IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 15 of 2011. Judgment reserved on: 23rd June, 2011. Date of Decision: July 14th 2011. ________________________________________________________________ Joginder Singh ….Appellant. Versus State of Himachal Pradesh ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : M/s. P.P. Chauhan and D.R. Verma, Advocates. For the respondent : Mr. A.K. Bansal, Addl. Advocate General. ______________________________________________________________ SURINDER SINGH, J: The learned trial Court convicted the appellant, hereinafter to be referred as ‘the accused’ for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code and sentenced him to undergo the sentence under each of the sections aforesaid as follows: Sr. No. Offence Under Section Sentence In default of payment of fine. 1. 363 IPC. Three years rigorous imprisonment with fine of Rs.10,000/-. To further undergo rigorous imprisonment for six months. 2 366 IPC. Three years rigorous imprisonment with fine of Rs.10,000/-. To further undergo rigorous imprisonment for six months. 3. 376 IPC. Seven years rigorous imprisonment with fine of Rs.20,000/-. To further undergo rigorous imprisonment for one month. Whether reporters of the Local papers are allowed to see the judgment? - 2 - 2. All the sentences are ordered to run concurrently. The benefit of Section 428 of the Code of Criminal Procedure is also given. It has been further ordered that if the amount is realized, the same shall be disbursed to the prosecutrix as compensation. The accused felt dissatisfied by the impugned judgment of conviction and sentence, hence the present appeal. 3. In short, the prosecution story can be stated thus. In the year 2010, the prosecutrix (16 +) was studying in 10+1 class in Senior Secondary School, Nand. PW2, father of the prosecutrix, started the construction of house in his village and engaged accused Joginder Singh @ Jinder, his nephew in the work for about 2 months intermittently. (ii) On 19.5.2010, the prosecutrix went to take her school leave certificate, for taking admission in other School, but did not return back till evening. Her father was not in the house. He had gone to mourn the death of his father-in-law. In the evening around 7.00 P.M. he received a telephonic message from his wife that the prosecutrix did not return home as it was a path through thick forest and he could not return home, but next day he came back and started searching for his daughter. In that pursuit he - 3 - happened to meet PW3 Sukh Dev. He informed him that on the previous day prosecutrix and the accused were boarding a bus and told him that they might have gone towards ‘Sawarghat’ side. When he failed to locate his daughter, he lodged FIR Ext.PW2/A. (iii) On 23.5.2010, he was informed by the father of the accused that his daughter and the accused both are at Gurgaon. Immediately, he left the place alongwith Tara Singh, Vir Singh and PW6 Surinder Kumar to Gurgaon and brought the prosecutrix and the accused back and handed over to the police regarding which memo Ext.PW2/B was executed. (iv) The prosecutrix was got medically examined on 24.5.2010 from PW17 Dr. Swati Sood. She did not find any mark of violence on her body. However, she noticed rupture of hymen as 8 O’clock position. Externally on her thigh stains were found present, however, she reserved the final opinion and issued MLC Ext.PW17/A. Sample of Pubic- hair and undergarments of the prosecutrix - 4 - were taken, sealed and handed over to police for chemical examination. On receiving the report of the Chemical Examiner Ext.PW9/B, doctor opined that there was nothing suggestive of the fact that the sexual intercourse had not been taken place with the prosecutrix. (v) Skeletal age of the prosecutrix was assessed between 17 to 19 years. (vi) The statement of the prosecutrix under Section 161 of the Code of Criminal Procedure was recorded by the police. Her statement before the Magistrate under Section 164 of the Code of Criminal Procedure was also recorded. (vii) Precisely, the prosecutrix alleged that the accused emotionally black-mailed her and wanted to marry her. According to her, on 19.5.2010 she had gone to the school to obtain the certificate. On her return, the accused met her. He offered water to her. On taking it, she felt giddiness. The accused caught her from the arms and put her in a bus. She could not make out where the accused was taking her. On regaining - 5 - senses, she asked the accused about the place where they had reached. The accused told her that they had reached Gurgaon. They stayed for the night in a Dharamshala. The care-taker of the Dharamshala enquired about their relationship and the accused told him that they are brother and sister. Thereafter, the care-taker (PW5 Ghanshyam Pandey) took the telephone number of the house of the accused and enquired about their relationship from his mother. She also confirmed this fact. For the night they stayed in the said Dharamshala and the accused committed rape on her. Next day, she was got employed in a spinning-mill. The accused is alleged to have forcible sexual intercourse with her even on the subsequent nights also. She informed the fellow female-workers of the factory that the accused being her first cousin had brought her by force to the said place, the female-worker made a telephonic call to her parents. Next day, her father alongwith her uncles came in a vehicle and took both - 6 - of them to the Police Station. She was got medically examined. According to her, her date of birth as per middle standard certificate (Ext.PW1/C), is 14.6.1994. She stated having made a statement Ext.PW1/D given before the Magistrate. (viii) During investigation police took in possession birth certificate