IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Appeal No. 543 of 2001 Date of decision: 22 .4. 2009 Narinder Kumar …..Appellant Versus State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 Yes For the Appellant: Mr. Aman Sood, Advocate. For the respondent : Mr. J.S. Guleria, Assistant Advocate General. Surinder Singh, J. (oral) The appellant was convicted under Sections 363, 366 and 376 of the Indian Penal Code for having kidnapped and raped the prosecutrix (15), and sentenced under the aforesaid sections as under:- For offence under Section 363 IPC. Two years and fine of Rs. 500/- or in default of payment of fine to undergo imprisonment for additional term of two months. For offence under Section 366 IPC. Rigorous imprisonment for a period of 4 years and to fine of Rs. 1000/- and in default of payment of fine to undergo imprisonment for additional term of four months. 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes. - 2 - For offence under Section 376 IPC. Rigorous imprisonment for a term of 7 years and to pay the fine of Rs. 3000/- or in default of payment of fine to undergo imprisonment for additional term of six months. The appellant has assailed his conviction and sentence on the ground that the learned trial court did not appreciate the evidence on record in the right perspective and also that the age of the prosecutrix was proved to be more than 18 years and the learned trial court did not appreciate the fact that the prosecutrix had voluntarily joined the company of the respondent and lived with him even after the institution of this case and delivered a baby. The appellant was represented by his Advocate Sh. Dharamvir Sharma, but he pleaded no instructions, he was allowed to withdraw from the case. Thereafter, notice was sent to the appellant but he was not traceable. However, it was reported on the process issued to the appellant that for the last about 2-3 years, he was not visiting his village, thus his whereabouts were not known. Thus, his bail bonds were cancelled and non-bailable warrants were issued against him. The show-cause notice was issued to his surety and proceedings under Section 446 of - 3 - the Code of Criminal procedure were initiated. In the proceedings under Section 446 of the Code of Criminal Procedure, the surety of the appellant was his father. Pursuant to the notice to him he deposited the bond amount and expressed his inability to produce him as his whereabouts were not known to him. Thus, it was thought expedient and in the interest of justice to appoint Advocate to defend the appellant at the State expenses. Shri Aman Sood, Advocate was in the approved list of the High Court and had the experience in the criminal side, as such he was appointed as an Advocate for the appellant in this appeal at the State expenses and the arguments in the matter were heard. It is submitted by the learned counsel for the appellant that evidence of the prosecution qua the age of the prosecutrix is not clinching. The ossification report shows that at the relevant time, she was more than 18 years of age. He also referred to the statement of the Head Master vis- à-vis the statement of the appellant recorded under Section 313 of the Code of Criminal Procedure and submitted that the evidence of the prosecution is quite contradictory and does not inspire confidence. It is also argued that the the sole testimony of the prosecutrix can not be relied upon in view of the statement of her - 4 - maternal uncle, who had tried to extort money from the appellant. Contra Shri J.S. Guleria, learned Assistant Advocate General, while supporting the impugned judgment of conviction and sentence, passed by the learned trial court submitted that in the instant case, the prosecutrix has been proved to be minor and the testimony of the prosecutrix inspires confidence and is corroborated in material particulars on record, therefore, there is no error in the impugned judgment. I have given my thoughtful consideration to the rival contentions of the parties and have reappraised the evidence on record. In brief, the facts putforth are that PW- 4 Pune Singh is the father of the prosecutrix, he was employed as driver in Model Central Jail, Nahan. His family members were residing in the area of Aut,(District Mandi), H.P. On 27.12.1996, he sent a communication Ext. P-C to the Superintendent of Police, Mandi informing him that his minor daughter (prosecutrix) had gone to the house of her maternal-grand parents in village Dabehar in Sub Tehsil Balichowki and from there, on 25.12.1996, she was kid-napped by the appellant and his co-accused Hukmi Ram in vehicle No. HP- 02-2104. Her maternal-grand parents being poor, informed him about the alleged occurrence since he - 5 - was not granted leave, he sought immediate action by the police. On the basis of the said complaint, Superintendent of Police, Mandi ordered to register the case. The police swung into action and recovered the prosecutrix on 1.1.1997 from the custody of the appellant from his house. On 2.1.1997, the prosecutrix was got medically examined in Zonal Hospital, Mandi and the appellant Narinder Kumar was also medically examined in P.H.C. Nagwaien. The wearing apparels of the prosecutrix were taken into possession and sent for the examination to the Forensic science Laboratory. After receipt of the report, the challan was presented in the court for trial of the appellant and his co-accused Hukmi Ram. The appellant and his co-accused were charge-sheeted, to which they pleaded not guilty and claimed trial. The prosecution examined its witnesses to prove the charges and the accused was examined under Section 313 of the Code of Criminal Procedure. At the end of trial, Hukmi Ram was acquitted and the appellant was convicted and sentenced as aforesaid, which he challenged in this appeal. Precisely, the defense of the appellant was that the prosecutrix had developed the liking for him and insisted upon him to marry her but her maternal uncle had tried to extort money from him - 6 - which was not paid, as such she was forced to lodge FIR against him and even after the FIR, the prosecutrix