Significantly, in the statement under Section 313
of the Code of Criminal Procedure of the accused
a question has been put to him that the age of the
prosecutrix was between 15½ - 16½ years. This
reveals that the prosecution itself is not sure as to
what was the exact age of the prosecutrix at that
time and rather as per its own version, her age was
15½ - 16½ years. No question has been put to the
accused that the prosecutrix being born on 5th
August, 1997 was minor, in his statement under
Section 313 of the Code of Criminal Procedure.
Therefore, such incriminating circumstance
appeared in the prosecution evidence cannot be
used against him. It is held so by the Apex Court in
Sharad Birdhichand Sarda v. State of Maharashtra,
AIR 1984 SC 1622, as under:
“142. Apart from the aforesaid comments
there is one vital defect in some of the
circumstances mentioned above and relied
upon by the High Court, viz., circumstances
Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As
these circumstances were not put to the
appellant in his statement under Section 313
of the Criminal Procedure Code they must be
completely excluded from consideration
because the appellant did not have any
chance to explain them. This has been
consistently held by this Court as far back as
1953 where in the case of Hate Singh Bhagat
Singh v. State of Madhya Bharat AIR 1953 SC
468 this Court held that any circumstance in
respect of which an accused was not
examined under Section 342 of the Criminal
Procedure Code cannot be used against
him.
Print Page
of the Code of Criminal Procedure of the accused
a question has been put to him that the age of the
prosecutrix was between 15½ - 16½ years. This
reveals that the prosecution itself is not sure as to
what was the exact age of the prosecutrix at that
time and rather as per its own version, her age was
15½ - 16½ years. No question has been put to the
accused that the prosecutrix being born on 5th
August, 1997 was minor, in his statement under
Section 313 of the Code of Criminal Procedure.
Therefore, such incriminating circumstance
appeared in the prosecution evidence cannot be
used against him. It is held so by the Apex Court in
Sharad Birdhichand Sarda v. State of Maharashtra,
AIR 1984 SC 1622, as under:
“142. Apart from the aforesaid comments
there is one vital defect in some of the
circumstances mentioned above and relied
upon by the High Court, viz., circumstances
Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As
these circumstances were not put to the
appellant in his statement under Section 313
of the Criminal Procedure Code they must be
completely excluded from consideration
because the appellant did not have any
chance to explain them. This has been
consistently held by this Court as far back as
1953 where in the case of Hate Singh Bhagat
Singh v. State of Madhya Bharat AIR 1953 SC
468 this Court held that any circumstance in
respect of which an accused was not
examined under Section 342 of the Criminal
Procedure Code cannot be used against
him.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 264 of 2009
Reserved on : 16.12.2016
Decided on: 2nd March, 2017
State of H.P.
V
Raghubir Singh and others
Coram
Mr. Justice Dharam Chand Chaudhary, Judge.
Mr. Justice Vivek Singh Thakur, Judge.
Aggrieved by the judgment dated 24.09.2008
passed by learned Sessions Judge, Kullu in Session Trial No.
3 of 90/14 of 08, whereby the respondents Raghubir
Singh, Hari Ram, Ravi Parkash, Sunil Kumar and Vijay
Kumar (hereinafter referred as to ‘accused No. 1 to 5’)
have been acquitted of the charge under Section 376(2)
(g) of the Indian Penal Code framed against each of
them.
2. The prosecution case as disclosed from the
statement of the prosecutrix PW-5 (name withheld)
recorded under Section 154 Cr.P.C shortly stated is that
with the permission of her mother Nimo Devi (PW-6) on
8.7.1989, she had gone to purchase shoe in the market
at Manali. While in the market, she visited ‘star video’ to
see matinee show. In the video parlour, accused No. 5
(Vijay Kumar) was sitting next to her. He started
developing intimacy with the prosecutrix and asked her
to accompany him to have bath at Vashisth. Though
she was reluctant to come out from the video parlour
and accompany the said accused, however, on being
persuaded by him, she left the parlour. She was taken
by the accused to Vashisth mor, where he brought a
jeep bearing HPY-70. The same was being driven by
accused Munna and occupied by accused No. 3, Ravi
Parkash. She was dragged inside the jeep and taken to
Solang Nalla side. On the way, vehicle was stopped on
road side and accused No. 5 caught hold her hand and
took her on river bank behind a big boulder. He forcibly
opened her salwar. She was made to lie down and
thereby subjected her to sexual intercourse. After such
ghastly act committed by accused No. 5, she got up
and was about to move from that place, however, in the
meanwhile, one more taxi arrived there and three
persons accused No. 4 Sunil, one Bittu and Ninnu
alighted therefrom. She was again made to lie down
and they all also subjected her to sexual intercourse. She
being frightened could not speak anything. At that very
time, one Tikam Ram and Raghu Mahant also came
there. Considering them that they are local persons, she
accompanied them. Accused No. 5 and accused No. 4
accompanied by Bittu left for Manali from that place in
a taxi. Aforesaid Tikam Ram, Raghu Mahant, Munna
and accused No. 3 Ravi Parkash and Ninnu made her to
board jeep No. HPY-70, which proceeded towards
Manali side. They, however, made the jeep to stop on
Kenchi Mor. Raghubir Mahant allegedly picked her up
and brought out of the vehicle on the road and taking
benefit of night hours and darkness, they all subjected
her to sexual intercourse. It is accused Tikam who lastly
subjected her to sexual intercourse. They all fled away
by leaving her alone on the road. She any how or other
could reach in her house at 11/12.00 mid night and
revealed the entire episode to her mother. On the basis
of statement Ext. P-g, FIR Ext. P-N was recorded against
the accused persons under Section 376 of the Indian
Penal Code.
3. The prosecutrix during the course of
investigation has made the supplementary statement
mark D-A. According to her she was reluctant to
accompany accused No. 5 to Solang Nalla, however,
on allurement made to her, accompanied him and
when after being subjected by him forcibly to sexual
intercourse, she was coming back from the place of
occurrence, accused No. 4 accompanied by Bittu and
Ninnu came there and they also caught hold her and
taken behind the big boulder. There she was threatened
by them with dire consequences and succeeded in
opening her salwar. First it is accused No. 4 who had
subjected her to sexual intercourse and thereafter his
companion Ninnu and third person Bittu was in the
process of making him prepared to assault her sexually,
however, in the meanwhile, Raghu Mahant and Tikam
Ram arrived there and, therefore, said Bittu on account
of afraid of said persons, failed to do so. Said Raghu
Mahant brought her to Solang Nalla where she had tea
with him. Accused No. 5 and accused No. 4 fled away
in vehicle No. HPY 885 towards Manali side. Ninnu, Ravi
Parkash, accused No. 3 and Raghu Mahant after having
tea occupied jeep No. HPY-70. She was also made to sit
in the said jeep. The same was about to move, however,
in the meanwhile, Chuni Lal, Pradhan of Barua also
arrived there and said that he was also going to Bahang.
He was also made to sit in the jeep. While in the jeep, he
did not enquire about her whereabouts. The jeep when
reached at Kenchi Mor was made to stop there on the
road. Said Chuni Lal, Pradhan alighted therefrom and
went ahead. She also want to accompany him,
however, Raghu Mahant (accused No. 1 @ Raghubir
Singh) caught hold her, whereas, Munna who was on the
wheel of the jeep taken out one bed sheet and they all
subjected her to sexual intercourse turn by turn at an
isolated place ahead Kenchi Mor.
4. On the registration of FIR Ext. P-N under
Section 376 read with Section 34 of the Indian Penal
Code against the accused persons, the prosecutrix was
got medically examined from Dr. Shashi Thakur (PW-4)
vide MLC Ext. P-F. Her salwar Ext. P-2 was also taken into
possession by PW-4. For ascertaining the radiological
age of the prosecutrix, her x-ray was conducted vide
skigram Ext. P-1 by PW-4 Dr. V.K. Mutreja. The report is
Ext. P-E. The school certificate of the prosecutrix Ext. P-R
was taken into possession from the school vide memo
Ext. P-J, whereas, copy of abstract of family register Ext.
P-T from the Gram Panchayat. The bed sheet was taken
in possession vide recovery memo Ext. P-H. Two vehicles
bearing No. HPY-70 and HPY-885 were also seized by the
police along with documents thereof. Accused No. 3
and Bittu @ Anil Kumar were arrested on 9.07.1989. They
were got medically examined vide MLCs Ext. P-A and PC
in CHC Manali. Accused No. 1 was arrested on
22.07.1989 and also got medically examined vide MLC
Ext. P-D. On receipt of report of chemical examiner, Ext.
P-2 and completion of investigation Challan was initially
filed against accused Nos. 3, 5, one Bittu @ Anil Kumar
and accused No. 1 Raghubir Singh, however, for want of
evidence, accused Chuni Lal implicated by the
prosecutrix in her supplementary statement mark D-A on
24.07.1989, he was kept in column No. 2 of the Challan.
Accused No. 2 Hari Ram, Ninnu, accused No. 4 Sunil
Kumar and Munna had absconded, hence were
proceeded under Section 82 Cr.P.C. The case against
remaining accused was committed to the Sessions Court
at Kullu.
5. Before order on charge was passed by learned
trial Court, an application was filed by the prosecution
under Section 319 Cr.P.C with a prayer to implicate
accused No. 4 Sunil Kumar and accused No. 2 Hari Ram,
Munna and Ninnu, who were absconded as accused
persons. Notice of the application was issued to the
proposed accused persons. Consequently, accused No.
2 and accused No. 4 had put in appearance and they
were also added as accused persons. The remaining
accused Munna and Ninnu were already declared
proclaimed offender by learned Committal Court vide its
order dated 15.3.1990. The supplementary Challan was
filed against accused No. 2 and 4 also.
6. On hearing learned Public Prosecutor and
also learned defence counsel on the point of charge, no
case was found to be made out against accused Chuni
Lal. He was accordingly discharged. However, charge
under Section 376/34 IPC was framed against accused
persons and also against accused Sunil.
7. The accused, however, pleaded not guilty to
the charge and claimed trial, therefore, the prosecution
has examined 10 witnesses in all. The material
prosecution witnesses are the prosecutrix PW-5, her
mother Smt. Nimo Devi (PW-6), PW-7 Atma Ram is a
witness to the recovery memo of bed sheet Ext. P-3,
which according to him was taken into possession in his
presence vide recovery memo Ext. P-H. The date of birth
certificate Ext. P-I was also taken into possession in his
presence vide memo Ext. P-K. The photocopies of the
RC and the jeep were also taken into possession vide
memo Ext. P-L. The remaining prosecution witnesses i.e.
PW-1 Dr. R.D. Chandel, PW-2 Dr. Krishan Bihari, PW-3 Dr.
V.K. Mutreja and PW-4 Dr. Shashi Thakur have been
associated as expert witnesses because PW-4 had
conducted the medical examination of the prosecutrix,
whereas, PW-3 Dr. V.K. Mutreja examined the prosecutrix
to ascertain her radiological age. PW-1 and PW-2 have
examined the accused persons to find out their
competency to commit sexual intercourse. The
remaining prosecution witnesses i.e. Bhagi Ram (PW-8) is
the investigating Officer. Inspector Lekh Raj PW-9 has
also investigated this case partly. PW-10 Gian Chand,
Secretary, Gram Panchayat, Nasogi was examined to
prove the date of birth certificate Ext. P-S and abstract
of parivar register Ext. P-T.
8. On the other hand, accused No. 5 in his
statement recorded under Section 313 Cr.P.C has
admitted the prosecution case to the extent that the
prosecutrix came to Manali bazaar for purchasing shoe
for herself and went to video parlour and watched
movie there. It was also admitted that he was sitting in
her side, but he did nothing and rather it is she who
herself asked him to accompany her to Vashisth and
Solang Nalla. She accompanied him to Solang Nalla
voluntarily and it is she who took him to the Nalla. He,
however, expressed his ignorance that accused Munna
and Ravi also subjected her to sexual intercourse. He,
however, committed sexual intercourse with the
prosecutrix with her consent. It was also admitted that
PW-1 Dr. R.D. Chandel had conducted his medical
examination and also that of accused No. 3 on 9.7.1989
vide MLC Ext. P-A. The said doctor had conducted the
medical examination of accused No. 5 vide MLC Ext. P-B
and that of accused Bittu @ Anil Kumar vide MLC Ext. PC.
The rest of the incriminating circumstances appearing
against him in the prosecution evidence have either
been denied being incorrect or for want of knowledge.
In his defence, while answering question No. 32 and 33, it
was stated that since the prosecutrix demanded Rs.
100/- from him but he could only offer a sum of Rs. 20/-
which she refused to accept, therefore, it is for this
reason, she deposed falsely against him. In reply to
question No. 34, it was further stated that the prosecutrix
had developed intimacy with him since the last one year
and on 2-3 occasions, she had committed sexual
intercourse with him. She used to charge money for
having sexual intercourse with her. They had been
paying sometimes Rs. 20/- and sometime even less
amount also.
9. Accused Bittu @ Anil Kumar in his statement
recorded under Section 313 Cr.P.C has admitted that he
was examined by PW-1 vide MLC Ext. P-C, however,
denied the remaining incriminating circumstances
appearing against him in the prosecution case either
being incorrect or for want of knowledge. While
answering question No. 33 and 34, it was stated that he
was suffering from vineral decease hence did not join
the prosecutrix when she invited him to have sexual
intercourse with her. She demanded money from him for
which he refused and it is for this reason, case was
lodged against him by her falsely.
