IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No. 59 of 2010 Judgment reserved on: 31.3.2011 Date of decision: 13. 4. 2011. Dhale Ram …Appellant. Versus State of Himachal Pradesh ..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the Appellant : Mr. Ravinder Thakur, Advocate. For the Respondent : Mr. J.S.Rana, Asstt. A.G. __________________________________________________________ Kuldip Singh, Judge This appeal has been directed against judgment dated 13.3.2009 passed by learned Additional Sessions Judge, Fast Track Court, Kullu in Sessions Trial No. 19 of 2008 convicting the appellant for commission of offence punishable under Sections 376, 506 IPC and sentenced to undergo rigorous imprisonment for 8 years under Section 376 IPC and to pay fine of ` 5,000/-, in default of payment of fine, he is to suffer simple imprisonment for six months. He is also sentenced to rigorous imprisonment for one year for the commission of offence under Section 506 IPC and to ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? 2 pay fine of ` 2,000/- and in default of payment of fine, he is to suffer simple imprisonment for three months. 2. The prosecution case in brief is that PW-5 Naina Wati solemnized her marriage with Tek Chand and from the wedlock PW-4 prosecutrix was born. The age of the prosecutrix at the time of commission of offence was 13 years. The prosecutrix was three years old when Tek Chand died and PW-5 Naina Wati complainant solemnized second marriage with PW-6 Gumat Ram. The prosecutrix and complainant lived at village Dohra-nullah. The prosecutrix was the student of sixth class. 3. On 16.9. 2005 PW-6 Gumat Ram informed PW-5 Naina Wati that he had seen appellant indulging in sexual act with PW-4 prosecutrix in the field. The prosecutrix was questioned by PW-5, she kept mum and started weeping. On persistent questioning, prosecutrix told PW-5 on 22.9.2005 that appellant had been subjecting to her to forcible sexual intercourse for the last about three years. She was threatened by appellant that in case she would narrate the incident to anybody, he would mix poison in ‘PAKODAS’ and kill her. She was also threatened that appellant would kill her younger brother also. 4. The further case of the prosecution is that on 16.9.2005 at about 5.00 p.m. PW-4 had gone to bring vegetables in the field, she was caught by appellant and she was subjected to forcible sexual intercourse by him. The appellant had been 3 subjecting minor prosecutrix to rape and she was also threatened to be killed. 5. PW-5 Naina Wati complainant alongwith prosecutrix went to Police Station, Kullu and lodged FIR. The prosecutrix was medically examined at Regional Hospital, Kullu. The Medical Officer opined that there had been physical interference with the external genitalia. The birth certificate of the prosecutrix was taken into possession during investigation. The appellant absconded after the incident, but lateron he was arrested. He was subjected to medical examination and found fit to indulge in sexual act. The vaginal smear slides, salwar and pubic hairs of prosecutrix were sent to FSL, Junga and report obtained. On completion of investigation, challan was presented against the appellant for commission of offences under Sections 376, 506 IPC. 6. The appellant was charged for commission of offences under Sections 376 and 506 IPC. He denied the charge. The prosecution has examined 14 witnesses and produced some documents. The statement of appellant was recorded under Section 313 Cr.PC. He denied the prosecution case. The appellant did not lead defence evidence. On conclusion of the trial, the appellant was convicted and sentenced as noticed above, hence present appeal. 7. I have heard the learned counsel for the parties and have also gone through the record. PW-1 HC Usha is a witness, who took the prosecutrix to Referral Hospital, Kullu for conducting medical examination. She was handed over three parcels by the 4 Medical Officer, Referral Hospital, Kullu which she deposited with MHC Roop Singh, Police Station, Kullu. The Medical Officer had also handed over sealed envelope to her which was also deposited by her with MHC Roop Singh. PW-2 HHC Jai Krishan has stated that on 27.9.2005 MHC Roop Singh has handed over three parcels to him vide RC No. 140/2005 for depositing at FSL, Junga, which he deposited at FSL, Junga. PW-3 Amar Singh is a formal witness. 