be treated as a consensual act? The findings recorded by ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 45 learned trial Judge that after such a ghastly act having been committed with the prosecutrix, she would have so .
scared that on seeing local people (accused No. 1 Raghubir Singh, accused No. 2 Hari Ram) narrated the incident to them instead of having tea and biscuits with of them. She would have tried to rush to her house as advised by accused No. 1, accused Chuni Pradhan and rt not agreed to travel with them in their taxi, in which not only the said two accused but accused Munna, Ninnu and accused Chuni Pradhan were also sitting for the reason that the so called local persons i.e. accused No. 1 and accused No. 2 whom the prosecutrix had believed to be of some help to her were as a matter of fact not her sympathizer because had it been so, they would have given lift to her in their vehicle and dropped safe at her in Manali town or taken her to police station to lodge FIR against the incident. No doubt, as per her version said accused No. 1 and accused Chuni Pradhan had advised her to go to home but when it was 6.00 p.m. by that time and in view of topography of Manali town and Solang Nalla where sun sets at early hours of the day and ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 46 the possibility of it being dark at that time, cannot be ruled out. Since they offered tea and biscuits to her, .
therefore, obviously she may have accepted the same believing them her sympathizer. It is they who made her to board the taxi and it being darkness she boarded the of taxi but their illegal designs to subject her to sexual intercourse on the way most probably were not in her rt knowledge. Therefore, accused No. 1 Raghubir Singh, accused No. 2 Hari Ram and prima-facie accused Chuni Pradhan (discharged from the case) as well as co-
accused Munna and Ninnu (proclaimed offender) by taking undue advantage of their position to dominate the will of the prosecutrix who had been traveling with them in a state of helplessness was also subjected to sexual intercourse by each of them, which again cannot be said to be an act of consensual sexual intercourse.
The observations made by learned trial Judge that she would have tried to rush to her house as advised by accused No. 1 and accused Chuni Pradhan are again far fetched for the reason that in view of the time being 6.00 p.m. and the night already having set in, how a ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 47 lonely tender age girl could have traveled to her native place at Manali. This aspect has not been taken into .
consideration by learned trial Judge. The above said accused who being locals and considered by her to be of some help to her have taken undue advantage of her of loneliness and they also subjected her to sexual intercourse. Therefore, instead of criticizing the rt prosecutrix, learned trial Judge should have taken into consideration such unbecoming behaviour of the said accused. The argument addressed by Mr. R.L. Sood, learned arguing counsel qua this aspect of the matter and law laid down by the apex Court in Raja and others V. State of Karnataka, 2016(10) SCC 506 are of no help to their case. Not only this but the law laid down by the apex Court in Raja's case (supra) is also distinguishable on facts.
37. The improvements that she raised hue and cry at Solang Nalla when accused tried to commit rape with her and accused Sunil Kumar had threatened to kill her and that Bittu did not commit rape on her at Solang Nalla but at Kenchi Mor, even if are there, is hardly of ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 48 any consequence because the fault, if any, lies on the part of the investigating agency and the possibility of the .
I.O. having not recorded her statement as per her version, which in the case in hand is just possible as the accused being influential persons, they seem to have of influenced the investigation of the case also. At the most, the investigation can be said to be faulty and as rt such the version of the prosecutrix in the witness box cannot be said to be false, more particularly, when the accused have admittedly assaulted her sexually. Her testimony that it took 5-6 minutes to accused Vijay to convince her to accompany him to Vashisth bath could have not been considered to arrive at a conclusion that she was a consenting party to the sexual intercourse committed by the accused person with her for the reason that the said accused had asked to accompany her to Vashisth bath and not Solang Nalla and she consented only to accompany him and none else. She may have agreed to accompany accused No. 5 as he was known to her because as per her version, he offered himself to solemnize marriage with her. How ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 49 accompanying voluntarily with a known person could be taken to believe that she was a consenting party to .
have sexual intercourse with such person; learned trial Judge has failed to explain. When she never consented to accompany other accused persons and even for the of commission of sexual intercourse with her by accused Vijay, therefore, it is established that she objected to and rt resisted such ghastly act committed upon her by the accused persons. In view of evidence on record, her so called consent was obtained by them under fear of her own life, causing hurt to her.
38. As noticed hereinabove, the accused have not denied that they have subjected the prosecutrix to sexual intercourse. However, their defence is that since they failed to pay money to her, she demanded from each of them, therefore, it is for this reason, they have been implicated in this case falsely. When it is proved and held by us that she was not a consenting party and rather subjected to sexual intercourse without her consent and against her will, therefore, the plea so raised is hardly of any help to them. It is well settled that ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 50 even a woman of easy virtue and for that matter a prostitute cannot also be subjected to sexual intercourse .
against her will and without her consent. Learned trial Judge has failed to appreciate this aspect of the matter.
