IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 217 of 1999 Date of decision: 22.07.2010 _________________________________________________________________ The State of H.P. .....Appellant. Versus Gurdev Singh & Others. .....Respondents. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? Yes. _________________________________________________________________ For the appellant: Mr. Rajinder Dogra, Additional Advocate General with Mr. Anil Jaswal, Deputy Advocate General. For the respondents: Mr. Sandeep Chauhan and Mr. Hoshiar Kaushal, Advocates, for respondents No. 1, 3 and 6. Mr. Ashwani K. Gupta, Advocate, for respondents No. 2 & 5. Mr. Vikrant Chandel, Advocate vice Mr. R.K. Gautam, Sr. Advocate, for respondent No. 4. Mr. Vinay Thakur, Advocate, for respondent No. 7. R.B. Misra, J (Oral). The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment and order dated 15.02.1999, passed by the learned Sessions Judge, Sirmaur at Nahan, District Sirmaur, in Sessions Trial No. 56- ST/7 of 1997, acquitting the accused persons for the offences under 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... Sections 363 and 376 of the Indian Penal Code. 2. According to prosecution, prosecutrix, PW-4 (name withheld), used to reside with her parents, brothers and sisters at village Bhungarni. On 14.04.1996, at about 8 P.M. when parents of the prosecutrix were away, leaving alone the prosecutrix in her home, the prosecutrix was called out from her home by accused Harjit Kaur, known to the prosecutrix and friendly with her, who asked the prosecutrix to accompany her to the police station. The elder sister of the prosecutrix (Manjeet Kaur) had declined the prosecutrix to accompany Harjit Kaur, however, the prosecutrix followed accused Harjit Kaur. Accused Bobby Singh was present at a nearby place on a scooter, who took the prosecutrix and Harjit Kaur to a nearby jungle, where the prosecutrix was sexually assaulted by accused Bobby Singh. Thereafter, a truck driven by accused Shobha Ram was brought wherein the accused Maya Ram was employed as Munshi. Accused Gurdev Singh was also sitting in the truck. Accused Bobby Singh asked the occupants of the truck to take the prosecutrix and Harjit Kaur to Police Station. On this, the prosecutrix and Harjit Kaur boarded the said truck. After some time, Harjit Kaur alighted the truck and accused Maya Ram and Shobha Ram also left the truck on the pretext of going to take water. The prosecutrix remained alone in the cabin of the truck with driver, Gurdev Singh (accused) where she was sexually assaulted by accused Gurdev Singh. The prosecutrix requested Harjit Kaur and others to alight her from the truck, but the prosecutrix was allowed to alight from the truck after a considerable distance. The prosecutrix alongwith Harjit Kaur took lift in some other truck and came back towards Paonta Sahib. At Paonta Sahib, ...3... they were detained by police officials, who took them to Police Station and they were released by the police on the following day and the prosecutrix came back to her house at about 2 P.M. on 15.04.1996. 3. The prosecutrix kept on waiting for her parents and on their return after four days, the prosecutrix narrated the whole story to her father, Gian Singh (PW-3). On 19.04.1996, at about 4:30 P.M., PW-3 lodged the FIR, Ex. P-7, at Police Station, Paonta Sahib, against the accused persons. Truck No. HP-17-4735 was seized and ASI, Sucha Nand (PW-8) investigated the case and after completion of investigation accused-respondents were charged for offences under Sections 366 and 376 of the Indian Penal Code. 4. Prosecution in order to prove its case, examined as many as eight witnesses, whereas, the accused through their statements under Section 313 Cr.P.C. denied the prosecution case. 5. On close scrutiny of the prosecution case and the material on record, we note that no identification parade was conducted in respect of accused-respondents Gurdev Singh and Bobby Singh, as such, the testimony of the prosecutrix that she was sexually assaulted by accused-respondents Gurdev Singh and Bobby Singh in the truck and jungle becomes doubtful, as the prosecutrix was not acquainted with accused-respondents Gurdev Singh and Bobby Singh. The incident took place on 14.04.1996, whereas, the FIR was lodged on 19.04.1996, as such, there is inordinate delay in lodging the FIR, which was not properly explained by the prosecution. 