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Himachal Pradesh High Court · body

2014 DIGILAW 1211 (HP)

Shyam Lal v. State of H. P.

2014-09-06

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT Sureshwar Thakur, J. All these appeals are being disposed of by a common judgment as they all arise from a judgment, rendered on 31.03.2008, by the learned Additional Sessions Judge, Fast Track Court, Shimla, Himachal Pradesh, in Sessions Trial No. 21-S/7 of 2007, whereby, accused Shyam Lal has been acquitted for the commission of offences under Sections Section 363/34 and 366(A)/34 IPC and convicted under Section 376 IPC and sentenced to undergo rigorous imprisonment for a period of four years and to pay fine of Rs.25,000/- and in default of payment of fine, he was to further undergo rigorous imprisonment for a period of one year. All the other co-accused have been acquitted of the offences charged against them under Sections 363/34 and 366(A)/34 IPC. 2. Brief facts of the case are that on 8th July, 2007 at 10.00 a.m. prosecutrix’s father Dharam lodged a Rapat No.4 with Police Post Fagu, alleging therein that on 7/7/2007 his daughter went to school in the morning but did not return home in the evening. On the very same day, Dharam, father of the prosecutrix, again went to the police post at about 11.00 p.m and alleged that her daughter on return told to his wife that on 7.7.2007 when she was returning home after school hours, accused Shyam Lal, accused Ram Lal and another boy of whose name she was not aware met her on the road. These three persons enticed her away with a view that she ties the nuptial knot with accused Shyam Lal. Then accused Shyam Lal, Ram Lal and the third person took her to the jungle, forced her to wear the clothes which they had brought and took her towards Narjhat. A vehicle was already parked there. Accused Shyam Lal and others forced her to get into that vehicle. During the night, they reached Shimla where she was made to stay in some hotel. She and accused Shyam Lal slept in one room, whereas, accused Ram Lal and the third boy went to sleep in other room. During the night accused Shyam Lal had coitus with her. She was kept by the accused in their custody. On 8.7.2007 the accused freed her by saying that her parents have reported the matter to the police and she should go back to the house. 3. During the night accused Shyam Lal had coitus with her. She was kept by the accused in their custody. On 8.7.2007 the accused freed her by saying that her parents have reported the matter to the police and she should go back to the house. 3. After completion of the necessary investigation, into the offences, allegedly committed by the accused/respondents, challan was filed under Section 173 of the Code of Criminal Procedure. 4. The respondent-accused Shyam Lal, was charged for his having committed offences punishable under Sections 363/34, 366A/34 and 376 IPC, whereas accused Ram Lal, Deepak Kumar, Sahi Ram and Partap Singh were charged for having committed offences punishable under Sections 363/34, 366A/34 IPC by the learned trial Court, to which they pleaded not guilty and claimed trial. 5. In proof of the prosecution case, the prosecution examined as many as 10 witnesses. On closure of the prosecution evidence, the statements of respondents under Section 313 Cr.P.C. were recorded by the Court, in which they claimed false implication and pleaded innocence. In defence, respondents/accused examined two witnesses. 6. On appraisal of the evidence on record, the learned trial Court acquitted all the accused for the commission of offences punishable under Sections 363/34 and 366(A)/34 IPC and only accused Shyam Lal was held guilty under Section 376 IPC. 7. The first witness, who stepped into the witness box, to prove the prosecution case, is Dharma, father of the prosecutrix. He deposes that he had three children and the prosecutrix is his daughter. She is about 14½ of age and is a student of Cheog School. He further deposes that on 7.7.2007, his daughter had gone to school but did not return home in the evening. He searched for her in the house of his relatives but in vain. He continues to depose that then he lodged a report in Police Post, Fagu, about the missing of his daughter. On 8.7.2007, when he returned home, at about 9.00 p.m., at that time, he found that his daughter was at home. He deposes that his daughter told him and his wife Anita Devi that when she was returning home from the school, accused Ram Lal met