8. The statement of prosecutrix was recorded as PW-4. Her statement was recorded on 20.10.2008 and on that date she stated that she was 15 years old. She was student of sixth class in the year 2005. Tek Chand her father had died. The name of her mother is Naina Wati, who has solemnized second marriage with Gumat Ram of Dohra-nullah after the death of her father. Chhape Ram is her step brother. She knew appellant Dhale Ram. He had been running tea stall at Dohra-nullah. She had tied ‘Rakhi’ on the wrist of Dhale Ram. She was called by Dhale Ram in his house when she was student of fourth class. She went to the house of accused Dhale Ram, who subjected her to rape. Dhale Ram had threatened her that in case she would disclose this incident, he would mix poison in ‘PAKODAS’ and would serve the “PAKODAS’ to her and her brother and kill them. She has stated that Dhale Ram has inserted his male organ inside her vagina. Dhale Ram had given her ` 5/- on that day. Out of fear, she did not disclose this incident to anybody else. 5 9. The prosecutrix continued that she was subjected to rape by Dhale Ram on five or six occasions. She was raped inside Gharat (water-mill), inside his tea-stall, in her house and in the fields also. Dhale Ram used to give her money and ‘PAKODAS’ after indulging in sex with her. Dhale Ram after committing rape on her person, used to threaten her. It takes five minutes to reach the house of Dhale Ram from her house. Lastly she was subjected to rape by Dhale Ram in her field but she had forgotten the date. The last incident took place about 3-4 years back. 10. She was questioned by her mother as to what happened in the field. She disclosed entire incident to her mother. She and her mother went to Police Station, Kullu and her mother reported the matter to police. She was taken to Govt. hospital by police and was subjected to medical examination at Kullu. She identified the places where she was subjected to rape by Dhale Ram. She identified Dhale Ram present in the court. In cross- examination, she has stated that last time she was subjected to rape by Dhale Ram in the field at about 5.00 p.m. She did not raise alarm when she was subjected to rape by Dhale Ram. She was seen in the field with Dhale Ram by her step father Gumat Ram. She denied that she was not subjected to rape by Dhale Ram. 11. PW-5 Naina Wati has stated that she had performed marriage with Tek Chand about 18 years back, who died about 15 years ago. The statement of PW-5 was recorded on 20.10.2008. The prosecutrix was born to her from Tek Chand. After the death of Tek Chand, she performed second marriage with Gumat Ram and 6 she has given birth to Chhape Ram from Gumat Ram. She and prosecutrix lived together at Dohra-nullah. 12. PW-5 has further stated that about three years back in the month of ‘Asauj’ her husband Gumat Ram had seen prosecutrix and Dhale Ram in the field. She questioned prosecutrix about her presence in the field with accused Dhale Ram. The prosecutrix disclosed her that she had been subjected to rape by Dhale Ram. The prosecutrix further told that she had not disclosed this incident earlier because Dhale Ram had threatened her that in case she would narrate this incident to anybody else, he would mix poison in ‘PAKODAS’ and kill her. 13. PW-5 continued that initially prosecutrix did not want to disclose anything to her but on her insistence, she started weeping and disclosed the incident to her during night at about 8.00 p.m. The prosecutrix had also disclosed that Dhale Ram had been committing rape on her person for the last three years. She lodged FIR Ex.PA. The age of prosecutrix was 15 years when PW-5 made the statement. Dhale Ram had absconded after the incident. In cross-examination, she has stated that Forest Guard hut, three residential houses, residence of Ranger are situated near her house. 14. PW-6 Gumat Ram has stated that he solemnized marriage with PW-5 Naina Wati about 10 or 12 years back. The prosecutrix was born to PW-5 from her previous husband. He had seen Dhale Ram and prosecutrix sitting in the field at about 4.00 p.m. He came to know that prosecutrix had been subjected to 7 sexual intercourse and he disclosed this fact to his wife. The prosecutrix was not disclosing anything on the questioning of PW-5 Naina Wati. On persuasion, during night, prosecutrix told PW-5 that she had been subjected to sexual intercourse by Dhale Ram for the last about three years. 15. PW-6 continued that prosecutrix had told his wife that she had been subjected to sexual intercourse by Dhale Ram in the field, house, Gharat and Jungle. Dhale Ram had threatened prosecutrix that in case she would narrate the incident to anyone else he would mix poison in ‘PAKODAS’ and serve the same to her and kill her. In cross-examination he denied that he suspected Dhale Ram was having illicit relations with his wife and therefore, Dhale Ram has been falsely implicated in the case at his instance. 16. PW-7 Inspector Sarwan Kumar has stated that on completion of investigation he presented the challan in the court. PW-8 SI Dorje Ram has prepared site plan Ex.PB, he took birth certificate Ex.PC of prosecutrix from Gram Panchayat, Kothi Sari. PW-9 HC Roop Singh is a formal witness regarding deposit of parcels, sealed envelope, seal impression with him which he deposited at FSL, Junga through HHC Jai Krishan. 