Instead of appreciating that nine males have sexually of assaulted a tender aged girl and holding them guilty of the commission of offence, learned trial Judge has went rt on to criticize the prosecutrix. Even if she was of easy virtue could have never consented to have sexual intercourse with this much number of persons (accused herein) i.e., nine. Such an approach of learned trial Court in this matter cannot be termed as legally and factually sustainable. The present is a case where sole testimony of the prosecutrix is sufficient to bring the guilt home to the accused persons. The Apex Court in State of Punjab V. Gurmeet Singh and others, AIR 1996 SC 1393 has held that own statement of the prosecutrix if inspires confidence is sufficient to bring guilt home to the accused persons.
39. As noticed supra, the prosecutrix in unequivocal terms has supported her version in her ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 51 statement Ext. P-G recorded under Section 154 Cr.P.C.
She has also stated whatever she has deposed in her .
supplementary statement mark D-A, while in the witness box. In her cross-examination, she has categorically stated that she disclosed the name of Chuni Pradhan on of each and every occasion when her statements were recorded by the police. Even accused Ravi Prakash rt while answering question No. 13 in his statement under Section 313 Cr.P.C. has admitted that besides Raghubir, Ninnu, Hari Ram @ Tikam Ram and Chuni Pradhan had also subjected the prosecutrix to sexual intercourse at Kenchi Mor. The so called improvements to her earlier version in Ext. P-G or mark D-A to our mind are not owing to her acts and conduct but the possibility of the I.O.
having not recorded her statement as per her version cannot be ruled-out. She has only been cross-examined to show that she did not raise any hue and cry irrespective of taken in the vehicle by the accused through Vashisth bazaar where shops and houses are in existence, Palchan through the barricades put by the army and irrespective of tourist flow to Solang Nalla ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 52 area. Though, it is correct, however, initially they were only three accused i.e. accused No. 5 Vijay Kumar, .
accused No. 3, Ravi Prakash and accused Munna, who was driving the taxi on their way to Solang Nalla side. As observed hereinabove, she had voluntarily of accompanied accused Vijay, however, it cannot be inferred that she did so to have sexual intercourse with rt the said accused, what to speak of the remaining accused namely Ravi Prakash and accused Munna the (proclaimed offender). As per her statement under Section 154 Cr.P.C and also her testimony while in the witness box the said accused got themselves hided on the road nearby the Gypsy and they appeared at the place where she was subjected to sexual intercourse by the said accused when she had already got up after having exploited sexually by accused Vijay against her will and without her consent. The present as such is a case where accused had ganged up and it was part of the conspiracy they hatched that accused No. 5 Vijay who had intimacy with her was assigned the task to bring her so that she could be subjected to sexual intercourse ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 53 by them turn by turn and in a manner as discussed hereinabove as well as having come on record.
.
40. Therefore, not only accused No. 5 Vijay but his co-accused No. 1 to 4 namely, Raghubir Singh, Hari Ram, Ravi Prakash and Sunil Kumar (respondents herein) of all have assaulted the prosecutrix sexually without her consent and against her will. The present being a case rt of gang rape, they should have been convicted and sentenced by learned trial Court. The findings of acquittal recorded by the Court below for all the reasons discussed hereinabove are neither legally nor factually sustainable. In view of the evidence discussed hereinabove, accused persons Munna and Ninnu who are absconding have also prima-facie assaulted the prosecutrix sexually. Their guilt, however, is yet to establish as and when they will surrender in the Court or produced in custody by police after holding trial against them. As discussed hereinabove, charge should have also been framed against accused Chuni Lal as prima-
facie case is made out against him also. The order of his discharge as such is not legally sustainable.
::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 5441. In view of what has been said hereinabove, the present is not a case where it can be said that the .
prosecution has failed to prove its case against the accused beyond all reasonable doubt. The reappraisal of the evidence by us rather leads to the only conclusion of that all the accused persons have assaulted the prosecutrix sexually against her will and without her consent.
rt The charge under Section 376(2)(g) of the Indian Penal Code framed against them is, therefore, fully established on record. Being so, the only inescapable conclusion would be that the accused have committed the offence punishable under Section 376(2)(g) of the Indian Penal Code. They all, therefore, are convicted accordingly. The findings of their acquittal as recorded by learned trial Judge are quashed and set aside. They are directed to surrender to their bail bonds and be produced in the Court on 31.03.2017 for being heard on the quantum of sentence.
42. Before parting with this judgment, we shall be failing in our duty if not issue a direction to the appellant-
State to file a report qua the steps taken to ascertain the ::: Downloaded on - 15/04/2017 21:57:49 :::HCHP 55 whereabouts of the proclaimed offenders Munna and Ninnu and also qua attachment of their moveable and .
immovable property, if any, well before the next date.
We also leave it open to consider and pass appropriate orders qua the prosecution of accused Chuni Lal in this of case on the next date after affording an opportunity of being heard to him. Notice, therefore, be issued to said rt Chuni Lal also for the date fixed on his address to be filed by the appellant-State within a week from today.
Judgment to continue.
19.
(Dharam Chand Chaudhary)
Judge
(Vivek Singh Thakur)
March 2, 2017 Judge
(naveen)
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