10. Accused No. 2 Hari Ram while answering
question No. 11 has stated that the prosecutrix came to
Solang Nalla, where he was present along with Chuni
Pradhan and accused No. 1 Raghubir Singh. He was
told by Chuni Lal, Pradhan to board the jeep. Rest of the
incriminating circumstances appearing against the said
accused have either been denied being incorrect or for
want of knowledge. While answering question No. 32
and 34, it was stated that he being an employee of
Chuni Pradhan has unnecessarily been dragged in this
case.
11. Accused No. 4 Sunil Kumar while denying all
the incriminating circumstances appearing against him
in the prosecution evidence being wrong has stated
while answering question No. 8 that accused Vijay had
not committed rape with the prosecutrix at the time
when he along with accused Munna and accused No. 3
Ravi Prakash reached there. While answering question
No. 32 and 34, his answer was that the prosecutrix had
accompanied him earlier also, however, she did not
charge money on such occasion. This time she though
invited him to have sexual intercourse with her, however,
demanded Rs. 100/- for the same. He offered only Rs.
50/- which she refused to accept. Since he could not
pay Rs. 100/- to the prosecutrix, therefore, she lodged
this case against him falsely.
12. Accused No. 3 Ravi Prakash has admitted
that the prosecutrix was brought by them to Solang
Nalla. She accompanied accused Vijay Kumar
voluntarily. According to him, she was not subjected to
sexual intercourse. He, however, admitted that he along
with accused No. 1 Raghubir Singh, Ninnu, accused No.
2 Hari Ram @ Tikam and Chuni Pradhan had subjected
her to sexual intercourse. He was medically examined
vide MLC Ext. P-A by PW-1 Dr. R.D. Chandel on 9.7.1989.
The said doctor also examined accused Bittu @ Anil
Kumar and accused Vijay Kumar vide MLCs Ext. P-B and
P-C respectively. The rest of incriminating circumstances
appearing against him in the prosecution evidence
have either been denied being wrong or for want of
knowledge. In his defence, while answering question
No. 32 and 33, it was stated that the prosecutrix had
demanded money, qua which he was told by accused
No. 5 Vijay Kumar. According to him he was invited by
her to have sexual intercourse at her own. Since he had
no money, he was falsely implicated in this case.
13. Accused Raghubir Singh while denying the
entire prosecution case being incorrect or for want of
knowledge had stated that at Solang Nalla, the
prosecutrix was advised by Chuni Pradhan and Hari Ram
@ Tikam Ram to go to her house. While answering
question No. 32 and 33 his answer was that since he has
good relations with Chuni Pradhan, therefore, it is for this
reason alone was implicated falsely in this case.
14. The accused, however, when given an
opportunity to lead evidence in their defence have
opted for not producing any evidence.
15. Therefore, learned trial Court on hearing the
parties on both sides and on appreciation of the
evidence available on record has arrived at a
conclusion that the prosecution has failed to prove its
case against the accused persons beyond all
reasonable doubt and had acquitted all the accused
vide judgment dated 30.9.1992.
16. A Division Bench of this Court vide order
dated 28.03.2008 passed in Criminal Appeal No. 103/99,
filed earlier by the State of Himachal Pradesh against
judgment of acquittal dated 30.9.1992 passed by
learned trial Court had set aside the same and
remanded the case to the trial Court to alter the charge
from Section 376 read with Section 34 of I.P.C. to the
charge of gang rape under Sub-section (2) (g) of
Section 376 of the Indian Penal Code and to try and
decide the case afresh as per law.
17. On remand the case when listed on 2.8.2008
in the trial Court, the prosecutrix was recalled to the
witness box, however, she stated that her statement
recorded earlier as PW-5 may only be read in evidence
and that to the amended charge she had nothing more
to add. When subjected to cross-examination her
answer was that now she did not remember the facts of
the case, therefore, leaned Public Prosecutor as per his
statement recorded separately had adopted the
statement of the prosecution witnesses recorded initially
and further stated that he did not want to lead any more
evidence or to re-examine the witnesses, the prosecution
already examined. The prosecution evidence was thus
ordered to be closed. Learned defence counsel had
also adopted the cross-examination of the witnesses
already conducted, as per their joint statement
recorded on that day.
18. Learned trial Judge on hearing learned
Public Prosecutor and learned defence counsel has
again arrived at a conclusion that from the evidence
available on record, neither it is proved that the
prosecutrix was below 16 years of age nor that she was
subjected to sexual intercourse forcibly i.e. against her
will and without her consent. In view of the evidence
available on record, the present, however, was found to
be a consensual act of intercourse. The accused have,
therefore, been acquitted of the charge framed under
Section 376(2) (g) IPC against each of them.
19. Aggrieved by the impugned judgment, the
appellant-State has questioned the legality and validity
thereof on the grounds inter-alia that the prosecution
evidence as has come on record by way of own
testimony of the prosecutrix and also the admission of
the accused persons in their statements recorded under
Section 313 Cr.P.C is suggestive of that the accused
have subjected the prosecutrix, a minor below 16 years
of age to sexual intercourse against her will and without
her consent. The evidence qua her age below 16 years
produced by the prosecution has erroneously been
ignored. The medical evidence as has come on record
by way of the testimony of PW-4 Dr. Shashi Thakur has
also been erroneously brushed aside. As a matter of
fact, the testimony of PW-4 has satisfactorily established
that the prosecutrix was subjected to sexual intercourse.
Undue weightage was given to that part of her
statement in which it was stated that no injury could be
noticed by her on the person of the prosecutrix
irrespective of her categoric statement in crossexamination
that in case of forcible intercourse the
injuries on the body of the prosecutrix are bound to
occur.
20. As per the prosecution case, the prosecutrix
was subjected to sexual intercourse by nine persons. Out
of whom Challan was prepared against six accused
persons, whereas, two had absconded and name of
Chuni Pradhan specifically disclosed by the prosecutrix in
her statement recorded during the course of trial was
initially deleted by the police from the array of accused
being Pradhan of Ilaqua. It has further been submitted
that the evidence available on record has been
appreciated in a slip-shod and perfunctory manner and
the findings acquitting the accused persons of the
charge have been based on hypothesis, conjecture and
surmises. The impugned judgment as such, has been
sought to be quashed and set aside.
21. Mr. D.S. Nainta, learned Additional Advocate
General has argued that the solitary statement of the
prosecutrix in this case is sufficient to bring guilt home to
the accused, in view of the plea they themselves raised
in their defence. It is also argued that the prosecutrix
was minor at the time of occurrence, therefore, the plea
that she was the consenting party as sought is hardly of
any consequence. It is established that all the accused
had ravished an innocent village and minor girl and for
such ghastly act, they should have been convicted and
sentenced in accordance with law.
22. On the other hand, according to Mr. R.L.
Sood, learned Senior Advocate assisted by Mr. Arjun Lal,
Advocate the prosecution has failed to prove its case
against the accused persons beyond all reasonable
doubt. According to Mr. Sood, it is not at all proved that
the prosecutrix was minor but the own evidence
produced by the prosecution itself reveals that she was
major and had attained the age of discretion. Even her
own statement is suggestive of that she was a
consenting party to sexual intercourse committed with
her by the accused persons. He, therefore, has urged
that well considered and reasoned judgment, whereby
the accused have been acquitted of the charge need
no interference by this Court in the present appeal. The
appeal has, therefore, been sought to be dismissed.
23. At the very out set, it is clarified that out of
nine accused, charge was framed against six namely,
Raghubir Singh, Hari Ram, Ravi Parkash, Sunil Kumar,
Vijay Kumar and Anil Kumar @ Bittu. Accused Munna
and Ninnu had absconded and were declared
proclaimed offender. Challan against Chuni Pradhan
was not filed allegedly for want of sufficient evidence
and his name was placed in column No. 2 of the
Challan. Later on an application under Section 319
Cr.P.C filed by the prosecution though he was arrayed
as one of the accused persons, however, vide order
dated 24.12.1991 passed in the trial at the stage of
consideration of charge, no case was found to be made
out against him even prima-facie and as such, he was
discharged. The order of discharge of the said accused
was not assailed, however, in the grounds of present
appeal and also in that of criminal appeal No. 103/93,
previously filed against the judgment dated 30.9.1992
passed by learned trial Court initially in this case the
order discharging the said accused has been assailed
on the ground that irrespective of statement Ext. P-G
and the supplementary statement mark D-A of the
prosecutrix not implicate accused Chuni Lal, Pradhan in
the commission of the offence, however, she in her
statement recorded in the Court has specifically stated
that said Chuni Lal Pradhan had also exploited her
sexually and this fact was revealed by her to the police
when her statement (supplementary) was recorded. The
complaint, therefore, is that the police had deleted the
name of said accused merely on account of he being
the Pradhan of ilaqua. This part of the controversy is left
open to be considered in this judgment at a later stage.
Such detail, however, was necessary for the purpose of
completion of the facts because initially six accused
were charged and tried with the commission of offence
punishable under Section 376 IPC. However, on finding
that in the impugned judgment the name of only five
accused figured, it transpired from the trial Court record
that after remand of the case vide order dated
28.3.2008, passed by a co-ordinate Bench of this Court,
learned trial Judge had to issue summons to the
accused as they failed to put in appearance on the ate
fixed by this Court. It is accused Raghubir Singh, Vijay
Kumar, Ravi Parkash, Hari Ram and Sunil Kumar could be
served with the summons so issued and as regards
accused Anil Kumar @ Bittu, he was reported to have
expired. It is so recorded by learned trial Court in the
order passed on 28.5.2008.
24. The present is a case of gang rape.
Therefore, the accused have been charged with the
commission of offence punishable under Section 376(2)
(g) of the Indian Penal Code. What is rape is defined
under Section 375 of the Indian Penal Code. The
necessary ingredients to infer the commission of offence
of rape against a woman are: firstly, the accused
committed sexual intercourse with a woman secondly,
such sexual intercourse was (i) against her will, and (ii)
without her consent, thirdly, whether such consent was
obtained by putting her or any of her relation or
interested person in fear of death or hurt, fourthly
consent was taken under deceitful belief that accused
was her husband fifthly, the consent was taken when she
was incapable of understanding its nature and
consequences due to (i) unsoundness of mind, (ii)
intoxication, (iii) administration of any stupefying drug or
substance by the accused personally or through some
one else and sixthly, when accused is husband and
woman was below 16 years of age (now 18 years).
25. The present is a case where according to the
prosecution, the prosecutrix a minor below 16 years was
subjected to sexual intercourse by the accused persons
and as such falls within the sixth situation hereinabove.
26. In a case of rape of a minor, it is the age
aspect which assumes considerable significance. The
prosecution claims the age of the prosecutrix below 16
years. As per date of birth certificate Ext. P-S issued by
PW-10, the Secretary, Gram Panchayat, Nasogi. The
date of birth of the prosecutrix is 1.1.1978. The school
leaving certificate Ext. P-R find mentioned her date of
birth as 2.2.1974. The third document is the extract of
parivar register, in which her age find mentioned as four
years. Now if coming to the legal position, the entries in
the birth and death register have to be believed as
primary evidence of course if original record is
produced. The particulars of the person who got
entered entries qua birth of the persons whose age is to
be determined must establish on record. The another
primary piece of evidence in this regard can be the
date of birth entered in the primary school or the school
where such person was admitted in first/nursery/K.G class
as the case may be, however, subject to further
evidence i.e. statement of the person at whose instance
such admission was made in the school and declaration
qua the date of birth and other particulars mentioned in
the admission form, in case such person is alive and also
the production of the original record maintained in the
school by the headmaster or any other employee of the
school in the discharge of his official duties. We may
draw support in this regard from the judgment of a Single
Bench of this Court in Criminal Appeal No. 419 of 2012,
titled Ramu V. State of Himachal Pradesh, decided on
21st November, 2014. The relevant extract of this
judgment is reproduced here as under:-
19. The primary evidence qua the date of birth of a
person is the entry in the Birth and Death Register.
As noticed supra, the date of birth of the
prosecutrix has been entered in the Birth and
Death Register at the instance of some Govind
Ram. Said Govind Ram has not been associated
during the course of investigation. In case the
entries were made at the instance of grand-father
of the prosecutrix, he should have been examined.
The production of a certificate allegedly from the
Birth and Death Register, which is neither properly
paged nor contains any certificate and rather
pages in between the last entry dated 4th
September, 1996 and the entry qua the date of
birth of the prosecutrix are blank, is not sufficient to
discharge the onus by the prosecution to prove
that the prosecutrix is born on 5th August, 1997. A
reference can be made to the judgment of the
Apex Court in Birad Mal Singhvi v. Anand Purohit
1988 (Supp) SCC 604, which reads as follows:
"To render a document admissible under
Section 35, three conditions must be satisfied,
firstly, entry that is relied on must be one in a
public or other official book, register or
record; secondly, it must be an entry stating
a fact in issue or relevant fact; and thirdly, it
must be made by a public servant in
discharge of his official duty, or any other
person in performance of a duty specially
enjoined by law. An entry relating to date of
birth made in the school register is relevant
and admissible under Section 35 of the Act
but the entry regarding the age of a person
in a school register is of not much evidentiary
value to prove the age of the person in the
absence of the material on which the age
was recorded."
20. Similar is the ratio of the judgment again that of
Hon’ble Apex Court Madan Mohan Singh and
others v. Rajni Kant and another, AIR 2010 SC 2933,
which reads as follows:
“18. Therefore, a document may be
admissible, but as to whether the entry
contained therein has any probative value
may still be required to be examined in the
facts and circumstances of a particular case.
