IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No.66 of 2010. Date of Decision: 26th October, 2010. Pawan Kumar .. Appellant. Versus State of Himachal Pradesh .. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the appellant: Mr. Ramakant Sharma, Advocate. For the respondent: Mr. A.K. Bansal, Additional Advocate General and Mr. J.S. Rana, Assistant Advocate General. Surinder Singh, J (oral). The appellant has challenged his conviction and sentence passed by the learned Sessions Judge in Sessions Case No.11 of 2008, decided on 11th March, 2010, whereby he was convicted and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of ` 1,000/- under Section 376 of the Indian Penal Code and for one year each with fine of ` 1,000/- under Sections 363 and 366 of the Indian Penal 1 Whether the reporters of Local Papers may be allowed to see the judgment? - 2 - Code with default clauses. Substantive sentences of imprisonment were ordered to run concurrently. Pre-trial and under-trial period of detention of the appellant was ordered to be set off against the sentence passed. 2. Precisely the case of the prosecution can be stated thus. (i) Prosecutrix at the relevant time was studying in 9th standard in local Government School. At that time she was living with her parents (PW1 and PW3) in the village. There had been a summer break in July, 2008. Kaushalya Devi sister of PW3 Bisasan Devi was married to Jagat Ram in village Mokhas. Kaushalya Devi was not keeping well, thus requested Biasan Devi to send prosecutrix to attend her household chores. Therefore, the prosecutrix was sent to the house of Kaushalya Devi on 24th July, 2008. (ii) The appellant is the son of sister of Jagat Ram, husband of Kaushaya Devi aforesaid. On 30th July, 2008, appellant and his wife visited him and stayed there. The appellant took interest in the prosecutrix and allured her to offer higher education - 3 - and promised to provide better prospects in life. The prosecutrix, at that time, was around 15 years of age. Her date of birth is alleged to be 2nd May, 1993. She got swayed by the allurement offered by the appellant and the appellant enticed away the prosecutrix from the house of his maternal-uncle Jagat Ram. Finding her missing from his house, Jagat Ram and his wife started searching for her which did not yield any result. (iii) On 31st July, 2008 her father (PW1) was informed about her missing. He alongwith his wife rushed to the house of Jagat Ram. They also searched for the prosecutrix, but of no avail. (iv) On 5th August, 2008 PW1 her father lodged a complaint Ext.PW1/A in the Police Station, which culminated into FIR Ext.PW11/A. (v) PW12 ASI Hans Raj took up the investigation. (vi) The prosecutrix was recovered on 6th August, 2008 and was sent for the medical examination, which was conducted by PW9 Dr. Indu Bhardwaj. Doctor did not find any external mark of - 4 - injury. Her pubic hair were preserved. Hymen was found torn. No fresh tear was present, per P.V. examination. Her Medico Legal Certificate is Ext.PW9/A. Wearing apparels of the prosecutrix were taken into possession and vaginal swabs were also taken for the forensic examination. (vii) The custody of the prosecutrix was handed over to her father vide memo Ext.PW1/B. Her statement was recorded by the police. According to her, she was allured and taken by the appellant from the house of her maternal-uncle and was repeatedly raped by the appellant with effect from 30th July, 2008 to 5th August, 2008. Forensic examination report Ext.PX depicts human blood stains on the vaginal swab, pubic hair, Salwar and underwear. (viii) The appellant was arrested on 8th August, 2008 and was medically examined. His Medico Legal Certificate is Ext.PW6/A. He was granted bail on 30th October, 2008. His underwear was also taken into possession and sent for forensic examination. It was found to be blood stained. - 5 - 3. During the investigation of this case, the police took into possession the birth certificate of the prosecutrix from PW4 Wattan Singh, Secretary of the concerned Panchayat. The certificate is Ext.PW4/A whereby the date of birth of the prosecutrix is 2nd May, 1993. 4. The police also took into possession the certificate Ext.PW13/A alongwith copy of middle standard examination Ext.PW13/B of the prosecutrix from PW13 Shakti Chand, Principal, Government Senior Secondary School, Bangana, which also depicted the same date. 5. The police also prepared the site plan of the place of incident and recovery. After recording the statements of the witnesses and on completing the investigation, Challan was presented in the Court for the trial of the appellant. 6. Finding a prima facie case, the appellant was accordingly charge-sheeted for the offences aforesaid. 