Sanjay Vishwakarma vs State of Himachal Pradesh

The appellant has preferred this appeal against the judgment of conviction and sentence passed by learned trial Court, whereby, he has been convicted and sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs. 10,000/- under Section 376 of IPC and for want of payment of fine, he has been ordered to further undergo rigorous imprisonment for a period of one year. The appellant has also been sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs. 1,000/- under Section 363 of IPC and for want of fine, to further undergo rigorous imprisonment for a period of six months. The appellant has further been sentenced to undergo rigorous imprisonment for a period of four years and to pay fine of Rs.2000/- under Section 366 of IPC and for want of payment of fine, to further undergo rigorous imprisonment for one year. All sentences would run concurrently.

In the impugned judgment, the learned trial Court has taken note of the prosecution case. There is no dispute that the said version is correctly recorded by the said Court, I reproduce the same from the said judgment.

The prosecution case in brief as per police challan is that on 16.11.2012, a police party headed by HC Randhir Singh was present on patrolling duty at Galua Chowk, Una at around 5:10 pm, the father of prosecutrix met the police party and got his statement recorded Ex.PW11/A under Section 154 Cr.P.C. to the effect that he is carpenter by profession and is residing near MC Park, Una from the last 8 years in rented house alongwith his wife and children and his elder daughter is 15 years of age and is studying in 10th class in Government Senior Secondary School (Girls) Una and on 8.11.2012, she had gone to school at around 9:05 am and at around 10:15 am, a message was received by his wife from the school that their daughter has not come to school and his wife accordingly informed him and they both made search of her daughter in the school and other places but she was not traced. On next day, they reported the matter in PP City, Una vide rapat Ex.PW8/A and they had searched prosecutrix in Chandigarh, Delhi, Ludhiana in their relations but she was not traceable. During efforts of search, he came to know that prosecutrix had been kidnapped or enticed away by Sanjay with intent to marry her and it had been in the statement of complainant that strict action as per law be taken against Sanjay. Accordingly, on the statement of complainant a case under Sections 363, 366 IPC had been registered against the accused Sanjay vide FIR Ex.PW13/A in P.S. Una. Police swung into action and investigation had been conducted by SI Tirlok Chand (PW20). During investigation, the I.O. procured birth certificate of the prosecutrix Ex.PW2/B and as per birth certificate, the date of birth of prosecutrix was 15.4.1998. On 20.11.2012, the statements of parents as well as brother of prosecutrix were recorded. The videography of the statements was also conducted. The policy party alongwith complainant went to Khadda and on 16.12.2012, prosecutrix alongwith accused Sanjay was recovered at place Khadda, District Kushinagar, U.P. The custody of prosecutrix had been handed over to her father vide memo Ex.PW3/A. The accused Sanjay was arrested on 16.12.2012 and on 17.12.2012, the accused got the room identified where he alongwith prosecutrix resided from 11.11.2012 to 16.11.2012. Bed-sheet over which the accused and prosecutrix used to sleep, after putting in a cloth parcel was taken into possession vide memo Ex.PW3/B. On 17.12.2012, accused Sanjay was produced in the Court of Ld. CJM, Padrona and his transit remand upto 20.12.2012 was obtained. The I.O. also prepared site plan of the spot Ex.PW20/C and recorded statements of witnesses under Section 161 Cr.P.C. The I.O. also moved application Ex.PW10/A to SMO, Una for medical examination of prosecutrix and deputed HHG Saroj Kumari and her mother with the prosecutrix to the hospital. The I.O. also had moved application Ex.PW20/D to SMO, RH Una for conducting medical examination of accused and had obtained MLC Ex.PW21/A of the accused. PW10 Dr. Santosh Didhra had conducted medical examination of prosecutrix and she had taken swabs and handed over the same to the police alongwith clothes of the prosecutrix and had issued MLC Ex.PW10/B. She referred the prosecutrix to Radiologist for opinion of her age and had reserved her opinion till the report of the FSL. She had perused FSL report Ex.PW9/A on 1.3.2013 and had issued final opinion Ex.PW10/C and as per her opinion prosecutrix was used to sexual intercourse and no opinion can be given when prosecutrix had last intercourse. As per report of Radiologist Ex.PW1/C, the age of prosecutrix was above 14 and below 17 years. Accordingly, Section 376 IPC had been added in the challan. The I.O. had also collected the clothes of the prosecutrix as well as of the accused alongwith samples of blood, pubic hair etc. and handed over the same to MHC. On 20.2.2013, the I.O. had moved application Ex.PW6/C for obtaining birth certificate of prosecutrix to CHT Model Govt. Primary School, Una and obtained declarations/certificates Ex.PW6/B and Ex.PW6/A. After completion of necessary investigation, the police concluded a prima facie case against the accused under Sections 376, 363 and 366 of the Indian Penal Code and accordingly final report for the trial of the accused as envisaged under Section 173 Cr.P.C. was presented in the Court of learned Chief Judicial Magistrate, Una on 11.3.2013.

