Himachal Pradesh High Court
State Of Himachal Pradesh vs Sudesh Kumar Alias Pinku on 16 December, 2016
Bench: Dharam Chand Chaudhary, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 370 of 2005
.
a/w Cr. Appeal No. 203 of 2013.
Reserved on: 16.9.2016.
Date of decision: 16.12.2016.
1 Cr. Appeal No. 370 of 2005.
State of Himachal Pradesh ......Appellant.
of
Versus
Sudesh Kumar alias Pinku. ......Respondent.
2.
rt
Cr. Appeal No. 203 of 2013.
Balbir Singh alias Bittu .....Appellant.
Versus
State of Himachal Pradesh. .....Respondent.
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 Yes.
For the appellant/State : Mr. D.S. Nainta and Mr. Virender
Verma, Addl. AGs.
For the respondents/accused :M/S Vinay Thakur and Mr. Karan
Singh Kanwar, Advocates for the
respective accused.
Dharam Chand Chaudhary, J.
This judgment shall dispose of this appeal and also connected one registered as Cr. Appeal No. 203 of 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes.
::: Downloaded on - 15/04/2017 21:46:08 :::HCHP 22013, though arising out of separate judgments, however, in the same case registered against respondent in this .
appeal (hereinafter referred to as accused No. 1) and convict-appellant in connected appeal (hereinafter referred to as accused No. 2) under Sections 366, 376 and 506 IPC of read with Section 34 IPC with the allegation that on 28.7.2004, around 11:00 AM near Khairi forest, accused No. 2 was occupying the rear seat of maruti van bearing rt registration No. HP-14-7112, being driven by its owner and his co-accused Sudesh Kumar alias Pinku, accused No. 1 who on seeing the prosecutrix (name withheld) walking on the road, stopped the van by her side. Accused No. 2 opened the door and dragged her inside and made her to sit by his side on rear seat of the van forcibly and her protest thereto. At some distance in the jungle, the driver accused No. 1 stopped the van on road side leaving behind his co-
accused, accused No. 2 Balbir Singh alias Bittu and the prosecutrix in the van alone. Accused No. 2 had broken the string and removed her salwar and thereafter subjected her to sexual intercourse on rear seat of the van against her will and without her consent.
::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 32. Both the accused were arrested by the police, however, accused No. 2 managed his escape from police .
custody and absconded. The Investigating Agency, on the completion of the investigation, has filed Challan against both of them. Accused No. 2 was ultimately declared as of proclaimed offender. The case against accused No. 1 was, however, committed to the Sessions Court, Sirmaur at Nahan. Learned trial Judge, finding a case under Section rt 366-A, 376 and 506 read with Section 34 IPC has been made out against him, framed charges accordingly. He, however, pleaded not guilty to the charge. The prosecution in turn has examined 11 witnesses in all to prove its case against accused No. 1. The material prosecution witnesses are PW-2 Dr. Monisha Aggarwal who conducted the medical examination of the prosecutrix, PW-3 the prosecutrix, PW-5 Sandhya Devi, mother of the prosecutrix, PW-6 Mahender Singh, father of the prosecutrix, PW-4, Roshan Lal, an eye witness and PW-10 Tula Ram, Up-Pradhan. The I.O. Anup Singh, the then Station House Officer, Police Station Pachhad is PW-11.
3. The statement of accused No. 1 under Section 313 Cr.P.C. was also recorded. As per the admissions he ::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 4 made, the prosecutrix was daughter of PW-5 Sandhya Devi and PW-6 Mahender Singh. On 28.7.2004, he was driving .
his van and accused No. 2 along with the prosecutrix met him near the shop of Daulat Ram Pradhan Gram Panchayat around 10:30 or 11:00 AM. Accused No. 2 dragged the of prosecutrix inside the van which was witnessed by PW-4 Roshan Lal. He drove the van to forest where a temple is situated and accused No. 2 as well as the prosecutrix rt wanted to go to that temple. He stopped the van in the forest and parked the same there and he himself went away to meet one Baldev leaving behind accused No. 2 and the prosecutrix in the van. He has admitted his signatures on identification memo Ext. PW-10/A, however, denied that he had identified the place of kidnapping and that where the prosecutrix was raped. According to him, his signatures on the memo Ext. PW-10/A were obtained in the Police Station.
4. Rest of the incriminating circumstances appearing against him in the prosecution evidence have, however, been denied either being wrong or for want of knowledge. In his defence, while answering last question, it was pleaded that the prosecutrix was in love with accused No. 2. Since some people were against it, therefore, it is for ::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 5 this reason, he has been implicated in this case falsely. He, however, opted for not producing any evidence in his .
defence.
