High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. Appeal No. 481 of 2017

Reserved on: 01.07.2019

Decided on: 25.07.2019

Rakesh Kumar alias Fanger …..Appellant

Versus

State of Himachal Pradesh ……Respondent

______________________________________________________________

Coram

The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.

1

Whether approved for reporting? Yes.

For the appellant: Mr. Suresh Kumar Thakur, Advocate.

For the respondent: Mr. Shiv Pal Manhans and Mr. P. K.

Bhatti, Addl. AGs.

Chander Bhusan Barowalia, Judge.

The present criminal appeal has been maintained by

the appellant-accused-convict (hereinafter to be called as “the

accused”) against the judgment dated 05.11.2016, passed by

learned Additional Sessions Judge (II), Kangra at Dharamshala,

H.P., in Sessions trial No. 14-K/VII/2014/13, whereby the accused

was convicted for commission of offences punishable under

Sections 363, 376 and 377 of the Indian Penal Code.

2. Succinctly the facts giving rise to the present appeal

as per the prosecution story are that on 30.03.2006, the

prosecutrix (name withheld) alongwith her nephew was returning

from her sister’s house. About 4:00 p.m. they reached at Kangra

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Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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High Court of H.P.Bus Stand and were waiting for the bus. In the meanwhile,

accused met them and introduced himself by saying that the

father of nephew of prosecutrix is his uncle and took prosecutrix

and her nephew to a nearby shop, where he offered them tea and

snacks. The accused was having a bag with him, which he handed

over to the nephew of the prosecutrix. The accused took the

prosecutrix with him from the back side of the bus stand towards

the main road and then to bus stand. The nephew of the

prosecutrix waited for a long for return of the prosecutrix, but she

did not return. Thereafter one Ravi Kumar came there, to whom he

narrated the incident. The nephew of the prosecutrix thereafter

returned home and also narrated the incident to his father, who

called the father of the prosecutrix and informed him about the

matter. The father of the prosecutrix alongwith other relatives

thereafter searched the prosecutrix in Kangra Bazar, but could not

find her. Around 9:30 p.m., the matter was reported to the police

of Police Station Kangra, subsequently, FIR No. 120/06, under

Section 363 of the Indian Penal Code was registered. S.I. Kamal

Jeet Singh investigated the matter and seized plastic bag, having

clothes of the accused, which was handed over by the accused to

the nephew of prosecutrix. On the next day, i.e. 31.03.2006, the

prosecutrix returned home and disclosed that the accused firstly

took her to Gaggal on the pretext that his sister is waiting at

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High Court of H.P.Gaggal and from Gaggal to Dharamshala and thereafter to Sheela

Chowk by bus and lastly to nearby field of Sheela Chowk, where he

committed rape and sodomy with her. The statement of the

prosecutrix was recorded, she was medically examined at Civil

Hospital Kangra and medico legal certificate was procured. The

Medical Officer concerned handed over a parcel containing swab

hair vagina, swab from exit genitalia, swab from anus and vaginal

slides to the police. For expert opinion, the prosecutrix was

referred to Dr. Rajinder Prasad Medical College Tanda, where it was

opined that possibility of sexual intercourse and sodomy cannot be

ruled out. Accordingly, Sections 376 and 377 of IPC were

incorporated in the case. The prosecutrix also got scene of crime

identified. On the basis of which, spot map was prepared. The

aforesaid parcel, containing swabs of prosecutrix was sent for

forensic examination to SFSL, Junga and after receipt of SFSL

report, it was opined by the Medical Officer that there is possibility

of sexual intercourse and sodomy. The birth certificate of the

prosecutrix was also procured. During investigation, it was

revealed that name of the accused, who committed the crime is

Fanger @ Rakesh Kumar of village Sohara, but he could not be

traced, as such, untraced report was prepared and was filed before

learned JMIC, Kangra, which was accepted by learned Magistrate.

3. On 19.03.2013, police got information that the

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High Court of H.P.accused was seen in the area, so the police moved an application

to investigate the matter. On the same day, at 7:00 p.m., the

accused was arrested. Thereafter, he was sent to Civil Hospital

Kangra for medical examination, whereupon it was opined that

there is no abnormality in his genitalia and he is capable of doing

sex. On 20.03.2013, in presence of Tehsildar, Test Identification

Parade of accused was conducted in District Jail, Dharamshala. On

01.04.2013, blood sample of the accused was taken on FTA Card

for DNA profiling and the same was sent for forensic examination

to FSL Junga. On completion of investigation, challan was

presented before the Court.