her at Cheog. Accused Ram Lal is the son-in-law of his brother. From Cheog, accused Ram Lal accompanied the prosecutrix by saying that he is going to the house of his in-laws in village Shagaltha. He deposes that his daughter told him and his wife Anita Devi that when she was returning home from the school, accused Ram Lal met her at Cheog. Accused Ram Lal is the son-in-law of his brother. From Cheog, accused Ram Lal accompanied the prosecutrix by saying that he is going to the house of his in-laws in village Shagaltha. On the way, accused Shyam Lal and another boy met them. He further deposes that accused Ram Lal, Shyam Lal and the third boy took her to the jungle and accused Ram Lal made her to change the clothes in the jungle. From jungle, they took the prosecutrix to the place near the khud, where a pick-up was standing and from there they took her to Shimla and stayed in a hotel. He further deposes that his daughter told him that during the night accused Shyam Lal raped her. 8. PW-2, the prosecutrix, deposes that she was studying in Cheog School in 8th standard. On 7.7.2007, she went to the school in the morning. She deposes that when she was returning home from the school, accused Ram Lal met her. He told her that he was going to her village and when she and accused Ram Lal walked for about an hour, accused Shyam Lal and accused Pratap Singh met them in the jungle. These three accused persons pulled her, forcibly took her to the jungle and forced her to take off school uniform and change the clothes which they had brought. Then she changed the clothes. She further deposes that accused Ram Lal wanted that she should marry his brother accused Shyam Lal. She continues to depose that accused took her via jungle to a place near the khud. A vehicle was standing there. The other two accused, present in the Court, were already sitting in the vehicle. She further deposes that she was brought to a hotel in Shimla during the night. She further deposes that she took the dinner in the hotel. She and accused Shyam Lal stayed in one room and the other accused, namely, Ram Lal and Pratap Singh stayed in the other room. She continues to depose that during the night, accused Shyam Lal gagged her mouth with handkerchief and raped her. She further deposes that she took the dinner in the hotel. She and accused Shyam Lal stayed in one room and the other accused, namely, Ram Lal and Pratap Singh stayed in the other room. She continues to depose that during the night, accused Shyam Lal gagged her mouth with handkerchief and raped her. Accused Shyam Lal dropped her (the prosecutrix) at Lakkar Bazar Bus Stand, Shimla and gave her Rs.100/- for boarding the bus to Kotkhai. She proceeds to depose that she got down from the bus at Fagu. After reaching her house on 8.7.2007 at 8.30 p.m., she narrated the incident to her parents and during the night itself, the she, her father and mother went to Police Post, Fagu and lodged the report. She further deposes that she was got medically examined by the police in Shimla. The MLC deposed to be bearing her signatures. In her cross-examination, PW-2 (the prosecutrix), deposes that she knew accused Shyam Lal for the last one prior to the incident. She denies the fact that the matrimonial talks relating to her and accused Shyam Lal were in progress because of which she accompanied the accused of her own and she told accused Shyam Lal that since her parents would not agree to marry him, they should run from the house, go to Shimla and get married. 9. PW-3, (Dr.Uvi Tyagi) Medical Officer, DDU Hospital, Shimla, deposes that on 9.7.2007, she examined the prosecutrix, who was referred from Theog Hospital for medical examination as no lady doctor was available there. She further deposes that on examination, there were no external injuries present anywhere over the body, including perineal region. No bleeding or marks of injuries present anywhere over her body. There were no marks of struggle over the clothing. This witness further deposes that on local examination, hymen old tear present. The clothes of the prosecutrix, vial having pubic hair, foreign hair and vaginal swabs were handed over to the police, along with the forwarding letter, addressed to FSL, Junga. The final opinion was reserved, till the report of the Chemical Examiner. MLC comprised in Ext.PW-3/A is deposed to be issued by this witness which deposed to be in her hand and bearing her signatures. The final opinion was reserved, till the report of the Chemical