IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 245/1998 Reserved on: 24.5.2010 Decided on:14.6. 2010 _____________________________________________ State of Himachal Pradesh. …Appellant. Versus Mangat Ram and another. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Deepak Gupta, Judge. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Appellant: Mr. Rajesh Mandhotra, Deputy, Addl. Advocate General. For the Respondents: M/s. Peeyush Verma and Harish Dod, Advocates. ____________________________________________________ Per Rajiv Sharma, J. By way of this appeal, the State is seeking reversal of the judgment dated 5.1.1998 of the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr rendered in Sessions Trial No. 9 of 1995, whereby respondents, who were charged with and tried for offences punishable under sections 376 and 342 of the Indian Penal Code, have been acquitted. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 2. Case of the prosecution, in a nutshell, is that Smt. Sheela Devi, Bua (aunt) of PW-1 Pushpa Devi, is married to accused Chuni Lal. Chuni Lal used to sell Beedi and Cigarettes etc. from his house. Paras Ram (PW-5) sent the prosecutrix to buy Beedi from the house of accused Chuni Lal. She went to the house of accused Chuni Lal, his younger brother Mangat Ram, accused No.1 was standing in the courtyard of the house. The prosecutrix told him that she intended to buy Beedi. Accused No.1 Mangat Ram took her to a room in his house. He bolted the door from inside. She raised hue and cry, however, Mangat Ram gagged her mouth with the help of handkerchief. She was thrown on a cot and thereafter he untied the string of her Salwar and then committed sexual intercourse forcibly. Thereafter, Pushpa Devi returned to her house without purchasing bundle of Beedi. She did not narrate this incident to anybody out of fear. Prosecutrix again went to the house of Chuni Lal to see her Bua, namely, Sheela Devi after five/six days of the first incident. Chuni Lal, respondent No.2, alongwith his wife was sitting in the courtyard of his house. Sheela Devi’s son started weeping inside the room. Sheela Devi went inside the room. Pushpa Devi attempted to depart but Chuni Lal caught hold of her arm and she raised voice for calling her Bua, but she did not respond. Accused Chuni Lal caught hold of her (Pushpa Devi) and took her inside another room. 3 When Pushpa Devi tried to raise alarm, her mouth was gagged by Chuni Lal and thereafter he pushed and threw Pushpa Devi on the floor and then untied the string of her Salwar and then committed rape on her. She went with her father PW-2 Devi Ram to lodge first information report, i.e. Ex.PW-1/A. She was subjected to medical examination on 25.8.1994. Accused were arrested and they were also medically examined by the doctor at Community Health Centre, Kumarsain. The matter was investigated by the police and the challan was put up in the Court after completing codal formalities, under section 207 of the Code of Criminal Procedure. 3. Prosecution examined as many as fifteen witnesses in support of its case. Accused were examined under section 313 of the Code of Criminal Procedure. They have pleaded that they have been implicated falsely. Three witnesses were examined by the accused in their defence. The trial court acquitted the respondents-accused. Hence, this appeal by the State. 4. Mr. Rajesh Mandhotra, learned Deputy Advocate General has strenuously argued that the prosecution has proved its case against the respondents- accused. 5. Mr. Peeyush Verma has supported the judgment of the learned trial court. 4 6. We have heard the learned counsel for the parties and perused the record carefully. 7. PW-1 is Kumari Pushpa Devi (prosecutrix). She has given her age 14 years at the time of incident. According to her, she was sent by her grand-father to bring Beedi from the shop of Mangat Ram. Mangat Ram was present in the shop. He asked her to come inside the shop. She entered inside. Nobody was present in the room. Mangat Ram also entered the shop behind her and closed the door and bolted the same from inside. He pushed her on the cot. She tried to free herself from the clutches of the accused. She also raised alarm but nobody came to her rescue. The accused untied her Salwar and committed sexual intercourse with her. Thereafter she was permitted to go to her home. She did not disclose this fact to her family members out of fear. She then visited her Bua after three/four days of the incident because her Bua was not feeling well. Her Bua and Chuni Lal were sitting in the room. It was 4.00 P.M. Her Bua went to another room as her child was weeping. When she was coming out of the room, Chuni Lal caught hold of her and took her in another room. She called her Bua loudly but she did not hear her. Accused Chuni Lal pushed her on the floor. He untied her Salwar and committed sexual intercourse forcibly. She did not disclose this fact to her Bua and left for her house. She did not tell this incident to anybody in the 5 family out of fear. She went to the house of her maternal grand-mother after two/three months where some complications arose and her maternal grand-mother enquired about vomiting. She disclosed the entire facts to her. She did not remember the month and year when her maternal grand mother told about this incident to her mother. She also did not know the month when the incident has taken place. She has admitted categorically in her cross-examination that she had gone after her Bua in the room. She was taken by