came and resided with him and delivered a baby. First of all I shall take the questionof age which is of paramount importance in this case. Shri Pune Singh PW-4, the father of the prosecutrix has deposed that prosecutrix was born on 26.1.1982, he got her entry made in the birth Register, within a week. He also stated that at the age of six, she was admitted in the School. PW-7 Dina Nath Mahajan, a teacher in the Government Middle School Manglore, had issued the certificate Ext. P-G wherein the date of birth of the prosecutrix is also depicted as 26.1.1982. Significantly, in the cross-examination of both these witnesses, the date of birth of the prosecutrix has not been assailed at all but however in the cross-examination of PW-7 Dina Nath, the accused exhibited the merit Certificate issued by the District Schools Sports Association Kullu Ext. D-A qua the prosecutrix wherein her date of birth is also shown as 26.1.1982. The entry in School admission register is relevant as held in Lekh Ram’s case (2006) 5 SCC 736 by the apex Court. Further, PW-6 Gurdyal Singh, Secretary of the Gram Panchayat has proved the said entry in the birth Register signed by her father Pune Singh (PW-4). Though the skeletal age - 7 - of the prosecutrix was opined to be 17 to 19 years, but the Doctor was not examined to prove it in view of the above overwhelming evidence regarding the date of birth direct and clinching on record. The prosecution is able to prove that at the relevant time, prosecutrix was less than 16 years. Therefore, whether there is consent or no consent, if the sexual intercourse by the appellant with her is proved, the offence of rape will stand proved. Thus proceed to reappraise the evidence of prosecution. PW-5 Tek Singh the maternal uncle of the prosecutrix categorically stated that on 18th/19th December, 1996 the prosecutrix had visited his house in Banwari in Sub Tehsil Balichowki. On 25.12.1996, she was asked to prepare the tea for the consumption of the volunteers employed for throwing manure into his fields. At about 4 O’clock in the evening when they disbursed after taking tea, the prosecutrix was not found in the house as she was required to prepare the meals for them. Her whereabouts were not known till next date. Thus, he informed her mother. The police visited him on 28.12.1996 in connection with the alleged episode. He accompanied them to the house of the appellant in village Shojha near Aut and found the prosecutrix in the house of the appellant. She was recovered from the house of - 8 - the appellant and memo Ext. P-D was prepared to this effect. Thereafter, she was subjected to medical examination and then handed over to him vide memo Ext. P-E. In cross-examination he stated that he did not know about her love affairs with the appellant. He denied the suggestion that he was ever demanding Rs. 25,000/- as hush money from the appellant. He was unaware of the fact that she delivered a male baby from the relationship with the appellant. He specifically denied that on 1.1.2000 the said baby was left by the prosecutrix in the precincts of Sub Jail, Mandi where appellant was lodged in jail. PW-4, father of the prosecutrix denied that at his behest and in connivance with Tek Singh, aforesaid, the appellant was taken to different places to extort money. He has specifically stated that no issue was born to her from the loins of the appellant and she never remained pregnant after the alleged incident. The prosecutrix was examined as PW-3 before the learned trial Court. She stated that she knew the appellant for the last about 3-4 years. He had married one Meera. When she was grazing cattle in the area of Fagu-Pul the appellant was found sitting there. He enquired about the whereabouts of Meera. 5-6 days thereafter when she was going along with her friend Guddi walking on the road, at Fagu Pul, the - 9 - appellant accosted her. He gave biscuits to her. She felt giddiness and her friend Guddi left her there. Thereafter she started following the appellant up to village Manglore. From there, she returned to her paternal house and after 7-8 days she proceeded to her maternal’s house situated in village Dabehar. On 25.12.1998, the volunteers were throwing the manure into the fields of her maternal uncle. She was present in the house and was required to prepare the tea to serve them. In the meanwhile, a small girl Geeta approached her and told her that some boy standing on the road was calling her. She went there and found the appellant present. He dragged her and threw her inside the Van. Co-accused Hukmi Ram was also with him. Thereafter, she was taken to village Nau to the house of the appellant. Thereafter Hukmi Ram returned with the vehicle and she was kept by the appellant in the house of his paternal uncle for about 7 days then again taken to Nau. He garlanded her and proclaimed that she was his wife. During the said period, the appellant is alleged to have committed sexual intercourse with her. The police came there and recovered her from the custody of the appellant. She further stated that she was got medically examined by Doctor and her salwar Ext. P-1 was taken into possession, which was worn by her continuously for all these days when she was in the company of the appellant. - 10 - In cross-examination, she denied that she had been meeting the appellant at 10 different occasions at Fagu Pul prior to the alleged episode. She stated that the appellant was a Bus Conductor at that time and was plying in the area of Fagu Pul. She denied that her maternal uncle Tek Singh was inclined to settle her marriage with the appellant. She also denied that there is a custom in her community to take the girl by enticing or by dragging. She also denied that Tek Singh had demanded Rs. 25,000/- for settling her marriage with the appellant lest he would be involved in a case. She further stated that she did not take bath during the aforesaid period of 9 days. She also denied that she had declined to undergo medical examination as she was in love with the appellant. She categorically stated that she did not give birth to any issue from the loins of the