IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 597 of 1996 Date of decision: 17.06.2010 ____________________________________________________________ The State of H.P. .....Appellant. Versus Jeevan Kumar and 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? ____________________________________________________________ For the appellant: Mr. Rajinder Dogra, Additional Advocate General with Mr. Anil Jaswal, Deputy Advocate General. For the respondents: Mr. Neeraj Sharma, Advocate. ____________________________________________________________ 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 21.03.1996, passed by the learned Sessions Judge, Solan, District Solan, in Sessions Trial No. 3-NL/7 of 1995, acquitting the alleged accused under Sections 366- A, 376 read with Section 34 of Indian Penal Code. 2. It has been brought to the notice of this Court that the alleged accused, namely Gulsher Mohmmad (respondent No. 5) and accused Ashok Kumar (respondent No. 6) have died. 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... 3. In order to adjudicate the criminal appeal, it is necessary to give the factual background of the case. 4. Accused Jeevan Kumar, was charged for committing the offences punishable under Sections 366A, 376(1) read with Section 34 of the Indian Penal Code and under Section 3 of the 'Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989', (in short 'SCST Act'). Accused Subhash Chand, Dev Raj, Gulsher Mohammad, Prahlad, Vikram Jain, Ashok Kumar, Ashwani Kumar and Gulshan have been charged for the offences punishable under Section 376 read with Section 34 of the Indian Penal Code and Section 3 of SCST Act. The prosecutrix/victim (name withheld), PW-1 belonging to Schedule Caste said to be about 15 years of age and on 26.01.1995 was alleged to have been raped by accused persons. The mother of prosecutrix was residing at Ghora Chauki, Shimla, whereas prosecutrix, PW-1, was residing at Sanjauli with one Rajesh Diwan, who is stated to be god brother of prosecutrix. Accused Jeevan Kumar was working as a driver for driving the bus of Govind Mehta bearing No. HP 07-0790, being plied from Sanjauli to Shimla. The prosecutrix became familiar to accused Jeevan Kumar while traveling in the said bus from Sanjauli to Shimla. 5. When Shri Rajesh Diwan had gone out of Shimla, the prosecutrix on 25.01.1995 went to village Sairi in District Solan, where Smt. Champa (daughter of sister of mother of the prosecutrix) was residing. The prosecutrix was accompanied by Baldev Singh, the is brother-in-law (Devar) of Smt. Champa and ...3... while traveling from Sairi to Shimla Baldev Singh and prosecutrix alighted from mini bus at bus stand Shimla, from where Baldev Singh proceeded in another bus to Parwanoo. In the meantime, wife of elder brother of the husband of Smt. Champa met the prosecutrix at bus stand Shimla. The prosecutrix intended to go to Nalagarh at about 3 P.M. with accused Jeevan Kumar(the driver), for getting a job in some leather factory at Nalagarh on his assurance. The bus halted at village Gurukund, where all the passengers of the bus alighted, but, prosecutrix, accused Dev Raj, Subhash Chand and Jeevan Kumar remained inside the bus and prosecutrix was taken by accused Jeevan Kumar at the rear seat of the bus and was sexually assaulted forcibly. Accused Dev Raj and Subhash Chand too sexually assaulted the prosecutrix turn by turn in the bus at about 7:30 P.M. The bus thereafter was driven by Jeevan Kumar and reached Nalagarh at about 8 P.M. 6. The prosecutrix was taken by accused Jeevan Kumar at village Sallewal to the house of accused Prahlad, a maternal uncle of accused Jeevan Kumar. Accused Dev Raj, Subhash Chand also accompanied the prosecutrix and Jeevan Kumar to the house of Prahlad. Accused Jeevan Kumar told the prosecutrix that she shall introduce herself to the members of family of Prahlad as god sister of Jeevan Kumar. On 25.01.1995, prosecutrix was also subjected to sexual assault forcible by accused Prahlad at his place where they stayed in the night of 25th January, 1995. The prosecutrix left the house of Prahlad accompanying Jeevan Kumar, Dev Raj and Subhash Chand at 6 A.M. and traveled in the same bus, driven by ...4... accused Jeevan Kumar. At bus stand Nalagarh accused Ashok Kumar met the prosecutrix. Accused Ashok Kumar is the younger brother of accused Jeevan Kumar, who was asked by Jeevan Kumar to take the