The aforesaid legal proposition stands fortified
by the judgments of this Court in Ram Prasad
Sharma Vs. State of Bihar AIR 1970 SC 326;
Ram Murti Vs. State of Haryana AIR 1970 SC
1029; Dayaram & Ors. Vs. Dawalatshah & Anr.
AIR 1971 SC 681; Harpal Singh & Anr. Vs. State
of Himachal Pradesh AIR 1981 SC 361;
Ravinder Singh Gorkhi Vs. State of U.P. (2006)
5 SCC 584; Babloo Pasi Vs. State of
Jharkhand & Anr. (2008) 13 SCC 133; Desh Raj
Vs. Bodh Raj AIR 2008 SC 632; and Ram
Suresh Singh Vs. Prabhat Singh @Chhotu
Singh & Anr. (2009) 6 SCC 681. In these cases,
it has been held that even if the entry was
made in an official record by the concerned
official in the discharge of his official duty, it
may have weight but still may require
corroboration by the person on whose
information the entry has been made and as
to whether the entry so made has been
exhibited and proved. The standard of proof
required herein is the same as in other civil
and criminal cases.
19. ………………………………………………..
20. So far as the entries made in the official
record by an official or person authorized in
performance of official duties are
concerned, they may be admissible under
Section 35 of the Evidence Act but the court
has a right to examine their probative value.
The authenticity of the entries would depend
on whose information such entries stood
recorded and what was his source of
information. The entries in School Register/
School Leaving Certificate require to be
proved in accordance with law and the
standard of proof required in such cases
remained the same as in any other civil or
criminal cases.”
21. Significantly, in the statement under Section 313
of the Code of Criminal Procedure of the accused
a question has been put to him that the age of the
prosecutrix was between 15½ - 16½ years. This
reveals that the prosecution itself is not sure as to
what was the exact age of the prosecutrix at that
time and rather as per its own version, her age was
15½ - 16½ years. No question has been put to the
accused that the prosecutrix being born on 5th
August, 1997 was minor, in his statement under
Section 313 of the Code of Criminal Procedure.
Therefore, such incriminating circumstance
appeared in the prosecution evidence cannot be
used against him. It is held so by the Apex Court in
Sharad Birdhichand Sarda v. State of Maharashtra,
AIR 1984 SC 1622, as under:
“142. Apart from the aforesaid comments
there is one vital defect in some of the
circumstances mentioned above and relied
upon by the High Court, viz., circumstances
Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As
these circumstances were not put to the
appellant in his statement under Section 313
of the Criminal Procedure Code they must be
completely excluded from consideration
because the appellant did not have any
chance to explain them. This has been
consistently held by this Court as far back as
1953 where in the case of Hate Singh Bhagat
Singh v. State of Madhya Bharat AIR 1953 SC
468 this Court held that any circumstance in
respect of which an accused was not
examined under Section 342 of the Criminal
Procedure Code cannot be used against
him. Ever since this decision, there is a catena
of authorities of this Court uniformly taking the
view that unless the circumstance appearing
against an accused is put to him in his
examination under Section 342 or Section 313
of the Criminal Procedure Code, the same
cannot be used against him. In Shamu Balu
Chaugule v. State of Maharashtra, (1976) 1
SCC 438 this Court held thus:
"The fact that the appellant was said to
be absconding, not having been put to
him under Section 342, Criminal
Procedure Code, could not be used
against him.
144. It is not necessary for us to multiply
authorities on this point as this question now
stands concluded by several decisions of this
Court. In this view of the matter, the
circumstances which were not put to the
appellant in his examination under Section
313 of the Criminal Procedure Code have to
be completely excluded from consideration.”
22. This Court has held in State of H.P. v. Phurva and
others, Latest HLJ 2011 (HP) 490, as under:
“19. In present like cases, age of the
Prosecutrix is of utmost importance.
Prosecutrix though at the time of her
examination has stated that she was 17 years
of age, yet there is no document with
respect to the date of birth obtained by the
police during investigation of the case, from
the concerned Panchayat or from any
School or Institution where she was admitted
and studied. However, the prosecution has
put its reliance only on the ossification report
Ext. PW10/C showing her between 16-17
years on the basis of the epiphysis of bones.
To prove this report PW10 Dr. G. D. Gaur was
examined. His opinion is based upon the
study of Dr. M.L. Aggarwal and I.C. Pathak in
Punjab Region which has no hilly terrace. He
also admitted that the development of bone
depends on hereditary, dietary, harmonious
factors, climatic condition and it varies from
place to place. He also admitted that
assessment of the age on the basis of fusion
of bones is not a perfect science. It is also
equally fallacious to apply the study of Dr.
M.L. Aggarwal and I.C. Pathak to hilly terrace
with respect to their studies which they have
conducted in Punjab region. Admittedly,
both the parties, in this case belong to tribal
area of Lahaul where development of the
bones differs considerably from the subject
which is in the plain and warmer areas. The
pubic signs appear early in warmer and
lower parts of India whereas physical
development, fusion of bones and also
puberty is always delayed in the hilly areas.
Thus giving the benefit of +2 years on both
sides, as per the Modi’s Jurisprudence, the
age of the prosecutrix comes to 18-19 years
at the relevant time and in any case above
the age of discretion.”
27. If coming to the case in hand, neither
certificate Ext. P-S nor Ext. P-R can be termed as primary
evidence to infer that the prosecutrix was born on
1.1.1978 or 2.2.1974 for the reason that PW-10 Gian
Chand, Secretary Gram Panchayat, Nasogi has not
produced the original Birth and Death register being not
available as the same according to him was deposited
in the office of Chief Medical Officer, Kullu. Since no-one
has been associated nor examined during the course of
trial from the school nor record such as admission and
withdrawal register produced, therefore, school leaving
certificate Ext. P-R cannot be treated as legal and valid
evidence qua the date of birth of the prosecutrix as
2.2.1974.
28. Now if coming to the extract of parivar
register Ext. P-T, the same is again of no help to the
prosecution for the reason that firstly the date of birth of
the prosecutrix does not find mentioned therein and
rather she has been shown four years of age in this
document and secondly, the entries in the parivar
register cannot be treated as legal and acceptable
evidence qua date of birth or age of a person. Support
in this regard can also be drawn from the judgment of a
Co-ordinate Bench of this Court in Ajnana Devi @ Anju V.
State of Himachal Pradesh along with its connected
matters, decided on 24th June, 2016. The relevant
extract of the judgment reads as follows:-
19. In similar circumstances this Court has already held
such certificate not to have established the correct
date of birth. [State of H.P. v. Narender Kumar alias Hira
and others, 2010 Cri.L.J. 3545].
20. The Apex Court in Birad Mal Singhvi v. Anand
Purohit, (1988) Supp. 1 SCC 604 has held that “To
render a document admissible under Section 35, three
conditions must be satisfied, firstly, entry that is relied on
must be one in a public or other official book, register
or record; secondly, it must be an entry stating a fact
in issue or relevant fact; and thirdly, it must be made by
a public servant in discharge of his official duty, or any
other person in performance of a duty specially
enjoined by law. An entry relating to date of birth
made in the school register is relevant and admissible
under Section 35 of the Act but the entry regarding the
age of a person in a school register is of not much
evidentiary value to prove the age of the person in the
absence of the material on which the age was
recorded." [Emphasis supplied]
21. The principle stands reiterated in Ravinder Singh
Gorkhi vs. State of U.P, (2006) 5 SCC 584 and Ram
Suresh Singh vs. Prabhat Singh, (2009) 6 SCC 681.
22. As such, not much credence can be lent to the
certificates more so when it has not come on record as
to who got these entries recorded at the time of
admission of the child in the school. Consequently
certificates (Ext.PW-8/B and Ext.PW-12/A) cannot be
accepted to be legal evidence proving the factum of
date of birth of the prosecutrix.
23. Thus, it can safely be held that the findings returned
by the Court below qua the age of the prosecutrix are
totally borne out from the record.
29. If coming to the ocular version qua this
aspect of the matter, the prosecutrix on 8.4.1992 while in
the witness box had disclosed her age as 17 years. Since
the occurrence is dated 8.7.1989, therefore, if the age so
given by her on the date of her examination is believed
to be true, she was +14 years when assaulted by the
accused sexually. Though, she has not been crossexamined
qua her age aspect as she disclosed in her
examination-in-chief. There being no documentary
evidence showing her age below 16 years of age and
the certificates Ext. P-S and P-R rather contain two
different date of births i.e. 1.1.1978 and 2.2.1974
respectively. Therefore, it cannot be believed that she
was 17 years of age on the date of her examination i.e.
8.4.1992 or above fourteen years on the date of
occurrence i.e. 8.7.1989.
30. Now if coming to the testimony of her mother
PW-6, the prosecutrix was her second child as the eldest
one has died. According to her she had married at the
age of 16 years, however, voluntarily stated that at the
age of 14 years and the child who had expired was born
to her when she was 18 years of age. However, again
said that at the age of16 years. She expressed her
ignorance that prosecutrix was born to her after two
years of her marriage, however, it is denied that the
prosecutrix is of 20 years of age. Her statement is vague
and absurd so far as the age of the prosecutrix is
concerned. Therefore, the same cannot also be
believed to be true to arrive at a conclusion that on the
day of occurrence the prosecutrix was below 16 years of
age.
31. On the other hand, the radiological age of
the prosecutrix has been assessed between 16 to 17
years as has come in the statement of PW-3 Dr. V.K.
Mutreja. This witness has also admitted that there could
be variation of three years on either side while
determining the radiological age. Therefore, the
medical evidence which has been considered in its right
perspective by learned trial Court, it cannot be said that
the prosecutrix was below 16 years of age.
32. In view of the discussion qua age aspect of
the prosecutrix, the prosecution has miserably failed to
prove that she was 16 years of age on the day when
assaulted sexually.
33. Therefore, assuming her age above 16
years, the next question which has engaged our
attention is whether the present is a case of commission
of sexual intercourse with the prosecutrix by the accused
persons with her consent or forcibly, i.e. without her
consent and against her will. In the given facts and
circumstances and also the evidence as has come on
record by way of sole testimony of the prosecutrix, the
present, to us, appears to be a case where the
prosecutrix at the most can be said to have
accompanied accused No. 5 Vijay Kumar voluntarily
because as per her own testimony, the said accused
was sitting by her side in the video parlour and he made
her to agree to accompany him to Vashisth bath,
though she was taken to Solang Nalla side. She seems to
have acquaintance with the said accused as it has
come in her statement that he had shown his interest to
solemnize marriage with her. As per arrangement
between them, when came out of the parlour, she
walked ahead of accused No. 5 as he had told her to
wait for him on the bridge in the town itself. Accordingly,
she reached on the bridge and accused No. 5 came
behind in a taxi which was being occupied by accused
Munna and accused No. 3 Ravi Prakash. She was made
to sit in the jeep and taken to Solang Nalla side.
Meaning thereby that she only agreed to accompany
accused Munna and Ravi Prakash. As per further
version, accused stopped the vehicle on road side and
she was taken by accused No. 5 Vijay to Nalla in the
valley side, whereas, his co-accused Munna and Ravi
Prakash got themselves concealed on the road nearby
the jeep. Accused No. 5 behind a big boulder
committed sexual intercourse with her without her
consent as according to her she resisted (I said no)
commission of rape with her by the said accused.
Though she had got up, however, in the meanwhile
accused Munna and accused No. 3 Ravi Prakash as well
as accused No. 4 Sunil @ Bittu (since dead) had also
came there in a Gypsy with accused Ninnu. Accused
No. 4 caught hold her arm and he as well as his coaccused
Anil @ Bittu, Ninnu and Munna (proclaimed
offender) have also assaulted her sexually. She cried
before they could commit sexual intercourse with her,
howver, accused No. 4 threatened her to keep shut lest
they would do away with her life. Not only this but as per
her further testimony, around 6.00 p.m. accused No. 1
Raghubir, accused Chuni Pradhan, accused Hira Lal
(name wrongly stated as he is accused No. 2 Hari Ramj)
met her at Solang Nalla. On seeing them that they are
local persons, she went to them. Accused Chuni
Pradhan and Raghubir (Accused No. 1) told her to go to
her house. She could not reveal the incident of rape
having taken place with her to the said accused as she
was immediately lifted and put in the Gypsy which was
boarded by accused No. 1 Raghubir Singh, Munna,
Chuni Pradhan and accused No. 2 Hari Ram @ Tikam.
She was brought by them to Kenchi Mor. By that time, it
was almost dark. At Kenchi Mor, accused No. 1 Raghubir
Singh, Accused Ninnu, Accused No. 3 Ravi Prakash,
accused No. 2 Hari Ram and accused Chuni Pradhan
had subjected her to sexual intercourse. She insisted
and requested the said accused persons that she
wanted to go home and that drop her at her place lest
her parents would beat her, but of no avail. She was left
in the road and they all went to her respective places.
She shouted on them that she also wants to go with
them but they did not stop the Gypsy and as such she
was left behind on the road. She remained on the road
for longtime and when a truck came from Lahaul side,
she took lift in that truck and came to Manali bazaar
from where she went to her house.
34. Above statement of the prosecutrix that she
was subjected to sexual intercourse by each and very
accused persons need no corroboration because as
noticed hereinabove, accused No. 5 Vijay Kumar,
deceased accused Anil Kumar @ Bittu, accused No. 1
Raghubir Singh, accused No. 2 Hari Ram, accused No. 3
Ravi Prakash and accused No. 4 Sunil Kumar who have
been charged with the commission of offence
punishable under Section 376(2)(g) IPC have admitted
that they subjected the prosecutrix to sexual intercourse.
