HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 615 of 2002 Reserved on: 8.4.2010 Decided on: 11.5.2010 Parkash Chand and another ……… Appellants. Versus State of H.P. ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the Appellants: Mr.N.K. Thakur, Advocate. For the respondent: Mr.Vikas Rathour, Deputy Advocate General, and Mr.J.S. Guleria, Assistant Advocate General. V.K. Ahuja, J.: This is an appeal filed by the appellants under Section 374 of the Cr.P.C. against the judgment of the learned Sessions Judge, Chamba, dated 5.10.2002, vide which the appellants were held guilty and were sentenced as under: Section 376 IPC Appellant Parkash Chand was sentenced to undergo imprisonment for seven years and a fine of Rs.10,000/-. In default of payment of fine, the convict Parkash Chand shall further undergo simple imprisonment for a period of one year. Section 506 read with Section 34 of the IPC Appellants Parkash Chand and Chaknu Devi were sentenced to undergo simple imprisonment of two years and fine of Rs.5,000/- each and in default of payment of fine amount, the convict shall further undergo simple imprisonment for a period of six months each. ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - 2. Briefly stated the facts of the case are that on 22.7.2000, the prosecutrix PW-2 Jhanjo, aged about 19 years, met Thakur Dass, who is related to her as a brother. The parents of the prosecutrix were already dead and she was living with her uncle (Taya) Loki Nand. She alleged that sometime ago, the appellant Parkash Chand committed rape with her and also gave her a threat not to disclose this fact to any person. When her abdomen started bulging out, her brother in relation Thakur Dass and uncle Loki Nand asked her about it and she admitted having been raped by the appellant by giving her a threat with knife. Therefore, she kept mum because of fear and thereafter Thakur Dass brought her to the District Courts and an application in writing was submitted to the Deputy Commissioner, Chamba, who forwarded the case to the SHO for necessary action. On this report, a case was registered and during investigation, the birth certificate of the prosecutrix was taken in possession. She was medically examined and on conclusion of the investigation, the challan was filed before the learned Judicial Magistrate Ist Class, who committed the case to the court of the learned Sessions Judge, who tried the appellants leading to their conviction and sentence as detailed above. 3. I have heard the learned counsel for the appellants and the learned Assistant Advocate General for the respondent and have gone through the record of the case. 4. The submissions made by the learned counsel for the appellants were that there has been considerable delay in lodging of the FIR, which has not been satisfactorily explained by the prosecution. It was - 3 - submitted that according to the medical opinion, the prosecutrix was habitual of sexual intercourse, the pregnancy was of 8 months and since no report was lodged with promptitude, it proves fatal to the prosecution story, which cannot be relied upon. It was also submitted that there was contradiction in regard to the fact as to when the prosecutrix told the occurrence to Thakur Dass, her brother, who accompanied her or told the occurrence to one Rattan Chand. It was also submitted that the occurrence had taken place in December, 1999 and she was staying with her uncle (Taya) & aunt (Tai), but the aunt (Tai) learnt about the occurrence in March, 2000 and she kept silent and subsequently when the pregnancy became known, she disclosed this fact and the report was lodged. Thus, it was submitted that the story put forth by the prosecutrix was improbable. Her age was above 16 years and the silence on her part for a considerable time is just to blackmail the appellant Parkash Chand and as such the prosecution had miserably failed to prove its case. 5. For better appreciation of the evidence, the evidence led by the prosecution shall be discussed below under separate heads. A. Evidence in regard to the age: 6. The prosecutrix as PW-2 had given her date of birth as 12.4.1982, meaning thereby that on 22.7.2000, when the report was lodged with the police, she had attained the age of 18 years. However, the occurrence has been alleged to have taken place in the month of December, 1999, when she was of the age of above 17 years. PW-3 Hardei had also stated - 4 - about the date of birth of the prosecutrix as 12.4.1982 and she denied that the prosecutrix is aged about 21 years at present. PW-10 Dharam Chand, Secretary, Gram Panchayat, had issued the birth certificate of the prosecutrix as per the entries in Pariwar Register, the copy of which is Ext.PJ and her date of birth was recorded as 12.4.1982. The entries in the Pariwar Register are made on the basis of births and deaths register and until and unless the entries from the birth register are proved according to law, the date of birth entry in the Pariwar Register cannot be taken as a proof of the age of the prosecutrix. 