appellant. She also denied that the appellant had been pursuing her to perform the marriage with him. In his statement recorded under Section 313 of the Code of Criminal Procedure, the appellant gave entirely a different story of his side which was not put to the prosecutrix or any other witness. According to him, in the year 1996, he was working as a conductor in the Bus. In the month of December, when his bus was passing in the area of village Manglore, he gazed out - 11 - from the window. The prosecutrix was present on the roadside along with another girl carrying a rubber bottle full of water and threw it on his face. On the third day thereafter, the girl who was accompanying her boarded the bus and handed over a letter to him through which she expressed her desire to marry him lest she would commit suicide. She wanted him to disclose his particulars. He responded her call. Subsequently, she again conveyed her through letter to meet her at Bali Chowki in a fair. He met her there. She asked him to provide her with Jaleby sweets. Her friend persuaded him and also the prosecutrix to enter into a wed-lock. When he asked about the stand of the prosecutrix , she proclaimed that she would manage her parents. Thereafter, she was taken to his house in a Bus and since then she had been living with him for a period of about 6 months in the area of village Shojha. Her father contacted him on telephone and he desired to deposit an amount of Rs. 60,000/- in her name. He persuaded his father to go to the village of the prosecutrix but her father kept on giving threat to him and to proceed against him. Thereafter the FIR was lodged against him. When the police official reached his house, the prosecutrix disappeared and came after about two hours when they were apprehended. The prosecutrix declined to company the police and also to undergo - 12 - the medical test but she was subjected to medical examination forcibly. She had also obtained bail and after about six days he was also enlarged on bail. Thereafter he went to the native village. Subsequently, the prosecutrix contacted her on telephone and located about his whereabouts and joined him there. After about 8 days, her maternal uncle again came along with police party and told him to accompany him to village Dabehar and demanded ten tolaas of gold, 10 bighas of land and Rs. 10,000/-. Thereafter they disbursed. Even thereafter the prosecutrix kept on residing with him and gave birth to a issue on 3.4.1999. When he was appearing in the court the then presiding officer told him that he will acquit him provided he produce the prosecutrix in the court. Accordingly he advised the prosecutrix to do the needful but on the second day the prosecutrix ran away. In the meanwhile he went to his employer for arranging some money. She dropped the child in his house. When he returned to his house along with money he found the prosecutrix missing and the child was weeping. He kept the child in the custody and care of his ‘Bhabhi’. After four days, he left to the area of Jeuri for earning livelihood along with his younger brother. Then he again returned to his house and approached the police for surrendering himself. - 13 - The whole defense taken during his examination under Section 313 of the Code of Criminal Procedure appears to be an after thought to make out a case of consent. It stands already proved that at the relevant time, prosecutrix was less than 16 years of age whether there is consent or no consent, as already stated above, will not make any difference. The defense taken is palpably false. Even the birth of baby from the loins of the appellant, as alleged is also not proved in accordance with law. The prosecutrix had denied any love affairs with the appellant. She also denied the case of the defense as put to her in clear and unambiguous words and further she has alleged rape by the appellant and which fact has been corroborated by Dr. Neru Pandit Kapoor in her statement. In as much as she stated that vagina of the prosecutrix admitted two fingers easily and revealed slight blood stained discharge on examination. In her opinion she was exposed to coitus which fact has not been disputed in her cross-examination. Further, the report of the Forensic Science Laboratory conforms the fact of flood stains of her trouser which, according to the prosecutrix was wearing through out when she remained in the company of the appellant. Thus, there is material corroboration to the version of the prosecutrix. - 14 - Further, the learned counsel for the appellant argued that the prosecutrix was not virgin and this case was foisted to extort money from the appellant, but this argument has no legal force. In State of U.P. versus Munshi 2009 Cri. L.J. 393 the Supreme Court observed that in rape cases the fact that victim was previously accustomed to sexual intercourse is not a determinative question. On the contrary, the question which was required to be adjudicated is whether the accused commit rape on the victim on the occasion complained of. Even if it is hypothetically accepted that the victim had lost her virginity earlier, it did not and cannot in law give license to any person to rape her. It is the accused who is on trial and not the victim. Even if the victim in a given case has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. It is well settled that the prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot - 15 - be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court on facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would do. Thus after examining the statement of the prosecutrix, in the light of the above law and the facts, in my opinion, it is a clear cut case of rape having been committed by the appellant over the minor prosecutrix and the offences charged stand proved and I do not find any reason to upset the finding of conviction and sentence passed by the learned trial court as such the appeal is dismissed. Send down the records forthwith. The learned trial court shall take necessary steps to apprehend the respondent to execute the sentence. April 22, 2009 (Surinder Singh),J. (cm)