The explanation as set-forth by them, however, is that it is
she who invited them to have sexual intercourse with her.
They were subjecting her to sexual intercourse with her
consent earlier also. However, on this occasion, she
demanded money i.e. Rs. 100/- from each of them and
as accused No. 5 offered Rs. 20/-, whereas, accused No.
4 Rs. 50/- and accused No. 3 Ravi Prakash and accused
Anil @ Bittu had no money to pay to her, therefore, it is
for this reason, she implicated them in this case falsely.
35. Mr. R.L. Sood, learned arguing counsel while
drawing the attention of this Court to the statement of
prosecutrix in her cross-examination that she walked
ahead of accused No. 5 and waited for him at the
bridge where he came with his co-accused Munna
(proclaimed offender) and accused No. 3 Ravi Prakash
in a vehicle, she boarded the vehicle, her admission that
it was a crowded area where shops and residences
were in existence, went to Nalla with accused Vijay
Kumar by covering a distance of two furlang where she
was sexually assaulted by the said accused, accused
Munna and accused No. 3 came there in another
Gypsy, accused No. 4 Sunil, accused Anil @ Bittu (since
dead) and accused Ninnu (proclaimed offender) also
came there in the said Gypsy and subjected her to
sexual intercourse, establish that she was a consenting
party to sexual intercourse by the accused with her.
According to Mr. Sood, she did not raise any hue and cry
and rather walked ahead of accused No. 5 while going
to bridge through Manali market. She boarded the
Gypsy voluntarily at her own. The Gypsy crossed the
shops in existence on road side. She did not cry for help.
Her further testimony that she saw accused Raghubir
Singh, accused Chuni Pradhan and accused Hari Ram
sitting in Solang Nalla and went to them who advised her
to go to house, her conduct in not narrating the incident
of sexual assault with her to them and her admission that
she took tea and biscuits with them at Solang Nalla also
demonstrates that she had no grudge against the
accused persons, who according to him had subjected
her to sexual intercourse with her consent. Had it not
been so, she would have complained to accused No. 1
Raghubir Singh, accused Chuni Pradhan and accused
No. 2 Hari Ram against their co-accused who had
already assaulted her sexually when she met them. Also
that instead of going to home as advised by the said
accused, she took tea and biscuits with them. Not only
this but she according to her statement accompanied
the said accused persons in the Gypsy to Kenchi Mor.
Therefore, if she was subjected to sexual intercourse by
the said accused also, such an act with her was also
voluntary and consensual.
36. We are not in agreement with the argument
so addressed on behalf of the accused person for the
reason that all the accused had ganged up and in a
planned manner. Accused No. 5 managed her to
accompany him from the video parlour. As already
pointed out, the present at the most can be said to be a
case of voluntarily accompanying the said accused by
the prosecutrix. She was not a consenting party to
accompany the other accused. She was not a
consenting party even with accused No. 5. The said
accused has rather subjected her to sexual intercourse
forcibly against her will and without her consent because
she has categorically stated that she resisted the
commission of such an act with her by the said accused
‘by saying no’ but he did not stop. Even if it is believed
that she was a consenting party, the said consent was
only qua commission of sexual intercourse with her by
accused No. 5 and not by the said accused persons for
the reason that firstly it is accused No. 5 who had taken
her to the Nalla behind the big boulder and subjected
her to sexual intercourse there. His co-accused i.e.
accused No. 4 Sunil, accused Anil @ Bittu (since dead),
accused Ninu and Munna (proclaimed offender) had
also come down at such a stage when she had already
got up after being assaulted sexually by accused No. 5.
Though she cried before the aforesaid accused persons
who have ravished her sexually but of no avail as
accused No. 4 threatened her to keep shut lest, they
would do away with her life. No cross-examination of
the prosecutrix qua this aspect of the matter has been
conducted. While in the witness box she has
categorically stated that accused No. 1 Raghubir Singh,
accused No. 2 Hari Ram and accused Chuni Lal
Pradhan who were present at Solang Nalla had made
her to board Gypsy with them and they also boarded
the same with accused Munna and Ninnu (proclaimed
offender) and accused No. 1 Raghubir Singh. They all
subjected her to sexual intercourse at Kenchi Mor. She
was subjected to sexual intercourse by all of them at that
place. By that time it became dark. A tender age girl in
the company of five able bodied persons could have
not got herself freed from them. Therefore, the
argument so addressed on their behalf that she did not
raise any hue and cry is hardly of any help to the
accused for the reason that raising hue and cry would
have been of no help to her nor she could have got
herself freed from their clutches by anyone as it was a
case of gang rape. How such a ghastly act with a girl of
tender age like the prosecutrix by the accused many in
number could have been avoided by her or can be
treated as a consensual act? The findings recorded by
learned trial Judge that after such a ghastly act having
been committed with the prosecutrix, she would have so
scared that on seeing local people (accused No. 1
Raghubir Singh, accused No. 2 Hari Ram) narrated the
incident to them instead of having tea and biscuits with
them. She would have tried to rush to her house as
advised by accused No. 1, accused Chuni Pradhan and
not agreed to travel with them in their taxi, in which not
only the said two accused but accused Munna, Ninnu
and accused Chuni Pradhan were also sitting for the
reason that the so called local persons i.e. accused No.
1 and accused No. 2 whom the prosecutrix had believed
to be of some help to her were as a matter of fact not
her sympathizer because had it been so, they would
have given lift to her in their vehicle and dropped safe at
her in Manali town or taken her to police station to lodge
FIR against the incident. No doubt, as per her version
said accused No. 1 and accused Chuni Pradhan had
advised her to go to home but when it was 6.00 p.m. by
that time and in view of topography of Manali town and
Solang Nalla where sun sets at early hours of the day and
the possibility of it being dark at that time, cannot be
ruled out. Since they offered tea and biscuits to her,
therefore, obviously she may have accepted the same
believing them her sympathizer. It is they who made her
to board the taxi and it being darkness she boarded the
taxi but their illegal designs to subject her to sexual
intercourse on the way most probably were not in her
knowledge. Therefore, accused No. 1 Raghubir Singh,
accused No. 2 Hari Ram and prima-facie accused Chuni
Pradhan (discharged from the case) as well as coaccused
Munna and Ninnu (proclaimed offender) by
taking undue advantage of their position to dominate
the will of the prosecutrix who had been traveling with
them in a state of helplessness was also subjected to
sexual intercourse by each of them, which again cannot
be said to be an act of consensual sexual intercourse.
The observations made by learned trial Judge that she
would have tried to rush to her house as advised by
accused No. 1 and accused Chuni Pradhan are again
far fetched for the reason that in view of the time being
6.00 p.m. and the night already having set in, how a
lonely tender age girl could have traveled to her native
place at Manali. This aspect has not been taken into
consideration by learned trial Judge. The above said
accused who being locals and considered by her to be
of some help to her have taken undue advantage of her
loneliness and they also subjected her to sexual
intercourse. Therefore, instead of criticizing the
prosecutrix, learned trial Judge should have taken into
consideration such unbecoming behaviour of the said
accused. The argument addressed by Mr. R.L. Sood,
learned arguing counsel qua this aspect of the matter
and law laid down by the apex Court in Raja and others
V. State of Karnataka, 2016(10) SCC 506 are of no help to
their case. Not only this but the law laid down by the
apex Court in Raja’s case (supra) is also distinguishable
on facts.
37. The improvements that she raised hue and
cry at Solang Nalla when accused tried to commit rape
with her and accused Sunil Kumar had threatened to kill
her and that Bittu did not commit rape on her at Solang
Nalla but at Kenchi Mor, even if are there, is hardly of
any consequence because the fault, if any, lies on the
part of the investigating agency and the possibility of the
I.O. having not recorded her statement as per her
version, which in the case in hand is just possible as the
accused being influential persons, they seem to have
influenced the investigation of the case also. At the
most, the investigation can be said to be faulty and as
such the version of the prosecutrix in the witness box
cannot be said to be false, more particularly, when the
accused have admittedly assaulted her sexually. Her
testimony that it took 5-6 minutes to accused Vijay to
convince her to accompany him to Vashisth bath could
have not been considered to arrive at a conclusion that
she was a consenting party to the sexual intercourse
committed by the accused person with her for the
reason that the said accused had asked to accompany
her to Vashisth bath and not Solang Nalla and she
consented only to accompany him and none else. She
may have agreed to accompany accused No. 5 as he
was known to her because as per her version, he offered
himself to solemnize marriage with her. How
accompanying voluntarily with a known person could be
taken to believe that she was a consenting party to
have sexual intercourse with such person; learned trial
Judge has failed to explain. When she never consented
to accompany other accused persons and even for the
commission of sexual intercourse with her by accused
Vijay, therefore, it is established that she objected to and
resisted such ghastly act committed upon her by the
accused persons. In view of evidence on record, her so
called consent was obtained by them under fear of her
own life, causing hurt to her.
38. As noticed hereinabove, the accused have
not denied that they have subjected the prosecutrix to
sexual intercourse. However, their defence is that since
they failed to pay money to her, she demanded from
each of them, therefore, it is for this reason, they have
been implicated in this case falsely. When it is proved
and held by us that she was not a consenting party and
rather subjected to sexual intercourse without her
consent and against her will, therefore, the plea so
raised is hardly of any help to them. It is well settled that
even a woman of easy virtue and for that matter a
prostitute cannot also be subjected to sexual intercourse
against her will and without her consent. Learned trial
Judge has failed to appreciate this aspect of the matter.
Instead of appreciating that nine males have sexually
assaulted a tender aged girl and holding them guilty of
the commission of offence, learned trial Judge has went
on to criticize the prosecutrix. Even if she was of easy
virtue could have never consented to have sexual
intercourse with this much number of persons (accused
herein) i.e., nine. Such an approach of learned trial
Court in this matter cannot be termed as legally and
factually sustainable. The present is a case where sole
testimony of the prosecutrix is sufficient to bring the guilt
home to the accused persons. The Apex Court in State
of Punjab V. Gurmeet Singh and others, AIR 1996 SC 1393
has held that own statement of the prosecutrix if inspires
confidence is sufficient to bring guilt home to the
accused persons.
39. As noticed supra, the prosecutrix in
unequivocal terms has supported her version in her
statement Ext. P-G recorded under Section 154 Cr.P.C.
She has also stated whatever she has deposed in her
supplementary statement mark D-A, while in the witness
box. In her cross-examination, she has categorically
stated that she disclosed the name of Chuni Pradhan on
each and every occasion when her statements were
recorded by the police. Even accused Ravi Prakash
while answering question No. 13 in his statement under
Section 313 Cr.P.C. has admitted that besides Raghubir,
Ninnu, Hari Ram @ Tikam Ram and Chuni Pradhan had
also subjected the prosecutrix to sexual intercourse at
Kenchi Mor. The so called improvements to her earlier
version in Ext. P-G or mark D-A to our mind are not owing
to her acts and conduct but the possibility of the I.O.
having not recorded her statement as per her version
cannot be ruled-out. She has only been cross-examined
to show that she did not raise any hue and cry
irrespective of taken in the vehicle by the accused
through Vashisth bazaar where shops and houses are in
existence, Palchan through the barricades put by the
army and irrespective of tourist flow to Solang Nalla
area. Though, it is correct, however, initially they were
only three accused i.e. accused No. 5 Vijay Kumar,
accused No. 3, Ravi Prakash and accused Munna, who
was driving the taxi on their way to Solang Nalla side. As
observed hereinabove, she had voluntarily
accompanied accused Vijay, however, it cannot be
inferred that she did so to have sexual intercourse with
the said accused, what to speak of the remaining
accused namely Ravi Prakash and accused Munna the
(proclaimed offender). As per her statement under
Section 154 Cr.P.C and also her testimony while in the
witness box the said accused got themselves hided on
the road nearby the Gypsy and they appeared at the
place where she was subjected to sexual intercourse by
the said accused when she had already got up after
having exploited sexually by accused Vijay against her
will and without her consent. The present as such is a
case where accused had ganged up and it was part of
the conspiracy they hatched that accused No. 5 Vijay
who had intimacy with her was assigned the task to bring
her so that she could be subjected to sexual intercourse
by them turn by turn and in a manner as discussed
hereinabove as well as having come on record.
40. Therefore, not only accused No. 5 Vijay but
his co-accused No. 1 to 4 namely, Raghubir Singh, Hari
Ram, Ravi Prakash and Sunil Kumar (respondents herein)
all have assaulted the prosecutrix sexually without her
consent and against her will. The present being a case
of gang rape, they should have been convicted and
sentenced by learned trial Court. The findings of
acquittal recorded by the Court below for all the reasons
discussed hereinabove are neither legally nor factually
sustainable. In view of the evidence discussed
hereinabove, accused persons Munna and Ninnu who
are absconding have also prima-facie assaulted the
prosecutrix sexually. Their guilt, however, is yet to
establish as and when they will surrender in the Court or
produced in custody by police after holding trial against
them. As discussed hereinabove, charge should have
also been framed against accused Chuni Lal as primafacie
case is made out against him also. The order of his
discharge as such is not legally sustainable.
