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2015 DIGILAW 1135 (HP)

Baldev Singh v. State of Himachal Pradesh

2015-08-20

TARLOK SINGH CHAUHAN

body2015
JUDGMENT : Tarlok Singh Chauhan J. This appeal is directed against the judgment of conviction and sentence passed by learned Sessions Judge, Mandi on 18.2.2013/20.2.2013, whereby the appellant/accused has been convicted under Sections 363, 366, 376 and 342 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 7 years and pay a fine of Rs.2,000/- under Section 376 IPC, in default of payment of fine, to further undergo simple imprisonment for a period of two months, under Section 363 IPC to undergo rigorous imprisonment for a period of 3 years and to pay a fine of Rs.1,000/- and in default of payment of fine, to further undergo simple imprisonment for a period of one month, under Section 366 IPC to undergo rigorous imprisonment for a period of 3 years and to pay a fine of Rs.1,000/-, in default of payment of fine to further undergo simple imprisonment for a period of one month and under Section 342 IPC to undergo rigorous imprisonment for a period of two months and pay a fine of Rs.500/- and in default of payment of fine, to undergo simple imprisonment for a period of 15 days. 2. The appellant though was even charged with the offence punishable under Section 3(i) (xii) of the SC & ST (Prevention of Atrocities Act, 1989, but for want of evidence he was acquitted of this charge. 3. The case of the prosecution is that on 9.2.2012, complainant Lal Singh, who was working as Cashier in Quality Inn Hotel at Manali was telephonically informed by his wife that their daughter (herein after referred to as the prosecutrix), who was studying in class 10 in Government Senior Secondary School, Paunta did not return back from the school, which constrained him to lodge missing report at Police Post, Hadi. The police made all out efforts to trace out the prosecutrix, but in vain. On 10.2.2012, wife of the complainant received a call on her mobile, where the caller threatened her that if some harm would be caused to the prosecutrix, then he will not spare them. The said voice was identified to be that of the accused. The complainant expressed his suspicion that his minor daughter has been enticed away by the accused, leading to lodging of FIR under Sections 363, 366 and 120-B IPC. 4. The said voice was identified to be that of the accused. The complainant expressed his suspicion that his minor daughter has been enticed away by the accused, leading to lodging of FIR under Sections 363, 366 and 120-B IPC. 4. On the basis of call details of the appellant, his whereabouts were traced out from the tower location and the accused was found at Gondpur, Paonta Sahib, District Sirmour. The accused was arrested on 24.3.2012 at 6.00 P.M. and sent to Zonal Hospital, Mandi for medico legally examination. Initially, the prosecutrix was sent to Zonal Hospital, Mandi for medico legally examination, but she refused to get herself examined. However, lateron on 26.3.2012 the prosecutrix again appeared before the police with request to get her medico legally examined, which was conducted by the police at Zonal Hospital, Mandi. 5. After completion of investigation, the police found a case under Section 363, 366, 376, 342 and 506 IPC and Section 3(i)(xii) of the SC and ST (Prevention of Atrocities Act) and accordingly charge sheet was prepared and filed in the Court of learned Judicial Magistrate Ist Class, Sarkaghat, who committed the same to Sessions Court vide his order dated 23.6.2012. 6. The prosecution examined eighteen witnesses and after closure of evidence, the entire incriminating evidence appearing against the accused was put to him in his statement recorded under Section 313 Cr.P.C. The accused denied the entire prosecution story and took the defence that he had been falsely implicated in the case due to inimical relations with the family of the prosecutrix. However, no evidence in defence was led by the accused. 7. The trial Court after evaluating evidence and after hearing the learned counsel for the parties convicted the accused/appellant as aforesaid. Feeling aggrieved with the aforesaid judgment, the present appeal has been filed. 8. Learned counsel for the appellant has tried to convince the Court that he has been falsely implicated, since the prosecutrix was not with the appellant. However, I find that there is overwhelming evidence on record, which goes to show that the prosecutrix had in fact remained with the appellant for a period of about 43 days. 8. Learned counsel for the appellant has tried to convince the Court that he has been falsely implicated, since the prosecutrix was not with the appellant. However, I find that there is overwhelming evidence on record, which goes to show that the prosecutrix had in fact remained with the appellant for a period of about 43 days. This fact is not only supported by the prosecutrix (PW-2), but even her father (PW-3), PW-8 Yamin Ali, who was the landlord of the premises rented out to the accused, where the accused along with prosecutrix had been residing from 12.2.2012 till the time he finally came to be arrested on 23.3.2012 and PW-12 HC Ashok Kumar. 9. The appellant thereafter has tried to claim acquittal on the basis of judgment rendered by learned Division Bench of this Court in State of Himachal Pradesh Vs. Rajesh Kumar and another 2011 (3) Shim. LC 22 and another judgment delivered by learned Single Judge of this Court in Vikas Sharma Vs. State of H.P. 2015 (1) SLC 295. But both these precedents are clearly distinguishable, as in the aforesaid cases it had been duly established that the prosecutrix had voluntarily accompanied the accused therein but she had crossed the age of discretion, while in the present case it is not so. 10. PW-1 Dr. Sonali Mahajan who conducted the medico legally examination of the prosecutrix, has clearly opined that the prosecutrix had been subjected to coitus. PW-2 has stated that the accused committed rape on her on 9.2.2012 and thereafter subjected her to coitus every night during the period she remained in the residential quarter of the accused at Amar Kot. 11. Once the age of the prosecutrix has been established to be 15 years 2 months and she yet not reached the age of discretion, the offences for which the appellant has been charged stand duly established. 