IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 165 of 2010. Judgment reserved on: 24.11.2010. Decided on: 30th November , 2010. ___________________________________________________________ Gumat Ram …. Appellant. Versus State of Himachal Pradesh. ….. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. N.K.Thakur, Advocate. For the respondent : Mr. A.K.Bansal, Addl. Advocate General. _______________________________________________________ SURINDER SINGH,J : 1. The instant appeal has been directed by the appellant against his conviction, passed by the Learned Sessions Judge in Sessions Trial No.37 of 2009 on 23.4.2010, for the offences punishable under Sections 376 and 506 of the Indian Penal Code, whereby he has been sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of ` 20,000/- and in default to further undergo simple imprisonment for Whether reporters of the Local papers are allowed to see the judgment? - 2 - a period of six months for the offence of rape and also to undergo rigorous imprisonment for a period of one year and fine of `5,000/- and in default of payment of fine to further undergo simple imprisonment for a period of three months under Section 506 of the Indian Penal Code. Both the sentences were ordered to run concurrently. 2. The appellant had been in custody w.e.f. 25.2.2009, thus he was held entitled for set off as per provisions of Section 428 of the Code of Criminal Procedure. Learned trial Court also ordered that the amount of fine, if realized, shall be paid to the prosecutrix. 3. In short, the prosecution case, can be stated thus. In the year 2009, the prosecutrix was studying in 7th standard. On 24th February, 2009, there was a ‘Bhandara’(feast) in the village, thus, all the students of her school were relieved around 12 noon. The prosecutrix went to the house of her classmate PW5 Sunaina. It is alleged that around 1 p.m., the appellant, who was married from the same village had also arrived there. He asked the prosecutrix whether she was going to her village. - 3 - On this, the prosecutrix accompanied him. On the way, they set in the Panchayat house. By that time, many school children had passed through. During the conversation, appellant told her that she had talked about her marriage with his friend. He also told her that it was not a safe place for talking and advised her to proceed towards a place known as ‘Badheuli’ and later he followed her and met her near a rivulet, which was a secluded place. Taking advantage of her loneliness, she was raped by him. When she started crying, she was threatened by appellant with dire consequences and also threatened that she would be killed if she disclosed this fact to her parents. 4. On the way to her house, she met with her ‘Bua’ Kala Devi and her sister. On reaching home, she narrated the entire incident to her parents. Her father PW4 Dola Ram went to the father-in-law of the appellant to apprise him about the incident, thereafter informed the police telephonically. 5. Police reached the spot around 9 p.m., statement Ex.PW2/A of the prosecutrix was recorded. A ruqa was sent for registration of the - 4 - case, on the basis of which FIR Ex.PW14/B was formally registered. 6. The appellant was arrested and both appellant and the prosecutrix were got medically examined. 7. On the medical examination of the prosecutrix, vulva area showed slight swelling as per Medico Legal Certificate Ex.PW1/B. She was also referred to the radiological examination for ascertaining the age and as per the opinion, she was opined to be between 13 to 16 years of age. 8. The police also obtained her birth certificate Ex.PW8/A wherein her date of birth was reflected as 27th August, 1994. The appellant was found fit to perform the sexual intercourse. His medico legal certificate was also obtained. 9. During further investigation, the police photographed the place of alleged incident and prepared site plan Ex.PW14/D. The wearing apparels and vaginal swabs of the prosecutrix were taken and sent for forensic examination, but it did not contain any blood and semen stains. Police recorded the statements of the witnesses and - 5 - challan after its completion was presented in the court for the trial of the appellant. 10. The appellant was charge-sheeted for the offences aforesaid, to which he abjured his guilt. To prove its case, prosecution examined its witnesses. The appellant was also examined under Section 313 of the Code of Criminal Procedure. The circumstances which were found attendant upon him were put, but he did not give any satisfactory explanation to it and he simply stated that he did not know, even to a question No. 3 which pertains to rape by the respondent on the prosecutrix. He stated that a fight had taken place between the father of the prosecutrix and his father-in-law and in that connection, he was called in the Police Station and was arrested. He further stated that he did not know as to why this case was registered against him. Further when called upon to enter into his defence, he examined Anuj Sood Pradhan of the Gram Panchayat as DW1 to prove the fact that the appellant bore good moral character. DW2 Ashok Sharma stated that he was aware of every incident, which took place in his - 6 - village. According to him, the ‘Bhandara’ was going on the day of alleged incident, which continued till 5 p.m. He stated that around 10 a.m., there was a quarrel between the father of the prosecutrix and father-in-law of the appellant. He was called by the parties and somebody informed the police telephonically. Police after reaching the spot called the prosecutrix and her statement was recorded, but he could not tell that on the day of alleged incident what had happened from 9 a.m. to 7 p.m. in his village and he was unable to tell as to why the quarrel between the father of the prosecutrix and father-in-law of the appellant had taken place. 