IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 256 of 2002 Reserved on: 10.5.2010 Date of decision: 27.05.2010 Ram Lal ... Appellant Versus State of H.P. … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the appellant: Mr. Vinay Thakur, Advocate. For the respondents: Mr. Vikas Rathore, Deputy Advocate General and Mr. J.S. Guleria, Assistant Advocate General. V.K. Ahuja , J. : This is an appeal filed by the appellant under Section 374 Cr.P.C. against the judgment of the Court of learned Sessions Judge, Kinnaur at Rampur, dated 4.5.2002, vide which the appellant was held guilty under Sections 376, 366, 342, 506 I.P.C. and was sentenced as under:- 1. Under Section 376 (1) I.P.C.: Accused is sentenced to R.I. for seven years and fine of Rs.1,000/- . 2. Under Section 366 I.P.C.: The accused is sentenced to R.I. for four years and fine of Rs.1000/-. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 3. Under Sections 342 and 506 I.P.C.: The accused is sentenced to R.I. for six months each. In default of payment of fine, the accused shall undergo further S.I. for one year each under Sections 366, 376 I.P.C. 2. Briefly stated, the facts of the case are that on 8.11.2000, at about 10.00 A.M., a report was lodged with the police by one Kumari ‘S’, name not mentioned, accompanied by her father that she is studying in Senior Secondary School in +1 Class. On 6.11.2000, when she was coming back from the school, appellant met her on the way and told her that he wants to marry her. He further stated that if she will not accompany him, he will kill her and under a threat, the appellant took her to his house and throughout the night performed sexual intercourse with her against her will. On the next morning, he took her to another village to the house of his relative and there also after giving a threat committed sexual intercourse with her. He also gave her a threat in case she disclosed these facts to any person, he will kill her. It was further alleged that when she did not reach her house, on 7.11.2000, her father and uncle searched for her and came to the house of the relative of the appellant and on seeing her uncle and father, the appellant ran way. The report could not be lodged on the same day and it was lodged on the next date and the prosecutrix was accompanied by her father and uncle. On this report, a case was registered and after investigation, the challan was filed before the Court of learned S.D.J.M., Ani, Disrict Kullu, who 3 committed the case to the Court of learned Sessions Judge, who tried the appellant leading to his conviction and sentence as detailed above. 3. I have heard learned counsel for the parties and have gone through the record of the case. 4. The submissions made by the learned counsel for the appellant were that the first point to be considered by the Court is that the age of the prosecutrix on the date of the occurrence was above 18 years and as such, she could voluntarily give consent to the sexual intercourse performed with her. It was submitted that it is in evidence of the prosecutrix that she covered one hour on foot to the house of the accused and then on the next day, she covered a distance of one hour to village Tharvi and there is nothing on record to show that she made any attempt to run away or raise an alarm or protest when the sexual intercourse was performed with her, which clearly shows that she had been a consenting party to the act. It was also submitted that it is not her case that was no opportunity for her to escape or that she was forcibly taken to both the places or that she was forcibly dragged or lifted. It was also submitted that there were no abrasions etc. on her body when she resisted her forcibly being taken to the house of the accused and then to the house of his relative and there are no marks of struggle or protest when the sexual intercourse was done, which all suggest that she was a consenting party and as such, the ingredients of the offence had not been proved since sexual intercourse was done with her consent and, therefore, the findings of the learned trial Court to the contrary holding the appellant guilty are liable to be set aside. 4 5. On the other hand, the learned Deputy Advocate General for the respondent had supported the impugned judgment for the reasons given therein and as such, it was submitted that there is no merit in the appeal filed by the appellant, which be dismissed accordingly. 6. The first point to be considered is regarding the age of the prosecutrix as to whether she was above age of 16 or 18 or was able to give her consent to the sexual intercourse committed with her. A reference has to be made to the evidence led by the prosecution in this regard. PW-2 ‘S’ prosecutrix or her father as PW-3 have not stated in regard to the date of birth of the prosecutrix and even there is no oral statement made by her in regard to the age. PW-5 Hira Lal Bhaik, Lecturer, in Senior Secondary School, Arsu, has stated that he looked into the record and as per the record, date of birth of PW-2 was 24.2.1982 and he issued certificate Ext. PW5/A in this regard. He admitted that she was admitted in this school after having done +1. She was a student of Senior Secondary School, Arsu, prior to her admission in +1 and the date of birth certificate produced by him was never challenged in his cross-examination. 