IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 384 of 2009. Judgment reserved on 18th March, 2011. Date of Decision: 22nd March, 2011. _______________________________________________________ Kashmir Singh ….Appellant. Versus State of Himachal Pradesh ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellant : Mr. Tarlok Chauhan, Advocate. For the respondent : Mr. A.K. Bansal, Additional Advocate General. ____________________________________________________ SURINDER SINGH, J. The appellant hereinafter to be referred as ‘the accused’ was convicted and sentenced by the learned trial Court for the offences punishable under Section 376 of the Indian Penal Code to undergo rigorous imprisonment for a period of seven years and to pay a fine of ` 2,000/-, in default of payment of fine to further undergo imprisonment for a period of three months and also to suffer rigorous imprisonment for a period of three years and to pay a fine of ` 1,000/- under Section 366 of the Indian Penal Code, in default of payment of fine also Whether reporters of the Local papers are allowed to see the judgment? - 2 - to undergo imprisonment for a period of one month. Although, he also stands convicted for the offence punishable under Section 363 of the Indian Penal Code, but no separate sentence was awarded as he stood sentenced for a graver offence, i.e., 366 of the Indian Penal Code, which is having the inbuilt ingredients of the said offence. The accused felt aggrieved by the impugned judgment, thus filed the present appeal. 2. (i) The factual matrix of the case necessary for the adjudication of appeal, is that the prosecutrix, a minor (slightly less than 15 years), was residing with her mother PW7 Soma Devi in the rented premises at village Kanaid (Sundernagar), HP. Her husband was working as Beldar in Sundernagar. (ii) In the year 2006, the prosecutrix was studying in 8th standard. (iii) On 10.7.2006, in the evening, the mother of the prosecutrix sent the prosecutrix to purchase the recharge coupon of mobile phone, but she did not return. Her mother made search for her, but could not find her anywhere. She waited for the prosecutrix for whole of the night. Next morning, the prosecutrix arrived in her house at 7.00 a.m. - 3 - She was weeping. Her mother asked for the reasons for her absence. Then she revealed that accused Kashmir Singh alias Kaku alongwith his companion to whom she could recognize (co-accused Uttam Chand), seduced and took her in a vehicle towards Chail-Chowk near a temple. She was kept by him throughout the night and both accused aforesaid subjected her to rape. (iv) Thereafter PW7 Soma Devi, her mother and the prosecutrix both went to the Police Station and lodged FIR Ext.PL. (v) The prosecutrix was got medically examined by PW6 Dr. Anupama Sharma on 11.7.2006 at 3.45 p.m. Clinically the doctor opined that she was exposed to coitus and referred her for ascertaining the skeletal age, which came out to be between 12-15 years. The doctor also took into possession Salwar, Ext.P3, shirt Ext.P.4 and Dupatta Ext.P5 of the prosecutrix and made it in a parcel. She had also taken the vaginal swab and issued the Medico Legal Certificate Ext.PK. In the opinion of the doctor, the prosecutrix was exposed to - 4 - coitus and the sexual intercourse had taken place between 12-24 hours. (vi) After the medical examination was over PW13 SI/SHO Hemant Kumar recorded the statement of the prosecutrix. Police also visited the spot on 11.7.2006 and prepared the site plan Ext.PY of the place of alleged incident. (vii) On 12.7.2006 the accused/appellant and Uttam Chand were arrested. They were also got medically examined from PW2 Dr. Bhupender Sharma. Their Medico Legal Certificates are Exts.PC and PD separately. Both of them were found capable of performing sexual act. Their blood samples were also taken for DNA profile which as per report Ext.PZ/1 was negative. 3. During the course of investigation, police came to the conclusion that the prosecutrix was sexually abused by accused Kashmir Singh alias Kaku, thereafter she was handed over to another accused Uttam Chand, who also raped her and took her towards Bhuntar (Kullu) in his vehicle No.HP-65-0830. Since the clothes of the prosecutrix were torn, Jagdish, brother-in-law of co- accused Uttam Chand, who was running a T.V. shop at - 5 - Bhuntar, provided her new lady’s suit (Ext.P13 and P14) and also gave her an amount of ` 150/-. Police also took into possession vide memo Ext.PU and made into parcel Ext.P12. 