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Himachal Pradesh High Court · body

2012 DIGILAW 129 (HP)

Jiwan Lal v. State of Himachal Pradesh

2012-03-26

SURINDER SINGH

body2012
JUDGMENT Surinder Singh, J. (Oral): Both the above titled appeals are arising from the judgment passed by the learned trial Court in Sessions Trial No.65 of 2010 decided on 31.3.2011, against the appellants, whereby they were convicted for the offences punishable under Sections 363 read with Section 34 of the Indian Penal Code and sentenced alongwith other accused persons except Anil Kumar, who was acquitted as follows:- Name of the Convict Offence under Section Sentence Jiwan Lal 363 read with Section 34 IPC. R.I. for six months and fine of 5,000/-and in default, S.I. for a period of two months. Tek Singh NOTE :- Non-appealing accused. Sentence already undergone. 363 read with Section 34 IPC. R.I. for six months and fine of ` 5,000/-and in default, S.I. for a period of two months. 363 read with Section 34 IPC. R.I. for eight months and fine of 5,000/- and in default, S.I. for a period of three months Kartik 363 read with Section 34 IPC. R.I. for eight months and fine of ` 5,000/- and in default, S.I. for a period of three months. Munish @ Ronit NOTE:-Non-appealing accused. Sentence is already undergone. 363 read with Section 34 IPC. R.I. for eight months and fine of 5,000/- and in default, S.I. for a period of three Months. 2. Sentence imposed upon Jiwan Lal accused was suspended in Cr.A. No.193 of 2011 vide order dated 27.6.2011, whereas others have already undergone. Only the appellants, hereinafter “the accused” i.e. Gopal, Karitk & Jiwan Lal preferred present appeals against their conviction and sentence. 3. Heard and gone through the evidence on record. 4. In short, the prosecution story can be stated thus. On 11.7.2010, PW18 SI Onkar Singh was heading a police patrolling party, during the intervening night of 11th/ 12th July, 2010, near Dhobi bridge in District Kullu, a Maruti Van bearing registration No.HP-33B-2965 came from Kullu side. It was stopped by the police for checking. They noticed the prosecutrix occupying the rear seat, who looked frightened. Police enquired about her presence. She is alleged to have given statement Ext.PW17/A under Section 154 of the Code of Criminal Procedure, stating that she was a 10th class student, studying in National Open School, Tarna Pauri and residing in ‘Purani Mandi’. She also revealed that in the evening, she had visited ‘Indira market’ at Mandi where she met accused Ronit and Kartik. She is alleged to have given statement Ext.PW17/A under Section 154 of the Code of Criminal Procedure, stating that she was a 10th class student, studying in National Open School, Tarna Pauri and residing in ‘Purani Mandi’. She also revealed that in the evening, she had visited ‘Indira market’ at Mandi where she met accused Ronit and Kartik. Accused Kartik had an Alto Car bearing registration No.HP-33-2102. Both of them enticed her away from the said place and took her to ‘Pandoh’. Finding her lonely, she was raped by accused Kartik whereas Ronit stood as guard outside the vehicle and then she was taken towards Kullu, but near Thalot she was handed over to three other boys, on realising `5,000/-, from them. Thereafter they took her in a Maruti Van aforesaid. Accused Gopal assured the prosecutrix to pay her `15,000/- on reaching Manali. On the way he also outraged her modesty. (ii) The aforesaid statement of the prosecutrix culminated in the present FIR. The vehicle alongwith its documents were taken into possession. (iii) Prosecutrix was got medically examined in the hospital from PW11 Dr. Amita. The accused Gopal, Jiwan Lal and Tek Singh were arrested. (iv) On 12.7.2010, the prosecutrix was handed over to her mother on supurdari. During investigation, she alleged to have identified Alto Car and the places where she was molested and raped. (v) Accused Kartik was arrested on 16.7.2010. He was also got medically examined on the next day. Police also took into possession seat cover of Alto Car for forensic examination. (vi) PW11 Dr.Amita had clinically examined the prosecutrix. She did not notice any injury on the prosecutrix. On examination of her private parts, she noticed hymn was intact, but slight oedema and congestion was found present. The introits allowed only one finger with difficulty. In her opinion, it was a case of attempted rape, but reserved her further opinion till the forensic reports. She also took the vaginal swabs for analysis. As per report Ext.PW15/B, blood and semen stains were not detected on the seat cover and also on the wearing apparels of the prosecutrix Ext.PW15/C, but however, human semen was found on the vaginal swabs. She also took the vaginal swabs for analysis. As per report Ext.PW15/B, blood and semen stains were not detected on the seat cover and also on the wearing apparels of the prosecutrix Ext.PW15/C, but however, human semen was found on the vaginal swabs. (vii) During investigation, police also prepared site plan of the places of incidents as described by the prosecutrix and took into possession the School Leaving Certificate Ext.PW2/A of the prosecutrix, wherein her date of birth was reflected as 23rd February,1996 and another certificate Ext.PW18/H with respect to her date of birth from Municipal Committee, Mandi. 5. After completing investigation and finding the involvement of the accused persons, challan was presented in the Court for their trial. They were accordingly charge-sheeted, to which they pleaded not guilty and claimed trial. To prove its case, prosecution examined its witnesses and the accused persons were also examined under Section 313 of the Code of Criminal Procedure. Their case was denial simplicitor and pleaded the complete innocence. 6. Pertinently, the prosecutrix did not support the case of the prosecution. From the evidence the offence of rape was not proved against them, but the learned trial Court came to the conclusion that the prosecutrix was minor on the day of alleged incident, as such offence under Section 363 read with Section 34 of the Indian Penal Code stood proved against the appellants and other co-accused. Accordingly, they were convicted and sentenced as aforesaid, hence the present appeal. 