5. Learned trial Court, on appreciation of the given facts and circumstances as well as defence available on of record has, however, acquitted accused No. 1 of the charges framed against him vide judgment dated 2.6.2005 which is under challenge herein.
rt
6. As pointed out hereinabove, accused No. 2 who was absconding and declared proclaimed offender had ultimately surrendered in the Court on 25.11.2011. Since his prayer for grant of bail was not inclined, therefore, he was arrested and taken into custody. On filing of supplementary Challan against him, learned trial Court has framed charge under Sections 366, 376 and 506 IPC against him. He also pleaded not guilty, therefore, the prosecution has recalled and examined all the witnesses as aforesaid in the same sequence and order as in the trial of accused No. 1 to prove the charge against him. Additionally, one witness Dr. Anuj Kumar Gupta (PW-12) who had examined the said accused, while in custody on 31.7.2004, was also produced by the prosecution in support of its case to prove ::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 6 that accused No. 2 was capable of performing sexual intercourse.
.
7. Accused No. 2 in his statement recorded under Section 313 Cr.P.C. has admitted that in the year 2004, the prosecutrix used to learn tailoring work in the house of her of maternal uncle at village Ghanyar and that on 28.7.2004 on her way to the house of her maternal uncle, he came around 10:30 AM in maruti van bearing registration NO. HP-
rt 14-7112 being driven by accused No. 1 from Kalaghat side and stopped the same near the house of PW-4 Roshan Lal.
Though, it is denied that he dragged the prosecutrix inside the van, however, according to him, she boarded the van voluntarily and at her own to have a ride. He did not force her to board the van. According to him, he did not commit rape with her forcibly rather they being co-villagers had developed friendly relations and were meeting with each other off and on. He never detained the prosecutrix in the van and rather she remained seated therein of her own. It is only when the mother of prosecutrix came to know that she did not attend her class and rather accompanied both accused in a van, report with the police was lodged by the prosecutrix against them. It was also admitted that PW-12 ::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 7 Dr. Anoop Kumar has conducted the medical examination.
Rest of the prosecution case has, however, been denied .
either being wrong or for want of knowledge. In his defence, it has been stated while answering question No. 19 that the prosecutrix had friendly relations with him and of when her mother came to know about it and also that she did not attend the tailoring school on that date and rather accompanied him as well as his co-accused Sudesh Kumar rt alias Pinku, false story was engineered against them in connivance with Daulat Ram and Tula Ram (PW-10).
8. Accused No. 2, in his defence has examined DW-
1 Ms. Shanta Devi and DW-2 Inder Singh, who both have deposed that the prosecutrix and accused No. 2 are residents of their village and that they noticed the prosecutrix in the company of accused No. 2, many a times and as such, they felt that they both were having affair with each other. In cross-examination, they expressed their ignorance that both the accused kidnapped the prosecutrix and that she was taken to Khairi forest where accused No. 2 subjected her to sexual intercourse forcibly.
::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 89. Now, learned trial Court vide judgment dated 25.3.2013 has held accused No. 2 guilty and he has been .
convicted under Section 366, 376 and 506 IPC. He has also been sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 25,000/- under Section 376 of IPC, rigorous imprisonment for three years and to pay a fine of Rs. 15,000/- under Section 366 IPC and to undergo simple imprisonment for a period of 3 months under Section 506 rt IPC. All the substantive sentences against accused No. 2 were ordered to run concurrently.
10. It is, in this backdrop, while the State of Himachal Pradesh aggrieved by the judgment dated 2.6.2005 passed by learned Sessions Judge, Sirmaur at Nahan in Sessions trial No. 49-ST/7 of 2004 whereby accused No. 1 has been acquitted of the charges framed against him has preferred the present appeal bearing No. 370 of 2005, the connected one i.e. Cr. Appeal No. 203/2013 has been preferred by accused No. 2 against the judgment dated 23.3.2013 passed by learned Sessions Judge, Sirmaur at Nahan in Sessions trial No. 20-ST/7 of 2012 whereby he has been convicted and sentenced to undergo rigorous imprisonment in the manner, as aforesaid.
::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 911. It has been claimed by the State in Cr. Appeal No. 370 of 2005 that the findings of acquittal in favour of .
accused No. 1 have been recorded by learned trial Court on hypothesis, surmises and conjectures, while appreciating the evidence available on record in a slipshod and of perfunctory manner. The common intention and interference can only be gathered from the surrounding circumstances, act and conduct of the accused. When as rt per the own admission of accused No. 1 maruti van bearing No. HP-14-7112 belongs to him and on 28.7.2004 he was driving the same in Khairi forest area and his co-accused Balbir Singh (accused No. 2) occupying the rear seat dragged the prosecutrix inside the van and made her to sit by his side, his conduct in not objecting to such an illegal act on the part of his co-accused itself demonstrates that he had agreed for kidnapping the prosecutrix in this manner and fashion and as such the provisions of section 34 IPC are attracted in the case in hand. Also that, the conduct of accused No. 1 in stopping the van in jungle and alighting himself therefrom as well as going somewhere leaving behind the prosecutrix alone in the van for being subjected to sexual intercourse by accused No. 2 also demonstrates ::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 10 that he had common intention and as such aided and facilitated the commission of sexual intercourse by accused .
No. 2 with the prosecutrix. The presumption under Section 114-A of the Indian Evidence Act should have been drawn against the accused because the prosecutrix who was of subjected to sexual intercourse without her consent and against her will and also deposed so while in the witness-
box, has proved the prosecution case that she was rt subjected to sexual intercourse forcibly. The trial Court, allegedly has lost sight of this part of the prosecution case.
