1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 110 of 2002 with Cr.Appeal No.237 of 2002 Decided on July 5, 2011 __________________________________________________________ State of H.P. …Appellant. Versus Santosh Kumar ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K.Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr.R.K. Sharma,Senior Additional Advocate General with Mr.Rajinder Dogra, Additional Advocate General. For the respondent: Mr. Vikrant Chandel, vice counsel. Justice R.B. Misra,J. (Oral) Criminal Appeal No.110 of 2002 has been preferred under Section 377 of the Code of Criminal Procedure by the appellant-State for the enhancement of conviction and sentence against the judgment dated 18.6.2001 passed by the learned Additional Sessions Judge-II, Kangra at Dharamshala, in Sessions Case No.2- P/1998, in reference to the guilt of accused under Section 511 IPC, whereby accused-respondent, namely, Santosh Kumar, was convicted for commission of offence under Section 511 IPC (in context to Section 376 IPC) and was sentenced to undergo 7 months imprisonment and to pay 2 fine to the tune of `3000/-, in default of payment of fine, he was to undergo further imprisonment for one month. 2. Criminal Appeal No.237 of 2002 has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure in reference to judgment dated 18.6.2001 passed by Learned Additional Sessions Judge-II, Kangra at Dharamshala, H.P., in Sessions Case No.2-P/1998, for the offence under Sections 376 of the Indian Penal Code, acquitting the alleged respondent-accused, in reference to FIR No.350 of 1996 dated 14.10.1996. 3. The prosecution case, in brief, is that the victim- prosecutrix (name not given) was allegedly sexually assaulted by her step father, namely, Santosh Kumar (accused-respondent), the resident of Mohal Mahroon, Mauja Daroh, Tehsil Palampur, District Kangra. The incident dated 9.10.1996, was narrated by the victim- prosecutrix to her mother Smt.Raj Kumari (PW.10), who reported the matter to the Pradhan Gram Panchayat, namely, Shakuntla Devi (PW.6). On 14.10.1996, Smt.Simro Devi, Ward Panch, Shakuntla Devi accompanied the victim-prosecutrix and her mother to the Court of Sub- Divisional Magistrate, Palampur, who after recording the statement of the victim-prosecutrix referred the statement so recorded to the SHO Police Station, Palampur. Formal 3 FIR No.350 of 1006 dated 14.10.1996, in the matter, was lodged in the police station. The medical examination of the victim-prosecutrix was conducted. After investigation, respondents-accused was charged for the aforesaid offences. 4. In order to prove its case, the prosecution examined as many as 13 prosecution witnesses, whereas, the accused through his statement under Section 313 of Cr.P.C., has denied the prosecution case. 5. PW.1 Dr.Dinesh Sood examined the victim- prosecutrix and assessed her age between 12-15 years. PW.2 Dr.Subhash Sharma has conducted the medical examination of the accused-respondent at Primary Health Centre, Bhawarna and noted swelling pilting on pressure over lateral aspect of the left ankle. PW.3 Dr.Sushma Sood examined the victim-prosecutrix and issued MLR Ex.PW.3/C and made the following observations:- “On examination that girl is moderately built and nourished height is 4 feet 6 inch. Number of teeth are 28. the patient was walking comfortably. The clothes re-changed. The clothes worn at the time of incident are sent for chemical test duly signed. Secondary characters are well developed, menarche not attained as per their statement. No mark of injury on any other part of the body. Local examination: hymen is torn. Admits one finger easily. No bleeding on examining finger. No other injury on any part. Two vaginal swabs and smears taken and sent for chemical examination.” 4 PW.3 Dr.Sushma Sood has given her medical opinion indicating that there was no evidence of presence of semen in the report of the Chemical Examiner, however, attempt of rape cannot be ruled out. 6. PW.5 Sh.Abhinash, Head Master, Government Middle School, Marhoon, has indicated the date of birth of the victim-prosecutrix as 19.10.1983. 7. PW.6 Smt.Shakuntla Devi, Pradhan Gram Panchayat, Marhoon has deposed that on 13.10.1996, she was told by mother of the victim-prosecutrix that on 9.10.1996, the accused-respondent, the step father of the victim-prosecutrix, sexually assaulted her daughter. 8. PW.7 Smt.Simro Devi in whose presence the statement of the victim-prosecutrix was recorded as Ex.PW.6/B. PW.8 Sh.Jagdish Chand, was working as Mason in the house of Smt.Shakuntla Devi, has stated that the accused-respondent had attempted to rape victim- prosecutrix. PW.9 victim-prosecutrix, however, has resiled from her initial statement and was declared hostile. 