11. DW3 Tara Devi is the mother-in-law of the appellant. She stated that there was a feast on 24th February, 2009. The father of the prosecutrix and her husband consumed liquor, thereafter father of the prosecutrix picked up the quarrel. In the evening, the mother of the prosecutrix came with a sickle in her hand to her house and started quarreling with her husband. Her husband made a - 7 - call to the police, but they did not come, in turn, they were called to the Police Station. 12. DW4 Veena Devi, is sister-in-law of the appellant and daughter of DW3 aforesaid. She stated that she was a class fellow of the prosecutrix and the prosecutrix was always talking rubbish about the appellant. She also stated that at about 8/8.30 p.m., there was a quarrel between Dola Ram, his wife and her parents. She did not know the cause of the alleged quarrel. 13. DW5 Seema the wife of the appellant, also made the statement in the similar tone and in cross- examination she stated that she did not want that her husband should remain in jail. 14. At the end of trial, the story propounded by the defence witnesses was disbelieved and while relying upon the statements of the prosecution witnesses, learned trial Court convicted and sentenced the appellant as aforesaid, hence instant appeal by the convict/ appellant. 15. Shri N.K. Thakur, learned counsel for the appellant has forcefully argued that the statement of the prosecutrix does not inspire any confidence. - 8 - There is no witness to corroborate her version. Even the medico legal certificate does not support her case. He also ventilated that there was delay and deliberation in lodging the FIR. He tried to make a point that the evidence on record suggests that there was enmity, ensuing quarrel between the father of the prosecutrix and father-in-law of the appellant, with the result the appellant was implicated in a false case. He also submitted that the statements of the defence witnesses prove that the appellant was not connected with the offences aforesaid in any way and he bore a good moral character. 16. Contra, Shri A.K. Bansal, learned Additional Advocate General supported the impugned judgment of conviction and sentence passed by the learned trial Court. He further argued that in the instant case, the prosecutrix was proved to be less than 16 years of age. She categorically held the appellant responsible for committing rape upon her. Immediately after the incident, she complained to her parents and the parents of the prosecutrix lodged a complaint with the father-in- - 9 - law of the appellant and also with the police. At the time of her medical examination, she alleged rape upon her by the appellant. It is also forcefully argued that the evidence led by the prosecution is cogent, consistent and worth inspiring confidence. The defence story as alleged is unbelievable, as to why the appellant would be implicated in a false case of rape of an unmarried daughter by the father, if there held been a fight with the father-in- law of the convict. Since, the witnesses produced by the appellant in defence are partisan witnesses giving different versions and are of no relevance. 17. I have given my thoughtful consideration to the rival contentions of the parties and have closely and carefully gone through the evidence on record. 18. Prosecutrix is PW2 in the instant case. She fully supported her case and specifically, without mincing her words stated that the appellant forcibly caught hold of her from her hand and took her to ‘Nullah’, kept her school bag on the way. He opened her ‘Salwar’ by opening its string and laid on her and entered his male organ into her private - 10 - part. When she started crying, the appellant threatened her with dire consequences. Thereafter, she put on her Salwar, proceeded towards her house and the appellant went towards the house of his in-laws. On the way, she met with her ‘Bua’ and sister and on reaching home, she made complaint to her parents. The police was informed telephonically. She got recorded her statement, to which she proved Ex.PW2/A. She further stated that she was got medically examined and identified her signatures Ex.PW1/B on the medico legal certificate. She further stated that the police visited the spot of the alleged incident to which she had shown, which was also photographed. 19. The prosecutrix was subjected to a lengthy cross-examination, but nothing material could be extracted. Although, she admitted that there was a quarrel between her father and father-in-law of the appellant in the evening of 24th of February, 2009, her brother-in-law Ram Chand had also came there, but stated that she did not know the appellant prior to the alleged occurrence, but started recognizing him after the sexual assault. She - 11 - denied that the appellant was involved in a false case at the instance of her parents and said Ram Chand. 20. PW3, her mother Hira Mani and PW4 father Dola Ram afforded the corroboration to her statement. They unequivocally stated that their daughter had gone to attend ‘Bhandara’ and on return, she narrated the complete story about the alleged incident to them. In cross-examination, PW3 stated that the prosecutrix was a student of 7th standard at the time of alleged incident, as such, she did not have any proposal for her marriage, but it was the appellant, who asked her for getting her married with his friend. She categorically stated that the quarrel between her husband and father-in-law of the appellant ensued because of the incident of her daughter. She also denied that she had talked to the father of the appellant regarding solemnizing the marriage of her daughter-prosecutrix with the appellant, whereas, the appellant was already married in that village having his children. 21. Even PW4 Dola Ram stated that he had gone to the house of father-in-law of the appellant to - 12 - apprise him in connection with the occurrence and also made a telephonic call to the police. He denied that he had picked up a quarrel under the influence of liquor, as alleged. Further PW5 Sunaina stated after closure of the school, she had come to her house and the prosecutrix also accompanied her. Thereafter she left for her house. 