IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No. 19 of 2010 Judgment reserved on: 17.6.2011 Date of decision: 11.7. 2011. Dinesh Kumar …Appellant. Versus State of Himachal Pradesh ..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the Appellant : Mr. V.S.Chauhan, Advocate. For the Respondent : Mr. J.S.Rana, Asstt. A.G. __________________________________________________________ Kuldip Singh, Judge The convict has assailed the judgment of conviction and sentence dated 22.12.2009 passed by learned Sessions Judge (Special Judge) Kinnaur Sessions Division at Rampur Bushahr in Sessions Trial No. 17 of 2005 convicting the appellant under Sections 363, 366, 376 and 506 IPC and Section 3 (i) (xii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989 (for short Atrocities Act) and sentencing him to undergo rigorous imprisonment for 7 years and fine of ` 20,000/- and in default of payment of fine to undergo further rigorous imprisonment for one year under Section 376 IPC, rigorous imprisonment for one ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? 2 year and fine of ` 10,000/- and in default of payment of fine to undergo rigorous imprisonment for two months under Section 3 (i) (xii) of the Atrocities Act. No separate sentence has been imposed under Sections 363, 366 and 506 IPC. 2. The prosecution case in brief is that on 17.9.2004 PW-4 prosecutrix accompanied by her father PW-5 Lolak Ram reported the matter at Police Station, Rampur that for the last about one month, Dinesh Sharma had been meeting her on her way to school and used to ask her to marry him. On 13.9.2004 at about 2.00 a.m. when the prosecutrix was sleeping with her mother PW-6 Heera Devi in the house, door was knocked, on opening the door, Dinesh Sharma was found standing outside and he came inside the house. He threatened the prosecutrix and her mother. He told her mother that he wanted to marry the prosecutrix, the mother of the prosecutrix had shown her inability to marry the prosecutrix belonging to Scheduled Caste to Dinesh Sharma, who claimed to be a ‘Pandit’. The father of the prosecutrix on that date was not in the house. Dinesh Sharma remained in the room and kept on talking. 3. In the morning mother of the prosecutrix had gone outside in the field, Dinesh Sharma also left the house. However, at about 8.00 a.m. Dinesh Sharma again came in the house and forcibly took prosecutrix towards Bhaira Khad and thereafter towards Satluj River below the road where the prosecutrix was threatened that in case she would raise hue and cry, he would throw her in the Satluj. She was raped 4-5 times, in the evening at 3 about 7.00 p.m. prosecutrix was taken towards Nirath where she was kept during night where prosecutrix was again raped 3-4 times. On 15.9.2004 at about 2.00 p.m. the prosecutrix was sent in the vehicle of one Sushil to her house. The prosecutrix told Dinesh Sharma how she would face her mother, Dinesh Sharma told prosecutrix that he had no money and he would come again to take her away from her house. 4. The prosecutrix on reaching her house narrated the incident to her mother, her father also reached house. The prosecutrix narrated the incident to her father also. On the report made by the prosecutrix, the case was registered, she was medically examined, the case was investigated. In the investigation, the date of birth of the prosecutrix was found to be 17.1.1988. The caste certificate of the prosecutrix was collected and she was found to be belonging to Scheduled Caste. On completion of investigation, report under Section 173 Cr.P.C. was filed against Dinesh Kumar for offences punishable under Sections 363, 366, 376 and 506 IPC and Section 3(i) (xii) of the Atrocities Act. The case was committed. 5. The charge was framed for offences punishable under Sections 363, 366, 376 and 506 IPC and Section 3 (i) (xii) of the Atrocities Act. The prosecution has examined 17 witnesses and produced some documents. The statement of accused under Section 313 Cr.P.C. was recorded, he denied the prosecution case. He led no evidence in defence. On conclusion of trial, the learned 4 Special Judge convicted and sentenced the accused, as noticed above, hence appeal. 6. I have heard the learned counsel for the parties and have also gone through the record. It has been submitted on behalf of the appellant that learned Special Judge has not properly appreciated the material on record. The prosecution has miserably failed to prove the case. The prosecutrix on the date of alleged occurrence was more than 16 years of age. In any case, the present case at the most is of consent and not of rape, learned Special Judge erred in convicting and sentencing the appellant. The appellant has not been sentenced under Sections 363, 366 and 506 IPC, the State has not filed any appeal against the impugned judgment in which no sentence has been passed against the appellant under Sections 363, 366 and 506 IPC, therefore, to this extent, the impugned judgment as against State has attained finality. The question left for consideration is only whether the conviction and sentence of the appellant under Section 376 IPC and Section 3 (i) (xii) of the Atrocities Act is sustainable. The learned counsel for the appellant has prayed for setting-aside impugned judgment of conviction and sentence and acquittal of the appellant. The learned Assistant Advocate General has supported the impugned judgment and has submitted that the learned Special Judge has properly appreciated the material on record and the impugned judgment does not require any interference. 