The trial Court, allegedly has failed to appreciate explanation (I) to Section 376 IPC which provides that where a woman is raped by one or more persons while acting in furtherance of their common intention, each of such persons shall be deemed to have committed rape with that woman. Merely that the age of the prosecutrix was over 18 years does not give a license to the accused to have subjected her to sexual intercourse forcibly. She was not a consenting party to such an act committed by accused No. 2 and rather it is the said accused who pulled her inside the van forcibly and accused No. 1 helped him to do so. The prosecutrix has also proved that after she was subjected to ::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 11 sexual intercourse by accused No. 2 and before dropping her near the shop of Daulat Ram, Pradhan, Gram .
Panchayat, they both threatened her to do away with her life if she disclosed the incident to anyone. Therefore, it has been submitted that irrespective of overwhelming evidence, of cogent and reliable, suggesting that accused No. 2 had subjected the prosecutrix to sexual intercourse in furtherance of their common intention, accused No. 1 rt should have been convicted and suitable sentence awarded against him.
12. Now, if coming to the connected Cr. Appeal No. 203 of 2013, accused No. 2 has assailed his conviction and sentence on the grounds, inter alia, that the statement of prosecutrix hardly inspires any confidence. There are material contradictions in her statement which should have not been taken into consideration by learned trial Court.
The evidence, as has come on record, by way of testimony of DW-1 Shanta Devi and DW-2 Inder Singh to the effect that the prosecutrix had love affair with accused No. 2 has been erroneously ignored. The appellant-accused No. 2 had himself admitted his friendly relations with the prosecutrix while answering question No. 19 in his statement recorded ::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 12 under Section 313 Cr.P.C. The prosecutrix did not attend the tailoring class on that day and as per her own version, .
the said accused left her alone and went away whereas she was brought back to the place from where taken to forest by accused No. 1. Therefore, how, the said accused could of have committed the offence of rape. On the same set of evidence, accused No. 1 has been acquitted whereas accused No. 2 convicted.
rt The prosecution has miserably failed to prove its case against accused No. 2 also. Had the prosecutrix been subjected to sexual intercourse forcibly by him, she might have given teeth bite and scratches on his body. No such evidence, however, is available on record.
Therefore, the story that she was subjected to sexual intercourse without her consent and against her will is stated to be false. The medical evidence does not corroborate the prosecution case qua the commission of sexual intercourse forcibly with the prosecutrix. Neither human semen nor spermatozoa, live or dead, could be detected on swabs of prosecutrix and also on her clothes and as such the scientific investigation also rules out the allegations of rape against accused No. 2. The discrepancies and contradictions go to the very root of the ::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 13 prosecution case and as such no findings of conviction could have been recorded against accused No. 1. Learned trial .
Court has placed reliance on the testimony of the prosecution witnesses, who being in near relation and inimical to accused No. 2 were highly interested. The of impugned judgment as such is stated to be against law and facts of the case, hence sought to be quashed and set aside. rt
13. The prosecutrix is daughter of PW-5 Sandhya Devi and PW-6 Mahender Singh. Now, if coming to the facts of the case, admittedly the prosecutrix was learning tailoring work in the house of her maternal uncle at village Ganyar at a distance of 1 km. from her parental house. On 28.7.2004, she proceeded to the tailoring centre at village Ganyar on foot around 11:00 AM. When she was near the house of one Daulat Ram Pradhan, maruti van bearing registration No. HP-14-7112 being driven by accused No. 1 came from Kalaghat side. It was stopped by the side of the prosecutrix. Accused No. 2, sitting on the rear seat of the van immediately opened the door and pulled the prosecutrix inside the van. He made her to sit by his side on the rear seat. The door of the van was closed. The ::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 14 prosecutrix cried "Roshan Bhaia, Roshan Bhaia" but of no avail as PW Roshan Lal though witnessed the occurrence did .
not come to her help. The van was driven to Khairi forest i.e. 3 kms. away in the jungle. It was stopped and parked on the road side. Accused No. 1 left that place whereas his of co-accused Balbir Singh had forcibly broken the string of the salwar of the prosecutrix and her salwar pulled down.
Thereafter, the
rt prosecutrix was subjected to sexual
intercourse forcibly. Though, she cried for help, however, none was there to hear her cries. After some time, accused No. 1 came there and the prosecutrix was left near the house of Daulat Ram, Pradhan from where she was picked up and made to board the van.
14. As per the further case of the prosecution, both accused had threatened PW-3, the prosecutrix with dire consequences had she disclosed the incident to anyone.
The prosecutrix returned to home. She did not disclose anything about the occurrence to her mother. She, however, had taken bath and also washed her wearing apparels. On the next date, her mother asked her "Tu dari hui kyon hai". It is, on this she disclosed the incident to her mother. Her mother, PW-5 Sandhya Devi in turn had ::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 15 apprised her husband PW-6 Mahender Singh about the occurrence. PW-6 Mahender Singh also inquired from PW-4 .