6. PW-1 Dr. Sanjeev Sehgal, has examined accused- respondent Jiya Lal and found him capable of sexual intercourse. ...4... PW-2 Dr. (Mrs.) Amardeep Kaur, has examined the prosecutrix, however, she did not notice any mark of injury on the person of the prosecutrix. PW-2 has opined that the sexual intercourse might have taken place about 2 or 3 days before or 24 hours before the medical examination. On the question of inordinate delay in lodging the F.I.R, which makes the prosecution case fatal, Mr. Rajinder Dogra, learned Additional Advocate General, has relied on the following judgments e.g, Rabindra Mahto vs. State of Jharkhand, 2006 (54) ACC 543 (SC), Ravi Kumar vs. State of Punjab, 2005 (2) SCJ 505, State of H.P. vs. Shree Kant Shekari, (2004) 8 SCC 153, Munshi Prasad vs. State of Bihar, 2002(1) JIC 186 (SC), Ravinder Kumar vs. State of Punjab, 2001 (2) JIC 981 (SC), Sheo Ram vs. State of U.P., 2001 (1988) 1 SC 149 and State of Karnataka vs. Moin Patel, AIR 1996 SC 3041, where is has been held that if causes are not attributable to any effort to concoct a version and the delay is satisfactorily explained by prosecution, no consequence shall be attached to mere delay in lodging the FIR and the delay would not adversely affect the case of the prosecution. Delay caused in sending the copy of FIR to Magistrate would also be immaterial if the prosecution has been able to prove its case by its reliable evidence. 7. PW-3 Gian Singh, the father of the prosecutrix, has stated that he had gone to Solan alongwith his wife and the prosecutrix and other children were left at the home. PW-3 came to his home after five days then an another daughter of PW-3, Manjit Kaur, informed him that one male person, in police uniform, and one women had taken his daughter on the pretext that she was called at Singhpura, Police Post. Manjit Kaur was also asked to accompany ...5... them, but she declined and only the prosecutrix had gone with them. PW-3 has stated in cross-examination that he was married in the year 1962 for the first time, whereas, he was again married with the mother of the prosecutrix second time in the year 1968. PW-4 father stated that he is not able to indicate the birth of his elder daughter and the prosecutrix, as he had married the prosecutrix in the year 1997 and he could not say that the prosecutrix was more than 18 years of age at the time of her marriage. According to PW-3 three children were born from his first wife and three children from his second wife and his first child was born after 1½ years of his marriage, which took place in the year 1978. 8. PW-4, the victim-prosecutrix, in support of the prosecution case has stated that she was taken by accused- respondent Harjit Kaur on the scooter of accused Bobby Singh on the pretext that he (accused Bobby Singh) shall take them to the Police Station, but she was taken to a jungle area, wherein she was sexually assaulted by accused Bobby Singh. Thereafter, a truck driven by accused-respondent Sobha Ram was brought and accused Maya Ram was munshi in that truck, whereas, accused Gurdev was also present in thes truck. Accused Bobby Singh asked the occupants of the truck to take the prosecutrix and Harjit Kaur to Police Station in the truck and on this the prosecutrix and accused Harjit Kaur boarded the truck. After some time, Harjit Kaur went out of the truck and accused Maya Ram and Sobha Ram also escaped from the truck, on the pretext of taking water. PW-4 (prosecutrix) was left alone with accused Gurdev Singh and at that time she was again sexually assaulted by accused Gurdev Singh. The prosecutrix, PW-4, asked ...6... accused Harjit Kaur and others to alight her from the truck, but they alighted her and accused Harjit Kaur at a considerable distance. Therefrom they took lift in some other truck going to Paonta Sahib and came to Paonta Sahib, where they were taken in custody by the police officials, who were patrolling there. She was kept in police custody and was released in the next morning. PW-4 in her cross- examination has stated that she did not tell the President of Haripur Panchayat about her having been sexually assaulted. She has also indicated in her cross-examination that she is now (at the time of examination as PW-4) 17 or 18 years of age. She has stated that the name of Bobby Singh was disclosed to her by accused Harjit Kaur, who was addressing him (accused Bobby Singh) as ‘Bobby’. She has further stated that when the truck stopped at Gondpur barrier, she did not report to anybody there, because Bobby Singh and Harjit Kaur were telling her that they were being taken to Police Station. 9. PW-5 Dalip Singh Saini, Headmaster, Government Primary School Nihalgarh, brought a certificate, Ex. P-9, indicating the date of birth of the prosecutrix is 06.04.1984. 