Himachal Pradesh High Court
Babu Ram Son Of Mushu Ram vs State Of Himachal Pradesh on 22 May, 2015
Author: P.S.Rana
Bench: P.S.Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA, AT SHIMLA Cr.Appeal No. 4230 of 2013 Judgment reserved on: 1st May, 2015 .
Date of Judgment: May 22, 2015 __________________________________________________________________
1. Babu Ram son of Mushu Ram
2. Hem Lata d/o Mushu Ram .....Appellants.
Vs. State of Himachal Pradesh. ....Respondent.
Coram:
Hon'ble Mr.Justice P.S.Rana, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. S.D. Gill, Advocate & Ms. Prem Lata Negi ,Advocate.
For the Respondent: Mr. M.L. Chauhan, Additional Advocate General.
P.S.Rana Judge Judgment:- Present appeal is filed against the judgment and sentence passed by learned Sessions Judge Mandi in Sessions Trial No 27 of 2007 titled State vs. Babu Ram and others decided on dated 24.4.2012.
Brief facts of the case as alleged by the prosecution:-
2. It is alleged by the prosecution that on dated 9.7.2007 at Dehar accused persons kidnapped minor prosecutrix in vehicle No. HP-03(T)-4217 with intention to force her to marry 1 Whether reporters of the Local papers are allowed to see the judgment? yes ::: Downloaded on - 15/04/2017 18:14:19 :::HCHP 2 with co-accused Babu Ram. It is alleged by prosecution that in pursuance of criminal conspiracy accused persons kidnapped minor prosecutrix aged 15½ years out of lawful guardianship of .
father of prosecutrix without his consent. It is further alleged by prosecution that co-accused Hem Lata called father of minor prosecutrix on dated 9.7.2007 and told the father of minor prosecutrix to send minor prosecutrix to tailoring centre at Dehar. It is alleged by prosecution that co-accused Hem Lata also personally talked to minor prosecutrix and asked her to come to Dehar tailoring centre. It is alleged by prosecution that thereafter minor prosecutrix went to Dehar and co-accused Hem Lata met the minor prosecutrix at Sheetla temple and took the minor prosecutrix towards bridge. It is also alleged by prosecution that at bridge a white coloured car came and minor prosecutrix was pushed inside the car. It is alleged by prosecution that co-accused Hem Lata gagged the mouth of prosecutrix and threatened the minor prosecutrix to kill her in case she would raise hue and cry. It is alleged by prosecution that thereafter minor prosecutrix was took to Shimla and thereafter co-accused Hem Lata pursuaded the minor prosecutrix to marry with co-accused Babu Ram. It is alleged by prosecution that thereafter minor prosecutrix was brought to Court and her age was wrongly disclosed and documents relating to marriage were prepared with co-accused Babu Ram. It is alleged by ::: Downloaded on - 15/04/2017 18:14:19 :::HCHP 3 prosecution that thereafter co-accused Babu Ram and Hem Lata took the minor prosecutrix to their village Barara Tehsil Sunni and prosecutrix was kept in the house w.e.f. 10.7.2007 till .
15.7.2007. It is alleged by prosecution that thereafter in village Barara Tehsil Sunni minor prosecutrix was raped by co-accused Babu Ram. It is alleged by prosecution that when minor prosecutrix did not return to her residential house Hari Dass filed a criminal complaint in P.P. Salapar. It is alleged by prosecution that FIR Ext.PW19/A was recorded and thereafter investigation was started and site plan Ext.PW18/A was prepared and photographs Ext.PW7/A-1 to Ext.PW7/A-4 along with negatives Ext.PW7/A-5 to Ext.PW7/A-8 prepared. It is further alleged by prosecution that thereafter certified copy of family register Ext.PW4/A and copy of birth and deaths register Ext.PW4/B were obtained by Investigating Agency. It is alleged by prosecution that thereafter minor prosecutrix was brought to Salapar on dated 16.7.2007. It is also alleged by prosecution that medical examination of prosecutrix was conducted and as per opinion of medical officer the minor prosecutrix was exposed to sexual intercourse. It is alleged by prosecution that MLC Ext.PW12/A was obtained and thereafter minor prosecutrix was handed over to her parents vide memo Ext.PW1/C. It is alleged by prosecution that application was filed for medical examination of co-accused Babu Ram and thereafter medical examination of co-accused ::: Downloaded on - 15/04/2017 18:14:19 :::HCHP 4 Babu Ram was conducted and as per medical opinion it was found that co-accused Babu Ram was capable of performing sexual intercourse. It is alleged by prosecution that thereafter .
