CR.A/214/2009 on 29 December 2012

1. Cr.A. No.215 of 2009.

Pyare Lal son of Fagnu Ram, r/o Village Bharot (Gainsta), Tehsil Jubbal, District Shimla, H.P.

…… Appellant.

Versus

State of Himachal Pradesh.

…….Respondent.

2. Cr.A. No.214 of 2009.

Lal Husain @ Lachhoo, s/o Shri Kasham Deen, r/o Village Lambakhatal, Tehsil Rohru, District Shimla, H.P.

…… Appellant.

Versus

State of Himachal Pradesh.

…….Respondent.

Criminal Appeals under Section 374(II) Cr.P.C. against the judgment of conviction and sentence passed by Ld. Addl. Sessions Judge, Shimla, H.P. in Sessions Trial No.5-R/7 of 2008 decided on 20.3.2009.

Coram

Hon’ble Mr. Justice Surinder Singh, J.

Whether approved for reporting?

For the appellants : Mr. Anup Chitkara, Advocate.

For the respondent : Mr. A.K. Bansal, Addl. Advocate General.

Surinder Singh, J:

The learned trial Court in Sessions Trial No.5-R/7 of 2008, decided on 20.3.2009, convicted both the appellants i.e. Pyare Lal for the offence punishable under Section 376 of the Indian Penal Code, whereas Lachhoo @ Lal Husain under Section 376 read with Section 109 of the Indian Penal Code, as such each of them were sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of `10,000/- each. In default of payment of fine to further undergo simple imprisonment for a period of one year each. Appellants hereinafter referred to be as “the accused”, felt aggrieved by the impugned judgment of conviction and sentence, as such, laid challenge by filing separate appeals.

2. In brief, the prosecution story can be stated thus. On 20.7.2008, prosecutrix left from her village to village Bajret Koti (Chhapoti) to the house of her uncle to visit a village fair. On 21.7.2008, at about 4 p.m., she visited Rohru Bazaar, where she met PW11 Poonam and Dimpy. Thereafter, they went to village Machoti in a TRAX Vehicle No.HP-01A-1224, which was being driven by accused Pyare Lal. After sometime, all of them returned to Rohru. Poonam and Dimpy alighted from the said vehicle at the bus-stand and asked the prosecutrix to get down and meet near hospital. Thereafter, at the bus-stand, co-accused Lachhu @ Lal Husain got into the said vehicle. Pyare Lal was on the steering wheel. He drove it off towards village Samoli and told the prosecutrix that they would return and drop her at Rohru near the residence of PW11 Poonam.

(ii) It is alleged that the said vehicle was not even stopped at village Samoli by accused Pyare Lal from where it was driven by co- accused Lachhoo @ Lal Husain and stopped it near Bakhal Khud at a lonely place near Kaloti. By then, it was around 9 p.m. When the vehicle stopped, Pyare Lal came to the rear seat where prosecutrix was sitting and committed rape on her. Thereafter he came out. After sometime, returned back and again molested her. Lachhoo @ Lal Husain co-accused was standing on guard. He realized that a motorcycle was coming from other side alerted Pyare Lal to come out. Then, he himself ran away from the spot. The persons who came on the motorcycle ascertained the identity of the prosecutrix and on her information informed her father PW4 Guru Dutt. In the meantime, Pyare Lal accused also absconded from the spot.

(iii) When the father of the prosecutrix alongwith Joginder his son reached the place of alleged incident, they found the prosecutrix sitting in the vehicle, but accused were not there. Later, they were nabbed by the motorcyclists with the help of some villagers. The prosecutrix complained about the said incident to her father. Till morning, all of them stayed on the spot, next morning, the prosecutrix was taken by her father in a bus to Rohru. Her mother had also arrived there. Then they went to the Police Station and lodged the FIR Ext.PW1/A.

(iv) Prosecutrix was got medically examined. Police visited the spot and found the underwear Ext.P1 of the prosecutrix in the bushes near the place of alleged incident. Seat cover Ext.P2 of the vehicle was found soiled. That was taken into possession vide memos Exts.PW1/B and PW2/A and B. Police also took the photographs of the vehicle on spot.