After completion of all the formalities, the accused was charged with the offence punishable under Sections 376, 363 and 366 of the IPC, to which he pleaded not guilty and claimed to be tried.

The prosecution in order to prove the guilt of the appellant examined 21 witnesses. On closure of prosecution evidence, statement of the appellant under Section 313 Cr.P.C. was recorded. However, his defence was that of total denial simplicitor. The appellant also examined three witnesses in his defence and also tendered documents Ex.DW2/A, Ex.D3, Ex.D4, Ex.DW1/C and Ex.DW1/B and closed his evidence.

The learned Trial Court formulated the following three points for determination:-

"1.. Whether the prosecution has succeeded in proving beyond reasonable doubt that on 8.11.2012 at around 9:05 am at place Una, the accused Sanjay kidnapped the prosecutrix (PW1), a minor girl below 16 years of age without consent of her parents?

Whether the prosecution has proved on record that on the above said date, time and place, accused kidnapped the prosecutrix with intent that she will be compelled or forced to marry him or to have the illicit intercourse with him against her will.

Whether from 9.11.2012 to 15.12.2012, the accused committed rape on the prosecutrix, a minor girl at Bhainsah, Khadda, Tehsil Padorna, Distt. Khushi Nagar, U.P. and at other places. "

All the aforesaid points were answered in affirmative and the appellant was convicted and sentenced as aforesaid.

Aggrieved by the judgment of conviction and sentence, the appellant has preferred the instant appeal on the ground that prosecution has failed to prove its case beyond reasonable doubt and there is no evidence whatsoever available on record to show that the prosecutrix was minor and the prosecution has further failed to prove that she had been kidnapped with intent that she will be compelled or forced to marry the appellant or have sexual intercourse with him against her will. There is no evidence whatsoever to establish that the appellant had committed rape on the prosecutrix. I have heard Shri N.K. Thakur, learned Senior Advocate, duly assisted by Ms. Jamuna, Advocate, for the appellant and Shri J.S. Guleria, learned Assistant Advocate General, for the State.

How the testimony of the prosecutrix especially when she is a minor is required to be evaluated and considered was the subject matter of a recent decision of Hon''ble Supreme Court in State of Himachal Pradesh vs. Sanjay Kumar 2017 (1) Shim. LC 1), wherein it was observed as under:

"30. By no means, it is suggested that whenever such charge of rape is made, where the victim is a child, it has to be treated as a gospel truth and the accused person has to be convicted. We have already discussed above the manner in which testimony of the prosecutrix is to be examined and analysed in order to find out the truth therein and to ensure that deposition of the victim is trustworthy. At the same time, after taking all due pre-cautions which are necessary, when it is found that the prosecution version is worth believing, the case is to be dealt with all sensitivity that is needed in such cases. In such a situation one has to take stock of the realities of life as well. Various studies show that in more than 80% cases of such abuses, perpetrators have acquaintance with the victims who are not strangers. The danger is more within than outside. Most of the time, acquaintance rapes, when the culprit is a family member, are not even reported for various reasons, not difficult to fathom. The strongest among those is the fear of attracting social stigma. Another deterring factor which many times prevent such victims or their families to lodge a complaint is that they find whole process of criminal justice system extremely intimidating coupled with absence of victim protection mechanism. Therefore, time is ripe to bring about significant reforms in the criminal justice system as well. Equally, there is also a dire need to have a survivor centric approach towards victims of sexual violence, particularly, the children, keeping in view the traumatic long lasting effects on such victims.