prosecutrix was referred to zonal hospital Mandi for second opinion where Dr. Namita Verma had given opinion that possibility of sexual intercourse could not be ruled out. It is alleged by prosecution that thereafter vehicle having registration No. HP-03(T)-4217 was seized along with documents vide seizure memo Ext.PW6/A. It is alleged by prosecution that spot was identified by minor prosecutrix and map Ext.PW18/F was prepared. It is alleged by prosecution that site plan of village Brara where minor prosecutrix was confined in the home Ext.PW18/G was prepared and further alleged that case property was deposited in malkhana with PW11 Raj Kumar on dated 17.7.2007. It is alleged by prosecution that articles were sent to FSL Junga through C. Sant Ram PW8 vide RC No. 8/2007 and further alleged that middle class certificate of prosecutrix Ext.PW16/A was obtained. It is also alleged by prosecution that as per chemical analyst report human semen was found on underwear of co-accused Babu Ram and shirt of minor prosecutrix. It is alleged that human blood was also found upon salwar of prosecutrix.
3. Learned trial Court on dated 2.1.2008 framed charge against co-accused Babu Ram under Section 376 IPC and learned ::: Downloaded on - 15/04/2017 18:14:19 :::HCHP 5 trial Court framed charge against co-accused Devender Singh, Hem Lata and Bheem Singh under Sections 120-B, 363 and 366 IPC. All accused persons did not plead guilty and claimed trial.
.
4. Prosecution examined twenty one oral witnesses.
Prosecution also produced following piece of documentary evidence in support of its case:-
Sr.No. Description.
Ext.PW1/A Copy of daily diary.
Ext.PW1/B Memo regarding identification
Ext.PW1/C Memo
Ext.PW3/A Memo
Ext.PW3/B Memo
Ext.P1 Shirt
Ext.P2 Salwar
Ext.DA Affidavit
Ext.PW4/A Copy of birth register issued by
Registrar (Births and Deaths)
Ext.PW4/B Copy of birth register issued by
Registrar (Births and Deaths).
Ext.PW5/A Memo regarding affidavit of Maya
& Babu Ram
Ext.PW6/A Memo
Ext.PW7/A-1 Photographs
Ext.PW7/_4
Ext.PW7/A-5 Negatives
Ext.PW7/A-8
Ext.PW10/A Opinion
Ext.PW11/A Copy of Malkhana register
Ext.PW11/B Copy of RC
Ext.PW12/A MLC of prosecutrix
::: Downloaded on - 15/04/2017 18:14:19 :::HCHP
6
Ext.PW14/A Report of Chemical Examiner
Ext.PW16/A Middle standard certificate
Ext.PW17/A MLC
Ext.PW18/A Spot map
.
Ext.PW18/B Copy of Family register
Ext.PW18/C Affidavit
Ext.PW18/D Copies of application
&
Ext.PW18/E
Ext.PW18/F Spot map
Ext.PW18/G Spot map
Ext.PW18/H Statement of Kesar Singh
Ext.PW18/J Statements of witnesses
&Ext.PW18/K
Ext.PW19/A FIR
5. Learned trial Court convicted co-accused persons namely Hem Lata, Devinder and Bhim Singh under Sections 363, 366 read with Section 120-B IPC and co-accused namely Babu Ram was convicted by learned trial Court under Section 376 IPC.
Learned trial Court convicted co-accused Hem Lata, Devinder and Bhim Singh to undergo rigorous imprisonment for a period of three years and fine to the tune of ` 5,000/- (Rupees five thousand only) and in default of payment of fine to undergo simple imprisonment for six months for offence under Sections 363 read with Section 120-B IPC. Learned trial Court further convicted co-accused Hem Lata, Devinder and Bhim Singh to undergo rigorous imprisonment for a period of five years and to pay fine of ` 5000/- (Rupees five thousand only) for commission of offence punishable under Section 366 IPC read with Section 120-B IPC and in default of payment of fine to undergo simple ::: Downloaded on - 15/04/2017 18:14:19 :::HCHP 7 imprisonment for six months. Learned trial Court further directed that both substantive sentences of imprisonment shall run concurrently. Learned trial Court convicted appellant Babu Ram .
to undergo rigorous imprisonment for a period of seven years and fine to the tune of ` 20,000/- (Rupees twenty thousand only) for criminal offence punishable under Section 376 IPC and further directed that in default of payment of fine the convicted shall further undergo simple imprisonment for a period of one year.
Learned trial Court further directed that amount of fine so recovered would be disbursed to prosecutrix as compensation.
6. Feeling aggrieved against the judgment and sentence passed by learned trial Court appellants namely Babu Ram and Hem Lata filed present appeal. Court heard learned Advocate appearing on behalf of the appellants and learned Additional Advocate General appearing on behalf of the respondent-State and also perused the entire record carefully.