4. Supplementary statements of the prosecutrix were also recorded by the police three times, i.e., two statements on 14.7.2006 and one on 16.7.2006. Police also recorded the statement of the accused under Section 27 of the Indian Evidence Act pursuant to which got recovered one blanket Ext.P.7 from Tempo-trax No.HP- 32B-0245 vide memo Ext.PP. 5. During the investigation police also took into possession both the vehicles used by the accused persons and also the date of birth certificate of the prosecutrix Ext.PA whereby her date of birth is shown to be 20.11.1991. 6. Police also recovered the blanket Ext.P.11 which was allegedly used by accused Uttam Chand in the commission of crime. 7. The Central Forensic Science Laboratory, conducted the DNA profiling and the report is Ext.PZ/1. The report was negative in respect of Salwar, Kurta and Duppta of the prosecutrix, as stated above. It did not connect either the accused/appellant or his accomplice. However, after completing the investigation, Challan was presented in the Court against both of them under - 6 - Sections 363, 366 and 376 (2) (g) of the Indian Penal Code. They were accordingly charge-sheeted. Both accused persons pleaded not guilty and claimed trial. 8. To prove its case, the prosecution examined its witnesses. The accused persons were also examined under Section 313 of the Code of Criminal Procedure. They denied the circumstances which were put to them. When called upon to enter into their defence, accused/ appellant examined three witnesses in defence to show that during the intervening night of 11/12.7.2006 he had gone alongwith his vehicle with the load of vegetables therein belonging to DW3 Rajinder Singh to Jalandhar where he reached at 5.00 a.m. next day and after delivering the goods he returned on the same day and reached village Baggi. The bill against which the said vegetables were sent by DW3 aforesaid did not bear the number of the vehicle. DW2 Mahinder Kumar could not produce the receipt of the barrier at Swarghat and according to him he has lost the same. DW1Hans Raj Sharma, ETO admitted the cuttings in the date. The defence was disbelieved by the learned trial Court, whereas the statements of the prosecutrix and her mother were relied upon and the accused/appellant was convicted and sentenced as aforesaid. Whereas, his - 7 - accomplice Uttam Chand was acquitted. Hence the present appeal by the convict. 9. Shri Tarlok Chauhan, learned Counsel for the accused vehemently argued that the accused could not be connected by the prosecution with the offence of rape in any way. He further ventilated that initially the prosecutrix implicated co-accused Uttam Chand and gave different versions about the places of rape, later she resiled from her version and during trial she only focused upon the accused and even disowned her earlier statements recorded by the police and that the DNA report did not connect the accused with the offence of rape. He also argued that when the offence of rape against the accused is not made out the other offences charged also become doubtful, as not only the prosecutrix, but also her mother came up with different story during the trial exonerating the co-accused and disowning their previous statements made to the police including the FIR. Thus, the prosecution story lacks probity. 10. Shri A.K. Bansal, learned Additional Advocate General, supported the conviction and sentence passed by the learned trial Court and argued that the statement of the prosecutrix is worth inspiring confidence and is materially corroborated by medical evidence and that - 8 - the testimony remains unshaken as far as the role of the accused is concerned. 11. After giving due consideration to the rival contentions of the parties and on having gone through the evidence on record carefully and cautiously, in my considered opinion, the accused could not be connected by the prosecution with the offence of rape on the prosecutrix, but, however, the offences punishable under Sections 366 and 363 of the Indian Penal Code stand proved beyond reasonable doubt for the reasons recorded hereinafter. 