HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 733 of 2002 Reserved on: 14.11.2011. Decided on: 17.11.2011 State of Himachal Pradesh ……… Appellant. Versus Narender Kumar ………Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.Vivek Thakur, Additional Advocate General and Mr.Rajesh Mandhotra, Deputy Advocate General. For the respondent: Mr.B.P. Sharma, Senior Advocate with Mr.Arun Kumar, Advocate. Per V.K. Ahuja, J.: This is an appeal filed by State of Himachal Pradesh under Section 378 of the Cr.P.C. against the judgment of the court of learned Additional Sessions Judge, Sirmaur District at Nahan, dated 19.7.2002, vide which the respondent was acquitted of the charge framed against him under Sections 363 and 376 IPC. 2. Briefly stated, the facts of the case are that on 8.2.2000, a report was lodged by Smt.Surjit Kaur, mother of the prosecutrix ‘X’ that her daughter had gone to the school on 27.1.2000 around 8.30 a.m., who was studying in __________________________________________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - 10th class. She did not return by the evening and the complainant learnt from a teacher that she had run away from the school at 2.00 p.m. and her bag was also lying in the class. On 28.2.1999, the brother of the complainant, namely, Raj Mal brought back the girl to his house and on inquiry her daughter told her that when she was going to the school in the morning Lucky (accused) met her and told her to come out of the school in the recess, failing which, her brother would be killed. She came out of the school in the recess and the accused took her by giving a threat. They went on foot to Tibetan colony and reached at a village at about 11.00 p.m. and stayed in a house. It was further alleged that they were not willing to report the matter, but when they received threats that their daughter would be taken forcibly, she lodged the report. 3. On this report Ext.PW-2/A, the case was registered and after investigation, the challan was filed before the court of the learned Additional Chief Judicial Magistrate, Court No.2, Paonta Sahib, who committed the case to the learned Sessions Judge. The learned Sessions Judge assigned the matter to the learned trial Court, who tried the respondent leading to his acquittal. 4. We have heard Mr.Vivek Thakur, learned Additional Advocate General for the appellant and Mr.B.P. Sharma, Senior Advocate, for the respondent, and have gone through the record of the case. 5. The first question which arises for consideration is in regard to the delay in lodging the FIR. It is clear from the statement of the mother of the - 3 - prosecutrix, namely, Surjit Kaur, who appeared as PW-2, that the girl was taken on the 27th January, 2000. This has been so stated by the prosecutrix as PW-1 also. It is in the statement of prosecutrix as PW-1 that when she was going alongwith the accused in the morning of January 28, 2000 towards Gulabgarh village, her maternal uncle Raj Mal met them on the road and the accused ran away, while her uncle brought her to his house. This clearly shows that she had returned to the house on 28.1.2000 itself. This fact finds corroboration from the statement of the mother of the prosecutrix, who appeared as PW-2, who states that her husband had also come on the evening of 28th January and he was told about the occurrence. It is not the case of the mother of the prosecutrix that since her husband was not present, no report could be lodged. On the other hand, she states in her statement that she alongwith her husband and her daughter went on 29.1.2000 to the Police Station, but the police refused to registertheir report, though they were kept sitting in the police station from 8.00 a.m. to 9.00 p.m. She further stated that the SHO Virender gave severe beatings to his daughter and turned them out of the police station. Prem Chand, the uncle of the accused, was also present in the police station, who was threatening her husband and the police refused to register the FIR. She further states that on 7th February, when they were present in the house, they were taken to the police station and an FIR was registered and the girl was medically examined. It is clear from a perusal of this statement that the girl was recovered on 28th January and had been brought by the brother of the - 4 - complainant Surjit Kaur and she could have easily gone to the police and lodged the report, but no report was lodged. Even the husband of the complainant had returned on the next day and still they took about 10 days to lodge the report. It is surprising that they were allowed to remain at Police Station for 13 hours, given beatings and they were turned out and after 10 days, the police came to their house, took them to the police station and got the FIR registered. 6. The said uncle of the prosecutrix, namely, Raj Mal has been examined as PW-3, who saw the accused and the prosecutrix together and brought the prosecutrix back to the house and he was told that she had been raped by the accused under threat on the night of 27th January, but he never took any steps to get the FIR registered. 7. The father of the prosecutrix was never examined, though he was material witness to offer any explanation in regard to delay in lodging of the report. 8. The said Virender to whom a reference has been made by PW-2 Surjit Kaur has been examined as PW-10, who was the then SHO at Police Station, Paonta. He specifically stated that he remained on leave from January 20 to 29, 2000 and resumed his duties on January 30, 2000. This clearly shows that a reference was made by PW-2 Smt.Surjit Kaur to him as having given beatings on 29.1.2000, but he was on leave and resumed his duties on 30.1.2000 only. He denied having given beatings to the prosecutrix or her mother and, therefore, the statement of PW-2 Surjit Kaur that the police did not register her complaint or gave her beatings does not appear to be correct. - 5 - 9. Apart from the above, PW-2 Surjit Kaur or any other witness does not give any explanation as to why no report was lodged for a period of nearly 10 days and once an explanation had been given by them, it could have been considered as to whether it was plausible or not. However, no explanation has been given and in the facts of the case, in the absence of not furnishing any explanation, the court has to be more cautious in appreciating the evidence of the prosecution witnesses, though it cannot be said that the delay is fatal in such circumstances. 