Examiner. MLC comprised in Ext.PW-3/A is deposed to be issued by this witness which deposed to be in her hand and bearing her signatures. The report of the Chemical Examiner was shown to her by the police on 15.9.2007, according to which, human semen was found on the salwar, Kameez, vaginal smear and swab. PW-3, the doctor, proceeds to depose that she gave the final opinion comprised in Ext.PW-3/B which is deposed to be in her hand and bearing her signatures. There was nothing to suggest that the sexual intercourse had not been performed. During her cross-examination, she feigns ignorance that how much old was the hymen tear, which was fully healed. The hymen tear was not fresh. She concedes to the fact that if the sexual intercourse is committed forcibly, there are all probabilities that the victim will suffer some injury. 10. PW-4 (Raj Kumar) deposes that he produced the birth register in the Court and as per record, the prosecutrix was born on 10.2.1993. He further deposes that the certificate comprised in Ext.PW- 4/A was issued by him, which is correct as per record. The entry relating to the birth of the prosecutrix was got made by her father. During his cross-examination, he feigns ignorance that the date of birth of the prosecutrix, entered in the register, is right or wrong. 11. PW-5 (Constable Kamal Dev) deposes that Ext.PW-5/A and Ext.PW-5/B, the copies of Rapat No.4 and 13 respectively, are correct as per original. During his cross-examination, he admits the fact that in Ext.PW-5/B, it has not been mentioned that the time was 11.00 a.m. or 11.00 p.m. He denies the fact that a.m. or p.m. had not been mentioned in Ext.PW-5/B as it was entered on 7.7.2007. 12. PW-6 (Dr. Kuldeep Kanwar) deposes that on 17/07/2007 application Ext.PW-6/A was received by him for the medical examination of accused Shyam Lal. He deposes that no other external injury was seen at the time of examination. He continues to depose that sample of pubic hair and underwear were taken into possession by him, sealed and handed over to the police for chemical examination. 13. PW-7, HHC Dila Ram, deposes that on 10.7.2007 MHC Man Dev Vide RC No. 48/07 handed over three sealed parcels to him and he deposited the same in FSL, Junga, on that very day. 13. PW-7, HHC Dila Ram, deposes that on 10.7.2007 MHC Man Dev Vide RC No. 48/07 handed over three sealed parcels to him and he deposited the same in FSL, Junga, on that very day. He further deposes that during the period the parcel remained in his possession, the same remained intact. 14. PW-8 Constable Dola Ram deposes that on 21.7.2007 MHC Man Devi handed over four parcel to him and he deposited all the parcels alongwith the sample seals on the same day in FSL, Junga. He further deposes that during the period the parcel remained in his possession, the same remained intact. 15. PW-9 Paul Chand, Addl. SHO, deposes that he went to the spot on 9.7.2007 and prepared the map Ext.PW-9/A. He deposes that school bag Ext.P-5 and dupatta Ext.P-6 of the prosecutrix were taken into possession by him vide memo Ext.PW-9/B in the presence of witnesses namely Geeta Ram and Naria Ram. He further deposes that accused Shyam Lal made the disclosure statement Ext.PW-1/A on 17.7.2007 in the presence of the witnesses and thereafter he led the police party to the bushes in the jungle and got the school uniform Ext.P-7 and shoes Ext.P-8 of the prosecutrix recovered and the same were taken into possession vide memo Ext.PW-1/B, which was signed by the accused and the witnesses. He further deposes that the blanket, vehicle and its documents were taken into possession by him vide memos Ext.PW-1/C and Ext.PW-1/D. He further deposes that the Bed sheets and the cloth were taken into possession from Shimla and the same were recovered from the private houses. He continues to depose that bed sheets and piece of cloth Ext.P-2 to Ext.P-4 were sealed by him by affixing seal impression T and taken into possession vide memos Ext.PW-1/E and Ext.PW-1/F, in the presence of the witnesses. He deposes that the age certificate of the prosecutrix was obtained by him from the Panchayat. In his cross-examination, he deposes that the prosecutrix was made to stay in private houses and not in any hotel in Shimla. He deposes that the houses in Shimla belong to the relatives of accused Shyam Lal. He denies the suggest put to him that the houses even belong to the relatives of the prosecutrix. 