Himachal Pradesh High Court
State Of Himachal Pradesh vs Of on 23 May, 2016
Bench: Rajiv Sharma, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.336 of 2010 .
Reserved on :11.5.2016 Decided on: 23rd May, 2016.
State of Himachal Pradesh .......Appellant.
Versus
of
Joginder Singh ......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge. The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
rt Whether approved for reporting?1 Yes.
For the appellant : Mr. Parmod Thakur, Additional Advocate General.
For the respondent : Mr. Ashok Tyagi, Advocate.
Chander Bhusan Barowalia, Judge.
The present appeal is maintained by the appellant-State of Himachal Pradesh against Joginder Singh, accused-respondent (hereinafter referred to as accused) for setting aside the judgment acquitting the accused under Sections 366 and 376 of the Indian Penal Code.
2. The appeal arises from the judgment of learned Addl. Sessions Judge, Una, dated 19.12.2009, wherein the learned Addl. Sessions Judge, Una, has acquitted the accused under Sections 366 and 376 of the Indian Penal Code. However, convicted the accused under Section 363 of the Indian Penal Code and has sentenced him with two years rigorous 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:25:21 :::HCHP 2imprisonment alongwith a fine of `5000/- (rupees five thousand only) and in default of payment of fine the convict further undergo simple .
imprisonment for two months.
3. Learned defence counsel for the accused has stated at the bar that accused has not maintained any appeal against his conviction under Section 363 of the Indian Penal Code and sentence imposed by the of learned Addl. Sessions Judge, Una, vide the impugned judgment.
4. The brief facts giving rise to the present appeal are that as per rt the prosecution story, accused had physically ravished the person of the prosecutrix on 25.1.2009, 26.1.2009 and 28.1.2009 and had kidnapped the prosecutrix who was hardly of about 13 years of age without the consent of her natural guardians i.e. her father Mahi Pal (PW-3) and had committed the offence of kidnapping with the intention to marry her against her will or that she may be forced to commit intercourse with him. Further case of the prosecution is that family of Mahi Pal (PW-3) was residing in the house of one Raj at Gagret, District Una and on the above floor PW-3 resided the accused. On 28.1.2009, when the prosecutrix was on her way to the school accompanied by her sister Rinky and brother Babloo, accused met her on the way and disclosed to her that her father had met with an accident and her mother had already proceeded to Hoshiarpur. He thus, eloured the prosecutrix to accompany him on this pretext. It is the case of prosecution that thereafter accused took her to Anand Vihar, Delhi and from there to her Bua's sister ::: Downloaded on - 15/04/2017 20:25:21 :::HCHP 3 (parental aunt's house at Mohkampur (U.P). For about 10 days, the prosecutrix was confined in different locations in and around Mohkampur .
and eventually the prosecutrix alongwith the accused came to be apprehended on 7.2.2009 at about 6:30 pm at Mohkampur Chowk.
5. On the basis of the statement of mother of prosecutrix (PW-1) Ex.PW1/A, FIR Ex.PW15/A, was registered at Police Station, Gagret on of 1.2.2009.
6. During the course of investigation, Investigating Officer ASI rt Bikram Singh (PW-14) alongwith HC Sanjiv and other relatives of the girl had left for Bhejoi (UP) to trace the prosecutrix and they were eventually apprehended at Mohkampur on 7.2.2009 at about 6:30 pm. The prosecutrix came to be identified by her father (PW-3) and a memo also came to be prepared vide Ex.PW3/A. Investigating Officer prepared spot map Ex.PW14/A. The prosecutrix came to be medically examined on 8.2.2009 at Regional Hospital, Una and so was accused got examined at First Referral Unit Gagret on 9.2.2009. Investigating Officer had also prepared the spot maps from where accused had abducted the prosecutrix Ex.PW14/D and the place where the prosecutrix had been sexually assaulted vide Ex.PW14/C.
7. PW-6 Dr. Seema after having examined the prosecutrix and Chemical Examiner's report Ex.PW6/C opined that the fact of recent sexual intercourse with the prosecutrix could not be ruled out. However, the patient/victim was habitual to perform the sexual act. The ::: Downloaded on - 15/04/2017 20:25:21 :::HCHP 4 prosecutrix had been referred to the Radiologist to determine her age.
As per Dr. O.P. Ramdev (PW-4), Radiologist the age of the prosecutrix .
was above 13 and below 16 years. The Dental Surgeon Dr. Himani Narang (PW-9) had also opined that the age of prosecutrix was between 14-16 years. The prosecution also sought to prove the age of the prosecutrix by getting records from her native place Gram Panchayat of Kharua. Even as per (PW-13) Smt. Champa Kumari in school record the date of birth of the prosecutrix has been recorded as 7.5.1995.
8. rt The prosecution in order to prove its case has examined as many as 17 witnesses. Statement of accused was recorded under Section 313 Cr.P.C, wherein accused denied the prosecution case and claimed innocence. No defence evidence was led by the accused.
