IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 439 of 2007 Reserved on: 15.10.2008 Date of Decision: 22.10.2008 ____________________________________________________________ Gurmeet Singh Appellant. Versus State of H.P. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Sh. B.C.Negi, Advocate. For respondent. : Sh. J.S.Guleria, Law officer _________________________________________________________ Surinder Singh, J. In this appeal, the appellant has made a challenge to the judgment of conviction passed by learned trial Court in Sessions Trial No. 3 of 2007 decided by the learned Additional Sessions Judge on 23-5-2007 whereby the appellant was sentenced to under-go imprisonment for a period of seven years and to pay a fine of rupees 30,000/- under Section 366, simple imprisonment for a period of one year and to pay a fine of rupees 10,000/- under Section 323 and simple imprisonment for a period of one year and fine of rupees 500/- under Section 341 of the Indian Penal Code, but no separate sentence under Section 363 of the Code was passed in view of the sentence passed under Section 366 of the Indian Penal Code. All the sentences were ordered to run concurrently. Further, fine on realization was ordered to be disbursed to the victim as compensation. Whether reporters of the Local papers are allowed to see the judgment? Yes. The synoptical resume of the prosecution story is that the prosecutrix was a student of 9th class in the year 2006. On 19.9.2006, she had gone to a local fair at Rakkar along with her friend Babli. On their return, both of them boarded the bus and got down at village Basalag from where Babli went on foot to her village Chamneti whereas the prosecutrix followed a short cut to her village own village. Around 6.30 P.M, the appellant is alleged to have met her on the way of the place known Pakhandi near village Nehar. He caught hold of her from her arm and pulled up to a distance of about 3/4th of a km with intent to commit rape upon her. She offered resistance and raised alarm by which some villagers got attracted. Finding the persons/witnesses approaching the spot, the appellant left the prosecutrix and escaped. Villagers took the prosecutrix to her village and the information was also given to the Police. On the same day after some time, the Police reached in the village. Statement of the prosecutrix Exhibit PW2/A was recorded under Section 154 of the Code of Criminal Procedure where in she mentioned about the aforesaid facts. She also stated that Harnam Singh, Pawna Devi, Sarita Devi and Swarana Devi residents of village Basalag had reached the spot along with some other villagers, had they not come there the appellant would have ravished her. The above named witnesses had tried to catch hold of the appellant but he got rid of them and escaped. On the basis of her statement, the Police registered a case under the aforesaid Sections and started the investigation. Gurmit Singh was arrested on the same day, i.e, on 19.9.2006 and was got medically examined at 10.35 P.M. He alleged assault by the mob. During the examination, he was emitting the smell of alcohol. His speech was thick and gait was unsteady. Eyes were conjunctive and suffused. On examination of his body, the Doctor found the abrasion on the bridge of nose circular in colour with no bleeding. There was also tenderness on the left of thigh but no injury was seen. Lacerated wound of the size of 2 cm was found on his lips. The above injuries were opined to be simple in nature having been caused within six hours. Next day, the clothes of the prosecutrix, i.e, shirt and the salwar were taken into possession and sealed vide memo Exhibit PW2/B in the presence of Dalip Kumar and Vijay Kumar. Police visited the spot and found two buttons of the shirt. The spot was photographed. The photos are Exhibit PW7/A4 and A5. The grass on the spot was also found crushed. Its photographs were also taken on 21.9.2006. The shirt of the accused-appellant which he was alleged to have been wearing on the date of incident, was taken into possession. Its two buttons were found missing. It was sealed and taken into possession vide memo Exhibit PW16/A. The buttons recovered on the spot were sent for forensic examination along with the shirt of the appellant. As per the report Exhibit PA, it tallied. The presence of human blood was also found on the shirt of the appellant vide report Exhibit PB but the clothes of the prosecutrix did not contain any stain of blood or semen. After recording the statements of the witnesses and completing the investigation, the challan was presented in the Court for trial of the appellant. The appellant was charge-sheeted under the aforesaid Sections. He pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined its witnesses and the accused appellant was also examined under Section 313 of the Code of Criminal Procedure whereby he denied the circumstances which were found attendant upon him. According to him, his mother was mis-behaved by the Police on that day. She was pushed and fell down to which he protested and the Police gave him beatings. However, he admitted his presence on the spot of incident and stated that his hand had touched the prosecutrix and taking advantage of that fact, the Police had prepared a false case against him. The appellant was called upon to enter into his defense but he did not lead any evidence in defense. At the end of the trial, the appellant was convicted and sentenced as aforesaid which has been assailed in this appeal. Shri B.C. Negi, learned counsel for the appellant argued that the findings of guilt against the appellant dehors the evidence, thus he led me through the evidence on record and vehemently argued that the prosecution evidence is contradictory and does not inspire confidence. It is further argued that the injuries on the person of the appellant were wrongly connected having been caused in scuffle with the prosecutrix. The credible defense raised by the appellant was brushed aside. PW4 Ranjit Singh is a hostile witness and it lost its impact in the entirety of the prosecution case. Thus, there was no cogent evidence against the appellant to bring home his guilt. It is further submitted that the case