IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 544 of 2008. Judgment reserved on : 8th March,2010. Date of Decision: 23rd March, 2010. --------------------------------------------------------------------------------------------------- Dalbir Singh alias Dalla. …… Appellant. Versus State of H.P. ……. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? yes For the Appellant : Mr. Bipin C. Negi, Advocate. For the Respondent : Mr. J.S. Rana, Asstt. Advocate General. Surinder Singh, J: Appellant Dalbir Singh alias Dalla was convicted for the offence punishable under Sections 363, 366, 376 and 506 of the Indian Penal Code by the learned Additional Sessions Judge (Fast Track Court), Kangra at Dharamshala and sentenced him as under:- Sl.No. Offence under Section Sentence 1. 376 IPC Rigorous imprisonment for seven years and fine of Rs.30,000/- and in default of payment of fine, simple imprisonment for one year. 2. 366 IPC Imprisonment for five years and fine of Rs.10,000/- and in default of payment of fine, simple imprisonment for one - 2 - year. 3. 363 IPC Simple imprisonment for three years and fine of Rs.10,000/- and in default of payment of fine, simple imprisonment for six months. 4. 506 IPC Simple imprisonment for two years and fine of Rs.5,000/- and in default of payment of fine, simple imprisonment for three months. It was further ordered that the fine amount shall be paid as compensation to the victim on its realization and all the sentences were ordered to run concurrently. Feeling aggrieved by the impugned judgment of conviction and sentence, the appellant filed the instant appeal on law and facts. Heard and gone through the record. Precisely the facts giving rise to the instant appeal are that the prosecutrix Anjana (PW3) aged slightly less than 18 years was a school going girl. She was living with her parents in village Dhalor, Tehsil Jawalamukhi, District Kangra, H.P. On 3rd April, 2006, the prosecutrix had gone to her school and her mother Vidya Devi (PW1) was away to graze her cattle in the jungle. When she returned in the evening, she did not find the prosecutrix at her residence. She looked for her in the neighbourhood, but there was no trace. Later, she was - 3 - informed by PW4 Darshan Singh that the prosecutrix was seen in the company of the appellant the son of her sister at Dehra. When her husband returned late night, she narrated the above story. After about 3-4 days, the appellant informed PW5 Sureshtha, a neighbourer who was having telephone facility; that he intended to talk to the mother of the prosecutrix. She was called. The appellant informed PW1 telephonically that they were at Patiala and asked her to visit and settle the matter. It was thereafter, said Smt. Vidya Devi lodged report Ex.PW1/A, which culminated in the FIR of the present case. The prosecutrix was recovered and got medically examined by PW8 Dr. Anita Mahajan and then police handed over her to her parents. There was no mark of injury on her person, at that time she was carrying the pregnancy of 18 weeks and 5 days. Police recorded the statements of the witnesses and took into possession the birth certificate Ex.PW6/B from PW6 Desh Raj, Secretary of the Gram Panchayat. Skeletal age of the prosecutrix was got ascertained from the Radiologist PW9 Dr. Suman Dhiman and as per his report, the prosecutrix was found between 17 and 20 years. After completing the investigation, the challan was presented in the court for the trial of the appellant and his sister co-accused Maha Devi and her son Sanjeev Kumar, who were later on acquitted, but the - 4 - appellant was convicted and sentenced as aforesaid. The appellant denied the allegations. He alleged that PW7 Rajinder @ Happy was responsible for impregnating the prosecutrix. According to him, prosecutrix used to remain sick. On 3rd April, 2006, prosecutrix was accompanied by Vidya Devi (PW1) came to him. She was taken to Dehra for her medical treatment/abortion with her consent. PW1 Vidya Devi returned home. He took the prosecutrix to the house of his sister Maha Devi, where she stayed for 3-4 days and got her medically checked-up at Patiala and Ludhiana. He did not commit any sexual intercourse with her. When PW1 informed the appellant that a police report was lodged, he was advised by his sister Maha Devi to take her back to her house. They had stayed in the house of Maha Devi at Dherian. In the morning the police arrived there and he was apprehended. He alleged false implication. The appellant was called upon to enter into his defence, but he did not examine any evidence in defence. Learned trial Court disbelieved his version. Thus, he was convicted and sentenced, as aforesaid. On the reappraisal of the evidence, it is apparent that the prosecutrix, at the relevant time was slightly less than 18 years as is revealed from her M.L.C. Ext. PW3/A and also the birth certificate Ext. PW6/B proved by Shri Desh Raj, Secretary of the Gram - 5 - Panchayat. Further, the skeletal age proved by PW9 Dr. Suman Dhiman, the prosecutrix was found between 17 to 20 years. It is significant to note that at the time of her medical examination on 18.4.2006, conducted by Dr. Anita Mahajan, she was carrying