HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.712 of 1996 Decided on: June 23,2010 State of H.P. …Appellant. VERSUS Rajesh Kumar & Anr. ….Respondents. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge Whether approved for reporting?1 For the Appellant: Mr.Anil Jaswal, Dy AG. For the respondents: Mr.Janesh Gupta, Advocate. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to the judgment dated 14th February, 1996, passed by learned Sessions Judge, Hamirpur, in Sessions Trial No.04 of 1994, thereby acquitting both the respondents / accused persons for the offence under Sections 363, 366, 368 and 376 of the Indian Penal Code. 2. In order to adjudicate the present criminal appeal, it is necessary to give the factual background of the case. The facts, according to Whether the reporters of the local papers maybe allowed to see the judgment? …2… the prosecution story, are that on 17.8.1993, Raseel Singh, father of the prosecutrix / victim (name not narrated) reported to the Police Station, Sujanpur, that his daughter aged about 16 – 17 years studying in DAV College at Sujanpur in 10+1 used to go to the College daily from her house in village Lahar but on 16.8.1993, the prosecutrix did not come back home. Accordingly, the father enquired from fellow students in the village but nothing was known definitely. Thereafter, the father of the prosecutrix visited the Principal of the College during the night and enquired about his daughter and had come to know that his daughter left for her house after the period was over. Thereafter, the father of the prosecutrix, accompanied by Principal, visited the Lecturer of the College at Sujanpur, who in turn accompanied them to the President of the College Committee, who had disclosed that he heard a rumour that one girl with boy cut was taken in a bus by accused Rajesh, along with two boys, round about 5 PM towards Nadaun. On report of the father of the prosecutrix, the case for offences under Sections 363, 366 read with Section 34 IPC was registered against the accused persons. During investigation, it was found that accused Rajesh took the prosecutrix in the house of his aunt (Mausi) at …3… Nangal from Nadaun on 16.8.1993. On 17.8.1993 Vidhi Chand, father of accused Rajesh, after having come to know about the registration of such case, reached in a taxi driven by one Vijay Kumar and accompanied by his relative Vinod Kumar and accused Kamal Kumar at Nangal. After having some consultations, the prosecutrix / victim was brought at Hamipur in the same taxi for the purpose of solemnization of her marriage with accused Rajesh and the victim was made to stay in the house of accused Kamal Dev. After coming to know that the age of the prosecutrix was less than 18 years and her marriage with accused Rajesh cannot be solemnized, as such, the prosecutrix as well as accused Rajesh were sent to their relatives’ house at Nangal in District Bijnaur (Uttar Pradesh). Consequently, on 19.8.1993, the prosecutrix and accused Rajesh were made to board the bus from Hamirpur to Una, Bijnaur, while Vidhi Chand, accused Kamal Dev came back to their houses. The case under Section 368 read with Section 109 IPC was registered against them. In an attempt of search, ultimately on 23.8.1993 the prosecutrix, along with accused Rajesh, was apprehended at Nangal and accused Rajesh was arrested while the prosecutrix, after medical examination, was handed over to her father Raseel Singh. …4… 3. The case was committed for sessions trial and on examination, the learned Sessions Judge discharged Vidhi Chand, Vinod Kumar and Ravinder Kumar, however, has charged Rajesh Kumar for offences under Sections 363, 366 and 376 IPC and accused Kamal Kumar alias Kamal Dev for offence under Section 368 IPC. 4. In order to prove its case, the prosecution has examined as many as 13 witnesses, whereas, the respondents / accused, through their statement under Section 313 Cr.P.C., have denied the charges and prosecution case. 5. PW-1, Victim / prosecutrix, has stated that being a student of Senior Secondary School, Sujanpur, she used to go to school and come back to home in HRTC bus. Accused Rajesh wanted to develop friendship and was approaching time and again to visit her school while waiting for the bus at Bus Stand, Sujanpur accused used to tease her at the bus stop and kept on saying to develop the friendship with him, lest he would lift and take her away (as per the testimony of PW-1 prosecutrix / victim). On refusal of the victim for friendship, she had even