4. The prosecution, in order to prove its case, examined

as many as twenty two witnesses. Statements of the accused was

recorded under Section 313 Cr. P.C., wherein he denied the case of

the prosecution. The accused did not lead any defence in his

favour.

5. The learned trial Court, vide judgment dated

05.11.2016, convicted the accused for the commission of offences

punishable under Sections 363, 376 and 377 of IPC and sentenced

him as under:

“(1) for offence under Section 363 of the IPC to

rigorous imprisonment for a period of seven years

and a fine in the sum of Rs. 10,000/- in default of

payment of which, he shall undergo rigorous

imprisonment for a period of six months;

(2) for offence under Section 376 of the IPC to

rigorous imprisonment for ten years and a fine in

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High Court of H.P.the sum of Rs. 50,000/- in default of payment of

which, he shall undergo rigorous imprisonment for

a period of one year; and

(3) for offence under Section 377 of the IPC to

rigorous imprisonment for a period of seven years

and a fine in the sum of Rs. 50,000/- in default of

payment of which, he shall undergo rigorous

imprisonment for a period of six months.

All the substantive sentences were directed to run concurrently,

hence the present appeal.

6. Mr. Suresh Kumar Thakur, learned counsel for the

appellant has argued that there is no proof with respect to the age

of the prosecutrix and PW-2 and PW-3 were not the persons, who

recorded the age of the prosecutrix, as PW-3 has stated that it is

Veena Devi whose name is entered in the Parivar Register, not the

prosecutrix. He has further argued that the prosecutrix in her

cross-examination has not stated that she has disclosed the

identity of the accused to the police and he was shown to her by

the lady constable in the jail. He has referred to the statements of

PW-1, PW-7 and PW-18 and argued that there is no identity of the

accused. He has argued that incident took place in the year 2006

and the accused was arrested in the year 2013, so it is difficult to

say how the prosecutrix identified the accused after almost seven

years and the fact of false implication of the accused in this case

cannot be ruled out. He has further argued that there are

contradictions in the statement of the prosecutrix with respect to

her’s being taken to Dharamshala and from Dharamshala to

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High Court of H.P.Sheela Chowk by bus and thereafter to the nearby field and in

these circumstances, her statement cannot be believed.

7. On the other hand, learned Additional Advocate

General has argued that taking into consideration the statements

of PW-9 and PW-10 and the fact that the accused has committed

heinous crime, the present appeal be dismissed, as the accused by

alluring the prosecutrix that she will be taken in the car and

making the prosecutrix believed that he is in her relations,

committed rape upon the prosecutrix.

8. In rebuttal, learned counsel for the appellant has

argued that offence under Sections 376 and 377 of IPC is not at all

made out against the accused, as no semen was detected from

the vaginal and anus swabs of the prosecutrix. Lastly, learned

counsel for the appellant argued that the judgment of learned trial

Court be set aside and accused be acquitted for the commission of

offences, he was charged with.

9. In order to appreciate the rival contentions of the

parties, we have gone through the record carefully and in detail.

10. Sh. Rajmal, father of the deceased, while appearing in

the witness box as PW-1 has deposed that on 30.03.2006, he

alongwith brother-in-law and nephew of the prosecutrix went to

Police Station Kangra and reported the matter that her daughter

was taken by a man who pretended to be uncle of prosecutrix’s

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High Court of H.P.nephew. On the basis of which, FIR, Ext. PW-1/B, was registered. In

his presence nephew of the prosecutrix handed over one carry bag

containing Jeans and T-Shirt (Exts. P-3 to P-5) to the police, which

was taken into possession vide seizure memo, Ext. PW-1/A. This

witness, in his cross-examination, has deposed that he did not

raise any suspicion at the time of reporting the matter to the

police, as to by whom her daughter was taken. He admitted that

he does not know the accused personally and reported the matter

to the police, only on the basis of information given to him by

brother-in-law and nephew of the prosecutrix.

11. PW-2, Sh. Ram Krishan, has deposed that on

application (Ext. PW-2/B) moved by the police, he handed over

birth certificate (Ext. PW-2/A) of the prosecutrix to the police,

which was taken into possession vide seizure memo, Ext. PW-2/C.

