IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 192 of 2008 Judgment reserved on : June 19, 2009 Date of Decision: 23.6.2009 Mushtaq Ahmad ... Appellant Versus State of H.P. … Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant: Mr. Rakesh Kanwar, Advocate. For the Respondent: Mr. Ramesh Thakur, Assistnat Advocate General Surjit Singh, J. (Oral) Appellant has challenged, in this appeal, judgment dated 29.3.2008 of learned Sessions Judge, whereby he has been convicted of offences, under Sections 363, 366, 376 and 120-B IPC and sentenced to undergo rigorous imprisonment for seven years and to pay a fine Rs.10,000/- for offence, under Section 376 IPC and to undergo rigorous imprisonment for three years and to pay a fine of Rs.5000/- for each of the other two offences, under Sections 363 and 366 IPC, but no separate sentence for offence, under Section 120-B IPC has been imposed. 2. Allegations, which led to the charging, trial, conviction and sentence of the appellant for the aforesaid offences may be summed up thus. Prosecutrix, aged about 14 years, was a student of 8th standard in a Government School, falling within the jurisdiction of Police Station, Nalagarh, in February, 2007. On 12.2.2007, she left her village for the school in village Rajpura. Whether reporters of the local papers may be allowed to see the judgment? - 2 - She did not return home in the evening. On inquiry, her parents came to know from the classmates of the prosecutrix that she had not attended the school that day. Report was lodged with the police about the prosecutrix having gone missing by the mother of the prosecutrix, namely PW-1 Bimla Devi. Copy of the report is Ext.PW1/A. This report was lodged on the very day of the prosecutrix having gone missing. Case was, however, registered on 22.2.2007, vide FIR Ext.PW1/B, when one Mohi Ram, a Rehriwala, told the parents of the prosecutrix that he had seen the prosecutrix boarding a bus for Ropar alongwith Manjoor Ahmad, a tenant in the house of one Asha Devi, a neighbour of the parents of the prosecutrix. Present appellant also used to live in the house of said Asha Devi, as a tenant. He was known to the prosecutrix family as he had become god brother of an elder sister of the prosecutrix. 3. On 7.3.2007, PW-12 Raj Kumar, SHO Police Station, Nalagarh received information that the prosecutrix and the appellant had been taken into custody by Treh Gram Police in Kupwara District of Jammu and Kashmir. He went to the said Police Station and found that the prosecutrix and the appellant were there. He got their custody transferred to himself and brought them to Nalagarh, where the prosecutrix was got medically examined on 11.3.2007. Her hymen was found ruptured. Doctor opined that sexual intercourse had taken place. 4. During the course of investigation, prosecutrix told that she had been taken to Ropar by Manjoor Ahmad, a Proclaimed Offender in this case, and from there he took her to Amritsar and kept her there for a week and raped her. She - 3 - further stated that from Amritsar she was taken to Jammu, where the present appellant joined Manjoor Ahmad and from Jammu she was taken to Kupwara by the appellant and Manjoor Ahmad and where Proclaimed Offender Manjoor Ahmad handed her over to the appellant and disappeared. She told that she had been kept at the house of one Gulam Navi, where appellant Mustaq had raped her. 5. Clothes, which the prosecutrix was wearing at the time of her medico legal examination, were taken into possession by the doctor, namely PW-8 Sunita Sood and made into a parcel. Those clothes were sent to the Chemical Examiner, who found stains of human semen on her underwear and salwar. Certificates regarding date of birth of the prosecutrix were obtained both from the school, she had been studying in, as also the Registrar of Births and Deaths. As per those certificates, her date of birth is 1.10.1992. 6. On case having been committed to it, Sessions Court charged the appellant with the aforesaid offences. Appellant pleaded not guilty to the charge and was, therefore, put on trial. 7. Prosecution examined, the prosecutrix, her mother, the doctor, who conducted the medico legal examination of the appellant as also the doctor, who conducted the medico legal examination of the prosecutrix and also proved the certificates, regarding date of birth of the prosecutrix, issued by the School and the Registrar of Births and Deaths. 8. Appellant, in his statement, under Section 313 Cr. P.C, denied having committed rape or having kidnapped prosecutrix, though he did admit that he was arrested by the - 4 - Police of Treh Gram and from there he was brought to Police Station, Nalagarh. He stated that the prosecutrix had made a false statement against him, at the instance of her parents. 