IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.68 of 2006 Decided on : September 2, 2009 Balkar Singh …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. Lovneesh Kanwar, Advocate. For the Respondent : Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, J (Oral) Appellant Balkar Singh has appealed against the judgment, dated 19th November, 2005, whereby he has been convicted of offences, under Sections 376 and 506 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.25,000/- for offence, under Section 376 of the Indian Penal Code, and to undergo rigorous imprisonment for three years and a fine of Rs.10,000/-, for offence, under Section 506 of the Indian Penal Code. 2. Prosecution case, as per evidence on record, may be stated thus. On 29th June, 2004, prosecutrix, examined as PW-1, went alongwith her younger sister Rajjo Devi (PW-6) to her father’s land, situated at a distance of Whether reporters of the local papers may be allowed to see the judgment? …2… half a kilometer from the village, to graze the pair of bullocks. Around 4 p.m., appellant, whose field is adjacent to the land of the father of the prosecutrix and was present there, called the prosecutrix to his field. When the unsuspecting prosecutrix proceeded towards his field, he moved towards the prosecutrix and when she reached a nullah, he overpowered her and committed rape on her. The prosecutrix narrated the incident to her younger sister. She then went home. Her father was not at home, at that time. He returned in the evening. The prosecutrix narrated the incident to him. The prosecutrix did not narrate the incident to her mother, because she is mentally retarded. Next day, prosecutrix had to appear in a terminal examination in the school. She was free, after the examination, around 1 p.m. Thereafter, she was taken to the Police Station by her father, where she lodged FIR Ex. PW-1/A. 3. Police got the prosecutrix medically examined. PW-2 Dr. Pushpa Bali Raizada conducted her medical examination and found that she was used to sexual intercourse. Appellant was arrested. He was also got medically examined. His medical examination indicated that he was capable of performing sexual intercourse. 4. On completion of investigation, appellant was challaned. Learned Judicial Magistrate, in whose Court the challan was filed, complied with the requirement of Section …3… 207 of the Code of Criminal Procedure and committed the case to the Sessions Court. Learned Sessions Court charged the appellant with offences, under Sections 376 and 506 of the Indian Penal Code. 5. Prosecution examined the father, Kesar Singh (PW-3), the sister, Rajjo Devi (PW-6), as also the prosecutrix as PW-1, besides examining the doctors, who conducted the medical examinations of the prosecutrix and the appellant, and the Investigating Officer of the case, to prove the charge. 6. Appellant denied having committed sexual intercourse with the prosecutrix. He pleaded that he had been falsely implicated, because the father of the prosecutrix wanted to purchase his adjoining land from him, which he refused and because of this he became inimically disposed towards him. 7. Learned trial Court disbelieved the defence version and held that the prosecution evidence was believable and consequently convicted and sentenced the appellant, as aforesaid. 8. We have heard the learned counsel for the appellant as also the learned Assistant Advocate General and gone through the record. 9. From a bare perusal of the testimony of the prosecutrix, who appeared as PW-1, her sister PW-6 Rajjo Devi and her father PW-3 Kesar Singh, we are of the …4… definite view that this was a case of consensual sexual intercourse. The prosecutrix stated that she had been called by the appellant towards his field and that when she reached the nullah, she was overpowered and raped. She has stated that after the commission of the alleged crime, she went home where her father was not there, as he had gone to Bangana and in the evening when he returned she narrated the incident to him, upon which he gave her a beating. She has stated that she passed her stool in her Salwar, when her father beat her up. That suggests that she was given a sound thrashing. 