IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.616 of 2001 Date of decision : July 9, 2009 Panna Lal …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Vinay Thakur, Advocate. For the Respondent : Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, J (Oral) Appellant Panna Lal has appealed against the judgment, dated 1st November, 2001, of Sessions Court, whereby he has been convicted of offence, punishable under Section 376 of the Indian Penal Code, and sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.5,000/-; in default of payment of fine to undergo simple imprisonment for a further period of one year. 2. Case of the prosecution, as per evidence on record, is that on 5th February, 2000, prosecutrix, who was examined as PW-4, accompanied by her Mama Bhajan Dass, visited Police Station, Rohru, and reported that on 31st January, 2000, when she had gone to the forest to graze cattle, appellant, who was grazing his sheep in the same forest, came to her and forcibly carried her to a lonely place in the forest and committed rape on her. Whether reporters of the local papers may be allowed to see the judgment? …2… 3. Police got the prosecutrix medically examined from PW-1 Dr. Sunita Gupta. Medical examination of the prosecutrix showed that she had been subjected to sexual intercourse, more than 72 hours, before her examination. Her hymen was found ruptured. Vagina admitted little finger tightly, indicating that she was not used to sexual intercourse. Also, it was noticed that there were shrunken tags of ruptured hymen. 4. On completion of investigation, challan was filed in the Court of concerned Judicial Magistrate, who, after complying with the requirement of law, committed the case to the Sessions Court. Case was assigned to the learned Additional Sessions Judge, who framed the charge, under Section 376 of the Indian Penal Code, against the appellant and on his pleading not guilty proceeded to try him. At the end of trial, appellant was found guilty and convicted and sentenced, as aforesaid. Appellant has challenged his conviction and sentence. 5. Learned counsel for the appellant submits that statement of the prosecutrix does not inspire confidence and evidence regarding her being below the age of 16 years is also of doubtful nature. According to the learned counsel, delay of five days in lodging the FIR, by itself, is a circumstance rendering prosecutrix’ statement doubtful. 6. It is true that the incident had taken place on 31st January, 2000 and report was lodged on 5th February, 2000, but it appears from the testimony of the prosecutrix that she lodged the report only after her Mama Bhajan Dass heard the …3… rumour from the villagers that she had been subjected to rape. That means but for the Mama of the prosecutrix getting to know about the incident, the matter would have gone unreported. That, however, does not mean that the incident had not taken place. It is quite likely that the prosecutrix did not report the matter, out of shame or it may also be on account of the fact that she was a willing party to the act. Her willingness would, however, not take away the act of the appellant out of the purview of offence, under Section 376 of the Indian Penal Code, because of the prosecutrix being sixteen years of age. Prosecutrix was born in January, 1984, per Panchayat record (entry Ex. PW-11/A in Pariwar Register) and Ex. PW-10/A (entry in the certificate issued by the school, attended by the prosecutrix). 7. Testimony of the prosecutrix is corroborated by the medical evidence, in the form of the testimony of PW-1 Dr. Sunita Gupta and the medical report Ex. PW-1/A issued by her. There is no reason to disbelieve the same. Also, the prosecutrix did not have any motive for falsely implicating the appellant and this lends an assurance to the version testified by the prosecutrix, during the course of trial as also given to the police, by means of FIR Ex. PW-4/A. 8. In view of the abovestated position, I find no fault with the judgment of the trial Court, convicting the appellant of an offence, punishable under Section 376 of the Indian Penal Code. Hence, the conviction for the aforesaid offence is upheld. …4… 9. As regards the sentence part, prosecutrix has filed an affidavit in this Court, per which she is now married to the appellant and three children have been born out of the wedlock. On the last date of hearing, i.e. 2nd July, 2009, the prosecutrix appeared in the Court alongwith all the three children and pleaded for mercy in favour of the appellant. Learned counsel for the petitioner, relying upon a judgment of Hon’ble Supreme Court in State of Punjab versus Rakesh Kumar, AIR 2009 SC 391, has pleaded that settlement of a convict in life, after the commission of the crime, is a special and adequate reason for not awarding minimum prescribed sentence, especially when the prosecutrix was on the verge of completing the age of 16 years. 10. In the precedent relied upon by the learned counsel, convict was sentenced to three years imprisonment and fine of Rs.500/- by the High Court. Reasons given by the High Court were that the convict had settled in life, after the commission of crime, the prosecutrix was on the verge of attaining the age of 16 years and her father had pleaded for showing mercy to the convict. Matter was taken to the Supreme Court by the State, for enhancement of punishment. Hon’ble Supreme Court held that adequate and special reasons, for not awarding the minimum prescribed sentence of seven years imprisonment, could not be stated in a jacket-strait formula and that the reasons taken into consideration by the High Court were adequate and special. …5… 11. In the present case, the appellant has married the prosecutrix herself and three children are born out of their wedlock. Prosecutrix wants mercy to be shown to the appellant, on the plea that if he is sent to jail, she and her children will have no one to maintain and look after them. In this case also, the prosecutrix had completed age of fifteen years and was in sixteenth year of her age, when the incident took place. It appears, as noticed hereinabove, she was a willing party to the act of sex. Taking into account all these facts, sentence of seven years imprisonment, awarded by the trial Court, is reduced to one year and a fine of Rs.5,000/-. In default of payment of fine, the appellant shall undergo simple imprisonment for a further period of three months. Appeal stands disposed of. July 9, 2009(sd) ( Surjit Singh ), J