9. We have heard the learned counsel for the parties and have gone through the judgment and record in detail.
10. PW-1 is mother of the prosecutrix and has deposed that her husband Mahi Pal was running a Rehdi at Gagret in January, 2009. While staying at Gagret, PW-1 alongwith her husband and children was residing in house of one Raj. In cross examination she has stated that accused was in talking terms with PW-1 and used to visit their home.
11. PW-2 prosecutrix deposed in her cross examination by learned defence counsel that she has not disclosed to the police that accused has slapped her in the bus. She has further stated that accused has taken her to Hoshiarpur, but she was confronted with her statement ::: Downloaded on - 15/04/2017 20:25:21 :::HCHP 5 recorded by the police mark-B, wherein it was not so recorded.
Thereafter, she has stated that she was taken from Hoshiarpur to Delhi, .
but again confronted with her statement mark-B recorded by the police, wherein it is not so recorded. She admitted that accused used to visit their house.
12. PW-3 Shri Mahi Pal is father of the prosecutrix. He deposed in of cross examination that accused used to visit their house frequently. He stated in cross examination that he disclosed to the police that his rt daughter had told him that accused has allured her by saying that PW-3 met with an accident and admitted at Una. He was confronted with his statement recorded by police from C to D, wherein it was not so recorded.
13. PW-4 Dr. O.P. Ramdev, who examined the prosecutrix opined age of the prosecutrix was above 13 years and below 16 years. In cross examination he has stated that there are chances of variation of two years plus and minus from the age determined.
14. PW-5 is Shri Sanjeev Kumar, Radiographer, x-rayed the teeth of the prosecutrix.
15. PW-6 Dr. Seema, who has medically examined the prosecutrix and has found no mark of violence or fresh injuries on body and private part of the patient. She has not found any sign of recent rupture of hymen. Vaginal dilation is there, two fingures used, no tenderness, no inflammation, no swelling of valva or any part. The vagina was not ::: Downloaded on - 15/04/2017 20:25:21 :::HCHP 6 clean, but blood stained due to menstruation. As per her, the patient was habitual to perform the sexual act. In cross examination she has .
stated that there was no tenderness or swelling. She deposed that it cannot be said that there was no sexual intercourse. Thereafter, self stated that it generally signify a consensual act. She admitted that rupture of the hymen was not recent. She admitted that the old rupture of of the hymen signify that no intercourse has taken place in the recent past.
16.
17. rt PW-7 is formal witness of the police.
PW-8 Shri Kewal Krishan, Centre Head Teacher, has issued the attendance record of the prosecutrix.
18. PW-9 Dr. Himani Narang, Dental Surgeon, opined that the age of the prosecutrix was between 14 to 16 years.
19. PW-10 Shri Inder Pal Singh, has proved the date of birth of the prosecutrix as entered in the pariwar register Ex.PW10/A, birth year 1996. In cross examination he has admitted that date of birth is recorded as per the discloser made by the people.
20. PW-11 LC Nisha Rani, has recovered the prosecutrix from village Mokampur (Utter Pradesh).
21. PW-12 Dr. Sukhwinder Singh, has medically examined the accused. As per his opinion, accused is capable to do intercourse.
::: Downloaded on - 15/04/2017 20:25:21 :::HCHP 722. PW-13 Smt. Champa Kumari, Head Teacher, Govt. Primary School, Chalet, Tehsil Amb, District Una, has placed on record the date of .
birth as mentioned in the school register i.e. on 7.5.1995.
23. PW-14 ASI Vikram Singh, has recorded the statement of PW-1 and conducted the investigation. He deposed that after registration of the FIR, Station House Officer has handed over the case to him for of investigation. He alongwith HC Sanjeev and other relatives of girl had left for Behjoi to trace the girl. On 3.2.2009, the police party had reached rt the house of accused, but could not trace his whereabouts. The Police party had got information that accused and prosecutrix were in an area known as Mokampur in Badaun. During the course of investigation, he had prepared the site plan of the area from where the accused had abducted the prosecutrix vide Ex.PW14/D. He had also prepared the site plan of the area where the prosecutrix is alleged to have been sexually assaulted vide Ex.PW14/C. During investigation, he obtained the attendance record of school parivar, register and copy of transfer certificate Ex.PW14/D. He had recorded the statement of witnesses as per their version. In cross examination, he deposed that it transpired in investigation that the prosecutrix was not subjected to sexual intercourse in Uttar Pradesh.
24. PW-16 HC Vikram Singh, who has received the exhibits being posted as MHC Police Station, Gagret.
::: Downloaded on - 15/04/2017 20:25:21 :::HCHP 825. PW-17 is the formal witness, who has taken the sealed parcel to FSL from the Police Station.
.
