STATE OF H.P. v.

SURESH KUMAR @ CHHOTU (Criminal Appeal No. 973 of 2002)

AUGUST 28, 2008 [Dr. Arijit Pasayat, P. Sathasivam and Aftab Alam, JJ]

The Order of the Court was delivered by

Dr.  ARIJIT PASAYAT, J.  Challenge in  this  appeal  is  to  the  judgment  of  a learned Single Judge of the Himachal Pradesh High Court directing acquittal of the respondent  (hereinafter  referred  to  as  the  ‘accused’).   Learned Sessions  Judge, Kangra at Dharamshala had found the accused guilty of offences punishable under Sections 363,  366 and 376 of  the Indian Penal  Code,  1860 (in  short  ‘IPC’)  and sentenced him to undergo rigorous imprisonment for seven years and two years and fine with default stipulation.  

The prosecution version as unfolded during trial is as follows:

Prosecutrix (PW-2) daughter of Nirmala Devi (PW-1) and Jagar Nath (PW-3) was, on 23.3.1996 present in her house in village Sadwan. The accused and Ishwar Dass alias Sheru (who was a co-accused before the trial court and will be referred to as such hereafter)  came to her house. Accused asked her to marry him. On her refusal, the accused and the said co-accused threatened to kill her brother. They made her to accompany them at the point of  a knife and was taken to different houses and finally to the house of Ashok Kumar (who was also a co-accuse before the trial court and is referred to as such hereafter). From there, she was brought to Kunalpathri temple for performing marriage with the accused. But she refused and the priests also refused to perform the marriage. The accused and the co-accused then took the prosecutrix to the Court  premises at  Dharamshala where she was forced to sign an affidavit regarding soleminazation of her marriage with the accused and such affidavit alongwith affidavit of the accused to the same effect were attested by R.S.Rana,  Advocate  (PW-5).  She  was then  taken  back  to  the  house  of  co- accused Ashok Kumar at Shahpur where she stayed for five days and during this period, the accused subjected her to sexual intercourse.

When the mother of the prosecutrix (PW-1) returned home from the fields, she found the prosecutrix missing and started searching for her in the neighbourhood and also  at  her  parents’  house and finally  reported  the  matter  to  the  police  on 26.3.1996 on the basis of which formal Ex. PW-1/A was registered at Police Station, Nurpur by ASI Sharif Mohammad (PW-10). The father of the prosecutrix (PW-3) who was,  at  the  material  time,  working  at  Kullu  was informed  about  the  occurrence whereupon  he  returned  home.  On  the  basis  of  information  received,  the  police

alongwith  PW2  recovered  the  prosecutrix  from  the  house  of  co-accused  Ashok Kumar  vide  memo  Ex.PW3/A  and  she  was  handed  over  to  PW-2  vide  memo Ex.PW-/B. The prosecutrix was got medically examined and Dr. D.R.Royal (PW12) who examined her issued the MLC Ex.PW-12/B and opined that the possibility of sexual intercourse qua the prosecutrix could not be ruled out. At the time of medical examination of the prosecutrix, PW12 took in possession the underwear which the prosecutrix  was  wearing  at  the  relevant  time  and  also  collected  vaginal  swab, prepared the slides and after sealing, handed them over to the police to get them analyzed from the Chemical Examiner. After arrest, accused was also got medically examined  and  Dr.  Praveen  Bhardwaj  who examined  him  vide  MLC Ex.PW13/A opined that the accused was capable of performing sexual intercourse. At the time of medical  examination, his underwear was also taken in possession by PW13 and handed over to the police for chemical analysis. As per the report regarding chemical analysis  of  the  aforesaid  articles  Ex.PX,  nothing  incriminating  was found  in  the articles  so  analysed,  except  the  underwear  of  the  prosecutrix  which  was  found stained with human blood. During the course of the investigation, the police also took possession of the age certificate Ex.PW14/A of the prosecutrix and the abstract of the register Ex.PW14/B. On completion of the investigation, a charge sheet under Sections 363, 366, 368 and 376 IPC was submitted by the officer in charge, Police Station, Nurpur against the accused and his co-accused.

The  accused  abjured  guilt  and  took  the  stand  that  he  has  been  falsely implicated. The co-accused Ashok Kumar was tried in respect of  a charge under Sections 368 and 109 read with Section 376 IPC and co-accused Ishwar Dass @ Sheru was charged for  offences relatable to Sections 363, 376 read with 34 and Section 109 read with Section 376.

In order to establish the accusations,  fifteen witnesses were examined.  The accused and the  co-accused were examined under  Section 313  of  the  Code of Criminal Procedure, 1973 (in short ‘Code’). Learned Trial Judge acquitted the co- accused  of  the  charges  but  convicted  the  accused  and  imposed  sentences  as aforesaid.

The  High Court  noted  that  there  was inconsistency  in  the  evidence  of  the prosecutrix. She appeared to have accompanied the accused of her own accord and the sexual intercourse alleged to have been committed was done with her consent. The  stand  of  the  prosecutrix  was that  as  she  was below 16  years  of  age,  her consent, if any, was of no consequence. The High Court referred to the evidence of PWs. 1,2,3, and 14 and the documents relied upon i.e. the birth certificate. The High Court noted that those documents apparently were not relatable to the prosecutrix and therefore the date of birth indicated in the documents could not be that of the prosecutrix.  It  referred to the evidence of  the mother.  It  was concluded that  the documents could not be also relatable to the prosecutrix in view of the statement of the  mother  about  her  own  age.  That  being  so,  the  High  Court  held  that  the accusations  were  not  established  and  the  prosecutrix,  as  evident  from  the documents was more than 16 years of age at the time of occurence.

In support of the appeal, learned counsel for the appellant-State submitted that the evidence of the prosecutrix ought not to have been rejected. The documentary evidence,  though there  appear  to  be some  inconsistencies  in  the documents  as regards the name of the child born, and her caste in a village area should have been considered to be of no consequence.

Learned Amicus Curiae supported the judgment of the High Court.

We  find  that  the  High  Court  was  justified  in  its  conclusions  about  the prosecutrix having accompanied the accused on her own and being a consenting party to the sexual acts. As rightly contended by learned counsel for the State, if the age  of  the  prosecutrix  was  below  16  years,  the  consent  would  be  of  no consequence. But the High Court’s findings as regards the age of the prosecutrix cannot  be  said  to  be  without  any basis.  The  High  Court  has  analysed  the  oral evidence and the documentary evidence to come to a conclusion that the date of birth of the prosecutrix as claimed by the prosecution has not been established. That being so, we find no merit in this appeal which is accordingly dismissed.

We record our appreciation for the assistance rendered by learned Amicus Curiae.