16. In his cross-examination, he deposes that the prosecutrix was made to stay in private houses and not in any hotel in Shimla. He deposes that the houses in Shimla belong to the relatives of accused Shyam Lal. He denies the suggest put to him that the houses even belong to the relatives of the prosecutrix. 16. PW-10 (HC Man Dev) deposes that on 9.7.2007, SI Pal Chand deposited four parcels, sealed with the seals of DDU Hospital and seal impression P with him in the Malkhana and entries in that regard were made by him in the Malkhana Register. He further deposes that three parcels, which were sealed with the sale of the hospital were sent by him vide RC No.48/07 dated 10.7.2007, through Constable Dila Ram along with the sample seal and docket. He continues to depose that during the period, the case property remained in his possession, the same remained intact. During his cross-examination, he feigns ignorance that as to whether the complainant party ever stayed during the night in Police Station, Theog or not. 17. The learned Additional Advocate General contends with force before this Court that the minor prosecutrix having at the relevant stage not arrived at the age of consent, hence, consent if any, comprised in hers for a protracted period without remonstrance taking to join the company of the accused, as conveyed by the evidence, is of no consequence. It is also contended that rather with their being no evidence on record conveying the fact that the accused removed her from the custody of or from the lawful guardianship of her parents with their consent hence she is to be construed to have joined the company of the accused without the consent of her guardian /parent, consequently, findings of conviction under Sections 363 and 366(A) read with Section 34 of the IPC were required to be recorded against the accused. Therefore, it is canvassed before this Court that the finding of acquittal recorded in favour of the accused under Sections 363 and 366(A) read with Section 34 of the IPC, is untenable. Therefore, it is canvassed before this Court that the finding of acquittal recorded in favour of the accused under Sections 363 and 366(A) read with Section 34 of the IPC, is untenable. The said contention is rudderless in the face of it having been conveyed by the evidence existing on record, comprised in the deposition of PW-2, the prosecutrix, which loudly communicates the fact of hers having without remonstrance moved in the company of the accused from one place to another, moreover, with hers having consensually traveled in buses in the company of the accused to various places speaks of hers voluntarily join the company of the accused, besides, she having stayed for a night in the house of Shri B.R. Kalta and their being a neighborhood in its vicinity to whom she omitted to communicate the factum of hers having been forcibly removed by the accused from the lawful guardianship of her parents/guardian, construed in tandem with the fact, that the deposition of PW-3 omits to record the fact of hers having noticed any injury marks on her person conveying her resistance to the forcible perpetration of the purported sexual acts on her person by the accused. Hence the aforesaid factual matrix as such conveys her consent to hers joining the company of the accused as well as hers consensually succumbing to the sexual overtures of the accused, besides acquiescence to the sexual acts, if any, perpetrated on her person by the accused. The said factual matrix when has been considered in the judgments reported in Shyam and another vs. State of Maharashtra, AIR 1995 SC 2169 , Bittu alias Anand Singh vs. State of Himachal Pradesh, 1986 Sim. L.C. 113, Paramjit Singh vs. State of Himachal Pradesh, 1986 Sim.L.C. 216, S. Varadarajan Vs. State of Madras, AIR 1965 SC 942 and Manish Singh vs. State Govt. of NCT and others, 2006(1) S.L.J.(Delhi) 556, have been held by the Hon’ble Courts to be not constituting an offence under Section 363, 366(A) read with Section 34 IPC. Consequently, it can be forcefully concluded as appropriately concluded by the learned Court below of no offence having been constituted by the alleged acts of the accused under Section 363, 366(A) read with Section 34 IPC. Therefore, the appeal preferred by the State being Cr. Consequently, it can be forcefully concluded as appropriately concluded by the learned Court below of no offence having been constituted by the alleged acts of the accused under Section 363, 366(A) read with Section 34 IPC. Therefore, the appeal preferred by the State being Cr. Appeal No. 571 of 2008, against the recording of finding of acquittal by learned trial Court in favour of the accused under Sections 363/34 and 366(A)/34 of the Indian Penal Code is maintained and affirmed and the appeal, preferred by the State, for setting aside the impugned judgment of the trial Court, is dismissed. 