10. PW-3 Kesar Singh has though stated that he was not at home on that day, as he had gone to Bangana and that he retuned home around 4 p.m. and after some time the prosecutrix, his daughter, came to the house and told that she had been raped by the appellant, his statement is belied by his second daughter, namely PW-6 Rajjo Devi, who testified that that day her father came to the field and it was there that he came to know about the alleged rape and gave beating to the prosecutrix. PW-6 Rajjo Devi has also falsified the statements of PW-3 Kesar Singh and the prosecutrix (PW-1), with regard to the mental state of the mother of the prosecutrix. She has stated that her mother is a normal person and she and her siblings apprise her of their problems. …5… 11. It appears from an overall reading of the testimony of the prosecutrix and her sister PW-6 Rajjo Devi, as also that of their father PW-3 Kesar Singh, that the prosecutrix had had the sexual intercourse with the appellant voluntarily and because of that she was beaten up so severely that she passed stool in her Salwar. False plea of the mother of the prosecutrix being mentally retarded appears to have been raised by the prosecutrix and her father to cover up the conduct of the prosecutrix in not narrating the incident to her mother, which fact also implies that she was consenting party to the act. 12. Prosecutrix, as per testimony of PW-2 Dr. Pushpa Bali Raizada, was used to sexual intercourse. According to her, her (prosecutrix’) hymen was ruptured, with old tags, indicating that she had had her first act of sex long before the alleged incident. Her vaginal orifice admits two fingers easily, per statement of the said doctor. These facts indicate that she was used to sexual intercourse. 13. However, the fact that the prosecutrix appears to be a consenting party to the act of sexual intercourse does not mean that the appellant is entitled to acquittal. The prosecutrix was below 16 years of age, at the relevant time, and, hence, incapable of consenting to the sexual act. Her date of birth is 19th May, 1989, per Panchayat record, proved by PW-5 Rakesh Kumar, Panchayat Secretary. Ex. PW-5/A is the certificate issued by this witness, …6… according to which date of birth of the prosecutrix is 19th May, 1989. The certificate has been issued, on the basis of birth entry in the register of Births and Deaths, maintained by the Panchayat. Learned counsel for the appellant submits that the entry in the said register is doubtful. Photostat copy of the entry is Ex. D-1. PW-5 Rakesh Kumar admitted, in the cross-examination, that the name of the prosecutrix in the entry has been written subsequently. 14. It is a matter of common knowledge that the name of the child is not entered in the register, at the time of reporting the birth, because by then the child is not christened. In some cases, name of the child is entered subsequently, if reported by the parents or any other person. In many cases, reports regarding the name of the children are not made. So, the names do not figure in the entries at all. 15. It is also submitted by the learned counsel for the appellant that entry Ex. D-1 pertains to the second child of PW-3 Kesar Singh and his wife Kulwant Kaur, whereas according to the statement of PW-3 Kesar Singh, the prosecutrix is his first child. No doubt, entry in column No.19 of Ex. D-1 gives the impression that it pertains to the birth of second child, but learned defence counsel did not put any suggestion to the Panchayat Secretary, PW-5 Rakesh Kumar, or to the father of the prosecutrix PW-3 Kesar Singh, in this regard. PW-3 Kesar Singh very …7… categorically stated that his marriage had taken place in October, 1986 and that the prosecutrix, who is his first child, was born three years after the marriage. Possibility cannot be ruled out that when saying that the prosecutrix was his first child, PW-3 Kesar Singh meant that she was his first surviving child. 16. Birth entry in the Panchayat register corresponds with the entry in the school record of the prosecutrix. According to PW-12 Kishan Chand Sharma, a Teacher, the date of birth of the prosecutrix is 19th May, 1989, as per school record. He tendered in evidence a certificate Ex. PW-12/B, to this effect. Certificate is based on the entries in the Admission and Withdrawal Register, maintained by the school. Admission slip had also been proved by the witness, copy of which is Ex. PW-12/A. Incident had taken place on 29th June, 2004. That means the prosecutrix was a little less than 15 years, when the incident took place. 17. In view of the abovestated position, we hold that the appellant is guilty of the offence of rape, on account of the prosecutrix being below 16 years of age, though she appears to have been a consenting party to the act of sexual intercourse. In view of this fact, conviction of the appellant for offence, under Section 506 of the Indian Penal Code, cannot be upheld. However, his conviction for the offence, under Section 376 of the Indian Penal Code, is …8… maintained and upheld, but on account of the prosecutrix being a consenting party, the sentence is reduced from ten years rigorous imprisonment to seven years rigorous imprisonment. There is not reduction in the amount of fine. Appeal stands disposed of accordingly. ( Surjit Singh ), J September 2, 2009(sd) ( Surinder Singh ), J