the accused in the adjoining room where he committed sexual intercourse with her. She also admitted that there was a common door between the rooms. There was also a window in the room but it was not open. She raised alarm when the accused had taken her inside the room. She tried to call her Bua when she was dragged inside the room. 8. PW-2 Devi Ram is the father of prosecutrix. He has given the age of prosecutrix 14 years at the time of incident. He stated that his wife told him that accused Mangat Ram and Chuni Lal committed sexual intercourse with the prosecutrix forcibly. He told his wife that this was wrong as he was coming from the house of the accused. He asked his wife to call both the accused and accept his daughter. His wife went to their house. The parents of the accused told his wife that their children cannot commit such an offence and they asked her to leave the place. His wife 6 told him that accused persons committed sexual intercourse about 2½ months ago. He went to Police Station, Kumarsain to lodge FIR, i.e. PW-1/A. In his cross-examination, he has admitted that there are houses around the house of the accused and there is a common path. He was told about the incident by his wife when he reached from the house of accused persons. He also admitted that the prosecutrix was working with Krishna Devi and Charanji Lal. He gave the age of prosecutrix 14 years as approximate in his cross- examination. 9. PW-3 Uma Devi is the mother of the prosecutrix. She has given the age of prosecutrix about 14 years. She narrated that the prosecutrix was deputed to bring Beedi from the house of accused. The prosecutrix told her that accused Mangat Ram has committed sexual intercourse with her. The prosecutrix told her that after four/five days of the first incident, she had gone to the house of Chuni Lal to see his wife Sheela Devi, as she was ill. Accused Chuni Lal also committed sexual intercourse with her. She went to her maternal grand mother and stayed there for ten days. Krishna Devi made certain enquiries from her and she disclosed about the incident to her. Thereafter Krishna told her about the incident. She disclosed about this incident to her husband who became furious and deputed her to the house of the accused where she discussed about the 7 happening with the mother of accused Mangat Ram. She asked her that they should keep her daughter or pay “Ijjat”. The mother of the accused did not agree with her proposal and turned her out of the house. Thereafter her husband and prosecutrix went to report the matter to the police. 10. PW-4 is Krishna Devi. She narrated that prosecutrix came to her house on 4.7.1994. She was vomiting and when she enquired from the prosecutrix, she told that accused persons have committed sexual intercourse with her forcibly. She told everything to the mother of the prosecutrix. She admitted in her cross-examination that the prosecutrix was working in her house for Rs. 100/-. She also admitted that she used to pay wages to the prosecutrix. 11. PW-5 Paras Ram is the grand father of the prosecutrix. He stated that he used to send all the children to bring Beedi etc., including prosecutrix. He did not remember the date and month when he lastly deputed the prosecutrix to purchase Beedi. He came to know about this incident when police came to the village. He then narrated that she was sent by him to purchase Beedi about three months prior to arrival of the police. In his cross- examination, he could not tell whether the prosecutrix was deputed by him three months prior to arrival of the police in the village. 8 12. PW-6 Dr. Hemant Kumar has medically examined the accused and issued MLCs Ex.PW-6/A and PW-6/B. According to him, accused were capable of doing sexual intercourse. 13. PW-10 Khema Nand has issued certificate Ex.PW-10/A. Date of birth of the prosecutrix was entered in the record as 9.11.1979. In his cross-examination, he stated that he has entered the date of birth of the prosecutrix in the record on the basis of the birth certificate issued by the Panchayat. 14. The prosecutrix was examined by PW-13 Dr. Era Vermani. She has given her age 14 years. She issued MLC Ex.PW-13/A. According to her opinion, prosecutrix was used to sexual intercourse. 15. PW-14 Devi Dayal has issued Ex.PA and the date of birth has been mentioned as 9.11.1979. In his cross- examination, he admitted that he did not know who made the entries. According to him, date of making the entries in the register was also not deducible from the register shown to him. 16. PW-15 Prem Singh is the Investigating Officer. In his cross-examination, he admitted that he did not notice any shop being run by either of the accused. He also admitted that there are two houses nearby the house of 9 accused. Ex.PW-9/A is the report of the Forensic Science Laboratory. 