1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 220 of 2001 Judgment reserved on 7.3.2011 Decided on March 23, 2011 ________________________________________________________________ State of H.P. …Appellant. Versus Rajender Singh & Others …Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. ¹Whether approved for reporting? Yes. For the appellant: Mr.Rajender Dogra, Additional Advocate General, with Mr. Rajender Dogra, Additional Advocate General. For the respondents: Mr. Neel Kamal Sharma, Advocate. Justice R.B. Misra,J. The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of Code of Criminal Procedure against the judgment dated 1.8.2000, passed by Learned Sessions Judge, Mandi, H.P., in Sessions Trial No. 32 of 1997, acquitting the accused- respondents for the offences under Sections 376(2) (g), 452, and 506 read with Section 34 of the Indian Penal Code. 2. The prosecution case is that accused/respondent No.1 sexually assaulted victim / prosecutrix (PW2) in the month of December, 1996 after trespassing into her residential house, when her mother and brother were away from the house. After 15 days of such occurrence, accused-respondent Rajender Singh alongwith co-accused Raghuvir Singh alias Bhuti came 2 again and jointly sexually assaulted victim / prosecutrix, as her mother had gone to Jahu for selling milk and her brother Budhi Ram (PW6) had gone to village Bhambhla in connection with his job. After couple of months when victim / prosecutrix had not come across menstruation, PW.3 (Geeta Devi), the mother of the victim / prosecutrix, being worried enquired her forcibly, then she disclosed the incident. As per narration of the victim / prosecutrix, a report on 21.3.1997, at about 2.40 P.M was lodged at police station, Sarkaghat, District Mandi, stating that in the month of December, 1996, when she was alone in her house, accused Rajender came there in the morning and asked about the whereabouts of her brother and mother and on her telling that her brother had gone to village Bhambla and her mother had gone to Jahu, accused Rajender Singh followed her inside the house and forcibly laid her down on the floor, untied her salwar and committed sexual intercourse on her. However, victim / prosecutrix neither raised hue and cry nor revealed the said act to anyone, as she was afraid that she would be killed. After 15 days, accused Rajender Singh accompanied by his friend, Bhuti again turned up at the house of the prosecutrix, during morning hours, when the mother as well as brother of the victim / prosecutrix had gone away. The victim / prosecutrix was doing the work of sweeping. She was again subjected to sexual intercourse by accused Rajender Singh, followed by his companion namely Bhuti. After sexual assault she became pregnant. When her mother came to know about her pregnancy, on 20.3.1997, the victim / prosecutrix was 3 forced to reveal the truth and thereafter she was taken to police station. 3. After investigation, accused persons were charged for the aforesaid offences and were tried by learned Sessions Judge. 4. In order to prove its case, prosecution examined as many as 14 prosecution witnesses, namely, Dr.Meena Sharma (PW1), Kumari Anita Devi (PW2), Smt. Geeta Devi (PW3), Dr.Ramesh Chanan (PW4), Sh.Som Dutt (PW5), Sh.Budhi Singh (PW6), Sh.Braham Dass (PW7), Dr.Balbir Singh Verma (PW8), Sh.Bishambar Dutt (PW9), Dr.Babita Chandel (PW10), Dr.Rakesh Kumar (PW11), Susheel Kumar (PW12), Dr.Punam Sandhu (PW13) and Sh.Ram Singh (PW14), whereas, the accused through their statements under Section 313 of Cr.P.C., have denied the prosecution case. 5. Dr.Meena Sharma (PW1) examined victim / prosecutrix on 21.4.1997 vide medico legal certificate (Ex.PW1/A) and noticed no external or internal injury on her person, however, had noticed hymen torn which admitted two fingers. After her urine test pregnancy was ruled out. 6. The victim / prosecutrix (PW2), in her endeavour to support the prosecution case, has stated that at the time of alleged occurrence she was 14 years of age but she did not deliver any child as her menstruation returned without any medical aid after about 7 or 8 months. As per testimony of PW2, she was not subjected to sexual intercourse prior to the alleged occurrence. 4 7. Smt.Geeta Devi (PW3) mother of the victim / prosecutrix stated that the victim / prosecutrix was 14 years of age at the time of incident and she usually left her residential house around 6.30 or 7.00 O'clock in the morning and used to return at 11 O'clock. In the month of March, 1997 her daughter did not have menstruation. When there was no menstruation for three months, she asked her daughter about the reasons. As the victim / prosecutrix kept quite she was given beatings with stick, consequently she divulged that she has been asexually assaulted by accused Rajender Singh alongwith Bhuti. Mother of the victim / prosecutrix, after hearing about the episode, rushed to the house of accused Rajender Singh and complained to his mother. PW3 has further stated that mother of accused Rajender Singh promised her to pay 5-7 mounds of wheat and would give `700/- as compensation. 