prosecutrix to leather factory at Nalagarh and accused Jeevan Kumar left Nalagarh in the same bus for Shimla. Accused Gulsher Mohmad came to bus stand Nalagarh on a scooter. Accused Gulsher Mohmad took the prosecutrix and Ashok Kumar to the house of his 'Tai' in an unknown village. In the meantime, accused Gulsher Mohmad took the prosecutrix and Ashok Kumar to a field, where both, accused Gulsher Mohmad and Ashok Kumar sexually assaulted the prosecutrix. Thereafter they returned from the field, took lunch and returned to Nalagarh on a motorcycle. While they were on their way to Nalagarh, they stopped for a while for taking tea at village Ram Shehar at the house of an old woman, said to be relative of accused Gulsher Mohmad. Accused Ashok Kumar disappeared from the house of that woman but the prosecutrix and accused Gulsher Mohmad stayed at the house of that woman till 4 P.M. Thereafter, prosecutrix was taken by accused Gulsher Mohmad to his house at Nalagarh and prosecutrix was introduced to his family members as sister of one Shri Babloo alias Ashok Kumar accused. From there prosecutrix was brought to Nalagarh bus stand at about 8 P.M. Accused Jeevan Kumar and Dev Raj were already waiting for them at bus stand Nalagarh. 7. Accused Jeevan Kumar took the prosecutrix in his bus to a hotel 'Devicos' at Nalagarh, followed by accused Gulsher ...5... Mohmad on a scooter, accused Vikram Jain in a truck, bearing registration No. PAT-8053. All of them came in a hotel. Accused Jeevan Kumar and Gulshan Kumar booked rooms No. 7 & 8 in their respective names and prosecutrix was made comfortable in room No. 7 of the hotel. In the meantime, accused Ashwani also came there. Accused Ashwani Kumar, Jeevan Kumar, Gulshan Kumar and Vikram Jain sexually assaulted the prosecutrix in room No. 7 one by one. When accused Gulsher was about to violate the chastity of the prosecutrix, the police entered the room and prosecutrix was saved by police party headed by Shri Gurmeet Singh, Station House Officer, Police Station, Nalagarh. Accordingly, first information report No. 23/1995 dated 27.1.1995 was registered at Police Station, Nalagarh, for the above alleged offences and accused Jeevan Kumar, Ashok Kumar, Vikram Jain, Gulshan Kumar, Gulsher Mohmad were arrested on 27.1.1995. Accused Prahlad and Dev Raj were arrested on 04.02.1995. Thereafter, on completion of the investigation, challan was submitted. 8. In order to prove its case, prosecution examined as many as thirty witnesses, whereas accused have denied the prosecution case. 9. The prosecutrix was subjected to ossification test for determination of radiological age. DW-1 Dr. B.K. Bhardwaj, determined the radiological age of the prosecutrix and accordingly prosecutrix was assessed between 15½ years to 19 years of age. However, PW-30, Gurmeet Singh, stated that he is not aware about ...6... the age of the prosecutrix. Prosecution has referred and relied upon the horoscope of the prosecutrix and copy of the School Leaving Certificate, marked as Ex. P17 and Ex. P18, respectively. The prosecutrix at first instance stated that she is eldest child of her parents, however, during investigation, it was found that she is not the eldest child of her parents and her brother Ram Sarup is elder to her. When the statement of prosecutrix was recorded under Section 154 Cr.P.C., she did state to the Investigating Officer that her two brothers are younger to her. The prosecutrix at the first instance stated that she is elder to her brother Ram Sarup and later on she changed her version and deposed that she is younger to her brother Ram Sarup. Such aspects creates doubt in the prosecution version that prosecutrix on 25.01.1995 was below 16 years. The prosecutrix at one instance stated that her date of birth is 30.03.1980, meaning thereby, her age was about 15 years on 25.01.1995. Such date of birth, as stated by the prosecutrix, is the same which is recorded in the school register and the register of Gram Panchayat. Smt. Shanti Devi, (PW-13) the mother of the prosecutrix, has also stated that the date of birth of the prosecutrix and her other children were entered in the Panchayat record, however, for the reasons best known to the prosecution neither the School Register nor Panchayat Register were brought in support of the claim of the date of birth of the prosecutrix and both the records were withheld from scrutiny. 