12. At the very initial stage when the prosecution is stated to have returned to her residence in the morning at about 7.00 a.m., she is alleged to have narrated the entire story to her mother PW7 Soma Devi. Immediately thereafter she alongwith her mother (PW7) reached Police Station and PW7 aforesaid gave the version in terms of FIR Ext.PL, which is at the instance of prosecutrix wherein she precisely stated that on 10.7.2006 in the evening she had sent the prosecutrix to purchase a recharge coupon for her mobile, to the market. It became dark when she did not return, she searched for her but did not find any clue. Next morning the prosecutrix reached in the house, she was asked about her absence, then while weeping she disclosed that two boys out of - 9 - one was Kaka driver (appellant) and the name of another was not known to her, but she could identify him by face, had taken her in the vehicle on the pretext of having a round of temple but thereafter he took her to the Sarai (inn of the temple) and her wearing apparels were thrown away and accused-appellant committed rape on her. She was provided new clothes and in the morning they left her near her house. The other part of the story as propounded thereafter did not find mention, therein. 13. After the medical examination, the statement of the prosecutrix was also recorded under Section 161 of the Code of Criminal Procedure on 12.7.2006 whereby she stated that the accused was known to her and is alleged to have taken her towards Hutgarh forest where her clothes were put-off and she was raped by him. While returning, co-accused Uttam Chand met them on the way and she was handed over to him. He took her in his vehicle towards Chail-Chowk. On the way near ‘Pathra’ she was raped by him. Her wearing apparels were torn- off. Thereafter she was taken towards Bhuntar where brother-in-law of the said accused was running a TV shop, met them. He provided her a new suit and `150/- and told her to go back. In the morning co-accused Uttam Chand took her towards Luhara from where she boarded the bus - 10 - and reached her residence around 7.00 a.m. at Sundernagar. 14. Further, in her statement dated 14.7.2006 she stated that the accused/appellant got recovered a blanket from his jeep pursuant to his statement over which she was raped and in anohter in the supplementary statement of the same date she is alleged to have identified the said blanket. Police made the recoveries from the places as revealed by her. Based upon this story, police prepared the report under Section 173 of the Code of Criminal Procedure against the accused/appellant and his co-accused for which they were charge-sheeted. 15. During the trial, PW7 Soma Devi and PW8, the prosecutrix, both were declared hostile as having not supported prosecution case, in so far as co-accused Uttam Chand is concerned. They disowned their previous statements recorded under Section 161 of the Code of Criminal Procedure regarding his role as aforesaid. She also denied having signed the parcel and the memo of shirt and Salwar having been recovered from Jagdish at Bhuntar, but admitted having disclosed the entire incident to her mother (PW7) thereafter the report was lodged. PW7 aforesaid also admitted having compromised the matter with Uttam Chand but significantly contradicted in her cross-examination that no such compromise was - 11 - arrived at. To a Court-question the prosecutrix (PW8) gave another version that the accused subjected her to rape for the first time in the jeep and then for the second time in the jungle and then contradicted herself that her statement regarding rape in the jeep is not correct. She did not make mention of rape in the ‘Sarai’ of the temple. Learned trial Court also observed that she was not replying the question put by learned defence Counsel properly and was taking time to answer the simple question. In the cross-examination conducted on behalf of co-accused Uttam Chand stated that she did not recognize the companion of Kaku while coming from Chail-Chowk. 16. The prosecutrix in her examination-in-chief had focused only on the accused/appellant. According to her, the said accused met outside her house. He took her in his vehicle to Chail-Chowk. When she asked the accused to take her back to her home, he insisted to go in the morning and during night he committed rape. Next morning she was brought back to her home in the jeep, whereas Uttam Chand co-accused met her on the way and the accused asked him (Uttam Chand) to accompany him, but he refused. Uttam Chand never committed rape nor seduced her to go to any where. In this way she gave a lop sided version exonerating the co- - 12 - accused and setting up altogether a new story during the trial. 17. The DNA profile could not connect any of the accused persons. 18. Of course, the testimony of a victim in such cases is vital unless there are compelling reasons to look for corroboration. It is equally true that the Court on the testimony of the victim of sexual assault or rape can convict the accused where the testimony inspires confidence and is found to be reliable and credit worthy. But, in the instant case, the situation is altogether different. Her statement is full of contradictions and has faulted on many vital points and considerably improved her version without getting any cogent explanation. Therefore, against the above factual background as an abundant caution, I am looking for the corroboration of her version from the independent source. 