7. It follows from the above discussion that there is no cogent and reliable evidence led on record to prove that the age of the prosecutrix was less than 16 years at the time of commission of the offence. In view of the evidence led by the prosecution, it can be inferred that the age of the prosecution was in between 17-18 years. However, that question is not very material because no plea has been taken by the appellants, even in the alternative, that this sexual act was committed with the prosecutrix with consent and, therefore, the question of age is not very material since it cannot be said that she was a consenting party to the sexual act committed by the appellant. B. Direct evidence: 8. PW-2 prosecutrix Kumari ‘J’ has stated that she was brought up by her uncle Loki Nand, who is aged about 70 years at present and her aunt, who is about 50 years of age. She stated that she had studied upto 9th class. In the month of December, 1999, she had gone to purchase articles in - 5 - village Dugli, which is at a distance of about 2 kms. from her village. On 5.12.199, when she was coming back from village Dugli to her village with household articles at about 5/6 p.m. and she had covered a distance of 1 km. from village Dugli, accused present in the court met her on the way. The accused is also a resident of her village, who is related to her as brother in village relation. He caught hold of her, started dragging her towards the lonely place in the bushes on the upper side of the path and forcibly opened her salwar and committed sexual intercourse with her. She raised hue and cry but nobody was near the place of occurrence nor there was any locality or house nearby the said place. She further stated that the accused showed her a knife and threatened her to do away with her life in case she disclosed the incident to anybody. She was frightened and ashamed of the act of the accused due to which she did not disclose the aforesaid incident to anybody. She further stated that she went to village Bhoga for few days and then went to the house of her maternal grand mother (nani) where she spent three months and came back to the house of her Taya Loki Nand. After about 3 months of the incident, she came to know that she was pregnant. She further stated that 20 days prior to the visit to the office of the Deputy Commissioner, Chamba, her aunt (Tai) enquired from her as to how her womb was bulging out and she told her as to what had happened. She further informed her that the accused had forcibly committed sexual intercourse with her 5-6 months earlier when she was coming back from village Dugli to her house after purchasing certain articles. Her aunt sent her to the house of her maternal - 6 - grand mother and maternal uncle. She further stated that her aunt disclosed this incident to Rattan Chand. 9. It is further in the evidence of the prosecutrix PW-2 that her Tai Hardei called her back and a Biradari meeting was called by her maternal uncle Rattan Chand. She was also present in the said meeting. The accused were also called but did not appear. On 9.7.2000, when she was sleeping in the house of her aunt, accused came there and stated that he neither wanted to attend the Biradari meeting nor wanted to go to the court and asked her to accompany him to his house promising that he would keep her as his wife and get the child recorded in the Panchayat record. She accompanied the accused on the advice of her maternal uncle Rattan Chand. She resided in the house of the accused for one day and two nights. However, the accused refused to keep her at his house and his co-accused Chaknu Devi threatened her and turned her out of their house. She requested them not to turn her out as she had no place to go, however, accused Chaknu Devi further threatened her that in case she would go to the court, she would take away her life and then the prosecutrix PW-2 left the house of the accused. On 17.7.2000, she had come to Chamba to get medicines from the hospital. There she met her brother Thakur Dass and on enquiry she disclosed the entire incident of sexual intercourse to him. Then a petition was drafted by a Petition Writer, which is Ext.PA and signatures of Thakur Dass were taken on Ext.PA. Thereafter, they went to the Deputy Commissioner, Chamba, who sent the complaint Ext.PA to the SHO, on which FIR Ext.PB was recorded, which bears her - 7 - signature. She also tendered in evidence her Middle standard examination certificate Ext.PC. She was also got medically examined vide MLC Exts.PC and PD. She was also x-rayed by the doctors. 10. In her cross examination, the prosecutrix stated that she raised cries at that time but the accused had caught hold of her by showing a knife. She admitted to have gone to the house of the accused of her own free will subsequently and the accused gave her assurance that she was his wife. Her Taya had turned her out of his house when she had six months pregnancy. She requested the accused to keep her in his house since her Taya had turned her out of the house. Then she went to the house of her Nani. Nothing was brought in her cross examination to show that she or her Taya, with whom she was living, had any animosity to falsely implicate the accused or had any strained relations whatsoever with the family of the accused persons. 