10. In order to prove that the prosecutrix was 16 years of age at the time of occurrence, prosecution has referred and relied ...7... upon School Leaving Certificate, which is also suspicious and appears to be manipulated one. On the basis of the testimony of prosecutrix and PW-13, regarding the age of the prosecutrix, it cannot be said that prosecutrix's date of birth as 30.03.1980 is believable as no reliable and clinching evidence were brought to prove the same, whereas learned trial court has very elaborately discussed and examined the records and has rightly concluded that the prosecutrix as on 25.01.1995 was not below 18 years. More so, when School Leaving Certificate was alleged to have been obtained by Smt. Shanti Devi on 23rd December, 1994, that is, prior to the date of incident, which on analysis and in the context of other relevant documents, rightly treated as not reliable document by the learned trial court . 11. It was said that horoscope was got prepared immediately after the birth of prosecutrix, in view of the testimony of Smt. Shanti Devi (PW-13), whereas as per the testimony of PW-28, the said horoscope was prepared after two years of birth of prosecutrix. PW-28 Shri Krishan Bhardwaj has, specifically in his testimony denied that he has not prepared any such horoscope, as has been claimed by PW-30. In these circumstances, the horoscope has not been relied upon by the learned trial court as the same has been prepared at the convenience of the Investigating Officer or at the convenience of PW-13, that is, mother of the prosecutrix. The prosecutrix did not examine Rajesh Diwan to show that how prosecutrix was residing with him. On scrutiny of the testimony of the prosecutrix, PW-1, her father ...8... expired on 28.01.1990. They are three brothers and sisters. Ram Sarup is elder to PW-1, aged about 17 years and other brother is Ved Prakash, who is younger to PW-1, aged about 13 years. Her brother resides with her mother at Ghora Chauki, Shimla. In the year 1994, PW-1 used to reside with Rajesh Diwan at Sanjauli, who is god brother of the prosecutrix. PW-1 has initially stated that when bus came to Nalagarh via Kunihar all passengers of the bus alighted from the bus at village Gurukund and only accused Jeevan Kumar and PW-1 were left in the bus and she was taken to the back seat of the bus and was sexually assaulted. PW-1 stated that at that time there were three persons in the bus, namely, Dev Raj, Subhash Chand and Jeevan Kumar and one by one she was sexually assaulted by them. 12. According to PW-1, such incident took place about 7:20 to 7:45 P.M. and then she was brought to Nalagarh by the same bus at about 8 P.M. PW-1 has also stated that on 26.01.1995 in the morning, at about 6 A.M., she came to Nalagarh alongwith accused Jeevan Kumar, Dev Raj and Subjash Chand. All came from Sallewal in a bus bound for Shimla, which bus was of accused Jeevan Kumar and when she boarded the bus at Nalagarh to Shimla accused Jeevan Kumar asked to have photograph with each of them. The brother of the accused Jeevan Kumar, namely, Ashok Kumar also met at bus stand Nalagarh where Jeevan Kumar told her to remain with Ashok Kumar, who would take her to leather factory. PW-1 further stated that accused Ashok Kumar alias Bittu was known to her and accused Jacky alias Gulsher also met them ...9... at bus stand Nalagarh, who came on a scooter. From the testimony of PW-1 nothing is revealed that what happened between 6 A.M. to 8 P.M. As per her own testimony she reached Nalagarh at 8 P.M. on 26.01.1995, whereas she had gone to the house of 'Tai' of accused Jacky and in between she had stopped at the place of a woman to whom she did not recognize. As per testimony of PW-1 when she reached at about 8 P.M. at Nalagarh, accused Jeevan Kumar and Dev Raj had already come in the bus and were present there. 13. PW-1 also stated that accused Jacky took the prosecutrix and on his motorcycle on the same road and after some distance, she boarded a bus and after covering some distance in the bus, accused Jeevan Kumar and she alighted from the bus near some hotel. In the meanwhile, a truck arrived there and there were two persons in the truck. Accused Jeevan asked PW-1 to board that truck and PW-1 was subsequently taken from truck to the hotel and was kept in room No. 7. As per the testimony of PW-1 on 26.01.1995 when she was taken to the hotel she was wearing pant and shirt. In cross-examination PW-1 has herself stated that she did not protest against accused Jeevan Kumar and Ashok in the fields, near Ram Sehar, when she was being sexually assaulted. She has also stated in cross-examination that during the entire episode she did not report to any one that she has been sexually assaulted by Jacky or she has been kidnapped from Shimla. She has admitted that on 25.1.1995, she remained in the company of Jacky for about 12 hours, from 8 A.M. ...10... to 8 P.M. without any protest. 