warned the accused to leave the prosecutrix and also not to follow her. Otherwise if her parents would come to know that the accused had been following her, studies would …5… be discontinued. On this, accused Rajesh used to tell that he would lock her parents in the room and kill them. However, out of fear, the prosecutrix did not disclose the matter to anyone. She has further stated that accused Rajesh used to board the same bus and he used to follow her for about 8 – 9 kilometers. Accused Rajesh also threatened the prosecutrix in the bus if the prosecutrix / victim would be engaged with some other fellow, he would kill him. 6. According to the prosecutrix, no other student of her class was aware of such aspects. According to PW-1, she took admission in DAV College, Sujanpur in the year 1993 and on 16.8.1993 she was called by the College Principal who told her as to who was teasing her, at that time name of accused Rajesh was disclosed to the Principal and the Principal wanted to check the previous record of the prosecutrix is bad or not and asked the prosecutrix to call her parents. On such enquiry of Principal, she felt humiliated, became restless and depressed and left the College and went to Bus Stand for going to her house. Thereafter, the prosecutrix thought to ask from accused Rajesh as to why he was teasing her and she on her own went towards his house but the accused met her on the way near his house. The prosecutrix enquired from …6… him as to why he had been teasing her throughout and also the College Principal was asking about it. On this accused Rajesh told her that he was mentally upset and she should accompany him to the house of the accused. The prosecutrix on her own went to the house of the accused and was offered ‘Illaichi’. The prosecutrix was not feeling well and became almost dumb. Accused Rajesh took the prosecutrix to the road near the Hospital from where both of them boarded the bus from Nadaun and on way accused Rajesh told the prosecutrix that he would marry her and also told her not to disclose this matter to anyone lest he would kill her. The prosecutrix was taken by the accused to Nangal in a bus from Nadaun where she stayed for a night in the house of maternal aunt (Mausi) of accused Rajesh. Next day, father of accused Rajesh, namely, Vidhi Chand, came in the morning, along with two brothers of Rajesh and brother-in-law of Rajesh, in a taxi and on some consultation amongst themselves, the prosecutrix was brought to Hamirpur in the house of Kamal Kumar where the prosecutrix stayed for a night and next day at about 4 or 5 PM. The prosecutrix was taken to the Bus Stand by accused Rajesh and another accused Kamal Kumar. From there the prosecutrix was taken to Bhota. PW-1 has further stated that only accused Rajesh accompanied …7… her in that bus, from Bhota the prosecutrix was taken to Nangal and from there to Chandigarh where they stayed for a night at Bus Stand, Chandigarh. The next morning, the prosecutrix was taken to Saharanpur and she also took a round at Sarahanpur market and in the evening she was taken to some other place and thereafter she was taken to village Dandera in Uttar Pradesh and spent a night at Railway station Dandera. Next day, the prosecutrix was taken to Sihora in District Bijnaur and thereafter the prosecutrix / victim was taken to village Koori and stayed in the house of Salil Khan, a friend of accused Rajesh. Salil Khan was putting up with his parents and children. The parents of Salil Khan asked the prosecutrix why she accompanied Rajesh, on that she told them that accused Rajesh enticed her away and wanted to marry her forcibly. She has further stated that accused Rajesh had demanded money from the parents of Salil Khan. However, they did not allow staying with them. Thereafter, accused Rajesh brought the prosecutrix to Nangal in the night and wanted to go to the house of his Mausi of accused. However, the house of Mausi could not be located, as such, the prosecutrix was taken by the accused through a small path and next morning the prosecutrix was taken to the house of Mausi of the accused. From …8… there, both of them went to the Bus Stand and thereafter in the morning accused took the prosecutrix to the house of his Mausi but left the prosecutrix on the way at Nangal. He returned after some time. She has further stated that when they were going to Bus Stand, Nangal, Police came and apprehended them. Thereafter, the prosecutrix was taken to Police Station, Sujanpur along with accused Rajesh. The prosecutrix has further stated that her date of birth is 15.9.1976, as per matriculation certificate. 