17. PW-10 Dr. (Mrs.) Neena Lal has stated that on 23.9.2005 prosecutrix was brought to Referral Hospital, Kullu by the police and she conducted her medical examination. She was brought with alleged history of sexual relationship with Dhale Ram for the last three years. On her examination following observations were made:- 8 “Height was three and half feet. Weight was 31.7 kgs. Teeth 12 in each jaw (Caris present). GPE:- She was moderately built and nourished. Gait was normal. Secondary Sex Character:- Auxilliary hairs were scanty and public hairs were scanty. Breasts well developed. Marks of violence were not present. Clothes worn at time of assault were changed. White salwar was sent for chemical examination. Local Examination: Labia majora was not covering labia minora. Labia minora patulous. No mark of any injury was noticed on genetalia area. No matting of public hairs but were sent for chemical examination. Per vaginal examination: No bleeding or pain on touch and during examination. Vaginal introitus admit two fingers. Hymen was torn and tags were present. Vaginal smear slides were taken from posterior Fx and were sent for chemical examination. X-ray examination was advised.” She continued that in her opinion, there was physical interference with the external genetalia, however, final opinion reserved to be given after chemical examination report. On 9.1.2006 the report of the Chemical Examiner was shown to her, but no blood and semen was found present. Hence, her final opinion also remains the same. She issued medical examination certificate of the 9 prosecutrix Ex.PD. In cross-examination, she has denied that if rape is committed by fully developed male with a girl of tender age, then wide spread damage is expected on hymen, fourchette, labia majora, labia minora, vulva, as well as vaginal canal. 18. PW-11 SI Gurbachan Singh partly investigated the case. He moved an application Ex.PE for medical examination of Dhale Ram. PW-12 HC Ram Krishan has stated that on 20.11.2007 Dhale Ram was arrested by him. PW-13 Inspector Pratap Chand has prepared supplementary challan. PW-14 Dr. Kalyan, examined Dhale Ram and issued MLC Ex.PF. He opined that there was nothing suggestive that Dhale Ram cannot perform sexual intercourse. In his statement under Section 313 Cr.P.C. appellant has denied the prosecution case and has stated that he is innocent. 19. It appears from the trend of cross-examination of PW- 4, PW-5 and PW-6 that the defence put forward by the appellant is that PW-5 had illicit relations with the appellant and in order to implicate the appellant, false story has been concocted by PW-6 with the help of PW-4 and PW-5. It has also been submitted on behalf of the appellant that the statement of PW-4 prosecutrix does not inspire confidence, the medical examination of the prosecutrix does not establish forcible sexual intercourse in recent past. The birth certificate Ex.PC has not been connected with the prosecutrix, hence the age of the prosecutrix at the time of alleged incident has not been proved. There is no worth-believing corroboration of the statement of prosecutrix. The prosecution story is unbelievable 10 and, therefore, appellant is entitled to acquittal after setting aside impugned judgment. 20. The defence of the appellant that PW-6 Gumat Ram suspected illicit relations between the appellant and his wife PW-5 and, therefore, in order to take revenge PW-6 has taken the help of PW-5 Naina Wati and PW-4 prosecutrix to implicate the appellant falsely in the case. This defence is meritless. No doubt, some suggestions were put to PW-4, PW-5 and PW-6 by the defence that PW-6 suspecting illicit relations between appellant and PW-5, has falsely implicated the appellant in the case with the help of PW-4 and PW-5. PW-6 has denied that he suspected illicit relations between his wife PW-5 and appellant and therefore, he falsely implicated appellant in the case with the help of PW-4 and PW-5. In his statement under Section 313 Cr.P.C. the appellant has nowhere stated that appellant has been implicated by PW-6 falsely in the case with the help of PW-4 and PW-5 on the ground that PW-6 suspected illicit relation between appellant and PW-5, hence the plea of the defence that appellant has been falsely implicated in the case by PW-6 with the help of PW-4 and PW-5 is rejected. 21. The prosecutrix has stated that appellant had been subjecting her to sexual intercourse for the last three years. She had been raped in the shop, gharat, house, field etc. The appellant used to pay ` 5/- and ` 10/- etc. to her after forcible sexual intercourse. The appellant also used to threaten her that in case she would tell that she had been subjected to forcible sexual intercourse, then appellant would kill her and her younger brother 11 by mixing poison in the ‘PAKODAS’. The prosecutrix said that because of this fear she did not tell the incident to anyone. 