7. The prosecution examined its witnesses. The appellant was also examined under Section 313 of the Code of Criminal Procedure. His case was denial - 6 - simplicitor. According to him, he was falsely implicated in this case. 8. When called upon to enter into defence evidence, he did not lead any evidence. 9. At the end of trial, he was convicted and sentenced as aforesaid, which is under challenge in this appeal. 10. Shri Ramakant Sharma, learned Counsel for the appellant vehemently argued that the convict was falsely implicated in the case on the ground that the father of the prosecutrix wanted to marry her elder sister with him and further ventilated that the prosecution failed to prove by leading cogent evidence that she was less than 16 years of age and further that there was a delay in lodging FIR giving a chance to the complainant party for manipulation and deliberations. 11. Contra, Shri A.K. Bansal, learned Additional Advocate General duly assisted by Shri J.S. Rana, learned Assistant Advocate General, forcefully argued that the prosecutrix, in the instant case, stands proved to be less than 16 years of age. The prosecution banked upon the birth certificate of the prosecutrix issued by the Secretary - 7 - of the concerned Panchayat as also the middle standard examination wherein the same date of birth is depicted. It is also submitted that the prosecutrix has supported the case of the prosecution and also finds corroboration on material particulars proved on record. It is also ventilated that the defence raised by the appellant in this case is patently false. The appellant is a close relative of the prosecutrix. He was already married and there was no occasion to marrying the elder sister of the prosecutrix to him. It was totally a case of allurement offered by the appellant and the prosecutrix was taken away from the lawful guardianship of her maternal-uncle at the relevant time and the appellant committed the rape on her. Therefore, the conviction of the appellant is well founded and the sentence is reasonable. 12. I have given my thoughtful consideration to the rival contentions of the parties and have closely and carefully scanned the evidence of the prosecution. 13. The prosecutrix fully corroborated the case of the prosecution. She testified that her aunt Kaushalya Devi was ill. On 24th July, 2008, she had gone to the house of her aunt Kaushalya Devi in village Khurian. She used to - 8 - cook food for her. On 30th July, 2008 the appellant who is the nephew of her uncle Jagat Ram visited them alongwith his wife. On that day his wife cooked food for them and all of them took the food together. She further stated that during the same night, in the presence of his wife he allured her to offer better education, ornaments and got a better job for her. When the wife of the appellant was watching TV, he told her that he would divorce his wife and marry her. She further stated that the appellant took her on the pretext to take her to Bombay. On the way, she was taken under the culvert where she was raped. When she raised hue and cry, the appellant showed knife and threatened her with dire consequences. Thereafter the appellant told her to do everything according to his wishes. She was afraid of him. She further stated that next morning the appellant took her in a bus to Nangal, from there to Naina Devi in a truck. 14. During the night they stayed in the jungle for three days and she was raped by the appellant. From Naina Devi they got lift in a truck and spent a night in the said truck itself, where she was again raped. The truck- - 9 - wala is stated to have given her ` 100/- (currency note) and ` 200/- to the appellant. Both of them reached bus- stand Una, from where a car was hired by the appellant and both of them went to a Sarai which was nearby to the house of the appellant where they stayed for the night. Next morning they went to the house of the appellant. The wife of the appellant prepared food for them. After taking the food she told her to marry her brother-in-law. On this, she started crying and the father of the appellant left her on the road at 3 O’clock during the night and went away. The appellant threatened her and told her that she should tell her parents that she had left to Una of her own accord to visit Bombay. The police came to the house of her parents in the wee hours of the morning and recorded her statement. She was thereafter handed over to her parents. She identified the wearing apparels shown to her during the trial which consists of Ext.P1 Salwar, Ext.P.2 shirt, Ext.P3 Dupatta and Ext.P4 underwear. 