HIGH COURT OF TRIPURA AGARTALA CRL.A.(J)53 of 2015 Sri [ENTITY], son of late Dibendu Acharjee, resident of West Dewanpasha, P.O. & P.S. Dharmanagar, District : North Tripura Convict-Appellant(s) Versus The [ENTITY] Respondent(s)
For Appellant(s) : Mr. [ENTITY], Adv. For Respondent(s) : Mr. [ENTITY], P.P. Date of hearing : 05.04.2019 Date of delivery of Judgment & Order : 20.0[SECTION].2019 Whether fit for reporting : YES HON'BLE MR. JUSTICE [ENTITY] HON'BLE Mr. JUSTICE [ENTITY] Judgment & Order ([ENTITY] J) The appellant, [ENTITY] was charged for
committing rape of a minor girl [hereinafter referred to as the victim for protecting her identity] under [SECTION] of the [ACT] and he was separately charged for committing offence of aggravated penetrative sexual assault under [SECTION] of the [ACT], hereinafter, referred to as the [ACT]. By the judgment dated 14.07.2015 delivered in [CASE NUMBER] by the Special Judge, North Tripura, Dharmanagar, he was convicted under [SECTION] of the [ACT] and under [SECTION] of the [ACT].
2. Pursuant to the said conviction, the appellant has been sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs.2000/- with default stipulation under [SECTION] of the [ACT] but no separate sentence has been awarded under [SECTION] of the [ACT] in view of the provision of [SECTION] of the [ACT] which provides that when for the same offence one accused is convicted under any Section of the [ACT] and simultaneously under any Section of the [ACT], then, the sentence be imposed under the Section which carries greater degree of punishment on the accused person. The said judgment and order of conviction and sentence are questioned in this appeal.
3. The prosecution against the appellant has been launched when the Officer-in-Charge Dharmanagar Police Station, Dharmanagar received a written complaint [Exbts.2, 8 & 10] from one [ENTITY] [PW-2] stating that his daughter [the victim] who was aged about sixteen years two months had been raped by the appellant sometime in the end of the month of Baisakha of 1420 BS taking the advantage of his and his wife's absence from their house. But the family members could not sense anything about the incident for long, but on observing the changing physical condition of their daughter, they enquired when the victim stated the name of the accused who had forcible intercourse with her. The victim had also stated that the appellant threatened the victim that if anything is disclosed, she would be killed or driven away from the village.
4. On the day of filing of the said complaint i.e. on 18.12.2014, according to the informant, his daughter was eight months pregnant. Based on the said complaint, [CASE NUMBER] under [SECTION] was registered and taken up for investigation. After the investigation was complete, the final police report was submitted in the Special Court (for the [ACT]) sending up the appellant to face the trial. The Special Court framed the charge as stated, to which the appellant pleaded innocence and claimed for trial.
5. In order to substantiate the charge, the prosecution adduced as many as twelve witnesses including the victim [PW-1] and introduced nine documentary evidence including the medical examination report of sexual assault [Exbt.11], medical report for age determination [Exbt.[SECTION]] and pupilage certificate [Exbt.5]. After the prosecution evidence was recorded, the appellant was examined under [SECTION] of the [ACT] when he reiterated his plea of innocence and stated that he has committed any offence and the evidence are all false. That apart, he has stated that the victim was in association with unknown young boys and he had informed that conduct to his father [PW-2] and for that she became angry and filed a false case against her. Thereafter, having appreciated the evidence, the appellant was convicted under [SECTION] of the [ACT] and [SECTION] of the [ACT] and sentenced, as stated.
[SECTION]. Mr. [ENTITY], learned counsel appearing for the appellant has submitted that the trial court while returning the finding of conviction has perversely observed that the charge of rape against the accused [[ENTITY]] stood conclusively established by clear, cogent and convincing evidence. According to Mr. [ENTITY], learned counsel, the age of the victim has not been established for purpose of determining whether the victim was below eighteen years of age at the time of alleged occurrence by legal evidence. Further, according to Mr. [ENTITY], learned counsel the victim was more than eighteen years of age and she had reached the consenting age.