Roshan Lal that the accused had met the prosecutrix to board the van forcibly in his presence who answered in affirmative, however, clarified that since the accused and of the prosecutrix were neighbours, therefore, he thought that they are joking. PW-6 Mahender Singh, father of the prosecutrix also went to Tula Ram (PW-10) Pradhan of the rt Gram Panchayat and revealed the incident to him. Said Tula Ram had advised PW-6 Mahender Singh to report the matter to the police. It is, thereafter on 30.7.2004, the prosecutrix accompanied by her parents came to the Police Station and lodged FIR Ext. PW-3/A. Her medical examination was got conducted in the hospital vide MLC Ext. PW-2/A. Both the accused were arrested. As pointed out at the outset, accused No. 2, however, absconded from police custody.
15. The investigation was conducted by PW-11 SI/SHO Anoop Singh, Police Station Pachhad. He has taken into possession the phone. He also prepared the site plan.
The salwar Ext. P-2 and shirt Ext. P-3 worn by the prosecutrix at the time of occurrence were also taken into ::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 16 possession. During the course of investigation, shirt, salwar, underwear and chunni Ext. P-4 to P-7 worn by the .
prosecutrix at the time of her medical examination, were taken into possession by the Medical Officer and handed over to the police in a sealed parcel. Accused No. 1, while of in police custody, allegedly got identified the place from where the prosecutrix was kidnapped and that place also where she was subjected to sexual intercourse.
rt The site plans of those places Ext. PW-11/B and PW-11/C were also prepared. The date of birth certificate of the prosecutrix and school leaving certificate were also obtained. The sealed parcels containing salwar and shirt Ext. P-2 & P-3 were sent to Forensic Science laboratory, Junga.
16. On receipt of the report of FSL, Junga Ext. PW-9/A and on completion of the investigation, Challan was filed against accused No. 1 in the Court. As already pointed out, charges against said accused were framed and he, however, was acquitted of the same, whereas accused No. 2 has been convicted.
17. On behalf of the appellant-State, Mr. D.S.Nainta, learned Addl. AG assisted by Mr. Virender Verma, learned Addl. AG, it was argued that the prosecution has proved its ::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 17 case against accused No. 1 with the help of cogent and reliable evidence and as such the said accused has been .
sought to be convicted. In the connected appeal, it was urged that cogent and reliable evidence available on record leaves no manner of doubt that convict-accused No. 1 had of not only kidnapped the prosecutrix with the aid of accused No. 1 but also subjected her to sexual intercourse without her consent and against her will.
rt The said accused, therefore, is stated to have been rightly convicted and sentenced to undergo rigorous imprisonment.
18. On the other hand, Sh. Vinay Thakur, Advocate, learned counsel representing accused No. 1 in Cr. Appeal No. 370 of 2005 has urged that the ingredients of Section 34 IPC have not at all been proved and as such, it cannot be said that accused No. 2 has subjected the prosecutrix to sexual intercourse forcibly in furtherance of their common intention. Accused No. 1, therefore, is stated to be rightly acquitted of the charge.
19. Sh. Karan Singh Kanwar, Advocate, learned counsel representing the convict-accused No. 2 has pointed out that on the basis of similar set of evidence, accused No. 1 has been acquitted whereas on the same set of evidence, ::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 18 accused No. 2 has been convicted. According to him, such an approach on the part of the learned trial Court is highly .
illegal and unknown in the administration of criminal justice system. It has been pointed out that the prosecutrix and accused No. 2, both were in love with each other. The of prosecutrix accompanied the said accused voluntarily to have a ride in the van. According to Mr. Kanwar, there is no evidence suggesting that she was subjected to sexual rt intercourse forcibly and without her consent, as well as against her will. Therefore, accused No. 2 has also been sought to be acquitted of the charge framed against him.
20. The first and foremost point which arises for determination is as to whether both accused shared common intention to kidnap the prosecutrix for being raped by accused No. 2 which is an essential ingredient to infer the applicability of Section 34 of the IPC. The true concept of Section 34 IPC is that if a criminal act is done by two or more persons in furtherance of common intention, in such a situation, the position in law would be as if each of them has done that act individually. However, the paramount consideration would be the existence of common intention amongst all the participants in a crime. The law is trite that ::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 19 Section 34 of the Code does not constitute a substantive offence and is merely in the nature of a rule of evidence and .
liability is fastened on a person who may have not been directly involved in the commission of the offence on the basis of a pre-arranged plan between that person and the of person who actually committed the offence. Therefore, in order to attract Section 34 of the Code, the prosecution is required to plead and prove firstly that there was common rt intention in the sense of a pre-arranged plan and secondly that the person sought to be held liable with the aid of Section ibid had participated in some manner in the act constituting the offence. There cannot be any direct evidence to prove the common intention. The same can be inferred from the legitimate inferences, surrounding circumstances, act and conduct of the person sharing the common intention of doing an act without actually doing that act.