11. The statement of PW-2 Jhanjo, the prosecutrix, finds corroboration from the statement of PW-3 Hardei, her aunt (Tai), who has stated that the prosecutrix was living with them and she came back after spending 3 months in her Nani’s house. She enquired from the prosecutrix as to why her womb was looking somewhat bigger on which she disclosed that when in the month of December, 1999, she had gone to village Dugli for bringing household articles and she was returning back, the accused forcibly committed intercourse with her and threatened her with knife not to disclose the said fact to anybody. Out of fear as well as feeling ashamed, she never disclosed this fact to any person. She - 8 - then sent the prosecutrix to the house of her mother and the pregnancy was of six months at that time. Rattan Chand, who is the maternal uncle of the prosecutrix, visited their house and she disclosed the entire episode of forcible intercourse by the accused with the prosecutrix and asked him to solve the problem. Then he asked her to call back the prosecutrix from her grand mother’s house. Rattan Chand was asked to call a Biradari meeting but the accused did not attend the said meeting. Later on, he learnt that the accused Parkash Chand had taken the prosecutrix to his house to keep her as his wife and to keep the unborn child but subsequently the accused turned out the prosecutrix and also threatened her to take away her life in case she disclosed the incident to anybody. Her statement also goes unrebutted since nothing could be extracted from her so as to hold that she deposed falsely or had any enmity with the accused person. 12. These statements further stand corroborated from the statement of PW-1 Thakur Dass, who met the prosecutrix and the prosecutrix disclosed her the facts and he took her to the Deputy Commissioner, Chamba, submitted an application Ext.PA on the basis of which the FIR Ext.PB was recorded. He admitted that the uncle (Taya) of the prosecutrix is alive but no report was lodged by the uncle of the prosecutrix. He admitted that the prosecutrix used to meet her off and on but never disclosed him the incident. However, there is nothing on the record to show as to how much time earlier the prosecutrix had met him. He also stated that the prosecutrix stayed at the house of accused Parkash Chand for one day and two nights after the incident - 9 - and was turned out by the accused from his house. There is nothing in his cross examination to show that he has deposed falsely or had any enmity with the accused. 13. These statements further find corroboration from the statement of PW-4 Rattan Chand, who stated that on 5.7.2000, the prosecutrix came to his house and he enquired from her as to how her womb was abnormal on which she disclosed that in the month of December, 1999, the accused committed sexual intercourse forcibly with her when she was coming back from village Dugli to her village Bhoga after purchasing household articles. She also disclosed that the accused, with the help of knife, threatened her not to disclose the incident to anybody. On 7.7.2000, he had come to her house in village Bhoga and told this fact to Member Panchayat Balo Ram, who suggested that a Biradari meeting should be called. However, the accused and his family members did not attend the said meeting. He further stated that the accused made a request to him on 9.7.2000, since he was the maternal uncle of the prosecutrix, that he wants the prosecutrix to keep in his house and own the child and it was decided to send the prosecutrix to the house of the accused as his wife. The prosecutrix went there and the accused took her to his house but after spending two nights, turned her out. His cross examination also shows that he has no enmity with the accused to falsely depose as against the accused. C. Evidence in regard to extra judicial confession: 14. PW-4 Rattan Chand has stated that on 9.7.2000, the accused came and requested him with folded hands that since he was the maternal uncle of the prosecutrix and that - 10 - he has committed wrong with her and she has become pregnant, he wants to take the prosecutrix to his house and also wants to take the responsibility of the child. It was decided to send the prosecutrix to the house of the accused as his wife but he turned her out of his house after two nights. PW-5 Sahib Singh has also stated that the accused met him on 9.7.2000, requested him with folded hands for the compromise since he has committed wrong with the prosecutrix and he wants to keep her as his wife and her child as his own. He agreed to send the prosecutrix to the house of the accused persons and the accused took the prosecutrix to his house on the same night. His statement was not shattered in cross examination to show that the accused never confessed before him or that he never agreed to take the prosecutrix or never took the prosecutrix to his house. These statements further find corroboration from the statement of PW-6 Balo Ram, who stated that a Biradari meeting was called, which was attended by several persons, but the accused and his family members did not attend the same. The police came after about 20 days of the said Biradari meeting. These statements further stand corroborated from the statement of PW-3 Hardei that the accused had taken the prosecutrix to his house to keep her as his wife and to keep the unborn child with him and get them recorded in the Panchayat records. 15. From the above discussion of the evidence, it is clear that there is not only the statement of the prosecutrix herself, who disclosed the facts of the rape having been committed by the accused, but this fact also stands established that a Biradari meeting was called, the - 11 - prosecutrix was sent to the house of the accused where she stayed for two nights and the accused also confessed before the above named persons of having committed rape with the prosecutrix and sought to compromise the matter. I have thoroughly perused the statements of these witnesses and there is nothing to show that they have any reason to depose falsely or had any enmity with the accused. The only question which arises for consideration is the delay part which shall be discussed below. 