IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. 83 of 1999 Decided on: 16.9.2010 State of H.P. ..…Appellant Versus Kamla Chhabra @ Guddi & Anr. ..…Respondents Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice V.K. Sharma, J. Whether approved for reporting?1 For the appellant : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl.A.G. For the respondents : Mr. G.D. Verma, Sr. Advocate with Mr. B.C. Verma, Advocates. R.B. Misra,J. (Oral) The present criminal appeal has come-up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted, in reference to the impugned judgment dated 26.9.1998, passed by learned Sessions Judge, Shimla, H.P. in Sessions Trial No. 33-S/7 of 1996, acquitting the respondents-accused for the offence, under Section 376 read with Section 109 of the Indian Penal Code and Section 5 of the Immoral Traffic (Prevention) Act, 1956, 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 2. The prosecution case is that victim/prosecutrix, aged about 14 or 15 years, used to reside in Theog town with her parents in the neighbourhood of respondent-accused Kamla Chhabra alias Guddi. Some time in the month of February, 1994, the mother of victim/prosecutrix, named Kamla Devi, noticed that victim/prosecutrix’s belly had been protruding out and she felt that she might be pregnant. As such, she was taken to hospital at Theog and on medical examination, pregnancy was confirmed and she was said to be carrying seven months pregnancy. On enquiry, victim/prosecutrix told that she was pregnant from her own father who had been sexually abusing her for the last 6-7 months. On 23.4.1995 victim/prosecutrix delivered a child. On 25.4.1995 Krishan Lal, the father of victim /prosecutrix lodged a complaint with the Station House Officer, P.S. Theog that his unmarried minor daughter had delivered a child and that he suspected that some one had sexually assaulted her and accordingly police recorded the statement of victim/prosecutrix and in view of the testimony of victim/prosecutrix Krishan Lal, father of victim/prosecutrix alleged to have sexually assaulted the victim/prosecutrix. Case was registered against the father of the victim/prosecutrix. However, trial commenced against the father of the victim/prosecutrix on 8.8.1995, however, in her testimony victim/prosecutrix had categorically stated that her father was neither responsible for her pregnancy nor he ever committed any sexual assault with her and at the instance of respondent- accused Kamla Chhabra she had referred the name of her father Krishan Lal. The victim/prosecutrix also deposed before learned 3 Sessions Judge that Smt. Kamla Chhabra used to send her to the houses of other persons at Theog, where victim/prosecutrix was subjected to sexual assault by different persons. The mother of victim/prosecutrix also appeared before learned Sessions Judge and stated that when victim/prosecutrix was pregnant she told that respondent-accused Kamla Chhabra had been taking her to different places and offering her to different persons. Keeping in view the testimony of victim/prosecutrix, Superintendent of Police, Shimla was directed to investigate the matter and case was registered against the respondents-accused vide FIR No. 151 of 1995. On completion of investigation, the respondents-accused were charged for the offences under Section 376 read with Section 109 IPC and Section 5 of the Immoral Traffic (Prevention) Act, 1956. 3. In order to prove its case, the prosecution examined as many as seven witnesses, whereas, the respondents-accused through their statement under Section 313 Cr.P.C. denied the prosecution case. 4. Victim/prosecutrix PW-4 deposed that respondent- accused Kamla Chhabra used to take her to various places like Rohru, Shimla, Solan, Kotkhai and offer her to different persons for sexual pleasure. PW-4 has further stated that respondent- accused Kamla Chhabra used to pay her sometime Rs. 20/- and sometime Rs. 50/- to keep her mouth shut and in August 1994 when she noticed that she had not menstruated during that month, she felt that she might have become pregnant and after 5-6 months she was taken by her mother to a lady Doctor where she was declared pregnant and when she contacted respondent- 4 accused Kamla Chhabra, the later tutored her to name her own father as the man responsible for her pregnancy and on being misguided she lodged a report. 5. PW-5 Smt. Kamla Devi, the mother of the victim, did not corroborate her testimony, rather contradicted the testimony of victim/prosecutrix. As per Pw-5 when she noticed that belly of victim/prosecutrix was protruding out, she was taken to the hospital and as per lady Doctor she was found to be carrying seven months pregnancy. The testimony of PW-5 is fully contradictory with the testimony of PW-4 victim/prosecutrix. PW-4 victim/prosecutrix has further stated that on coming to know that she was pregnant her parents started beating her. However, in the testimony of PW-5 her daughter victim/prosecutrix became pregnant because of respondent- accused Kamla Chhabra as the victim/prosecutrix was taken by respondent-accused Kamla Chhabraused to Shimla and Rohru and offer her to different persons for immoral purposes. 6. PW-6 Krishan Lal denied that his wife or daughter had informed him before the delivery of the child that respondent-accused Kamla Chhabra had been offering her for sexual enjoyment to different persons. The testimony of PW-6 also contradicts the version of PW-5, (the mother of the victim/prosecutrix) and PW-4 (victim/prosecutrix). We also notice that in complaint, nobody was named as the person responsible for pregnancy or delivery of the child by the victim/prosecutrix (unmarried daughter of the complainant(. Statement of PW-5 also does not very categorically indicate the involvement of respondent-accused Kamla Chhabra. The 5 victim/prosecutrix has endeavoured to indicate that the respondent-accused Smt. Kamla Chhabra was usually taking the victim/prosecutrix to Rohru, Shimla, Solan and other places in Taxis but name of none of the drivers of the Taxis has ever been indicated. The victim/prosecutrix has admitted that respondent-accused Raju alias Rajinder Dutt was known to her because she had accompanying with him to the market. However, had the victim/prosecutrix been offered for sexual enjoyment to respondent-accused Raju by Smt. Kamla Chhabr, in that case victim/prosecutrix might have got recorded his name in the statement Ext. PC, which she made before learned Sessions Judge during the trial of her father on the charge of sexual assault. 7. In the facts and circumstances, the prosecution cannot be said to have proved its case beyond reasonable doubt and cannot also be said to bring home the guilt of the respondents-accused. Accordingly, the appeal, being devoid of any merit is, therefore, dismissed. 8. Bail bonds, furnished by the respondents-accused are hereby discharged. (R.B. Misra), Judge. September 16, 2010 (V.K. Sharma), Judge. (vs)