of the prosecution that the prosecutrix was being kidnapped by the appellant is also not proved. Since the prosecution has failed to prove her age to be less than eighteen years, the offence of kidnapping stood not proved thus, the appellant was required to be acquitted for the offence under Section 366 of the Indian Penal Code, in the light of the vacillating evidence. Contra, Shri J.S. Guleria, learned Law Officer for the State has supported the findings of guilt and the sentence passed by the learned trial Court against the appellant. He further argued that the points raised by the learned counsel for the appellant hold no water in view of the fact that the appellant and other witnesses have corroborated the case of the prosecution. The recovery of buttons of the shirt of the appellant from the spot showed the resistance offered by the prosecutrix and it was not merely a case of a touch by chance as alleged by the appellant with the hands of the prosecutrix by him. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the evidence on record. The incident is alleged to have taken place on 19.9.2006 at 6.30 P.M. PW16 Sub Inspector Surinder Kumar, accompanied by Head Constable Chander Hans, LHC Naresh Kumar was at Rakkar in connection with law and order patrolling in the village fair. He received the information on his mobile from PW6 Dalip Singh Pradhan of Gram Panchayat Choli that the appellant had carried away the prosecutrix from village Basalag. He proceeded to the spot along with other police officials, reached in the village in the house of Vijay Kumar and recorded the statement of the prosecutrix PW2/A under Section 154 of the Code of Criminal Procedure at 8.10 P.M. Ruka was sent for the registration of the case. In her statement, she clearly alleged that when she followed the short cut to her village at Basalag, the appellant met and stopped her on the way. She got scared and tried to retract but the appellant forcefully lifted and dragged her up to 3/4th of the km with an intention to commit rape. She cried and on hearing her cries, Harnam Singh (PW15), Pawna Devi (PW3), Sarita Devi (PW5) and Swarana Devi came to the spot along with some villagers and relieved her from the clutches of the appellant. Had they not reached the appellant, appellant would have raped her. The aforesaid persons had tried to overpower him but he escaped. As PW2 the prosecutrix has corroborated this version and stated that in that process, she suffered the injuries when she was being dragged by the appellant. Her shirt was torn off near the neck. The shirt and salwar both were taken into possession by the Police vide memo Exhibit PW2/B. She was medically examined. PW3 Pawna Devi wife of PW15 Harnam Singh, PW5 Sarita Devi and PW15 Harnam Singh have afforded corroboration to her version. PW3 Pawna Devi had stated that Ranjit Singh (PW4) had also reached the spot. They saw the appellant dragging the prosecutrix towards the bushes and all of them had rescued her and the appellant ran away. Even the hostile witness PW4 Ranjit Singh has corroborated the version in his statement before declaring him hostile that he heard the cries of a girl from the side of the public path from a distance of about 500 to 600 meters and rushed to the spot. Two-three ladies of the village were also running towards that direction. When he reached there, number of people had gathered there. The girl was weeping and he did not know what had happened to her but when he was cross-examined by the learned Public Prosecutor with the permission of the Court, he admitted that Harnam Singh, Pawna, Swarana and Sunita were running towards the side from where the cries were coming at about 6.30 P.M. He further stated that all of them had chased the appellant and tried to catch hold of him but he ran away. He also stated that the shirt of the victim was found torn and that had he not reached there, the appellant might have committed the rape. At that time, according to him, the prosecutrix was afraid of and was weeping. He further admitted that the prosecutrix had revealed at that time that the appellant was dragging her towards the bushes. He also informed the Pradhan of Gram Panchayat about this occurrence. In his cross- examination, he has stated that he reached in the house where the prosecutrix was sitting and about fifty to sixty persons were present there. He clearly denied the suggestion that the Police had mis-behaved with the mother of the appellant to which the appellant could not tolerate but he clarified that the appellant had mis-behaved with the Police. He further stated that when the prosecutrix was taken to the Police Station, he also accompanied her. He denied that the Police had made a false case against the appellant. PW5 Sarita Devi has stated that the prosecutrix had tried to save herself when the appellant was carrying her. On account of that, her shirt was torn from the front side. Had they not reached there, the appellant might have committed the rape. Similar is the version of Harnam Singh (PW15). PW6 Dalip Singh, Pradhan of the Gram Panchayat has stated that he had gone to participate in the fair at Rakkar. At about 6.00 P.M, he returned to his home PW4 Ranjit Singh telephoned him informed him that the prosecutrix was being carried by the appellant and the people had assembled there. There after, he reached on the spot. There were about fifty-sixty persons. He gave the information to the Police. Next day, the police went to the spot and located a button (P4) at a distance of about 25 feet from the public path and ahead of that near the grass, another button (P5) was found which were packed and sealed and taken into possession vide Memo Exhibit PW6/A. He proved his signatures thereon. He also proved the recovery of the shirt and salwar Exhibit P1 and P2 respectively of the prosecutrix which were taken into possession vide memo Exhibit PW2/B. PW7 Ms. Babli, the class mate of the prosecutrix stated that she had gone to the fair and returned with the prosecutrix in the Bus and got down at village Basalag. This version of her was not assailed. PW8 Madan Lal, the father of the prosecutrix deposed that when he returned in the evening at 7.30 P.M to his village after