1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 568 of 2000 alongwith Cr.Appeal No.200 of 2001 Judgment reserved on:24.11.2010 Decided on:15.12.2010 ________________________________________________________ Cr. Appeal No. 568 of 2000 Din Diyal alias Dinu …Appellant. Versus State of H.P. …Respondent. __________________________________________________ __ For the appellant: Mr.S.S. Mittal, Senior Advocate, with Mr.Surinder Prakash Sharma, Advocate. For the respondent: Mr.R.K. Sharma,Senior Additional Advocate General, with Mr. Rajinder Dogra, Additional Advocate General,. ________________________________________________________ __ Cr.Appeal No.200 of 2001 State of H.P. ...Appellant. Versus Din Diyal alias Dinu ...Respondent. ________________________________________________________ __ For the appellant: Mr.R.K. Sharma,Senior Additional Advocate General, with Mr. Rajinder Dogra, Additional Advocate General. For the respondent: Mr.S.S. Mittal,Senior Advocate, with Mr.Surinder Prakash Sharma, Advocate. ________________________________________________________ __ Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. ¹Whether approved for reporting? Yes 2 Justice R.B. Misra,J. The Sessions Trial No.21/99 was decided on 18.9.2000, whereby learned Sessions Judge, Kullu, H.P., held Din Diyal alias Dinu guilty of offence under Section 376 of the Indian Penal Code (in short called as 'IPC') and sentenced him to undergo rigorous imprisonment for two years and a fine of `5000/- and in default of payment of fine he was to suffer imprisonment for six months. Being aggrieved by the judgment dated 18.9.2000, passed in Sessions Trial No.21/99, Din Diyal alias Dinu (appellant-convict) has filed Criminal Appeal No.568 of 2000 with a prayer to set aside the conviction and the sentence so awarded by the judgment dated 18.9.2000. 2. Whereas, the State-appellant being aggrieved filed above Criminal Appeal No.200 of 2001 under Section 377 of the Code of criminal Procedure, for awarding adequate sentence in reference to judgment dated 18.9.2000 passed in Sessions Trial No.21/99 by Sessions Judge, Kullu, H.P. Since both the criminal appeals have been preferred against the same judgment dated 18.9.2000, as such, both are being taken together. 3. The prosecution case, in brief, is that both victim/ prosecutrix PW.4 (name not given) as well as the appellant/convict belong to village Karjan. The victim/prosecutrix aged between 15-16 years in the year 1991 had gone to graze cattle in the forest, where she was ravished by the appellant-convict Din Diyal alias Dinu. Later on, he 3 promised her to marry and on such assurance, he had repeatedly been sexually assaulting the victim/prosecutrix. So much so, Din Diyal alias Dinu took the victim/prosecutrix to 'Jochha Mochha' temple of village Karjan and assured her that they would live like husband and wife and in the pretext of assurance of marriage he had repeatedly been sexually assaulting the victim/prosecutrix, consequent upon, the victim/prosecutrix conceived and delivered a baby girl on 5.3.1992. Panchayat Pradhan refused to enter birth of the child in absence of the appellant-convict. After two years of birth of the child, appellant-convict, accompanied with one Giru of Laron-Kelo village, took the victim/prosecutrix to Mandi for solemnizing court marriage with her and had kept her in the house of one Bhoop Singh (PW.14) at Mandi and removed `70/- from the purse of victim/prosecutrix and during night left her without informing her. The victim/prosecutrix searched 3-4 days for the appellant-convict and on his failure to turn up, Bhoop Singh (PW.14) brought the victim/prosecutrix to her parental house at Kullu and her father PW.5 Anant Ram went to the police station, Manali, where on the basis of and statement of victim/prosecutrix FIR Ex.PW.4/A was recorded by MHC Sunder Singh (PW.11). The victim/prosecutrix was medically examined by PW.1 Dr. Geeta Kaul, vide MLC Ex.PW.1/A, whereby the victim/prosecutrix was said to have delivered a child. PW.2 Dr.G.D. Gaur on 7.10.1994, on the basis of ossification test, found vide report Ex.PW.2/C the age of prosecutrix as 19 years 4 and Anant Ram PW.5, father of the victim/prosecutrix, handed over copy of birth certificate Ex.PW.5/A and copy of school leaving certificate Ex.PW.5/B to the police, which were taken into possession in presence of Devi Singh (PW.8) vide memo Ex.PW.5/C. 4. On completion of investigation, appellant-convict was charged for the offence punishable under Section 376 IPC. In order to prove its case, prosecution has examined as many as 15 witnesses, whereas, appellant-convict through his statement under Section 313 of Cr.P.C., has denied the prosecution case. 5. The prosecution