IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 369/1998 Reserved on: 20.5. 2010 Decided on:2.6. 2010 _____________________________________________ State of Himachal Pradesh. …Appellant. Versus Dilbag Singh and another. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Deepak Gupta, Judge. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. Vivek Singh Thakur, Addl. A.G. with Mr. Rajesh Mandhotra, Deputy Advocate General. For the Respondents : Mr. Anup Chitkara, Advocate. ____________________________________________________ Per Rajiv Sharma, J. By way of this appeal, the State is seeking reversal of the judgment dated 20.6.1998 of the learned Additional Sessions Judge (1), Kangra at Dharamshala rendered in Sessions Case No.39-P/97, whereby respondents, who were charged with and tried for offences punishable under sections 376 (2) (g) of the Indian Penal 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 Code and section 6 of the Indecent Representation of Women (Prohibition) Act, 1986, have been acquitted. 2. Case of the prosecution, in a nutshell, is that statement of PW-5 Maya Devi, Ex.PW-5/A, was recorded under section 154 of the Code of Criminal Procedure. PW-5 Maya Devi disclosed that she has two daughters and one son. Bandana Devi, prosecutrix, was aged about 16 years. PW-4 Bandana Devi on 26.6.1997 disclosed to her that accused No.1 Dilbagh Singh, who was running a tea stall at Pahra was committing rape on her for the last two years by promising her to marry. Accused No.2 was also committing rape on her for the last 1½ year. The rape was being committed in a shop at Pahra. The accused took nude photographs of the prosecutrix. Ex.PW-5/A was sent by PW- 18, Joginder Singh ASI to Police Station, Palampur through constable PW-13 Ravinder Chand for registration of formal FIR. The FIR was registered vide Ex.PW-16/A. PW-4 Bandana Devi was medically examined by PW-1 Dr. Rashmi Kashyap. Accused were also medically examined by PW-3 Dr. G. C. Sood. He issued Medico Legal Certificates Ex.PW- 3/B and Ex.PW-3/C. Accused Dilbagh Singh made disclosure statement Ex.PW-6/A, on the basis of which Ex.P12 to P-17, Ex.P-21 and Ex.P-23 to Ex.P-50 and their negatives Ex.P-51 to Ex.P-90 were recovered from the shop vide seizure memo Ex.PW-6/B. Camera Ex.P-94 was also 3 taken into possession vide seizure memo Ex.PW-6/C. The house of accused Dilbagh Singh was also searched and photographs Ex.P-18 to P-20, Ex.P-22 and Ex.P-91 to Ex.P-93 were recovered. These were taken into possession vide seizure memo Ex.PW-6/D. The matter was investigated by the police and the challan was put up in the Court after completing codal formalities, under section 207 of the Code of Criminal Procedure. 3. Prosecution examined a number of witnesses. Accused were examined under section 313 of the Code of Criminal Procedure. Their defence is of simpliciter denial. 4. Mr. Vivek Singh Thakur, learned Additional Advocate General has strenuously argued that the prosecution has proved its case against the respondents- accused. 5. Mr. Anup Chitkara has supported the judgment of the learned trial court. 6. We have heard the learned counsel for the parties and perused the record carefully. 7. PW-4 has not stated regarding her age or date of birth in the Court. She narrated that she has studied upto 5th class in Government Primary School, Pahra and thereafter studied upto 8th class in Government High School, Pahra. She was not aware of the date of birth of her father, mother, brother or sister. 4 8. PW-5 Maya Devi, mother of the prosecutrix, has testified that she had three children and eldest one is PW-4. She completed 16 years of age at the time of her statement. She also narrated that the name of PW-4 was entered in the Gram Panchayat, Kothi Tikka through Kirlu Ram, Chowkidar. She was admitted in Primary School, Pahra in first class. She had another daughter elder to PW-4, however, she died. She has admitted in her cross-examination that the prosecutrix was named “Bandana” for the first time when she was admitted in the school and she was admitted for the first time in nursery school. PW-5 has further stated that her marriage was solemnized 25 years back from the date of deposition. She did not remember the year of her marriage. According to her, prosecutrix was born after two years of her marriage. She gave birth to one daughter after the birth of Bandana Devi. She did not remember the date of birth of her children. It is thus evident that her marriage was solemnized somewhere in the year 1973 and the prosecutrix was born in the year 1975/1976. 9. PW-8 Kishore Chand has deposed that he has worked as Secretary, Gram Panchayat, Kothi since 1976 to 1985. He proved date of birth extract as Ex.PW-8/A as per the original record. The date of birth of the prosecutrix as per Ex.PW-8/A has been reflected as 1.10.1981. In his cross- examination, he has admitted that after cutting the name of 5 Sheela Devi, name of the prosecutrix has been written in the original record. He has admitted that the cutting in the name of Sheela was in his hand. He has failed to give any date or month or year of cutting. He also admitted that he has not sought for any affidavit for carrying out the cuttings. 10. PW-9 Naginder Mohan Sharma has proved on record the date of birth of Bandana Devi Ex.PW-9/A. According to Ex.PW-9/A, the date of birth of Bandana Devi has been shown as 1.10.1981. He has admitted in his cross- examination that it is not shown in the original record on what basis the entry was made. 11. The prosecution has failed to prove the authenticity of Ex.PW-8/A since there are cuttings in the same. The origin of the cutting has not been explained satisfactorily by the prosecution. Similarly, Ex.PW-9/A cannot be relied upon since there is no supporting evidence on the basis of which the date of birth of the prosecutrix was recorded in the school record. 