7. Undoubtedly, the prosecutrix did not support the case of the prosecution at all with respect to the incident. Further the age of prosecutrix could not be proved to be less than 16 years or in any case 18 years. She was examined in the Court on 17.1.2011, on which date, she disclosed her age to be 19 years, whereas the date of alleged incident is 11.7.2010. PW11 Dr. Amita had medically examined her on 11.7.2010 and the Medico Legal Certificate is Ext.PW11/A, wherein she has been shown to be 14 years of age, but Dr. Amita when examined in the Court, stated that the prosecutrix was sent for the radiological examination and as per report Ext.PW11/B, she was opined to be between 15 to 17 years of age. Pertinently, the Radiologist was not examined. She admitted two years margin in each side. 8. Amita when examined in the Court, stated that the prosecutrix was sent for the radiological examination and as per report Ext.PW11/B, she was opined to be between 15 to 17 years of age. Pertinently, the Radiologist was not examined. She admitted two years margin in each side. 8. According to PW2 Puja Gautam, the date of birth shown in the certificate Ext.PW2/A is based upon the entries in the School Record of the Primary section, but that record was not placed and proved. Significantly, she further admitted in cross-examination that the certificate aforesaid is not according to the original record. Date regarding striking off her name was wrongly mentioned therein. The register on the basis of which, she issued the certificate was not certified nor there was any mention that the register pertained to that very School except the impression of stamps. Therefore, the certificate based upon such record without any primary evidence cannot be taken cognizance of. 9. The birth certificate, which is alleged to have been obtained by the police from the Municipal Committee, Mandi by the Investigating Officer is Ext.PW18/H. To appreciate this document, reference can be made to the statement of the prosecutrix. She stated that her father was residing in Punjab and she had been studying in Matric from ‘Purani Mandi’ School. None of her parents were examined to substantiate the fact of place of her birth. Even she did not make any reference that she took birth at Mandi itself. In cross-examination, she testified that her birth year was 1991 and disputed that her date of birth was 23.2.1996. She further qualified this fact by saying that her mother had informed her about the year of birth. She also admitted in cross-examination that she had disclosed to the police that she was aged about 18½ years. Thus, in view of the above conflicting evidence, it cannot be said that the prosecution was able to prove by leading cogent and convincing evidence that the prosecutrix was less than 16 years of age and in any case less than 18 years of age. Rather she had been proved to be more than the age of discretion. 10. Thus, in view of the above conflicting evidence, it cannot be said that the prosecution was able to prove by leading cogent and convincing evidence that the prosecutrix was less than 16 years of age and in any case less than 18 years of age. Rather she had been proved to be more than the age of discretion. 10. Further the prosecutrix admitted that when the police had intercepted the vehicle, she was alone with three boys travelling therein and police suspected some foul play, but in fact, she had been travelling in the said vehicle of her own accord. She categorically stated that she had asked Ronit accused to drop her at Manali as she had intended to visit that place to see, on going film shooting. He dropped her at Kullu in a Santro Car, thereafter she took a lift in the vehicle of Gopal accused, wherein Jiwan Lal appellant was also travelling. On the way, they came across police, she was dragged out and given slaps by the police officials, thereafter taken to the Police Post. She also stated that the Police Officer took her signatures on 2/3 blank papers and was sent for medical examination and X-ray. She was cross-examined by the learned Public Prosecutor at length, but she stuck to her above statement and did not depose anything with respect to the kidnapping or alleged rape. There is same set of evidence against all the accused persons including the non-appealing accused. 11. On the critical examination of the aforesaid evidence, in my considered opinion, I do not find it a case of cogent and reliable evidence to sustain the conviction against the appellants and other non-appealing accused, for the offences under Section 363 read with Section 34 of the Indian Penal Code. The accused persons are not proved to have taken part in kidnapping her. She had voluntarily accompanied the accused persons. Even if she was minor the accused were not under obligation to send her back to her parents. The element of kidnapping is missing, as such the accused can be held guilty for the said offence. As such, appeals filed by the appellants are allowed and the impugned judgment of conviction and sentence is hereby set-aside. Even if she was minor the accused were not under obligation to send her back to her parents. The element of kidnapping is missing, as such the accused can be held guilty for the said offence. As such, appeals filed by the appellants are allowed and the impugned judgment of conviction and sentence is hereby set-aside. Consequently, all the accused persons including the non-appealing accused stand acquitted of the charges by giving them the benefit of doubt, because facts and circumstances for setting aside conviction of appellants herein also equally apply to their case. [Please see Ashok Kumar v. State of M.P.[ (2011) 5 SCC 123 ]. The fine amount, if any, paid/ deposited by the appellants and other non-appealing co-accused /convicts be refunded to them. 12. In view of the above circumstances, all the appellants are discharged of their bail bonds, if any entered upon by them at any time during the proceedings of these appeals. Both the appeals stand disposed of. 13. Send down the records.