7. Question that arises for determination in present appeal is whether learned trial Court did not properly appreciate oral as well as documentary evidence placed on record and whether learned trial Court had committed miscarriage of justice as mentioned in memorandum of grounds of appeal.
8. ORAL EVIDENCE ADDUCED BY PROSECUTION:
8.1. PW1 Hari Dass has stated that he is father of three children including the prosecutrix. He has stated that age of ::: Downloaded on - 15/04/2017 18:14:19 :::HCHP 8 prosecutrix is 15½ years and further stated that date of birth of prosecutrix was 15.12.1991. He has stated that prosecutrix was undergoing the training of stitching and tailoring at Tailoring .
Centre Dehar. He has stated that Hem Lata co-accused is resident of Shimla and further stated that on dated 9.7.2007 Hem Lata rang him at 11.45 AM and told to send the minor prosecutrix to her tailoring centre Dehar. He has stated that co-accused Hem Lata also talked with minor prosecutrix. He has stated that thereafter minor prosecutrix went to Dehar and in the evening of dated 9.7.2007 he rang up co-accused Hem Lata on her mobile phone and inquired about whereabouts of minor prosecutrix but co-accused Hem Lata replied that she did not know about minor prosecutrix. He has stated that next day he went to Salapar and reported the matter in police station. He has stated that copy of daily diary report is Ext.PW1/A. He has further stated that thereafter after 3-4 days police officials came to his village and his statement was recorded. He has stated that about 15 days prior to incident co-accused Hem Lata came to his house with proposal to settle the marriage of prosecutrix with her brother co-accused Babu Ram but he declined the proposal because prosecutrix was minor. He has stated that he also went to residential room of co-accused Hem Lata at Dehar and came to know that co-accused Hem Lata had vacated the rented room about one week ago. He has stated that on dated 16.7.2007 co-
::: Downloaded on - 15/04/2017 18:14:19 :::HCHP 9accused Hem Lata brought the prosecutrix to police station Salapar and custody of minor prosecutrix was handed over to him. He has stated that accused persons have kidnapped the .
minor prosecutrix without his consent. He has denied suggestion that police officials did not come to his house. He has denied suggestion that co-accused Hem Lata did not kidnap the minor prosecutrix. He has denied suggestion that co-accused Hem Lata did not ring him and also denied suggestion that age of prosecutrix was about 18 years.
8.2 PW2 Raksha Devi has stated that she was undergoing the stitching and tailoring training at tailoring centre Dehar. She has stated that co-accused Hem Lata told that she would go to Shimla for one week and training centre would remain closed for one week. She has stated that there were only two students undergoing the training at training centre Dehar. She has stated that training centre Dehar remained closed for one week.
8.3 PW3 prosecutrix has stated that she has qualified her matriculation examination in the year 2007. She has stated that after qualifying her matriculation examination she joined tailoring and stitching centre of co-accused Hem Lata at Dehar. She has stated that on dated 1.7.2007 co-accused Hem Lata went to her home and told that she would inform her on telephone as and when she would come from her home. She has stated that on dated 9.7.2007 co-accused Hem Lata rang her father through her ::: Downloaded on - 15/04/2017 18:14:19 :::HCHP 10 mobile phone and told her father to send her to tailoring centre at Dehar and thereafter co-accused Hem Lata also talked to her on mobile cell and told her to come to her tailoring centre at .
Dehar. She has stated that thereafter she went to tailoring centre at Dehar and co-accused Hem Lata met her at Dehar on Sheetla temple and took her towards the bridge where a white coloured car came. She has stated that thereafter co-accused Hem Lata forcibly pushed her into the car and co-accused Hem Lata gagged her mouth with scarf and also threatened that in case she would raise cry she would kill. She has stated that co-
accused Bhim Singh was driving the car. She has stated that co-
accused Devender was also present in car. She has stated that she was brought to Shimla in vehicle. She has stated that after reaching Shimla co-accused Hem Lata introduced the prosecutrix to her brother co-accused Babu Ram present in Court. She has stated that co-accused Hem Lata told her that she should marry her brother i.e. co-accused Babu Ram. She has stated that co-
accused Hem Lata pressurized her to marry with co-accused Babu Ram and thereafter she was brought to Court and illegal documents of marriage were prepared with co-accused Babu Ram. She has stated that after marriage co-accused Hem Lata brought minor prosecutrix to her village Barara in Tehsil Sunni and kept in her house w.e.f. 10.7.2007 to 15.7.2007. She has stated that during aforesaid period co-accused Babu Ram had ::: Downloaded on - 15/04/2017 18:14:19 :::HCHP 11 committed sexual intercourse with her forcibly. She has stated that thereafter on dated 16.7.2007 co-accused Hem Lata and Babu Ram brought her to police post Salapar. She has stated that .
