IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO. 371/2001 (Old No. 2692/1999) Pushkar Singh ……… Appellant Versus State of Uttarakhand ………. Respondent Mr. R.S. Sammal, Advocate, for the appellant. Mr. P.S. Bohara, Brief Holder, for the State. 11th August, 2011 Hon’ble Servesh Kumar Gupta, J. The challenge in this criminal appeal is to the judgment and order dated 14.10.1999, passed by the Sessions Judge, Pithoragarh in Sessions Trial No. 9/1995, State v. Pushkar Singh, whereby the accused appellant Pushkar Singh has been convicted under Section 376 IPC and has been sentenced to undergo rigorous imprisonment for five years. 2. The incident took place on 11.8.1994 at noon time, when Km. Ganga (prosecutrix) had taken the cows in the jungle for grazing. Finding her in solitude, accused appellant Pushkar Singh caught hold of her and committed rape on her. Hearing the screams of Km. Ganga, one Balwant Singh, Puran Singh (CW1) and Dinesh Singh, who were present in the vicinity, rushed to the spot. Seeing these persons coming, accused appellant took to his heels. While escaping from the spot, the accused appellant also threatened Km. Ganga not to disclose the incident to anyone, otherwise her brother would be killed. It was also stated in the FIR that accused appellant was also armed 2 with knife at the time of incident. After the incident, Km. Ganga returned to her house and narrated the entire incident to her mother Smt. Devki Devi (PW2), who immediately went to meet her brother Bhupal Singh (PW3) in the nearby village for help. Bhupal Singh reported the matter to the Gram Pradhan, but he did not do anything and asked him to take recourse to law. 3. PW3 Bhupal Singh rushed to the Patwari (Laxman Nath, PW6) of the local circle, where he reported the matter. The FIR was lodged with the Patwari on 13.8.1994 (in rural hilly areas of the State of Uttarakhand, Patwaris have been given the powers of police). After lodging the report, Patwari sent Km. Ganga to District Government Hospital, Pithoragarh for medical examination, where she was medically examined on 15.8.1994 by Dr. Usha Upreti (PW5), who prepared the medical report, wherein it has been reported as under: “On Examination – An young girl with average built. Breast well developed. Axillary hairs well developed, black in colour. LMP – According to girl 5th day. Abdomen soft. On examination of her private parts – Public hairs well developed, black in colour. Labia menorah, labia magora well developed. P/S Making apart labia hymen old posterior tear present with healthy edges foul smelling discharge present. P/v Uterus ante vertical multifarious size mobile saft Fx clear ex. Multifarious size, no bleeding, vaginal canal smooth. No blackening. Perineum intact, no tear no laceration. But girl 3 is very uncooperative. Vaginal smear made from posterior feronix, slide sent to pathologist. Report – Vaginal smear report received on 17.8.1994. Vaginal smear negative for spermatozoa. Girl sent to B.D. Pande Hospital for x-ray for age confirmation, wrist joint, elbow joint – 16.8.1994. Photostat copy of x-ray report of Km. Ganga received on 19.8.1994 according to B.D. Pande Hospital Pithoragarh. As per x-ray, age of girl appears to be between 16 to 17 years. Opinion wanted – medical examination. Result of examination. (a) According to radiologist – B.D. Pande Hospital, her age – as per x-ray, age of girl appears to be between 16 to 17 years. Opinion – According to above examination, girl is habitual for sexual intercourse. – Vagina two fingers loose. No tear no laceration. Perineum intact. Hymen posterior torn old healed tear.” 4. Victim Km. Ganga had also undergone various x- rays for the assessment of age and the Radiologist Dr. Harish Chand Pathak (PW7) assessed her age to be 15 years on the basis of various ossification tests of bones of the victim. 5. After investigation, the chargesheet was submitted against the accused appellant. On the basis of 4 the chargesheet, the accused appellant was charged with the offence punishable under Section 376 IPC. 6. Prosecution has examined PW1 Km. Ganga, the victim. She has stated in her testimony that on the date of incident, when she had gone in the jungle for grazing the cows, the accused Pushkar Singh (who was present in the court at the time of her deposition) came from the nearby place and at the strength of knife, which he was holding in his hand, committed sexual intercourse with her against her wishes. She has stated that the said sexual intercourse was done forcibly by him after tearing her clothes. She has further stated that after commission of sexual intercourse the accused escaped form the spot. Thereafter she went to her home crying and narrated the entire tale to her mother at the home. 7. PW2 Smt. Devki Devi is the mother of Km. Ganga. She has also proved the incident and stated that her daughter Km. Ganga came to home in the weeping state. Her clothes were torn and marked with bloodstains. Km. Ganga narrated the incident to her naming Pushkar Singh (accused appellant) and told that he has committed the sexual intercourse with her against her wishes after tearing her clothes. She has further stated that after hearing this tale, she rushed to her brother (Bhupal Singh, PW3), because in the village she had no other relative. She narrated the incident to her brother, who then lodged the FIR, and subsequent thereto, the medical examination of Km. Ganga could be conducted. 8. PW3 Bhupal Singh is the brother of Smt. Devki Devi, whose niece is Km. Ganga, the victim. This witness 5 has affirmed that on 11.8.1994, Smt. Devki Devi came to his house and disclosed the incident which had happened with Km. Ganga. Then he went to his sister’s house and enquired about the incident from Km. Ganga herself. Having enquired the matter from Km. Ganga, he rushed to lodge the FIR with Patwari. 9. It has been contended by the learned Counsel for the appellant that there is no other eyewitness except the prosecutrix. But this argument is not sustainable at all. Firstly because in rape cases, it has been reiterated by the Hon’ble Apex Court, time and again, that conviction can be based solely on the statement of the prosecutrix in the case of a rape, if the evidence is trustworthy. In this regard, the verdict pronounced by the Hon’ble Apex Court in Shrawan v. State of Maharashtra, 2006 (6) SCJ 545 is noteworthy. Besides, it would be worthwhile to have note of the judgment of late pronounced by the Hon’ble Apex Court in State of U.P. v. Chote Lal reported in (2011) 2 SCC 550, wherein it has been held that the sole testimony of the prosecutrix in rape cases has its full admissibility and corroboration is not required at all. 10. Furthermore, testimony of her mother Smt. Devki Devi, PW2 is also admissible in evidence under Section 6 of the Indian Evidence Act, which amounts to res gestae in the legal terminology and that is only exception of the hearsay evidence. Besides, evidence of PW3 Bhupal Singh is also corroborative in nature. 