17. The most crucial point, which requires determination in this case, is the age of the prosecutrix at the time of incident. Prosecutrix has given her age 14 years at the time of incident when she appeared as PW-1. PW-2, father of the prosecutrix, has admitted that the age of the prosecutrix was 14 years approximately. PW-3, mother of the prosecutrix has given her age about 14 years at the time of incident. According to certificate Ex.PA, the age of the prosecutrix was entered as 9.11.1979. PW-10 has admitted in his cross-examination that the date of birth was entered in the record on the basis of the birth certificate issued by the Panchayat. We have gone through Ex.PW-10/A. The same is on plain piece of paper. It is not in the prescribed proforma. Similarly, PW-14 has issued Ex.PA. According to this document, age of the prosecutrix has been recorded as 9.11.1979. He has categorically admitted in his cross- examination that relevant entries appearing in the register were not made by him. The certificate was based on Pariwar register. He did not know who made these entries. He also admitted in his cross-examination that the date of making the register could not be discernible from the register shown to him. He could not state the date on which the register was started. He did not know at whose instance the entry was 10 made. According to PW-13, age of the prosecutrix was 14 years. However, it has come on record that she is not a Radiologist. This is the evidence led by the prosecution to prove the age of the prosecutrix. 18. It is necessary to prove the age of the prosecutrix by leading primary evidence. Ex. PA and Ex. PW-10/A have been issued on the simple piece of paper. PW-14 was not aware who made the entries when he stepped into the witness box as far as Ex. PA is concerned. He also did not know at whose instance the entry was made. According to ossification test, the age of the prosecutrix was 14 years. When the prosecutrix appeared in the witness box as PW-1, she has given her date of birth 17 years, meaning thereby she was 15 years old when FIR was lodged. In case her age was 15 years at the time of incident, then as per ossification test, she was more than 16 years at the time of incident. Prosecution has failed to establish that the age of prosecutrix was less than 16 years at the time of incident. Since the prosecution has failed to prove the age of prosecutrix by leading tangible documentary evidence, the ocular statement made by PW-1, PW-2 and PW-3 cannot be believed. 19. PW-1 has deposed that she had gone to the house of Chuni Lal to buy Beedi. It has come on record that accused were living jointly. Chuni Lal accused was married 11 to Bua of the prosecutrix. It is not believable that Mangat Ram could rape the prosecutrix in the house as narrated by her. In case she had raised hue and cry, her Bua or her uncle could come to her rescue. She did not disclose this incident to her parents or any other member of the family. Her version that she did not disclose this incident to anyone out of fear is unbelievable. She again visited the house of her Bua after three/four days after the incident. According to her, her Bua and her uncle Chuni Lal were sitting in the verandah. Her Bua’s son was weeping and she went inside the room. Thereafter according to her, she was dragged by accused Chuni Lal and he untied her Salwar and committed sexual intercourse forcibly with her. There is a common door between two rooms. The version of the prosecutrix cannot be believed that her uncle raped her in the room when her Bua was also present in the adjoining room. She has also not narrated this incident also to any member of her family. A girl of 16 years of age will not visit the house again at all in case she had been raped in the same house. Either she will not visit the house again or will go in the company of some other person. She went to the house of her maternal grand mother. There were some complications and when she started vomiting, her maternal grand mother inquired from her. She narrated this incident and it is only after three/four days that she told Uma Devi about the incident. In case the 12 rape was committed on the prosecutrix forcible and she had narrated this incident to her maternal grand mother, the normal human conduct would have been of the mother of the prosecutrix to take appropriate steps immediately. 20. Now, we will advert to the conduct of the father of prosecutrix. PW-2 father of the prosecutrix was told about the incident by his wife. He instead of lodging the FIR immediately sent his wife PW-3 to tell the accused family to accept his daughter. However, the parents of the accused told his wife that their children could not commit such offence. It is only thereafter he had gone to Police Station, Kumarsain to lodge FIR with the prosecutrix. 21. Now, we will advert to the conduct of mother of the prosecutrix. The mother of the prosecutrix while appearing in the witness box as PW-3 has stated that she was sent by her husband to the family of the accused. She went to the family of the accused and requested them to keep her or they should pay “Ijjat”. It is only when neither the accused family accepted her daughter nor paid money to them that FIR was got registered. The incident had taken place somewhere in the month of May, 1994, however, the FIR was registered at 5.30 P.M. on 24.8.1994. The delay in lodging the FIR has not been explained by the prosecution. It is settled law that delayed registration of FIR is not fatal to prosecution case but in view of the facts and circumstances 13 of the instant case, the registration of FIR after more than three months is fatal to the case of the prosecution. 22. It has come on record that Krishna Devi was not happy with the accused persons since they have not supported her in the civil litigation, which was pending at Rampur. According to medical examination conducted by PW-13, prosecutrix was used to sexual intercourse. We have noticed her age to be more than 16 years. 23. In view of the aforesaid discussion, we find no merit in the appeal and the same is dismissed. Bail bonds furnished by the accused-respondents are ordered to be discharged. (Deepak Gupta), J. (Rajiv Sharma), J. 14.6. 2010 *awasthi*