7. Similarly, PW-6 Atma Singh, Secretary, Gram Panchayat, has stated that he prepared date of birth record of PW-2 and produced Ext. PW6/A vide which, the date of birth recorded is 24.2.1982. He had not brought the register of birth and it was maintained by the Gram Panchayat, on the basis of which, this entry had been made in the Panchayat record. The above evidence which was not challenged in cross-examination clearly shows that the prosecution has led evidence to show that the date of birth of the prosecutrix was 24.2.1982. Thus, on the date of the occurrence on 5 6.11.2000 she had already crossed the age of 18 and as such, was of the age about 18 years and about 8/9 months. This clearly shows that neither the prosecutrix was a minor nor was below the age of 16 years on the date of commission of offence and as such, she could give her consent to the sexual intercourse done with her. 8. Coming to the next question as to whether the sexual intercourse was done with her against her will, PW-2 ‘S’, prosecutrix has stated that she was student of +1. On 6.11.2000 she returned from her school and the accused met her on the way, caught hold of her from the arm and asked her to accompany him to his house for the purpose of marriage. She resisted the advances of the accused person. He threatened her to death by brandishing knife and took her to his house in village Nandan. She was made to enter the house from the rear side. The accused closed the door and subjected her to repeated sexual intercourse during night without her consent and against her will. The accused had done repeated sexual intercourse with her throughout the night. She further stated that in the morning next day, the accused gave her clothes since she was wearing school uniform and she put the clothes provided to her by the accused. Thereafter the accused had taken her from his house in village Nandan to the house of his relative in village Tharvi. He kept her in a separate room and subjected her to repeated sexual intercourse at the house of his relative. He committed sexual intercourse by giving her threat. She further stated that when she did not reach the house on 6.11.2000, her father and uncle came to the village of the relative of the accused on the next day and the accused escaped. She was brought by her father and 6 uncle to village Tharvi and since it had become dark, she lodged the report on the next day. 9. PW-1 Dr. Rakesh Kumar Gupta, had conducted medical examination of the prosecutrix aged about 18 years and had observed as under:- “ ………. History was given by the victim. She had stated that she was coming from school to her house on 6.11.2000 at 4.30 P.M. Sh. Ram Lal had met her in the way and he had taken her to his house by force. There the victim and the accused person had stayed together at night and Sh. Ram Lal had forced her to have sexual intercourse with him throughout the night. Next day he had taken her to another village (Tharvi) where he had again forced her to have sexual intercourse with him. The parents of the girl had rescued her at midnight from Sh. Ram Lal. The parents had brought Satya Kumari to her house at night intervening 7th and 8th November, 2000. I identify Satya Kumari present in the Court. ………. Examination of injuries - No evidence of injury to face, throat, abdomen, forearm, thighs, legs, hands and feet. Examination of genital organs - Slight oozing of blood from the vagina had been observed by me. Hymen was torn. Edges were reddish and had bled on touching. Vaginal orifice had admitted 2 fingers. While taking vaginal smear from posterior fornix, blood had come in the swab. In my opinion Satya Kumari had been subjected to sexual intercourse. Satya Kumari was not habitual of sexual intercourse.” He had issued MLC Ext. PW1/A and the application filed by the police has been proved as Ext. PW1/B. 7 10. PW-3 ‘B’, father of the prosecutrix, has stated that his daughter did not return in the evening of 6.11.2000 and learnt that she had not attended the school. On 7.11.2000, he learnt that she had been taken by the accused to the house of Shri Dev Raj in village Tharvi. On 7.11.2000, he went there alongwith Shyam Lal. He reached the house and the accused managed to escape through the rear door. He interrogated his daughter who informed that the accused had terrorized her and compelled her to accompany to his house and then to the house of Dev Raj in village Tharvi. She also informed him that the accused had terrorized her by brandishing knife before her. She also stated that she had been subjected to sexual intercourse repeatedly without her consent and against her will. He went to Police Station alongwith his daughter and lodged a report Ext. PW2/A. 11. PW-4 Dr. R.D. Goel had examined the accused and observed as under:- “ ………. Physical Examination - Normally developed, healthy individual sufficiently strong, well developed secondary characters i.e. (adam’s apple, voice, pubic hair, moustaches beard) well developed. Penis and testicles were well developed. ………. There was no mark of struggle seen on the person. There was no injury mark over body in particular (genital region) and also not blood or mud or vaginal secretion etc. over penis and around penis. ………. In my opinion the accused person Ram Lal was capable of committing sexual intercourse as per MLR 8 Ext.PW-4/A. I had seized underwear of the accused person. The semen of the accused person had also been collected. The underwear and the semen had been duly sealed and had been handed over to the police for chemical analysis. I had examined the accused person Ram Lal in response to application Ext.PW-4/B of the police.” 