21. This backdrop takes us to find out from the given facts and circumstances of this case and also the evidence available on record that both the accused had planned to kidnap the prosecutrix so that she is sexually assaulted by accused No. 2 and thereby committed the offence ::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 20 punishable under Section 366-A, 376 and 506 IPC read with Section 34 IPC. The answer to this poser, in all fairness, and .
in the ends of justice would be in affirmative for the reason that accused No. 2 and the prosecutrix are residents of same village i.e. village Ganyar. Accused No. 1 is resident of of Kalaghat. On the date of occurrence, i.e. 28.7.2004 around 11:00 AM, admittedly both accused were present in village Ganyar to which accused No. 2 and the prosecutrix rt belong. Admittedly, accused No. 1 was driving the van whereas accused No. 2 was occupying rear seat. There is again no dispute that the prosecutrix who was learning tailoring work was on her way to attend her class in tailoring centre. When around 11:00 AM she was walking on the road and was little ahead of the house of one Daulat Ram, accused No. 1 admittedly stopped the van by her side and his co-accused occupying the rear seat opened the door of the van and pulled her inside the van. It is again admitted case of the parties that the said accused made her to sit on the rear seat by his side. The van admittedly was driven inside Khairi forest up to a distance of 3 kms. The van was stopped by accused No. 1 on road side in the jungle and ::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 21 himself went away leaving behind accused No. 2 and the prosecutrix alone in the van.
.
22. Now, if coming to the facts not admitted by the accused, no force was used by accused No. 2 to put the prosecutrix inside the van and she according to them of boarded the van voluntarily and to have a pleasure ride therein. As per their explanation in statement under Section 313 Cr.P.C., accused No. 2 and the prosecutrix rt being residents of same village were in love with each other and as there existed a small temple in the jungle and as accused No. 2 and prosecutrix expressed their desire to have darshan in that temple, therefore, the van was driven to forest. The explanation, so forthcoming is not plausible as the evidence as has come on record by way of own testimony of the prosecutrix and also PW-4 Roshan Lal, the prosecutrix was pushed inside the van forcibly by none else but accused No. 2. PW-4 Roshan Lal tells us that accused No. 1 had brought a bag of maize in the van which was unloaded by him in the floor mill of his Uncle Daulat Ram for grinding. He, thereafter, drove the van and stopped it at a place, little ahead of the house of said Sh. Daulat Ram.
Someone opened the door of the van from inside and the ::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 22 prosecutrix boarded the van and the same left the place.
On the next date when the father of the prosecutrix met .
him and inquired as to whether someone had boarded the vehicle, he replied in affirmative and further explained that she was dragged by someone sitting inside the van. Also of that she was not willing to board the van. He, however, did not see accused No. 2 sitting in the van as its door was closed. He rt was cross-examined by learned Public Prosecutor. He admitted that it is accused No. 2 who was the person sitting on the rear seat of the van. Though, it is denied that accused No. 2 dragged the prosecutrix inside the van, however, in the same breath, admitted that she was crying for help saying "Bhaia-Bhaia" (sought help of this witness to save her). He thought that they were joking because accused No. 2 and the prosecutrix were residents of same village. True it is that when further cross-examined on behalf of the accused, he admitted that the prosecutrix and accused No. 2 belong to same caste and are residing in the same locality, however, according to him, they have not seen them together earlier. The person (accused No. 2) occupying the rear seat of the van did not alight therefrom and on opening the door pulled the prosecutrix inside the ::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 23 van. The van was stopped at a distance of 100 meters from the place where he was standing at that time. Therefore, .
the own testimony of the prosecutrix and also PW-4 Roshan Lal, leaves no manner of doubt that the prosecutrix was forcibly made to board the van. The prosecutrix apprized of this incident to her mother PW-5 Sandhya Devi and PW-6 Mahender Singh accordingly. Although, the testimony of PW-5 Sandhya Devi and PW-6 Mahender Singh qua this rt aspect of the prosecution case is hearsay, however, they deposed so on the basis of the information derived from their daughter. The prosecutrix while in the witness box has supported the entire prosecution case. Therefore, irrespective of the evidence as has come on record by way of testimony PW-5 Sandhya Devi and PW-6 Mahender Singh being hearsay, they have also corroborated the statement of the prosecutrix and also that of PW-4 Roshan Lal.
23. The another material witness is Up-pradhan PW-
10 Tula Ram. He has also supported the prosecution case that he was apprized about the manner in which the occurrence took place by the parents of the prosecutrix and as such he advised them to report the matter to the police.
::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 2424. Therefore, it cannot be believed that on account of having acquaintance with accused No. 2, the prosecutrix .
had boarded the van voluntarily or to have a ride with accused persons in the van. She rather was made to board the van forcibly. Both the accused had the knowledge and of intention to kidnap the prosecutrix in the manner as claimed by the prosecution, therefore, Section 34 IPC is fully attracted in the case in hand. However, no findings of rt conviction could have been recorded against them for the commission of offence punishable under Section 366-A of IPC for the reason that as per own case of the prosecution, the prosecutrix being born on 10.3.1986 was 18 years 4 months and 25 days of age on the date of occurrence. A bare perusal of the provisions contained under Section 366- A of the Code reveals that an offence within the meaning of said Section can be said to be committed only when a minor girl under the age of 18 years is induced to accompany the accused to any place intentionally and knowing fully well that she will be forced or seduced to illicit intercourse with another person who in this case was accused No. 2.