22. PW-6 Gumat Ram has stated that on the relevant date, he had seen the appellant and prosecutrix in the field. He disclosed this fact to his wife. PW-5 wife of PW-6 questioned the prosecutrix, who initially did not tell anything, rather she wept but lateron disclosed the incident to her mother PW-5. Thereupon FIR Ex.PB was registered at the instance of PW-5. PW-10 Dr. (Mrs. ) Neena Lal on the basis of medical examination of the prosecutrix has stated that hymen was torn and tags were present. The prosecutrix was examined on 23.9.2005. The incident is dated 16.9.2005. The doctor has stated that in her opinion there is physical interference with the external genetalia. 23. PW-10 has denied that if rape is committed by fully developed male with a girl of tender age, then wide spread damage is expected on hymen, fourchette, labia majora, labia minora, vulva, as well as vaginal canal. The tearing of hymen and tags were noticed. No bleeding or pain on touching during examination and vagina admitting two fingers, indicate that prosecutrix was subjected to sexual intercourse. The statement of doctor that there is physical interference with the external genetalia, does not mean that the prosecutrix prior to 23.9.2005 was not subjected to forcible sexual intercourse. The prosecutrix has clearly stated that appellant had been subjecting her to forcible sexual intercourse for the last three years. This has been corroborated by PW-5 mother of the prosecutrix, who has stated 12 that prosecutrix had told her on questioning that appellant had been subjecting the prosecutrix to forcible sexual intercourse for the last about three years. The prosecutrix has been subjected to lengthy cross-examination but defence could not extract anything so as to support the defence version. 24. The statement of prosecutrix has been materially corroborated by PW-5 and PW-6. PW-10 doctor has also not stated that no forcible sexual intercourse has been committed with the prosecutrix. The medical examination of the prosecutrix was done after about seven days of the incident. In these circumstances, the possibility of elimination of vital evidence of rape cannot be ruled out. PW-14 Doctor Kalyan has stated that there is nothing suggestive that Dhale Ram cannot perform sexual intercourse. The statement or prosecutrix inspires confidence which gets corroboration from the statements of PW-5 and PW-6. The conduct of appellant immediately after the incident is relevant. He absconded and was arrested on 20.11.2007 after about two years of the incident. The medical examinations of the prosecutrix and the appellant do not rule out forcible sexual intercourse of the prosecutrix. 25. It has been submitted on behalf of the appellant that the age of the prosecutrix has not been proved. In birth certificate Ex.PC, the name of the mother of the prosecutrix has been shown ‘Narayan Wati’ whereas the name of the mother of the prosecutrix is ‘Naina Wati’. Medical opinion regarding age of the prosecutrix in the form of dental age and ossification of bones not taken. The 13 prosecutrix is above 16 years. The evidence produced by prosecution shows that it was consensual act. The learned counsel for the appellant has relied Sunil vs. State of Haryana (2010) 1 SCC 742 and Birad Mal Singhvi vs. Anand Purohit AIR 1988 SC 1796 in support of his argument. In Ex.PC date of birth is recorded 18.4.1992. The name of the father of the prosecutrix has been mentioned as Tek Chand. The name of the prosecutrix is also mentioned in Ex.PC. Therefore, simply the name of the mother has been recorded as Smt. Narayan Wati in Ex.PC, it cannot be said that birth certificate Ex.PC is not of the prosecutrix. The name of mother of prosecutrix as ‘Narayan Wati’ in Ex.PC instead of ‘Naina Wati’ appears to be due to mixing of words. 26. PW-5 mother of the prosecutrix has stated that on 20.10.2008 the age of the prosecutrix was 15 years. PW-5 has not been cross-examined regarding the age of the prosecutrix. PW-4 prosecutrix on 20.10.2008 has given her age 15 years. She has also not been cross-examined regarding her age. It means the defence has not disputed the age of prosecutrix 15 years on 20.10.2008. 27. The statement of PW-10 Dr. (Mrs.) Neena Lal is also to the effect that height of the prosecutrix was three and half feet, weight 31.7 Kg. at the time of examination, she was moderately built and nourished. Auxillary hairs were scanty and pubic hairs were scanty. This also leads to an inference that prosecutrix was of tender age at the time of her examination. Sunil (supra) and Birad Mal Singhvi (supra) are of no assistance to defence when on the 14 question of age PW-4 prosecutrix and her mother PW-5 have not been cross-examined. In view of statements of PW-4, PW-5, PW- 10 and Ex.PC the age of the prosecutrix comes to 12/13 years at the time of incident, hence even consensual sexual intercourse by appellant with prosecutrix is of no help to appellant. Thus, seen from any angle, the prosecution has proved the case against the appellant beyond reasonable doubt. 28. The learned court below has properly appreciated the material on record. The inference drawn from the evidence by the learned Court below emerges from the evidence on record. There is no merit in the appeal and the same is dismissed. (Kuldip Singh), April 13, 2011 Judge. (gr)