HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A.No.: 245 of 1994 Reserved on: 9.9.2008 Decided on: 15.9.2008 State of Himachal Pradesh ………Appellant. Versus Raghuvir Singh ………Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For appellant: Mr. Mr.Rajesh Mandhotra, Deputy Advocate General. For respondent: Mr.Mohan Singh, Advocate. Per V.K. Ahuja, J: This is an appeal filed by the State of Himachal Pradesh against the judgment of the court of the learned Sessions Judge, Sirmour at Nahan, dated 1.1.1994, vide which the respondent was acquitted of the charge framed against him under Section 376 of the Indian Penal Code. Briefly stated the facts of the case are that on 4.3.1993, at about 10.00 p.m., a report was lodged with the police by Kumari S. (name not mentioned), accompanied by her father, that she was studying in 5th Class and her annual examinations were going on. On the said day, after appearing in the examination, she proceeded to her house at 1.30 p.m. and on way, the respondent, who was serving as a teacher in her school, came on a cycle and ______________________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. gave her lift. She accompanied him on the cycle and after covering some distance, the respondent stopped the cycle near the fields and took her to the fields and after opening her salwaar forcibly, committed rape upon her. She felt pain and raised an alarm and the respondent ran away from the spot. In the meanwhile, one Ashok Kumar came there to whom she narrated the occurrence, who brought her to her house and she told the occurrence to her sister Beena. Her mother had gone outside for stitching of the clothes and her father was working at Paonta as Rickshaw Puller. It was further alleged that in the evening her father came back and she narrated the occurrence to him and the report was lodged subsequently with the police. On this report, a case was registered and after investigation, the challan was filed before the Judicial Magistrate, who committed the case to the learned trial Court who tried the respondent leading to his acquittal, as detailed above. We have heard the learned counsel for the parties and have gone through the record of the case. The first point considered by the learned trial Court was in regard to the age of the prosecutrix since it was necessary for the prosecution to prove that the prosecutrix was below the age of 16 yeas and even if there was any consent on her part that was immaterial. The learned trial Court had referred to the testimony of the relatives of the prosecutrix, namely, the father, the mother and the elder sister, who have stated about the age of the prosecutrix approximately. The prosecutrix gave her age at the time of occurrence as 12 years. Her elder sister Kumari Beena, while appearing as PW-4, gave the age of the prosecutrix as 13 years, while PW-3, Karam Singh, father of the prosecutrix, gave her age as 13 years. According to the mother of the prosecutrix Smt.Shyama PW-5, the prosecutrix was aged 13 years at the relevant time. However, this age has been stated by approximation only and, therefore, cannot be said to be conclusive to determine the age of the prosecutrix. According to the school certificate Ext.PK, issued by PW-8 Basheshar Nath, Head Teacher, the date of birth of the prosecutrix has been shown as 13.12.1984. According to the certificate Ext.PO issued by PW-13 Ved Parkash Bansal, Secretary Gram Panchayat, the date of birth has been recorded as 25.11.1982. Thus, there is contradiction in regard to the documents proved on record and both these documents cannot be said to be conclusive to determine the age of the prosecutrix, since primary evidence was the certificate from the panchayat register maintained by the Panchayat, which has not been proved on record or the copy of the birth entry available with the Health Department. According to PW-14 Dr.H.K. Pant, Radiologist, the age of the prosecutrix was between 15 and 16 years, on the basis of the X-ray examination. Thus, from the above discussion it is clear that the learned trial Court had rightly concluded that the prosecutrix had failed to prove that the age of the prosecutrix was below 16 years on the date of occurrence. Coming to the oral evidence, the prosecutrix as PW-1 has stated that when she was raped in the fields she raised an alarm and PW-2 Ashok Kumar came to the spot to whom she narrated the incident and he took her to her house and left her there. She further stated that she was taken to her house by Ashok Kumar accompanied by one Mohan Singh, Cook in the Police Post. The said Ashok Kumar was examined as PW-2, who stated that he did not hear the cries of the prosecutrix and he never saw the accused running from the sugarcane field. The said Cook, Mohan Singh, who accompanied the prosecutrix and Ashok Kumar, was not examined by the prosecution for the reasons best known to them. It is also in evidence that Mohan Singh was also accompanied by another Constable at that time but he was also not examined by the prosecution. According to PW-1 prosecutrix, the said Mohan Singh, Cook, remained in her house till the return of her mother and, therefore, his statement was material, but he has not been examined by the prosecution. It is also in evidence that the prosecutrix had also complained to the said Constable accompanying Mohan Singh, Cook, who was also not examined as mentioned above. Apart from the above, it has also come in evidence that the prosecutrix narrated the occurrence in full to her sister Beena who was present in the house, but surprisingly, the said elder sister of the prosecutrix when examined as PW-4 stated that the prosecutrix did not narrate the incident to her. She also did not narrate the occurrence to her mother in her presence. She stated that probably she narrated the incident to her mother when she returned home on her call. The statement of the elder sister of the prosecutrix was sufficient to demolish her version because, in all probabilities, in case such an occurrence had taken place and was told to her elder sister by PW-1 prosecutrix, her elder sister PW-4 Beena would have supported the version of her younger sister, but that is not so, which makes the story of the prosecution doubtful. Moreover, the learned trial Court had also referred to the discrepancy in the statement of the prosecutrix as well as the statement of the Investigating Officer PW-15 ASI Rajinder Kumar, who has stated that supplementary statement of the prosecutrix was recorded in which she had stated that the accused had used Nirodh at that time and she had made a request to the police officer in writing in that regard. However, the learned trial Court had rightly observed that the request is dated 4.3.1993, while the supplementary statement of the prosecutrix Ext.DA was recorded on 5.3.1993. In these circumstances, the Investigating Officer came with the plea that this fact she had told him orally, but neither it finds mention in the supplementary statement recorded at that time nor there has been anything to show that it was mentioned in the case diary. It can be rightly concluded that this attempt was made by the Investigating Officer to plant the theory of Nirodh or condom when he found that the Medical Officer had not found any semen in the vagina or clothes of the prosecutrix. There is another aspect of the case that though the prosecutrix had stated that she was raped in the sugarcane fields, which was an uneven place, but the Medical Officer PW-7 Dr.S.Mangla, did not find any marks of injury or abrasion on the person of the prosecutrix or that of tooth bite, though the prosecutrix had stated that she was given 2-3 bites on her cheeks by the accused. In view of these infirmities in the statement of the prosecutrix coupled with the fact that the other witnesses have not supported her statement and the fact that according to the opinion of the Medical Officer, the girl was found habitual to sexual intercourse, the learned trial Court had rightly concluded that the prosecutrix was not a trustworthy witness. Keeping in view the above discussion, we are of the opinion that the final findings recorded by the learned trial Court holding that the prosecution has failed to prove their case cannot be termed as perverse calling for an interference by this Court and as such there is no merit in the appeal filed by the State of H.P., which is dismissed accordingly. Bail bonds furnished by the respondent shall stand discharged. (Deepak Gupta), Judge. September 15, 2008. (V.K. Ahuja), (TILAK) Judge.