18. The learned counsel for the accused-appellant has contended with force that the findings of conviction recorded against the accused by the learned trial Court under Section 376 IPC is flawed as the entire trend of evidence as brought on record forcefully conveys hers having consented to the sexual overtures of the accused or hers having succumbed to the sexual intercourse perpetrated on her person by the accused. He urges that the finding, recorded by the learned trial Court of the minor prosecutrix having then not arrived at the statutory age of consent overwhelms the effect of consent, if any, conveyed by the conduct of the prosecutrix to the sexual overtures of the accused yet he contends that the said fact is rendered insignificant in the face of theirs being overwhelming potent evidence portraying the fact of the alleged sexual act or the sexual intercourse perpetrated on the person of the prosecutrix by the accused being wholly consensual. However, the above argument is wholly without weight and force, inasmuch, as, with the apposite penal statute contemplating the fact of the prosecutrix/victim being construed to be enjoying the legal capacity to accord consent only on hers completing 16 years of age which age the victim/prosecutrix had not at the relevant stage arrived at. However, the above argument is wholly without weight and force, inasmuch, as, with the apposite penal statute contemplating the fact of the prosecutrix/victim being construed to be enjoying the legal capacity to accord consent only on hers completing 16 years of age which age the victim/prosecutrix had not at the relevant stage arrived at. As a sequel, when the minor prosecutrix had not provenly arrived at an age so as to acquire the statutory capacity to accord or give consent to the perpetration of sexual acts or sexual intercourse on her person by the accused, as a natural corollary then, even if the evidence conveys her consensually succumbing to the sexual intercourse as perpetrated on her person by the accused, yet with hers at the apposite stage not having acquired the legal capacity to accord consent renders unworthwhile her consent, if any, to the sexual acts perpetrated on her person by the accused. Therefore, the learned trial Court had aptly concluded that, hence, the accused was liable to be convicted under Section 376 IPC. Consequently, the appeal, preferred by the appellant/accused, being Cr.Appeal No.210 of 2008, against findings of conviction, recorded against him, is maintained and affirmed. 19. The State of Himachal Pradesh has also filed an appeal for enhancement of sentence, imposed upon the accused by the learned trial Court under Section 376 IPC. The learned Additional Advocate General contends before this Court that the punishment imposed by the learned trial Court upon the accused Shyam Lal for his having committed an offence under Section 376 IPC is deficient and prays for enhancement of sentence. However, the said prayer is not acceptable to this Court as in the face of the evidence on record communicating as well as voicing the consent of the minor prosecutrix to the sexual acts as perpetrated on her person by the accused, this Court is hence constrained to disallow the contention raised before this Court by the learned Additional Advocate General for enhancement of sentence imposed under Section 376 IPC upon accused Shyam Lal. Consequently, Cr.Appeal No.668 of 2008, preferred by the State against the accused Shyam Lal, for enhancement of sentence, is dismissed. 20. Consequently, Cr.Appeal No.668 of 2008, preferred by the State against the accused Shyam Lal, for enhancement of sentence, is dismissed. 20. In view of the above discussion, this court finds that the judgment of the learned trial Court, convicting the accused-appellant Shyam Lal, under Section 376 IPC as well as acquitting him and other accused under Sections 363/34 and 366(A)/34 IPC, does not suffer from any perversity or absurdity of non-appreciation and misappreciation of evidence on record. As a sequel, the findings recorded by the learned trial Court is maintained and affirmed and all the appeals are dismissed. Records of the learned trial court be sent back forthwith.