41. In view of what has been said hereinabove,
the present is not a case where it can be said that the
prosecution has failed to prove its case against the
accused beyond all reasonable doubt. The reappraisal
of the evidence by us rather leads to the only conclusion
that all the accused persons have assaulted the
prosecutrix sexually against her will and without her
consent. The charge under Section 376(2)(g) of the
Indian Penal Code framed against them is, therefore,
fully established on record. Being so, the only
inescapable conclusion would be that the accused
have committed the offence punishable under Section
376(2)(g) of the Indian Penal Code. They all, therefore,
are convicted accordingly. The findings of their
acquittal as recorded by learned trial Judge are
quashed and set aside. They are directed to surrender
to their bail bonds and be produced in the Court on
31.03.2017 for being heard on the quantum of sentence.
42. Before parting with this judgment, we shall be
failing in our duty if not issue a direction to the appellantState
to file a report qua the steps taken to ascertain the
whereabouts of the proclaimed offenders Munna and
Ninnu and also qua attachment of their moveable and
immovable property, if any, well before the next date.
We also leave it open to consider and pass appropriate
orders qua the prosecution of accused Chuni Lal in this
case on the next date after affording an opportunity of
being heard to him. Notice, therefore, be issued to said
Chuni Lal also for the date fixed on his address to be filed
by the appellant-State within a week from today.
Judgment to continue.
19.
(Dharam Chand Chaudhary)
Judge
(Vivek Singh Thakur)
March 2, 2017 Judge (naveen)
Cr. Appeal No. 264 of 2009
Reserved on : 16.12.2016
Decided on: 2nd March, 2017
State of H.P.
V
Raghubir Singh and others
Coram
Mr. Justice Dharam Chand Chaudhary, Judge.
Mr. Justice Vivek Singh Thakur, Judge.
Aggrieved by the judgment dated 24.09.2008
passed by learned Sessions Judge, Kullu in Session Trial No.
3 of 90/14 of 08, whereby the respondents Raghubir
Singh, Hari Ram, Ravi Parkash, Sunil Kumar and Vijay
Kumar (hereinafter referred as to ‘accused No. 1 to 5’)
have been acquitted of the charge under Section 376(2)
(g) of the Indian Penal Code framed against each of
them.
2. The prosecution case as disclosed from the
statement of the prosecutrix PW-5 (name withheld)
recorded under Section 154 Cr.P.C shortly stated is that
with the permission of her mother Nimo Devi (PW-6) on
8.7.1989, she had gone to purchase shoe in the market
at Manali. While in the market, she visited ‘star video’ to
see matinee show. In the video parlour, accused No. 5
(Vijay Kumar) was sitting next to her. He started
developing intimacy with the prosecutrix and asked her
to accompany him to have bath at Vashisth. Though
she was reluctant to come out from the video parlour
and accompany the said accused, however, on being
persuaded by him, she left the parlour. She was taken
by the accused to Vashisth mor, where he brought a
jeep bearing HPY-70. The same was being driven by
accused Munna and occupied by accused No. 3, Ravi
Parkash. She was dragged inside the jeep and taken to
Solang Nalla side. On the way, vehicle was stopped on
road side and accused No. 5 caught hold her hand and
took her on river bank behind a big boulder. He forcibly
opened her salwar. She was made to lie down and
thereby subjected her to sexual intercourse. After such
ghastly act committed by accused No. 5, she got up
and was about to move from that place, however, in the
meanwhile, one more taxi arrived there and three
persons accused No. 4 Sunil, one Bittu and Ninnu
alighted therefrom. She was again made to lie down
and they all also subjected her to sexual intercourse. She
being frightened could not speak anything. At that very
time, one Tikam Ram and Raghu Mahant also came
there. Considering them that they are local persons, she
accompanied them. Accused No. 5 and accused No. 4
accompanied by Bittu left for Manali from that place in
a taxi. Aforesaid Tikam Ram, Raghu Mahant, Munna
and accused No. 3 Ravi Parkash and Ninnu made her to
board jeep No. HPY-70, which proceeded towards
Manali side. They, however, made the jeep to stop on
Kenchi Mor. Raghubir Mahant allegedly picked her up
and brought out of the vehicle on the road and taking
benefit of night hours and darkness, they all subjected
her to sexual intercourse. It is accused Tikam who lastly
subjected her to sexual intercourse. They all fled away
by leaving her alone on the road. She any how or other
could reach in her house at 11/12.00 mid night and
revealed the entire episode to her mother. On the basis
of statement Ext. P-g, FIR Ext. P-N was recorded against
the accused persons under Section 376 of the Indian
Penal Code.
3. The prosecutrix during the course of
investigation has made the supplementary statement
mark D-A. According to her she was reluctant to
accompany accused No. 5 to Solang Nalla, however,
on allurement made to her, accompanied him and
when after being subjected by him forcibly to sexual
intercourse, she was coming back from the place of
occurrence, accused No. 4 accompanied by Bittu and
Ninnu came there and they also caught hold her and
taken behind the big boulder. There she was threatened
by them with dire consequences and succeeded in
opening her salwar. First it is accused No. 4 who had
subjected her to sexual intercourse and thereafter his
companion Ninnu and third person Bittu was in the
process of making him prepared to assault her sexually,
however, in the meanwhile, Raghu Mahant and Tikam
Ram arrived there and, therefore, said Bittu on account
of afraid of said persons, failed to do so. Said Raghu
Mahant brought her to Solang Nalla where she had tea
with him. Accused No. 5 and accused No. 4 fled away
in vehicle No. HPY 885 towards Manali side. Ninnu, Ravi
Parkash, accused No. 3 and Raghu Mahant after having
tea occupied jeep No. HPY-70. She was also made to sit
in the said jeep. The same was about to move, however,
in the meanwhile, Chuni Lal, Pradhan of Barua also
arrived there and said that he was also going to Bahang.
He was also made to sit in the jeep. While in the jeep, he
did not enquire about her whereabouts. The jeep when
reached at Kenchi Mor was made to stop there on the
road. Said Chuni Lal, Pradhan alighted therefrom and
went ahead. She also want to accompany him,
however, Raghu Mahant (accused No. 1 @ Raghubir
Singh) caught hold her, whereas, Munna who was on the
wheel of the jeep taken out one bed sheet and they all
subjected her to sexual intercourse turn by turn at an
isolated place ahead Kenchi Mor.
4. On the registration of FIR Ext. P-N under
Section 376 read with Section 34 of the Indian Penal
Code against the accused persons, the prosecutrix was
got medically examined from Dr. Shashi Thakur (PW-4)
vide MLC Ext. P-F. Her salwar Ext. P-2 was also taken into
possession by PW-4. For ascertaining the radiological
age of the prosecutrix, her x-ray was conducted vide
skigram Ext. P-1 by PW-4 Dr. V.K. Mutreja. The report is
Ext. P-E. The school certificate of the prosecutrix Ext. P-R
was taken into possession from the school vide memo
Ext. P-J, whereas, copy of abstract of family register Ext.
P-T from the Gram Panchayat. The bed sheet was taken
in possession vide recovery memo Ext. P-H. Two vehicles
bearing No. HPY-70 and HPY-885 were also seized by the
police along with documents thereof. Accused No. 3
and Bittu @ Anil Kumar were arrested on 9.07.1989. They
were got medically examined vide MLCs Ext. P-A and PC
in CHC Manali. Accused No. 1 was arrested on
22.07.1989 and also got medically examined vide MLC
Ext. P-D. On receipt of report of chemical examiner, Ext.
P-2 and completion of investigation Challan was initially
filed against accused Nos. 3, 5, one Bittu @ Anil Kumar
and accused No. 1 Raghubir Singh, however, for want of
evidence, accused Chuni Lal implicated by the
prosecutrix in her supplementary statement mark D-A on
24.07.1989, he was kept in column No. 2 of the Challan.
Accused No. 2 Hari Ram, Ninnu, accused No. 4 Sunil
Kumar and Munna had absconded, hence were
proceeded under Section 82 Cr.P.C. The case against
remaining accused was committed to the Sessions Court
at Kullu.
5. Before order on charge was passed by learned
trial Court, an application was filed by the prosecution
under Section 319 Cr.P.C with a prayer to implicate
accused No. 4 Sunil Kumar and accused No. 2 Hari Ram,
Munna and Ninnu, who were absconded as accused
persons. Notice of the application was issued to the
proposed accused persons. Consequently, accused No.
2 and accused No. 4 had put in appearance and they
were also added as accused persons. The remaining
accused Munna and Ninnu were already declared
proclaimed offender by learned Committal Court vide its
order dated 15.3.1990. The supplementary Challan was
filed against accused No. 2 and 4 also.
6. On hearing learned Public Prosecutor and
also learned defence counsel on the point of charge, no
case was found to be made out against accused Chuni
Lal. He was accordingly discharged. However, charge
under Section 376/34 IPC was framed against accused
persons and also against accused Sunil.
7. The accused, however, pleaded not guilty to
the charge and claimed trial, therefore, the prosecution
has examined 10 witnesses in all. The material
prosecution witnesses are the prosecutrix PW-5, her
mother Smt. Nimo Devi (PW-6), PW-7 Atma Ram is a
witness to the recovery memo of bed sheet Ext. P-3,
which according to him was taken into possession in his
presence vide recovery memo Ext. P-H. The date of birth
certificate Ext. P-I was also taken into possession in his
presence vide memo Ext. P-K. The photocopies of the
RC and the jeep were also taken into possession vide
memo Ext. P-L. The remaining prosecution witnesses i.e.
PW-1 Dr. R.D. Chandel, PW-2 Dr. Krishan Bihari, PW-3 Dr.
V.K. Mutreja and PW-4 Dr. Shashi Thakur have been
associated as expert witnesses because PW-4 had
conducted the medical examination of the prosecutrix,
whereas, PW-3 Dr. V.K. Mutreja examined the prosecutrix
to ascertain her radiological age. PW-1 and PW-2 have
examined the accused persons to find out their
competency to commit sexual intercourse. The
remaining prosecution witnesses i.e. Bhagi Ram (PW-8) is
the investigating Officer. Inspector Lekh Raj PW-9 has
also investigated this case partly. PW-10 Gian Chand,
Secretary, Gram Panchayat, Nasogi was examined to
prove the date of birth certificate Ext. P-S and abstract
of parivar register Ext. P-T.
8. On the other hand, accused No. 5 in his
statement recorded under Section 313 Cr.P.C has
admitted the prosecution case to the extent that the
prosecutrix came to Manali bazaar for purchasing shoe
for herself and went to video parlour and watched
movie there. It was also admitted that he was sitting in
her side, but he did nothing and rather it is she who
herself asked him to accompany her to Vashisth and
Solang Nalla. She accompanied him to Solang Nalla
voluntarily and it is she who took him to the Nalla. He,
however, expressed his ignorance that accused Munna
and Ravi also subjected her to sexual intercourse. He,
however, committed sexual intercourse with the
prosecutrix with her consent. It was also admitted that
PW-1 Dr. R.D. Chandel had conducted his medical
examination and also that of accused No. 3 on 9.7.1989
vide MLC Ext. P-A. The said doctor had conducted the
medical examination of accused No. 5 vide MLC Ext. P-B
and that of accused Bittu @ Anil Kumar vide MLC Ext. PC.
The rest of the incriminating circumstances appearing
against him in the prosecution evidence have either
been denied being incorrect or for want of knowledge.
In his defence, while answering question No. 32 and 33, it
was stated that since the prosecutrix demanded Rs.
100/- from him but he could only offer a sum of Rs. 20/-
which she refused to accept, therefore, it is for this
reason, she deposed falsely against him. In reply to
question No. 34, it was further stated that the prosecutrix
had developed intimacy with him since the last one year
and on 2-3 occasions, she had committed sexual
intercourse with him. She used to charge money for
having sexual intercourse with her. They had been
paying sometimes Rs. 20/- and sometime even less
amount also.
9. Accused Bittu @ Anil Kumar in his statement
recorded under Section 313 Cr.P.C has admitted that he
was examined by PW-1 vide MLC Ext. P-C, however,
denied the remaining incriminating circumstances
appearing against him in the prosecution case either
being incorrect or for want of knowledge. While
answering question No. 33 and 34, it was stated that he
was suffering from vineral decease hence did not join
the prosecutrix when she invited him to have sexual
intercourse with her. She demanded money from him for
which he refused and it is for this reason, case was
lodged against him by her falsely.
10. Accused No. 2 Hari Ram while answering
question No. 11 has stated that the prosecutrix came to
Solang Nalla, where he was present along with Chuni
Pradhan and accused No. 1 Raghubir Singh. He was
told by Chuni Lal, Pradhan to board the jeep. Rest of the
incriminating circumstances appearing against the said
accused have either been denied being incorrect or for
want of knowledge. While answering question No. 32
and 34, it was stated that he being an employee of
Chuni Pradhan has unnecessarily been dragged in this
case.
11. Accused No. 4 Sunil Kumar while denying all
the incriminating circumstances appearing against him
in the prosecution evidence being wrong has stated
while answering question No. 8 that accused Vijay had
not committed rape with the prosecutrix at the time
when he along with accused Munna and accused No. 3
Ravi Prakash reached there. While answering question
No. 32 and 34, his answer was that the prosecutrix had
accompanied him earlier also, however, she did not
charge money on such occasion. This time she though
invited him to have sexual intercourse with her, however,
demanded Rs. 100/- for the same. He offered only Rs.
50/- which she refused to accept. Since he could not
pay Rs. 100/- to the prosecutrix, therefore, she lodged
this case against him falsely.