12. The learned counsel for the appellant would further argue that in case the Court is not inclined to accept the prayer for acquittal of the appellant, in that case, sentence awarded by the trial Court be reduced. Learned counsel for the appellant has relied upon the judgment of Hon’ble Supreme Court in Mohd. Imran Khan Vs. State (Govt. 12. The learned counsel for the appellant would further argue that in case the Court is not inclined to accept the prayer for acquittal of the appellant, in that case, sentence awarded by the trial Court be reduced. Learned counsel for the appellant has relied upon the judgment of Hon’ble Supreme Court in Mohd. Imran Khan Vs. State (Govt. of NCT of Delhi) (2011) 10 SCC 192 , wherein it upheld the reduction of sentence from 7 years to 5 years on the ground that the prosecutrix had willingly accompanied the appellants, who had been accused of gang rape. The age of the prosecutrix was 15 years when she had eloped with the appellants therein, who were young boys. 13. I have given my thoughtful consideration to the rival submissions made by the learned counsel for both sides. In case the testimony of the prosecutrix is seen, it would be clear that she on 9.2.2012 left her house at around 8.30 A.M. She was having a school bag with her. She alleged that she was lifted from Baggi and taken in a vehicle parked on the road side and her mouth was also gagged, so that she could not raise any noise. She also claimed that when she alighted from the vehicle, the accused directed her to change her clothes and after changing clothes they again boarded a bus. She has tried to explain that she could not raise an alarm, as she was threatened by the accused with dire consequences. But then it has come in evidence that the prosecutrix resided with the accused at Amar Kot and did not complain either to the landlord or to anyone in the neighborhood. 14. Not only this, it was not on the basis of the complaint of the prosecutrix that the appellant came to be arrested, rather it was the missing report lodged by the father of the prosecutrix which led to arrest of the accused after his whereabouts were traced on the basis of his location through mobile tower. 15. It has specifically come in the statement of PW-3, Lal Singh, who is none other than father of the prosecutrix, that the prosecutrix had refused to subject herself to medico legally examination on the first occasion, because the prosecutrix had disclosed to the police that the accused had not committed any act. 16. 15. It has specifically come in the statement of PW-3, Lal Singh, who is none other than father of the prosecutrix, that the prosecutrix had refused to subject herself to medico legally examination on the first occasion, because the prosecutrix had disclosed to the police that the accused had not committed any act. 16. That apart, it would be seen that even while taking consent of the prosecutrix to undergo the medico legally examination at the first instance, the history recorded is divulged in the following manner. “Alleged H/O sexual assault by Baldev from 9.2.2012 and got married on 10.2.2012. ^^eSa viuk esfMdy tkap ugha djokuk pkgrhA eSa iwjs gks’k esa fy[k jgh gwaA** 17. In addition to the aforesaid, it would be noticed that Yamin Ali PW-8, who was the landlord has not stated even a single word against the appellant and has rather deposed that during stay of the appellant, two ladies used to visit the appellant and on enquiry, the appellant had disclosed that both these ladies were from his area. In case something unusual would have been noticed by the landlord, it would have definitely come out in his statement. 18. The prosecutrix in her cross-examination has categorically stated that when she boarded the bus along with the accused there were numbers of persons sitting in the bus, but she had not disclosed to anyone that she was being forcibly taken. She has specifically stated that when she was kept in the quarter of the accused, there were number of other persons who were residing in the vicinity and further stated that for all 43 days she remained alone throughout the day in the quarter. 19. On the basis of the evidence available on record, it can safely be gathered that the prosecutrix voluntarily accompanied the accused from Baggi to Ladror and then finally resided with the accused at his residential quarter at Amar Kot for 43 days. Moreover, the occurrence relates to the year 2012 when the prosecutrix was about 15 years 2 months, whereas the appellant was aged about 26 years. 20. As noticed above, there are some special circumstances, which cannot be ignored and have to be considered while sentencing the accused. 21. Therefore, taking into consideration all the cumulative facts and circumstances, the convection of the appellant for the offences for which he has been charged and convicted, is upheld. 20. As noticed above, there are some special circumstances, which cannot be ignored and have to be considered while sentencing the accused. 21. Therefore, taking into consideration all the cumulative facts and circumstances, the convection of the appellant for the offences for which he has been charged and convicted, is upheld. However, the substantive sentence under Section 376 IPC shall stand reduced to 5 years instead of 7 years, as awarded by the learned trial Court. The remaining sentence and fine under other Sections stands affirmed and upheld. The appeal is partly allowed in the aforesaid terms and disposed of accordingly.