This witness, in his cross-examination, has admitted that the entry

in birth register was made on 08.03.1994 and at that time he was

not posted as Secretary to the Gram Panchayat of the prosecutrix.

He further admitted that entry at Sl. No. 9 of the birth register

brought by him is in the name of someone else than of the

prosecutrix and it was not made at the instance of her father.

12. PW-4, Shri Rimpal Kumar, has deposed that his father

runs a tea shop outside the Kangra, Bus Stand. On 30.03.2006, he

was present in the shop and at that time the prosecutrix was

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High Court of H.P.accompanied by two boys. They remained there for 25 minutes. As

per this witness, the accused was the same person who came with

the another boy and the prosecutrix in his shop on the relevant

day. In cross-examination, he deposed that he had not seen the

accused prior to the incident.

13. PW-6, Sh. Satpal, has deposed that the prosecutrix is

his sister-in-law and visited his house with his younger son on

20.03.2006 and stayed there till 30.03.2006. On 30.03.2006,

around 3:30 p.m., she left the house alongwith his elder son for

her house. His son returned home around 7:30 p.m. and disclosed

that when he was standing with the prosecutrix at Bus Stand

Kangra, around 4:00 p.m. a boy aged 21 years came to them and

introduced himself by saying that the father of the prosecutrix is

his uncle and offered tea to them in a nearby shop. Thereafter, he

took the prosecutrix with him. He also deposed that as per his son,

the accused handed over to him a polythene bag (Ext. P-2) having

two jeans and T-Shirt, which was handed over to the police in his

presence.

14. The prosecutrix appeared in the witness box as PW-7

and deposed that on 30.03.2006, when she returned from the

house of her sister and waiting for the bus with her nephew at

Kangra Bus Stand, the accused came there and introduced himself

to be her relative. Thereafter, the accused took them to a nearby

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High Court of H.P.tea shop, where they had refreshment. The accused was carrying

a polythene bag, which he handed over to her nephew. The

accused told her that his sister is coming and he will drop her to

her house in his vehicle. Her nephew remained there in the bus

stand with polythene bag and the accused took her in three

wheeler to the bus stand, from where he took her to Gaggal.

Thereafter, the accused took her to Dharamshala and from

Dharamshala to Sheela Chowk by bus, from where she was taken

to the nearby field and accused forcibly committed the bad act

with her behind the bushes and left her there and went away. She

returned home by foot and disclosed the details and identity of the

accused to the police. She further deposed that she was medically

examined at Dharamshala and had shown the place of incident to

the police. She identified the accused in District Jail Dharamshala

in the presence of learned Magistrate. In cross-examination, she

admitted that she does not know the name of accused and she did

not disclose the name of the accused to the police during

investigation.

15. PW-8, nephew of the prosecutrix, has deposed that on

30.06.2006, he accompanied the prosecutrix from his house. At

3:30 p.m., they reached at Kangra Bus Stand and were waiting for

bus. In the meantime, accused came there and introduced himself

to be uncle of his grandfather. Thereafter, the accused took them

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High Court of H.P.to nearby sweet shop, where they had snacks. The accused

handed over his polythene bag to him. The accused took the

prosecutrix to bus stand and asked him to wait at Zamanabad

road. He waited there till 7:00 p.m. and thereafter his uncle came

there in his tractor and he disclosed him the entire story. On

returning home, he disclosed the entire incident to his father, on

which, his father made a call to the father of the prosecutrix.

Thereafter, they went to police station and handed over that

polythene bag containing two jeans and a T-Shirt to the police. In

the year 2013, he identified the accused in the police station. In

cross-examination, he admitted that he was not knowing the name

of the accused in the year 2006. He denied that he identified the

accused at the instance of police.

16. PW-9, Dr. Swati Aggarwal, has deposed that on an

application (Ext. PW-9/A) moved by the police, she medically

examined the prosecutrix on 31.03.2006 and issued MLC, Ext. PW-

9/B and opined that there was possibility of sexual intercourse and

sodomy with the prosecutrix. In cross-examination, she admitted

that she had not given the history of alleged occurrence in MLC.

She denied that semen and blood was not detected in the vaginal

swab of the prosecutrix.