Ext.PW4/A from Panchayat Secretary wherein same date of birth as stated by the prosecutrix has been shown. Police also took into possession the entry of their stay at Gurgaon Dharamshala which is Ext.PW5/A alongwith bed-sheet vide memo Ext.PW5/C from the room in which they had stayed, which was sent for the forensic examination and the attendance register with respect to the prosecutrix from the factory vide memo Ext.PW6/C. (ix) As per report of the Forensic Science Laboratory, Ext.PW9/B human semen stains were detected on the bed-sheet, whereas human blood and human-semen were also detected on the underwear of the prosecutrix, as per report Ext.PW9/A. - 7 - (x) The accused was arrested. He was got medically examined on 24.5.2010. He was found fit to perform sexual intercourse. His underwear was also taken into possession which was also found having semen-stains. (xi) After completing the investigation, the challan was presented against the accused for his trial before the learned trial Court for the offences aforesaid. 4. The accused was accordingly charge-sheeted for the offences aforesaid. He abjured his guilt and claimed trial. 5. To prove its case the prosecution besides examining the prosecutrix, also examined her father (PW2) Sukh Dev (PW3), Jia Lal (PW4), Secretary of the Gram Panchayat to prove the birth certificate, Ghanshyam Pandey (PW5), Care-taker of Gurgaon Dharamshala, PW6 Surinder Kumar, brother-in-law of the father of the prosecutrix, PW7 Dr. V.K. Sadana, PW8 Dr. M.P. Verma, Radiologist to prove the skeletal age of the prosecutrix, PW9 Ajay Kumar, Scientific Officer, Biology and Serology Division, State Forensic Science Laboratory, PW10 lady Constable Meena Kumari, who took the prosecutrix for medical examination to the hospital and also deposited the parcels with the MHC of Police Station, Ramsehar, PW11 - 8 - MHC Ram Asra with whom the parcels were deposited, PW12 HHC Karam Chand deposited the parcels in the Forensic Science Laboratory, PW14 Dr. Sanjay Vishwas who medically examined the accused, PW15, HC Sita Ram, partly investigated the case, PW16 SI/SHO Amar Singh, PW17 Dr. Swati Sood, who had medically examined the prosecutrix, PW18 Sube Lal a labour contractor in Spinning Mill, Gurgaon through whom the prosecutrix got employment in the factory and PW19 Sanjeet Parkash, factory worker, in whose room the prosecutrix and the accused stayed for the subsequent days till their recovery at Gurgaon. 6. The accused was also examined under Section 313 of the Code of Criminal Procedure. His case was denial simplicitor. According to him the prosecution witnesses are interested and close relatives. When called upon to enter defence evidence, he did not lead any evidence in defence. 7. The learned trial Court disbelieved the defence taken, but while relying upon the statement of the prosecutrix and other evidence of secondary nature convicted and sentenced the accused as aforesaid. 8. Shri P.P. Chauhan, learned Counsel duly assisted by Shri D.R. Verma, Advocate, forcefully argued that the circumstances on record show that the prosecutrix and - 9 - the accused are close relatives. The prosecutrix is proved to be more than 18 years of age, she accompanied the accused of her own volition and happened to be a consenting party. To substantiate the fact of the majority, it is pointed out that the ossification report reveals that she was more than the age of discretion and identity of the child mentioned in the birth register could not be established to be that of the prosecutrix. Further the photocopy of middle school certificate cannot be relied upon to prove the age and also referred to the statement of prosecution on this aspect. The learned counsel also argued that the relations inter se the accused and the complainant-party were not cordial, as such he was wrongly framed in the present case. 9. Shri A.K. Bansal, learned Additional Advocate General forcefully argued that the prosecution has been able to prove its case by leading the cogent evidence that the prosecutrix was a minor. She was the first cousin of the accused. She was emotionally black-mailed by the accused and took her out of State to various places and committed the rape repeatedly. He further argued that the evidence on record also proves that the prosecutrix had complained to the female workers in the factory who informed her parents telephonically, which proves that she was not a consenting party. Thus, no - 10 - interference in the judgment of conviction and sentence of learned trial Court is called for. 10. I have given my thoughtful consideration to the rival contentions of the parties and have closely, cautiously and meticulously scanned the evidence on record. 11. The facts which stand proved on record from the statement of the prosecution witnesses are as under:- (i) In the year 2010, prosecutrix was studying in 10+1 standard in Senior Secondary School, Nand. (ii) The accused is first cousin of the prosecutrix. (iii) On 19th May, 2010, she was seen by PW3 Sukh Dev in the company of the accused boarding the Bus going towards Swarghat. (iv) PW2 father of the prosecutrix on that day was in the house of his brother-in-law to mourn the death of his father-in-law. He was informed telephonically at 7 p.m. by his wife that the prosecutrix had not returned home. Since he had to pass through the jungle, therefore he returned next morning and made search for her, but in vain. PW3 Sukh Dev met him and it was he who informed him that the prosecutrix and the accused were seen boarding the bus - 11 - previous day as aforesaid the matter was reported to the police. (v) The prosecutrix and the accused reached Gurgaon on the same day and stayed for the night in Dharamshala. Their entry was made by PW5 Ghanshyam Pandey