IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.63 of 1996 Decided on : December 18, 2009 State of H.P. …Appellant. Versus Ajay Kumar …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 Appellant : Mr. P.K. Sharma, Additional Advocate General, and Mr. Ramesh Thakur, Assistant Advocate General. For the Respondent : Mr. Vinay Thakur, Advocate. Surjit Singh, J (Oral) State has appealed against the judgment dated 1st November, 1994, of learned Sessions Court, Kangra at Dharamshala, whereby respondent Ajay Kumar, who was tried for offence, under Section 376 of the Indian Penal Code, has been acquitted. 2. Case of the prosecution may be stated thus. On 8th July, 1993, prosecutrix, examined as PW-3, accompanied by her mother Saroj (PW-4), went to Police Station, Dehra, and lodged FIR Ex. PC, to the effect that on the previous day, i.e. on 7th July, 1993, when she (the prosecutrix) accompanied by her grandmother Ram Piari (PW-5) had gone to graze cattle and she was directed by her Whether reporters of the local papers may be allowed to see the judgment? …2… grandmother to get a buffalo, which had strayed too far, back near her, the respondent appeared from somewhere and tried to molest her. When the prosecutrix raised alarm, respondent ran away. Prosecutrix narrated the incident to her grandmother PW-5 Ram Piari. In the evening, when she returned home, she told her mother PW-4 Saroj that the respondent had tried to molest her on that day and that prior to that he had committed rape on her on 26th June, 1993, when she was all alone at home and even before that he had once raped her in the month of May. She did not narrate the earlier incidents of May and 26th June, 1993, to anybody, out of shame and also out of fear, because the respondent had threatened that in case she narrated the incidents to anybody her father would be done to death. 3. Police got the prosecutrix medically examined. Her medical examination showed that she was habitual of sexual intercourse. Her epiphyses were X-rayed, for determining skeletal age. PW-8 Dr. R.K. Mahajan, who conducted the epiphysis test, gave report Ex. PE/3, according to which her age was between 13 and 15 years. Police procured a certificate from the Gram Panchayat. As per that certificate, a daughter, named Rachna, of PW-4 Saroj and her husband Rasila Ram, was born on 10th February, 1979. 4. Prosecution examined the prosecutrix as PW-3, her mother Saroj as PW-4, her grandmother Ram Piari as PW-5, her Chacha Pritam Chand as PW-6, the doctor, who …3… conducted medical examination, namely Sumanju Dhiman as PW-1, and the doctor, who conducted the epiphysis test, namely R.K. Mahajan, as PW-8. Prosecution also examined Panchayat Secretary, PW-7 Parmod Singh, to prove certificate of date of birth Ex. PD. Respondent in his statement, under Section 313 of the Code of Criminal Procedure, denied having committed the crime. 5. We have heard the learned Additional Advocate General as also the learned counsel for the respondent and gone through the record. 6. Report was lodged with the police on 8th July, 1993. Incidents of rape had allegedly taken place on 26th June, 1993 and prior to that in the month of May, 1993. Explanation offered by the prosecution for delay in lodging the FIR or prosecutrix’ not complaining to even her parents about the incident of 26th June, 1993 or the incident of May, 1993, is that the prosecutrix had been threatened by the respondent that her father would be killed, in case she narrated the incidents to anybody. Another explanation is that the mother of the prosecutrix retuned from her parents’ place, where she had gone on 26th June, 1993, in connection with death of her brother, only on 7th July, 1993. Explanation does not appear to be acceptable. If the prosecutrix, when only attempted to be assaulted, could narrate the incident to her mother, having no fear in her mind, it is not believable that she would not have reported …4… the actual incident of rape. As regards the explanation that the mother of the prosecutrix returned from her parents’ place only on 7th July, 1993, prosecution case is that even in the month of May, 1993, the prosecutrix had been raped and according to her that was the first act of rape. At that time, the mother of the prosecutrix was at home. No explanation has been offered why the prosecutrix did not narrate the incident of May, 1993 to her mother. 7. Testimony of the prosecutrix suggests that she could have been a consenting party to the act of sexual intercourse, which allegedly took place on 26th June, 1993. She stated that she was all alone at home on that day, when the respondent came there and started talking about sex and that she did not like that. She further stated that thereafter she was dragged to the room by the respondent and subjected to sexual intercourse. In the FIR, however, she got recorded that she went to the room of her own, when the respondent started talking about lustful things, which not only contradicts her statement in the Court but also suggests that she might have been a willing party. 8. As regards the evidence with respect to the age of the prosecutrix, it has come in the evidence that the prosecutrix had been studying in a school, at the time when the alleged incidents of rape took place and was student of 9th Standard. School record has not been produced to prove her date of birth. One certificate Ex. PD issued by the …5… Panchayat has been proved, which pertains to a girl named Rachna. Uncle of the prosecutrix, namely PW-6 Pritam Chand, stated that the certificate pertains to the prosecutrix and that it was he who had got her date of birth recorded in the Panchayat record and got her name recorded as Rachna. Testimony of PW-6 Pritam Chand that he got the birth of the prosecutrix entered in the Panchayat register is also falsified by the testimony of PW-7 Pramod Singh, Secretary of the Gram Panchayat, who stated that the birth of Rachna, named in certificate Ex. PD, had been got entered in the Register by Sant Ram Chowkidar. PW-6 Pritam Chand further stated that in the school, at the time of her admission, the name of the prosecutrix was got recorded as Sushma by her grandmother. Grandmother of the prosecutrix Ram Piari appeared as PW-5. She did not say that she got the prosecutrix admitted or got her name recorded as Sushma in the school record. Panchayat Secretary PW-7 Pramod Singh stated that as per record Rachna, to whom certificate Ex. PD pertains, is the fourth child of Rasila Ram and PW-4 Saroj. However, according to the testimony of the mother of the prosecutrix, PW-4 Saroj, she is her third child. 9. PW-1 Dr. Sumanju Dhiman and PW-8 Dr. R.K. Mahajan testified that there is error of 2-3 years, on both sides, in the skeletal age opined on the basis of skiagrams of epiphysis. Skeletal age has been opined to be 13-15 years by PW-8 Dr. R.K. Mahajan, vide report Ex. PE/3. That means …6… the age of the prosecutrix could have been 17 or 18 years also. For the foregoing reasons, we see no justification for interfering with the judgment of acquittal recorded by the trial Court. Hence, the appeal is dismissed. ( Surjit Singh ), J December 18, 2009(sd) ( Surinder Singh ), J