IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 105 of 2005. Date of Decision: 05.6.2008 ____________________________________________________________ Charan Dass Appellant. Versus State of Himachal Pradesh Respondent. Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Sh. Baldev Singh, Advocate. For the respondent : Sh. P.K. Sharma, Addl. Advocate General. _________________________________________________________ Surjit Singh, J. (oral). Appellant Charan Dass has appealed against the judgment of the Sessions Court whereby he has been convicted of the following offences and awarded punishment as mentioned against each offence: Sl.No. Offence. Sentence 1. Under Section 363 IPC Simple imprisonment of five years and fine of Rs. five thousand. In default of payment of fine the convict shall further undergo simple imprisonment of six months. 2. Under Section 366 IPC Simple imprisonment of five years and fine of Rs. five thousands. In default of payment of fine the convict shall further undergo simple imprisonment of six months. 3. Under Section 376 Rigorous imprisonment of ten years and five of Rs.20,000/- (Rs. twenty thousands only) In default of payment of fine the convict Whether reporters of the Local papers are allowed to see the judgment? Yes. - 2 - IPC shall undergo rigorous imprisonment of one year. 4. Under Section 342 IPC Simple imprisonment of one year. 5. Under Section 506-A IPC. Simple imprisonment of two years. 6. Under Section 506-B IPC. Simple imprisonment of five years. His contention is that the evidence on record does not prove the charge against him and so he is entitled to acquittal. Case of the prosecution, as per evidence on record may be stated thus. Balak Ram (PW2) resided in village Jagli, Tehsil Nalagarh along with his family members. Members of his family comprised of his wife, one son and three daughters. His eldest daughter named Devki Devi, then aged about 15 years, used to remain sick. The people of the area thought that she was under the spell of some evil spirit. Balak Ram (PW2) took her (his daughter Devki Devi), to various holy and spiritual men but she could not be exorcised. In the last week of May, 2001, appellant posing himself to be an exorciser/holy man, visited the village of PW2 Balak Ram. A man by the name of Mani Ram, who is also resident of village Jagli, took the appellant to his house for treating his son, who too was suspected to be under the spell of some evil spirit. PW2 Balak Ram also went there and asked the appellant if he could provide any treatment for his daughter Devki Devi. Appellant told him that he would be visiting his place and see the condition of his daughter. At the same time, he told that his afore- said daughter was under the spell of some evil spirit. On 28th May, 2001, appellant visited the house of Balak Ram (PW2) and told him that a he-goat was required to be offered to Mahu Nag in Mandi - 3 - District for getting rid of the evil spirit which has captivated his daughter. Balak Ram (PW2) purchased a he-goat and offered to accompany the appellant to the Temple of Mahu Nag. Appellant, however, told him that he was not free from sins and the deity of Mahu Nag was not likely to accept his offer and so he would take his younger daughter, i.e, the prosecutrix, then aged 13 years with him and that he could also send his son Hem Raj then aged about eleven years with his daughter. Balak Ram did not suspect the appellant and sent the prosecutrix and his son Hem Raj and nephew Mast Ram, also a minor boy, with the appellant. On the way, the appellant asked the two boys to go back and took the prosecutrix with him. He went to the house of his sister at Karsog, a sub-divisional headquarter of Mandi District. He introduced the prosecutrix as his god daughter. In the course of the night, he committed rape on the prosecutrix. He had been taking the prosecutrix to various places and having sexual inter- course with her. Three-four days thereafter, he went to Pandoh and took on rent a room from Devi Singh (PW3) and started living there with the prosecutrix. There also, he had been having sexual intercourse with her. Balak Ram (PW2) waited for the return of the appellant and his daughter for about eight-ten days. When neither the appellant nor his daughter returned, he went to the Police Station on 7-6-2001 and lodged F.I.R. Exhibit PW2/A. On 1-8-2001, the prosecutrix was recovered from the accommodation taken on rent by the appellant at Pandoh. Appellant was also there at that time. He was taken into custody. Police seized from the premises of the appellant a piece of cloth which he had been using to clean the private part of the - 4 - prosecutrix, after committing sexual inter-course. Clothes of the prosecutrix and the appellant were also taken into possession. Prosecutrix was got medically examined. The Doctor found that she was used to sexual inter-course. The Doctor also opined that the breasts of the prosecutrix were not developed and even pubic hair had not grown. Labia minora and Labia majora were also not well developed. All these things indicated that the prosecutrix was minor. To bring the charge home to the appellant, prosecution relied upon the testimony of the prosecutrix, who appeared as PW1, her father Balak Ram who appeared as PW2, the landlord of the appellant at Pandoh Devi Singh (PW3), Mast Ram, a cousin of the prosecutrix (PW4) who along-with Hem Raj, a brother of the prosecutrix accompanied prosecutrix and the appellant to some distance, when the appellant left PW2 Balak Ram’s house with a he- goat. Trial Court believed the testimony of the prosecutrix, her father PW2 Balak Ram, her cousin PW4 Mast Ram and the appellant’s landlord PW3 Devi Singh and convicted and sentenced him, as aforesaid. We have gone through the record and heard learned counsel for the appellant as also learned Additional Advocate General. The prosecutrix testified that the appellant visited her father’s place to help her Devki Devi get rid of evil spirit and that on being advised by the appellant, his father brought a he-gat to be offered to Mahu Nag deity in Mandi District and that thereafter, on the asking of the appellant, his father sent her, her brother Hem Raj and cousin - 5 - Mast Ram (PW4) with the appellant. She stated that on the way, the appellant asked his brother PW2 and cousin Mast Ram to return as he was short of money and that he took her to Karsog to the house of his sister and thereafter, he slept with her for the night and committed rape on her. She also testified that from there, she was taken to different places and ultimately, she was taken to rented accommodation at Pandoh, where she was kept for about two months and during this entire period, the appellant had been having sexual inter-course with her. There is no infirmity or inconsistency in the testimony of the prosecutrix. Also the prosecutrix or her father PW2 Balak Ram does not have any enmity with the appellant or any other motive to falsely implicate him. The suggestions that were put to the prosecutrix in the cross-examination, on behalf of the appellant, were to the effect that she had falsely implicated the appellant at the instance of PW3 Devi Singh and two other persons named Sardaru and Vinod. The plea as suggested to the prosecutrix that she had falsely named the appellant as accused at the instance of above named three persons is highly improbable and un-reasonable. The reason is that no minor girl and parent of a minor girl would falsely accuse a man of charge of rape and that too at the instance of other persons, because the charge of rape brings with it social stigma not only to the prosecutrix but also her parents. The testimony of the prosecutrix is corroborated by her cousin Mast Ram (PW4) and her father Balak Ram (PW2). Her testimony is also corroborated by Devi Singh (PW3) who testified in no uncertain terms that the prosecutrix was recovered by the Police from the accommodation which the appellant had rented from him and that - 6 - at the time of the recovery of the prosecutrix, the appellant was also there. The fact that the prosecutrix was only thirteen years of age, is not only testified by the prosecutrix and her father but is also proved by the certificate of birth Exhibit PW5/A and also by the fact of non- appearance of breasts axillary hair and labia majora and labia minora being undeveloped as testified by PW9 Dr. Anita Sood, who conducted the medical examination of the prosecutrix. Report of the Chemical Examiner also corroborates the prosecution version, because stains of human blood and semen were found on one or the other wearing apparels of both the prosecutrix and the appellant. From the above discussion, it is clear that the appeal is without merit. The same is therefore dismissed. (Surjit Singh) Judge. (Surinder Singh) Judge. June 5, 2008. (bm)