26. From the statement of PW-2, it is clear that prosecutrix has given a totally different version in respect of the rape. Earlier her version was that she had been raped at Gagret i.e. in the quarter of the accused on 25.1.2009, 26.1.2009 and 28.1.2009, whereas in her statement in the of court, the alleged occurrence of rape is attributed after her abduction on 28.1.2009. As per the prosecutrix, accused had sexually assaulted her at
27. rt his bua's house (accused's bua sister-in law's) place at Bhagatpur.
From this it is doubtful, whether the offence under Section 376 of the Indian Penal Code has been committed on the prosecutrix or not.
There is no explanation why she has given different version while appearing in the Court as PW-2, then she made to the police.
28. Statement of the prosecutrix, at least in respect of rape is, thus, shrouded with suspicion. The burden was heavy on the prosecution to prove the said fact to the satisfaction of the Court. In the face of the suspicious circumstances, it was incumbent upon the prosecution to have explained the said suspicious circumstances. So the very genesis of the occurrence has changed. To this extent thus the testimony of the prosecutrix itself become doubtful. It is difficult to comprehend which part of her allegations regarding rape is true as both of them are diametrically opposite.
::: Downloaded on - 15/04/2017 20:25:21 :::HCHP 929. Though the prosecution had sought to charge the accused under Section 366-A of the Indian Penal Code, but no such charge .
proved as there was no evidence on record remotely suggesting that the prosecutrix had been abducted with the purposes of procuration, it is only when a person is abducted with an object of forcing a minor for illicit intercourse with another person. It was not the case of the prosecution.
of Even allegations under Section 366 of the Indian Penal Code itself may not come to the fore as there is no evidence on record that the rt prosecutrix had been abducted with intent to marry. The prosecutrix while appearing as PW-2 has not remotely deposed regarding the factum of marriage being proposed by the accused or she was abducted with the intent of marriage by the accused. As has been held above, the story of intercourse propounded by the prosecutrix herself is shrouded in mystery. It cannot be said that even the same has been proved on record.
30. However, the fact remains that the prosecutrix was kidnapped by the accused from the lawful guardianship, as punishable under Section 363 of the Indian Penal Code. There is overwhelming evidence on record that the prosecutrix was below 16 years of age at the relevant time, as for kidnapping the age for enticing any minor has been fixed under 18 years in case of a female. The ossification test conducted by PW-4 Dr. O.P. Ramdev also showed that the age of the prosecutrix was above 13 and below 16 years as is clear from his opinion Ex.PW4/B and Ex.PW4/C. ::: Downloaded on - 15/04/2017 20:25:21 :::HCHP 10 The said factum was also corroborated by Dental Surgeon Dr. Himani Narang, PW-9. As per her, age of the prosecutrix was between 14-16 .
years and her opinion is Ex.PW9/A. As per PW-13 Smt. Champa Kumari Head Teacher Government Primary School, Chalet, where the prosecutrix was studying shows that as per record, the date of birth of the prosecutrix has been mentioned as 7.5.1995. Even as per the entry in of the parivar register in her native place i.e. at Gram Panchayat, Kharua Tehsil Atroli District Aligarh (U.P) the year of birth of the prosecution has rt been shown as 1996 (Ex.PW10/A). Seen from any angle the prosecutrix admittedly was below 18 years at the relevant time.
31. As far as enticing is concerned, it is abundantly clear from the testimony of the prosecutrix (PW-2) that the accused had enticed her by representing that her father had met with an accident and as such, she should accompany him. She has further given the details where the accused had taken her firstly to Hoshiarpur and thereafter to Anand Vihar, Delhi. On the next day, accused had taken her to his paternal aunt's house at Mohkampur. The version of the prosecutrix in this behalf is corroborated by her father (PW-3) as per whom, accused and the prosecutrix were apprehended at Mohakampur and in this behalf a memo Ex.PW3/A had been prepared. This fact is further corroborated by the testimony of PW-11 LC Nisha Rani, who had witnessed the recovery memo Ex.PW3/A alongwith HC Sandeep. So, has the Investigating Officer ASI Bikram Singh corroborated the version.
::: Downloaded on - 15/04/2017 20:25:21 :::HCHP 1132. PW-1 has supported the prosecution story regarding enticing the prosecutrix who accompanied the accused to Hoshiarpur, .
thereafter Anand Vihar, Delhi and then to Mokhampur. So, the offence which is proved against the accused was under Section 363 of the Indian Penal Code only.
33. In view of the discussions made hereinabove, findings of of the learned Court below acquitting the accused for offence under Sections 366 and 376 of the Indian Penal Code needs no interference.
rt However, it is made clear that the period for which accused has remained behind the bar during the investigation and trial will be set off from the substantive sentence imposed by the learned Court below while sentencing him under Section 363 of the Indian Penal Code.
34. For the reasons given hereinabove, the appeal maintained by the State is without merit and deserves dismissal. All the pending application (s), if any, stands disposed of accordingly.
(Rajiv Sharma), Judge (Chander Bhusan Barowalia), rd 23 May, 2016 Judge (CS) ::: Downloaded on - 15/04/2017 20:25:21 :::HCHP