the pregnancy of 18 weeks and 5 days. Said doctor testified on oath that before her medical examination, she revealed that about 4/5 month’s ago, she was sexually assaulted by her cousin Happy (PW7 Vijay Kumar, son of her real aunt). Vijay Kumar was examined as a prosecution witness in this case. He admitted that he had done some electrician work in the house of her parents in the month of April, 2006 which is corroborated by the prosecutrix and this date coincide with her date of conception. He also stated that he used to visit them once or twice in a month. He also stated that on 3.4.2006, he noticed the prosecutrix in the company of the appellant near the Bridge at ‘Nakhera Khud’ and appellant told him to marry the prosecutrix but he refused then appellant threatened to kill him if he did not do so. He further stated that appellant told him that she was carrying a pregnancy and he would be implicated in the case. Thereafter he contacted PW1 Vidya Devi and disclosed this fact to her. But neither Vidya Devi PW1 corroborated his - 6 - version nor it found mention in her statement recorded under Section 161 of the Code of Criminal Procedure when confronted with it. PW1 aforesaid had another story to tell, as stated above. According to her, she found her daughter missing in the evening and was informed by PW Darhan Singh that she was in the house of the appellant at Dehra. When her husband returned home in the evening she informed him. On the fourth day, appellant is stated to have been contacted telephonically by her neighbour DW Surestha that the prosecutrix was with the appellant as told by him telephonically and she was called by the appellant to Patiala to settle the matter and it was then, she reported the matter to the police. She denied that the prosecutrix had gone at her own to get the medical treatment. In so far as the statement of the prosecutrix is concerned, she admitted that Happy (PW7), i.e., Vijay Kumar is the son of her maternal aunt and also that he had undertaken the electricity work in the house of her parents. She further stated that she remained sick during that time but stated that appellant took advantage of her sickness and did some ‘bashikaran’ (black magic) and she was kept in his house by the appellant for three months. During that time, she was repeatedly raped. This very version - 7 - goes against the initial story of the prosecution and the testimony of her parents and also first version made by her to the doctor. Although, she stated that she named Happy to the doctor responsible for her pregnancy but it was under threat given by the appellant. But when confronted with her statement made under Section 161 of the Code of Criminal Procedure (Ext.DX) she denied having made the statement that it was Happy son of Baldev Singh, who committed rape on her whereas it found mentioned therein. She also stated that when she had conceived, she also felt like vomiting but did not disclose this fact to her parents as she was shy. There is also a reference in her above statement that she confided in the appellant. He was called by her to her house on 3.4.2006 when nobody was there and left with him for terminating the pregnancy and thereafter remained in the house of co-accused Maya Devi sister of the appellant at Patiala. There is also a mention that appellant took her 2-3 doctors but because of anemia, pregnancy could not be terminated. When confronted about the above statement, she denied having made such a statement. All the above facts were denied by the prosecutrix, this make her version doubtful more specifically when it stood corroborated by the doctor - 8 - as the first revelation made to her. Further, PW13 S. I. Sansar Chand, who recorded the statement of the prosecutrix, admitted that the confronted portions referred to above, was correctly recorded by him, as stated by the prosecutrix. Although, PW4 Darahsn Singh stated that he had seen the prosecutrix sitting on a Bench near the Tehsil Office some where in the month of April, 2006 but he did not support the case of the prosecution that the appellant was also with her, as such he was declared hostile. PW5 Surestha stated that she received telephone on her mobile and caller told that Gian Chand PW2 was his relative. She called PW1 Vidya Devi wife of Gian Chand. She did not now what talks were exchanged by them on telephone. She did not say that the caller was appellant. Except this, there is no other evidence. On the critical examination of the evidence aforesaid, I do not find that the statement of the prosecutrix, her parents and even PW7 Rajinder @ happy are worth confidence inspiring. There are material contradictions and exaggeration in the statement of witnesses and also there is no consistency therein, as such cannot be acted upon. - 9 - For the foregoing reasons, appeal is allowed and the impugned judgment of conviction and sentence, passed by the learned trial court is unsustainable as such set aside. The appellant is in jail undergoing sentence. He be released forthwith, if not required in any other case. Registry of this court to take necessary steps in compliance. Send down the record. March 23, 2010 (Surinder Singh),J (pds/cm)