the work, he did not find his children in his house. He was informed by PW4 Ranjit Singh that they were in the house of Vijay Kumar. He went there where he found the prosecutrix. She informed him that the appellant was carrying her towards the bushes. On raising alarm, she was rescued by some ladies and neighbours. Thereafter, the Police came there. PW9 Anju Bala is the Assistant Secretary of the Panchayat Choli. She proved the birth certificate of the prosecutrix Exhibit PW9/A. According to her, as per the record of the Gram Panchayat, the date of birth of the prosecutrix was 20.2.1989 which comes to about seventeen years on the date of the alleged incident. PW16 Sub Inspector Surinder Kumar has stated that on receiving the information, he visited village Basalag in the house of Vijay Kumar where the prosecutrix was sitting along with other people and recorded her statement. He denied the suggestion that he was told by her that while on the way, her body was touched with the hand of the prosecutrix on which he had raised alarm. He further denied that on 21.9.2006, the shirt of the appellant along with its buttons was taken into possession and that the victim was not suffering any injury. As already stated above, after the arrest of the appellant on the same day, i.e, on 19.2.2006, he was examined by Dr. Rohit Rai. He found the injuries on his person which according to him, could be possible in struggle. According to him, the history of assault by the mob was given by the appellant himself and not by the Police. He further stated that in the application Exhibit DA moved by the Police, it was also stated that he was beaten up by 30/40 persons. In the cross-examination of the Prosecution, defense tried to make out a case that he had only touched the hands of the prosecutrix and went away but if her statement as a whole is seen along with the answer to the Court question, she clearly testified on oath that she was caught hold and dragged by the appellant up to a distance of half km. Thus on the critical examination of the aforesaid evidence, it clearly emerges that on the day of the alleged incident, the appellant had met the prosecutrix on the way, he was drunk and tried to stop the prosecutrix, caught hold of her from the hands and dragged her up to a distance of about half a km. In that process front side of her shirt was torn. She had also sustained minor injuries as mentioned above. Her shirt got blood stains. This fact is duly corroborated by the above eye witnesses and the surrounding circumstances that the grass on the spot where the prosecutrix got relieved, was crushed. Two buttons of the shirt of the appellant were found on the spot. The appellant offered no explanation to this effect as to how the buttons of his shirt were found about half km away from the place where he had met the prosecutrix on the spot. The appellant was arrested immediately after the incident. The defense raised that the mother of the appellant was pushed by the Police and fell down on which there was tiff with the Police stands falsified in view of the above discussion of the evidence. Learned counsel for the appellant has further argued that the evidence regarding the age of the prosecutrix is dilatory as PW8 Madan Lal, her father, stated that his marriage had taken place in the year 1979 and the first child was born on the eighth year of his marriage. According to him, the prosecutrix is his elder daughter. If this is taken to be true, then she is proved more than 18 years and the offence of kidnapping is not made out which is one of the essential ingredient of Section 366 I.P.C. In fact PW8 Madan Lal has stated that he has two daughters and a son and prosecutrix is his elder daughter. But it has no where been stated that she is the eldest. The prosecutrix may be elder daughter out of two daughters but it has not been clarified whether the first issue was the son or the daughter. It is also pointed out by the learned counsel for the appellant that in her statement, the prosecutrix stated that once she did not appear in the examination and twice she failed in 8th class. If she is presumed to have been admitted in the School at the age of six years, then her age goes more than eighteen years. This argument of the learned counsel is also devoid of any merit for the reason that nothing was brought on record to show that the prosecutrix was admitted in the School at the age of six years. In view of above discussion, the prosecutrix is held to be under eighteen years of age. Otherwise also, if she is found to be more than eighteen years of age, in that event also it becomes a case of abduction which fairly and squarely falls under Section 366 of the Penal Code. The intention to commit rape is writ large from the facts and circumstances of the case that after catching hold of the prosecutrix, she was dragged towards the bushes up to a distance of about half km. Therefore, the ingredients of the offence charged stands fully proved on record beyond a reasonable doubt. The version of the prosecution is duly supported by its witnesses, which is cogent, consistent, reliable and worth inspiring confidence. Accordingly, the judgment of conviction passed by learned trial Court for the offences charges is hereby up- held. In so far as sentence is concerned, the Learned counsel for the appellant has urged that the appellant is a young boy and the sentence imposed by the learned trial Court is severe. Since minimum sentence has not been prescribed, therefore, leniency may be shown by way of indulgence. The appellant has been sentenced to undergo imprisonment for seven years under Section 366 of the Indian Penal Code. Keeping in view the torture of the trial, the age of the appellant and other exaggerating and mitigating circumstances on record, the sentence is reduced to four years from seven years under Section 366 of the Penal Code without disturbing the fine and substantive sentences passed under other Sections by the learned trial Court. With this modification in sentence to the above extent, the appeal is partly allowed. The learned trial Court to send the modified warrants to the concerned Superintendent Jail. (Surinder Singh) Judge. October 22 , 2008. (bm)