7. Mr. [ENTITY], learned counsel has submitted that from the examination report [Exbt.[SECTION]] it has surfaced clearly that all permanent teeth of the victim had erupted fully except the third molar teeth. Mr. [ENTITY], learned counsel by producing a permanent teeth chart from an undisclosed source has contended that if all the teeth are erupted, the age of the victim would be more than eighteen years.
8. Having read the evidence, Mr. [ENTITY], learned counsel has further submitted that no DNA profiling was carried out to identify the paternity of the baby. That apart, Mr. [ENTITY], learned counsel has stated that whatever the age as determined by a dental surgeon, is subject to a variation of two years and as such, no definite conclusion can be drawn from the evidence that the victim was below eighteen years of age and as such, the benefit should go to the appellant. In this regard, Mr. [ENTITY], learned counsel has referred to the evidence of PW-7, Dr. [ENTITY], the dental surgeon [in the cross-examination].
9. In support of age, except the medical report for determination of age, the prosecution has introduced the school/pupilage certificate [Exbt.5]. No statutory certificate of birth as issued by the registrar of births and death has not been collected by any person for production of the same in the trial. Mr. [ENTITY], learned counsel has therefore submitted that the content of the school certificate is in-admissible in the evidence, unless, the primary source is disclosed. The person being competent who made such disclosure, has to give evidence for vouching the fact of birth. That apart, Mr. [ENTITY], learned counsel has submitted that after eight months from the date of occurrence, the information was lodged in the police station by PW-2 framing the appellant and there is no whisper why the victim or her family members remained silent for five months as they have claimed that after three months of pregnancy, the victim informed the appellant about the said pregnancy. In support of his contention, Mr. [ENTITY], learned counsel has referred a few decisions. In [ENTITY] Sahu versus State of Bihar reported in 2001 Cri.(L.J.)1035, the Patna High Court has observed as follows :
"Admittedly, she had pregnancy of [SECTION] to 7 months when abortion was done. It does not look probable that the mother of the girl could not know about the pregnancy of [SECTION] to 7 months of her daughter. This throws grave doubt on her testimony and the case of prosecution. She has said in her cross-examination that she had severe pain in her stomach and she was weeping and her mother enquired from her and she (P.W. 3) told her that [ENTITY] had administered tablet to her for abortion of pregnancy. She has further said in her cross- examination that on hearing the sound of her weeping the neighbours had informed her mother but no one had come to her and even after the arrival of her mother no neighbour had come. It is strange that on hearing the sound of weeping of a girl neighbours will not come to see the girl and they will only inform her mother. She had said in her cross-examination that she was bleeding when her mother had arrived and no [ENTITY] or [ENTITY] of the village had been called. It also looks surprising and improbable that a girl will suffer abortion of pregnancy of [SECTION] to 7 months and no [ENTITY] or [ENTITY] or expert hand will be called for her aid. She has also said in her cross- examination that in the morning her sister-in-law ([ENTITY]) came to her and no one had taken her for medical treatment anywhere. It looks strange and highly improbable that a lady who suffers abortion of [SECTION]- 7 months old pregnancy will not be provided medical treatment or medical aid. She has also said in her cross- examination that the child aborted was a male child. This shows that she had a developed pregnancy and the child had taken shape. She has said in her cross- examination that no medical treatment was given to her even after abortion. It does not look probable that after abortion of such a developed pregnancy a lady will not require any medical help. The above facts throw grave doubt on the evidence of P.W. 3 [ENTITY] and the prosecution case."
10. Reliance has also been placed on Sambhu Chakraborty versus The [ENTITY] reported in (2013) 1 TLR 535 where this court had occasion to observe that for non-examination and withholding of the passengers, who were travelling in the said vehicle at the time of seizure, an adverse inference has to be drawn against the prosecution under [SECTION] of the [ACT]. In support of his aforesaid contention, he has placed reliance on a decision of the apex court in Zahira Habibullah Sheikh (5) & Anr. v. State of Gujarat & Ors.,: (200[SECTION]) 3 SCC 374 : (AIR 200[SECTION] SC 13[SECTION]7), wherein the Apex Court has noted, inter alia, that :
"The Court is not empowered under the provisions of the [ACT] to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the Court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference".
Having referred this principle, Mr. [ENTITY], learned counsel has placed before this court that the best evidence such as determination of the paternity of the fetus has been withheld from the court and hence, the adverse inference is bound to be drawn against the prosecution.
