--------------------------------------------------------------------------------------- Whether reporters of the Local papers are allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr.Appeal No.292 of 2010. Judgment reserved on: 10.5.2011. Date of Decision: June 1, 2011. Manjeet Singh @ Shanti. …… Appellant. Versus State of H.P. …….Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting? Yes. For the appellant : Mr. Deepak Kaushal, Advocate. For respondent : Mr. A.K.Bansal, Addl. Advocate General. Surinder Singh, J: The appellant has directed the present appeal against his conviction and sentence passed in Sessions Trial No.7-N/7 of 2009, on 29.7.2010 by the learned Additional Sessions Judge, whereby he has been sentenced to undergo imprisonment for the offences mentioned hereunder:- Offence under Section Sentence 354 I.P.C. Rigorous Imprisonment for two years and fine of `5,000/-. In default to further undergo rigorous imprisonment for three months. 366 I.P.C. Rigorous Imprisonment for four years and fine of `10,000/-. In default to further undergo rigorous imprisonment for six months. - 2 - 506 I.P.C. Rigorous Imprisonment for two years and fine of `5,000/-. In default to further undergo rigorous imprisonment for three months. Section 6 of the Indecent Representation of Women (Prohibition) Act,1986. Rigorous Imprisonment for two years and fine of `2,000/-. In default to further undergo rigorous imprisonment for three months. Section 67 of the Information Technology Act, 2000. Rigorous Imprisonment for four years and fine of `10,000/-. In default to further undergo rigorous imprisonment for six months. 2. The facts in brief, giving rise to the present appeal can be stated thus. In the year 2008, PW1 prosecutrix was studying in 7th standard in Government Senior Secondary School, Paonta Sahib. PW2 her friend was her School- mate. They were residing in village Shubhkhera, thus became familiar to each other. They used to go to School together. Their annual examination was scheduled to be held in the month of March, 2008. On Ist March, 2008, PW1 appeared in the paper of Hindi, whereas her friend PW2 had also come to the School to take examination. When their respective papers were over, they came out from the School and noticed a white coloured car - 3 - bearing registration No.DL-2C-2465 with black mirrors parked outside. (ii) Appellant was on the driving wheel. He asked to drop them at their respective houses. They accepted the offer and boarded the car, but instead of taking them to their residence, he drove it off towards Dehradun side and stopped in front of a hotel and took them to a room. It is alleged that he forcibly removed the clothes of both the prosecutrixes and shot their film on his Mobile Phone. He also tried to sexually exploit PW1, but she raised hue and cry, thus, she was let off but molested her friend PW2. Thereafter the appellant started blackmailing and threatening them to show their film to public. Under these threats, he had been taking the prosecutrixes to different places. (iii) It is alleged that in September, 2008, PW1-prosecutrix was taken by the - 4 - appellant to his house situated near Gurudwara building at Bye-pass road Paonta Sahib and threatened her to satisfy his sexual lust, lest he would show her made film to the public. She succumbed to his threats. Thereafter he took her towards Sataun and Shamsherpur, where he again committed sexual intercourse with her. (iv) On 14.11.2008, PW1 came to know that the obscene film shot by the appellant was in the knowledge of the students of her School. PW1 alleged that on the pretext of showing the nude film, the appellant exploited both the prosecutrixes sexually. (v) When there was a rumour about the nude film of the prosecutrixes, the police got a secret information and contacted PW1-prosecutrix. She got recorded her statement Ext.PW1/A on 18.11.2008 involving the appellant and his co-accused Gurpreet Singh @ Raju - 5 - and Harjeet Singh @ Raja. This statement was culminated into FIR Ext.PW14/A under Section 376 (2) (g) of the Indian Penal Code. On the same day, on the request of police, both the prosecutrixes were medically examined by PW18 Dr. Shail Sehgal with the alleged history of sexual assault in the month of September, 2008. On the examination of both the prosecutrixes, the Doctor was of the opinion that there was nothing suggestive of the fact that they had not had sexual intercourse in the past. Medico Legal Certificate of PW1 is Ext.PW18/B and that of PW2 is Ext.PW18/C. (vi) Police arrested the appellant on 18.11.2008 and took into possession his Mobile Phone Ext.P1. The investigation was taken up in his own hand by PW24 Virneder Singh Thakur, Dy.S.P. - 6 - (vii) On 24.11.2008, one compact disk (CD) was produced by PW4 Akhwinder Singh containing the video clipping. (viii) On 29.11.2008, co-accused Gurpreet Singh was arrested when the prosecutrix also made allegations of rape against him. Harjeet Singh, co- accused was allegedly extending help to them in the commission of the crime, thus he was also arrested. (ix) During investigation, police took into possession birth certificate of PW1, wherein, her date of birth has been shown as 17.5.1992 and that of PW2 another prosecutrix as 28.9.1994. According to the case of the prosecution on the day of alleged incident, both the prosecutrixes were minor. (x) Police took into possession the record of the hotel, wherein the photographs of the prosecutrixes were taken by the appellant. - 7 - (xi) A Compact Disk (CD) and cassette containing the sample voice of the appellant alongwith his Mobile Phone sent to the Central Forensic Science Laboratory, Chandigarh, for its examination and the report Ext. PW24/E confirmed the obscene videography from the Mobile Phone Ext.P1 and the voice contained in the C.D. matched with the voice of the appellant. 