IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.418 of 1996 Judgment reserved on: 6.4.2010 Date of decision: 23.4.2010 State of H.P. ... Appellant Versus Rakesh Kumar … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr.Vivek Singh Thakur, Addl. Advocate General. For the respondent: Mr.Anup Chitkara, Advocate. ____________________________________________________________ Deepak Gupta, J. This appeal by the State is directed against the judgment dated 18.11.1995 passed by the learned Sessions Judge, Sirmaur District at Nahan in Sessions Trial No.46-N/7 of 1995, whereby he acquitted the accused of having committed an offence punishable under Section 376 IPC. The prosecution story, in brief, is that on 21.2.1995 at about 10 p.m. the prosecutrix, who was aged about 12 years, came out of her house to answer the call of nature. She had loosened her salwar and was about to squat on 1Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 the ground when the accused came to the spot. He gagged her mouth and carried her to a hut nearby. He made the prosecutrix lie on the dry grass and forcibly committed sexual intercourse with her. Thereafter, the accused threatened the prosecutrix of dire consequences if she disclosed the occurrence to any person and left the spot. Blood was coming out of the private part of the prosecutrix. She came out of the hut and raised an alarm. Her mother came with a torch. She saw the prosecutrix and found the blood coming out from the vagina of the prosecutrix. Thereafter, report was lodged with the Police Station, Paonta Sahib on the next day i.e. 22.2.1995 at about 2.55 p.m. She was got medically examined. The accused was also arrested and got medically examined. After completing investigation the accused was challaned with having committed an offence under Section 376 IPC. The case was committed to the Court of Sessions. The accused was charged for having committed the aforesaid offence. He pleaded not guilty and claimed trial. After trial, the accused has been acquitted. Hence, the present appeal. The prosecutrix appeared as PW-1. The prosecutrix has repeated what she had stated in the complaint. 3 According to her she struggled but the accused was much stronger and she could not escape his clutches. She further stated that the matter was not reported the same night since it was raining. In cross examination she admitted that the houses of Gurnam Singh and Mohinder Singh are located between the hut and the house of the prosecutrix. She also stated that the house of Gurnam Singh adjoins the hut. She was confronted with the original complaint Ext.PA in which she had not stated that the accused had gagged her mouth. She also stated that she had not started menstruating. She also stated that this was the first time that anybody had committed sexual intercourse with her. She stated that she lives with her mother and step father and she has one real sister and two step brothers. PW-2 Radha Devi is the mother of the prosecutrix. She stated that she was earlier married to one Krishan Bahadur Gorkha in Bombay. According to her, the prosecutrix was 12- 12 ½ years. She stated that the prosecutrix was born at Amritsar but her date of birth was not recorded with any authority at Amritsar. She stated that the age of the prosecutrix was entered in the Gram Panchayat Bhatanwali on the basis of horoscope. 4 According to her, on the ill-fated day the prosecutrix had gone to answer the call of the nature in the backyard of the house. After 20-25 minutes she heard the cries and shrieks of her daughter whereupon she and her husband rushed towards the prosecutrix. She was coming from the side of a small hut and the accused ran away. Then the prosecutrix told her the entire story and stated that she had been forcibly raped by the accused. The mother stated that she flashed the torch towards the private part of her daughter and observed that blood was coming out. Thereafter, according to the mother, she and her husband went to the house of the parents of the accused to complain about his conduct. The parents of the accused requested her not to lodge a complaint in the Police Station and offered that they could be compensated with money but she refused the offer. The next day they went to the Police Station to register the case. In cross examination she stated that she married her second husband Ram Swaroop about 8 years back. She also stated that she lived with her first husband for about 17-18 years as his wife. She was married to her first husband when she was aged about 15 years. After one 5 year of marriage when she was about 16 years old she gave birth to the prosecutrix. Her first husband abandoned her. She admitted that brick kiln of Rattan Singh is about 400 feet from their house and a large number of people work there day and night. A telephone is also available in the brick-kiln. According to her she and her husband did not disclose the factum of rape to any person except the parents of the accused. She could not produce the horoscope and stated that it may be lying with the Panchayat. PW-3 Dr.Sunita Mangla stated that she examined the prosecutrix on 22.2.1995 and found