10. PW-6, Smt. Manjeet Kaur, the elder sister of the prosecutrix, while supporting the prosecution case, has stated that on 14.04.1996, when their parents had gone away, accused Harjit Kaur came to their house and asked her and the prosecutrix to accompany her to Singhpura Police Station, but she declined. The prosecutrix went with accused Harjit Kaur on the scooter of accused Bobby Singh. In her cross-examination, PW-6 has stated that it is correct that accused Harjit Kaur was friendly with her sister (the prosecutrix) and he used to visit their house and the prosecutrix also ...7... used to go with accused Harjit Kaur in past. PW-6 has also indicated that she did not try to make search of the prosecutrix and had not reported to any one about the sexual assault on the prosecutrix, till the return of her parents. PW-6 has also stated that her uncles are also residing in the same village, but, they have strained relation with him. 11. PW-7 Shri Satpal Singh, posted as Gram Panchayat and Vikas Adhikari, Shivpur, brought a certificate, Ex. P-10, according to which, the prosecutrix was born on 06.04.1984. However, in his cross- examination he has stated that he has only brought the Panchayat Register from the Panchayat and could not bring the Birth and Death Register. PW-7 has further stated in his cross-examination that Ex. P-10 was prepared by him on the basis of Panchayat Register, the Pariwar Register was prepared in the year 1990 on the basis of the previous Pariwar Register and in the earlier register, the prosecutrix, daughter of Gian Singh, is shown to have born on 14.01.1972 whereas there is no such entry in the register, produced by PW-7, regarding the prosecutrix. PW-7 has further stated in his cross-examination that in the Pariwar Register prepared after 1990, the date of birth of the prosecutrix has been altered by overwriting. Two different versions are coming in respect of age of the victim/prosecutrix and different age is being reflected interpolated official documents. In such situation, the case of the prosecution becomes doubtful and the benefit should go to the accused. 12. We have also seen the original register, presented before us, we have noticed that the name of the elder sister of the prosecutrix is altered and her date of birth has also been altered. ...8... Apparently the date of birth of the elder sister of the prosecutrix was 1972 which was overwritten as 1984 and the date of birth of the prosecutrix was interpolated and overwritten as 1982. The original register was not produced by PW-7. No ossification test was conducted on the prosecutrix to ascertain her age, however, testimony of PW-7 indicates that the prosecutrix may be of 18 years of age as the entry of the register produced in the Court also created doubt. 13. In case of sexual assault on the girl when the girl is in her youth and if is in the stage of applying her discretion, however had accompanied at her sweet will any person, being as an accused, and remained with such person for some time without making any hue and cry or without indicating or informing anyone that she is being taken forcibly by that person against her will and despite getting opportunities, such girl has not endevoured to escape from the company of such accused and during such companionship or duration, if such girl was sexually assaulted then such girl can not be said generally that she was not willing or has not consented for the physical interaction. 14. The testimony of the prosecutrix itself reveals that she did not divulge to anybody while she was taken by accused Harjit Kaur, who was friendly with the prosecutrix and she used to visit her house. In these circumstances, the prosecutrix was certainly at least 16 to 18 years of age and she had accompanied the accused on her own sweet will. The prosecutrix never raised any alarm or made hue and cry while she was being taken forcibly by the accused-respondents and was sexually assaulted by the accused-respondent Bobby Singh and Gurdev Singh. It appears that when the prosecutrix was kept in the ...9... police custody by the police, in night hours, she may have falsely narrated this story to save her honour. The prosecutrix did not divulge that she was forcibly against her will and was sexually assaulted by the accused-respondents against her will. Even her sister waited for a longer period and did not divulge to any body in the village that her sister was taken forcibly by the accused- respondents and was sexually assaulted by the accused-respondents. There is also inordinate delay in lodging the FIR, which was not properly explained by the prosecution. 15. In the facts and circumstances, we find that the statement of prosecutrix is not reliable. On the basis of the prosecution witnesses and the material on record, the learned Sessions judge has rightly arrived at the conclusion that the prosecutrix was about 18 years of age and she has accompanied the accused-respondents on her own sweet will without any pressure, inducement or coercion. 16. In view of the facts and circumstance, the prosecution has failed to bring home the guilt against the accused-respondents and the prosecution has failed to prove its case beyond reasonable doubt against the accused-respondents. There is no scope of interference in the judgment of the trial court and appeal being devoid of merit is dismissed. (R.B. Misra) Judge (V.K. Sharma) Judge 22nd July, 2010 (virender)