IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 335 of 2006. Date of decision: October 19, 2009. Mukesh .. Appellant. Versus State of Himachal Pradesh .. Respondent. Coram: The Hon’ble Mr. Justice Surjit Singh, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Appellant: Mr. M.L. Brakta, Advocate. For the Respondent: Mr. P.M. Negi, Deputy Advocate General and Mr. Ramesh Thakur, Assistant Advocate General. Surinder Singh, J (Oral). The appellant was convicted by the learned trial Court under Sections 376, 506 and 452 of the Indian Penal Code and sentenced to undergo the imprisonment under each of the Sections as follows:- Section 376 IPC. Rigorous imprisonment for ten years and to pay a fine of Rs.10,000/-. In default of payment of fine to further undergo rigorous 1 Whether the reporters of Local Papers may be allowed to see the judgment ? Yes. - 2 - imprisonment for a period of six months. Section 452 IPC. Rigorous imprisonment for one year and to pay a fine of Rs.500/-. In default of payment of fine further to undergo rigorous imprisonment for a period of one month. AND Section 506 IPC. Imprisonment for six months. All the sentences were ordered to run concurrently. The benefit of the period already undergone during investigation/trial was ordered to be given. The learned trial Court further ordered for the disbursement of the fine as compensation to the mother of the prosecutrix, if realized. Feeling aggrieved and dissatisfied by the impugned judgment of conviction and sentence in Sessions trial No.20-S/7 of 2005, decided on 11th October, 2006, the instant appeal has been preferred by the appellant. Precisely, the case against the appellant as emerges from the prosecution is that in the year 2004, the prosecutrix was studying in 8th standard. On 27th - 3 - August, 2004 while going to school she had a pain in her stomach. Thus without attending the school she returned to her home. Her mother had gone to work to render a domestic help in the neighbourhood. The prosecutrix was alone in the house. She went to the room to take rest. Around 10.00 a.m. the appellant made his entry into her room where the prosecutrix was sleeping. He bolted the door from inside and committed rape on her. He threatened her with dire consequences if she would reveal about the incident to anyone. The prosecutrix could not put-up any resistance. In the meanwhile, PW-2, Smt. Santosh mother of the prosecutrix knocked at the door, on hearing it appellant made his escape through the window. Smt Santosh asked from the prosecutrix as to what was happening inside, but the prosecutrix did not disclose anything to her. Next day when her father Ashok Kumar (PW-3) returned from his duty, the prosecutrix revealed about the entire incident to her parents. They took her to Police Station and lodged FIR Ext.PW-1/A. The police visited the spot and prepared the site plan. On 29th August, 2004, prosecutrix was got medically examined from PW-4, Dr. Parveen Thakur. Doctor found the vitals of the prosecutrix stable. Menarche at the age of 13 years and P.M.C. was 3-4/30 - 4 - days. The prosecutrix disclosed that she had taken bath and changed the clothes after the alleged incident. There were no marks of violence on any part of the body. The semen and blood was not found present over genitals. On the examination of her private part, the doctor found carunculae myriformis present and the vagina admitted more than two fingers easily and painlessly. The bleeding was present. Posterior commissure was not found injured. The prosecutrix was advised X-ray and dental examination for ascertaining her skeletal age. The doctor also took vaginal smear and slides. Two slides were sent to DDU Hospital for examination and two slides for Chemical Analysis. The report of the Laboratory did not show the presence of any spermatozoa on the vaginal swab. The bonny age of the prosecutrix was assessed between 15-17 years and on dental examination it was opined between 14-16 years. The Medico-Legal Certificate of the prosecutrix is Ext.PW-4/A. The forensic examination confirmed the presence of human blood on the pubic hair of the prosecutrix. During the investigation, the police also took into possession the certificate Ext.PW-6/A from Government Senior Secondary School, Summer Hill - 5 - Shimla with respect to the date of birth of the prosecutrix, which shows her date of birth as 30th January, 1990 which comes to about 15 years on the date of alleged incident. After completing the investigation, the Challan was presented against the appellant for his trial. The appellant was charge-sheeted for the said offences to which he pleaded not guilty. To prove its case the prosecution examined witnesses. The learned trial Court also examined the appellant under Section 313 of the Code of Criminal Procedure. The appellant admitted that the prosecutrix was studying in 8th standard in Government Senior Secondary School, Summer Hill Shimla. Her father was employed in Medical Department in Tehsil Arki from where he used to visit his house at the week end and the mother of the prosecutrix was working in different houses in the neighbourhood. However, he denied the allegations of rape against him. However, he put up the defence that he was having a friendship with the prosecutrix being his