17. PW-10, Dr. Neelam Mahajan, has deposed that on

31.03.2006, the prosecutrix was referred to her by PW-9 for

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High Court of H.P.Gynecological opinion. She opined that there was possibility of

sexual intercourse and sodomy and in this regard she gave her

opinion (Ext. PW-10/A).

18. PW-18, Sh. Naresh Kumar, has deposed that as per

the orders of learned JMIC Kanagra, he visited District Jail

Dharamshala on 30.03.2013 for TIP (Test Identification Parade),

where with the help of Superintendent Jail Dharamshala, he

arranged seven persons of similar height and statures as that of

accused and thereafter the victim was put to test identification,

whereby she without hesitation identified the accused for three

times. He submitted his detailed report (Ext. PW-18/B) and

recorded the statements of prosecutrix (Ext. PW-18/C) and

accused (Ext. PW-18/D) and attached the details of persons, who

were associated in TIP. In cross-examination, he feigned ignorance

as to how many times the prosecutrix was called to police station

for TIP. He deposed that no physical features were described to

him by the victim prior to TIP. He further deposed that he had not

made any inquiry as to the fact that whether the accused was

shown to the prosecutrix prior to TIP or prosecutrix had an

opportunity to see the accused through media reports and

informal communications.

19. PW-19, S.I. Ashok Chauhan, has deposed that on

30.03.2013, case was entrusted to him for investigation by SHO

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High Court of H.P.Kangra. As per the orders of learned JMIC, Kangra, he took the

prosecutrix in the company of LC Raksha Devi to District Jail

Dharamshala for TIP and thereafter he handed over the victim to

her father. On 01.04.2013, he obtained police remand of the

accused and took the accused to Medical Officer, CHC, Kangra,

where blood samples of the accused were taken on FTA Card,

which he handed over to MHC. In cross-examination, he denied

that the accused was shown to victim and her nephew prior to TIP.

20. PW-20, Sh. Mohinder Singh, SHO Kangra, has deposed

that on 19.03.2013, he received information about the accused, on

which he arrested the accused from his house. On 20.03.2013, the

accused got the place of crime identified, accordingly, spot map

(Ext. PW-20/B) was prepared and spot was photographed and

thereafter the accused was sent to Judicial custody. In cross-

examination, he denied that the identity of the accused was

disclosed to the prosecutrix and her nephew prior to TIP.

21. PW-22, Sh. Kamaljeet Singh, Investigating Officer of

the case, has deposed that on 30.03.2006, as per the directions of

SHO, Police Station Kangra, he entered into the investigation of

this case. On presentation by the father of the prosecutrix, he

seized a polythene bag, having Jeans and T-Shirt and sealed it in a

parcel, Ext. P-1, vide seizure memo, Ext. PW-1/A. On 31.03.2006,

the prosecutrix came to the police station alongwith her mother

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High Court of H.P.and after verifying the facts from prosecutrix, he moved an

application (Ext. PW-9/A) for her medical examination and

procured MLC, Ext. PW-9/B. On advise of Medical Officer,

gynecological opinion (Ext. PW-10/A) was taken. Medical Officer,

SDH, Kangra handed over to him five parcels having vaginal

swabs, blood and cloth pieces etc. of the prosecutrix, which he

deposited in Malkhana. After procuring MLC of the prosecutrix, he

incorporated Sections 376, 377 and 506 of IPC. On 01.04.2013, on

identification of the prosecutrix, he prepared spot map. On

04.04.2006, he moved an application (Ext. PW-2/B) and obtained

birth certificate of the prosecutrix (Ext. PW-2/A). The police made

search of the accused, but he could not be traced, as such,

untraced report was filed. In cross-examination, he could not tell

as to why he had not got the accused declared proclaimed

offender, when identification of the accused was known to him.

22. Besides aforesaid witnesses, the prosecution has also

examined PW-3, Sh. Mohan Lal, PW-5, Smt. Sunita Devi, PW-11, Dr.

Arvind Kumar Sharma, PW-12, HHC Supinder Kumar, PW-13, ASI

Kuldeep Kumar, PW-14, HHC Kultar Singh, PW-15, HHC Arjun Singh,

PW-16, HC Sampuran Singh, PW-17, SHO Gurdas Ram and PW-21,

HC Vinod Kumar, who are formal witnesses.