9. PW.10 Smt.Raj Kumari, the mother of the victim-prosecutrix, has also not supported the prosecution case and was also declared hostile, however, in cross- examination, PW.10 Smt.Raj Kumar, has stated that she went to the office of SDM Palampur and SDM Palampur has recorded the statement of her daughter as Ex.PW.13/A. 5 PW.10 Smt.Raj Kumar has further stated that statement of her daughter was written by the Reader under the supervision and dictation of the SDM, Palampur. Ex.PW.8/A reveals that accused-respondent made an attempt to sexually assault the victim-prosecutrix and Ex.PW.8/A was recorded as per the version of PW.10 Smt.Raj Kumari, the mother of the victim-prosecutrix. The statement (Ex.PW.13/A) made by the victim-prosecutrix before the SDM, Palampur, is duly signed by the victim- prosecutrix. 10. PW.13 Sh.Madan Chauhan, General Manager, while working as SDM, Palampur at the relevant time, has very categorically stated that he recorded the statement (Ex.PW.13/A) of the victim-prosecutrix in presence of her mother and the Pradhan, at that time, was sent out of the Court room. PW.13 has further stated that statement of the victim-prosecutrix was written by the Reader under his supervision & dictation. PW.13 Sh.Madan Chauhan has further stated that the statement (Ex.PW.13/A) was recorded whatever stated by the victim-prosecutrix (PW.9). 11. The statement (Ex.PW.13/A) so recorded by the SDM, reveals that when victim-prosecutrix came to her house at about 4.00 P.M. on 9.10.1996, was ready to go for washing the clothes and was asked by her step father to 6 press his legs and when victim-prosecutrix started pressing the legs of her step father, she was asked to come nearer and was further asked to show her tongue. Thereafter, the victim-prosecutrix was asked to suck private organ of her step father. In these circumstances, the victim- prosecutrix, came out, however, she was again called the accused, who asked her to sit. Thereafter, she was asked to open her head-wear (Chunni) and she was threatened for beating. Thereafter, the victim-prosecutrix was made to lie on the cot and after opening the string of the salwar of the victim-prosecutrix, she was molestrated. On whisper by victim-prosecutrix, that her grand mother is coming, accused-respondent left her. Such innocent testimony, at the initial stage, recorded by the SDM, Palampur (PW.13) is though not subsequently corroborated by the victim- prosecutrix (PW.9) as well as Smt.Raj Kumari (PW.10), however, keeping in view the statement of medical expert and initial complaint (Ex.PW.13/A) recorded at the instance of the victim-prosecutrix and on analysis of the other prosecution witnesses as well as materials on record, we arrive at a definite conclusion that the prosecution has not been able to prove the guilt of accused-respondent under Section 376 IPC. On analysis of the prosecution witnesses and materials on record, learned Additional Sessions Judge, in our considered view, has rightly arrived at the findings 7 that the prosecution has been able to prove the guilt of accused-respondent for the offence punishable under Section 511 in context of the sexual assault as indicated under Section 376 IPC. 12. On scrutiny of the impugned judgment, we do not find any scope of interference on the findings given by the learned Additional Sessions Judge, as such, we do not find any merit in criminal appeal No.237 of 2002 for setting aside the acquittal under Section 376 of IPC against the accused-respondent and is affirmed accordingly. However, in respect of the verdict of learned Additional Sessions Judge holding the accused-respondent guilty of offence under Section 511 of IPC in the context of Section 376 IPC, there is no scope of any interference in it and the criminal appeal No.110 of 2002 is being adjudicated by imposing the adequate sentence to the accused-respondent. In our considered view, after holding the accused-respondent guilty for the offence under Section 511 of IPC (in context of offence under Section 376 IPC), the sentence imposed upon the respondent-accused is inadequate and keeping in view the fact that the accused-respondent was step father, who had attempted to sexually assault her daughter, i.e., the victim- prosecutrix (PW.9), is hereby sentenced to undergo imprisonment for 3 years with fine to the tune of `4000/- 8 and for non payment of this fine the accused-respondent shall have to undergo rigorous imprisonment for further period of 3 months. 13. In view of the aforesaid facts and circumstances, criminal appeal No.110 of 2002 is accordingly allowed. It is also indicated that the sentence undergone by the accused-respondent shall be reduced from the aforesaid sentence so awarded. Arrest warrants be prepared accordingly against the accused-respondent and he be kept in jail to undergo the sentence so awarded. (R.B. Misra) Judge July 5, 2011 (V.K.Sharma) (Purohit) Judge