examined PW.1 Dr.Geeta Kaul, PW.2 Dr.G.D. Gaur, PW.3 Dr.Chetan Singh, PW.4 Dhani Devi, PW.5 Anant Ram, PW.6 Smt. Anju, PW.7 Hotam Ram, PW.8 Devi Singh, PW.9 Jit Ram, PW.10 Fateh Chand, PW.11 MHC Sunder Singh, PW.12 Hukam Chand, PW.13 SI Rajeev Atri, PW.14 Bhoop Singh and PW.15 SI Sohan Lal. 6. PW.1 Dr.Mrs.Geeta Kaul has examined the victim/ prosecutrix on 6.10.1994 in reference to police request Ex.PW.1/A and opined that the victim/prosecutrix has been coitus and normal pregnancy period was 280 days, whereas, delivery can occur before two weeks or two weeks after tentative date and as per radiological test, age of the victim/prosecutrix was assessed about 19 years. At the time of examination, on 6.10.1994, the victim/prosecutrix has already delivered a child. 7. PW.2 Dr.G.D. Gaur has conducted the X-ray and 5 has endeavoured to assess the radiological age of the victim/prosecutrix and accordingly the victim/prosecutrix was found to be 19 years of age on 6.10.1994. 8. PW.3 Dr.Chetan Singh, in reference to request of the police Ex.PW.3/A, examined Din Diyal alias Dinu on 10.10.1994 and found him capable of committing sexual intercourse and PW.3 has also indicated regarding the paternity of the child vide Ex.PW.3/C and has also given opinion Ex.PW.3/D. As per blood group of the parents, the child would be born from the parents in the same blood group. In cross-examination, PW.3 has also stated that when male person is having blood group VRH positive, the child could be born of the same blood group. 9. PW.4 the victim/prosecutrix has stated that 8-9 years back she had gone with her cattle in jungle, where appellant-convict gagged her mouth and committed sexual intercourse forcibly. At that time, she was between 15-16 years of age. PW.4 has further stated that appellant-convict, after committing sexual intercourse, told that he would marry her and on that pretext and assurance the appellant-convict had been committing sexual intercourse with her. PW.3 victim/prosecutrix has further stated that the appellant- convict taken her to 'Jocha-Mocha' temple at village Karjan, and told her that henceforth they will be husband and wife and appellant-convict overtook the bow before the Deity and during the sexual intercourse she became pregnant and female child was born on 5.3.1992. PW.4 victim/prosecutrix 6 has further stated that she alognwith her father Anant Ram (PW.5) had gone for registration of the child in the Panchayat, but the Panchayat people refused to enter her name in absence of Din Diyal appellant-convict. PW.4 victim/prosecutrix has further stated that after two years of birth of the female child, the appellant- convict alongwith one Giru took her to Mandi for court marriage and kept PW.4 in the house of Bhoop Singh (PW.14) a friend of the appellant-convict and told that marriage would be registered next day, however, he took `70/- from her purse and ran away during night. However, victim/prosecutrix, who was waiting for appellant-convict for 3-4 days at Mandi, brought by one Bhoop Singh to Kullu. Thereafter, PW.4 the victim/prosecutrix reported the matter to the police, on the basis of which FIR Ex.PW.4/A was lodged and she was medically examined in District Hospital, Kullu. As per testimony of PW.4, the appellant-convict had been committing sexual intercourse with her assuring her that he will marry her and later-on he refused to marry her by saying that she belongs to Harijan Caste and the appellant-convict is Rajput, therefore, marriage could not be solemnized. 10. PW.5 Anant Ram, father of the victim/prosecutrix, has stated that he has three sons and one daughter whose names have been entered in the Panchayat record because her daughter got pregnancy. PW.5 called Gram Panchayat consisting of Jundu Ram, Pradhan, who restrained him from reporting the matter to the police. PW.5 disclosed that her 7 daughter having pregnancy from appellant-convict Din Diyal alias Dinu, who had promised her for marriage, however, child was born. The child was born at Mission Hospital, Manali on 5.3.1992. PW.5 has further tried to get the name of the child entered in the Panchayat but the Pradhan told that name could not be entered in absence of appellant-convict Din Diyal alias Dinu. As per testimony of PW.5, Din Diyal alias Dinu disappeared after the birth of female child and was not traceable for about nine months. However, victim/prosecutrix told PW.5 Anant Ram,i.e.,heandr father that Din Diyal alias Dinu has committed sexual intercourse with her for the last four years on the pretext that he will marry her. As per testimony of PW.5, his daughter was taken to Mandi for solemnizing marriage in the year 1994, however, no marriage was solemnized but she was kept at the