IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 604 of 2002. Date of Decision: 5.8.2011. State of H.P ...Appellant. Versus Beni Chand & Ors. …Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting? No. For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondents: Mr. Virender Singh Rathore, Advocate. ____________________________________________ Deepak Gupta, J.(Oral) 1. This appeal by the State is directed against the judgment dated 23.6.2002 passed by the learned Additional Sessions Judge-II, Kangra at Dharamshala whereby the accused No.1 Beni Chand has been acquitted of having committed offence punishable under Sections 376 and 506 of IPC and the other accused namely, Ashwani Kumar and Bhajan Lal have been acquitted of having committed offence of having abated the rape and/or attempt to destroy the pregnancy of the victim. Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 2. The prosecution story, in brief, is that the accused No.1 Beni Chand is an Army personnel. The prosecutrix is below 16 years. According to the prosecution, both of them had developed intimacy and had sexual relations. Thereafter the prosecutrix became pregnant. The accused came back from the place where he was serving in the Indian Army and he alongwith second accused Ashwani Kumar went to the third accused Bhajan Lal to abort the pregnancy of the prosecutrix. They did not succeed. The accused Beni Chand thereafter went back to join his duties in Army. It was only thereafter that the prosecutrix informed her parents that she had been raped by accused Beni Chand. Even then no attempt was made to lodge a police complaint, but the parents of the prosecutrix took her to Hamirpur and again attempted to abort the pregnancy of the prosecutrix. When the doctor refused to abort the pregnancy a complaint Ext. PW4/A was filed on 4th November, 1996. 3. In this complaint, the prosecutrix stated that she is studying in 11th Class in Jaisinghpur. Accused Beni Chand son of Shri Harnam Singh is her neighbour. When he (accused Beni Chand) came on leave, the previous year i.e. in the year 1995, he had forcible sexual intercourse with the prosecutrix in March, 1995. Thereafter he again came on leave in April, 1996 and on 3-4 occasions raped the prosecutrix. She was not a consenting party, but the accused Beni Chand assured 3 her that he would get married with her. He also threatened her that if she informed her parents, then he being an Army man would shoot her. She, out of fear, did not inform her parents. He again came on leave to the village and then she (prosecutrix) again requested him to marry her. Then, accused Beni Chand alongwith Ashwani Kumar took her to doctor Bhajan Lal who injected something in her spine and also inserted some liquid in her uterus. Despite this, the pregnancy could not be aborted. Thereafter the accused Beni Chand after raping and threatening the prosecutrix went back to join his duties in the Army. On this basis, FIR Ext. PW6/A was registered. The accused were challaned and tried for having committed offences as aforesaid. After trial, they have been acquitted. Hence, this appeal. 4. The prosecutrix appeared as PW-4. She by and large repeated what she had stated in the complaint. However, in her statement in the Court she added some further facts. According to her, she was first raped in March, 1995 and next in March,1996. The accused got married on 10th March, 1996. Thereafter on 25th or 26th April, 1996, he again came to her house when she was alone and had sexual intercourse with her. According to her version, the accused told her that he had been married by force by his mother, but he actually wanted to marry the prosecutrix. She informed the accused about the pregnancy and he sent three letters which were 4 marked in evidence. Thereafter accused came back in October, 1996 and tried to get the pregnancy of the prosecutrix aborted as narrated above, but did not succeed. The accused went back to join his duties in the Army and on the intervening night of 28/29th October and thereafter on 31st October, the prosecutrix narrated the entire incident to her mother. She clearly states that she narrated this incident only because she was pregnant. Her mother disclosed this fact to her father, and then they talked with the brother of the accused. Thereafter the brother of the accused (Krishan), head constable Salig Ram, Pradhan of Jaisinghpur and her father took the prosecutrix to Sain Hospital at Hamirpur on 2nd November, 1996. The lady doctor at the hospital checked up the prosecutrix and then informed her and her father that the pregnancy was at an advanced stage and could not be aborted. It is only thereafter that the complaint Ext. PW4/A was filed with the Deputy Commissioner, Kangra on 4.11.1996. 5. Without going into the other factors raised, at the outset, it may be stated that other than the bald allegations of the prosecutrix that she was raped in March, 1995, there is nothing to support her version that she had sexual intercourse with the accused in March, 1995. The law by now is well settled that the statement of the prosecutrix is not to be treated like a statement of an accomplice. It is the 5 statement of a victim of a heinous crime and must be duly respected. Conviction of an accused can be based on the sole testimony of the prosecutrix. However, the version of the prosecutrix must inspire confidence and there should be a ring of truth about the story. It should, if possible, be corroborated by other material on record. 6. In the present case, the prosecutrix did not complain to her parents or to anybody else for almost seven months. This is acceptable because a young girl who is having sexual relations with a person in secret will not inform her family members or parents about it. Two main questions which arise for consideration in this case are: (1) What was the age of the prosecutrix at the relevant time? (2) Whether the prosecutrix was a consenting party to the sexual intercourse or whether her consent was obtained by fraud? 