11. Finally, Mr. [ENTITY], learned counsel has referred a decision of this court in Ananda Kirti Jamatia versus [ENTITY] reported in (2018) 2 TLR 7[SECTION],where this court has observed in respect of determination of the age based on the pupilage certificate or the school certificate, as follows :
33. In this respect, we may gainfully refer to a decision in Ravinder Singh Gorkhi Vs. State of UP, reported in (200[SECTION]) 5 SCC 584 wherein the Apex Court at para-38 and 39 has held, as under:
"38. The age of a person as recorded in the school register or otherwise may be used for various purposes; namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum, e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of [SECTION] of the [ACT] will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Page 13 of 23 [SECTION] of the [ACT], as in that case the accused may unjustly be convicted.
39. We are, therefore, of the opinion that that until the age of a person is required to be determined in a manner laid down under a statute, different standard of proof should not be adopted. It is no doubt true that the court must strike a balance. In case of a dispute, the court may appreciate the evidence having regard to the facts and circumstance of the case. It would be a duty of the court of law to accord the benefit to a juvenile, provided he is one. To give the same benefit to a person who in fact is not a juvenile may cause injustice to the victim. In this case, the appellant had never been serious in projecting his plea that he on the date of commission of offence was a minor. He made such statement for the first time while he was examined under [SECTION] of the [ACT]."
34. In the decision of [PRECEDENT], represented by [PRECEDENT], the Apex Court has held that the date of birth mentioned in the transfer certificate would have no evidentiary value unless the person who made the entry or who wrote the date of birth is examined. We may refer to para 40 of the said decision [scc.P.395, para 40] which reads as under:
"40. Undoubtedly, the transfer certificate, Ex.P1[SECTION] indicates that the girl's date of birth was 15-[SECTION]-1977. Therefore, even according to the aforesaid certificate, she would be above 1[SECTION] years of age (1[SECTION] years 1 month and 1[SECTION] days) on the date of the alleged incident, i.e., 31-7-1993. The transfer certificate has been issued by a government school and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under [SECTION] of the [ACT]. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined."
[Emphasis added]
12. Mr. [ENTITY], learned counsel has stated that the trial court has failed to make the assessment of the evidence on the touchstone of the dispassionate judicial scrutiny.
13. From the other side, Mr. [ENTITY], learned PP appearing for the State has submitted that if the victim's evidence is straight-forward, cogent and if believed is sufficient to prove the prosecution case and that stood corroborated by medical evidence, it is enough to return the conviction. In this regard, Mr. [ENTITY], learned PP has referred to a decision of the apex court in [PRECEDENT] where the apex court had occasion to observe that there is no rule of law that the testimony of a single witness cannot be accepted and the conviction cannot be based on such evidence, if believed. The testimony of a single witness if it is straight forward, cogent and if believed is sufficient to prove the prosecution case. The accused can be convicted on the testimony of such a single witness.
14. Mr. [ENTITY], learned PP has succinctly submitted that our society unfortunately does not have any empathy for a rape victim and that creates the darkness of stigma. The victims cannot come out of the appalling darkness with courage. Unless, contingency becomes so driving that they are compelled to come out either for saving their life or for any other reason the heinous crime of rape is buried. The delay in respect of launching the prosecution relating to the offence of murder cannot be given much weightage unless, it is shown that such delay was deliberate and for any other purpose or the delay has caused great prejudice to the accused.
15. Mr. [ENTITY], learned PP has also referred a decision of the apex court in [PRECEDENT] The Accused reported in [PRECEDENT] to observe that the parents of the rape victim would adversely be chary to such an incident gaining publicity because it would have serious implications for reputation of their family and also on the married life of the victim. In such perspective, the apex court has observed as follows:
"15. We may however state that a mere delay in lodging the FIR cannot be a ground by itself for throwing the entire prosecution case overboard. The Court has to seek an explanation for delay and test the truthfulness and plausibility of the reason assigned. If the delay is explained to the satisfaction of the Court it cannot be counted against the prosecution. In State of Rajasthan v. Narayan: 1992CriLJ3[SECTION]55 this Court observed :
"True it is that the complaint was lodged two days later but as stated earlier Indian society being what it is the victims of such a crime ordinarily consult relatives and are hesitant to approach the police since it involves the question of morality and chastity of a married woman. A woman and her relatives have to struggle with several situations before deciding to approach the police "
1[SECTION]. In State of Punjab v. Gurmit Singh and Ors.: (199[SECTION]) 2 SCC 384, this Court has held :
"The courts cannot overlook the fact that in sexual offence delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged."