3. After completing of the investigation of the case, appellant alongwith his co-accused were sent up for trial. They were charge- sheeted for the offences punishable under Sections 354, 363, 366, 376 (2) (g) and 506 of the Indian Penal Code and Section 67 of the Information Technology Act, 2000 as well as Section 6 of the Indecent Representation of Women (Prohibition) Act, 1986, to which they pleaded not guilty and claimed trial. 4. To prove its case, prosecution examined its witnesses and the appellant and his co- accused were examined under Section 313 of - 8 - the Code of Criminal Procedure. They denied the circumstances found attended upon them. When called upon to enter into their defence, no evidence in defence was led. 5. However, the appellant admitted the recovery of his Mobile Phone Ext.P1 from his possession which had the facility of video recording. He took up the stand that he was called in the Police Station and the police enquired about this case when he pleaded ignorance, he was given beatings and seized his Mobile Phone, but nothing incriminating was found in the Mobile Phone. Some other persons were also present in the Police Station from whom, the same enquiry was being made, but they were let off and he was falsely implicated in the present case. 6. Learned trial Court disbelieved the above defence of the appellant, thus convicted and sentenced him as aforesaid, whereas, his co- accused were acquitted, hence, the present appeal by the appellant. - 9 - 7. Shri Deepak Kaushal, learned counsel for the appellant vehemently argued that the prosecutrixes, in the present case were declared hostile, therefore, their statements cannot be believed qua the allegations made against the appellant and further their statements are of inconsistent, contradictory and not worth inspiring confidence. He further ventilated that even if the case of the prosecutrixes is taken on its face value as stated by them during the trial of the case, their voluntarily association with the appellant and accompanying in his car by their own free will without any threat or promise negates the offence under Section 366 of the Indian Penal Code. Further there is no evidence of molestation, therefore, the offence punishable under Sections 354 of the Indian Penal Code is not made out that there is also nothing in the evidence to connect the C.D. and the voice of the appellant with the appellant, therefore, other offences charged are not proved. He also ventilated that the sentence passed on - 10 - the appellant under Section 67 of the Information Technology Act, 2000 is more than prescribed, therefore, the impugned judgment of conviction and sentence passed against the appellant deserves to be set-aside. 8. On the other hand, Shri A.K.Bansal, learned Additional Advocate General supported the impugned judgment of conviction and sentence passed by the learned trial Court. He however submitted that Section 67 of the Information Technology Act, provides three year sentence for the first conviction and not four years, therefore, it may be adequately modified. 9. To appreciate the respective contentions, statements of the prosecutrixes and other material evidence are required to be closely and cautiously scrutinised. The prosecutrixes in their statements have denied the allegations of rape against the appellant and his co-accused, but they are categoric in testifying that the appellant had videographed their nude breast and thereafter started blackmailing them to - 11 - show it to the public. PW1 specifically stated that the appellant to whom she also identified during the trial of the case took her and her friend (PW2) in a car on the pretext to drop them at their respective residences, but instead they were taken towards the place known as ‘Kohlal’ situated at Paonta-Dehradun road. When she asked PW2 as to where the appellant was taking them, she told them that after a stroll, he would drop them back. Thereafter the appellant took them to a room in a hotel situated in an isolated place. She categorically stated that the appellant removed their clothes and shot their films on his Mobile Phone. He also tried to commit wrong act with her, but she protested, thus she was let off. She further stated that PW2 stated that she would have to obey the command of the appellant, lest they would be left all alone at the said place as threatened by the appellant. Thereafter on 2.3.2008, when she appeared in annual examination alongwith PW2 in their School, it was the last day of the examination the - 12 - appellant again came there in a car. PW2 insisted upon her that she should accompany the appellant. When she (PW1) refused on the pretext that her parents would get annoyed on her coming late, on this the appellant threatened her that in case she would not accompany him, he would show their video film to others. Thus, she obediently followed the appellant and again both of them were taken to the same hotel and the appellant molested and fondled with them. Thereafter, both the prosecutrixes were brought back in the evening. She further stated that thereafter the appellant had been contacting her on her telephone and administering threats that in case she would not meet him, he would show the film to her parents. Next Day, when she came to the School, the appellant came there in his car and told her to board