her date of birth is 15.12.1991. She has further stated that her statement was recorded on dated 20.7.2007 and she was also medically examined. She has stated that thereafter she was handed over to her parents. She has stated that during investigation she was brought to Shimla and she located the house where she was kept in Shimla. She has stated that thereafter she was brought to village Barara and she located the house of co-accused Hem Lata and Babu Ram where she was kept and wherein she was subjected to sexual intercourse. She has stated that police prepared the spot map and further stated that she handed over shirt Ext.P1 and salwar Ext.P2 to doctor at zonal hospital Mandi. She has stated that there were only two students in tailoring centre. She has stated that tailoring centre was opened in rented house. She has stated that co-accused Hem Lata came to her house to settle her marriage with her brother co-accused Babu Ram but her father declined the proposal. She has denied suggestion that she has disclosed her age in document as 19 years. Self stated that age was wrongly dictated by accused persons. She has denied suggestion that she had given consent to her marriage. She has denied suggestion that she accompanied the accused persons voluntarily with her ::: Downloaded on - 15/04/2017 18:14:19 :::HCHP 12 consent. She has denied suggestion that no car came to bridge and also denied suggestion that she was not kidnapped.
8.4 PW4 Anita Devi has stated that she is posted as .
Secretary G.P. since 1996 and she issued copy of family register Ext.PW4/A on the request of police officials. She has stated that she had also issued birth certificate Ext.PW4/B on the request of police officials. She has stated that she has brought the births and deaths register and Ext.PW4/A and Ext.PW4/B are true copies of original record. She has denied suggestion that entries in family register and births and deaths register are not correct.
8.5 PW5 Jai Lal has stated that on dated 16.7.2007 he was called by one boy to P.P. Salapar. He has stated that prosecutrix along with 2/3 persons were sitting in police post. He has stated that co-accused Babu Ram was one of them. He has stated that document Ext.PW1/B was prepared which was signed by him and further stated that thereafter prosecutrix was handed over to her father. Witness was declared hostile by prosecution.
He has admitted that affidavit was took into possession vide memo Ext.PW5/A. 8.6 PW6 Lekh Ram has stated that he is posted as Constable and on dated 27.7.2007 driver Bhim Singh handed over esteem car No. HP-03(T)-4217 along with documents which were took into possession vide memo Ext.PW6/A. ::: Downloaded on - 15/04/2017 18:14:19 :::HCHP 13 8.7 PW7 Devinder Kumar has stated that he is running the studio shop at Salapar. He has stated that on dated 10.7.2007 he was associated in investigation of case and he took .
photographs Ext.PW7/A-1 to Ext.PW7/A-4 and negatives of photographs are Ext.PW7/A-5 to Ext.PW7/A-8.
8.8 PW8 Sant Ram has stated that he is posted as Constable in P.S. Sundernagar. He has stated that on dated 25.7.2007 MHC Raj Kumar No. 920 handed over to him one sealed parcel containing plastic container sealed with seal of Civil Hospital Sundernagar, one sealed envelope, one parcel sealed with seal impression NSCB vide RC No. 60 of 2007 and he took the aforesaid parcels to FSL Junga and deposited there. He has stated that receipt issued by office of chemical examiner was deposited with Additional MHC and further stated that parcels remained intact in his custody.
8.9 PW9 Sukhchain Singh has stated that during investigation of case he along with police officials and prosecutrix went to Shimla in vehicle Tata Sumo and prosecutrix identified the room. He has stated that thereafter he along with police officials and prosecutrix went to Tatapani side to a village and prosecutrix located the house where she was raped in the room.
He has stated that one bed sheet was also seen and identification memo Ext.PW3/B was prepared at the spot. He has ::: Downloaded on - 15/04/2017 18:14:19 :::HCHP 14 denied suggestion that he did not go with police officials and also denied suggestion that house was not located by prosecutrix.
8.10 PW10 Dr. Namita Verma medical officer zonal .
hospital Mandi has stated that she is posted in zonal hospital for the last two years and prosecutrix was referred to her for opinion and on the basis of clinical examination she has given the opinion that possibility of sexual intercourse with prosecutrix could not be ruled out. She has stated that she had given opinion Ext.PW10/A and also stated that she has given the opinion on the basis of medical examination of prosecutrix and on the basis of clinical examination of prosecutrix. She has stated that Dr. Renu Behl was bed ridden. She has denied suggestion that victim was habitual of sexual intercourse.