12. Accused No. 3 Ravi Prakash has admitted
that the prosecutrix was brought by them to Solang
Nalla. She accompanied accused Vijay Kumar
voluntarily. According to him, she was not subjected to
sexual intercourse. He, however, admitted that he along
with accused No. 1 Raghubir Singh, Ninnu, accused No.
2 Hari Ram @ Tikam and Chuni Pradhan had subjected
her to sexual intercourse. He was medically examined
vide MLC Ext. P-A by PW-1 Dr. R.D. Chandel on 9.7.1989.
The said doctor also examined accused Bittu @ Anil
Kumar and accused Vijay Kumar vide MLCs Ext. P-B and
P-C respectively. The rest of incriminating circumstances
appearing against him in the prosecution evidence
have either been denied being wrong or for want of
knowledge. In his defence, while answering question
No. 32 and 33, it was stated that the prosecutrix had
demanded money, qua which he was told by accused
No. 5 Vijay Kumar. According to him he was invited by
her to have sexual intercourse at her own. Since he had
no money, he was falsely implicated in this case.
13. Accused Raghubir Singh while denying the
entire prosecution case being incorrect or for want of
knowledge had stated that at Solang Nalla, the
prosecutrix was advised by Chuni Pradhan and Hari Ram
@ Tikam Ram to go to her house. While answering
question No. 32 and 33 his answer was that since he has
good relations with Chuni Pradhan, therefore, it is for this
reason alone was implicated falsely in this case.
14. The accused, however, when given an
opportunity to lead evidence in their defence have
opted for not producing any evidence.
15. Therefore, learned trial Court on hearing the
parties on both sides and on appreciation of the
evidence available on record has arrived at a
conclusion that the prosecution has failed to prove its
case against the accused persons beyond all
reasonable doubt and had acquitted all the accused
vide judgment dated 30.9.1992.
16. A Division Bench of this Court vide order
dated 28.03.2008 passed in Criminal Appeal No. 103/99,
filed earlier by the State of Himachal Pradesh against
judgment of acquittal dated 30.9.1992 passed by
learned trial Court had set aside the same and
remanded the case to the trial Court to alter the charge
from Section 376 read with Section 34 of I.P.C. to the
charge of gang rape under Sub-section (2) (g) of
Section 376 of the Indian Penal Code and to try and
decide the case afresh as per law.
17. On remand the case when listed on 2.8.2008
in the trial Court, the prosecutrix was recalled to the
witness box, however, she stated that her statement
recorded earlier as PW-5 may only be read in evidence
and that to the amended charge she had nothing more
to add. When subjected to cross-examination her
answer was that now she did not remember the facts of
the case, therefore, leaned Public Prosecutor as per his
statement recorded separately had adopted the
statement of the prosecution witnesses recorded initially
and further stated that he did not want to lead any more
evidence or to re-examine the witnesses, the prosecution
already examined. The prosecution evidence was thus
ordered to be closed. Learned defence counsel had
also adopted the cross-examination of the witnesses
already conducted, as per their joint statement
recorded on that day.
18. Learned trial Judge on hearing learned
Public Prosecutor and learned defence counsel has
again arrived at a conclusion that from the evidence
available on record, neither it is proved that the
prosecutrix was below 16 years of age nor that she was
subjected to sexual intercourse forcibly i.e. against her
will and without her consent. In view of the evidence
available on record, the present, however, was found to
be a consensual act of intercourse. The accused have,
therefore, been acquitted of the charge framed under
Section 376(2) (g) IPC against each of them.
19. Aggrieved by the impugned judgment, the
appellant-State has questioned the legality and validity
thereof on the grounds inter-alia that the prosecution
evidence as has come on record by way of own
testimony of the prosecutrix and also the admission of
the accused persons in their statements recorded under
Section 313 Cr.P.C is suggestive of that the accused
have subjected the prosecutrix, a minor below 16 years
of age to sexual intercourse against her will and without
her consent. The evidence qua her age below 16 years
produced by the prosecution has erroneously been
ignored. The medical evidence as has come on record
by way of the testimony of PW-4 Dr. Shashi Thakur has
also been erroneously brushed aside. As a matter of
fact, the testimony of PW-4 has satisfactorily established
that the prosecutrix was subjected to sexual intercourse.
Undue weightage was given to that part of her
statement in which it was stated that no injury could be
noticed by her on the person of the prosecutrix
irrespective of her categoric statement in crossexamination
that in case of forcible intercourse the
injuries on the body of the prosecutrix are bound to
occur.
20. As per the prosecution case, the prosecutrix
was subjected to sexual intercourse by nine persons. Out
of whom Challan was prepared against six accused
persons, whereas, two had absconded and name of
Chuni Pradhan specifically disclosed by the prosecutrix in
her statement recorded during the course of trial was
initially deleted by the police from the array of accused
being Pradhan of Ilaqua. It has further been submitted
that the evidence available on record has been
appreciated in a slip-shod and perfunctory manner and
the findings acquitting the accused persons of the
charge have been based on hypothesis, conjecture and
surmises. The impugned judgment as such, has been
sought to be quashed and set aside.
21. Mr. D.S. Nainta, learned Additional Advocate
General has argued that the solitary statement of the
prosecutrix in this case is sufficient to bring guilt home to
the accused, in view of the plea they themselves raised
in their defence. It is also argued that the prosecutrix
was minor at the time of occurrence, therefore, the plea
that she was the consenting party as sought is hardly of
any consequence. It is established that all the accused
had ravished an innocent village and minor girl and for
such ghastly act, they should have been convicted and
sentenced in accordance with law.
22. On the other hand, according to Mr. R.L.
Sood, learned Senior Advocate assisted by Mr. Arjun Lal,
Advocate the prosecution has failed to prove its case
against the accused persons beyond all reasonable
doubt. According to Mr. Sood, it is not at all proved that
the prosecutrix was minor but the own evidence
produced by the prosecution itself reveals that she was
major and had attained the age of discretion. Even her
own statement is suggestive of that she was a
consenting party to sexual intercourse committed with
her by the accused persons. He, therefore, has urged
that well considered and reasoned judgment, whereby
the accused have been acquitted of the charge need
no interference by this Court in the present appeal. The
appeal has, therefore, been sought to be dismissed.
23. At the very out set, it is clarified that out of
nine accused, charge was framed against six namely,
Raghubir Singh, Hari Ram, Ravi Parkash, Sunil Kumar,
Vijay Kumar and Anil Kumar @ Bittu. Accused Munna
and Ninnu had absconded and were declared
proclaimed offender. Challan against Chuni Pradhan
was not filed allegedly for want of sufficient evidence
and his name was placed in column No. 2 of the
Challan. Later on an application under Section 319
Cr.P.C filed by the prosecution though he was arrayed
as one of the accused persons, however, vide order
dated 24.12.1991 passed in the trial at the stage of
consideration of charge, no case was found to be made
out against him even prima-facie and as such, he was
discharged. The order of discharge of the said accused
was not assailed, however, in the grounds of present
appeal and also in that of criminal appeal No. 103/93,
previously filed against the judgment dated 30.9.1992
passed by learned trial Court initially in this case the
order discharging the said accused has been assailed
on the ground that irrespective of statement Ext. P-G
and the supplementary statement mark D-A of the
prosecutrix not implicate accused Chuni Lal, Pradhan in
the commission of the offence, however, she in her
statement recorded in the Court has specifically stated
that said Chuni Lal Pradhan had also exploited her
sexually and this fact was revealed by her to the police
when her statement (supplementary) was recorded. The
complaint, therefore, is that the police had deleted the
name of said accused merely on account of he being
the Pradhan of ilaqua. This part of the controversy is left
open to be considered in this judgment at a later stage.
Such detail, however, was necessary for the purpose of
completion of the facts because initially six accused
were charged and tried with the commission of offence
punishable under Section 376 IPC. However, on finding
that in the impugned judgment the name of only five
accused figured, it transpired from the trial Court record
that after remand of the case vide order dated
28.3.2008, passed by a co-ordinate Bench of this Court,
learned trial Judge had to issue summons to the
accused as they failed to put in appearance on the ate
fixed by this Court. It is accused Raghubir Singh, Vijay
Kumar, Ravi Parkash, Hari Ram and Sunil Kumar could be
served with the summons so issued and as regards
accused Anil Kumar @ Bittu, he was reported to have
expired. It is so recorded by learned trial Court in the
order passed on 28.5.2008.
24. The present is a case of gang rape.
Therefore, the accused have been charged with the
commission of offence punishable under Section 376(2)
(g) of the Indian Penal Code. What is rape is defined
under Section 375 of the Indian Penal Code. The
necessary ingredients to infer the commission of offence
of rape against a woman are: firstly, the accused
committed sexual intercourse with a woman secondly,
such sexual intercourse was (i) against her will, and (ii)
without her consent, thirdly, whether such consent was
obtained by putting her or any of her relation or
interested person in fear of death or hurt, fourthly
consent was taken under deceitful belief that accused
was her husband fifthly, the consent was taken when she
was incapable of understanding its nature and
consequences due to (i) unsoundness of mind, (ii)
intoxication, (iii) administration of any stupefying drug or
substance by the accused personally or through some
one else and sixthly, when accused is husband and
woman was below 16 years of age (now 18 years).
25. The present is a case where according to the
prosecution, the prosecutrix a minor below 16 years was
subjected to sexual intercourse by the accused persons
and as such falls within the sixth situation hereinabove.
26. In a case of rape of a minor, it is the age
aspect which assumes considerable significance. The
prosecution claims the age of the prosecutrix below 16
years. As per date of birth certificate Ext. P-S issued by
PW-10, the Secretary, Gram Panchayat, Nasogi. The
date of birth of the prosecutrix is 1.1.1978. The school
leaving certificate Ext. P-R find mentioned her date of
birth as 2.2.1974. The third document is the extract of
parivar register, in which her age find mentioned as four
years. Now if coming to the legal position, the entries in
the birth and death register have to be believed as
primary evidence of course if original record is
produced. The particulars of the person who got
entered entries qua birth of the persons whose age is to
be determined must establish on record. The another
primary piece of evidence in this regard can be the
date of birth entered in the primary school or the school
where such person was admitted in first/nursery/K.G class
as the case may be, however, subject to further
evidence i.e. statement of the person at whose instance
such admission was made in the school and declaration
qua the date of birth and other particulars mentioned in
the admission form, in case such person is alive and also
the production of the original record maintained in the
school by the headmaster or any other employee of the
school in the discharge of his official duties. We may
draw support in this regard from the judgment of a Single
Bench of this Court in Criminal Appeal No. 419 of 2012,
titled Ramu V. State of Himachal Pradesh, decided on
21st November, 2014. The relevant extract of this
judgment is reproduced here as under:-
19. The primary evidence qua the date of birth of a
person is the entry in the Birth and Death Register.
As noticed supra, the date of birth of the
prosecutrix has been entered in the Birth and
Death Register at the instance of some Govind
Ram. Said Govind Ram has not been associated
during the course of investigation. In case the
entries were made at the instance of grand-father
of the prosecutrix, he should have been examined.
The production of a certificate allegedly from the
Birth and Death Register, which is neither properly
paged nor contains any certificate and rather
pages in between the last entry dated 4th
September, 1996 and the entry qua the date of
birth of the prosecutrix are blank, is not sufficient to
discharge the onus by the prosecution to prove
that the prosecutrix is born on 5th August, 1997. A
reference can be made to the judgment of the
Apex Court in Birad Mal Singhvi v. Anand Purohit
1988 (Supp) SCC 604, which reads as follows:
"To render a document admissible under
Section 35, three conditions must be satisfied,
firstly, entry that is relied on must be one in a
public or other official book, register or
record; secondly, it must be an entry stating
a fact in issue or relevant fact; and thirdly, it
must be made by a public servant in
discharge of his official duty, or any other
person in performance of a duty specially
enjoined by law. An entry relating to date of
birth made in the school register is relevant
and admissible under Section 35 of the Act
but the entry regarding the age of a person
in a school register is of not much evidentiary
value to prove the age of the person in the
absence of the material on which the age
was recorded."
20. Similar is the ratio of the judgment again that of
Hon’ble Apex Court Madan Mohan Singh and
others v. Rajni Kant and another, AIR 2010 SC 2933,
which reads as follows:
“18. Therefore, a document may be
admissible, but as to whether the entry
contained therein has any probative value
may still be required to be examined in the
facts and circumstances of a particular case.
The aforesaid legal proposition stands fortified
by the judgments of this Court in Ram Prasad
Sharma Vs. State of Bihar AIR 1970 SC 326;
Ram Murti Vs. State of Haryana AIR 1970 SC
1029; Dayaram & Ors. Vs. Dawalatshah & Anr.
AIR 1971 SC 681; Harpal Singh & Anr. Vs. State
of Himachal Pradesh AIR 1981 SC 361;
Ravinder Singh Gorkhi Vs. State of U.P. (2006)
5 SCC 584; Babloo Pasi Vs. State of
Jharkhand & Anr. (2008) 13 SCC 133; Desh Raj
Vs. Bodh Raj AIR 2008 SC 632; and Ram
Suresh Singh Vs. Prabhat Singh @Chhotu
Singh & Anr. (2009) 6 SCC 681. In these cases,
it has been held that even if the entry was
made in an official record by the concerned
official in the discharge of his official duty, it
may have weight but still may require
corroboration by the person on whose
information the entry has been made and as
to whether the entry so made has been
exhibited and proved. The standard of proof
required herein is the same as in other civil
and criminal cases.
19. ………………………………………………..