it. She refused and went to the School. She further stated that thereafter the appellant started blackmailing her daily to meet him and in failing to do so, he would show her films to the public. She also - 13 - narrated the tale of woe that one day in the month of November, when Hockey tournament was scheduled to be held in her School, she intended to watch the tournament, the appellant contacted her telephonically and insisted upon her to meet him. She refused and went to the School on foot. Appellant met her near canal and told her to get in the car otherwise he would show her film to others. On this, she boarded the car and was taken to a house located within Paonta-Sahib town, where he attempted to commit wrongful act, but she resisted but again appellant threatened her in the same manner, but he did not commit any sexual intercourse with her. 10. On denying commission of rape, she was cross-examined by the learned Prosecutor, but did not toe his lines. She stated that she did not disclose about the threat given by the appellant to her parents because of the fear, but she categorically stated that in the month of November, 2008, when she came to School, she was told by the other girls of her School that - 14 - her nude film is in the knowledge of the public, the appellant had also given a threatening that he would also exhibit other films throughout the country. She was confronted with her statement Ex.PW1/A by the learned Prosecutor, wherein she stated having been taken to Shamsherpur and Sataun but denied its correctness. She also identified the Mobile Phone Ext.P1 belonging to the appellant with which her nude film was shot by the appellant. She further stated that the appellant and her friend were told to lift her shirt from the belly upward showing her breast for shooting pictures. She identified that photographs Exts.P2 to P11 pertain to her. She admitted that the pictures which were shot were displayed by the appellant to the public by which she felt dishonoured in the society. She also stated that at that time she was studying in 7th class and was aged about 15 years. 11. In cross-examination by the accused, she stated that she got scared because she was told that her photographs are in the public and - 15 - she was told about the pictures by the girls of her School, but she did not know their names. She further admitted that she was made to sit in the car by PW2 and not by the appellant. She admitted that between her school and Paonta bridge, there lies market as well as barrier of the Police. She had gone at the instance of PW2 as she was told that she would bring back to her house. She admitted that apart from taking aforesaid pictures, she was not molested nor subjected to any sexual act. 12. PW2 another prosecutrix stated that on that day, appellant met her and told her that he would take both of them in his car to the School, thereafter both of them boarded the car and the appellant allured them to buy some articles and took them to a hotel at Vikasnagar. On his allurement to buy some items, they went with him to a hotel. Appellant took them in a room and started taking nude pictures of their breast on his Mobile Phone by lifting their shirts. Thereafter he did not do anything and brought them back to Paonta - 16 - Sahib. She further stated that he never met her after the bye-pass meet. Against this statement she was also declared hostile, but she categorically admitted that later she came to know that the appellant had shown the film to the public and that because of the film shot by him, she felt dishonoured in the society. She identified Ext.P1, Mobile Phone of the appellant during the trial of the case with which he had taken their nude snaps. She also identified photographs Exts.P12 to P13 to be her own, which were shot by the appellant. She admitted that the shooting of the pictures later came to the knowledge of the girls of her school and she was dishonoured in the Paonta area. She further stated that before taking her to the hotel by the appellant, the appellant did not obtain any consent of her parents and also stated that for going to the hotel, she did not receive any gift from the accused and that she lifted the shirt at the instance of the appellant. In her cross-examination, nothing material - 17 - could be extracted, she denied that appellant did not take their nude photographs. 13. PW3 Abdul Khalid is the owner of the hotel situated at Dhakrani. He stated that on 28.2.2008 and 1.3.2008, the appellant had taken the room on rent and proved the entries in the register Ext.PW3/A. 14. PW4 Akhwinder Singh was declared hostile, but he admitted that he knew the appellant. He denied having transferred the nude film from the Mobile of the appellant on the compact disk (C.D.) through Bluetooth, but admitted that he had produced the Compact Disk (CD) before the police, but according to him, it was on the basis of chip given to him by the police, which was taken into possession by the police vide memo Ext.PW4/A. He admitted that at the time when the CD was produced Sarbjeet Singh witness was also present there. He identified the CD Ext.P15 and its cover Ext.P16, which were taken into possession by the police. In the cross-examination by the accused, he stated that the chip and C.D. - 18 - were brought by the police, therefore he got prepared CD from the Computer Centre from that chip and handed it over to the police alongwith that chip. 15. PW12 ASI Sanjay Kumar at that time was posted in the Police Post Majra. He stated that on 24.11.2008 PW4 Akhvinder Singh produced one C.D. Ext.P15 alongwith its cover Ext.P16, which were taken into possession vide memo Ext.PW4/A. He further stated that Akhwinder Singh told them that the appellant had shown him the video clipping of his Mobile to which he transferred on the C.D. via Bluetooth which fact has also been proved by PW13 Virender Singh Thakur, Dy.S.P and there is nothing on record to dislodge their version. 