[Emphasis added]
1[SECTION]. Mr. [ENTITY], learned PP appearing for the State has submitted that from the complaint [PW-2] itself it appears that immediately after the disclosure made by the victim, the complaint [Exbts.2, 8 & 10] was lodged. Therefore, there is no delay from the date of knowledge of PW-2.
17. Mr. [ENTITY], learned PP has submitted, based on principle laid down in [PRECEDENT], that if the evidence of the prosecutrix [the victim] when read as a whole, is found to be full of discrepancies and cannot inspire confidence, no conviction can be returned on the basis of such testimony. The gaps in the evidence, or discrepancies in the evidence or the other circumstances if the testimony makes highly unreliable, and its probative value in most of the cases cannot be reinforced by corroboration.
Here is a case where no such elements are there in the evidence of the victim [PW-1].
18. Conversely, it is settled law that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice of the perpetrator. There is no rule that her testimony cannot be acted without corroboration in material particulars. Her testimony has to be appreciated on the principle of probabilities, just as the testimony of any other witness. A high degree of probability having been shown to exist can instill confidence of the court. However, if the court of facts may find it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance is short of corroboration. Reference may be made to a long list of decisions, some of which are:
[PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], State of Rajasthan versus Narayan : (1992) 3 SCC [SECTION]15, Karnel Singh versus State of Madhya Pradesh:
(1995) 5 SCC 518, Bodhisattwa Gautam versus Subhra Chakraborty: (199[SECTION]) 1 SCC 490 & State of Punjab v. Gurmit Singh and Ors.: (199[SECTION]) 2 SCC 384. We may quote from the last referred of the above decisions, where the rule for appreciating the evidence of the prosecutrix in such cases has been succinctly summed up in the following words:
" If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
19. For purpose of appreciating the submissions as advanced by the learned counsel for the parties it would be appropriate to make a meaningful survey of the records of evidence.
20. PW-1 [the victim] has stated in the trial that she cannot remember the exact date of occurrence. But she has stated that it occurred on a day in the last part of the month of last Baishaka. She was doing household works in the kitchen of their house. It was about 10/11'o clock in the morning. All on a sudden the accused, [ENTITY] of their village appeared in the kitchen and caught hold of her. He slapped her and pushed her on the ground. Thereafter, he undressed her by force. He had also disrobed himself and penetrated his genital organ into her genital organ and thus committed rape upon her. He warned her to abstain herself from disclosing the incident to anybody. He threatened her that if she revealed to her parents or anybody, he would kill her. She has stated that she did not tell it to anybody in fear of the accused. When she became pregnant and symptoms of her pregnancy became visible, her mother asked her about who made her pregnant. She has told in the trial that she revealed everything to her mother. Thereafter, her father lodged a complaint at the police station against the accused. The police produced her before the Magistrate where her statement was recorded by the said officer. She signed her statement after the statement was recorded. After the case was registered, she was taken for medical examination and treatment. Medical examination was carried out at Dharmanagar hospital. She has further submitted in the trial that she read in Dewanpassa JB School, nearby their house from class-I to class- V. Thereafter, she read in Sribhumi H.S. School upto class-VIII and discontinued her study after class-VIII. She has stated further in the trial that she gave birth to a daughter who died 1 months after her birth. She identified the accused in the dock. She has categorically stated that at the time of occurrence she was only 15 years of old.