20. So far as the entries made in the official
record by an official or person authorized in
performance of official duties are
concerned, they may be admissible under
Section 35 of the Evidence Act but the court
has a right to examine their probative value.
The authenticity of the entries would depend
on whose information such entries stood
recorded and what was his source of
information. The entries in School Register/
School Leaving Certificate require to be
proved in accordance with law and the
standard of proof required in such cases
remained the same as in any other civil or
criminal cases.”
21. Significantly, in the statement under Section 313
of the Code of Criminal Procedure of the accused
a question has been put to him that the age of the
prosecutrix was between 15½ - 16½ years. This
reveals that the prosecution itself is not sure as to
what was the exact age of the prosecutrix at that
time and rather as per its own version, her age was
15½ - 16½ years. No question has been put to the
accused that the prosecutrix being born on 5th
August, 1997 was minor, in his statement under
Section 313 of the Code of Criminal Procedure.
Therefore, such incriminating circumstance
appeared in the prosecution evidence cannot be
used against him. It is held so by the Apex Court in
Sharad Birdhichand Sarda v. State of Maharashtra,
AIR 1984 SC 1622, as under:
“142. Apart from the aforesaid comments
there is one vital defect in some of the
circumstances mentioned above and relied
upon by the High Court, viz., circumstances
Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As
these circumstances were not put to the
appellant in his statement under Section 313
of the Criminal Procedure Code they must be
completely excluded from consideration
because the appellant did not have any
chance to explain them. This has been
consistently held by this Court as far back as
1953 where in the case of Hate Singh Bhagat
Singh v. State of Madhya Bharat AIR 1953 SC
468 this Court held that any circumstance in
respect of which an accused was not
examined under Section 342 of the Criminal
Procedure Code cannot be used against
him. Ever since this decision, there is a catena
of authorities of this Court uniformly taking the
view that unless the circumstance appearing
against an accused is put to him in his
examination under Section 342 or Section 313
of the Criminal Procedure Code, the same
cannot be used against him. In Shamu Balu
Chaugule v. State of Maharashtra, (1976) 1
SCC 438 this Court held thus:
"The fact that the appellant was said to
be absconding, not having been put to
him under Section 342, Criminal
Procedure Code, could not be used
against him.
144. It is not necessary for us to multiply
authorities on this point as this question now
stands concluded by several decisions of this
Court. In this view of the matter, the
circumstances which were not put to the
appellant in his examination under Section
313 of the Criminal Procedure Code have to
be completely excluded from consideration.”
22. This Court has held in State of H.P. v. Phurva and
others, Latest HLJ 2011 (HP) 490, as under:
“19. In present like cases, age of the
Prosecutrix is of utmost importance.
Prosecutrix though at the time of her
examination has stated that she was 17 years
of age, yet there is no document with
respect to the date of birth obtained by the
police during investigation of the case, from
the concerned Panchayat or from any
School or Institution where she was admitted
and studied. However, the prosecution has
put its reliance only on the ossification report
Ext. PW10/C showing her between 16-17
years on the basis of the epiphysis of bones.
To prove this report PW10 Dr. G. D. Gaur was
examined. His opinion is based upon the
study of Dr. M.L. Aggarwal and I.C. Pathak in
Punjab Region which has no hilly terrace. He
also admitted that the development of bone
depends on hereditary, dietary, harmonious
factors, climatic condition and it varies from
place to place. He also admitted that
assessment of the age on the basis of fusion
of bones is not a perfect science. It is also
equally fallacious to apply the study of Dr.
M.L. Aggarwal and I.C. Pathak to hilly terrace
with respect to their studies which they have
conducted in Punjab region. Admittedly,
both the parties, in this case belong to tribal
area of Lahaul where development of the
bones differs considerably from the subject
which is in the plain and warmer areas. The
pubic signs appear early in warmer and
lower parts of India whereas physical
development, fusion of bones and also
puberty is always delayed in the hilly areas.
Thus giving the benefit of +2 years on both
sides, as per the Modi’s Jurisprudence, the
age of the prosecutrix comes to 18-19 years
at the relevant time and in any case above
the age of discretion.”
27. If coming to the case in hand, neither
certificate Ext. P-S nor Ext. P-R can be termed as primary
evidence to infer that the prosecutrix was born on
1.1.1978 or 2.2.1974 for the reason that PW-10 Gian
Chand, Secretary Gram Panchayat, Nasogi has not
produced the original Birth and Death register being not
available as the same according to him was deposited
in the office of Chief Medical Officer, Kullu. Since no-one
has been associated nor examined during the course of
trial from the school nor record such as admission and
withdrawal register produced, therefore, school leaving
certificate Ext. P-R cannot be treated as legal and valid
evidence qua the date of birth of the prosecutrix as
2.2.1974.
28. Now if coming to the extract of parivar
register Ext. P-T, the same is again of no help to the
prosecution for the reason that firstly the date of birth of
the prosecutrix does not find mentioned therein and
rather she has been shown four years of age in this
document and secondly, the entries in the parivar
register cannot be treated as legal and acceptable
evidence qua date of birth or age of a person. Support
in this regard can also be drawn from the judgment of a
Co-ordinate Bench of this Court in Ajnana Devi @ Anju V.
State of Himachal Pradesh along with its connected
matters, decided on 24th June, 2016. The relevant
extract of the judgment reads as follows:-
19. In similar circumstances this Court has already held
such certificate not to have established the correct
date of birth. [State of H.P. v. Narender Kumar alias Hira
and others, 2010 Cri.L.J. 3545].
20. The Apex Court in Birad Mal Singhvi v. Anand
Purohit, (1988) Supp. 1 SCC 604 has held that “To
render a document admissible under Section 35, three
conditions must be satisfied, firstly, entry that is relied on
must be one in a public or other official book, register
or record; secondly, it must be an entry stating a fact
in issue or relevant fact; and thirdly, it must be made by
a public servant in discharge of his official duty, or any
other person in performance of a duty specially
enjoined by law. An entry relating to date of birth
made in the school register is relevant and admissible
under Section 35 of the Act but the entry regarding the
age of a person in a school register is of not much
evidentiary value to prove the age of the person in the
absence of the material on which the age was
recorded." [Emphasis supplied]
21. The principle stands reiterated in Ravinder Singh
Gorkhi vs. State of U.P, (2006) 5 SCC 584 and Ram
Suresh Singh vs. Prabhat Singh, (2009) 6 SCC 681.
22. As such, not much credence can be lent to the
certificates more so when it has not come on record as
to who got these entries recorded at the time of
admission of the child in the school. Consequently
certificates (Ext.PW-8/B and Ext.PW-12/A) cannot be
accepted to be legal evidence proving the factum of
date of birth of the prosecutrix.
23. Thus, it can safely be held that the findings returned
by the Court below qua the age of the prosecutrix are
totally borne out from the record.
29. If coming to the ocular version qua this
aspect of the matter, the prosecutrix on 8.4.1992 while in
the witness box had disclosed her age as 17 years. Since
the occurrence is dated 8.7.1989, therefore, if the age so
given by her on the date of her examination is believed
to be true, she was +14 years when assaulted by the
accused sexually. Though, she has not been crossexamined
qua her age aspect as she disclosed in her
examination-in-chief. There being no documentary
evidence showing her age below 16 years of age and
the certificates Ext. P-S and P-R rather contain two
different date of births i.e. 1.1.1978 and 2.2.1974
respectively. Therefore, it cannot be believed that she
was 17 years of age on the date of her examination i.e.
8.4.1992 or above fourteen years on the date of
occurrence i.e. 8.7.1989.
30. Now if coming to the testimony of her mother
PW-6, the prosecutrix was her second child as the eldest
one has died. According to her she had married at the
age of 16 years, however, voluntarily stated that at the
age of 14 years and the child who had expired was born
to her when she was 18 years of age. However, again
said that at the age of16 years. She expressed her
ignorance that prosecutrix was born to her after two
years of her marriage, however, it is denied that the
prosecutrix is of 20 years of age. Her statement is vague
and absurd so far as the age of the prosecutrix is
concerned. Therefore, the same cannot also be
believed to be true to arrive at a conclusion that on the
day of occurrence the prosecutrix was below 16 years of
age.
31. On the other hand, the radiological age of
the prosecutrix has been assessed between 16 to 17
years as has come in the statement of PW-3 Dr. V.K.
Mutreja. This witness has also admitted that there could
be variation of three years on either side while
determining the radiological age. Therefore, the
medical evidence which has been considered in its right
perspective by learned trial Court, it cannot be said that
the prosecutrix was below 16 years of age.
32. In view of the discussion qua age aspect of
the prosecutrix, the prosecution has miserably failed to
prove that she was 16 years of age on the day when
assaulted sexually.
33. Therefore, assuming her age above 16
years, the next question which has engaged our
attention is whether the present is a case of commission
of sexual intercourse with the prosecutrix by the accused
persons with her consent or forcibly, i.e. without her
consent and against her will. In the given facts and
circumstances and also the evidence as has come on
record by way of sole testimony of the prosecutrix, the
present, to us, appears to be a case where the
prosecutrix at the most can be said to have
accompanied accused No. 5 Vijay Kumar voluntarily
because as per her own testimony, the said accused
was sitting by her side in the video parlour and he made
her to agree to accompany him to Vashisth bath,
though she was taken to Solang Nalla side. She seems to
have acquaintance with the said accused as it has
come in her statement that he had shown his interest to
solemnize marriage with her. As per arrangement
between them, when came out of the parlour, she
walked ahead of accused No. 5 as he had told her to
wait for him on the bridge in the town itself. Accordingly,
she reached on the bridge and accused No. 5 came
behind in a taxi which was being occupied by accused
Munna and accused No. 3 Ravi Prakash. She was made
to sit in the jeep and taken to Solang Nalla side.
Meaning thereby that she only agreed to accompany
accused Munna and Ravi Prakash. As per further
version, accused stopped the vehicle on road side and
she was taken by accused No. 5 Vijay to Nalla in the
valley side, whereas, his co-accused Munna and Ravi
Prakash got themselves concealed on the road nearby
the jeep. Accused No. 5 behind a big boulder
committed sexual intercourse with her without her
consent as according to her she resisted (I said no)
commission of rape with her by the said accused.
Though she had got up, however, in the meanwhile
accused Munna and accused No. 3 Ravi Prakash as well
as accused No. 4 Sunil @ Bittu (since dead) had also
came there in a Gypsy with accused Ninnu. Accused
No. 4 caught hold her arm and he as well as his coaccused
Anil @ Bittu, Ninnu and Munna (proclaimed
offender) have also assaulted her sexually. She cried
before they could commit sexual intercourse with her,
howver, accused No. 4 threatened her to keep shut lest
they would do away with her life. Not only this but as per
her further testimony, around 6.00 p.m. accused No. 1
Raghubir, accused Chuni Pradhan, accused Hira Lal
(name wrongly stated as he is accused No. 2 Hari Ramj)
met her at Solang Nalla. On seeing them that they are
local persons, she went to them. Accused Chuni
Pradhan and Raghubir (Accused No. 1) told her to go to
her house. She could not reveal the incident of rape
having taken place with her to the said accused as she
was immediately lifted and put in the Gypsy which was
boarded by accused No. 1 Raghubir Singh, Munna,
Chuni Pradhan and accused No. 2 Hari Ram @ Tikam.
She was brought by them to Kenchi Mor. By that time, it
was almost dark. At Kenchi Mor, accused No. 1 Raghubir
Singh, Accused Ninnu, Accused No. 3 Ravi Prakash,
accused No. 2 Hari Ram and accused Chuni Pradhan
had subjected her to sexual intercourse. She insisted
and requested the said accused persons that she
wanted to go home and that drop her at her place lest
her parents would beat her, but of no avail. She was left
in the road and they all went to her respective places.
She shouted on them that she also wants to go with
them but they did not stop the Gypsy and as such she
was left behind on the road. She remained on the road
for longtime and when a truck came from Lahaul side,
she took lift in that truck and came to Manali bazaar
from where she went to her house.
34. Above statement of the prosecutrix that she
was subjected to sexual intercourse by each and very
accused persons need no corroboration because as
noticed hereinabove, accused No. 5 Vijay Kumar,
deceased accused Anil Kumar @ Bittu, accused No. 1
Raghubir Singh, accused No. 2 Hari Ram, accused No. 3
Ravi Prakash and accused No. 4 Sunil Kumar who have
been charged with the commission of offence
punishable under Section 376(2)(g) IPC have admitted
that they subjected the prosecutrix to sexual intercourse.
The explanation as set-forth by them, however, is that it is
she who invited them to have sexual intercourse with her.
They were subjecting her to sexual intercourse with her
consent earlier also. However, on this occasion, she
demanded money i.e. Rs. 100/- from each of them and
as accused No. 5 offered Rs. 20/-, whereas, accused No.
4 Rs. 50/- and accused No. 3 Ravi Prakash and accused
Anil @ Bittu had no money to pay to her, therefore, it is
for this reason, she implicated them in this case falsely.
35. Mr. R.L. Sood, learned arguing counsel while
drawing the attention of this Court to the statement of
prosecutrix in her cross-examination that she walked
ahead of accused No. 5 and waited for him at the
bridge where he came with his co-accused Munna
(proclaimed offender) and accused No. 3 Ravi Prakash
in a vehicle, she boarded the vehicle, her admission that
it was a crowded area where shops and residences
were in existence, went to Nalla with accused Vijay
Kumar by covering a distance of two furlang where she
was sexually assaulted by the said accused, accused
Munna and accused No. 3 came there in another
Gypsy, accused No. 4 Sunil, accused Anil @ Bittu (since
dead) and accused Ninnu (proclaimed offender) also
came there in the said Gypsy and subjected her to
sexual intercourse, establish that she was a consenting
party to sexual intercourse by the accused with her.
