IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 81 of 2009. Judgment reserved on 22nd October, 2010. Date of Decision: 1st December, 2010. _______________________________________________________ Nikka Ram ….Appellant. Versus State of Himachal Pradesh ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellants : Mr. Romesh Verma, Advocate. For the respondent : Mr. Anshul Bansal, Additional Advocate General. ____________________________________________________ SURINDER SINGH, J. The present appeal is directed by the appellant against his conviction passed in Sessions Trial No.11 of 2008 dated 29th January, 2009/2nd February, 2009 for the offences punishable under Sections 363, 366 and 376 (1) of the Indian Penal Code, whereby he was sentenced by the learned trial Court to undergo imprisonment as under: Offence Sentence Under Section 363 of the Indian Penal Three years rigorous imprisonment and to pay a fine of ` 2,000/- and in Whether reporters of the Local papers are allowed to see the judgment? - 2 - Code. payment of fine to further undergo one month’s simple imprisonment. Under Section 366 of the Indian Penal Code. Four years rigorous imprisonment and to pay a fine of ` 3,000/- and in payment of fine to further undergo two months’ simple imprisonment. Under Section 376 (1) of the Indian Penal Code. Eight years rigorous imprisonment and to pay a fine of ` 5,000/- and in payment of fine to further undergo two months’ simple imprisonment. The substantive sentence under each of the offences was ordered to run concurrently. Out of total fine of `10,000/-, if realized, was ordered to be paid as compensation to the victim through her natural guardian. The period in police as well as judicial custody with effect from 10th January, 2008 to 2nd February, 2009 already undergone by the convict/ appellant was ordered to be set-off from the sentences in terms of Section 428 of the Code of Criminal Procedure. 2. In short the prosecution story can be summed-up thus. (i) The prosecutrix (15 years) is the daughter of PW6 Smt. Rajo Devi, Aaganwari Worker. The father of the prosecutrix had already expired. Smt. Rajo Devi used to live with her children including the victim together - 3 - in their village except the eldest daughter Santosh Kumari who has been living in the house of sister of her husband. Smt. Rajo Devi (PW6) left for Aaganwari Centre/school and her children including the prosecutrix were at home. On return around 3.00 p.m. she found the prosecutrix missing. She searched for her in and around, but was of no avail. (ii) On 1st January, 2008 she also made search in the houses of her relatives, but she was not traceable. (iii) On 2nd January, 2008 she reported the matter to the Pradhan and also to the Up-Pradhan of her Panchayat with respect to the missing of the prosecutrix and reported the matter to the police. (iv) The appellant was a mason employed in the construction work of building of ‘Mahila Mandal’, who was known to the family of the prosecutrix. (v) On 9th January, 2008, Rajo Devi received a telephonic message that the prosecutrix was at Ukhli- Mair in the company of the appellant. Rajo Devi alongwith Prakash Chand and others went there and found the prosecutrix in the custody of the appellant in a room hired by him. Both were produced before the police. (vi) On 10th January, 2008, police recorded FIR Ext.PW6/A at the behest of the mother of the - 4 - prosecutrix. The statement of the prosecutrix was recorded by the police. She stated that she was allured by the appellant to accompany him and she alleged rape against him. (vii) The prosecutrix was got medically examined by PW11 Dr. (Mrs.) Archana Soni on 10th January, 2008. Her wearing apparels were taken into possession and sealed by her and handed over to the police for forensic examination. The doctor did not find any mark of injury on the person of the prosecutrix. The hymen was found torn and admitted two fingers easily. Vaginal swabs were taken from posterior Fx and the slides were prepared. These slides were duly sealed and handed over to the police and the prosecutrix was referred for skeletal age. The doctor issued Medico Legal Certificate Ext.PW11/B. (viii) PW3 Dr. P.K. Soni in Regional Hospital, Hamirpur took the X-rays Exts.PW3/A to 3/C and assessed the radiological age of the prosecutrix between 12½ to 15½ years including standard variations and gave his opinion Ext.PW3/D to this effect. (ix) The appellant was arrested. He was also got medically examined, which was conducted by PW4 Dr. Ashutosh Sharma. He was found fit to perform - 5 - sexual intercourse and issued the Medico Legal Certificate Ext.PW4/B. (x) The report of the Forensic Science Laboratory Ext.PW11/C reveals that underwear of the appellant contained the human blood and the semen stains and human blood was also found on the wearing apparels of the prosecutrix and also the vaginal swabs, but the semen was not detected. (xi) The forensic report aforesaid was placed before PW11 Dr. Archna Soni for final opinion. After perusal thereof, she gave the opinion that the possibility of sexual intercourse with the prosecutrix between the periods 31st December, 2007 to 8th January, 2008 could not be ruled out and further opined that if the prosecutrix had passed the urine or taken bath after the intercourse it is not necessary to have stains of semen on the swabs. (xii) The police obtained certificate Ext.PW10/A from PW10 Hari Chand, TGT employed in Government High School, Khuthrin wherein ‘3.12.1992’ has been recorded as date of birth of the prosecutrix. The police also got birth certificate Ext.PW14/A from the Secretary PW14 Devinder Singh of the Gram Panchayat concerned which also depicted the same - 6 - date of birth as reflected in the certificate issued by the school authorities. 