in the register, but however he got suspicious and on the mobile phone of the accused, he talked to his mother. She also confirmed that both accused and prosecutrix are brother and sister. He proved their entry made in the register, photocopy thereof is Ext.PW5/A. (vi) On 20th May, 2010, both of them got the employment in a factory in Sector-18, Gurgaon. The accused asked PW19 Sanjeet Parkash, his colleague to arrange for a room on rent. Since no room was available, thus both of them stayed for a night with him in his adjoining room. (vii) Someone informed the parents of the prosecutrix telephonically on 22.5.2010. Next day, she alongwith accused were taken back and handed over to the police. The prosecutrix was got medically examined. - 12 - 12. The prosecutrix when examined in the Court pertinently stated as under:- (a) The accused while he was engaged in the construction work by her father used to stay in their house. The accused used to say that he wanted to marry her and emotionally used to black-mail her showing the bottle of poison that he would commit suicide, if she would not agree. (b) She declined the proposal, but did not disclose to anyone in the family because of shame. (c) On her return from the School on 19th May, 2010, the accused offered her water and on drinking it, she felt giddiness. The accused caught her from the arm and put her in the bus without knowing where the accused was taking her and while staying at Gurgaon in Dharamshala and thereafter staying in the room of the worker-colleague of the factory, she alleged that she was raped by the accused. (d) She informed about the above facts to the fellow female workers and at her instance they informed her parents telephonically from where she was recovered by them and taken along. She further stated having made a statement under Section 164 of the Code of Criminal Procedure (Ext.PW1/D) before the Magistrate to this effect. - 13 - 13. It is a settled law that the evidence of the prosecutrix should be cogent and convincing and if there is any supporting material likely to be available, then the rule of prudence requires that evidence of the victim may be supported by such corroborative material. Thus, in a rape case the conviction can be solely based on the statement of the prosecutrix provided such statement inspires confidence, in the mind of the Court. The evidence of the prosecutrix must be given pre- dominant consideration, like an injured witness but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. 14. Although, in the instant case, the prosecutrix and the accused falls within the prohibited degrees. Their relations other than brother and sister are immoral and unacceptable to the relatives, friends and in the society where we live. It is considered to be grossly sinful even if it is with consent, but to prove such a relationship within the mischief of offences charged, the prosecution is under obligation to prove that the accused had sexual intercourse with the prosecutrix under the circumstances falling in any of the five descriptions specified in Section 375 and also under Section 366 of the Indian Penal Code. - 14 - 15. If the prosecutrix despite the fact that she is under 18 years, left the guardianship of her parents on her volition, the accused was not under obligation to return her to her parents. To constitute the offences under Section 363 and 366 of the Indian Penal Code, the prosecution is required to prove that the kidnapping or abduction of the prosecutrix must be: (a) with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will; or (b) in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. The second portion of the section requires two things:- (i) By criminal intimidation or abuse of authority or any compulsion inducing any woman to go from any place. (ii) Such going must be with intent that she may be, or with knowledge that, it is likely that she will be, forced or seduced to illicit intercourse, with some person. 16. The present case is required to be examined against the above legal parameters. 17. In a case like the present once, the age of the prosecutrix assumes importance. Learned trial Court on considering evidence came to the conclusion that at the relevant time, prosecutrix was less than 16 years, - 15 - regarding which this Court has various reasons to differ as stated hereinafter and hold that she was more than 18 years of age. 18. The learned trial Court placed its explicit reliance on the statement of PW4 Jia Lal, Secretary of the Gram Panchayat. Although, he had issued the birth certificate Ext.PW4/A, but this certificate is based upon the entries made in the birth and death register which was brought by him in the Court during the trial. The thumb impression which appeared against the birth entry did not indicate the name of the informant and admittedly that entry was also not in hand of PW4 aforesaid nor he could verify its correctness. Even this birth entry becomes doubtful by the statement of the prosecutrix herself. She admitted that two sisters are elder to her and younger one is her brother. In cross-examination, she stated that her elder sister got married 5-6 years ago at the age of 20/ 25 years and her younger sister is one year younger to the eldest one and the prosecutrix further stated that she is one year younger to the second sister. On the day of her examination in the Court on 25.10.2010 her elder sister was aged about 30 years and age of the second sister was given 29 years. If that being so, prosecutrix on the day of her examination in the Court comes to 28 years of age. - 16 - 19. Further the photocopy of the middle standard certificate Ext.PW1/C was produced by the prosecutrix during her examination in the Court. In cross- examination, she