5 7. PW-1 Dr. Tanzin Chhokit, Medical Officer, examined the prosecutrix on 17.9.2004 and issued MLC Ex.PW-1/B with the observations as follows:- “Marks of violence on body Injuries found on body. 1. Abrasion 0.4 x 0.4 cm. round, reddish brown scab on right elbow joint mideal border. 2. Abrasion on left buttock 0.3 x 0.1 cm. size vertical on the prominal part of buttock, reddish brown in colour. Local Specific Examination. 1. Pubic hair not matted, no loose hair seen. 2. Labia majora – no injuries detected. 3. Labia minora – no injuries detected. 4. Hymen ruptured posterior laterally on both sides and superiorly, hymen was healed. No marks of injuries seen, no tenderness, no swelling detected. 5. Per Speculum Examination –Speculum entered with difficulty due to narrow vagina, cervix vagina no injury detected. Vaginal orifice admitting two fingers with difficulty, uterus retroverted size. Cervix upword, fornices free”. Opinion of the doctor is as follows:- “On the basis of above findings, I am of the opinion that sexual activity had occurred. However, duration could not be ascertained. However, duration of injuries was 12 hours to 72 hours”. PW-1 has also stated that Ultrasound of the prosecutrix was conducted on 24.1.2005 and single living foetus with average gestation age of 20 weeks plus 2 days was detected. The date of expected delivery was 6.6.2005 with plus and minus two weeks. It cannot be specifically ruled out that victim was indulging in sexual 6 activities earlier. PW-2 Uday Singh, Naib-Tehsildar, has proved Ex.PW-2/A caste certificate of prosecutrix and Ex.PW-2/C caste certificate of Dinesh Kumar. PW-3 Main Ram has proved another caste certificate Ex.PW-3/C of Dinesh Kumar. 8. PW-4 prosecutrix has stated that she belonged to Scheduled Caste. She has stated that accused used to meet her on her way to school. On 13.9.2004 during night at 2.00 a.m. when she was sleeping in her room, her door was knocked from outside, she opened the door and found accused outside. He threatened that he would kill her in case she would raise cries. Her mother was also sleeping in her room and her father was not at home. The accused remained in their house throughout the night, he continued talking with her mother. At about 7.00 / 8.00 a.m. her mother had gone to the fields leaving her in the house. The accused had also left their house. He returned at about 9.00 a.m. when she was all alone in the house. He threatened her and took her away forcibly to Bhaira Khad from there she was taken on the bank of Satluj River. The accused threatened her that in case she would raise hue and cry, he would throw her in the Satluj River. The accused forcibly raped her 4-5 times. At about 7-8 p.m. the accused took her towards Nirath and she was kept whole night behind the boulders, during night, accused again raped her. She was kept behind the boulders till 2.00 p.m. 9. PW-4 continued that she was then sent by the accused in the vehicle of Sushil, who left her at Pandadhar. She conceived as a result of rape and gave birth to one son. After the 7 birth of the child, the Court has awarded maintenance in favour of the child against the accused. On 3/4.6.2006 she married with one Beli Ram and she had given birth to one daughter on 28.5.2007. In cross-examination, she has stated that distance between her house and Bhaira Khad is about 5 K.M. and there are houses on the way. The distance between Nirath and Bhaira Khad is 3-4 KMs., there are about 15-20 shops at Nirath. There is a bus stand at Nirath. The person in whose vehicle she came to Pandadhar was known to her being her neighbour. She did not disclose anything to him. 10. PW-5 Lolak Ram is the father of the prosecutrix. He has stated that accused had kept his daughter for one night and two days with him. PW-6 Hira Devi is the mother of the prosecutrix. She has stated that accused had come inside their house at about 2.00 a.m., he threatened them. The accused remained in their house till 7.00 a.m. She went to her field to cut grass and her daughter remained alone in the house. She returned at about 11.00 a.m. and found prosecutrix was missing and her school bag was lying inside the house. The prosecutrix could not be traced. The prosecutrix returned to her house next day at about 6.00 p.m. The prosecutrix narrated her incident and thereafter the matter was reported to the Police. 