7. In her cross examination, PW-1, has stated that the police recorded her statement twice but she did not remember the dates. She took ‘illaichi’ on being offered by the accused and has also stated that when she was going with accused Rajesh in Jaryal Bus from Sujanpur to Nadaun, lot of passengers were present in the bus and she was standing in the bus along with accused and ultimately a seat in the rear portion of the bus was found vacant which was occupied by her. As per the testimony of PW-1, in her cross examination, the prosecutrix took her separate ticket from Sujanpur to Nadaun and accused took his separate ticket and the prosecutrix did not complain to anyone about the enticing away by the accused. PW- 1 has further stated that she got much relief by …9… from the affect of the ‘illaichi’ after reaching Nadaun and voluntarily disclosed on record that she did not disclose to anyone on her being enticed away as the accused was threatening her. In her cross examination, PW-1 has stated that she has admitted that rape was committed with her at a distance of about 40 feet away from the bus stand. 8. PW-2, Dr.Sunita Galoda, Medical Officer, has stated that on 23.8.1992, at about 7 PM, she had medically examined the prosecutrix and on the medical examination, PW-2 did not find any mark of injury over her body and has opined that red bruise 2.0 x 1.0 cm present over fourechetta which was tender on touch and it was covered with discharge. The hymen was intact (not torn). Vagina admitted index finger with difficulty. The examination was found tender (painful). The vaginal smears were also taken from posterior fornix which were sealed and handed over to the police for further examination. Prima facie, the possibility of sexual intercourse could not be ruled out. In the opinion of PW-2, the prosecutrix had undergone sexual intercourse. PW-2 has further stated that before examination of PW-1 she had taken consent of her father thinking that she is minor and PW-2 has further opined that in case of struggle in sexual …10… assault, the injury may appear on the prosecutrix or the assailant or on the both. 9. PW-3, Rasil Singh, the father of the victim / prosecutrix, has stated that the date of birth of the prosecutrix is 15.9.1976. PW-3 retired from Army and the prosecutrix was studying at the place of his posting. The prosecutrix was admitted in Senior Secondary School, Sujanpur and she was coming and going by bus to School. According to PW-3, the prosecutrix failed in Science in +1 and she was re-admitted in DAV Girls College, Sujanpur in the year 1993 and on 16.8.1993 the prosecutrix left the house for College at about 8.30 AM but did not return in the evening. PW-3 has further stated that enquiry was made from the College mates about the prosecutrix and thereafter the enquired from the Principal of the College, who informed that the prosecutrix had left the school for her home. However, at the request of PW-3, he was taken to the Member of the Managing Committee, who told that he heard a rumour in the bazzar from the boys that a bob-cut girl was taken by two persons in Jaryal Bus towards Nadaun and thereafter PW-3 informed the police and F.I.R. Ext.PD was registered. PW-3, in his cross examination, has stated that the date of birth of the prosecutrix was got notified in the Unit. According to PW-3, he accompanied SHO Puran …11… Chand, Head Constable Satish Kumar and two other Constables in a taxi, driven by Vijay Kumar and reached at Puri at about 12 noon on 22.8.1993. Sujanpur police took assistance from Sihora Police. PW-3, however, has denied that he is not aware as to whether his daughter (the prosecutrix) had voluntarily accompanied the accused but on being asked she told him that she was taken forcibly and against her wishes. 10. PW-4, Virender Singh, has stated that he was waiting for a bus on 11.8.1993 in the afternoon at Bus Stand, Sujanpur and then Rajesh alias Billa was threatening and teasing the victim / prosecutrix and PW-4 prevented accused Rajesh from teasing the prosecutrix. In cross examination, PW- 4 has stated that on 11.8.1993, 5 – 7 passengers were present at the Bus Stand, no other person came to help the victim / prosecutrix when she was objecting accused Rajesh from teasing her. 11. PW-5, Dinesh Kumar, has stated that he joined the Police on 23.8.1993, during the investigation of the case and had seen the Salwar Ext.P-1 produced by the victim and had taken into possession the same vide memo Ext.PA. 12. PW-6, Ranjit Singh, Pradhan of Gram Panchayat, Sohal Banehar, has stated that when he had gone to Sujanpur for his personal work and was …12… waiting for his bus at about 2 ½ / 3 PM. He observed that one boy named Billa was forcing a girl to take her and marry with him. On intervention of PW-6, accused Rajesh left the place. In cross examination PW-6 has stated that when he observed the above incidence, at that that time 100 or 150 persons were there at the bus stand. 