According to Mr. Sood, she did not raise any hue and cry
and rather walked ahead of accused No. 5 while going
to bridge through Manali market. She boarded the
Gypsy voluntarily at her own. The Gypsy crossed the
shops in existence on road side. She did not cry for help.
Her further testimony that she saw accused Raghubir
Singh, accused Chuni Pradhan and accused Hari Ram
sitting in Solang Nalla and went to them who advised her
to go to house, her conduct in not narrating the incident
of sexual assault with her to them and her admission that
she took tea and biscuits with them at Solang Nalla also
demonstrates that she had no grudge against the
accused persons, who according to him had subjected
her to sexual intercourse with her consent. Had it not
been so, she would have complained to accused No. 1
Raghubir Singh, accused Chuni Pradhan and accused
No. 2 Hari Ram against their co-accused who had
already assaulted her sexually when she met them. Also
that instead of going to home as advised by the said
accused, she took tea and biscuits with them. Not only
this but she according to her statement accompanied
the said accused persons in the Gypsy to Kenchi Mor.
Therefore, if she was subjected to sexual intercourse by
the said accused also, such an act with her was also
voluntary and consensual.
36. We are not in agreement with the argument
so addressed on behalf of the accused person for the
reason that all the accused had ganged up and in a
planned manner. Accused No. 5 managed her to
accompany him from the video parlour. As already
pointed out, the present at the most can be said to be a
case of voluntarily accompanying the said accused by
the prosecutrix. She was not a consenting party to
accompany the other accused. She was not a
consenting party even with accused No. 5. The said
accused has rather subjected her to sexual intercourse
forcibly against her will and without her consent because
she has categorically stated that she resisted the
commission of such an act with her by the said accused
‘by saying no’ but he did not stop. Even if it is believed
that she was a consenting party, the said consent was
only qua commission of sexual intercourse with her by
accused No. 5 and not by the said accused persons for
the reason that firstly it is accused No. 5 who had taken
her to the Nalla behind the big boulder and subjected
her to sexual intercourse there. His co-accused i.e.
accused No. 4 Sunil, accused Anil @ Bittu (since dead),
accused Ninu and Munna (proclaimed offender) had
also come down at such a stage when she had already
got up after being assaulted sexually by accused No. 5.
Though she cried before the aforesaid accused persons
who have ravished her sexually but of no avail as
accused No. 4 threatened her to keep shut lest, they
would do away with her life. No cross-examination of
the prosecutrix qua this aspect of the matter has been
conducted. While in the witness box she has
categorically stated that accused No. 1 Raghubir Singh,
accused No. 2 Hari Ram and accused Chuni Lal
Pradhan who were present at Solang Nalla had made
her to board Gypsy with them and they also boarded
the same with accused Munna and Ninnu (proclaimed
offender) and accused No. 1 Raghubir Singh. They all
subjected her to sexual intercourse at Kenchi Mor. She
was subjected to sexual intercourse by all of them at that
place. By that time it became dark. A tender age girl in
the company of five able bodied persons could have
not got herself freed from them. Therefore, the
argument so addressed on their behalf that she did not
raise any hue and cry is hardly of any help to the
accused for the reason that raising hue and cry would
have been of no help to her nor she could have got
herself freed from their clutches by anyone as it was a
case of gang rape. How such a ghastly act with a girl of
tender age like the prosecutrix by the accused many in
number could have been avoided by her or can be
treated as a consensual act? The findings recorded by
learned trial Judge that after such a ghastly act having
been committed with the prosecutrix, she would have so
scared that on seeing local people (accused No. 1
Raghubir Singh, accused No. 2 Hari Ram) narrated the
incident to them instead of having tea and biscuits with
them. She would have tried to rush to her house as
advised by accused No. 1, accused Chuni Pradhan and
not agreed to travel with them in their taxi, in which not
only the said two accused but accused Munna, Ninnu
and accused Chuni Pradhan were also sitting for the
reason that the so called local persons i.e. accused No.
1 and accused No. 2 whom the prosecutrix had believed
to be of some help to her were as a matter of fact not
her sympathizer because had it been so, they would
have given lift to her in their vehicle and dropped safe at
her in Manali town or taken her to police station to lodge
FIR against the incident. No doubt, as per her version
said accused No. 1 and accused Chuni Pradhan had
advised her to go to home but when it was 6.00 p.m. by
that time and in view of topography of Manali town and
Solang Nalla where sun sets at early hours of the day and
the possibility of it being dark at that time, cannot be
ruled out. Since they offered tea and biscuits to her,
therefore, obviously she may have accepted the same
believing them her sympathizer. It is they who made her
to board the taxi and it being darkness she boarded the
taxi but their illegal designs to subject her to sexual
intercourse on the way most probably were not in her
knowledge. Therefore, accused No. 1 Raghubir Singh,
accused No. 2 Hari Ram and prima-facie accused Chuni
Pradhan (discharged from the case) as well as coaccused
Munna and Ninnu (proclaimed offender) by
taking undue advantage of their position to dominate
the will of the prosecutrix who had been traveling with
them in a state of helplessness was also subjected to
sexual intercourse by each of them, which again cannot
be said to be an act of consensual sexual intercourse.
The observations made by learned trial Judge that she
would have tried to rush to her house as advised by
accused No. 1 and accused Chuni Pradhan are again
far fetched for the reason that in view of the time being
6.00 p.m. and the night already having set in, how a
lonely tender age girl could have traveled to her native
place at Manali. This aspect has not been taken into
consideration by learned trial Judge. The above said
accused who being locals and considered by her to be
of some help to her have taken undue advantage of her
loneliness and they also subjected her to sexual
intercourse. Therefore, instead of criticizing the
prosecutrix, learned trial Judge should have taken into
consideration such unbecoming behaviour of the said
accused. The argument addressed by Mr. R.L. Sood,
learned arguing counsel qua this aspect of the matter
and law laid down by the apex Court in Raja and others
V. State of Karnataka, 2016(10) SCC 506 are of no help to
their case. Not only this but the law laid down by the
apex Court in Raja’s case (supra) is also distinguishable
on facts.
37. The improvements that she raised hue and
cry at Solang Nalla when accused tried to commit rape
with her and accused Sunil Kumar had threatened to kill
her and that Bittu did not commit rape on her at Solang
Nalla but at Kenchi Mor, even if are there, is hardly of
any consequence because the fault, if any, lies on the
part of the investigating agency and the possibility of the
I.O. having not recorded her statement as per her
version, which in the case in hand is just possible as the
accused being influential persons, they seem to have
influenced the investigation of the case also. At the
most, the investigation can be said to be faulty and as
such the version of the prosecutrix in the witness box
cannot be said to be false, more particularly, when the
accused have admittedly assaulted her sexually. Her
testimony that it took 5-6 minutes to accused Vijay to
convince her to accompany him to Vashisth bath could
have not been considered to arrive at a conclusion that
she was a consenting party to the sexual intercourse
committed by the accused person with her for the
reason that the said accused had asked to accompany
her to Vashisth bath and not Solang Nalla and she
consented only to accompany him and none else. She
may have agreed to accompany accused No. 5 as he
was known to her because as per her version, he offered
himself to solemnize marriage with her. How
accompanying voluntarily with a known person could be
taken to believe that she was a consenting party to
have sexual intercourse with such person; learned trial
Judge has failed to explain. When she never consented
to accompany other accused persons and even for the
commission of sexual intercourse with her by accused
Vijay, therefore, it is established that she objected to and
resisted such ghastly act committed upon her by the
accused persons. In view of evidence on record, her so
called consent was obtained by them under fear of her
own life, causing hurt to her.
38. As noticed hereinabove, the accused have
not denied that they have subjected the prosecutrix to
sexual intercourse. However, their defence is that since
they failed to pay money to her, she demanded from
each of them, therefore, it is for this reason, they have
been implicated in this case falsely. When it is proved
and held by us that she was not a consenting party and
rather subjected to sexual intercourse without her
consent and against her will, therefore, the plea so
raised is hardly of any help to them. It is well settled that
even a woman of easy virtue and for that matter a
prostitute cannot also be subjected to sexual intercourse
against her will and without her consent. Learned trial
Judge has failed to appreciate this aspect of the matter.
Instead of appreciating that nine males have sexually
assaulted a tender aged girl and holding them guilty of
the commission of offence, learned trial Judge has went
on to criticize the prosecutrix. Even if she was of easy
virtue could have never consented to have sexual
intercourse with this much number of persons (accused
herein) i.e., nine. Such an approach of learned trial
Court in this matter cannot be termed as legally and
factually sustainable. The present is a case where sole
testimony of the prosecutrix is sufficient to bring the guilt
home to the accused persons. The Apex Court in State
of Punjab V. Gurmeet Singh and others, AIR 1996 SC 1393
has held that own statement of the prosecutrix if inspires
confidence is sufficient to bring guilt home to the
accused persons.
39. As noticed supra, the prosecutrix in
unequivocal terms has supported her version in her
statement Ext. P-G recorded under Section 154 Cr.P.C.
She has also stated whatever she has deposed in her
supplementary statement mark D-A, while in the witness
box. In her cross-examination, she has categorically
stated that she disclosed the name of Chuni Pradhan on
each and every occasion when her statements were
recorded by the police. Even accused Ravi Prakash
while answering question No. 13 in his statement under
Section 313 Cr.P.C. has admitted that besides Raghubir,
Ninnu, Hari Ram @ Tikam Ram and Chuni Pradhan had
also subjected the prosecutrix to sexual intercourse at
Kenchi Mor. The so called improvements to her earlier
version in Ext. P-G or mark D-A to our mind are not owing
to her acts and conduct but the possibility of the I.O.
having not recorded her statement as per her version
cannot be ruled-out. She has only been cross-examined
to show that she did not raise any hue and cry
irrespective of taken in the vehicle by the accused
through Vashisth bazaar where shops and houses are in
existence, Palchan through the barricades put by the
army and irrespective of tourist flow to Solang Nalla
area. Though, it is correct, however, initially they were
only three accused i.e. accused No. 5 Vijay Kumar,
accused No. 3, Ravi Prakash and accused Munna, who
was driving the taxi on their way to Solang Nalla side. As
observed hereinabove, she had voluntarily
accompanied accused Vijay, however, it cannot be
inferred that she did so to have sexual intercourse with
the said accused, what to speak of the remaining
accused namely Ravi Prakash and accused Munna the
(proclaimed offender). As per her statement under
Section 154 Cr.P.C and also her testimony while in the
witness box the said accused got themselves hided on
the road nearby the Gypsy and they appeared at the
place where she was subjected to sexual intercourse by
the said accused when she had already got up after
having exploited sexually by accused Vijay against her
will and without her consent. The present as such is a
case where accused had ganged up and it was part of
the conspiracy they hatched that accused No. 5 Vijay
who had intimacy with her was assigned the task to bring
her so that she could be subjected to sexual intercourse
by them turn by turn and in a manner as discussed
hereinabove as well as having come on record.
40. Therefore, not only accused No. 5 Vijay but
his co-accused No. 1 to 4 namely, Raghubir Singh, Hari
Ram, Ravi Prakash and Sunil Kumar (respondents herein)
all have assaulted the prosecutrix sexually without her
consent and against her will. The present being a case
of gang rape, they should have been convicted and
sentenced by learned trial Court. The findings of
acquittal recorded by the Court below for all the reasons
discussed hereinabove are neither legally nor factually
sustainable. In view of the evidence discussed
hereinabove, accused persons Munna and Ninnu who
are absconding have also prima-facie assaulted the
prosecutrix sexually. Their guilt, however, is yet to
establish as and when they will surrender in the Court or
produced in custody by police after holding trial against
them. As discussed hereinabove, charge should have
also been framed against accused Chuni Lal as primafacie
case is made out against him also. The order of his
discharge as such is not legally sustainable.
41. In view of what has been said hereinabove,
the present is not a case where it can be said that the
prosecution has failed to prove its case against the
accused beyond all reasonable doubt. The reappraisal
of the evidence by us rather leads to the only conclusion
that all the accused persons have assaulted the
prosecutrix sexually against her will and without her
consent. The charge under Section 376(2)(g) of the
Indian Penal Code framed against them is, therefore,
fully established on record. Being so, the only
inescapable conclusion would be that the accused
have committed the offence punishable under Section
376(2)(g) of the Indian Penal Code. They all, therefore,
are convicted accordingly. The findings of their
acquittal as recorded by learned trial Judge are
quashed and set aside. They are directed to surrender
to their bail bonds and be produced in the Court on
31.03.2017 for being heard on the quantum of sentence.
42. Before parting with this judgment, we shall be
failing in our duty if not issue a direction to the appellantState
to file a report qua the steps taken to ascertain the
whereabouts of the proclaimed offenders Munna and
Ninnu and also qua attachment of their moveable and
immovable property, if any, well before the next date.
We also leave it open to consider and pass appropriate
orders qua the prosecution of accused Chuni Lal in this
case on the next date after affording an opportunity of
being heard to him. Notice, therefore, be issued to said
Chuni Lal also for the date fixed on his address to be filed
by the appellant-State within a week from today.
Judgment to continue.
19.
(Dharam Chand Chaudhary)
Judge
(Vivek Singh Thakur)
March 2, 2017 Judge (naveen)
No comments:
Post a Comment