(v) PW3 Dr. Pavitra had medically examined the prosecutrix on 22.7.2008. Prosecutrix gave the history having been taken away by accused persons from Rohru in the vehicle. They were stated to have purchased beer bottles from Badiara. After consuming it, accused Lachhoo went out of the vehicle while accused Pyare Lal committed rape on her. She also gave history to the doctor that Pyare Lal gagged her mouth with his hand and took off her trouser down below the legs and committed rape, but the second attempt missed half way, he ejaculated over her thighs. On the clinical examination, doctor noticed menstrual bleeding, however, there was no swelling or redness, but the hymen was found ruptured. There was no external injury. The vaginal smear slides were taken alongwith pubic hair clipping. Her clothes were also taken into possession, sealed and sent for forensic examination. As per report Ext.PX, underwear, dupatta, vest and sweater contained human blood, but no semen was detected. The traces of blood were found on the seat cover Ext.P2, shirt of the prosecutrix and the underwear of the accused Pyare Lal. Human blood and semen was also found on the Salwar of the prosecutrix. Blood was also detected on the vaginal slides, but no semen could be detected. In the opinion of the doctor, the prosecutrix was exposed to coitus. She gave her opinion on the MLC Ext.PW3/A.

(vi) Prosecutrix was also subjected to the ossification test. Her skeletal age was opined to be between 14 to 16½ years. Police had also recorded her statement.

(vii) Both the accused persons were arrested. Accused Pyare Lal was got medically examined. His MLC is Ext.PW9/B. He was found fit to perform sexual intercourse.

(viii) During the investigation, police also took into possession the birth certificates Exts.PW6/C and D showing the date of birth of the prosecutrix as 5.5.1993. They also took into possession attested copy of school admission form Ext.PW14/A wherein the same date of birth was reflected in column No.2 thereof. Thus, she was not found to be less than 16 years of age on the day of alleged incident in the mo nth of July,2008.

3. After completing the investigation, Challan was presented in the Court for the trial of the accused persons. Though they should have been charge- sheeted for Section 376(g) of Indian Penal Code, for gang rape, but however, accused Pyare Lal was charge-sheeted for the offence punishable under Section 366 read with Section 34 and 376 of the Indian Penal Code, whereas, his co-accused Lachhoo @ Lal Husain under Section 366 read with Section 34 and 376 read with Section 109 of the Indian Penal Code. Though, no prejudice has been alleged nor it is an illegality which vitiates the trial. But however, the substance of the charge clearly conveys the ingredients of the offences alleged. Both of them pleaded not guilty and claimed trial.

4. To prove its case, prosecution examined the prosecutrix, her father, doctors and other witnesses including the Investigating Officer. Accused persons were also examined under Section 313 of the Code of Criminal Procedure. They admitted that Poonam and Dimply had been travelling in their vehicle alongwith the prosecutrix, but the prosecutrix was not sure where to go, thus, she remained sitting in the vehicle. They also admitted having taken the vehicle towards Samoli side alongwith some passengers including the prosecutrix. After the passengers were got down at Badiara, the only passenger was prosecutrix, who according to him wanted to be dropped at village Parsa, but they denied the allegation of rape, but admitted that two persons came on the Bike. Lachhoo ran away from the spot, whereas, Pyare Lal remained standing outside the vehicle. It is also admitted that the Bikers telephonically informed the villagers and caught Pyare Lal on the spot. Accused Pyare Lal further admitted that villagers enquired about the identity of the prosecutrix, thereafter he was left and did not know whether her father arrived at the spot or not. Though, he admitted having been medically examined by the doctor at the instance of the police and pleaded innocence.

5. Accused Lachhu @ Lal Husain admitted that the prosecutrix was sitting in the vehicle when he boarded the same being driven by Pyare Lal, but denied that Pyare Lal had committed any rape on her. He however admitted the arrival of two persons on their Bike. It is also admitted that on seeing them, he ray away from the spot.

6. Accused persons were called upon to enter into their defence, but they did not lead any evidence in defence. At the end of trial, accused persons were convicted and sentenced as aforesaid.