8. Dr.Ramesh Chauhan (PW4) had endorsed an application to Dr.Punam Sandhu vide endorsement (Ex.PW4/A). Dr.Babita Chandel (PW10) has deposed that victim / prosecutrix was referred to her by Dr.Punam Sandhu for ascertaining her dental age, which was found as 14 to 16 years, vide medico legal certificate (Ex.PW10/A). 9. Dr.Rakesh Kumar (PW.11) Radiologist assessed the skeletal age and opined that victim / prosecutrix was 14 ½ and 15 years at the relevant time. Dr.Punam Sandhu (PW13) also examined the victim / prosecutrix on 11.4.1997. According to her, vagina of the victim / prosecutrix admitted one finger and 5 hymen was not intact, she was not habitual of sexual intercourse. In the opinion of Dr.Punam Sandhu (PW13), it cannot be said that whether the prosecutrix had sexual intercourse or not. 10. Dr.Balbir Singh (PW8) examined the accused on 26.3.1997 and found him capable of performing sexual intercourse. 11. Shri Som Dutt (PW5) the husband of elder sister of the victim / prosecutrix, when on 20.3.1996, was present in the house of his in-laws, a lady came there and told his mother-in- law (Geeta Devi) that she should accept 5-6 mounds of wheat and `500-700/- by 5th of the next month, as otherwise, it would be a matter of shame for both the families. PW.5, however, came to know that said lady was the mother of accused Rajender Singh. 12. Shri Budhi Singh (PW6), brother of the victim / prosecutrix, who used to leave his house at 7 or 8 O'clock in the morning, has supported the version of PW3. Sh.Braham Dass (PW7) Gram Vikas Adhikari of Gram Panchayat, Samaila, had prepared certificate Ex.PW7/A, on the basis of the entries made in Pariwar register, indicating that the victim / prosecutrix was born on 1.11.1982. As per testimony of PW7, Pariwar register was prepared in the year 1993 and the date of birth of the victim / prosecutrix was recorded therein on the basis of estimation . 13. Shri Sushil Kumar (PW2) was expected to produce the register of Births and Deaths maintained by the Panchayat 6 of village, Bharnal, but he failed to produce the original register instead he brought Ex.P1, as relevant register could not be traced out. In cross-examination, PW2 has stated that in register Ex.P1, date of birth of the victim / prosecutrix is shown as 21.12.1978 as per entry Ex.DW1/B. 14. Shri Ram Singh, Sub Inspector (PW14) inspected the place of occurrence on 23.3.1997 and prepared the spot map Ex.PW14/A and obtained extract of Pariwar register Ex.PW7/A which was taken into possession vide memo Ex.PW7/B. PW14 also obtained the opinion Ex.PW4/A of the concerned doctor. 15. On analysis of the prosecution witnesses and materials on record, we notice that had the prosecutrix not been scolded and subjected to beating by her mother, she would have not complained to anyone, much less had not implicated the accused persons. One of the doctors opined that the vagina of the victim / prosecutrix admitted one finger, not only that victim was not habitual to sexual intercourse and it could not be said that whether she had undergone sexual intercourse or not. The aspect of obtaining second opinion could not be explained. Likewise, PW10 Dr.Babita Chandel had deposed that the victim / prosecutrix was referred to her by Dr.Punam Sandhu for ascertaining her dental age, which was found 14 to 16 years, whereas Dr.Rakesh Kumar (PW11), on radiological examination, assessed the skeletal age of the victim / prosecutrix between 14 ½ to 15 years. We find that 7 two medical experts who have examined the victim / prosecutrix regarding sexual assault on her, had given different opinion and two doctors have also given different opinion regarding age of the victim / prosecutrix. 16. As per provision of Section 45 of the Indian Evidence Act, a doctor is a medical officer. It is well settled that medical opinion is only an evidence and it is not conclusive and question of relying upon the medical opinion depends upon the facts and circumstances of the case. In view of the decision in Mahmood Versus State of U.P., AIR 2008 515, the medical opinion of medical expert is advisory in character. If one of the medical expert gives one opinion and another doctor gives different opinion on the same fact, it is open to the Court to adopt the view which is more objective or probable. Similarly, if the opinion given by the doctor is not consistent with the probability, the court has no liability to go to the opinions given by the persons who are experts in the particular subject, in view of the observations, in Mahmood's case (supra) and in Anil Rai Versus State of Bihar, (2001) 7 SCC 318 as well as in State of Haryana Versus Bhagirath & Others, (1999) 5 SCC 96. 17. The victim / prosecutrix has not been able to indicate the dates on which she was allegedly assaulted sexually within a short period of 15 days. In view of the testimony of the victim / prosecutrix, she was undergoing period of menstruation when she was sexually assaulted by both the accused on the second occasion. This part of her 8 testimony tends to discredit the testimony of her mother as she has come out with a version that in the month of March 1997, she came to know that victim / prosecutrix was not having menstruation period for the last 3 months. 