16. PW5 Harvinder Pal was running a studio at Paonta Sahib. According to him on 24.11.2008, police brought the appellant for recording his voice. He recorded his voice in the video camera in the office of Dy.S.P. and cassette Ext.P17 was taken into possession vide memo Ext.PW5/A. He further stated that on 21.7.2009 - 19 - police brought a C.D. for developing photographs. C.D. was played in the Computer and still photographs were clicked and these clicked photographs are Ext.P2 to P14 and P19 to P24 and he charged an amount vide Bill ext.PW5/B. In cross-examination, he stated that no particular lines/ sentence or subject was assigned to the appellant to speak. He took about 10 minutes to record his voice. He stated that though he did not put any identification mark on the C.D., but stated that the C.D. shown to him during the trial is the same. 17. PW20 HC Bishan Singh was the MHC at the relevant time in Police Station Paonta Sahib. According to him, he had received one parcel containing two Mobile Phones and another parcel containing C.D. and sent it to CFSL, Chandigarh alongwith photographs vide RC No.143/08 through Constable Sanjay Kumar. 18. PW8 Smt. Raj Kumari, a Trained Graduate teacher in Govt. Senior Secondary Paonta Sahib proved the birth certificate Ext.PW8/A issued by the Principal of the School with - 20 - respect to PW1, whereby her date of birth has been reflected as 17.5.1992 as entered in the School admission and withdrawal register, but she could not say what was the basis of the entry of the date of birth aforesaid mentioned in the register and PW9 Surjeet Singh Drawing Teacher has made an endeavour to prove the birth certificate of PW2 having been issued by the Principal of the School, but for that the name of PW2 has been written Amandeep Kaur and there is nothing on record to show PW2 was the same regarding which the certificate was sought to be proved, except the self serving statements of the prosecutrixes on record that they were less than 16 years of age at the time of alleged incident, there is no other material on record to ascertain their age. 19. On the critical examination of the aforesaid evidence, PW1 and PW2 have demolished their case not only about the rape, but also with respect to the allegations of their kidnapping by the appellant, as noted above PW1 stated that she was made to sit in the car - 21 - by PW2 her friend and not by the appellant and it was on the insisting of PW2 she had boarded the car on the pretext that after having a stroll, the appellant would leave them back, but atleast both the witnesses are categoric about taking the nude films by the appellant on his Mobile Phone Ext.P1 to which he admitted to be his own. The still photographs referred to above pertain to the prosecutrixes. The appellant is stated to have been insisting upon PW1 Prosecutrix to have sexual intercourse with him to which he refused and the appellant had been threatening her to show it to the public in case she would not surrender to his illegal desire. The evidence with respect to kidnapping is dicey, therefore, offence under Section 366 of the Indian Penal Code cannot be said to have been proved beyond doubt, but it is proved that after taking the nude photographs, the appellant had tried to blackmail the prosecutrixes. Further the photographs Exts.P2 to P13 and P19 to P24 are nude snaps of the - 22 - prosecutrixes showing breasts lifting their shirts upward the belly. The Forensic report Ext.PW24/E confirmed the obscene video in the C.D. and this report has not been assailed by the appellant. The photographs aforesaid also revealed outraging the modesty of the prosecutrixes and the photographs aforesaid tends to excite the lust and thus are lascivious and prurient which came to the notice of the others in the society as having been transmitted in the area of Paonta Sahib, as stated by both prosecutrixes. Thus, the complicity of the alleged crime against the appellant stands proved. As such, his conviction and sentence passed under Sections 354 of the Indian Penal Code and that of Section 67 of the Information Technology Act, 2000 and also under Section 6 of the Indecent Representation of Women (Prohibition) Act stand affirmed. 20. The maximum sentence provided under Section 67 of the Information Technology Act, 2000 is only upto three years for the first - 23 - conviction, therefore, it is reduced to two years without disturbing the fine and the default clause. 21. Since the aforesaid photographs were used for criminal intimidation by the appellant, as such his conviction for the offence punishable under Section 506 of the Indian Penal Code also stands affirmed. 22. In view of the facts and circumstances of the case, the judgment of conviction and sentence is modified to the above extent. 23. The appellant was arrested on 18.11.2008 and he is in custody since then. He has already undergone the sentence more than the period imposed upon him, as above. He be released forthwith, if not required in any other case. 24. Registry to send the release warrant to the concerned jail in consonance with this judgment forthwith. 25. The appeal is partly allowed and is accordingly disposed of. Send down the record. June 1, 2011. (Surinder Singh ) (Pds) Judge. - 24 -