IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 164 of 2009. Judgment reserved on: 18.10.2010. Decided on: October 25th, 2010. ___________________________________________________________ Padam Lal …. Appellant. Versus State of Himachal Pradesh. ….. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. R.S. Jamalta, Advocate. For the respondent : Mr. A.K.Bansal, Addl. Advocate General. _______________________________________________________ SURINDER SINGH,J : 1. The present appeal has been directed by the appellant against his conviction and sentence passed in Sessions Trial No.29 of 2007 decided on 5th March, 2009 by the learned Sessions Judge, whereby the appellant was sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of `1,000/- under Section 376 of the Indian Penal Code and also rigorous Whether reporters of the Local papers are allowed to see the judgment? - 2 - imprisonment for a period of six months and also to pay a fine of `1,000/- under Section 506 of the Indian Penal Code with default clauses. 2. In nutshell, the prosecution case can be stated thus. (i) PW5 Gopal Singh, father of the prosecutrix was earning his livelihood by doing the wood work in village Brua, a remote village of district Kinnaur. He was a liquor addict. His wife had died in the year 2001 leaving behind the prosecutrix and a son, younger to her. The prosecutrix had left the school when she failed in third standard. She had been looking after the household affairs. (ii) It is alleged that on 18th March, 2007, after preparing the food for the family, the prosecutrix got up, her father noticed some marks of blood on the wooden stool, on which she was sitting and enquired the reason for blood, but she did not say anything, in turn she started weeping. (iii) Thereafter he (PW5) sent for his mother- in-law Smt. Makki Devi, who asked the prosecutrix about the marks of blood. Then, she revealed to her that about 10/11 days ago, she had gone to - 3 - collect the fuel wood from the nearby forest. The appellant, who was a close neighbour and distantly related as NANA to her accompanied her to the forest, where she was raped by him. She was threatened not to disclose it to anyone at the cost of her life. Under this fear, she did not disclose about it to anyone. (iv) After about few days, she was again called by the appellant to his house to take care of the small child and was again raped in his house. (v) On this, Smt. Makki Devi and PW5 Gopal Singh informed PW10 Dewa Singh Up-Pradhan. He told him to report the matter to the police. (vi) On 2nd April, 2007, at about 11.30 a.m., he alongwith prosecutrix went to the Police Station and lodged a report, which culminated into FIR Ex.PW5/A. 3. The police started investigation. On 3rd April, 2007, the prosecutrix was got medically examined from PW2 Dr. Mrs. Anupam Gupta. The doctor found the rupture of hymen at 3 o’clock and 9 o’clock. The ossification test was also conducted. At the relevant time, she was opined to be - 4 - between 12 ½ to 14 ½ years of age. Police took into possession her trouser Ex.P1. The vaginal smears were taken, sealed and sent for forensic examination. On the receipt of the report Ex.PW12/C, PW2 Dr. Mrs. Anupam Gupta opined that the possibility of the sexual intercourse with the prosecutrix could not be ruled out. 4. On the completion of the investigation, the challan was presented in the Court, for the trial of the appellant. 5. Finding a prima-facie case under the aforesaid sections, the appellant was accordingly charge-sheeted, to which he pleaded not guilty and claimed trial. 6. To prove its case, prosecution examined its witnesses and the appellant was also examined under Section 313 of the Code of Criminal Procedure. The circumstances, which were found attendant upon him, were put to him, to which he denied. According to him, the father of the prosecutrix and his elder brother Prem Singh were inimically disposed of against him. There have been - 5 - quarrels between them on account of the land and ‘Challa’ (water channel) dispute. 7. When called upon to enter into his defence, the appellant examined DW1 Bhupinder Singh. He stated that on account of the boundary and water disputes, PW5 Gopal Singh was not pulling on well with the appellant and that in the month of March, 2007 there was a heavy snow fall in the area and it was not possible to go to the nearby forest. 8. The learned trial Court disbelieved the defence raised. Finding the prosecutrix less than 16 years of age and believing her version with respect to the rape, accordingly convicted and sentenced the appellant as aforesaid, which has been challenged in this appeal. 9. Shri R.S. Jamalta, learned counsel for the appellant vehemently argued that enmity inter se the parties’ stands proved, thus false implication of the appellant in this case cannot be ruled out. He further ventilated that the prosecution has failed to prove that the prosecutrix was less than 16 years whereas, it stands established on record that she has been more than 18 years of age and the - 6 - circumstances on record go to show that she was a consenting party. 10. Contra, Shri A.K.Bansal, learned Additional Advocate General supported the impugned judgment of conviction and sentence. He forcefully argued that the prosecutrix in the instant case has been proved to be less than 16 years. He banked upon the ossification report and statement of the prosecutrix with respect to the incident in question, which according to him has duly been supported by the version of her father in material particulars. 