In the cross-examination, PW-1 [the victim] has stated that the accused was a married man and he has children. He works in a grocery shop. He used to attend his work at 10/11 am and return home after 5 pm. His wife, [ENTITY], lived in the adjoining house. The house of the accused is situated at 10/12 cubits away from their house. She has asserted that even though, she told the Magistrate that the accused undressed her and disrobed himself and thereafter, he penetrated his sexual organ into her genital organ but no such statement was found recorded under [SECTION] of the [ACT] After appearing in their kitchen, the accused was slapped her but before this the accused had never done anything wrong to her. But she denied the suggestion that many young men used to visit their house. She denied the suggestion that at the time of occurrence, she was nineteen years old. To a query by the court, the accused has stated that the accused used to visit their house against her will. He has touched her body several times and wanted to have physical relationship with her. But she never allowed him to have such relationship. After about eight months of the occurrence when she told her parents about the fact, her father informed the matter to the uncle of the accused namely [ENTITY]. The accused became furious and attacked them in a group and throttled her. He had a lathi in his hand with which he tried to assault her. She denied the suggestion that the accused had falsely implicated in the case.
21. PW-2, Sri [ENTITY] who is the informant has stated that the accused raped his sixteen years old daughter at the end of the month of Baishaka of 1421 BS. His daughter first disclosed the matter to her mother that she was raped by the accused, when she became pregnant. The matter was also informed to Dewanpassa Gram Panchayat, but they advised PW-2 to take recourse of law. As a result of the rape committed on her, she became pregnant and had given birth of a girl child. The police seized the school certificate of his daughter which was issued from Dewanpassa JB School where his daughter used to read from class-I to class-V. In the cross examination, he has stated that his wife came to know about the occurrence when the period of her daughter was missed after 2/3 months of the occurrence. Her mother then told him about the occurrence. Someone of their village informed the police about that occurrence. When the police visited their house, he got the complaint written and lodged it with the police officer in their house. In the cross-examination, PW-2 has also stated as follows:
"When the matter was reported to [ENTITY], Panchayat Member, the accused and many other in a group came to my house and wanted to know from us as to why the accused was implicated in this case. We are socially oustracised in our village. It is not a fact that due to false implication of the accused on charge of rape the society has oustracised our family. It is not a fact that my daughter was 19 years old at the time of occurrence. It is not a fact that to hide the actual age of my daughter I have not given her birth certificate to police. It is not a fact that I have filed a false case against the accused. It is not a fact that accused did not commit rape on my daughter. It is not a fact that the accused is not responsible for pregnancy of my daughter."
22. PW-3, Smt. [ENTITY] is the mother of the victim has stated that taking the advantage of her and her husband's absence, the accused who is a neighbour raped her daughter. Seeing her inflated belly, she asked her what had happened to her. In reply, she had told to PW-3 that she became pregnant and she told her that the accused committed rape upon her and in fear of the accused, she did not tell it to her. Immediately, she informed her husband and thereafter, they informed [ENTITY], Panchayat Member and sought her advice. He advised to take recourse of law and accordingly, the complaint was filed by her husband [PW-2].
In the cross-examination, she has stated that she has explained everything to the police officer. She denied the suggestion that the accused never warned her daughter and requested her to abstain from attending street-side gathering outside his house. She denied such suggestion that for that reason, the accused has been falsely implicated in a case of rape by her daughter. PW-3 has denied that the accused was not responsible for pregnancy of her daughter or she further denied the suggestion that at the time of occurrence, her daughter was nineteen years old.
23. PW-4, Smt. [ENTITY] is a witness from the neighbourhood. She has categorically stated as follows :
"Accused [ENTITY] told me that [the name withheld for protecting her identity] was pregnant for 3 months. For knowing the truth I sent my daughter [ENTITY] to [the name withheld for protecting her identity] [the name withheld for protecting her identity] told [ENTITY] that she was having her period and she was not pregnant. After about 8/9 months the symptoms of her pregnancy became visible. I saw her inflated belly. Then I asked [the name withheld for protecting her identity] as to who caused her pregnancy. She told me that accused [ENTITY] caused her pregnancy. A daughter was born to her. After about 1 months of her birth, the daughter died."
In the cross-examination, PW-4 has however stated that the accused told her that he had known about the pregnancy from the villagers. She has also stated that the victim did not tell her that the accused raped her. She has in the cross-examination stated that villagers came to know about her pregnancy when the victim was pregnant for three months. This witness was not re-examined by the prosecution.