12. PW-8 Chander Singh, ASI, had recorded the supplementary statement of the prosecutrix under Section 161 Cr.P.C. PW-9 S.I./SHO Prakash Chand had prepared the supplementary report under Section 173 Cr.P.C. on receipt of report Ext.PX of the Chemical Examiner. PW-10 Guddu Brahamchari, constable, had taken the case property i.e. sealed packets to the office of CFSL, Junga and deposited them there. PW-11 Narinder Kumar, MHC, had received the case property, sent the sealed packets through Ugam Ram, constable and sent them again through constable Guddu Brahamchari. PW-12 Ugam Singh, constable had taken the sample once and returned back. PW-13 Zindu Ram, S.I. had investigated the case partly and prepared recovery memos etc. 13. On appraisal of the evidence led by the prosecution, it is very much clear that the case mainly rests upon the testimony of the prosecutrix and as to whether it is sufficient to prove that the sexual intercourse was done with her against her consent or that she was taken forcibly to his house by the accused and then to another village of his relative and kept there against her will. Therefore, statement of the prosecutrix has to be appreciated to arrive at correct conclusion. PW-2 Kumari ‘S’ admits in her statement that it had taken about one hour for her to reach the house of the accused. She admitted that 9 highway from Deem to Arsu is the same which is used by the public as a pedestrian path. She admitted as correct that students leave the school for their house together, though she came up with the plea that the students from her village were in junior classes and she was a senior student and school did not close together for all the classes. However, she admitted that her brother was also a student of the same class , that is, +1. She did not state as to why he was not accompanying her on that day. She clearly stated that it had taken one hour for the accused and herself to reach the house of the accused person. Thereafter, she further stated that it had taken one hour for the accused and herself to reach village Tharvi from village Nandan. Thus, it is clear that she covered a distance of one hour on foot to the house of the accused and on the next day another one hour to reach village Tharvi. She did not state that she raised an alarm on the way or made any attempt to escape and she had been taken through the public path, which is also used by the others. It appears from her statement that normally students leave together in the evening after school is over, but she came up with a plea that other students were junior and they had gone earlier on that day. However, this statement does not inspire confidence and the fact that her brother was also a student of same class cannot be ignored. She did not state that the accused had taken her forcibly by dragging her or by carrying her on his shoulder or had used any transport to reach his house and then to the house of his relative on the next day. This clearly shows that neither any attempt was made by the prosecutrix to escape nor the accused used force for taking her to his house and then to the house of his relative. She is not an illiterate or 10 a young girl below the age of 16 years and since she was studying in +1 class, therefore, she was quite aware of the action of the accused. 14. Apart from the above, she admitted that she had gone for answering a call of nature and the accused was standing at a distance of 10-15 feet, but she made no attempt to run, though she came up with the plea that she attempted to run away. The fact that she clearly admits that the accused had committed sexual intercourse with her 15 to 20 times. This suggests that she was a consenting party to the sexual intercourse. It was not possible for the accused every time to remove her salwar forcibly and remove his pant and underwear and to commit the sexual intercourse with her against her will in this manner number of times. I need not comment about the number of times the sexual intercourse was committed with the prosecutrix, the inference can be drawn as to what it suggests. She stated that she had applied nails and tooth bites on the face of the accused person. But the report of the examination of the accused is contrary in this regard. She stated that the accused had brandished knife and given her a threat. But this was not so told to the police when the report was lodged. She clearly admitted that 40-50 girls and boys had attended the school from her village and nearby villages and they all go on foot, but there is nothing that any person was accompanying her and she accompanied any of those persons to reach back her house. She stated that junior classes had left the school at 3.30 P.M. and their classes had closed at 4.00 P.M., but voluntarily stated that on other days all the classes closed at the same time. She cannot assign any reason why junior classes had closed earlier. This clearly shows that she has deposed falsely and 11 all the classes closed at the