11. I have given my thoughtful consideration to the rival contentions of the parties and have closely and carefully reappraised the evidence on record. 12. To prove the age, the prosecution has relied upon (i) ossification report, (ii) entries in Pariwar register with respect to date of birth; and (iii) oral evidence. I shall take up the above evidence turn by turn. (i) PW3 Dr. Ashwani Kumar Radiologist took ski-grams Exts.PW3/A-1 to PW3/A-6 under his supervision. On the basis of stage of epiphysis of bones, he opined that the age of the prosecutrix - 7 - was in the range of 12 ½ to 14 ½ years. He stated that his opinion Ex.PW3/B was based upon the research work of Dr. M.L. Aggarwal and Dr.I.C. Pathak, done on ‘Punjabi girl’ in the year 1957, but admitted that there was no study exclusively for the hilly girls of Himachal Pradesh and also admitted that there might be difference due to the racial factors and nutritional status. In fact, the study of Dr. M.L. Aggarwal and Dr. I.C. Pathak is based upon the study of the girls belonging to the plain areas and not to the hilly girls. The prosecutrix belongs to a tough hilly terrain of Himachal Pradesh, she is a tribal girl belonging to an I.R.D.P. family. The Radiologist has opined that the variations in climatic, dietetic, hereditary and other factors effects the people of the different States of India, therefore, it cannot be reasonably expected to formulate a uniform standard for the determination of the age by the extent of ossification and the union of epiphysis in bones, which was done with respect to the girls belonging to the plain and hot areas, in absence of any other corroborative evidence of an authentic nature. - 8 - (ii) Another piece of evidence to prove the age is entry in the Pariwar register, proved by PW6 Shri Vijay Kumar, Secretary of the Gram Panchayat. The extract of the Pariwar Register Ex.PW6/A depicted the date of birth of the prosecutrix as 20th March, 1994. Said Shri Vijay Kumar frankly conceded that the entry of the birth of the prosecutrix was not found entered in the birth and death register maintained separately, in the Panchayat but the said entry was copied from the previous Pariwar register, which was also not produced. There is no dispute that under the Panchayati Raj Act, the Panchayat is required to maintain the records of births and deaths within its local limits. To maintain such records, the Panchayat is mandated by law to maintain Birth and Death register in prescribed form wherein all births and deaths within the local limits of the Panchayat have to be recorded alongwith the date of birth or death as the case may be. Thus, the primary evidence of date of birth or death of a person is the entry in the said register. Such entry or a certificate based on such entry will undoubtedly - 9 - carry the presumption of truth. Any other record which may be maintained by the Panchayat cannot be a primary evidence of the date of birth or death of the person. For similar reasons, the entry in the Pariwar Register made Ex.PW6/A is not a primary evidence of the date of birth of the prosecutrix. {See also Shyam Kumar v. State of Himachal Pradesh [Latest HLJ 2005 (HP) 1035]}. Further the source of the entry in the Pariwar register Ex.PW6/A is not known, therefore, the certificate aforesaid is of no avail to the prosecution. (iii) The prosecution has further relied upon the statement of the father of the prosecutrix Gopal Singh(PW5) to prove her age. According to him, the prosecutrix was aged about 15 years at the time of alleged incident. Although this statement has not been assailed in his cross-examination, but if examined in the light of the statement of the prosecutrix (PW4) whereby she stated that she had left the school 9/10 years ago when she failed in the third standard. If she had left the school about 10 years ago as aforesaid, then logically it can be concluded that she was admitted in the first - 10 - standard 18 years ago from the date of her examination in the court on 9th June, 2008. Thus, if she was admitted in the school at the age of six years, she comes to be more than 18 years of age, on the day of alleged incident. 13. Therefore, on the above evidence, the prosecutrix in any case has not been proved by leading cogent and reliable evidence that she at the time of alleged incident was less than the age of discretion. Even if she has been proved to be more than the age of discretion, if the sexual act has been committed by the appellant against her will, without her consent and putting her under fear, it falls within the definition of rape, as envisaged in first and second and even third description of Section 375 of the Indian Penal Code. 14. Reverting back to the incident as spoken of by the prosecutrix, despite the fact that she might be more than the age of discretion at the time of incident, the possibility of consensual sexual intercourse has been completely ruled out. The case of the appellant is denial simplicitor. He falls within the prohibited degree, in relationship being - 11 - NANA, though distantly related to the prosecutrix. She testified on oath about the rape having been committed by him, thereafter she was threatened with dire consequences and again about 5/6 days prior to the disclosure to her grand mother, she was called by the appellant to his residence where she was again raped. The contention of the learned counsel for the appellant that the investigating Officer did not prepare the sketch of the room wherein she was allegedly raped, which causes doubt in her version, has no merit to throughout the case on this count, hence deserves to be outrightly rejected. 