11. Moreover, the Pooran Singh, the court witness, who rushed to the spot after hearing the screams of Km. Ganga, has also deposed that soon after the incident, Km. 6 Ganga narrated what has been done with her by the accused Pushkar Singh. It also comes under the purview of res gestae, and therefore, his deposition is admissible in the evidence under Section 6 of the Indian Evidence Act. He is an independent witness. 12. It has been indicated by the learned Counsel for the appellant that the evidence reveals Km. Ganga as mentally feeble and she herself has accepted this fact while responding to a query put by the court itself to her. In this regard, this Court is of the view that Km. Ganga might be mentally feeble, but nowhere it has been observed either by the trial court or proved otherwise that she was not able to understand the nature of the questions and to answer the same. Her mental frail was not of that grade as to make her unable to understand the nature of the questions and to answer the same. Her acceptance about her mental feeblity is itself sufficient to show that she is almost mentally sound and alert. 13. Learned Counsel further argued that girl upon her medical examination has been found to be habitual to sexual intercourse. This argument of the learned Counsel has no force. In the case of State of Punjab v. Ram Dev Singh, 2004 (1) UC 553, Hon’ble Apex Court has held that even if it is hypothetically accepted that the victim had lost her virginity earlier, it did not and cannot, in law, give licence to any person to rape her. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the court should not lean in 7 favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and giving benefit thereof where none reasonably exists. Therefore, the contention of the learned Counsel for the appellant that the girl was habitual to sexual intercourse looses its significance. 14. It has been lastly contended by the learned Counsel for the appellant that Pushkar Singh on the date of occurrence was only 16 years 11 months old and thus he was a juvenile on the date of incident and, therefore, the benefit of his being a juvenile could be extended to him. In this regard, photostat copy of School Leaving Certificate has been produced before this Court at this stage. Firstly, this photocopy of the School Leaving Certificate is not trustworthy and admissible in evidence. Otherwise also, the question of juvenility could have been raised at the stage of trial before the Juvenile Board, and the Board after due enquiry of the entire records, (had it been placed before that board) would have adjudicated the matter regarding juvenility of the accused. Then, the learned Counsel for the accused appellant has argued that plea of juvenility can be raised even at the stage of High Court and Supreme Court and cited a catenae of rulings of the Hon’ble Apex Court in support of this argument. I fully agree with the submission of the learned Counsel in this regard and there is no dispute that the said plea can be raised at the higher stage of litigation. But the accused appellant cannot take the benefit of the same, firstly, because the appeal was filed in the year 1999 and pending since then, but this plea of juvenility has been raised at the time of final arguments and in support of that plea, only photostat copy of the School Leaving Certificate of the accused appellant has 8 been produced, that too is not supported by any affidavit. Even then, in the interest of justice, this Court considered this aspect and found that no benefit of Juvenility can be extended to the accused appellant, inasmuch as the incident took place on 11.8.1994, and as per this School Leaving Certificate, the date of birth of the accused appellant is 23.8.1977. Thus, his age is worked out to be 16 years 11 months and 20 days on the date of incident, and thus he was not a juvenile at the time of incident since as per the Juvenile Justice Act, 1986, which was in force at that time and is applicable to the case of the appellant, ‘juvenile’ means a boy who has not attained the age of sixteen years. But as per the own admission of the accused appellant he was more than 16 years and 11 months and thus was not a juvenile. For the sake of convenience, the definition of ‘juvenile’, as provided in Section 2(h) of the Juvenile Justice Act, 1986 is reproduced below: “juvenile” means a boy who has not attained the age of sixteen years or a girl who has not attainted the age of eighteen years”. 15. Although the Juvenile Justice Act, 1986 has been replaced by the Juvenile Justice (Care and Protection of Children) Act, 2000 and as per Section 2(k) of this Act, the “juvenile” or “child” means a person who has not completed eighteenth year of age. But the new Act came into force on 1.4.2001 and the instant incident took place on 11.8.1994 and, therefore, the instant case is covered by the old act of 1986. 16. In view of my foregoing discussion, it is held that the prosecution has successfully proved its case beyond 9 reasonable doubt against the accused appellant for the offence punishable under Section 376 IPC. As such, impugned judgment and order dated 14.10.1999 requires no interference by this Court. 17. Consequently, the appeal fails and the same is hereby dismissed. The judgment and order dated 14.10.1999, passed by the Sessions Judge, Pithoragarh in Sessions Trial No. 9/1995, State v. Pushkar Singh, is upheld. Conviction of the accused appellant Pushkar Singh under Section 376 IPC is affirmed and sentence awarded to him to undergo five years’ rigorous imprisonment is also confirmed. Appellant Pushkar Singh is on bail. His bail bonds are cancelled. He shall be taken into custody forthwith to serve out the sentence. 18. Let a copy of this judgment and order along with the lower court record be sent back for necessary compliance. (Servesh Kumar Gupta, J.) 11.8.2011 Prabodh