10. The next question which arises for consideration is in regard to the age of the prosecutrix at the time of occurrence. According the certificate of the school Ext.PW-4/B proved in evidence from the statement of PW-4 K.R. Vimal, Principal of the school, he had given the certificate regarding the date of birth of the prosecutrix and according to this, the date of birth of the prosecutrix was 25th May, 1984. This certificate is not on the basis of any birth certificate in school record. It is only on the basis of the entries made in the school record and on the basis of the middle examination certificate produced at the time of admission in the school. The said certificate of middle standard examination was never seen by this witness as admitted by him and it is only based upon the entries which were not made in his presence in the school register. Therefore, the said certificate cannot be said to be primary evidence and cannot be said to be the conclusive proof in regard to the age of the prosecutrix. - 6 - 11. The prosecution has also produced another certificate Ext.PW-8/A proved by PW-8 Darshan Lal, Secretary, Gram Panchayat and according to this certificate, the date of birth of the prosecutrix was 12.1.1984, which is contrary to the one proved by the Principal of the School. This is not a copy of any register of births and deaths maintained by the Panchayat from which this certificate was produced and, therefore, this also cannot be termed as primary evidence. No radiological test was conducted to determine the age of the prosecutrix and the evidence led by the prosecution cannot be said to be conclusive so as to hold that the girl was below the age of 16 years at the time of occurrence and in case she was not below the age of 16 years, she could give a valid consent to the sexual act committed with her. 12. Apart from the above, the learned trial Court has also referred to the statement of PW-1, the prosecutrix, wherein he had referred to the fact that the medical examination of the prosecutrix was done on the evening of 7th February i.e. after 10 days of the occurrence and the observations made by the medical officer were reproduced. In para 11 of the judgment, the learned trial Court had observed as under: “The presence of carunculae hymenealis is indicative of frequent sexual intercourse and not just one such act. In this view I am fortified by the observations of Jaisingh P. Modi’s observations in his text book of Medical Jurisprudence and Toxiclogy (Fifteenth Edition). It was observed at page 332:- “In nubile virgins the hymen, as a result of complete sexual intercourse, is usually lacerated, having one or more radiate tears, the edges of which are red, swollen and painful, and bleed on - 7 - touching, if examined within a day or two after the deed. These tears heal within five or six days, and after eight to ten days become shrunken and look like small granular tags of tissue. Frequent sexual intercourse and parturition completely destroy the hymen, which is represented by several small granular tags of tissue, called carunculae hymenealis or myrtiformes.” Thus, it was observed that the prosecutrix was stated to have been subjected to only one intercourse and not to frequent intercourse, but this observation leads to the inference that the girl was habitual of sexual intercourse. The Medical Officer, as observed by the learned trial Court, had also observed that the prosecutrix had not named the accused, who had allegedly raped her. The observations made by the Medical Officer clearly show that there were no apparent injuries and there was no tenderness on any part of the vagina. Thus, it was concluded that the statement of prosecutrix does not inspire confidence, particularly, when the prosecutrix has stated that one boy was also in the same room on a different bed. The said boy Kalam Singh was examined as PW-9, who has clearly stated that the prosecutrix and the accused never came to his room or stayed with them. Therefore, the statement of the prosecutrix was not relied upon in view of these infirmities and contradictions. 13. The net conclusion arrived at by the learned trial Court, keeping in view the deposition of the prosecutrix, cannot be said to be such which calls for an interference by this Court, since it was not perverse and as - 8 - such those findings do not call for an interference by this Court. 14. In view of the above discussion, we accordingly hold that the guilt of the accused was not established and the learned trial Court had rightly acquitted the respondent of the charge framed against him. Consequently, the appeal filed by the appellant-State is dismissed. The bail bonds furnished by the respondent shall stand discharged. 15. However, before parting with this judgment, we may mention that the learned trial Court had mentioned the name of the prosecutrix in the judgment under challenge, in referring to her statement, which is not correct in view of the law laid down by the Supreme Court that the name of the victim in offence under Section 376 IPC should not be mentioned in the judgment. A copy of this judgment may be placed before the Hon’ble Chief Justice for issuing directions, if deemed necessary, reiterating the directions given by the Supreme Court in this regard. (Deepak Gupta), Judge. November 17, 2011 (V.K. Ahuja), (tilak) Judge.