22. On scanning the evidence aforesaid, I did not find that the statement of the prosecutrix is not worth inspiring confidence; rather it bears the ring of truth. Her statement stands fully corroborated by the material evidence on record. PW1 Dr. Kiran though found no signs of struggle, but according to her, no inflammation was seen on the labia minora on close examination and the hymen showed serrated margin. She also stated that there was slight swelling on the vulva region. Although she stated that it was difficult to say on the basis of physical examination whether there was a recent sexual intercourse or not, but further opined that since one finger was admitted with ease into her private part and hymen was serrated, so the - 13 - possibility of sexual intercourse could not be ruled out. 23. Learned counsel for the appellant with reference to the above facts submitted that the vulva area showing slight swelling in the pelvis part could be due to infection. To appreciate his arguments, the statement of the doctor makes it clear that in this case no such infection was noticed at the time of her examination. Then learned counsel for the appellant further referred to the cross-examination of the said doctor that it could be because of itching and irritation and possibility cannot be ruled out that at the age of puberty, the girl gets excited and aforesaid injury could be due to fingering. Pertinently, this suggestion was not put to the prosecutrix. In fact, the alternative possibility of causing the injury is in every case, but when there is a positive evidence with respect to particular injury and is not probablised in defence by putting it to the witness, cannot be taken into consideration. In the instant case, it was not put to her, therefore is of no avail. The prosecutrix has given a vivid account of the incident which took place. Therefore, - 14 - contention of the learned counsel that there was no rape or that the opinion of the doctor also supports his version is devoid of any merit, hence rejected. There is also a corroboration of her statement in material particulars afforded by other witnesses. 24. Further when the appellant was examined under Section 313 of the Code of Criminal Procedure, he did not offer any satisfactory explanation with respect to the allegation of rape or alleged allegation. He simply chose to say that he did not know. It was incumbent upon him to offer a reasonable explanation with respect to the circumstances appearing in the evidence against him, but he pleaded his ignorance, rather adduced the evidence of the interested witnesses to seek favour from them which is of no use. 25. The learned counsel for the appellant also submitted that as per the radiological report, the prosecutrix was proved to be between 13 to 16 years, thus by giving the benefit of two years, she comes more than the age of discretion, therefore, the possibility of consensual intercourse cannot be - 15 - ruled out. This contention is worth rejecting outright for various reasons; firstly, the case of the appellant was not of a consensual sexual intercourse, secondly, even if for the arguments sake she is proved to be more than the age of discretion, still it is a case of rape if it is without her consent and thirdly, the birth certificate Ex.PW8/A of the prosecutrix stands proved, which has been issued under Section 12/ 17 of the Registration of Births and Deaths Act, 1969 and Rule 8 of the Himachal Pradesh Registration of Births and Deaths Rules, 2003, wherein her date of birth has been mentioned as 27th August, 1994, which could not be rebutted in any manner by the appellant. It was also proved by PW8 Mohar Singh, Secretary of the Panchayat, who had also produced the relevant record in the Court which also contained such entries. Thus, on the day of alleged incident, the prosecutrix has been proved comes to be of the age of less than 16 years and a minor girl. Therefore, the ossification report in view of the above looses its importance, which merely an opinion evidence. - 16 - 26. It is further argued by the learned counsel for the appellant that it is borne out from the record that there was enmity inter se the father of the prosecutrix and the father-in-law of the appellant. As already discussed above, it is absolutely clear from the evidence on record that after the alleged incident of rape, the parents of the prosecutrix had gone to the house of the father-in-law of the appellant and made a complaint, thereafter informed police. Defence version is also contradictory. DW2 Ashok Sharma, stated that the aforesaid quarrel between the father of the prosecutrix and the father-in-law of the appellant took place at 10 a.m. when he was called, whereas, DW3 Tara Devi stated that Chinta Devi mother of the prosecutrix came to their house armed with a sickle at 8 p.m. According to DW5 Seema, she was telephonically informed on 25th February, 2009 by her father that Dola Ram PW4 had been quarreling with her father, whereas the facts remained un-shattered that after the alleged incident, the parents of the prosecutrix went to the house of the in-laws of the appellant to make a - 17 - complaint. There might be some exchange of some hot words thereafter, the matter was reported to the police. Thus, the defence evidence was rightly rejected by the learned trial Court. 27. Since, I did not find any contradiction, embellishment and exaggeration in the statement of the prosecutrix, which stands fully corroborated in material particulars on record, as such, the conviction passed by the learned trial Court is legal and valid. Insofar as the sentence is concerned, the learned trial Court has passed the minimum sentence for the aforesaid offences after hearing the appellant and his counsel, which requires no interference. As such, the appeal filed by the appellant sans merit, hence dismissed. 28. Records of the Courts below be returned forthwith. The matter stands disposed of. November 30, 2010. (Surinder Singh), (Pds) Judge.