After thorough analysis of all relevant and attendant factors, we are of the opinion that none of the grounds, on which the High Court has cleared the respondent, has any merit. By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the Courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the Court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance (See Bhupinder Sharma v. State of Himachal, Pradesh, 2003 8 SCC 551). Notwithstanding this legal position, in the instant case, we even find enough corroborative material as well, which is discussed hereinabove."

Judged in the light of aforesaid exposition of law, the first and foremost question that would arise for consideration is with respect to the age of the prosecutrix, because in case she is held to be a minor below the age of 16 years then even the so called ''consent'' would be immaterial.

As regards of age, the prosecution has examined Dr. O.P. Ramdeo (Radiologist) (PW1), who had opined the age of the prosecutrix to be above 14 years and below 17 years vide his opinion Ex.PW1/B.

PW2 Neelam Kaushal, the Principal of Govt. Girls Senior Secondary School, Una has produced the age certificate of the prosecutrix Ex.PW2/B, wherein the date of birth is recorded as 15.4.1998. Even if the version of the doctor and the certificate Ex.PW2/B is ignored, for a moment, even then as per evidence led by the appellant himself, the prosecutrix is a minor. As per the document Ex.DW2/A, which was produced in the defence evidence by DW2 Ram Dayal Singh, the date of birth of the prosecutrix is 15.3.1997. Thus, it is established on record that the prosecutrix at the time of commission of the offence was hardly 15 years 8 months and was thus a minor.

As regards the accusation of kidnapping and the appellant having forcibly committing sexual intercourse with the prosecutrix, the said allegations stand duly established in the statement of the prosecutrix herself, which has further been corroborated by the other witnesses examined in this case.

The prosecutrix was examined as PW16 and stated that on 8.11.2012, she had gone to school around 9:05 am from her house and in the way she met the appellant who offered her lift on the pretext of having a picnic. The appellant has disclosed his desire to marry her and took her to Nangal in bus and threatened her that in case she refused to accompany him, he would kill her brother. From Nangal, the appellant took her to Delhi and from Delhi to Bhainsan in the house of Dhanwan, where he disclosed that he had conducted marriage with her. In the house of Dhanwan, the appellant forcibly committed sexual intercourse with her. The prosecutrix and the appellant resided at the house of Dhanwan from 11.11.2012 to 16.11.2012. Thereafter the appellant took the prosecutrix to Nepal at Parsona. Dhanwan came there and disclosed that police was searching for them and took them to Khadda. In Nepal also, the appellant forcibly committed intercourse with the prosecutrix . It was at Khadda that the appellant was arrested and the prosecutrix was handed over to her father by the police party vide memo Ex.PW3/A.

On the next date, the police took the prosecutrix to the house of Dhanwan, where she had identified the room in which the appellant had committed sexual intercourse with her. The bed sheet was taken into possession vide memo Ex.PW3/B and sealed with seal ''A'' and seal after its use had been handed over to Mahant Vishwakarma. The prosecutrix was taken to Una on 19.12.2012 and medically examined vide MLC Ex.PW10/B. The doctor had also taken into possession salwar Ex.P3, underwear Ex.P4 and pad Ex.P5.

In her cross-examination, the prosecutrix stated that in her statement to the police, she had disclosed that the appellant had asked her for accompanying him on the pretext of having a picnic and he would conduct marriage with her and in case she did not accompany him, he would kill her brother. The prosecutrix was confronted with mark D12 wherein such facts had not been recorded. She also stated that in her statement to the police, she had disclosed that accused had taken her to Nangal and from Nangal to Delhi and from Delhi to Bhainsa in the house of Dhanwan, where the appellant had stated to Dhanwan that he had married the prosecutrix. When she was confronted with mark D12 , wherein such facts have not been recorded. The prosecutrix had admitted that in portion A to A and B to B of mark D12, there was no mention of forcible rape/intercourse. The prosecutrix has denied that she was not willing to come with her father or that she was forcibly taken to Una.