24. PW-5, Smt. [ENTITY], the daughter of PW-4 has stated in the trial that the victim was known to her. When the accused told her mother that the victim was pregnant, her mother sent her to the victim for verifying the truth. She met the victim, but the victims stated that she was having periods. Subsequently, when the sign of pregnancy became visible, everybody in the village came to know about her pregnancy. The victim told her mother that the accused caused her pregnant. Subsequently, a daughter was born to the victim and the daughter died a month or above after her birth. In the cross- examination, she has also stated that the victim did not make any allegation against anybody.
25. PW-[SECTION], Sri [ENTITY] is the seizure witness of the school certificate which was seized by preparing a seizure list [Exbt.4]. He has identified the school certificate [Exbt.5].
2[SECTION]. PW-7, Sri [ENTITY] is a dental surgeon, posted in the Dharmanagar hospital on 20.12.2014 when he carried out the age- determination test of the victim. According to his opinion, she was sixteen years of age subject to maximum one year variation. However, in the cross-examination, he has stated that age determined by the dental surgeon may be subject to variation of two years. But he has categorically denied that the victim was more than eighteen years of age.
27. PW-8, Sri [ENTITY] is a Medical Officer posted in Dharmanagar hospital on 29.12.2014. When he conducted the ultra sonography of the victim to determine as to whether she was pregnant, it was found that she was carrying pregnancy of 32 weeks one day and the expected date of delivery was 22.02.2015. The report was accordingly prepared and that report [Exbt.7] has been admitted in the evidence by PW-8.
28. PW-9, Sri [ENTITY] is the in-Charge, Officer-in- Charge of Dharmanagar police station on 18.12.2014 and he registered the Dharmanagar P.S. Case No.130/2014 under [SECTION] of the [ACT] and [SECTION] and [SECTION] of the [ACT].
29. PW-10, Smt. [ENTITY] has stated that she was endorsed the investigation of Dharmanagar P.S. Case No.130/2014 and she has narrated how she conducted the investigation including sending the victim for recording her statement under [SECTION] of the [ACT] She has also prepared a site map of the place of occurrence. She has admitted in the cross-examination that during the investigation she did not come across any evidentiary materials to the effect that the victim was assaulted by the accused by lathi after the case was filed. But she has denied that the father of the victim knew about the occurrence two months before lodging of the FIR. She denied that the victim at the time of occurrence was nineteen years of age.
30. PW-11, [ENTITY] is a scribe who wrote the ejahar at the dictation of PW-2.
31. PW-12, Dr. [ENTITY] examined the victim medically and found her hymen was torn but there was no mark of external injury either in her genital part or any part of her body. He had prepared the report [Exbt.11]. In the cross-examination, he has stated that hymen may be torn due to some other reasons, beyond rape. In the school certificate [Exbt.5] the date of birth of the victim is recorded as 1[SECTION].09.1999. About the age determination report [Exbt.[SECTION]] sufficient details are provided. The report of ultrasonography clearly shows that the fetus was of 32 weeks 1 day. Her age is recorded in the report [Exbt.[SECTION]] as 1[SECTION] years. The medical examination report for the sexual assault [Exbt.11] is perused by this court where the statement of the victim has been recorded to have stated that she was raped by the accused in her house in absence of her parents. That apart, the doctor opined that the hymen was found torn. In the statement recorded under [SECTION] of the [ACT], the victim has categorically given the description how she was subjected to the intercourse under criminal force and before the occurrence how the accused tried to sexually abuse her. But out of fear as the accused had threatened her, she did not reveal the incident to anyone.
32. After scrutinizing the records and appreciating the submissions as advanced by the counsel for the parties, the pertinent questions which falls for response from the court are (i) whether the victim was below the consenting age or majority (ii) whether the sexual intercourse, if the victim is not minor, was consensual (iii) whether the appellant has raped the victim and (iv) whether the delay in filing the complaint can be fatal in this case.
33. Let us first address the question of delay in filing the complaint as raised by the appellant. PW-2 has filed the complaint as it appears without any delay from the day of his knowledge that he acquired from his wife who gathered the knowledge from the victim when she located the signs of pregnancy. On the face of it, there is no delay but whether PW-4 can be believed for the early disclosure as she has stated that the villagers came to know about the pregnancy when the victim was pregnant for 3 months. But PW-4 has categorically stated that the victim denied that she was pregnant. PW-4 was persuaded by the appellant to verify whether the victim was pregnant or not. The statement of PW-4 that the villagers knew when the victim was 3 months pregnant cannot be believed on the face of it as the victim not only to her but even to her daughter [PW-5] denied to have become pregnant.