Therefore, no case under Section 366-A read with Section 34 IPC is made out against accused No. 1.
::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 2525. Now, If coming to the charge under Section 376 IPC read with Section 34 IPC framed against accused No. 1 .
and under Section 376 IPC against accused No. 2, there is no need to discuss the evidence after the stage of taking the prosecutrix to Khairi jungle and parking of van in the of jungle on road side as well as accused No. 1 going away from that place leaving behind accused No. 2 and the prosecutrix alone in the van. According to accused No. 1, rt he went to meet one Baldev Singh, however, at what place and how far away from that place where he had parked the van in forest and the prosecutrix subjected to sexual intercourse remained unexplained, of course according to the prosecutrix herself, house of Baldev Singh and one temple were 1 k.m. behind from the place of occurrence. It can be gathered from the given facts and circumstances that such act and conduct leaving accused No. 2 with prosecutrix alone in the van no doubt was intentional and deliberate, however, to our mind to give time to his co-
accused to remain in the company of the prosecutrix, thus, it cannot be said that he had also the knowledge of the ravishment of the prosecutrix forcibly by his co-accused.
We are thus in agreement with the findings recorded by ::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 26 learned trial Judge that accused No. 1 had no occasion to assume that accused No. 2 would ravish the prosecutrix .
sexually inside the van. We are also in agreement with the findings recorded by learned trial Judge that when accused No. 1 left that place, accused No. 2 and prosecutrix were of sitting on rear seat and doing nothing and well before his arrival to the spot, the prosecutrix as per her own version had already worn her salwar/clothes.
rt Therefore, on his arrival to the spot also, he had no occasion to come to know that she was assaulted sexually by his co-accused. As per the prosecution case, blood oozed out and fell on the rear seat of van when she was subjected to sexual intercourse.
Had it been so, in that event also, it could have been believed that on seeing the blood stains on the seat, the said accused must have acquired knowledge of ravishment of the prosecutrix by the co-accused. However, during the course of investigation, blood stains could not be detected on the seat. Therefore, merely that accused No. 1 had left accused No. 2 and the prosecutrix alone inside the van is not sufficient to infer that he did so intentionally and deliberately to facilitate the said accused to commit rape with the prosecutrix. True it is that there cannot be direct ::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 27 evidence qua common intention of two or more persons to do an act and meeting of mind as well as planning to do an .
act by such persons has to be inferred from their act and conduct and also the surrounding circumstances. The act of accused No. 1 stopping the van by the side of prosecutrix of and facilitating thereby his co-accused to pull her inside the van leads to the only conclusion that he had the knowledge and intention rt that his co-accused should meet the prosecutrix. However, from his conduct and surrounding circumstances, it cannot be gathered that he had knowledge also that she will be ravished sexually by him.
Therefore, the findings of his acquittal in the judgment under challenge are legal and valid and hence sustainable.
Consequently, accused No. 1 could have not been convicted and sentenced with the aid of Section 34 of the Code for the commission of an offence punishable under Section 376 IPC.
He, for the reasons hereinabove is rather entitled to benefit of doubt.
26. Above all, as per own testimony of the prosecutrix, she was subjected to sexual intercourse by accused No. 2 when accused No. 1 left the spot. She also tells us that one temple and house of one Baldev was at a ::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 28 distance of 1 km behind the place of occurrence. Therefore, the defence of the accused that he had gone to the house .
of said Baldev appears to be nearer to the factual position.
Accused No. 1, no doubt, assisted his co-accused in taking the prosecutrix to the place of occurrence inside the jungle, of however, only under such knowledge and intention to facilitate the meeting of his co-accused with the prosecutrix.
The offence, therefore, he committed should have fallen rt within the ambit of Section 366-A of the IPC had the prosecutrix been below 18 years of age. As already discussed, she however, was above 18 years of age on the date of occurrence and as such in the circumstances discussed hereinabove, no case either under Section 366-A and also under Section 376 IPC is made out against accused No. 1.
27. Now, if coming to the commission of offence under Section 376 IPC by accused No. 2, the own testimony of the prosecutrix, her post incident conduct and movements i.e. coming back to home in a distressed, humiliated and devastated state, taking bath and washing of her clothes worn at the time when subjected to sexual intercourse substantiate the prosecution case that she was ::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 29 subjected to sexual intercourse by the said accused without her consent and against her will because it is on account of .
such ghastly act, she was nervous and sad also as noticed by her mother PW-5 Sandhya Devi and even immediately wanted to get rid of dirt on her person and clothes and as it of is for this reason she immediately had taken bath in the house and also washed her clothes. She raised hue and cries, however, the place of occurrence being forest, rt nobody could hear her cries and came to her rescue. She was kept inside the van by the accused for 2-3 hours and it is thereafter she was dropped at the place from where she was forcibly lifted. Her mother PW-5 Sandhya Devi and PW-
6 Mahender Singh while in the witness-box have deposed that their daughter the prosecutrix informed them that she was subjected to sexual intercourse forcibly by accused No. 2 inside the van. She has been cross-examined, however, in sundry as nothing material lending support to the defence of the accused could be elicited therefrom.