13. PW-7, Dalip Singh, Secretary, Gram Panchayat, Muthan Block Baijnath, District Kangra, has stated that he had issued the certificate Ext.PF, showing the birth entry of the victim / prosecutrix in Panchayat Register. 14. PW-8, Mahant Ram, LHC No.164, had tendered in evidence his affidavit Ext.PG. in support of the prosecution, however, nothing substantial could be derived from his testimony. 15. PW-9, Head Constable Satish Kumar and PW-10 ASI Kishan Dev, in usual discharge of their duties, have tried to support the prosecution case. 16. PW-11, Surjit Singh, Principal DAV College, Sujanpur, who has supported the prosecution case, has stated that he called the victim / prosecutrix on 16.8.1993 and had inquired from her about her problem, she replied that she was being teased by a boy nick-named as Billa. PW-11 told the victim to call her parents so that they could be apprised of …13… the matter. Thereafter, the victim / prosecutrix attended the class, the college used to be over at 1 PM and on that day it was also closed at 1 PM as usual. PW-11 has further stated that on the same night the father of the prosecutrix came to him and enquired about his daughter and complained that his daughter did not reach the house, then PW-11 accompanied the father of the prosecutrix to Sujanpur and went to the Vice President, DAV Managing Committee, Sujanpur who told that the prosecutrix was taken away and accordingly information was given to the police. However, nothing substantial could be derived from the testimony of PW-11. 17. PW-12, S.I. Puran Chand, while supporting the case of the prosecution, has stated that on 17.8.1993 at the instance of Rasil Singh, the father of the prosecutrix, F.I.R. Ext.PD was lodged and investigation was started on 19.8.1993 and according to PW-12, on 23.8.1993 at about 9 AM the prosecutrix met the investigating party and accordingly accused Rajesh was arrested and at that time father of the prosecutrix / victim was with the police party. The prosecutrix as well as the accused were medically examined and in cross examination of PW-12 the victim / prosecutrix was …14… raped at about 40 feet away from the outer boundary of the bus stand, Nangal. 18. PW-13, Digvijay Singh, Medical Officer, had examined accused Rajesh Kumar and on examination, no tear of cloth or blood stains or any kind of stains on his wearing apparels or any injury or any nail mark was noticed on his body. However, accused Rajesh was found to be major and was fit for sexual interaction. 19. Now, in order to scrutinize the testimony of the prosecution witnesses, to bring the respondent / accused within the purview of the offence alleged against them, we notice from the record that as per testimony of PW-1, her date of birth was 15.9.1976, which was corroborated by the testimony of PW-3 Rasil Singh, the father of the prosecutrix / victim. Taking the date of birth of the prosecutrix as 15.9.1976, the age of the victim / prosecutrix, at the time of occurrence / incident on 16.8.1993, was one month less to 17 years and in order to bring the accused Rajesh within the purview of offence under Section 376 IPC, indisputably the victim / prosecutrix was in a position to go for sexual interaction or any sexual assault by the accused by the accused cannot be covered within the provisions of Section 376 IPC. However, the prosecutrix is less than 17 years, …15… therefore, we have to examine very carefully that how accompanying the victim / prosecutrix at such age, act of accused would tantamount taking her or enticing her from lawful guardian within the meaning of Section 361 whether accompany the victim / prosecutrix with accused in reference to the prosecution case would tantamount to kidnapping within the provisions of Section 366 of the Indian Penal Code and her accompany with accused from 16.8.1993 to 23.8.1993 would tantamount to kidnapping, abduction or enticing her and compel her to marry the accused within the provision of Section 366 IPC. For