15. Further the doctor testified the rupture of hymen at 3 O’clock and 9 O’clock which did not form in carunculae which affords corroboration to the version of the prosecutrix about the recent coitus. The bleeding was also noticed on the trouser of the prosecutrix in the report of Chemical Analyst. PW2 Dr. Anupam Gupta found CX DWRV and nulliparous size admitting two fingers. She categorically stated that the possibility of sexual - 12 - intercourse with the prosecutrix cannot be ruled out. 16. PW1 Dr. Venkat Negi found the appellant sexually potent vide observation made in MLC Ex.PW1/B. The prosecutrix testified, in so many words that she was raped by the appellant in the jungle when she had gone to collect the fuel wood, thereafter she was asked not to disclose anything about the incident to any other person, otherwise she would be killed. She further stated that the appellant after about 5/6 days, called her to his house at village Barua to look after small child, who might fall in absence of care. She went there and appellant again committed the rape and on the day when she was cooking the food, her father found the blood on the wooden stool, it was then she revealed everything to her grand- mother about the rape having been committed by the appellant. She also made the statement to the police and corroborated the version during the examination before the trial Court. Though, she admitted that her father and the appellant had frequent quarrels about a parcel of land and the - 13 - elder brother of her father namely Prem Singh had also picked up a quarrel with the appellant with respect to the public tap, but such disputes are not at all convincing to discard the testimony of an unmarried prosecutrix about rape, particularly at the cost of her future that too against a close relative falling in prohibited degree nor any parent would even think of making their unmarried daughter to expose her to such an allegation which could more than reputation and put the honour of family at stake. 17. Learned counsel for the appellant argued that the prosecutrix did not report the matter immediately to any of her family members or to the close relatives and the FIR was lodged after due deliberations, on account of the previous enmity. This argument against the aforesaid background has no basis and is worth rejecting, for the reasons that prosecutrix had lost her mother, there was only her younger brother in the family besides her drunkard father. She did not know how he would react, if the incident is disclosed to him and she might have even felt ashamed of complaining. - 14 - There was also a fear of the appellant, who had threatened her with dire consequences. On noting blood-stains as aforesaid, it was her father, who pressed into service her grand-mother, to find out the reasons, it was then she revealed everything to her. 18. Against the aforesaid background, prosecutrix was not a willing party. She can also neither be said to have consented to sexual act by the appellant nor she could have stated to have freely agreed to submit herself, while in free and unconstrained possession of her physical and moral power. Even not to offer the resistance, her act cannot be said to be voluntary and conscious as the appellant was more than three times older and a strong person. I also do not find any valid reason to falsely implicate the appellant for the offences aforesaid. 19. Further, in the given circumstances, if approached with the rural background of the parties, fear of the father and social stigma, the delay in lodging the FIR is not fatal to the prosecution case. - 15 - 20. Therefore, for the aforesaid reasons, the conviction of the appellant for the offences punishable under Sections 376 and 506 of the Indian Penal Code is upheld. 21. Lastly, learned counsel for the appellant submitted for leniency in sentence on the ground that the appellant belongs to a tribal community, has a family and three minor children to support. Further, he was aged about 54 years at the time of conviction. 22. I have also given my best consideration to these submissions. Admittedly the appellant and the prosecutrix belong to the tribal area of district Kinnaur in Himachal Pradesh. The appellant is NANA of the prosecutrix in distant relationship, but the perusal of the record, particularly the report under Section 173 of the Code of Criminal Procedure shows that earlier also the appellant was convicted and sentenced to undergo imprisonment for a period of eight years for similar offence i.e. commission of rape with a child of 10 ½ years by the learned Sessions Judge on Ist June, 1980 in FIR No.74/80 registered on 10th August, 1980 in Police - 16 - Station Nichar. Therefore, no leniency can be shown to him. Thus the appeal is without any merit, hence dismissed. 23. Send down the records. October 25, 2010. (Surinder Singh), (Pds) Judge.