19. The mother of the prosecutrix Soma Devi (PW7) as already stated also exonerated co-accused Uttam Chand. The prosecutrix has also given the similar version by not imputing any allegation against him. She has disowned the statement made in the form of FIR as having been told earlier by the prosecutrix and no explanation worth the name came forward as to why the allegations of rape were made against the co-accused, if - 13 - it was untrue. During the trial a new dimension and twist was given to the initial prosecution version regarding her rape by the accused. 20. PW6 Dr. Anupama Sharma on the clinical examination of the prosecutrix found the small abrasion on labia majora and labia minora and these organs were having .5 cm X .1 cm covered with dark clotted blood. Hymen was found ruptured and edges of hymen were inflamed. There was also a small abrasion .5cm X .2 cm on posterior wall of vagina. Extreme tenderness was found on the uterus and the opinion of the doctor was suggestive of recent sexual intercourse. Though, from the medical evidence it is clear that the prosecutrix was exposed to coitus, but by whom, the appellant or his co-accused or by both. On this score, the statements of prosecutrix and her mother, both are contradictory, creating a doubt in the probity of the case of the prosecution. Therefore, the conviction and sentence passed by the learned trial Court for the offence of rape against the accused is unjustifiable hence unsustainable. 21. In so far as the other charges are concerned, PW7 Soma Devi stated that the prosecutrix was sent to the market by her in the evening to purchase the recharge voucher of her mobile phone but she did not return. The prosecutrix testified that when she went to the market she - 14 - met the accused outside her house and asked her to accompany him in his jeep towards Chail-Chowk and she was kept there throughout the night, when she asked him to go to the home, he insisted upon her to return in the morning. At that time she was less than 15 years. In her cross-examination she also admitted the suggestion that her date of birth is 20.11.1991 and the same stands mentioned in the birth certificate. 22. Against the above background proved facts, now the question is whether she was kidnapped from the lawful guardianship of her parents and forced or seduced to illicit intercourse. As already stated above, the prosecutrix was exposed to coitus. DNA profile does not connect the accused/appellant with the offence of rape, I find the version of the prosecutrix quite doubtful on this score. However, she stated that the accused did not take her back when she insisted upon to return and take her home, rather, the accused/appellant forced her to remain with him throughout the night. Thus, he is proved to have used the force by stress of circumstances and kidnapped her from the lawful guardianship of her parents for the illicit nature of intercourse by someone other than the accused. She was thrown aside from the market to entice her to evil tempting to surrender her chastity by someone else than the accused and these - 15 - facts establish that she was exposed to coitus. Thus, accused/appellant is proved to have committed offences punishable under Sections 363 and 366 of the Indian Penal Code. Since the offence under Section 363 of the Indian Penal Code has merged into a graver offence, i.e., Section 366 of the Indian Penal Code, therefore, he was rightly convicted and sentenced, to undergo rigorous imprisonment for a period of three years and to pay a fine of `1,000/- with default clause. But, since the accused stands acquitted of the offence punishable under Section 376 of the Indian Penal Code for the reasons aforesaid and the conviction and sentence under Sections 363 and 366 of the Indian Penal Code is affirmed, the appeal of the accused is partly allowed. 23. The accused is in the custody with effect from 12.7.2006. He is given the benefit under Section 428 of the Code of Criminal Procedure. By now he has already undergone the imprisonment of more than imposed for the offence under Section 366 of the Indian Penal Code. Therefore, he is ordered to be released forthwith. 24. Registry to take appropriate steps immediately for his release, if not required in any other case. 25. The appeal stands partly allowed and disposed of. March 22, 2011. (Surinder Singh), J. (rc)