28. True it is that the prosecutrix has admitted qua the existence of house of Baldev and temple at a distance of 1 km. behind the place of occurrence, however, according to her accused No. 2 had gagged her mouth and ::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 30 as a result thereof she could not raise hue and cries. Her testimony that when being put forcibly in the van she had .
shown resistance is supported by the testimony of Roshan Lal (PW-4). She was subjected to sexual intercourse by making her to lay on the seat of the van, the salwar was of removed from her body. She had put underwear also.
Accused No. 2 subjected her to sexual intercourse for 10-15 minutes, thereafter she put her underwear and salwar.
rt According to her they remained at the place of occurrence for 3 hours as accused No. 1 returned after about 3 hours.
Accused No. 2, however, had got down from the van and remained outside for about 2 hours. Where accused No. 1 had gone, she expressed her ignorance, however, according to her, he was not visible to her. When accused No. 1 came back, accused No. 2 left that place and it is after 10 minutes of arrival of accused No. 1 the van moved from that place.
Accused No. 2 met them on the half way and occupied the rear seat of the van with her. The suggestion that her father on coming to know from PW-4 Roshan Lal that she had gone in van with accused No. 2 and did not attend the class on that day, her father got the case registered falsely against them and the suggestions that neither she was ::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 31 dragged inside the van by the accused persons nor her mouth was gagged nor subjected to forcible sexual .
intercourse, were denied being wrong. It is also denied that she had friendly relations with accused and as such he used to meet with her frequently.
of
29. Now, if coming to the medical evidence as has come on record by way of the testimony of PW-2 Dr. rt Monisha Aggarwal, in her opinion, there was nothing to suggest that sexual intercourse was not performed with the prosecutrix. This witness was cross-examined at length to show that there being no mark of struggle, the prosecutrix cannot be said to have sexually assaulted but of no avail because as per the version of this witness, it is not always necessary that in a case of forcible sexual act injuries on external genitalia are bound to be there. The possibility of injury on the face of the assailant and upper portion of body of the victim also depends upon the strength used by the assailant as well as by the victim. According to her, the injuries on knee joints of the legs of the victim could be possible as a result of struggle or her fall. The suggestion that the prosecutrix was habitual to sexual intercourse has been denied being wrong. True it is that during the ::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 32 scientific investigation i.e. analysis of the wearing apparels, vaginal swab etc., blood and semen could not be detected .
on pubic hair of accused No. 2, under wear, salwar, shirt, dupatta, lose pubic hair, vaginal slides and another salwar, shirt of the prosecutrix. However, on the basis thereof, it of cannot be said that the prosecutrix was not assaulted sexually. The semen and blood seem to be not there on these exhibits sent for analysis on account of the fact that rt the prosecutrix had taken bath on the date of occurrence itself and also washed her clothes which she had worn at the time of occurrence. Therefore, the present is a case where the prosecutrix has been subjected to sexual intercourse by accused No. 2 without her consent and against her will. The defence of the accused that accused No. 2 and the prosecutrix had friendly relations or love affair and as such used to meet with each other frequently is nothing but a bundle of lie. They being residents of the same village can be said to have acquaintance with each other but that does not mean that the prosecutrix accompanied the accused voluntarily and she was consenting party to sexual intercourse committed with her.
Had it been so and there been intimacy or love affair ::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 33 between the two, the prosecutrix would have not implicated the accused to keep such relations alive. However, she .
being a co-villager was ill-treated by the accused and as such the registration of the case at her instance is absolutely justified. The evidence, as has come on record of by way of the testimony of DW-1 Shanta Devi and DW-2 Inder Singh that noticing accused No. 2 and prosecutrix in the company with each other, they felt that they are having rt some affair with each other is neither plausible nor reasonable and rather is vague, hence hardly of any help to the defence. Expressing ignorance during the course of cross-examination to the facts that the prosecutrix was kidnapped by the accused and accused No. 2 had subjected her to sexual intercourse inside the van in forest demonstrates that they are liars for the reason that happening of an incident of this nature must have come to the notice of each and every one in the village if not immediately at least after the registration of FIR and arrest of the accused. Therefore, their testimony is not worthy of credence and as such rightly brushed aside by learned trial Court while recording the findings of conviction against accused No. 2.
::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 3430. Much has been said to persuade us to take view .
of the matter that the delay as occurred in the registration of FIR is fatal to the prosecution case. It is argued that the FIR has been registered on 30.7.2004 after due deliberation.
The plea so raised, however, is again without any substance of for the reason that the own testimony of prosecutrix and that of PW-5 Sandhya Devi and PW-6 Mahender Singh rt satisfactorily explain the delay of a day or two as occurred in registering the FIR in the Police Station. It can reasonably be believed that on the day of occurrence i.e. 28.7.2004, the prosecutrix being under trauma and being scared due to such a forcible sexual intercourse committed with her was not expected to have revealed the incident to her parents.