7. As far as the age of the prosecutrix is concerned, PW-2 Dr. Dinesh Sood had conducted the ossification test to determine her age. He carried out the test and on the basis of skiagram opined that the prosecutrix on the date of her examination i.e. 7.11.1996 was aged more than 17 years. According to him, there may be variation of three years on either side. Therefore, the prosecutrix could be between the ages of 14 to 20 years. He also stated that her pregnancy was of 28 weeks and 6 days, meaning thereby that the conception had taken place some time in the end of March or 6 beginning of April, 1996. He in cross-examination clearly stated that the prosecutrix could be even 20 years old. As against the medical evidence, the other relevant witness is the prosecutrix herself who has stated that she was born on 12.2.1980. 8. PW-5 father of the prosecutrix also states that the prosecutrix was born in the year 1980. According to him, she was born in Jaisinghpur and he got her date of birth recorded in the Panchayat record. He also admitted that when the prosecutrix was got admitted in school, he could not say whether he had produced the Panchayat certificate or not. 9. PW-10 Sh. Gajay Singh is the Principal of the school. According to him, as per the school record, the date of birth of the prosecutrix is 12.2.1980 which certificate is Ext. PW6/A. (It may be mentioned that the learned trial Court has exhibited this certificate, as well as the FIR both as Ext. PW6/A.) This witness admitted that he could not say that on what basis the entry was made on the school record. He clearly stated that the school record does not contain the certificate issued by the Panchayat and the registration of Birth and Death certificate. 10. The investigation officer PW-11 Dile Ram admits that he did not even tried to find out the date of birth of the prosecutrix from the registration record. 7 11. The school record no doubt shows that the prosecutrix was born on 12.2.1980, but not much reliance can be placed on the school record, in view of the testimony of PW-10 who could not state on what basis the date of birth was recorded. The father could not even give the exact date of birth, but only gave the year of birth. The father clearly stated that he had got the factum of the birth of the prosecutrix recorded in the Panchayat record. This was the primary record which was required to be produced with regard to the age of the prosecutrix. Even, if the certificate is taken into consideration, it clearly shows that in March or April, 1996 the prosecutrix was more than 16 years old. As far as her allegation of being raped in the previous year i.e. March, 1995 is concerned, the same is not supported by any other evidence, but even if we believe her statement that she had sexual intercourse with the accused in March, 1995, it cannot be said that in March, 1995 she was not 16 years old. Therefore, we are of the considered opinion that she was more than 16 years at the time when the incident(s) occurred. 12. Coming to the question with regard to the consent of the prosecutrix. In fact, without mentioning any detailed facts it can be said that consent is writ large. Here is a girl who states that she was raped against her wishes not once, but on number of occasions, first time in the year 1995 and 8 thereafter a year later. No doubt, she had stated that she was threatened by the accused, but it cannot be believed that the girl if she actually had been raped and was not a consenting party would not have told her parents, her friends, her siblings about the incident. Even if the story of the prosecution is believed, also it is more than apparent that she was not forced but the act of sex was consensual one. This is also apparent from the statement of the prosecutrix herself that it was only on account of advanced stage of the pregnancy that she informed her parents about the said incident. 13. Coming to the allegation that her consent was obtained by fraud or deceive, there is no merit in this also. The prosecutrix herself states that she knew that the accused had got married on 10th March, 1996. The other acts of sex, especially the act of sex which led to the conception was admittedly performed in the end of March or in the beginning of April, 1996. The prosecutrix by this time was well aware that the accused was married and she cannot turn around and have the Court believe that this time the accused told her that he had been got married against his wishes. Even if this portion is believed, it is apparent that the prosecutrix voluntarily submitted to the desires of the accused. 14. With regard to the attempt of abortion, again we are constrained to hold that the prosecutrix was definitely a 9 consenting party to the attempted abortion. This is more than apparent from the fact that even after she had complained to her parents, they did not deem it fit to first lodge a complaint, but they wanted to hush up the matter and wanted to get her (the prosecutrix) aborted. It was only after that failed in their attempt to get the prosecutrix aborted at Hamirpur that they lodged the complaint. 15. In view of the above circumstances, though the prosecutrix may be a victim on account of other reasons, it cannot be said that the accused are guilty of having committed an offence. 16. We, therefore, find no reason to interfere with the judgment of the learned trial Court. Accordingly the appeal is dismissed. The bail bonds furnished by the accused are ordered to be discharged. (Deepak Gupta) Judge 5th August, 2011. (Sanjay Karol) (Krn Guleria) Judge