11. PW-6 in cross-examination has stated that they had a scuffle with the accused to throw him out from their house and she even hit him with danda. PW-10 Kailash Chand has proved birth certificate Ex.PW-10/A of the prosecutrix showing her date of birth 17.1.1988. PW-11 Tulsi Ram has proved caste certificate Ex.PW- 8 2/C of Dinesh Kumar. PW-12 Gurdev Singh, Patwari has proved caste certificate Ex.PW-2/A of prosecutrix. PW-13 Shyama Nand Verma has proved school leaving certificate Ex.PW-13/A of the prosecutrix. PW-15 Dr. Vimal Negi has proved MLC Ex.PW-15/B of accused and has stated according to his opinion there was nothing to suggest that accused was incapable of having sexual intercourse. PW-17 Bhajan Singh Negi, Investigating Officer has stated that distance from the house of the prosecutrix to the spot at Bhaira Khad is about 3 KMs by short-cut and there are houses on the way. There are 2-3 shops and some residential houses near the spot. The accused in his statement under Section 313 Cr.P.C. has denied the prosecution case. 12. Ex.PW-1/B is the MLC of the prosecutrix wherein doctor has given the opinion that sexual activity had occurred. However, duration cannot be ascertained. Ex.PW-5/A is the FIR. Ex.PW13/A is the school leaving certificate of the prosecutrix showing her date of birth as 17.1.1988. Ex.PW-17/E is the certificate issued under the Births and Deaths Registration Act, 1969 showing 17.1.1988 date of birth of the prosecutrix. Ex. PW-17/F is the copy of Pariwar Register wherein the date of birth of the prosecutrix is recorded as 17.1.1988. Ex. PW-2/A is the caste certificate of prosecutrix showing her belonging to Scheduled Caste (Koli). Ex.PW-2/C is the caste certificate of accused showing him Brahman (Bhardwaj). Ex.PW-17/H is the Forensic Science Laboratory report showing that no blood or semen was found on the vaginal swab, pubic hair, underwear of the prosecutrix. 9 However, on the underwear of the accused, human semen was found but no blood. 13. The learned counsel for the appellant has relied Alamelu and another vs. State (2011) 2 SCC 385 and has submitted that undoubtedly, the testimony of victim of sexual assault is at par with testimony of an injured witness and is entitled to great weight. The corroboration for the testimony of victim would not be insisted upon provided the evidence does not suffer from any basic infirmities and improbable factors do not render it unworthy of credence. He has submitted that it is clear from the prosecution evidence that the prosecutrix was above 16 years on the date of alleged incident, she herself voluntarily accompanied the accused, which indicates that sexual act, if any, performed by the accused with the prosecutrix was with her consent. In these circumstances, it cannot be said that the appellant has committed an offence punishable under Section 376 IPC or Section 3(i) (xii) of the Atrocities Act. The testimony of prosecutrix does not inspire confidence. The learned counsel for the appellant has also relied Radhu vs. State of Madhya Pradesh (2007) 12 SCC 57 in support of his contention. On the contrary, the learned Assistant Advocate General has relied State of U.P. vs. Chhotey Lal (2011) 1 S.L.J. 228 and has submitted that not raising of alarm by prosecutrix at the place where she was taken cannot lead to an inference that she had willingly accompanied the accused. It has been argued that the circumstances were so compelling that made the prosecutrix submit to accused without protest. In these 10 circumstances, from the conduct of the prosecutrix accompanying the accused it cannot be inferred that she willingly and voluntarily consented for sexual intercourse. 14. There is enough material on record in the form of school leaving certificate Ex.PW-13/A, certificate Ex.PW-17/E under Births and Deaths Registration Act, 1969, Ex.PW-17/F copy of Pariwar Register showing date of birth of the prosecutrix 17.1.1988. Thus, on the date of occurrence on 14.9.2004 she was above 16 years. The prosecutrix lodged FIR Ex.PW-5/A on 17.9.2004 and stated therein that accused had been meeting her for the last one month and insisting her for marrying him. He came to her residence at 2.00 a.m. in the intervening night of 13/14.9.2004 and stayed there till morning. The prosecution case is that accused threatened the prosecutrix and her mother at that time to remain silent is not believable. PW-6 has stated that she tried to throw him out and even struck him with danda blow but this has not been stated so by the prosecutrix. It has come in evidence that PW-6 left the house in the morning leaving alone the prosecutrix in the house though at that time according to prosecution the accused had also left the house. It is not the case of the prosecution that house of the prosecutrix is situated at a lonely place. It is surprising that PW-6 Heera Devi did not inform and tried to take help of anyone about the alleged unauthorized trespass and misbehaviour of the accused. 15. It has come in evidence that accused again came in the house of the prosecutrix at about 9.00 a.m. on 14.9.2004 and 11 took the prosecutrix to Bhaira Khad and from Bhaira Khad to the bank of Satluj River. It has also come in evidence that distance from the house of the prosecutrix to Bhaira Khad is about 5 KMs. and from Bhaira Khad to Nirath 4 KMs. and on the way there are houses and shops. It has also come in the evidence that there are houses and shops near the place where the prosecutrix was allegedly raped. But it is very strange that prosecutrix accompanied the accused without protest, objection and resentment. The prosecution case is that prosecutrix accompanied the accused because of threats but there is no worth believing evidence to accept the version of the prosecutrix regarding threats of the accused. 