12. According to Ex.PW-1/C, the age of the prosecutrix was between 14 to 16 years. PW-2 Dr. Dinesh Sood has opined the age of the prosecutrix between 14 to 16 years at the time of age determination test. Thus, it can be safely presumed that the age of the prosecutrix at the time of alleged commission of offence was more than 16 years. 6 13. PW-4 Bandana Devi has narrated that she was staying with one Smt. Shankutla Sharma. She used to bring milk from the tea stall of accused No.1. She developed friendship with accused No.1. According to her, accused No.2 was also in the room when accused No.1 committed rape on her. Accused No.2 took photographs. She was also taken to Jungle. In the Jungle firstly accused No.1 committed sexual act with her and accused No.2 took photographs and thereafter accused No.2 committed sexual intercourse and accused No.1 took photographs. She stopped fetching milk. However, she was frequently threatened by the accused. In these circumstances, she was compelled to visit them and they kept committing rape on her. She also went to the house of her Masi (mother’s sister) and resided there for 20 or 21 days and when she came back, accused No.1 again started committing sexual intercourse with her. She has proved on record the photographs Ex.P-12 and Ex.P-13 and testified that in these photographs accused No.2 is shown indulging in sexual act with her. She also proved photograph Ex.P-14 and narrated that in this photograph, accused No.1 is shown indulging in sexual act with her. She also identified Ex.P-15 to Ex.P-17. She has also deposed that in Ex.P-19 to P-22, the commission of sexual act has been shown and has further stated that photographs Ex.P-12 to Ex.P-22 were not taken 7 with her consent. She could not narrate the exact date or month when she was raped for the first time by accused No.1. She did not raise any hue and cry since according to her the accused had gagged her mouth. She saved herself by scratching accused No.1. This incident was never narrated by her to Shankutala Devi. She admitted that she had been working with PW-6 Adarsh Kumar and on the date of occurrence, his wife and children were at home but this incident was not disclosed by her to them. She never narrated this incident to her mother. She has admitted that the photographs Ex.P-12 to Ex.P-22 were shown to her in the Police Station. Other pictures were also shown to her. She also admitted that in the photographs, Ex.P-12 to P-17 and Ex.P-19 to Ex.P-22, the faces have not been shown and there is no specific identity mark on the body of the person committing sexual intercourse. PW-5 Maya Devi has admitted in her cross-examination that the prosecutrix never narrated her that accused No.1 was committing rape on her for the last two years. She has further admitted that some secret inquiry was undertaken by the police and some photographs were shown to them by the police. 14. PW-1 Dr. Rashmi Kashyap has opined that hymen was found torn and allowed passage of two fingers easily without pain. She had not found any external injury on 8 the body of the prosecutrix. According to her, she was habitual of sexual intercourse. 15. In view of the facts narrated hereinabove, it is evident that the prosecutrix was more than 16 years of age and she was a consenting party. It is not believable that a girl of more than 16 years will neither resist nor make hue and cry when she was raped repeatedly. She has never told this fact to her mother or Smt. Shankutla Sharma with whom she was working. She has also not narrated this incident to PW-6 Adarsh Kumar, who was residing with his wife and children. The disclosure statement Ex.PW-6/A cannot be relied upon since PW-6 Adarsh Kumar, PW-10 Jagrup and PW-11 Yog Raj have not supported the prosecution version. It has come in the statement of prosecutrix and Maya Devi (PW-5) that the photographs were already shown to them in the Police Station, Palampur. We have seen the photographs Ex.P-12 to P-14 and Ex.P-15 to P-17, the faces are not visible from these photographs. Consequently, the prosecution has failed to prove this charge against the accused. 16. Learned Trial Court has though charged the accused for offence punishable under section 6 of the Indecent Representation of Women (Prohibition) Act, 1986, however, the prosecution has not led any evidence to prove the case against the accused. The photographs have been 9 taken into possession by the police vide seizure memos Ex. PW-6/B and PW-6/C. The disclosure statement has not been proved by the prosecution since the witnesses, i.e. PW- 6 Adarsh Kumar, PW-10 Jagrup and PW-11 Yog Raj have not supported the prosecution case. Prosecution has failed to prove who has taken these pictures though camera i.e. Ex.P-94 was seized vide seizure memo Ex.PW-6/C. It has come in the statement of PW-7 Bikram Singh that he has developed the photographs Ex.P-13, Ex.P-15, Ex.P-16, Ex.P-18 to P-22 at the instance of the police and he handed over these photographs to the police after developing the same. He has admitted in his cross-examination that the negatives were not in a sealed cover and only they were handed over to him in presence of some witnesses. 17. In view of the aforesaid discussion, we find no merit in the appeal and the same is dismissed. Bial bonds furnished by the accused are ordered to be discharged. (Deepak Gupta), J. (Rajiv Sharma), J. 2.6. 2010 *awasthi*