7. Shri Anup Chitkara, learned counsel for the accused persons vehemently argued that there are contradictions, inconsistency, exaggeration/ embellishment in the statements of the prosecutrix and other witnesses. He also argued that the prosecution has failed to connect the accused with the crime and alternatively argued that the prosecutrix could not be proved to be minor, as such, the circumstances

suggest that she was a willing party. To substantiate his points, he cited the judgment of Apex Court rendered in Krishan Kumar Malik vs. State of Haryana [ (2011) 3 SCC (Cri) 61] = [ (2011) 7 SCC 130]. It is further argued that the second accused Lal Husain @ Lachhoo had no role to play in the matter, therefore, his conviction and sentence is also liable to be set-aside.

8. Contra, Shri A.K. Bansal, learned Additional Advocate General supported the impugned judgment of conviction and sentence and further submitted that the statement of the prosecutrix is worth inspiring confidence and supported by the material particulars thereof negating consent calls no interference as also the prosecutrix has been proved to be minor.

9. To appreciate the rival contentions of the parties, I have meticulously and cautiously reappraised the evidence on record.

10. The prosecutrix when examined in the Court substantiated the prosecution version in verbatim. PW11 Poonam was of her village, who used to live in Rohru and according to her, when she was going to village Chhapoti to attend the fair, Poonam invited her to Rohru. After visiting village Chhapoti, she reached

Rohru around 8.30 p.m. and for the night, stayed with her. Next morning, Poonam, her friend also proposed to visit village Chhapoti, thus she alongwith one Dimpy around p.m. proceeded towards the village Chhapoti in the vehicle being driven by accused Pyare Lal and all of them returned in the same vehicle to Rohru alongwith some more passengers. She further testified that Poonam and Dimpy alighted at bus-stand Rohru and Poonam asked her to get down at hospital road, but thereafter accused Lachhoo boarded the vehicle, when all other passengers had got down and Pyare Lal drove off the vehicle towards hospital road. When the vehicle reached there, she requested Pyare Lal to stop as she wanted to get down, but he told her that the vehicle is going to Samoli village for lifting some passengers and she would be dropped on return in the house of Poonam. She further stated that the Trax vehicle did not stop at Samoli, but was taken further on Chirgaon road. She started weeping and requested Pyare Lal to drop her, but they did not do so, rather Pyare Lal further drove the vehicle very fast and stopped it in a Nalla near Kaloti. On being asked, she was not ready to come out, but Pyare Lal accused lifted her to the rear seat. They locked the doors and both the accused persons started consuming Beer outside of the vehicle. She further stated that thereafter accused Pyare Lal entered the vehicle and committed rape on her repeatedly. In the meantime, a Bike was seen coming at a distance, upon this Lachhoo accused asked Pyare Lal to come out. In the meantime, Biker reached near the vehicle. He had a pillion rider also. Lachhoo made an escape from the spot, whereas accused Pyare Lal remained standing. She also stated that in the meantime, another Bike came on the spot. The Bikers made telephonic call to the villagers nearby. Some villagers also arrived there and caught hold of Pyare Lal accused. The villagers asked about her identity, name and the address of her father. They made a telephonic call to her father. Villagers also gave thrashing to Pyare Lal. Thereafter he also ran away. She further stated that after sometime her father and brother Giri Raj alongwith their servant Joginder came there on the motorcycle. Police was also informed. Till the arrival of the police in the morning, all of them remained on the spot, thereafter she was taken to Police Station, Rohru. After sometime, her mother had arrived and FIR was lodged. She identified her signatures on the FIR Ext.PW1/A. She also stated having been medically examined by the doctor. She further stated that she had thrown her underwear on the spot as it got soiled due to the sexual act. She pointed out the spot to the police. Police also took photographs of the spot and the vehicle and recovered the underwear from the bushes which was taken into possession vide memo Ext.PW1/B. She was subjected to the lengthy cross-examination, but nothing material could be extracted. Though she stated that she alongwith Poonam and Dimpy voluntarily travelled in the vehicle of the accused Pyare Lal for village Chhapoti and returned in the same vehicle to Rohru alongwith some other passengers, but she stated that it was on the assurance of the accused Pyare Lal she remained sit in the vehicle that he would drop her at the residence of Poonam on the return from Samoli. She also stated that at Samoli as well as at village Badiara, there are about 3-4 hotels and Dhabas. She denied that she wanted to go to village Parsa alongwith the accused persons. Further according to her, though she had tried to get down at village Samoli and Badiara, but accused persons closed the door of the vehicle. She also stated to have made this statement to the police, but when confronted with her statement, this fact was not found recorded therein. She further stated that the accused persons purchased Beer at village Badiara. The vehicle was stopped there only for five minutes. She admitted that she was menstruating profusely during the time of incident, which also soiled her clothes. She also stated that 15-16 villagers from village Kaloti had arrived at the spot and gave beatings to the accused Pyare Lal suspecting him that he was trying to take her somewhere during the night. She further stated that had her father not been called, the accused persons might have dropped her in her village, perhaps no case could have been set up against them. From her testimony, it is clear that she had studied upto 7th standard. She belonged to a remote village of District Shimla, Sub-division Rohru. Learned counsel for the accused wants to capitalise from her statement that no case would have been there against accused had she been dropped in her village means nothing but reflects her innocent character. In the aforesaid background, she means to convey that the case against the accused persons could only be made out because of the timely intervention of the villagers and the Bikers, lest the accused persons might not have been caught red handed and disappeared.