FIR in this case has been lodged by Balinder Rao (PW11), who is none other than the father of the prosecutrix. This witness has only reiterated what was told to him by the prosecutrix with regard to the incident. However, he has duly proved on record that he alongwith police party had gone to Khadda on 14.12.2012 to the house of Dhanwan, who was brother-in-law of the appellant. However, the prosecutrix was not there and Dhanwan had disclosed that prosecutrix and appellant had gone to Nepal after staying at Khadda for about 4-5 days. Angad Vishwakarma went to Nepal and came back alongwith prosecutrix and the appellant and they met them in Khadda Bazar. The custody of the prosecutrix was given to him by the police vide memo Ex.PW3/A. The prosecutrix and appellant were taken to the house of Dhanwan, where they had earlier stayed and the bed sheet had been taken into possession in his presence.

In cross-examination, PW11 denied that his daughter was a major and she had accompanied the appellant out of her own free will and stayed at different places with him.

To similar effect is the statement of PW12 Mandodari Devi, who is the mother of the prosecutrix.

PW20 SI Tirlok Chand is the Investigating Officer of the case and stated that he had received the file of the investigation on 16.11.2012 and on 17.12.2012 he moved an application Ex.PW2/A to Principal, G.S.S. School, Una for taking the school certificate of the prosecutrix and on 19.11.2012 had received certificate Ex. PW2/B to Ex.PW2/D. As per certificate, the age of the prosecutrix was below 16 years. On 14.12.2012, he alongwith C. Shiv Kumar and complainant went to Khadda in search of prosecutrix and in presence of Dhanwan conducted search of his house. Appellant and prosecutrix were not found in the house and on inquiry, Dhanwan disclosed that prosecutrix and appellant had stayed in house from 11.11.2012 to 16.11.2012 and then on 16.12.2012 they had gone to Nepal . He also stated that he had sent Angad Vishwkarma to Nepal to bring back prosecutrix and appellant and on the same day the prosecutrix, appellant and Angad met the police party in the Bazar. The prosecutrix was identified by her father (PW11), who was then given her custody vide memo Ex.PW3/A. The appellant was interrogated at around 10:30 pm and arrested vide memo Ex.PW20/A. On 17.12.2012, the prosecutrix and the appellant were taken to the house of Dhanwan where the appellant got identified the room and bed where he stayed with the prosecutrix and committed sexual intercourse with her. He also prepared the site plan of the spot Ex.PW20/C. After obtaining transit remand, the appellant was brought back to Una. The prosecutrix was medically examined and thereafter the statements of various witnesses were recorded and on completion of investigation he handed over the case file to SI Kamal Deep.

In cross-examination PW20 denied that he had not conducted the inquiry qua the facts mentioned in MLC Ex.PW10/B and further denied that during the course of investigation, the factum of marriage of prosecutrix with the appellant had come to his notice.

Thus, on the basis of evidence led by the prosecution, no fault can be found in the judgment rendered by the learned trial Court, whereby, concluded that the appellant had kidnapped the prosecutrix with the intent she will be compelled or forced to marry and thereafter forcibly committed sexual intercourse with her against her will.

Shri Naresh Thakur, learned senior counsel duly assisted by Ms. Jamuna, strenuously argued that there was no question of the prosecutrix being enticed or subjected to forcible sexual intercourse as the appellant and prosecutrix had also solemnized the marriage. In support of such contention would rely upon the statement of DW1 Jatinder Kumar Yadav, who had brought the record of marriage of the prosecutrix and as per his statement application for registration of the marriage was moved by the prosecutrix Ex. DW1/A. He also proved the copy of proforma of marriage Ex.DW1/B as per original record, wherein, the age of the prosecutrix is shown as 21 years. However, during crossexamination, this witness admitted that the inquiry qua the age of the prosecutrix was still pending and further they had called for the record from the police where the parties were residing. He also feigned ignorance regarding the prosecutrix being minor. He admitted that the application Ex.DW1/A had not been attested by anyone.

Evidently no certificate of marriage has been placed on record. Moreover, as the prosecutrix was a minor, below 16 years of age, therefore, her so-called consent is immaterial and of no consequence.

From the evaluation of the prosecution material discussed above, it is abundantly clear that the evidence brought on record contains positive proof, credible sequence of events and factual true linking the appellant with the charges as were framed against him. Hence, the appellant is found to be guilty of the same.

In the result, I find no merit in this appeal and the same is dismissed.