34. Having appreciated the facts that has surfaced in the evidence and in terms of the observation made in [ENTITY]), it is held that there is a general reluctance to report the sexual offence for prevailing social attitude towards the raped victims. Moreover, the delay has been explained in this case quite reasonably and moreover, there is no evidence to show that there was any parley or manipulation by the victim. Even though, the accused has tried very hard to show that the victim was of easy virtues. The appellant even indicated that as he raised voice and informed her father, she retaliated by framing him in the case. This court is not inclined to accept such theory in the present context.
35. Determination of age of the victim is the main stay of objection in this appeal. In this regard, for the appellant, the decision of the apex court in Ravinder Singh Gorkhi versus State of U.P.:
(200[SECTION]) 5 SCC 584 and [PRECEDENT], represented by Inspector of Police: [PRECEDENT] have been relied. That apart, the decision of this court in Ananda Kirti Jamatia :(2018) 2 TLR 7[SECTION] (supra) is structured on those decisions has been relied for the appellant. The apex court has observed that a court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of [SECTION] of the [ACT] will have to apply the same standard of proving the content. No different standard can be applied in case of an accused in a case of abduction or rape, or similar offence where the victim or the prosecutrix might have consented with the accused. If on the basis of the entry made in the admission register maintained by the school, the judgment of conviction is recorded, the accused might be deprived of his constitutional right under [SECTION] of the [ACT] for fair trial inasmuch as he would not be in a position to question the source of such information, recorded in the register.
It would be the duty of the court, therefore, to verify the age. Even though, the certificate is admissible under [SECTION] of the [ACT] but that admissibility of document would be of much evidentiary value to prove the age "in the absence of the material" on the basis of which the age was recorded.
3[SECTION]. In this case, not only the school certificate, but both the parents have asserted the age of the victim. Even the age as asserted by the parents has been corroborated by the ossification test, as carried out by PW-7. Therefore, it can safely be held that the age of the victim on the day of occurrence was below 18 years. Thus, there is no question of consensual sex. The proof of intercourse is enough to hold that the accused [the appellant herein] has committed the rape on the victim.
37. Now the paramount question whether the accused [the appellant herein] has committed the rape. True it is that the investigating agency committed a serious lap by not carrying out the DNA test by profiling the victim, the appellant and the new born baby for matching their DNA. This court is persuaded to express serious displeasure in respect of the manner in which the investigations was carried out. In the age of Forensic Science, this is the minimal what is expected of the investigating agency. Be that as it may, that cannot be treated as the end of the journey and cannot entail in an acquittal of the appellant. The victim [PW-1] appears to be fully trustworthy. Her evidence is cogent, not affected by any embellishment, rather her truthfulness is explicit on her statement. Even, if the statement as recorded under [SECTION] is taken into consideration by judicial notice, then also it would be apparent that she was consistent from the first instance. The victim has gone through a painful journey and atleast no probable reason has been brought in the record to believe that it was an act of retaliation from the victim. It is only natural that the victim had nothing to get from that relation as the appellant was married and was having his young children. Even, no suggestion was made to the victim from the defence that as the appellant had complained to her father in respect of licentious behaviour, she had implicated the appellant. Only suggestion that has been made to the victim that she was having relation with some young men and the accused cautioned her but she denied such suggestion. It is apparent that the appellant had a close liaison with PW-4. Even, PW-4 did not indicate any such fact in the trial. Even when such suggestion was put to PW-3, she has categorically denied any such suggestion that the accused warned her daughter and requested her from attending such "Adda". So the suggestions are at variance. Even suggestion was made to PW-2. But again, it's a divergent suggestion which was denied. The defence has failed to probabilize such story from the evidence. On the contrary, this court has reasons to believe the evidence of PW-1 as injured witness.
This court does not find any reason to interfere with the impugned judgment of conviction and hence, this appeal stands dismissed with no interference in the sentence.
Send down the LCRs forthwith.
JUDGE JUDGE [ENTITY]