Dinesh Kumar vs State of Himachal Pradesh

Dev Darshan Sud, J.—The appellant was convicted by the learned Sessions Judge for offences under Sections 363, 366A and 376 of the Indian Penal Code (hereinafter I.P.C.). The sentences imposed under each of the sections are as under:

Sr.No.

Under Section:

1.

363 I.P.C.

Seven years simple imprisonment and fine of Rs.10,000/-. In default of payment of fine, the convict shall further to undergo simple imprisonment of one year.

2.

366-A I.P.C.

Seven years simple imprisonment and fine of Rs.10,000/-. In default of payment of fine, convict shall further undergo simple imprisonment of one year.

3.

376 I.P.C.

Seven years simple imprisonment and fine of Rs.10,000/-. In default of payment of fine, convict shall further undergo simple imprisonment of one year.

All sentences to run concurrently

The prosecution case is that the appellant kidnapped the prosecutrix Naryum Devi on 31.5.2002 from the lawful guardianship of her parents. The prosecution case further is that she was minor and was subjected to sexual intercourse by him.

The prosecutrix appeared as PW1 and stated that her father was working as a tailor. She has five brothers and sisters. She was studying in class-VIII in the year 2002. She was very familiar and friendly with the accused. On 31.5.2002 at around 5 p.m., she went to meet her friend, who used to reside in village Kanam. The accused met her on the road and asked her to accompany him in a vehicle to Reckong Peo where they reached there at about 10/11 at night. They stayed at night in Sharma Hotel. Thereafter, she was taken to village Brelangi where her father and uncle came along with police officials and she was taken to the Police Station and thereafter brought to hospital for medical examination. She states that the accused wanted to marry her. In cross examination she stated that she stayed in the dormitory of the hotel where 8/9 other persons were also staying. She was then cross examined at length with respect to the number of the vehicle. She then says that when they came back from the hotel in the morning, 40/50 persons met them walking on the road but she did not talk to anybody. She also says that she did not talk about this incident to any person, who was staying in the dormitory of the hotel. She admitted that both she and the accused slept on the same bed but denied that her age was above 18 years.

PW2 Daya Ram states that the prosecutrix was a minor aged about 15 years in the year 2002 when she was studying in VIII class at Ribba. She had gone to the school and returned at around 4 p.m. in the evening where after she went to visit one of her girl friends but did not come back during the night. On the next day she went to Reckong Peo in connection with some personal work and met one Bhag Dass, who told him that the accused had taken the prosecutrix to Brelangi. He lodged rapat No.7 Ext.PW2/A where after the police swung into action and arrested the accused. PW3 L.H.C. Smt. Bhajna Devi, posted at Police Station, Reckong Peo had taken the prosecutrix for medical examination. PW4 Prem Parkash took the accused for medical examination. PW5 Rattan Pal was the witness to the disclosure statement etc. PW7 Sumir Singh was the Assistant Secretary of the Gram Panchayat, Rishpa. He stated that he supplied birth and death entry Ext.PW7/A and that this entry was recorded in accordance with the information given by PW6 Bir Sukh grand father of the prosecutrix. PW8 Satwant Negi, Principal Senior Secondary School, Ribba has proved on record the date of birth certificate Ext.PW8/A showing the date of birth according to the admission register has been disclosed as 29.12.1988.

PW12 Dr. Renu Rattan was posted as Medical Officer, District Hospital at Reckong Peo. She conducted medical examination of the prosecutrix and proved on record the medical certificate (M.L.C.) Ext.PW12/A. She states that after going through the report of the Chemical Examiner, spermatozoa were seen in slide made from vaginal material and human semen was also found on the Kameez and underwear of the prosecutrix.

PW15 Bishambar Dass is the owner of Sharma Guest House, who was declared hostile. PW16 Dr. Girish Kumar Sharma has proved Ext. PW16/A which is M.L.C. of the accused. I do not find from the record that the report of the Chemical Examiner which finds incorporation with M.L.C. has been brought/proved on the record of the case.