neighbour and she had written many letters to him out of which few were preserved by him and tendered in evidence. During the cross-examination of the prosecution witnesses, he admitted his presence in the - 6 - room of the prosecutrix. According to him, he had gone there to ask about her welfare as she was ill but in the meantime her mother came there and objected to his presence and gave beatings to the prosecutrix. Besides examining DW-1 Deepak who according to the appellant used to deliver the letters of the prosecutrix to him, examined himself as his own witness after seeking permission of the court under Section 315 of the Code of Criminal Procedure and also examined DW-2 Dr. Piyush Kapila to prove that in case a woman or a girl admits 2-3 fingers in her vagina the presumption is that she is habituated to sexual intercourse. On examining the evidence produced before it, the learned trial Court held that the prosecutrix was less than 16 years of age and believed the testimony of the prosecutrix, as such, convicted and sentenced the appellant as aforesaid. We have heard the learned counsel for the parties and carefully re-examined the evidence on record. The learned counsel for the appellant submitted that the offence as alleged stands not proved as there were no injuries on the prosecutrix and no spermatozoa was detected and age of the prosecutrix was more than 18 - 7 - years, the evidence at the worst makes it a case of consent. The prosecutrix has fully corroborated her version and no dent could be caused in her cross- examination to disbelieve her. As noted above, the appellant has admitted his presence in the room of the prosecutrix on the day of occurrence. She denied that a conspiracy was hatched to fasten this case on the appellant but he did not spell out what was the malice to implicate him in a false case. The statements of PW-2 and PW-3, the parents of the prosecutrix and PW-4 Dr. Parveen Thakur, lend corroboration to her version. Thus it stands proved that the appellant had committed the sexual intercourse with the prosecutrix. Once this conclusion is arrived at, the age of the prosecutrix becomes relevant. According to the prosecutrix, on the day of the alleged incident she was 10 years old, which is not correct because from the evidence adduced on record at the time of the alleged incident, she was admittedly studying in 8th standard. She could not have been admitted in the school at the age of two years. If she was admitted in the first standard after at least completing five years, her age comes to about 14 years and few months. - 8 - On the day of examination as PW-1 in the Court on 3rd May, 2006 she has given her age as 17 years. The alleged incident had taken place in the year 2004 and according to this, her age also comes to about 15 years. Further, PW-2 and PW-3, the parents of the prosecutrix, stated the age of the prosecutrix as 16 years on the day of their examination in the Court, i.e. 3rd May, 2006 which comes to around 14 years on the day of occurrence. This fact has not been disputed in their cross-examination anywhere. Further, PW-6 Mast Ram has proved the certificate Ext.PW-6/A issued by the Principal, Government Senior Secondary School, Summer Hill Shimla based upon the entries in the school register, showing the date of birth of the prosecutrix as 30th January, 1990. From this entry, her age at the time of the alleged incident also comes to 14 years and few months. The skeletal age of prosecutrix is also found to be 14-16 years of age, which fact too has not been assailed by the appellant. So in view of the aforesaid evidence, we are in agreement with the learned trial Court that on the day of the alleged incident the prosecutrix was less than 16 years, but more than 12 years of age. Once we arrive to - 9 - this conclusion, the defence of love affairs, habituated to intercourse and consent has no relevance. Therefore, in the above circumstances proved on record, the absence of injuries and spermatozoa is also of no consequence. The appellant is proved to have committed the offence charged on the prosecutrix. Thus the conviction of the appellant for the offences charged is upheld. The learned counsel for the appellant prayed for leniency in sentence and argued that the appellant was aged about 23 years at the time of alleged offence and is the only son of his parents. His father had died and he has to look after his aged mother besides his own family. We have examined the above contentions made on behalf of the appellant. Keeping in view the age of the prosecutrix to be more than 12 years and less than 16 years at the time of the alleged incident and also the age of the appellant, we hereby sentence the appellant to undergo rigorous imprisonment for a period of seven years instead of ten years without disturbing the fine for the offence punishable under Section 376 of the Indian Penal Code and the other sentences passed for committing house trespass and criminal intimidation. Thus, order accordingly. Amended warrant be sent by the - 10 - learned trial Court to the Superintendent of Jail concerned. While maintaining the conviction and modifying the sentence as aforesaid; the appeal stands partly allowed. ( Surjit Singh ), Judge. ( Surinder Singh ), Judge. October 19, 2009. (rc)