11. PW4 Guru Dutt, father of the prosecutrix substantiated the fact of informing him by the Bikers and came to the spot alongwith his son. He categorically stated that the people informed him of the incident and also that the prosecutrix was raped by the accused, which fact was also confirmed by the prosecutrix that accused Pyare Lal had committed rape on her. He further stated that the accused Lachhoo also played a vital role in the commission of crime by not stopping the vehicle.

12. PW11 Poonam, at the relevant time was midwife in Rai Hospital at Rohru. She testified that she knew the prosecutrix, being resident of village Parsa. She also corroborated the prosecutrix case that on 21.7.2008, she alongwith prosecutrix had gone to village Chhapoti to see the village fair. According to her the prosecutrix got down on the way, but she alongwith her friend went in the same vehicle to see the village fair and returned after half an hour. On the way, prosecutrix met them where she had alighted earlier. Many other persons boarded the Trax vehicle, then they went to Rohru bus-stand. All others got down, except the prosecutrix who expressed her desire to go to Shimla. According to her, she was demanding a suit from her to which she refused. On this statement, she was declared hostile and cross-examined by the learned Public Prosecutor. Pertinently, she stated that when she alongwith Sandhira alighted from the vehicle at Rohru bus stand, accused Lachhoo was present there, but in their presence, he did not board the said vehicle. She was confronted and stood contradicted with her statement recorded under Section 161 Cr.P.C. by the police. The reason for her supporting the case is also made apparent from the fact that on the day when her statement was recorded, the wife of the accused Pyare Lal was with them and she admitted that both were talking to each other for about an hour. She did not know about her name, but stated that about three months back, she had also come to her village Parsa with her mother-in-law and met her as well as the prosecutrix and the wife of the accused Pyare

Lal started enquiring about the incident from her. To a Court question, she stated that she was conversing with the wife of Pyare Lal only about the welfare of her son, is quite unbelievable. She also stated that when she alongwith Sandhira, on the day of recording of her statement in the Court, were talking to the wife of Pyare Lal, both the accused persons were standing nearby, though she denied that she was telling lie to save them, but on the scrutiny of her evidence, it is apparent that said witness has kept hidden the truth, which, somehow or the other came to the fore.

13. PW2 Yash Pal is a witness of the recovery of underwear Ext.P1 and seat cover Ext.P2 and though in cross-examination, he stated that no such recovery was made in his presence, but it stands proved by the Investigating Officer and the prosecutrix.

14. PW3 Dr. Pavitra on the physical examination of the prosecutrix found her habitual to sexual intercourse, but after examining the report of the forensic did not over rule the possibility of coitus and gave final opinion Ext.PW3/A to this effect.

