Crl.Misc.No.552-MA of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Misc.No.552-MA of 2010 (O&M) Date of decision: 27.10.2010 Nirmla Devi ... Applicant versus Baljit Singh and another ... Respondents CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL. HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.Sunil Polist, Advocate, for the applicant. ... JORA SINGH, J. Nirmla Devi filed this application under Section 378(4) Cr.P.C. read with Section 482 Cr.P.C. for granting permission to file appeal to challenge the judgment dated 15.1.2010 passed by Additional Sessions Judge, Kaithal, arising out of FIR No. 146 dated 26.8.2008 under Sections 376/452/506 IPC. , Police Station Kalayat. By the said judgment, Baljit Singh, respondent, was acquitted of the charge levelled against him. Against acquittal, no appeal has been filed by the State. Along with application for permission to file appeal, application under Section 5 of the Limitation Act was moved for condonation of delay of 19 days in filing the appeal. In view of the allegations in the application, we are of the opinion that there is no intentional or deliberate delay in filing the appeal. Accordingly, 19 days' delay in filing the application for grant of leave to appeal as well as appeal is condoned. Crl.Misc.No.552-MA of 2010 (O&M) 2 Application is, accordingly, allowed. Prosecution story, in brief, is that Nirmla Devi wife of Rajinder, complainant, is the mother of the prosecutrix and reported to the police that she has three daughters and two sons. Two eldest daughters are married and the youngest daughter, namely, prosecutrix, is unmarried. Both sons are school going and are younger to the prosecutrix. On 26.8.2006, when she was present in the house, then prosecutrix started vomiting. On enquiry, prosecutrix informed her that about three months back when she was alone in the house, then Baljit Singh, respondent, came inside the house. She was caught hold and took her inside the room, where string of her salwar was broken forcibly and was raped against her wish. She tried to raise noise but accused gagged her mouth and prevented to speak. Subsequently also, whenever accused noticed her ( prosecutrix) alone in the house, then he used to come and continued to commit rape upon her. She was threatened to face dire consequences in case disclosed about the incident to anybody. After the incident was brought to the notice of the complainant, then complainant brought all these facts to the notice of her husband, namely, Rajinder. Complainant suspected that prosecutrix has become pregnant. After recording statement of the complainant (Ex.PB), same was sent to the police station, on the basis of which, formal FIR (Ex.PB/1) was recorded. Prosecutrix was produced before the doctor for medico legal examination. Application (Ex.PF) was also moved requesting the doctor to opine as to whether prosecutrix was raped or not, secondly, whether she was pregnant or not and if pregnant, then what was the age of foetus. Clothes worn by the prosecutrix were sealed and sealed parcel was taken into police possession vide separate memo attested by the witnesses. Crl.Misc.No.552-MA of 2010 (O&M) 3 Prosecutrix was also produced before the doctor for radiographic test. As per x-ray report (Ex.PD), doctor opined that age of the prosecutrix is between 17 to 19 years and is pregnant. Age of foetus was reported to be of 18 to 20 weeks. Application (Ex.PN) was moved requesting the Ilaqa Magistrate to record the statement of prosecutrix under Section 164 Cr.P.C. Ex.PA dated 28.8.2006 is the statement of prosecutrix recorded under Section 164 Cr.P.C. Baljit Singh, respondent-accused, was arrested and was produced before the doctor for medico legal examination. Rough site plan with correct marginal notes was prepared. After completion of investigation, challan was presented in Court. Accused was charged under Sections 376/452/506 IPC, to which he pleaded not guilty and claimed trial. Prosecution examined 13 witnesses. PW1 is the prosecutrix and stated that about 1-1/2 years ago, when she was alone in the house, then at about 10.00 AM, Baljit Singh came inside the house. She was caught hold by the accused and was raped against her wish after string of her salwar was broken. Accused had threatened her to face dire consequences in case matter was reported to anybody. Further stated that accused used to visit her house for 3-4 days continuously and during these days, she was raped against her wish. Later on, her