8.11 PW11 Raj Kumar has stated that he is posted as MHC in P.S. Sundernagar since June 2007 and on dated 17.7.2007 MHC Krishan Chand deposited with him parcels and thereafter he sent the aforesaid parcels vide RC No. 60/2007 to FSL Junga. He has stated that parcels remained intact in his custody. He has denied suggestion that parcels were not deposited with him and also denied suggestion that he did not send the aforesaid parcels to FSL Junga.
8.12 PW12 has stated that she is posted as medical officer in Zonal Hospital Mandi since September 1993 and further stated that she had worked with Dr. Renu Behl who conducted the ::: Downloaded on - 15/04/2017 18:14:19 :::HCHP 15 medical examination and she was conversant with hand writing and signatures of Dr. Renu Behl. She has stated that Dr. Renu Behl was bed ridden and was unable to attend the Court. She has .
brought original MLC conducted by Dr. Renu Behl. She has stated that signatures of Renu Behl are Ext.PW12/A. 8.13 PW13 C. Gopal Singh has stated that he is posted as MHC in P.P. Salapar since 2006 and he brought the original daily diary Ext.PW1/A of rapat No. 10 dated 10.7.2007 which is correct as per original record.
8.14 PW14 Inspector Dilshad Mohammad has stated that he remained as Inspector/SHO in P.S. Sundernagar w.e.f. March 2007 to March 2008. He has stated that on completion of investigation he prepared challan and further stated that thereafter he received the chemical examiner report Ext.PW4/A and prepared the supplementary challan.
8.15 PW15 Kesar Singh has stated that he is owner of esteem vehicle. He has stated that he does not remember the number of vehicle. He has stated that he does not know who was driver of vehicle during the year 2007. He has stated that his statement was not recorded by police officials on dated 10.10.2007. Witness was declared hostile. He has admitted that he is owner of vehicle No. HP-03(T)-4217. He has stated that vehicle was took into possession by police officials relating to offence under Section 376 IPC. He has stated that vehicle was ::: Downloaded on - 15/04/2017 18:14:19 :::HCHP 16 released in his favour by order of Court and co-accused Bhim Chand was driving the vehicle who is co-accused in present case.
He has stated that he does not know who used to drive the .
vehicle as he had given the vehicle to his son.
8.16 PW16 Om Parkash Headmaster of school has stated that he is working as Headmaster in Senior Secondary School Dawal since the year 2005. He has stated that he had attested the middle standard examination certificate of prosecutrix which is Ext.PW16/A after comparing with original and thereafter handed over the same to police.
8.17 PW17 Dr. Jatinder Singh has stated that he is working as eyes specialist in Zonal Hospital Sundernagar since June 2006 and on dated 16.7.2007 at about 10 PM co-accused Babu Ram was brought to hospital for his medical examination. He has stated that on examination co-accused Babu Ram was found conscious well oriented to time place and person. He has stated that co-accused Babu Ram was capable of performing sexual intercourse. He has stated that he issued MLC Ext.PW17/A which is in his hands and bears his signatures. He has stated that he has also brought original MLC in Court.
8.18. PW18 Ami Chand has stated that he is posted as Incharge of P.P. Salapar and on dated 10.7.2007 Hari Dass filed report in P.P. Salapar. He has stated that thereafter same was recorded in roznamcha and thereafter FIR was registered and he ::: Downloaded on - 15/04/2017 18:14:19 :::HCHP 17 conducted investigation of case. He has stated that on dated 11.7.2007 he went to spot at village Jaho and took photographs through photographer Devinder Kumar and prepared spot map .
Ext.PW18/A. He has stated that thereafter he recorded statements of Hari Dass, Soma Devi and Raksha Devi under Section 161 Cr.P.C. He has stated that thereafter he moved an application to Secretary G.P. Kangu to issue certificate Ext.PW4/B and also copy of family register Ext.PW18/B which were took into possession. He has stated that on dated 16.7.2007 co-accused Hem Lata and Babu Ram and one driver and Som Kali brought prosecutrix to police post Salapar and he prepared memo Ext.PW1/B. He has stated that prosecutrix was handed over to her parents. He has stated that he also recorded statement of prosecutrix and further stated that thereafter he took the prosecutrix and co-accused Babu Ram to Civil Hospital Sundernagar for their medical examination. He has stated that medical examination of Babu Ram was conducted in civil hospital Sundernagar and thereafter prosecutrix was referred to Zonal Hospital Mandi for her medical examination. He has stated that thereafter he arrested co-accused Babu Ram and Hem Lata. He has stated that thereafter on 17.7.2007 prosecutrix was took to Zonal Hospital Mandi for her medical examination and her medical examination was conducted and MLC was also collected from medical officer. He has stated that thereafter on dated ::: Downloaded on - 15/04/2017 18:14:19 :::HCHP 18 27.7.2007 co-accused Bhim Singh driver and Devinder Kumar came to police post Salapar with vehicle No. HP-03(T)-4217 along with driving licence and RC and they were also took into .