3. After recording the statements of the witnesses and on completion of the investigation, Challan was presented in the Court against the appellant for his trial. 4. Finding a prima facie case, the appellant was accordingly charge-sheeted to which he pleaded not guilty and claimed trial. 5. To prove its case the prosecution examined its witnesses and the appellant was also examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances which were found attendant and put to him. His plea was that the prosecution witnesses had deposed falsely and he did not know the reasons for deposing against him and maintained his innocence. 6. When called upon to enter into his defence, the appellant did not lead any evidence. At the end of the trial, learned trial Court came to the conclusion that the prosecutrix was a minor girl below the age of 16 years. The appellant took the benefit of her immaturity and on some allurement due to the tender age committed the offences charged and believing the testimony of the prosecutrix convicted and sentenced him as aforesaid which has been challenged by him in the present appeal. - 7 - 7. Shri Romesh Verma, learned Counsel for the appellant vehemently argued that the statement of the prosecutrix does not inspire confidence. There are material contradictions in her statement and the prosecution version is also not supported by the medial evidence. He further referred to the skeletal age of the prosecutrix and ventilated that if the benefit of three years plus and minus is given, then invariably she comes to the age of discretion, having joined the company of the appellant and case for consensual intercourse is made out. He also argued that the learned trial Court did not appreciate the above facts in the right perspective which resulted into miscarriage of justice. 8. Contra, Shri A.K. Bansal, learned Additional Advocate General supported the impugned judgment of conviction and sentence and forcefully argued that the prosecutrix, in the instant case has been proved to be minor and further that the birth certificate, school record and the testimonies of the prosecutrix as well as that of the witnesses are consistent to this effect. He further ventilated that the prosecutrix has given vivid account of the rape committed by the appellant, who was matured and was four times elder to her. - 8 - 9. I have given my thoughtful consideration to the rival contentions of the parties and have carefully scanned the evidence on record. 10. In such type of cases the age of the prosecutrix is of paramount consideration. The alleged incident took place on 31st December, 2007 and the prosecutrix testified in her statement that her date of birth is 3rd December, 1992. At the relevant time she was a student of 8th class. Her mother PW6 Rajo Devi also deposed that the prosecutrix was 15 years of age. PW10 Hari Chand, TGT, Incharge of Government High School, Khuthrin, where the prosecutrix was studying, also proved from the admission and withdrawal register that the date of birth of the prosecutrix was recorded as 3rd December, 1992 and on the basis of this entry, he issued certificate Ext.PW10/A. 11. PW14 Devinder Singh, Secretary of the Gram Panchayat had also produced the birth certificate of the concerned Gram Panchayat within whose jurisdiction the village of the prosecutrix falls. He deposed that as per the birth register, the date of birth of the prosecutrix is recorded as 3rd December, 1992 and on its basis he issued certificate, Ext.PW14/A, which was correct as per original entry contained in the birth register. In cross-examination he also testified that the information regarding the date of birth was given by Shri Shakti Chand, Up-Pradhan, who had also - 9 - appended his signatures. The extract of the said entry is Ext.PW14/B. The said witness was asked whether there was any supporting document in support of date of birth as recorded in the certificate to which he stated that there was no such requirement of law. Although, he was meticulously cross-examined in order to shatter this entry, but the aforesaid evidence including the ossification report and also the statement of PW3 Dr. P.K. Soni, the prosecutrix was between 12½ years to 15½ years including the standard variations and he gave his opinion Ext.PW3/D, which could not be shattered in his cross-examination. Since there is a consistency in the statements of above witnesses with respect to the age and there is also no dispute that under the Panchayati Raj Act, Panchayat is required to maintain the records of births and deaths within its local limits. To maintain such records, the Panchayat is mandated by law to maintain Birth and Death Register in prescribed form wherein all births and deaths within the local limits of the Panchayat have to be recorded alongwith the date of birth or death as the case may be. Thus, the primary evidence of date of birth or death of a person is the entry in the said register. Such entry or a certificate based on such entry will undoubtedly carry the presumption of truth. 