IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 30 of 2001 Decided on 22nd June, 2011 ________________________________________ Raju alias Rajesh Kumar & another …Appellants Versus State of H.P. …Respondent Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? Yes/No For the Petitioner: Mr. Rajiv Jiwan, Advocate for the appellants. For the respondent: Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General. Justice R.B. Misra, J (oral). The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure against the judgment dated 5.1.2001, passed by Additional Sessions Judge, Solan, H.P., thereby holding the appellants/accused guilty for the offences under Sections 376, 306, 511 and 341 of the Indian Penal Code and awarding sentences on both the accused/appellants to undergo concurrently as below:- 1. Under Section 376 IPC. Ten years R.I. each and fine of Rs. 10,000/- each. In default of payment of fine each convicted shall further undergo R.I. of six months. 2 2. Under Section 306 IPC. Seven years simple imprisonment each and fine of Rs. 7000/- each. In default of payment of fine each convicted shall further undergo simple imprisonment of six months. 3. Under Section 511 IPC. Five years simple imprisonment each and fine of Rs. 5000/- each. In default of payment of fine each convicted shall further undergo simple imprisonment of six months. 4. Under Section 341 IPC. Simple imprisonment of one month each. 2. The prosecution case, in brief, is that victim-prosecutrix (name not given) on 28th April, 1999 had gone to attend a marriage ceremony at Village Nalthalag along with her friend, namely, Reena and did not return on the same day from the marriage party and had come back on the next day i.e. on 29th April, 1999 and did not disclose to the parents about her absence despite their asking. She subsequently told her mother that when she reached at Jungal, she was kept for whole night in the Jungal by accused Raju and Chuni and was sexually assaulted by them. On 7.5.1999, a telephonic call was received from accused Raju at about 4.00 P.M., whereby, victim was asked to meet him at Shalaghat. When victim went to that place, Raju did not meet, rather one Vikas met her who took her to Kandaghat in a truck brought by Vikas, where also Raju did not meet the victim, despite her waiting for about an hour. On coming back to home, brother of the victim slapped her and the fact of sexual assault was disclosed to the family 3 members. Medical examination was conducted. Investigation was made and accused/appellants were charged for the aforesaid offences. 3. In order to prove its case, prosecution examined as many as 13 prosecution witnesses, whereas, 2 defence witnesses i.e. DW-1 (Sita Ram) and DW-2 (Parkash) were also examined on behalf of the accused/appellants. 4. PW-5, Dr. B.K. Bhardwaj, Radiologist, assessed the age of the victim/prosecutrix between 17-19 years. PW-11, Dr. Sarla Chand, medically examined the victim-prosecutrix and during examination, she did not notice any mark of injury on her person. No external injury was also noticed by her. PW-11 opined that victim-prosecutrix is habitual of sexual intercourse and further did not notice any evidence of possible sexual assault recently having been committed on her. On analysis of prosecution witnesses and materials on record, we notice that the occurrence, alleged to have taken place on 28th April, 1999, whereas, first information report was lodged on 8.5.1999 i.e. 10 days after the date of occurrence, that too when the victim-porosecutrix was under treatment in the hospital at Kandaghat. 5. PW- 4, Smt. Subhdra Devi, the mother of the victim- prosecutrix, in her cross-examination, has deposed that her daughter came to her residential house on 29.4.1999 in the morning. She further deposed that she enquired from the prosecutrix that why she did not come to her residential house, then victim/prosecutrix disclosed that two boys, namely, Raju and Chuni Lal took her to forest and committed rape upon her. In that reference, PW-4, Subhdra Devi disclosed the 4 incident to PW-6, (Sh. Kamla Dutt, the father of the victim/prosecutrix), whereas, PW-4, Subhdra Devi further deposed that she and her husband did not disclose the incident to any one, because of reputation of the family. 6. PW-6 (Sh. Kamla Dutt) stated that he did not disclose the incident to any one in the interest of reputation lest an innocent person may not be implicated, however, no satisfactory explanation was given regarding delay in lodging the First Information Report. 