23. In the instant case, there is medical evidence with

regard to sexual intercourse and sodomy, because as per MLC

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High Court of H.P.issued by PW-9, prosecutrix’s posterior fourchette had torn and

fresh blood was oozing out of it. Hymen was also torn in the

middle line and its margins were sharp and red and area around it

was tender, even area around anal region was also red and tender

having two posterior linear abrasions. However, as far as identity

of the accused is concerned, the same was not proved, as the

accused was apprehended only when he was arrested in another

case of the similar nature after many years. In these

circumstances, whether the accused was identified rightly by the

prosecutrix or it was just on the basis of suspicion and he was

roped in a false case, is a question to be considered before this

Court. Secondly, the DNA of the accused did not match with the

semen found on the salwar of the prosecutrix, which also makes

the prosecution case doubtful. Now coming to the evidence of the

prosecution, as far as PW-1 is concerned, he was hear say witness,

whereas PW-2 is formal witness. PW-4, though stated that the

accused is the same person who came to his shop on the day of

occurrence, however, it is difficult to say that how after

approximately ten years he can say with certainty that the

accused was the same person who came to his shop, when he has

not seen the accused prior to occurrence.

24. In answer to aforesaid questions/suspicions, this Court

has gone through the material, which has come on record in detail

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High Court of H.P.and finds that the evidence of the prosecutrix that it is the

accused who had committed rape with her and her’s identifying

the accused in jail complex, when test identification parade was

carried out by Sh. Naresh Kumar, shows that she remembered the

accused even after seven years of occurrence and how can she

forget a person, who had committed rape and sodomy with her

during the intervening night of 30.03.2006 and traveled with her

from Kangra to Gaggal, Gaggal to Dharamshala, Dharamshala to

Charan Ghat on foot and thereafter from Charan Ghat to Sheela

Chowk. So, this Court finds that the prosecutrix has rightly

identified the accused. At the same point of time, the son of

shopkeeper, who served tea to the accused, the prosecutrix and

her nephew, has an opportunity to remember the accused, as he

was interrogated by the police with respect to the accused and

definitely he would have remembered the identity of the accused

for the years, thus, there is no doubt that the identity of the

accused is not established. This Court finds that the statements of

the prosecutrix, her nephew, who took tea with the accused and to

whom the accused has given his clothes in a polythene bag, the

statement of shop owner’s son, who served tea to the accused,

the prosecutrix and her nephew, coupled with the statement of Sh.

Naresh Kumar, who got test identification parade conducted,

leaves no doubt with respect to the identity of the accused that

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High Court of H.P.the accused was the same person who had committed the crime.

Further, the medical evidence of the prosecutrix clearly proves the

guilt of the accused beyond the shadow of reasonable doubt, as

the statement of the prosecutrix is wholly reliable, believable and

trustworthy, even otherwise also she identified the accused. The

medical evidence shows that the accused has committed rape, as

well as unnatural offence with the prosecutrix, who was only

weighing 20 kgs and was not fully development at that time and

her age was only 12 years. It is clear from the record that the

accused allured the prosecutrix, made her believe that he is her

relative and he will drop her in his vehicle, as he is having two

vehicles, took the prosecutrix with him towards Gaggal and from

Gaggal to Dharamshala, Dharamshala to Charan Ghat and finally

to a place Sheela Chowk, where in the field, during the night

hours, he has committed unnatural sex and rape with the little girl

and left her there on the pretext that he is going to bring a blanket

and thereafter remained underground for many years. The clear

cut testimony of the prosecution witnesses has led to no other

conclusion, but the one that it is that accused who had committed

the offence. This Court has also taken into consideration the fact

that the case is quite old and now sufficient time has elapsed, as

also the sentence awarded to the accused and after going through

the statements of the prosecution witnesses, medical evidence, as

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High Court of H.P.well as act of the accused, this Court finds that the prosecution

has proved the guilt of the accused beyond the shadow of

reasonable doubt and the sentence awarded to the accused is also

not required to be interfered with, as the same has been awarded

after correctly appreciating the circumstances which have come

on record.

25. So, in the given facts and circumstances of the case,

the present appeal, which sans merit, deserves dismissal and is

accordingly dismissed. Consequently, the appeal, so also pending

application(s), if any, stands disposed of.

(Chander Bhusan Barowalia )

Judge

July 25, 2019

(raman)

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