stated that she took this certificate from her house on that day which means that the prosecutrix while leaving her place was aware of the fact that she may be in need of the age proof in the event of any eventuality. The prosecutrix was studying in 10+1 standard, but the matriculation certificate has neither been obtained by the police during investigation nor produced by the prosecutrix to prove her date of birth for the best reasons known to them. Uncertified Photostat copy of Middle standard examination certificate Ext.PW1/C is not at all admissible in evidence, thus, no reliance can be placed on it. 20. PW2 Shyam Lal her father could not tell about her date of birth nor did he state anything about entry in the Panchayat concerned. It is also not his case that he had appended his thumb-mark on the birth register while informing about her date of birth but however. In cross- examination, he revealed a new fact that his two elder daughters are from his first wife, name of the first wife has not been disclosed by him. According to him, he also produced the same copy of the Middle standard examination certificate Ext.PW1/C to the police which - 17 - was taken into possession vide memo Ext.PW2/C to which prosecutrix says that she had taken it alongwith her and produced in the Court for the first time when she was examined, makes both these statements irreconcilable and she also stated that once she failed in 6th standard, which further compounds the doubt. 21. Next evidence on which prosecution places its reliance is the skeletal age. Pertinently, the Radiologist in the instant case was not examined. The radiological age is sought to be proved from the statement of PW17 Dr. Swati Sood. She stated that the radiological age of the prosecutrix was found to be between 17 to 19 years and the report is Ext.PW17/B given on the reverse side of MLC Ext.PW17/A of the prosecutrix, based upon the radiological opinion, which stands not proved. Even on the basis of the aforesaid evidence, it cannot be said that the prosecutrix was less than the age of discretion, rather it propagate two views. It is well settled that the view favorable to the accused has to be accepted. Thus, in all probability she is proved to be more than 18 years of age. 22. Now the next question arises whether the prosecutrix was a consenting party, if not, the offences charged can be said to have been proved. As already stated above, prosecutrix stated that the accused had - 18 - been allegedly black-mailing her even prior to the alleged incident, is an improved version, it does not find mention in her statement Ext.PW1/D recorded by the learned Magistrate under Section 164 of the Code of Criminal Procedure, thus cannot be relied upon. Her version that on the date of alleged incident, she was made to drink water which caused her giddiness and she could regain her senses at Gurgaon is also belied by PW3 Sukh Dev. In her cross-examination, she admitted having called the accused before her departure from her house informing him that she had brought her certificate, but did not go to the School at Saur, where she intended to take admission. What does it mean? She also stated that she made a telephonic call to the accused seeking his assistance at the instance of her mother in getting certificate from that School as on that day her father was not at home, but when she was already possessing the certificate where was its need to seek assistance? These questions remained unanswered. Importantly stated that police took her to the Magistrate to record her statement under Section 164 of the Code of Criminal Procedure, without knowing that she was to make the statement there and the police asked her that she would have to make a statement like the present one, made in the Court. She also stated that she did not disclose to the - 19 - police regarding offering of the water by the accused. Though, she stated that during the night, when they reached Gurgaon, she did not know as to how many persons were staying in Dharamshala, but stated having raised alarm when the accused molested her, but there was none to hear. She did not say as to what prevented her to complain to the care-taker (PW5) about the said incident, when he was already entertaining suspicion. She also did not tell to anybody next day where they stayed during the night about the above misbehaviour by the accused. 23. PW3 Sukh Dev totally contradicts her version that she was feeling giddiness when taken to the bus by the accused caught by her hands. According to him, first of all the accused boarded the bus followed by the prosecutrix, which causes a dent in the statement of the prosecutrix thus it lacks probity. 24. Further the statement of PW5 Ghanshyam Pandey, Care-taker of ‘Aggarwal Dharamshala’ at Gurgaon, where the accused with the prosecutrix stayed during the night on 19.5.2010, is also important. It also falsified her version. He stated that on getting suspicious he talked to the mother of the accused on telephone. She confirmed that both were brother and sister. In his cross- examination, he stated that during the intervening night - 20 - of 19th and 20th May, 2010 out of 15 rooms in Dharamshala, 14 rooms were occupied and all the rooms are adjoining to each other. He further stated that he also was living in the same Dharamshala, but he did not hear any noise on that night. He also stated that if anyone cries in the room, the same could be audible in his room. Now in his another portion of cross-examination, he significantly testified that both of them i.e. the accused and prosecutrix came and went happily from Dharamshala, thereafter the room No.14, wherein they were staying was occupied by some other visitors till 27th May, 2010. Therefore, the bed-sheet