7. PW-10, Sh. Vijay Kumar, the Investigating Officer, has stated that no person had come to Police Station for filing complaint regarding missing of girl or committing rape on her. We also notice that PW-1 (victim/prosecutrix) took different stand in the complaint, whereas, in her testimonies, she had given different versions. PW-1, (victim-prosecutrix), had stated that when she arrived in Nallah on 28.4.1999, she met Raju of Kayari/Kawarag and second boy, namely, Chuni, whereas, in cross-examination, PW-1 (prosecutrix), had shown her inability to identity the accused persons. So much so as per PW-4, Smt. Subhdra Devi, her daughter PW-1 had stated that the persons, who committed sexual assault on her, were not known to her. PW-4, Smt. Subhdra Devi, in her cross-examination has stated that she could not recognize the accused persons present in the Court. She further, deposed that their addresses were not provided by any one. 8. PW-6, Sh. Kamla Dutt, had deposed that his daughter has stated that on 28.4.1999, she was sexually assaulted forcibly by two 5 boys, but she could not indicate the names of those accused. Later on, Reena, the friend of the victim, disclosed the name of one boy i.e. Raju. 9. On analysis of the testimonies of the prosecution witnesses, it appears that the victim was consenting party to sexual intercourse. In the statement of victim/prosectrix made under Section 154 of the Code of Criminal Procedure, nothing was mentioned that she was forcibly overpowered and her mouth was gagged prior to alleged sexual assault. Statement under Section 154 of the Code of Criminal Procedure is also silent regarding raising of any hue and cry or for any help despite the fact that there were about 300 people assembled in the house where the marriage party was being solemnized and the place where victim/prosecutrix was sexually assaulted was hardly at a distance of about 20 feet from the house. Nothing has been elucidated that during sexual assault, PW-1/(prosecutrix), was even threatened to her life. The very fact that the incident occurred at about 5.30 P.M., amply indicates that the prosectrix was consenting party. 10. The victim/prosecutrix was admitted at Kandaghat Hospital on 8.5.1999 with the history of consumption of BHC and in respect of beating by her brother, whereas, PW-11, Dr. Sarla Chand, did not notice any external injury on her person. 11. In view of the statements of the victim/prosecutrix, given under Section 154 of the Code of Criminal Procedure, she was further taken up in Jungal, however, she did not state that she was ever taken to Kaithlighat. PW-10/Investigating Officer, deposed that on 8.5.1999 a telephonic message was received from Civil Hospital Kandaghat, upon 6 which he proceeded towards Civil Hospital, Kandaghat and recorded the statement of victim/prosecutrix in the hospital, whereas, PW-11, Dr. Sarla Chand, had stated that the victim was brought to the hospital by the police, PW-1, (prosecutrix) stated that she never disclosed the fact of sexual assault to her parents on returning from the marriage party, whereas, PW-4/Smt. Subhdra Devi as well as PW-6/Sh. Kamla Dutt deposed that victim disclosed the fact of sexual assault to them on 29.4.1999. In complaint, PW-1, (prosecutrix) has stated that on inquiry by Raju on 28.4.1999, she did not give any reply, whereas, several improvements have been made by PW-1/(prosecutrix) in her statement that accused Raju enquired her name, address and address of school, in which she was studying and another accused Chuni Lal also enquired many things. Contrary to the statement of PW-1/(prosecutrix), made in complaint, she stated that when she was about to leave the place of occurrence, when accused Raju again caught her, but she ran away from the clutches of the accused and both the accused ran after her and caught her and took her towards Kaithlighat, where one of the accused namely Chuni Lal went to take meal after consulting the co-accused Raju and there again accused Raju committed sexual intercourse with her. Thereafter Chuni Lal came and both the accused took meals, whereas, victim/prosecutrix did not take any meal. After taking meal both the accused also sexually assaulted her third time. No such statement was made by PW-1, (prosecutrix) under Section 154 of the Code of Criminal Procedure. She, in her cross-examination, deposed that she was inflicted injuries by her brother with danda. PW- 7 1/(prosecutrix) has also stated that she did not wash her clothes till 7.8.1999, but subsequently stated that she cleaned her cloths. 12. On analysis of the sole testimony of the victim/prosecutrix, we notice that her statement is not inspiring confidence. She being a young girl, aged between 17 to 19 years i.e. in any case above 16 years of age, is well aware that sexual assault cannot be made against her wishes. 13. In view of the aforesaid analysis, we are of the considered view that the learned Additional Sessions Judge has neither analyzed nor has made correct appraisal of the evidence correctly and has erroneously arrived of a findings that the accused is guilty of the aforesaid offences. In view of the aforesaid analysis, the judgment and order of the learned Additional Sessions Judge holding the accused guilty and sentencing them under Sections 376, 306, 511 and 341 of the Indian Penal Code is not legally sustainable, therefore, is set aside and the appeal is allowed accordingly. 15. Bail bonds, furnished by the appellants are hereby discharged. (R.B Misra) Judge June 22nd, 2011 (Sanjay Karol) (KRS) Judge