16. It is nobody’s case that the accused was having some lethal weapon which could be used by him to execute the threat. PW-4 has alleged that she was raped on two occasions repeatedly. It is also her case that ultimately she returned to her house with one Sushil her acquaintance. But in her statement, she has stated that she did not tell the incident to Sushil. The prosecution initially cited Sushil as witness but lateron gave him up not on the ground that he was won-over but on the ground that he was repetitive witness. The examination of Sushil by the prosecution would have possibly unfolded more. 17. It appears the prosecutrix of her own willingly and voluntarily accompanied the accused who was not a stranger to her. They were meeting each other for the last about one month prior to the date of occurrence. PW-1 Dr. Tanzin Chhokit has stated 12 that Ultrasould of the prosecutrix was conducted on 24.1.2005 and single living foetus with skull and spine and heart with average gestation age of 20 weeks plus 2 days was found. Thus, on 24.1.2005 the prosecutrix was carrying foetus of 142 days. In other words, the prosecutrix conceived on or about 6.9.2004, even if it is assumed that prosecutrix was carrying the pregnancy of accused of 142 days when she was examined on 24.1.2005 still it can be safely concluded that the prosecutrix and the accused were very intimate and having physical relations even prior to 13/14.9.2004. In these circumstances, it is not believable that when prosecutrix and the accused were having already intimate physical relations then accused would extend threats to the prosecutrix forcing her to accompany him and to have sexual intercourse with him. 18. It appears the prosecutrix and accused could not marry due to difference of castes. The prosecutrix belonged to Scheduled Caste (Koli) and the accused belonged to Brahmin (Bhardwaj) caste, which compelled them not to solemnize marriage. The refusal for marriage was from prosecutrix side which is clear from the statement of PW-6 Heera Devi mother of the prosecutrix. Once the possibility of marriage between the prosecutrix and the accused was ruled out from the girl side then the case was reported to the police. It has come in evidence that the prosecutrix lateron married with one Beli Ram. 19. In State of U.P. Vs. Chhotey Lal (supra), the prosecutrix was removed from the lawful custody of her brother. She was taken to different places by two adult males under threat 13 and kept her in a rented room for many days, her mouth was gagged. The prosecutrix was illiterate and rustic. One accused wielded firearm and threatened the prosecutrix. In that case it has been observed that any alarm at unknown place might have endangered her life. On the facts of that case it was held that absence of alarm by the prosecutrix at the public place cannot lead to an inference that she had willingly accompanied the accused. The circumstances made her submissive victim and that does not mean that she was inclined and willing to intercourse with the accused. She had no free act of the mind during her stay with accused as she was under constant fear. In the present case, the facts are different. The prosecutrix accompanied the accused more or less in the same area, the accused was not having any firearm or any other lethal weapon with him. The prosecutrix had not shown her objection, resentment, protest, she remained absolutely silent. The prosecutrix and accused had prior intimate physical relations. She did not even tell the incident to her acquaintance Sushil at first instance when accused was not even nearby. The facts in the present case are not so as to draw an inference that the prosecutrix had no option but to remain silent and submit to accused for sexual intercourse. Thus, State of U.P. Vs. Chhotey Lal (supra) is not applicable in the facts and circumstances of the present case. 20. The statement of prosecutrix in the present case does not inspire confidence. The learned Special Judge has not appreciated the evidence on record in convicting and sentencing 14 the accused under Section 376 IPC and Section 3(i) (xii) of the Atrocities Act. The accused has not been sentenced under Sections 363, 366 and 506 IPC. The State has accepted the verdict of learned Special Judge so far offences punishable under Sections 363, 366 and 506 IPC are concerned. In any case, prosecutrix herself voluntarily accompanied the accused, she had very close intimate relations with accused. Therefore, it cannot be said that the accused has committed even offences punishable under Sections 363, 366 and 506 IPC. The conviction and sentence of the appellant/accused under Section 376 IPC and Section 3 (i) (xii) of the Atrocities Act and conviction under Section 363, 366 and 506 IPC are not sustainable. 21. In view of the above discussion, the appeal is allowed, judgment dated 22.12.2009 passed by the learned Special Judge, Kinnaur at Rampur Bushahr is set-aside and the appellant/accused is acquitted of the charge, he be released immediately in case his detention is not required in any other case. (Kuldip Singh), July 11, 2011 Judge. (gr)