this aspect, the relevant ingredients of Sections of 361, 366 and 376 are being reproduced below:- Section 361: 1. Taking or enticing away a minor or a person of unsound mind; 2. Such minor must be under sixteen years of age, if a male, or under eighteen years of age, if a female; 3. The taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind; and 4. Such taking or enticing must be without the consent of such guardian. …16… The Explanation to Section 361 provides that the words ‘lawful guardian’ in the said section includes any person lawfully entrusted with the care or custody of such minor or other person. The word ‘take’ means to cause to go, to escort or to get into possession. It implies want of wish and absence of desire of the person taken. There is, however, a distinction between taking and allowing a minor to accompany a person. The word ‘entices’ involves an idea of inducement or allurement by exciting hope or desire in the other. So far Section 366 IPC is concerned, its essential ingredients are:- (i) Kidnapping or abducting any woman; (ii) Such kidnapping or abducting must be (a) with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will; (b) in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. The second part of the section requires two things:- (1) By criminal intimidation or abuse of authority or by compulsion …17… inducing any woman to go from any place; and (2) Such going must be with intent that she may be, or with knowledge that it is likely that she will be forced or seduced to illicit intercourse, with some person. The word ‘woman’ has been defined in Section 10. It also includes a minor female; The essential ingredients of Section 376 IPC are:- (1) Sexual intercourse by a man with a woman. (2) The sexual intercourse must be under circumstances falling under any of the six clauses in the section. 20. Mr.Anil Jaswal, learned Deputy Advocate General, appearing on behalf of the appellant / State, has endeavoured to say that the learned Sessions Judge has failed to appreciate that the prosecutrix / victim (PW-1) has time and again been refusing to develop friendship with accused Rajesh and on several occasions had refused to go with him and was not ready to marry him, as has been observed by the prosecution witnesses i.e. PW-4 and PW-6. However, he has fairly indicated that the victim / prosecutrix (PW-1) has not divulged the aspect of her being taken by the alleged accused …18… Rajesh to any person in the residential locality or in the College or in the bus to any passenger or subsequently to anybody, including her father. However, according to Mr.Jaswal, learned Deputy Advocate General, on the fateful day in depression and in restless condition, she thought to go accused’s house to ascertain as to why on his teasing, such inquiry has been made by the Principal of the College, humiliating her as this aspect of teasing by accused was not known to anybody and such going by the victim / prosecutrix on her own to the place of accused will not tantamount to going on her own sweet will. According to Mr.Jaswal, learned Deputy Advocate General, the victim / prosecutrix was not in her stable mental state of applying her mind freely and wisely to restrain herself for coming out of humiliation, therefore, the approaching of victim / prosecutrix on 16.8.1993 to accused’s place should not be treated that she had gone to accused on her free and sweet will. 21. Mr.Jaswal, learned Deputy Advocate General, for the State has submitted that merely accompanying PW-1 (victim / prosecutrix) with accused Rajesh unwillingly would tantamount to not accompanying at her sweet and free will, In the facts and circumstances and on inquiry of the …19… principal of the college, victim / prosecutrix had become perturbed, restless and depressed, in that state of mind, taking decision or choosing a course to go to the place of accused to apprise him about her anxiety and thereafter being taken by the accused Rajesh, should not be treated as if the victim / prosecutrix has accompanied the accused at her own choice, more so, when undisputedly she was minor. As such, the provisions and ingredients of Sections 361, 363 and 366 of IPC shall be effective. Looking from that point of view, the conduct and act of victim / prosecutrix should be treated as secondary and her relentless and unwillingness under the prevailing circumstances in such state of mind under which she became indecisive and was not able to apply her discretion shall be material and it should be taken