IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.319 of 2006 Decided on : October 12, 2009 Ravi Prakash …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the Appellants : Mr. Manoj Pathak, Advocate. For the Respondent : Mr. P.M. Negi, Deputy Advocate General, and Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, J (Oral) Appellant Ravi Prakash is aggrieved by the judgment, dated 14th August, 2006, of learned Sessions Court, Shimla, whereby he has been convicted of offence, under Section 376 of the Indian Penal Code, and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.20,000/-; in default of payment of fine to undergo rigorous imprisonment for a further period of one year, for allegedly raping his wife’s sister’s daughter, aged a little less than 15 years, on 5th November, 2005. 2. Prosecution’s case, as per record, may be noticed. Prosecutrix, examined as PW-13 during the course of trial, lived with her parents, i.e. mother PW-11 Kanta Devi and Whether reporters of the local papers may be allowed to see the judgment? …2… father Om Prakash, in a locality of Shimla town. On 5th November, 2005, her father left home for his place of work. Her father is employed in some Government institution. Her mother went to IGMC Hospital, for seeking treatment for an ailment she had been suffering from. Around 11.30 a.m., when the prosecutrix was all alone, appellant, who is the husband of a sister of the mother of the prosecutrix, went there. He caught hold of the prosecutrix by her arm and took her to a room of her house and bolted that room from inside. He then committed rape on her. Prosecutrix (PW-13) informed her neighbour, Rajjo Devi (PW-12), immediately, after coming out of the room. PW-12 Rajjo Devi confronted the appellant with the allegation of the prosecutrix, who after initial denial admitted the same and offered that in case the prosecutrix became pregnant and delivered a child he would meet the expenses. Prosecutrix then called her mother, telephonically. Her father reached at the night. He too had been telephonically informed soon after the occurrence. Matter was discussed by the parents of the prosecutrix with the mother of the mother of the prosecutrix, who also happens to be the mother-in-law of the appellant. It was decided to report the matter to the police. On the next following day, report Ex. PW-8/A was lodged at Police Station Sadar, Shimla. 3. Prosecutrix was medically examined by PW-10 Dr. Ambika Chauhan. During the course of medical …3… examination, the doctor noticed that the hymen was ruptured and penetration had taken place. Skeletal age was determined by PW-5 Dr. Neeraj Mehta. According to his report Ex. PW-5/A, based upon skiagrams Ex. PW-5/1 to Ex. PW-5/7, prosecutrix’ age was between 14½ to 16 years. 4. Prosecutrix was born in a Hospital and the Hospital authorities got her birth entered in the record maintained by Municipal Corporation, Shimla. On the basis of that entry, birth certificate was issued by PW-9 Surinder Kumar, Sub Registrar of Births and Deaths, Municipal Corporation, Shimla. The certificate is Ex. PW-9/B and as per this certificate, date of birth of the prosecutrix is 19th February, 1991. That means she was 14 years and 9 months old, at the time when the incident took place. 5. Defence taken by the appellant was that he had been having illicit relations with the mother of the prosecutrix and that for this reason prosecutrix’ mother opposed his marriage to her younger sister and because of this a false story has been cooked up by the mother of the prosecutrix, in connivance with the prosecutrix and PW-12 Rajjo Devi. Trial Court had disbelieved the defence version and convicted and sentenced the appellant, as aforesaid. 6. We have heard the learned counsel for the appellant as also the learned Deputy Advocate General and perused the record. …4… 7. Learned counsel for the appellant very fairly concedes that the evidence on record proves the charge of rape against the appellant. We have also reappraised the entire evidence. Prosecutrix, while in the witness-box as PW- 13, very categorically testified that when she was all alone at her house on 5th November, 2005, appellant came there, carried her forcibly to the room and committed rape on her and after the commission of the crime, when she came out of the room, she saw PW-12 Rajjo Devi on the top of her roof and told her that she had been raped by the appellant. PW- 12 Rajjo Devi stated that the prosecutrix narrated the incident to her and that after some time appellant came to her house and when she asked him as to what he had done, initially he denied having committed the offence of rape but then confessed it and offered to bear expenses in case the prosecutrix conceived due to his act. Mother of the prosecutrix has stated that she and her husband were not at home, on the relevant date and that she was telephonically called by the prosecutrix from the Hospital and when she reached home she was informed by the prosecutrix that the appellant had raped her. Medical evidence in the form of testimony of PW-10 Dr. Ambika Chauhan shows that the prosecutrix was having ruptured hymen and there was tenderness of vagina. She also stated that penetration of vagina had taken place and possibility of the prosecutrix having been raped could not be ruled out. …5… 8. The above-discussed evidence conclusively proves the allegation of the prosecutrix. 9. As regards the age of the prosecutrix, birth certificate, based on the entry in the Register of Births and Deaths maintained by the Municipal Corporation, proves that the prosecutrix was 14 years and 9 months old, at the time when the offence was committed. That means she was below 16 years of age and, hence, incapable of consenting for the act of sex. 10. Learned counsel for the appellant submits that leniency may be shown to the appellant, in the matter of award of punishment, as he is the sole bread-winner of the family. Looking to the facts and the circumstances of the case, particularly the fact that the appellant is the brother-in- law of the mother of the prosecutrix and, therefore, the prosecutrix is his niece, as also the fact that the appellant, being a close relative, was supposed to be knowing that the prosecutrix was of tender age, we are of the considered view that the appellant does not deserve any leniency. Consequently, the appeal is dismissed. ( Surjit Singh ), J October 12, 2009(sd) ( Surinder Singh ), J