possession. He has stated that on dated 20.9.2007 prosecutrix identified the place from where she was kidnapped and place at Shimla where she was kept. He has stated that spot map Ext.PW18/F was prepared and he also prepared spot map of house of accused at village Brara where prosecutrix was confined and further stated that thereafter he handed over the file to SHO P.S. Sundernagar who prepared challan and filed in Court. He has stated that he recorded statements of prosecution witnesses correctly as per their versions. He has stated that he also received report of FSL Junga Ext.PW14/A and thereafter prepared supplementary challan and filed in Court. He has identified the accused in Court. He has denied suggestion that prosecutrix did not identify the place at Sanjauli and Barara. He has denied suggestion that spot maps Ext.PW18/F and Ext.PW18/G were not prepared as per location shown by prosecutrix. He has denied suggestion that he did not visit the spot and also denied suggestion that false case filed against accused persons. He has denied suggestion that he did not record the statements of prosecution witnesses as per their versions. He has denied suggestion that age of prosecutrix was 19 years. He has denied suggestion that prosecutrix has voluntarily consented for ::: Downloaded on - 15/04/2017 18:14:19 :::HCHP 19 marriage with co-accused Babu Ram. He has denied suggestion that prosecutrix was not kidnapped in vehicle. He has denied suggestion that prosecutrix has left her father's house with her .
own sweet will.
8.19 PW19 ASI Amar Nath has stated that he remained posted in P.S. Sundernagar in the year 2006 and further stated that HHC Krishan Lal came to police station on dated 10.7.2007 and presented copy of entry No. 10 dated 10.7.2007 on which FIR Ext.PW8/A was registered. He has stated that he made the endorsement in the copy of rapat and handed over the case file to SHO Krishan Lal to take the same to spot.
8.20 PW20 Jitender Thakur has stated that stamp paper of affidavit Ext.PA was sold by him to co-accused Babu Ram on dated 10.7.2007. He has stated that anybody can buy the stamp paper in the name of any person.
8.21 PW21 Bishamber has stated that he remained posted as Naib Tehsildar (Urban) w.e.f July 2005 till July 2007 and he attested affidavit Ext.DA. He has stated that both parties came to him along with Advocate Hardev Singh and further stated that both parties disclosed their age and there was no influence of any person.
9. Statements of accused persons recorded under Section 313 Cr.P.C. They have stated that they are innocent.
Accused persons did not lead any evidence in defence.
::: Downloaded on - 15/04/2017 18:14:19 :::HCHP 2010. Submission of learned Advocate appearing on behalf of appellants that learned trial Court had convicted co-appellant Babu Ram under Section 376 IPC contrary to law and contrary to .
oral as well as documentary evidence placed on record is rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused the testimony of minor prosecutrix PW3. Minor prosecutrix has specifically stated in positive manner that on dated 9.7.2007 co-accused Hem Lata telephoned her father to send minor prosecutrix to tailoring centre Dehar. Minor prosecutrix has stated that co-accused Hem Lata sister of co-accused Babu Ram also telephoned minor prosecutrix and told the minor prosecutrix to come to tailoring centre and thereafter minor prosecutrix was dragged into vehicle No. HP-03(T)-4217 and thereafter minor prosecutrix was brought to Barara and thereafter in village Barara co-accused Babu Ram kept co-accused Hem Lata w.e.f. 10.7.2007 to 15.7.2007 and co-accused Babu Ram had committed sexual intercourse with minor prosecutrix at village Barara during the period when minor prosecutrix was kept in house at village Barara. Testimony of minor prosecutrix is trustworthy reliable and inspires confidence of Court. There is no reason to disbelieve the testimony of minor prosecutrix.
11. Testimony of minor prosecutrix is corroborated with medical evidence Ext.PW12/A wherein it has been specifically ::: Downloaded on - 15/04/2017 18:14:19 :::HCHP 21 mentioned that minor prosecutrix was exposed to sexual intercourse. Testimony of minor prosecutrix is further corroborated by medical evidence of co-accused Babu Ram .