9. Learned trial Court came to the conclusion that there was no reason to disbelieve the testimony of the prosecutrix and consequently convicted and sentenced the appellant, as aforesaid. 10. I have heard the learned counsel for the appellant as also the learned Assistant Advocate General and gone through the record. 11. Learned counsel for the appellant submitted that testimony of the prosecutrix, examined as PW-2, does not inspire confidence and, there being no evidence corroborating her shaky testimony, conviction of the appellant is liable to be set aside. He also submitted that the police, the parents of the prosecutrix and the doctor had conspired to falsely implicate the appellant, because the real culprit, Manjoor Ahmad, could not be traced by the Police. 12. He started with his submission that the best evidence with regard to the age of the prosecutrix had not been produced, but when his attention was drawn to the fact that the testimony of the mother of the prosecutrix, namely PW-1 Bimla Devi as also that of the prosecutrix, with regard to the age of the prosecutrix, had not been challenged in the cross- examination and that there was also certificate issued by the Registrar of Births and Deaths Ext.PW5/A, duly proved by PW-5 Kishor Kumar, who appeared alongwith original Register of Births and Deaths, learned counsel did not press this submission. - 5 - 13. To substantiate his plea that the testimony of the prosecutrix was not reliable and that there was a conspiracy among the prosecutrix, her parents, the doctor and the police to falsely implicate the appellant, learned counsel drew the attention of the Court to the testimony of the prosecutrix and PW-8 Dr. Sunita Sood, who conducted her medico legal examination and urged that the story regarding the clothes of the prosecutrix having been taken into possession and human semen having been found thereon had been concocted. He also drew the attention of the Court to the statement of DW-1 Gulam Navi, at whose place the prosecutrix had allegedly been raped by the appellant, to buttress the submission. 14. PW-8 Dr. Sunita Sood, while in the witness box, stated that shirt Ext.P-2, salwar Ext.P-3 and underwear Ext.P-4 of the prosecutrix had been sealed by her at the time of conducting her medico legal examination. PW-2, the prosecutrix, stated that she had changed her clothes (this part of her statement is not available in the English version of the evidence, but is recorded in her vernacular statement). At the same time, she stated that shirt Ext.P-2, Salwar Ext.P-3 and underwear Ext. P-4 are the same, which she was wearing at the time of occurrence. In the medico legal report, pertaining to examination of the prosecutrix, which is Ext.PW8/B, it is recorded that the clothes worn by the prosecutrix on the day of assault could not be sent to Chemical Examiner as the victim had worn different clothes. 15. Learned counsel for the appellant submitted that reference to the aforesaid effect, in medico legal report Ext.PW8/A, clearly indicated that no clothes of the prosecutrix had - 6 - been taken into possession or sent to Chemical Examiner, but this story was introduced subsequently to create evidence against the appellant and this by itself is sufficient not only to discredit the testimony of the prosecutrix, but also to presume that the prosecutrix, her parents, the police and the doctor conspired to falsely implicate the appellant. 16. No doubt in the medico legal report Ext.PW8/B it is mentioned that the clothes, which the prosecutrix was wearing on the day of assault, could not be sent to Chemical Examiner as the victim had changed her clothes, but that does not mean that the clothes, which the prosecutrix was wearing on the day of her medical examination, had also not been taken into possession. PW-8 Dr. Sunita Sood very categorically stated that the clothes of the prosecutrix, i.e. shirt Ext.P-2, Salwar Ext.P-3 and underwear Ext.P-4 had been sealed by her. That suggests that these clothes were worn by the prosecutrix at the time when she was medically examined. No doubt the prosecutrix stated that these were the clothes, which she was wearing at the time of the occurrence and this statement, on the first look, appears to be contradictory to the mention in the medico legal report Ext.PW8/B that the clothes, which she was wearing at the time of occurrence, could not be sent to the Chemical Examiner, but when it (the statement of the prosecutrix) is seen in the light of the entire evidence, it becomes clear that the said statement is not contradictory either to the aforesaid mention in the medico legal report or the testimony of the doctor. 