12. In the instant case, the birth certificate Ext.PW14/A, issued on the basis of such entry is a primary - 10 - evidence and is relevant evidence under Section 35 of the Indian Evidence Act, which stands corroborated by the statements of other witnesses. Therefore, in view of this, it is held that at the relevant time the prosecutrix was a minor girl and was less than 16 years of age. 13. Having said so the statement of the prosecutrix assumes importance. She stated on oath before the learned trial Court that construction work of the road was going on in her village and the appellant was a Contractor of that work. He hired a room in their village and had been visiting in the house of one Kuldip adjacent to their house from where he used to purchase milk. During these visits the appellant became familiar to her. Whenever she used to go to school he had been meeting her on her way and used to tell her that he would offer good clothes, ornaments and would take her along. Her mother was working in Aaganwari Centre/ School. She stated that on 31st December, 2007 at about 3-4 p.m. she received a telephonic call from the appellant asking her to come to village Ladraur. She went there and the appellant took her in a bus to Hamirpur and from Hamirpur they went to Jawalji and then to village Mair and kept her in a room in the upper storey. Thereafter, the appellant aforesaid forcibly teased her. She stated that the appellant bolted the door from inside and committed the rape on her. Her Salwar and underwear were stained with - 11 - blood. She was kept by him for about nine days in the said room. In the morning the appellant used to take her to see different places and used to bring back to the same place in the night. During this period the appellant committed rape on her 3-4 times. On 8th January, 2008 he committed rape for the last time. On 9th January, 2008 PW7 Raj Kumar, shopkeeper had asked the appellant from where she was brought. On this, he told that she was his relative and would take her back to her house next day. Raj Kumar aforesaid also took telephone number of her house and on the same night her mother alongwith Kuldip Chand and Nasib Singh came and took to the Police Station at Bassi. The appellant is alleged to have threatened her with dire consequences if this incident is revealed to anyone. She also stated that she was medically examined by the doctor at Hamirpur. She identified Salwar Ext.P.2, shirt Ext.P.3, Dupata Ext.P.4, underwear Ext.P.5 and bra Ext.P.6, belonging to her. 14. She admitted in her cross-examination that she had taken two suits, one diary and some cassettes (audio) with her. She also stated that she had been receiving calls on her mother’s telephone and she did not tell it to anybody. She also stated that she had been taken to Hamirpur from where to Jawalaji and stayed at Jawalaji for the night in the open fields and thereafter went to village Mair. She further stated that she was not having any money - 12 - when she left her house. She also stated that the appellant had used to give intoxicant pills. However, she did not disclose about it to anybody, except the police. At the end of her cross-examination she stated that she had told about the offering of allurement to her mother after about 2-3 days. It has also come in her cross-examination that she had been traveling in the buses at the aforesaid places and where they stayed in the nights there had been inhabitated places and is made out that she did not make any hue and cry. 15. PW6 Rajo Devi, her mother, afforded corroboration to her version. She stated that the appellant had been visiting the house of Kuldip Singh to take milk and he used to talk her on telephone. On 31st December, 2007 when she returned home from the school she did not find the prosecutrix in her home and she stated that she contacted Kuldip Singh and also informed Parkash Chand, the husband of the Pradhan of their Panchayat. On 2nd January, 2008 she alongwith Kuldip Singh, Nasib, Parkash Chand and Up-Pradhan went to Police Station and lodged the FIR and they also kept on searching for her. On 9th January, 2008 she received a telephonic message from PW7 Raj Kumar who informed that her daughter was in the company of the appellant in village Mair. - 13 - 16. PW7 Raj Kumar corroborates this version. He also stated that on 20th/21st December, 2007 appellant requested for a room on rent in the old house. His request was acceded to and he stated that on 3rd January, 2008 he had brought the prosecutrix alongwith him and on making enquiry about it he told him that she had run from her house and he would leave her in her house next morning. On 9th January, 2008 he went to their room and noticed that the appellant and the prosecutrix were sitting together in the room and enquired why she was not left at her house. Upon this, he did not tell anything. However, the prosecutrix told him that she wanted to marry the appellant. He requested the prosecutrix to give the telephone number of her house, but she refused to give the same, but when he put pressure on her she disclosed the telephone number but at the same time she requested not to inform her mother. But despite that he informed the mother of the prosecutrix and the prosecutrix was recovered. 17. On the critical examination of the aforesaid evidence it is made out that the prosecutrix intended to marry the appellant and at the same time she testified that she was allured by the appellant to marry him and further stated that she was raped by him 2-3 times. As already stated above, the prosecutrix at the relevant time was minor who was of less than 16 years. Thus, even her consent is no - 14 - consent in the eyes of law. Therefore, the question of consensual intercourse by the appellant with the prosecutrix who was of his daughter’s age cannot be accepted. Therefore, the offences charged against the appellant are made out and his conviction under the aforesaid offences is upheld. 18. So far as the sentence under Section 376(1) of the Indian Penal Code is concerned, in the aforesaid circumstances appears to be excessive thus it is reduced to four years without disturbing the fine. To this extent the sentence stands modified and the sentence under other sections is maintained. Hence the appeal is partly allowed by modifying the sentence to the above extent and all sentences shall run concurrently as ordered by the learned trial Court. Accordingly, the learned trial Court is hereby directed to send the modified warrant in conformity with the judgment of this Court to the Superintendent of Jail concerned. 19. Send down the records. December 1, 2010. (Surinder Singh), J. (rc)