Ext.PW17/A wherein it has been specifically mentioned that co-
accused Babu Ram was capable of performing sexual intercourse. It was held in case reported in (2013)3 SCC 791 titled Rajesh Patel vs. State of Jharkhand that the testimony of prosecutrix is sufficient to convict accused if it inspires confidence. (Also see (2013)4 SCC 206 titled State of Rajasthan vs. Baboo. Also see (2015)4 SCC 762 titled Deepak vs. State of Haryana)
12. Submission of learned Advocate appearing on behalf of appellants that present case is a case of consent in view of affidavit Ext.DA placed on record and on this ground appeal filed by appellants be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused affidavit Ext.DA placed on record. There is recital of word "attested" in Ext.DA by Executive Magistrate. There is no endorsement in affidavit Ext.DA that contents of document were read over and explained to deponent who admitted the contents as correct. It is held that affidavit Ext.DA was not attested in accordance with law in absence of endorsement that it was read over and explained to deponent who admitted the contents as correct. In view of defective attestation of affidavit Ext.DA no benefit can be given to accused persons on the basis of affidavit ::: Downloaded on - 15/04/2017 18:14:19 :::HCHP 22 Ext.DA. (See 1996 Cri.L.J.3864 (H.P.) titled Chuni Lal and another vs. State of H.P.)
13. Another submission of learned Advocate appearing .
on behalf of the appellants that age of prosecutrix was more than 16 years and on this ground appeal filed by appellants be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused certificate Ext.PW4/A placed on record issued by the Registrar (Births and Deaths) wherein date of birth of prosecutrix has been shown as 15.12.1991. Even in document Ext.PW4/B issued by Registrar (Births and Deaths) under Section 12/17 of Births and Deaths Registration Act 1969. date of birth of prosecutrix has been shown as 15.12.1991. Even as per middle standard examination certificate placed on record Ext.PW16/A date of birth of prosecutrix has been shown as 15.12.1991. Even, as per family register certificate Ext.PW18/B date of birth of prosecutrix has been shown as 15.12.1991. Above said documents have been prepared by public servants in discharge of their official duties and are relevant facts as per Section 35 of Indian Evidence Act.
Entries in above said documents are made prior to the incident.
Appellants did not adduce any positive cogent and reliable evidence on record in order to rebut the above said documents.
It was also held in case reported in AIR 1981 SC 361 titled Harpal Singh vs. State of H.P. (Full Bench) that entry made by public officials in discharge of official duty in public record is relevant ::: Downloaded on - 15/04/2017 18:14:19 :::HCHP 23 fact under Section 35 of Indian Evidence Act. (Also see ILR 1978 HP 174 titled Vidyadhar vs. Mohan) Even entry in birth register is much prior to incident of rape. It was held in case reported in AIR 2011 .
SC 1691 titled Murugan @ Settu vs. State of Tamil Nadu that document made ante litem motam can be relied upon safely when such document is admissible under Section 35 of Indian Evidence Act 1872. It was held in case reported in AIR 2002 HP 59 titled Chitru Devi vs. Ram Dai that entries in birth register kept by competent authority under Birth and Death Registration Act 1969 is admissible in evidence. Rape is not only a crime against a person of a victim but it is a crime against the entire society. It destroys the entire psychology of woman and pushed the woman into deep emotional crisis. Rape is a crime against the basic human rights and is violative of the victim's most cherished fundamental rights as mentioned in Article 21 of Constitution of India. (See AIR 1996 SC 922 titled Bodhisattwa Gautam vs. Miss Subhra Chakraborty) It is well settled law that sole testimony of prosecutrix is enough to convict the person if the testimony is free from blemish reliable. (See 2007 Cri..L.J. 803 (Delhi) titled Mohd.
Alam vs. State (NCT of Delhi). It is well settled law that testimony of prosecutrix must be appreciated in the background of entire case and Courts should be alive to its responsibility and should be sensitive while dealing with cases involving sexual molestation.
(See (1996)2 SCC 384 titled State of Punjab vs. Gurmit Singh and others, See (2000)5 SCC 30 titled State of Rajasthan vs. N.K. the accused, See ::: Downloaded on - 15/04/2017 18:14:19 :::HCHP 24 (2000)1 SCC 247 titled State of H.P. vs. Lekh Raj and another, (1992) 3 SCC 204 Madan Gopal Kakkad Vs. Naval Dubey and another. Also see (1990)1 SCC 550 titled State of Maharashtra vs. Chander Prakash. Also .
see (2011)2 SCC 550 titled State of U.P. vs. Chotte Lal)
14. In present case PW1 Hari Dass father of prosecutrix has specifically mentioned that age of prosecutrix was 15 years.
Even prosecutrix when appeared in witness box has stated that she was born on dated 15.12.1991. Testimony of PW1 Hari Dass and prosecutrix are corroborated by documentary evidence i.e. certificate Ext.PW4/A placed on record issued by the Registrar (Births and Deaths) wherein date of birth of prosecutrix has been shown as 15.12.1991, document Ext.PW4/B in which date of birth of prosecutrix has been shown as 15.12.1991, middle standard examination certificate placed on record Ext.PW16/A in which date of birth of prosecutrix has been shown as 15.12.1991, family register certificate Ext.PW18/B in which date of birth of prosecutrix has been shown as 15.12.1991. There is no positive cogent and reliable evidence on record to rebut the above said public documents prepared by public officials while discharging their official duty. Hence it is held that prosecutrix was minor at the time of incident and it is further held that consent of minor prosecutrix is immaterial in present case because theory of consent is not applicable upon minor prosecutrix according to law as per description number six mentioned in Section 375 of Indian Penal Code 1860 as amended up to date.