14. PW-1 has also stated that she neither raised any alarm nor protested while she was being taken to a hotel where she was being sexually assaulted. PW-1 also stated that after coming to Shimla, she did not narrate the mis-happening to anybody. As per the testimony of PW-1, after birth of every child in the family, the horoscope is prepared, however, she did not know the Pandit (Priest), who had prepared her horoscope. The Pandit, who prepared her horoscope has died. She has further stated that she knew Jeevan Kumar earlier only by face. Accused Jeevan Kumar assured her for providing the job only at Shimla and she refused to accompany him at the first instance, but subsequently, she made her mind to accompany him. Bus of Jeevan Kumar was full of passengers from Shimla and there were passengers in the bus for Kunihar, Kumarhati, Ram Sehar and Nalagarh. She has further stated in cross-examination that the wife and children of accused Parlhad were present at his house when PW-1 went there. There are number of shops and houses on all sides of bus stand Nalagarh. PW-1 also stated that she made pose on her own for photography. She also stated that she did not made any complaint to the waiter. 15. The photographs which were taken at Nalagarh were not produced by the prosecution, probably in the photographs the consent of the prosecutrix and her willingness and amicable gestures were reflecting. The testimony of PW-1 is full of exaggerations and improbabilities. As per the testimony of PW-1, ...11... if she was sexually assaulted at the place of Pralhad, it is difficult to presume that how she was sexually assaulted when all family members were present at the house of Pralhad. One material improbability which is emanating from the testimony of the prosecutrix that when she was being sexually assaulted by Jeevan Kumar at the rear seat of the bus, what has prevented her to raise alarm. PW-1 more categorically stated that she did not divulge about the mis-happening to anybody and according to her own testimony the bus driven by accused Jeevan Kumar, which carried her to Nalagarh, was full of passengers, then under what circumstances she remained alone with accused Jeevan Kumar and by way of further improvement, she had told that other accused were also there in the bus when she was being sexually assaulted by accused Jeevan Kumar. The medical report of the accused have though clearly indicated that all the accused were capable of sexual intercourse, however, no mark of injury or violence was found on the body of the prosecutrix as well as accused. 16. PW-1 herself has stated that when she went to the hotel, she was wearing pant and shirt, however, PW-8, Prem Chand, who runs a 'Dhaba' at Chawkiwala, stated that three boys and one girl came to his dhaba and the girl was wearing jean pant and T-shirt. PW-9 is Shri Ramesh chand, brother of PW-8. He stated that accused Jeevan Kumar and Dev Raj had come on 25.1.1995 at about 9 P.M. at his Dhaba for taking meals and the girl was wearing a jacket and jean. In winter cold of January how ...12... prosecutrix could afford to wear only jean and T-shirt and when they went to the hotel, her different apparel was noticed by different persons. 17. On analysis of the prosecution witnesses, we do not notice any resistance, protest or any hue and cry ever raised by the prosecutrix and the prosecutrix remained in the company of accused for a considerable period without any protest and if any sexual assault was made against her will, there was no mark of injury on her person. Then it can safely be presumed that being a major lady, she had her own sweet will and consent for sexual intercourse. 18. On the basis of material on record and prosecution witnesses the learned trial court has rightly arrived at the conclusion that the prosecution has not proved its case beyond reasonable doubt. 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 17th June, 2010 (virender)