house of one Bhoop Ram at Mandi. PW.5 has further stated that his daughter was brought by Bhoop Ram. Thereafter, the matter was reported to the police. As per testimony of PW.5 birth certificate and school leaving certificate Ex.PW.5/A and Ex.PW.5/B respectively, were taken into possession vide memo Ex.PW.5/ C. 11. PW.6 Smt. Anju had issued OPD chit Ex.PW.6/A of Mission Hospital. PW.7 Hotam Ram, Member of Gram Panchayat, Karjan, has stated that the victim/prosecutrix came with her father Anant Ram (PW.5) for registration of the name of newly born child, however, Pradhan, Gram Panchayat Jindu Ram and vice President have refused to enter the name 8 of the child in absence of Din Diyal alias Dinu. As per testimony of PW.7, the appellant-convict was having illicit relations with the victim/prosecutrix 2-3 years prior to the time when they had come to the Panchayat and PW.5 Anant Ram had gone to PW.7 in search of his daughter ( victim/prosecutrix), who was taken by the appellant-convict towards Mandi side. 12. PW.8 Devi Singh was associated with police and had identified the place in the jungle where the accused had committed sexual intercourse with the victim/prosecutrix (PW.4). PW.8 has also acknowledged that PW.5 Anant Ram had handed over two certificates regarding age and school leaving certificate of the victim/prosecutrix. 13. PW.9 Jit Ram, Teacher (TGT) issued certificate Ex.PW.5/B. PW.10 Fateh Chand had issued Jacha Bacha Raksha Card to the victim/prosecutrix. PW.11 MHC Sunder Singh recorded the FIR Ex.PW.4/A at the instance of the victim/prosecutrix. PW.12 H.C. Hukam Chand got the victim/prosecutrix medically examined. PW.13 SI Rajeev Atri started investigation in the case. 14. PW.14 Bhoop Singh has stated that the appellant- convict was working at Manali. PW.14 has further stated that the appellant-convict Din Diyal alias Dinu first time came all alone and second time he came with one Giru Ram and one lady. Din Diyal and Giru Ram left the lady at his house and they ran away from there and the lady had been waiting for 3-4 days at his house of arrival of the appellant-convict Din 9 Diyal, when he did not turn up, PW.14 brought the lady to her parents house. PW.14 has further stated that the lady ( victim/ prosecutrix) has told him that Din Diyal had taken away ` 70/- from her purse and she was not having money. PW.15 SI Mohan Lal has stated that on 8.6.1994 the case file was handed over to him for further investigation. 15. As per Ex.PW.5/A the date of birth of the victim/prosecutrix (PW.4) is 21.11.1975. As per Ex.PW.5/B, certificate issued by Government Primary School, the age of the victim/prosecutrix is 21.11.1975 and Ex.PW.10/A Jacha Bacha Raksha Card indicates the name of the husband of the victim/prosecutrix as Dinu. Document Ex.PW.6/A of Lady Willingdon Hospital, Manali, while issuing pregnancy certificate to victim/prosecutrix, has recorded the name of husband of the victim/prosecutrix as Dheenu by erasing the name of her father i.e. Anant Ram. 16. On analysis of the testimonies of PW.4, PW.5 as well as the documents Ex.PW.5/A and Ex.PW.5/B, it appears that the age of the victim/prosecutrix was 21.11.1975 and when first time the victim/prosecutrix was sexually assaulted by the appellant-convict in the year 1991, certainly her age was above 15 years but much below 16 years, and appellant- convict on the pretext and on the false assurance of marrying her, had been sexually assaulting the victim/prosecutrix continuously and out of such physical interaction and sexual assault, a baby child was born on 5.3.1992. 17. Above documents and exhibits reveal that the 10 victim/prosecutrix, at the time of sexual intercourse, was less than 16 years of age, and on the basis of materials on record, learned Sessions Judge has also arrived at the finding that the victim/prosecutrix at the time of sexual assault was five months less to 16 years. Such conclusion, in our considered view, therefore, needs no interference. 18. Mr. S.S. Mittal, Senior Advocate, for the appellant- convict, has submitted that child was born on 5.3.1992 and the victim/prosecutrix is treated to be married with appellant- convict and they were living as husband and wife and when appellant-convict has taken the victim/prosecutrix to Mandi and has not got the marriage registered in the Court and has left the victim/prosecutrix, in that condition, the victim/prosecutrix could have claimed for civil rights but after two years of birth of the child, the victim/prosecutrix lodged the FIR on 8.6.1994 and such delay of two years was not explained by the prosecution. Therefore, in view of the observations made by Hon'ble Supreme Court in Vijayan Versus State of Kerala, 2008 (14) SCC 763, the delay