15. In her cross-examination nothing material could be extracted from her, which could be weighed in favour of the appellant. She categorically stated that her - 10 - statement was recorded by the police before her medical examination. Although, the factum of knife and administering the threats to her after committing the rape under the culvert, did not find mention in her statement Ext.DB, yet she was categorical in her statement that she was raped repeatedly by the appellant at various places. She denied that her father wanted to get her elder sister engaged with the appellant and also denied false implication of the appellant in the instant case. 16. PW9 Dr. Mrs. Indu Bhardwaj did not over rule the possibility of sexual act with the prosecutrix. PW1 Yog Raj, the father of the prosecutrix, lends material corroboration to the statement of the prosecutrix. He testified that he had sent the prosecutrix to the house of Jagat Ram where his wife Kaushalya Devi was lying ill, to render help in the household work. He further stated that at the - relevant time she was a student of 9th class, under 16 years of age. He also proved the complaint (Ext.PW1/A) made to the police. He further stated that on 6th August, 2008 the father of the appellant had left the prosecutrix mid-way. He alongwith his wife Biasan Devi made enquiries from the prosecutrix and she narrated the - 11 - entire incident to them, as stated above. He further stated that she was allured by the appellant that he would get her a job and provide the gold ornaments. He further testified that the prosecutrix revealed that she was taken to various places by the appellant and they also spent four nights in the jungle in Naina Devi area. Similar is the statement of PW3 Biasan Devi. She also stated that on getting the information about the missing of their daughter, they made search in and around in their “Birdari”. She denied that her brother-in-law intended to engage her elder sister with the appellant. 17. On the critical examination of the aforesaid evidence, there is no room for doubt to discard the testimony of the prosecutrix. In fact cent percent accuracy cannot be accepted from a witness in a criminal case. Slight and minor variations are bound to occur during the examination of the witnesses in the Court owing to the time. Those minor discrepancies, can never be considered as fatal to the prosecution case. In the instant case, the statement of the prosecutrix is worth inspiring confidence. The defence taken by the appellant that the parents of the prosecutrix intended to engage - 12 - her elder sister with him is also proved to be false, as he was admittedly married at that time. Otherwise also, it cannot be said to be a ground for foisting a false case against him exposing the prosecutrix to such an allegation which could even mar her future and cause irreparable loss to her reputation and putting the honour of the family at stake. 18. On coming to know about the missing of the daughter of her parents, the police was informed and after registering the FIR the prosecutrix was recovered. The delay of few days in such type of cases is natural because the family has to decide at its cost, whether the matter be reported to the police and made public. Simultaneously, the future of an unmarried girl also bothered to her parents. It is, thereafter a bold decision is taken, to register the case. Thus, the delay in such type of cases is to be adjudged and approached, from a different angle. 19. Further, in so far as the age of the prosecutrix is concerned, PW4 Secretary of the Panchayat has proved the certificate with respect to the date of birth, which is Ext.PW4/A based upon the entry into the birth register - 13 - which carries the presumption of truth. In the birth certificate her date of birth is mentioned as “2.5.1993” and the same date of birth is depicted in the admission register of the school Ext.PW13/A proved by PW13 Shakti Chand and middle standard certificate (Ext.PW13/B) issued in favour of the prosecutrix also reflects the same date. There is no variation in the date of birth of the prosecutrix. Thus, at the relevant time she was proved to be 15 years and 2 months, i.e., less than 16 year. Further, her parents when examined in the Court also testified her to be less than 16 years of age and in cross-examination this testimony cannot be shattered. 20. Thus on the critical examination of the evidence aforesaid, the conviction and sentence passed by the learned trial Court requires no interference. The appeal is without merit, therefore, dismissed. The original birth register of the Panchayat brought by PW4 aforesaid, retained by the learned trial Court be now returned to the Panchayat concerned. 21. Send down the record. October 26 2010. (Surinder Singh), (rc) Judge.