It is, however, her mother who on noticing that the prosecutrix was scared and frightened, inquired into the reasons therefor from her. On enquiry so made by PW-5 Sandhya Devi, the prosecutrix revealed to her the manner in which she was ravished sexually by accused No. 2 on the next day of the occurrence. The mother apprized the father qua the occurrence thereafter. In view of prestige and honour of the prosecutrix and the family involved in a case of this nature, PW-5 Sandhya Devi and PW-6 Mahender ::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 35 Singh were not expected to have rushed immediately to the Police Station. They, however, went to Up-Pradhan of the .
Gram Panchayat, Tula Ram (PW-10) who advised them to report the matter to the police. Therefore, it is in these circumstances that the delay of a day or so, occurred in of reporting the matter to the police which cannot be termed as inordinate or fatal to the prosecution case. Therefore, the plea so raised is also of no help to the case of the rt accused.
31. The charge under Section 366 of IPC also stands proved against accused No. 2 because as noticed hereinabove, he had taken the prosecutrix intentionally to force her to have sexual intercourse with him.
32. As per the version of the prosecutrix, she was threatened by both the accused to do away with her life had she disclosed the incident to anyone else. In the given facts and circumstances, it would not be improper to conclude that the prosecutrix was threatened in this manner and fashion, therefore, the case under Section 506 IPC is not only made out against accused No. 2 but also against accused No. 1.
::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 3633. The remaining prosecution witnesses are police .
officials who have also substantiated the prosecution case because PW-7 HHC Hari Singh has taken the case property duly sealed to Forensic Science Laboratory, Junga and deposited the same there. PW-8 ASI Jeet Ram was MHC of of Police Station, Pachhad at the relevant time and he has supported the prosecution case qua deposit of case rt property by the I.O. with him in the malkhana and its onward transmission to FSL, Junga through PW-7 HHC Hari Singh. PW-9 HHC Hari Krishan had collected the report Ext.
PW-9/A from FSL, Junga and brought the same to the Police Station. They all have not been cross-examined on behalf of the accused persons. PW-11 Anoop Singh is the I.O. He has supported the manner in which he has conducted the investigation and his testimony in cross-examination remained un-shattered. PW-12 Dr. Anuj Kumar had examined the accused and found him capable of performing sexual intercourse. Therefore, the evidence as has come on record by way of testimony of the aforesaid witness also substantiate the prosecution case.
::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 3734. Now, coming to the contention of Mr. Karan Singh Kanwar, Advocate, learned counsel representing the .
convict-appellant in the connected appeal (Cr. Appeal No. 203 of 2013) that on the set of same evidence one accused has been acquitted whereas another convicted, the same in of view of our findings hereinabove is without any substance.
Above all, on re-appraisal of the evidence, we have now held accused No. 1 also guilty of the commission of offence rt punishable under Section 506 IPC.
35. There is also no substance in the arguments addressed on behalf of the convict-appellant that recording of evidence afresh in the case of a proclaimed offender having surrendered at a later stage in the Court is not legally permissible for the reason that the bare perusal of Section 299 of the Code of Criminal Procedure reveals that the evidence recorded can be used against an accused declared as proclaimed offender on his arrest in case the witness ultimately dies or is incapable of giving evidence or his presence cannot be procured without delay, expenses or inconvenience. Therefore, Section 299 of the Cr.P.C. does not bar the prosecution to recall the witnesses for examination at a later stage when the proclaimed offender ::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 38 surrenders and tried, of course, if the witnesses are alive and not incapable of making statement. Since in the case .
in hand, the witnesses were readily available to the prosecution, therefore, have rightly been recalled for examination afresh as well as cross-examined on behalf of of the accused. Otherwise also, we have seen the statements of the witnesses in both the trials recorded on two different occasions during the course of proceedings in both trials rt and did not find any change or deviation in the statements so made by them in both trials. Therefore, on this score also, no prejudice can be said to have been caused to the accused persons.
36. In view of what has been said hereinabove, this appeal is partly allowed. Though no case under Section 366-A and 376 IPC read with Section 34 IPC is made out against accused No. 1, however, he has committed an offence punishable under Section 506 read with Section 34 of the Indian Penal Code. He is accordingly convicted. This appeal is accordingly allowed partly.
37. Connected appeal bearing No. Cr. Appeal 203 of 2013 is, however, without any merit and the same is ::: Downloaded on - 15/04/2017 21:46:09 :::HCHP 39 accordingly dismissed. Consequently the findings of conviction and sentence recorded against convict appellant .
Balbir Singh alias Bittu are affirmed and the appeal is dismissed.
38. List on 12.1.2017 for hearing accused Sudesh of Kumar alias Pinku on the quantum of sentence. Production warrant be issued accordingly.
39. rt Judgment to continue.
(Dharam Chand Chaudhary), Judge.
(Chander Bhusan Barowalia), Judge.
December 16 , 2016.
( )
karan-
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