in lodging the FIR makes the prosecution case fatal. Learned counsel for the appellant-convict has placed reliance on the paragraph-5 of Vijayan (supra) as below:- “The present case wholly depends upon the testimony of the prosecutrix. The incident in the present case took place seven months prior to the date of lodging the complaint as a realization dawned upon her that she has been subjected to rape by the appellant-accused. No complaint or grievance was made either to the police or the parents prior thereto. The explanation for delay in lodging the FIR is that the appellant-accused promised her to marry therefore the FIR was not filed. In cases where the 11 sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially when the prosecutrix lodged the complaint soon after the defenceless. Had the prosecutrix lodged the complaint soon after the incident, there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. If the prosecutrix has willingly submitted herself to sexual intercourse and waited for seven months for filing the FIR it will be very hazardous to convict on such sole oral testimony. Moreover, no DNA test was conducted to find out whether the child was born out of the said incident of rape and that the appellant-accused was responsible for the said child. In the face of lack of any other evidence, it is unsafe to convict the accused. Therefore, we are of the opinion that the view taken by the trial court and the learned Single Judge of the High Court in convicting the appellant-accused under Section 376 IPC cannot be sustained. Consequently, we set aside the judgment and order of the trial court as also of the andHigh Court and quash the conviction and sentence of the appellant-accused under Section 376 IPC. The accused may be released forthwith from custody if not required in any other case. 19. In our considered view and in the facts and circumstances of the case of Vijayan (supra) was different, as in the present case the victim/prosecutrix was minor and below 16 years of age, who had been sexually assaulted on the assurance of marriage and in view of testimony of PW.5 Anant Ram, father of the victim/prosecutrix, the victim/prosecutrix in the very beginning disclosed him that she had been sexually assaulted on the assurance that Din Diyal will marry her and she had became pregnant. In view of the testimony of PW.5, Anant Ram, in the facts and circumstances, the delay of two years will not be fatal for the prosecution case. Therefore, protection of the observation of Hon'ble Supreme Court in Vijayan (supra), is not 12 available to the appellant-convict. 20. Mr. S.S. Mittal, learned counsel for the appellant-convict has also referred and relied upon the decision of Hon'ble Supreme Court in Rajoo & Others Versus State of M.P., AIR 2009 SC 858, and has submitted that the testimony of victim/prosecutrix cannot always be accepted as gospel truth. Mr. Mittal has further submitted that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. In the present facts and circumstances, the testimony of PW.4 victim/prosecutrix is a natural way, as she at the initial stage divulged to her father PW.5 Anant Ram, that she had been sexually assaulted by Din Diyal (appellant- convict) and since she was below 16 years of age and during said sexual assault, she became pregnant and she might have allowed the appellant-convict to sexual assault on the positive assurance of marriage. The contents of the testimony of PW.4 are quite natural and cannot be said tobe disbelieved as the same are inspiring confidence and in the facts and circumstances, when victim/prosecutrix had conceived, during physical interaction with the appellant-convict and had delivered a child on 5.3.1992, in these circumstances also, the testimony of PW.and5 Anant Ram is inspiring confidence and victim/prosecutrix cannot said to have 13 falsely implicated the appellant-convict. 21. Mr. Mittal has further relied upon the decision of Hon'ble Supreme Court in Tameezuddin alias Tammu Versus State (NCT of Delhi), 2009 (15) SCC 566, where it was observed that the testimony of victim/prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted, even if, the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. 22. In the facts of the present case, the testimony of the victim/prosecutrix (PW.4) and PW.5 Anant Ram, has been made in natural course and out of physical interaction of the appellant-convict, the victim/ prosecutrix has given birth to a baby child and the sexual assault was made when PW.4 was less than 16 years of age, as such, the question of her consent is not material in the present case. Since we have already observed that testimony of PW.5 Anant Ram, father of the victim/prosecutrix, is inspiring confidence, whose testimony is proved, when she had given birth to a child consequent upon sexual intercourse with the appellant- convict, in these circumstances, the offence punishable under Section 376 IPC is proved against the appellant- convict. 