Learned counsel appearing for the appellant submits that the prosecution has not been able to establish its case beyond reasonable doubt, more especially u/s 376 I.P.C. since the evidence consists only of the prosecutrix and PW12 Dr. Renu Rattan. He submits that the report of the Chemical Examiner has not been produced and proved. In cross examination of this witness, she says that she has not given any opinion about the sexual assault when she was brought for medical examination. When the opinion of the Chemical Examiner was received on 6.1.2003 she opined that she had been sexually assaulted for the reason that semen etc. was found on the shirt and underwear of the prosecutrix. No semen was found on the Sal war etc. Learned counsel also submits that she did find swelling on the genital area of the prosecutrix but did not record this in the M.L.C. In these circumstances, the learned counsel submits that the report about sexual assault /rape cannot be accepted. He submits that the learned trial Court was wrong in relying solely on the statement of the prosecutrix.

Adverting to this evidence on the record, I do find that the report of the Chemical Examiner has been produced on the record. There is no explanation as to why this report has been withheld. From the recording on Ext.PW10/A what I find is that there is no opinion expressed by the doctors at the initial stage as to whether the prosecutrix was, in fact, sexually assaulted by the appellant or not.

Learned counsel also submits that there is no evidence on the record that the appellant had kidnapped the prosecutrix rather she was willing to get married with him. This submission requires to be rejected outright as the prosecutrix was a minor below the age of 16 years which fact stands proved on record from Ext.PW7/A and Ext.PW8/A which are the entries made in the record of the Panchayat as also in the school records. Learned counsel submits that the prosecutrix admits that they slept in a dormitory where other 8/9 people were sleeping in the dormitory of the hotel as admitted by the prosecutrix herself and in these circumstances it was not possible to have forcible sexual intercourse with her against her consent. Rather, the idea of having sex in a crowded room is bizarre. He then submits that in her cross-examination, the prosecutrix admits that she met 40/50 persons on the way when she was coming back from the hotel and did not complain to anybody. In case the prosecutrix was either raped or kidnapped, she would have complained/raised a hue and cry immediately in the dormitory where there was other 8/9 people. In these circumstances, there is no question of kidnapping and raping the prosecutrix.

On the aspect of rape, though the proposition of law is well settled that the evidence of the prosecutrix does not require any corroboration but when the attendant circumstances cast a grave suspicion as to whether the incident did not, in fact, take place, some corroboration would be necessary. This is not to say that the evidence of the prosecutrix can be brushed aside.

Lastly the fact that at the time initial medical examination, no evidence of rape was found by the doctor, who reserved the opinion till the report of Chemical Examiner was received and on receipt of such report she opines that the prosecutrix was subjected to sexual intercourse but the report has not been proved and produced on the record of the case. In these circumstances I cannot persuade myself to hold that offence u/s 376 I.P.C. has been made out.

On the question of kidnapping, I find that the age of the prosecutrix stands established by Ext.PW7/A and Ext.PW8/A and in these circumstances, she being a minor, no consent can be attributed to her for accompanying the accused. There is no evidence that at the time when she was recovered she was in the lawful guardianship of her parents. In these circumstances, the submission made by the learned counsel for the appellant that she was not kidnapped but, in fact, accompanied the accused, cannot be accepted.

This appeal is, therefore, partly allowed. The conviction of the accused is set aside u/s 376 I.P.C. but the sentence is maintained on the other two offences save and except that the appellant will not be liable to pay/deposit any fine.

On the aspect of sentencing, it has been brought to my notice by learned counsel appearing for the appellant that he has been married to the prosecutrix and that they living happily. I had called both the accused as also the prosecutrix and the parents to Court. This Court was informed by all that both of them are happily married with the consent of their parents and have one child. There was no element of coercion etc. which was practiced on the prosecutrix to enter into matrimonial bond.

Cr.M.P. No. 694 of 2012 has been filed by the appellant herein supported by the affidavit of both the prosecutrix and the appellant and supported by a certified copy of the Pariwar register. Application is allowed and taken on the record. In these circumstances, ends of justice would be served in case the sentence imposed u/s 366A and 356 I.P.C. is reduced to one already undergone which is in this case is one year, five months and two days. The sentence of fine as imposed is set aside. Bail bonds furnished by the appellant are directed to be discharged.