17. The prosecutrix had been kidnapped on 12.2.2007. She remained in the custody of her kidnappers for about a month. - 7 - She was raped for a number of days. During this period she must have changed her clothes several times. The clothes, which were sealed by PW-8 Dr. Sunita Sood, were worn by the prosecutrix when she was medically examined. It is nobody’s case that she, on having been brought from Jammu and Kashmir, had changed her clothes. That means she was wearing those very clothes, which were worn by her at the time she was taken to Police Station, Treh Gram in Jammu and Kashmir and was then brought to Police Station, Nalagarh in Himachal Pradesh. When taken to Police Station, Treh Gram in Jammu and Kashmir, she was supposed to be wearing those very clothes which she was wearing at the time, when subjected to sexual intercourse at the house of Gulam Navi and, so, stains of human semen were supposed to be there. Therefore, the theory of conspiracy by the prosecutrix, her parents, the police and the doctor cannot be accepted. Otherwise also, why should have these persons conspired against the appellant, particularly when he is god-brother of the elder sister of the prosecutrix. Also, this fact rules out the possibility of the appellant having been falsely implicated by the prosecutrix. Naming the appellant falsely would not have served any purpose of the prosecutrix or her parents. 18. It was also submitted by the leaned counsel for the appellant that there was no evidence, worth the name, led on behalf of the prosecution, to prove that the prosecutrix and the appellant were together at any point of time at the house of Gulam Navi, but on the contrary by examining Gulam Navi as DW- 1 the appellant has proved that he had never been at his house. - 8 - 19. No doubt DW-1 Gulam Navi stated that the prosecutrix had been brought to his house by Manjoor Ahmad, and he left her there saying that he would be taking her back after a few days and that the present appellant never visited his house nor did he know him from before and had seen him for the first time in the Court, but his statement, on the face of it, at least to the extent that he was not knowing the appellant from before, is false. The witness is resident of village Dhar-Dharhare Sigdhan. Appellant is also resident of that very village as testified by DW-2 Gulam Hassan, who is also resident of village Dhar Dharhare Sigdhan. DW-2 very categorically stated that the appellant belongs to his village and, so, he knows him. Now if the appellant is resident of the same village as DW-1 Gulam Navi, it is highly unbelievable that the latter did not know him. 20. Further, the conduct of the witness, in appearing, as a witness of the appellant, without being summoned as a witness, also falsifies his statement that the appellant was not known to him from before. The witness categorically admitted that he had not received any summons from the Court. If there was no summons from the Court to the witness, it can legitimately be presumed that he came to the Court, at the instance of the appellant, to help him from a far off place in the State of Jammu and Kashmir and this he could not have done, if the appellant not known to him. In any case there should be no reason to disbelieve the testimony of the prosecutrix that the appellant had raped her at the house of DW1 Gulam Navi. 21. Learned counsel further submitted that as per statement of DW-1 Gulam Navi his house consisted of only one - 9 - room, in which he lived alongwith his wife and five children and the prosecutrix also stayed in that very room and, hence, there could not have been any opportunity for the appellant to have raped her. No suggestion was put to the prosecutrix that the house of DW-1 Gulam Navi, where she was kept, consisted of only one room and there was no occasion or opportunity, available to the appellant to rape her. Even if it be assumed for the sake for argument that the house of DW-1 Gulam Navi consisted of only one room, that by itself would not mean that the prosecutrix was not raped there. Prosecutrix has not stated that she was raped, when the family members of DW-1 Gulam Navi were there or rape had taken place during night time, when family members were supposed to be there. The prosecutrix could have been raped during day time, when DW-1 Gulam Navi and his family members were not supposed to be in the house. 22. In view of the above stated position, I am of the considered view that there is no scope for interfering with the well reasoned judgment of the trial Court. Consequently, the appeal is dismissed. June 23, 2009(ss) (Surjit Singh), J