23. In the facts and circumstances, the sole 14 testimony of victim prosecutrix PW-4 is inspiring confidence and even corroboration is not required by other prosecution witnesses, whereas, her testimony has been corroborated by PW-5 Anant Ram, father of victim and PW-6, Anju, mother of victim. The present prosecution case is supported by the observations of the Hon'ble Supreme Court made in the following cases, whereby the conviction even based on solitary reliable witness in view of Jodhraj Singh Vs. State of Rajasthan (2007) 15 SCC 294; ( Paras 11 and 13 ); Tika Ram Vs. State of M.P (2007) 15 SCC 760 (Para-6); Munna Vs. State of M.P. (2009) 1 SCC 202 (Paras 26 to 28); Jarnail Singh Vs. State of Punjab (2009) 3 SCC 391 (Para 26); State of M.P. Vs. Laakhan (2009)14 SCC 433 (Paras 9 to 13); Rejendra Vs State of U.P. (2009) 13 SCC 480 (Para 21); and Ram Pyare Mishra Vs. Prem Shanker (2008) 14 SCC 614 (Para-17). 24. Hon'ble Supreme Court in Gurmukh Singh Vs State of Haryana (2009) 15 SCC 635 has given a illustrative guideline and indicated the factors required to be taken into consideration before awarding appropriate sentence to the accused. Each case has to be seen from its special perspective. The relevant factors are under: (a) Motive or previous enmity; (b) Whether the incident had taken place on the spur of the moment; 15 (c) The intention/knowledge of the accused while inflicting the blow or injury; (d) Whether the death ensued instantaneously or the victim died after several days; (e) The gravity, dimension and nature of injury; (f) The age and general health condition of the accused; (g) Whether the injury was caused without premeditation in a sudden fight; (h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; (i) The criminal backgammon and adverse history of the accused; (j) Whether the injury inflicted was not sufficient in the ordinary course of nature to caused death but the death was because of shock; (k) Number of other criminal cases pending against the accused; (l) Incident occurred within the family members or close relations; (m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment ?.(Para 23) 16 25. In view of the observations of Hon'ble Supreme Court in Sahdev Vs. Jaibar (2009) 11 SCC 798 (Paras 6 to 9), Ahmed Hussein Vali Mohammed Saiyed Vs. State of Gujarat (2009) 7 SCC 254 ( Paras 99 to 102) as well as in Gurmukh (supra), the duty of the courts is to impose appropriate sentence to the accused and all endeavour has to be made by the Courts to ensure that the accused receives aporopriate sentence. In other words, sentence would be according to the gravity of the offence. 26. In the facts and circumstances and on appraisal of the prosecution witnesses and materials on record, learned Sessions Judge has rightly arrived at a conclusion that the prosecution has proved its case beyond reasonable doubt, in our considered view also, the prosecution has become successful in bringing home the guilt to the appellant-convict for the offence punishable under Section 376 IPC . But on the ground that the victim/prosecutrix had been married somewhere else awarding of sentence of rigorous imprisonment for two years and fine amounting to `5000/- as indicated in the judgment dated 18.9.2000, is inadequate, therefore, the same is not legally sustainable and in the facts and circumstances liable to be modified. On the appraisal of the prosecution witnesses and materials on record and keeping in view the fact that the victim/prosecutrix (PW.4) was below 16 years of age 17 when she was sexually assaulted by Din Diyal alias Dinu (appellant-convict), we held him guilty of offence under Section 376 IPC and we pass an order of conviction awarding sentence of rigorous imprisonment for seven years and fine of `15000/- and in default of payment of fine rigorous imprisonment for further six months. The period, undergone by the appellant-convict, in past, shall be reduced from the present awarded sentence by this Court. 27. In view of the aforesaid observations, Criminal Appeal No.200 of 2001 of State of H.P. is allowed and the Criminal Appeal No.568 of 2000 of convict- appellant is dismissed. In order to suffer aforesaid sentence, the appellant-convict Din Diyal alias Dinu has to be apprehended and taken into police custody to undergo the sentence so awarded. 28. The bail bonds furnished by the appellant- convict are ordered to be cancelled. (R.B. Misra) Judge December 15, 2010 (Sanjay Karol) (Purohit/sl) Judge