16. Apart from the above, the prosecution has also examined the Medical Officer Dr.Jaswant Singh as PW-8, who medically examined the prosecutrix of having raped by someone 8 months back. In his opinion, sexual intercourse had been done approximately 8 months back. Pregnancy was positive and of about 8 months duration. He issued the MLC Ext.PD. On 18.8.2000, the prosecutrix was again brought and was examined by him and the pregnancy of approximately 36 weeks was detected. There is nothing in the MLC that the prosecutrix was habitual of sexual intercourse. The medical examination of the accused was also conducted by Dr.Dilsher Singh on 12.9.2000, who found that the accused was capable of performing sexual act and of producing a child and he issued an MLC Ext.PQ in this regard. 17. Coming to the submissions made by the learned counsel for the appellants that there has been considerable delay in lodging the FIR, which is fatal to the prosecution story, the learned counsel for the appellants had relied upon the decision in Vijayan versus State of Kerala, (2008) 14 Supreme Court Cases 763. It was submitted by the learned - 12 - counsel for the appellants that the facts of the case are similar to the present facts and as such it would be unsafe to convict the appellant. In that case, the complaint was made by the prosecutrix 7 months after the alleged commission of rape on her by the appellant. At the time of filing of the complaint, the prosecution was carrying a child of 7 months. The prosecutrix explained that initially she had not protested in view of the appellant’s promise to marry her but on appellant’s refusal to her proposal for marriage at the stage of her 7 months pregnancy, she filed the complaint. It was held that the prosecutrix having waited for 7 months for filing the FIR and in the absence of any other supporting evidence, it would be unsafe to convict the appellant wholly on the basis of the testimony of the prosecutrix. 18. The facts of the case mentioned above are distinguishable because the prosecutrix in that case had not protested to the sexual intercourse initially meaning thereby that she may be a consenting party to it. However, subsequently when the appellant refused to marry her and she was having pregnancy of 7 months, she filed the complaint. In the facts and circumstances of the case, their Lordships had held that the delay in lodging the complaint and in the absence of any other supporting evidence, it was unsafe to convict the accused. 19. On the other hand, the learned Assistant Advocate General has relied upon the decision in regard to delay in lodging the FIR in State of Himachal Pradesh versus Shree Kant Shekari, AIR 2004 Supreme Court 4404. In that case, the rape had been committed by the accused who was a - 13 - teacher and the victim was a student of Class 4. He raped her on 28.5.1993 and thereafter also after few days. In September, 1993, the victim stopped going to school. She complained of stomachache to her mother, who took her to the hospital where she learnt that she was pregnant. On enquiry by her mother, the victim disclosed to her mother that her conception was due to sexual intercourse by the accused. After returning to the village, the mother of the victim discussed the matter with her husband and then disclosed the incident to a member of Gram Panchayat, who suggested to report the matter to the police. However, even after learning of this fact in September 1993, the report was lodged on 20.11.1993 and as such there was a delay of about six months in lodging the FIR. However, coming to the delay, the observations made by their Lordships are relevant and are being reproduced below: “…………………Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the Court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so, the mere delay in lodging of first information report does not in any way render prosecution version brittle. These aspects were highlighted - 14 - in Tulshidas Kanolkar v. State of Goa [2003(8) SCC 590].” There Lordships finally observed that the victim has stated that she was afraid of the accused who was her teacher and the threats were given by him to the extent that she would be put to physical harm if she spoke about the incident to anybody. The plea of consent had not been taken at all and it was held that the High Court was wrong in putting the burden on the victim to show that there was no consent. In view of the facts of the case, the conviction was maintained as imposed by the learned trial Court inspite of there being substantial delay in lodging the FIR. It was held that if the court finds 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. 20. Another decision relied upon by the learned Assistant Advocate General was in State of Himachal Pradesh versus Gian Chand, AIR 2001 Supreme Court 2075. In that case, there was a delay of about 4-5 days in lodging the FIR. The rape was committed upon a minor girl by brother of her aunt (Jethani of her mother). It was held that the delay in every case cannot be taken