no marks of violence on her person. The pubic hair were not matted. Hymen showed old healed tears. Vagina admitted two fingers. There was inflammation and redness around the hymen but no tenderness. At the time of examination the prosecutrix was menstruating. Skeletal age of the prosecutrix was opined to be 12 years to 14 years. In cross examination she stated that if the sexual intercourse with the prosecutrix was the first one as alleged then it was committed at least four days prior to the examination. PW-4 Dr.G. Narang, is the Radiologist who opined that the age of the prosecutrix was 12 to 14 years. In cross 6 examination he admitted that poor diet leads to delayed ossification and therefore there can be difference of two to three years on either side. PW-8 Darshan Singh produced the Pariwar Register according to which the date of birth of the prosecutrix is 8.5.1982 which would make her about 13 years old at the time of incident. According to this witness the entry regarding the date of birth was made on the basis of horoscope which he produced in the Court. He admitted that there are number of over-writings in the Pariwar Register. He also admitted that the entries regarding the family of Ram Swarup, step father of the prosecutrix, were only made in the year 1990. He admitted that entries were not made on the basis of birth and death register. The defence of the accused is that the parents of the prosecutrix suspected that the accused had made a complaint against them that they were indulging in illicit distillation of liquor and therefore he has been falsely implicated. According to the prosecutrix she was not menstruating and this was the first time she had been subjected to sex. This version of the prosecutrix cannot be believed since PW-3 Dr.Sunita Mangla clearly stated that 7 the hymen of the prosecutrix had old tears. The Doctor also noticed that the prosecutrix was menstruating. The Doctor did not find any marks of violence on the prosecutrix at all. There were no injuries on the back of the prosecutrix. The pubic hair were not found matted and her vagina admitted two fingers. Therefore, this was not the first act of sex committed with the prosecutrix. The Doctor clearly stated that if it was the first act of sex it should have been committed at least four days prior to the examination. The medical evidence totally belies the version of the prosecutrix. Normally we would accept the version of the prosecutrix but in this case the medical evidence clearly shows that she is not telling the truth. According to the prosecution, the prosecutrix was raped by the accused on dry grass and blood came out from her vagina and fell on her salwar. PW-3 did not find any scratch on the back of the prosecutrix nor any blood or semen on the grass. The version of the prosecutrix even otherwise is improbable because according to her when she went to answer the call of nature the accused gagged her mouth with one hand and carried her to a hut which was at a distance of 200 ft. The houses of Mohinder Singh and 8 Gurnam Singh were situated near the hut but they were not associated. The story of the prosecutrix does not appear to be true and is unnatural. Even if the story of the prosecutrix is partly believed it appears to be more a case of consent then a case of forcible sexual intercourse. This leads us to the important question as to what is the age of the prosecutrix. Though both the prosecutrix and her mother stated that she was 12 and 13 years old, the fact is that the mother in her statement has given a totally different version. According to her she was married to Krishan Bahadur Gorkha and remained with him for about 17- 18 years and had given birth to the prosecutrix after one year of marriage. Thereafter, her first husband abandoned her and she had been living with her second husband for the last 6-7 years. This would make the prosecutrix about 23-24 years old. It is apparent that neither the mother nor the prosecutrix have any concept of time of age. The medical evidence also does not totally support the prosecution. Both the prosecutrix and her mother have stated that they are very poor and can barely make two ends meet. Therefore, there is always a chance of delayed ossification on account of poor diet. The entry from the pariwar register is not worth the paper it 9 is written on. Admittedly, there are over-writings and cuttings in the pariwar register. Even according to PW-8 the entry was made in the year 1990 whereas the prosecutrix was born in the year 1982. It is stated that the entry is made on the basis of horoscope but the horoscope is not proved in the Court and it has not been conclusively established that the horoscope, if any, is of the prosecutrix. No reliance can be placed on this pariwar register since it is apparent from the statement of the mother that she has no concept of age or time. The prosecution has miserably failed to prove that the prosecutrix was below 16 years at the time of the incident. In view of the above discussion, we find no merit in the appeal which is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ), J. April 23, 2010 ( Sanjay Karol ), J. PV