same time. She did not state that she made any attempt to take the assistance of the occupants of the house of the accused at that time or raised an alarm or there was no house nearby or near the house of the accused in another village. It is not the case that there was no person in the house or she could not make any protest or complaint to the relatives of the accused or his family members at that time. She admitted the suggestion as correct that when her father and uncle reached, they were lying in the same bed and the door was bolted from inside. She was suggested that she had been carrying on the sexual activity with the accused for months together prior to that date, but she denied the suggestion. She clearly admits that she wore the clothes provided by the accused, but not made any protest at that time or made any attempt to escape. 15. Apart from the above, PW-1 Dr. Rakesh Kumar Gupta, has clearly stated that since there was no external injury to the prosecutrix, the sexual intercourse might have been done with consent. Coupled with this is the statement of PW-4 Dr. R.D. Goel that there were no injuries on the person of the accused over any part and there was no mark of struggle seen on his person. 16. From the above discussion, it is very much clear that the facts of the case clearly belie the testimony of the prosecutrix that she was forcibly taken or forcibly subjected to sexual intercourse by the accused. 17. Reference was made to the decision of Hon’ble Apex Court in State of Rajasthan Vs. N.K. The Accused, (2000) 5 Supreme Court Cases 30, wherein it was observed that the 12 testimony of the prosecutrix should be appreciated on the basis of probabilities like testimony of any other witness and conviction can be based solely on such testimony. But if Court finds it difficult to accept her testimony, it may seek assurance to her testimony, which may be short of corroboration, from other evidence. 18. Reliance was placed upon the decision in Dilip and another Vs. State of M.P., 2002 Supreme Court Cases (Cri) 592. The observations made in Paras 14 and 3 are relevant, which may be reproduced as under:- “In the instant case, the age of the prosecutrix was around 16 years, and therefore, she was not just a child who would have surrendered herself to a forced sexual assault without offering any resistance whatsoever. Hence, on facts of the case, the “probabilities factor” operates against the prosecutrix. Further, the testimony of the prosecutrix has been contradicted by the medical evidence as well as by the version of her maternal aunt (PW3) to whom she narrated the entire incident soon after its commission. According to the medical opinion, the prosecutrix was used to sexual intercourse. The presence of bloodstains on the clothes of the prosecutrix, as stated by her, was also not confirmed by the report of the Forensic Science Laboratory or by the doctors who examined her.” 19. The decision in State of H.P. Vs. Suresh Kumar @ Chhotu, AIR 2009 Supreme Court 1109 was relied upon. The observations made in Para 9 are relevant, which may be reproduced as under:- “We find that the High Court was justified in its conclusions about the prosecutrix having accompanied 13 the accused on her own and being a consenting party to the sexual acts. As rightly contended by learned counsel for the State, if the age of the prosecutrix was below 16 years, the consent would be of no consequence. But the High Court’s findings as regards the age of the prosecutrix cannot be said to be without any basis. The High Court has analysed the oral evidence and the documentary evidence to come to a conclusion that the date of birth of the prosecutrix as claimed by the prosecution has not been established. That being so, we find no merit in this appeal which is accordingly dismissed.” 20. On appraisal of the statement of the prosecutrix in the light of the above decisions, it is very much clear that if the statement of the prosecutrix is such which inspires confidence, it can be accepted without any corroboration. However, if the facts of the case clearly lead to only one conclusion that all along the prosecutrix had been a consenting party to the sexual intercourse, the appellant cannot be held guilty under Section 376 I.P.C. The evidence in regard to the threat given and the findings holding the appellant guilty under Section 506 I.P.C. are shaky since there is no reliable evidence in this regard. 21. The net result of the discussion is that the findings of the learned trial Court holding the appellant guilty under various sections and convicting and sentencing are liable to be set aside and as such, the appeal is accepted and the findings of the learned trial Court holding the appellant guilty and convicting and sentencing are accordingly set aside. Fine if realized, shall be 14 refunded back to the appellant. The bail bonds furnished by the appellant shall stand discharged forthwith. A copy of the judgment alongwith record be sent to the learned trial Court. 22. No case is made out for allowing the application bearing Cr.M.P. No. 177 of 2009, under Section 311 Cr.P.C. and other provisions for recalling the witnesses, since due opportunities had been given to the accused to cross-examine the witnesses. The application stands rejected. ( V.K. Ahuja ), May 27, 2010 Judge (BSS) 15