18. Shri Bhagi, Pradhan of the Panchayat, to whom PW3 Geeta Devi approached for help could not be examined. The testimony of PW3 Geeta Devi, to the effect that mother of the accused-respondent approached her and offered some grains and money, is not believable. As per testimony of victim / prosecutrix when accused Rajender Singh came to her house, he told her that he wanted to have friendship with her. Such version has a material improvement and this part of the version was not mentioned while lodging the report Ex.PW2.A. The victim / prosecutrix has testified that when she was raped for the first time by accused Rajender Singh, there was no bleeding from her private parts and that she had never indulged in sexual intercourse previously. The victim / prosecutrix had made an endeavour to explain that she did not raise any alarm as her house was at a lonely place. She has also stated that neither accused Rajender Singh was known to her nor she disclosed his name to her mother. If the name of the offender was not disclosed by the victim / prosecutrix, then how her mother became aware of the name of either of the accused, is beyond comprehension. Sexual assault could not be believed when victim / prosecutrix kept her hands on her head and the accused closed her mouth with one hand and untied the string of her salwar with the other hand. It is difficult to imagine that 9 an unmarried girl would unwillingly surrender her virtue to the miscreant that too to a person who was stranger to her. It is surprising how a young girl during sexual assault would not offer resistance. It was not the case of the prosecution that while being sexually assaulted she was shown knife or any dangerous weapon. It cannot also be believed that when second time accused Rajender Singh had come with Bhuti and sexually assaulted her, she neither raised hue and cry nor offered any resistance, for the reasons best known to her. She did not also disclose to her mother about the incident earlier and only when her mother asked her after giving beatings, she disclosed the names of the accused persons. 19. Curiously, if the name of the either of the accused was known to the victim / prosecutrix till she was compelled to disclose the facts of the alleged incident to her mother, how the latter was able to ascertain the names of the offenders. 20. While victim / prosecutrix on 5.4.1999 deposed that she was 14 years of age at the relevant time, however, while entering into the witness box she gave her age 17 years. If she was 17 years of age on 5.4.1999, she cannot be 14 years of age at the time of alleged incident. In cross-examination PW2, the victim / prosecutrix, has stated that her brother Budhi Singh being aged 22 years was senior to her by 3-4 years. If it was so, the prosecutrix was aged 18-19 years at the time of her examination as a witness. 21. PW3 Geeta Devi, mother of the victim / prosecutrix, had stated that her husband died about 16 years back i.e in 10 the year 1983 and the victim / prosecutrix was aged about 14 years at the time of the alleged occurrence. While in cross- examination, she deposed that her eldest daughter was aged about 28-29 years and her eldest daughter was 3 years old when the next daughter Kunta took birth. Kunta was followed by Budhi Singh (PW6) after 4 years. The victim / prosecutrix took birth after 4 years of the birth of Budhi Singh. If the age of the eldest daughter of PW3 is taken as 28-29 years, the age of Kunta should be around 25 or 26 years and that Budhi Singh about 21-22 years and that of victim / prosecutrix about 17-18 years on 5.4.1999. 22. From these facts also, age of the victim / prosecutrix was more than 16 years. The Pariwar register Ex.PW.7/A shows the date of birth of the victim / prosecutrix as 1.12.1982, is hardly reliable as it is not based on the original register of Birth. As in view of PW7 Braham Dass, the entries in the Pariwar register were made by way of estimation. More so, relevant register of birth pertaining to the year 1982 has not been produced and another register Ex.P1 was showing the date of birth as 1.12.1978. The prosecution could not prove on the basis of any documentary evidence or through the testimony of prosecution witnesses that age of the victim / prosecutrix, at the time of incident, was less than 16 years. 23. In view of the foregoing analysis, we cannot take that the victim / prosecutrix was less than 16 years of age at the time of alleged incident. 11 24. On analysis of the prosecution witnesses and materials on record, we are of the considered view that the victim-prosecutrix was above 16 years of age at the time of occurrence and she appears to have consented for the sexual interaction with the accused/respondents. The prosecution has not been able to prove its case beyond reasonable doubt. In our considered view, the prosecution has failed to bring home the guilt to the accused and there is no scope of interference in the findings given by learned Sessions Judge. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 25. The bail bonds furnished by the accused/respondent are hereby discharged. (R.B. Misra) Judge March 23, 2011 (Rajiv Sharma) (Purohit) Judge