mother came to know about the incident when she started vomiting. Everything was brought to the notice of her mother as to how she was raped by the accused. PW2 Nirmla Devi is the mother of prosecutrix and stated that when prosecutrix started vomiting, then she ( prosecutrix) had brought Crl.Misc.No.552-MA of 2010 (O&M) 4 entire episode to her notice. Prosecutrix was also produced before the doctor for medico legal examination. Statement of prosecutrix was also recorded by the Magistrate. PW3 Dr. Lajja Ram proved his report (Ex.PD) and stated that in view of application (Ex.PC), after ossification test, age of the prosecutrix was found to be between 17-19 years. As per ultra sound examination, single foetus of 18-19 weeks was noticed. PW4 Dr. Renu Chawla has medico legally examined the prosecutrix on 26.8.2006. No injury on the person of prosecutrix was noticed. Pregnancy was found to be of about 14-16 weeks' old. PW5 SI Ajit Singh has partly investigated the case in hand. PW6 Constable Ramesh Kumar has handed over sealed envelope containing copy of FIR to higher authorities on 26.8.2006. PW7 ASI Umed Singh on receipt of ruqa (Ex.PB) has recorded formal FIR (Ex.PB/1). PW8 Dr. Sandeep Jain has medico legally examined Baljit Singh. Baljit Singh was found fit to perform sexual intercourse. PW9 is the Draftsman, who has prepared scaled site plan (Ex.PL). PW10 HC Shamsher Singh is the marginal witness of recovery memo (Ex.PM) vide which belongings to Baljit Singh were taken into police possession. PW11 Gurvinder Kaur, SDJM, Pehowa, has recorded statement of the prosecutrix under Section 164 Cr.P.C. (Ex.PA) in view of application (Ex.PN). PW12 Sultan Singh is the Investigating Officer. Crl.Misc.No.552-MA of 2010 (O&M) 5 PW13 Constable Krishan Kumar tendered his affidavit (Ex.PR). PW Satyawan, Head Teacher, brought original admission register. As per record, prosecutrix was admitted in the school on 25.6.1999 and her date of birth was 20.6.1993. After close of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused was that date of birth of the prosecutrix has been wrongly recorded in the school record. Prosecutrix is major and is more than 16 years. In defence, documentary evidence (Ex.D1 to Ex.D12) was produced. After hearing learned Public Prosecutor for the State, learned defence counsel for the accused-respondent and from the perusal of evidence on the file, accused was acquitted of the charge levelled against him. We have heard learned counsel for the applicant and have gone through the file. Learned counsel for the applicant argued that prosecutrix was less than 16 years of age and was alone in the house when she was raped by the respondent-accused against her wish. Later on also, whenever prosecutrix was found alone in the house, then respondent-accused had raped her against her wish. Three months after the first incident, when prosecutrix started vomiting, then her mother (complainant) on enquiry came to know that prosecutrix was raped against her wish by the Crl.Misc.No.552-MA of 2010 (O&M) 6 respondent-accused. Prosecutrix was medico legally examined. Doctor reported that prosecutrix was raped. When prosecutrix was less than 16 years of age, then her consent is immaterial. Respondent-accused was acquitted of the charge on the allegation that prosecutrix was major and was the consenting party. But evidence on the file was not rightly scrutinized by the trial Court. From the perusal of file, we have to see whether there was a delay in lodging the FIR. When there was previous litigation amongst the parties, then whether story is probable that respondent-accused had raped the prosecutrix against her wish in her house and why she remained silent for about three months, whether prosecutrix was more than 16 years of age and was the consenting party. Respondent-accused produced number of documents (Ex.D1 to Ex.D12) and documents on file show that there was previous litigation amongst the parties. Complainant when appeared in Court, then admitted that there was previous litigation amongst the parties. According to the prosecution story, three months earlier to the FIR, prosecutrix was alone in the house when respondent-accused came and had caught hold her forcibly. In the house of prosecutrix, respondent- accused had raped her against her wish. After raping for the first time, later on whenever prosecutrix was found alone in her house, then respondent- accused had raped her against her wish. Prosecutrix was threatened to face dire consequences