15. PW9 Dr. Naresh medically examined the accused Pyare Lal and found him fit to perform sexual intercourse.

16. PW10 Vinod Redka was a pillion rider with Nitu Sharma. He arrived on the spot around 10 p.m., when they were nearer to the parked vehicle they saw two persons coming out and ran away. They found the prosecutrix who was resident of village Parsa sitting in the vehicle, the telephone number of her father was obtained from her and they gave a telephonic call to her father. He also stated that within five minutes, Rinku and Roop Thakur also came on the motorcycle. Some villagers came on foot. The father of the prosecutrix was also brought to the spot. They stayed for the night on the spot till the arrival of the police next morning. In cross-examination, he categorically stated that they enquired from the prosecutrix how she happened to be there, she disclosed to them that she was brought by the accused persons and no further enquiries were made by them.

17. PW11 Inspector Lal Man investigated the case and took into possession the record with respect to the age of the prosecutrix.

18. On the critical examination of the aforesaid evidence, I do not find any material inconsistency, exaggeration or embellishment in the statement of the prosecutrix. She has been proved to have been taken by the accused to a Nalla near village Kaloti in the vehicle. This fact stands also admitted by the accused in their statements recorded under Section 313 Cr.P.C, however they denied that Pyare Lal committed rape and the another accused Lachhoo stood guard. It also stands proved that most of the villagers and Bikers had assembled on the spot and the father of the prosecutrix was called and brought to the spot. Thereafter the prosecutrix stated about the incident to her father as well as to the police and during the trial of the case she also testified the same story. There appears no contradiction in her statement and it is worth inspiring confidence.

19. Insofar as the age of the prosecutrix is concerned, the prosecutrix stated in her examination- in-chief that she was borne in the year 1993. Though she did not know about the exact date of birth, but she denied that she was more than 18 years of age.

20. PW3 Dr. Pavitra stated that as per dental opinion and expert Radiologist opinion at Din Dayal Upadhaya Hospital, Shimla, she was opined to be between 14 to 16½ years of age. Her father PW4 Guru Dutt categorically stated that she was about 15 years at the time of incident. According to him, she left studies in July, 2008 when she was studying in 7th standard. In cross-examination, he denied that she was more than 19 years of age. PW6 Kishori Bhardwaj, Secretary of the Panchayat proved the birth certificate Ext.PW6/C pertaining to her age. According to him, birth certificate issued by him is correct according to the original record. Though he stated that this entry is not in his hand, but the presumption is attached to it as per Section 114 (g) of the Indian Evidence Act unless proved to be contrary.

21. Further to corroborate the age of the prosecutrix, PW7 Surinder Chauhan was examined. He was acting Principal of the Senior Secondary School, where the prosecutrix had studied. He produced the register of admission and withdrawal and on the application Ext.PW7/A moved by the police he issued certificate Ext.PW7/B wherein date of birth of the prosecutrix is according to the same.

22. PW8 Dr. Rajiv Sharma stated that on 24.7.2008, prosecutrix was referred to him for the opinion with respect to the age. He suggested to take the radiographs to determine the age of the victim. The radiographs are Exts.PW8/A and B and on the basis of dental age, she was opined between 14 to 16 years of age and opinion is Ext.PW8/C. He further stated that the dental age is of a great significance and is equal significance to that of ossification test. He categorically stated that the age of the prosecutrix was between 14 to 16 years.

23. From the examination of the aforesaid statements, with respect to the age, I have no doubt in my mind to hold that the prosecutrix on the date of incident was less than 16 years of age.

24. In the totality of circumstances discussed hereinabove, I am of the firm opinion that Krishan Kumar’s case supra has no application in this case. Accused Pyare Lal is proved to have committed rape on the prosecutrix, who was less than 16 years and his co-accused Lal Husain @ Lachhoo had aided the offence, thus both of them were equally responsible and were rightly convicted and sentenced by the learned trial Court. Further accused Lachhoo did not try to save the prosecutrix, nor informed the villagers or the police, rather he cautioned Pyare Lal, who was committing the offence and when the Bikers came there, he made an escape from the spot speaks volumes of his guilty mind.

25. In view of the above circumstances, both the appeals are without merit, hence dismissed.

26. Send down the records.

(Surinder Singh )

Judge December 29, 2010.

(Pds)