::: Downloaded on - 15/04/2017 18:14:19 :::HCHP 2515. Another submission of learned Advocate appearing on behalf of appellants that conviction of co-accused Hem Lata under Section 120-B IPC is contrary to law and contrary to proved .
facts is rejected being devoid of any force for reasons hereinafter mentioned. It is well settled law that element of criminal conspiracy is a crime to do illegal act and can be proved either by direct evidence or by circumstantial evidence or by both. It is well settled law that direct evidence to prove conspiracy is rarely available and thereafter circumstances proved before, during and after the incident have to be considered to decide about the complicity of accused. (See 2012 (10) JT 286 titled Pratapbhai Hamirbhai Solanki vs. State of Gujarat.) In present case it is proved beyond reasonable doubt that co-accused Hem Lata telephonically called minor prosecutrix from her residential house and thereafter dragged the minor prosecutrix in vehicle No. HP-
03(T)-4217 and thereafter took minor prosecutrix to place Barara and thereafter kept the prosecutrix at Barara w.e.f. 10.7.2007 to 15.7.2007 and thereafter brother of co-accused Hem Lata namely co-accused Babu Ram forcibly committed sexual intercourse with minor prosecutrix. It is held that criminal offence under Section 120-B of Indian Penal Code is proved against co-accused Hem Lata beyond reasonable doubt in criminal case as per oral as well as documentary evidence placed on record.
::: Downloaded on - 15/04/2017 18:14:19 :::HCHP 2616. Another submission of learned Advocate appearing on behalf of the appellants that no offence under Sections 363 and 366 IPC is proved against co-accused Hem Lata in present .
case is also rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that kidnapping is of two types. (1) Kidnapping from India as defined under Section 360 of Indian Penal Code. (2) Kidnapping from lawful guardianship, as defined under Section 361 of Indian Penal Code 1860. It is well settled law that whoever takes or entices any minor girl below 18 years out of custody of lawful guardian of minor is liable to be punished in accordance with law. In present case it is proved on record that age of minor prosecutrix was below 16 years at the time of incident of kidnapping and it is also proved on record beyond reasonable doubt that PW1 Hari Dass was natural guardian of minor prosecutrix. PW1 Hari Dass natural guardian of minor prosecutrix when appeared in witness box has specifically stated in positive manner that minor prosecutrix was kidnapped by co-accused Hem Lata without his consent.
Testimony of PW1 Hari Dass is corroborated by PW2 Raksha Devi, PW3 prosecutrix and other corroborative witnesses namely PW4 Anita Devi, PW5 Jai Lal, PW6 Lekh Raj, PW7 Sant Ram, PW8 Sukhchain, PW10 Dr. Namita Verma, PW11 Raj Kumar. PW13 C. Gopal, PW14 Dilshad Mohammad, PW15 Kesar Singh, PW16 Om Parkash, PW17 Dr. Jatinder Singh, PW18 Ami Chand, PW19 Amr ::: Downloaded on - 15/04/2017 18:14:19 :::HCHP 27 Nath, PW20 Jitender Thakur. Kidnapping of minor prosecutrix without consent of lawful guardianship is proved on record beyond reasonable doubt against co-accused Hem Lata in .
present case. It is well settled law that offence under Sections 363 and 366 IPC is primarily an offence committed against the guardian. (See (2004)1 SCC 339 titled Parkash vs. State of Haryana.
See AIR 1973 SC 2313 titled Thakorlal D. Vadgama vs. State of Gujarat.
See AIR 1998 SC 2694 titled Kuldeep K. Mahato vs. State of Bihar. See 1995(4) JT 206 titled Radha Bhallabh & others vs. State of U.P.)
17. In view of above stated facts and case law cited supra appeal filed by appellants is dismissed. Judgment and sentence passed by learned trial Court are affirmed. It is held that learned trial Court had properly appreciated oral as well as documentary evidence placed on record and it is further held that no miscarriage of justice has been caused to appellants in present case. File of learned trial Court be sent back forthwith along with certified copy of judgment. Appeal stands disposed of.
All pending miscellaneous application(s) if any also stands disposed of.
May 22, 2015 (P.S. Rana)
(ms). Judge
::: Downloaded on - 15/04/2017 18:14:19 :::HCHP