if matter was brought to the notice of anybody. But statement of prosecutrix inspires no confidence because when there was previous litigation amongst the parties and house of the prosecutrix was within abadi and incident was during day time at about 10.00 AM, then respondent-accused was not expected to visit the house of prosecutrix and Crl.Misc.No.552-MA of 2010 (O&M) 7 rape against her wish. In case respondent-accused had gone to the house of prosecutrix and had raped her against her wish, then prosecutrix was expected to raise hue and cry. Respondent-accused was not armed with any deadly weapon. At the time of rape or after rape if prosecutrix was not in a position to raise hue and cry, then prosecutrix was expected to inform her parents after respondent-accused had left the house. There was no idea to remain silent about the occurrence. After raping the prosecutrix for the first time, respondent-accused had gone to his house. Later on, respondent- accused again had gone to the house of the prosecutrix whenever she was found alone in the house. Prosecutrix was repeatedly raped by the respondent-accused. If on the first day, prosecutrix due to certain reasons was not in a position to raise hue and cry, then on the next time, she was expected to raise hue and cry on seeing the respondent-accused. There was no idea to remain silent. When she started vomiting, only then she had disclosed about the entire incident to her mother. No explanation why delay of three months in lodging the FIR. According to prosecution story, prosecutrix was less than 16 years of age but this fact is not correct one. Prosecutrix was medico legally examined on 26.8.2006 by Dr. Renu Chawla. No injury was noticed on the person of the prosecutrix . Prosecutrix was found pregnant and pregnancy was of about 14-16 weeks old. Dr. Lajja Ram had conducted ossification test. Ex.PD is the report. X-ray films are from Ex.P1 to Ex.P5. According to ossification report (Ex.PD), age of the prosecutrix was between 17 to 19 years. Ex.D12 is the certificate issued by the Registrar, Birth and Death, and as per certificate, date of birth of the prosecutrix is 20.6.1988. Crl.Misc.No.552-MA of 2010 (O&M) 8 That means, prosecutrix was major. Three months after rape of prosecutrix for the first time by the respondent-accused, complainant Nirmla Devi, mother of the prosecutrix , came to know about the entire episode. At that time, prosecutrix was found to be pregnant. At the time of medico legal examination, prosecutrix was pregnant. Foetus was of the age of 14-16 weeks. According to the allegation of the prosecution, prosecutrix became pregnant because she was raped repeatedly by the respondent-accused. Application was moved by the respondent-accused for conducting DNA test. In view of application, SP, Kaithal, entrusted the matter to SHO, Police Station Kalayat for enquiry. Statements of prosecutrix and her mother were recorded. Ex.D8 and Ex.D8/1 are copies of statements of prosecutrix and her mother dated 1.10.2006 but they had contested the application and declined to get DNA test conducted. Respondent-accused moved another application in the Court of JMIC, Kaithal, for conducting DNA test of the prosecutrix. Notice of the application was given to the prosecutrix. Inspector Sultan Singh, Investigating Officer, appeared as PW12 and reported to the Court about the miscarriage of foetus. In case the prosecutrix was raped repeatedly by the respondent-accused and she was pregnant, then there was no idea to contest the application for DNA test. On the basis of report (Ex.PD) and certificate (Ex.D12) issued by the Registrar, Birth and Death, trial Court safely came to this conclusion that prosecutrix was more than 16 years of age. When there was previous enmity amongst the parties and prosecutrix was more than 16 years' old as per Ex.PD and Ex.D12 and there was no injury on the person of the prosecutrix, who was raped repeatedly within a period of three months earlier to the lodging of FIR, then we are of Crl.Misc.No.552-MA of 2010 (O&M) 9 the opinion that prosecutrix was the consenting party. For the reasons recorded above, we are of the view that evidence on file was rightly scrutinized by the trial Court. Impugned judgment is to be set aside if the same is perverse and against law and facts. When there are two versions, then the version favourable to the accused is to be accepted. Application for leave to appeal is declined. ( JORA SINGH ) JUDGE 27.10.2010 ( SATISH KUMAR MITTAL ) pk JUDGE