IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeals No. 260/2007 & 358 /2008 Reserved on: 21.10.2008 Decided on October 24 , 2008 1. Cr.Appeal No. 260 of 2007 Kanchan Nargu …Appellant Versus State of H.P. … Respondent 2. Cr.Appeal No.358 of 2008 Sanjay Kumar … Appellant Versus State of H.P. …. Respondent Coram: The Hon’ble Mr. Justice Surinder Singh.J. Whether approved for reporting ?1 For the appellants : Mr. Anoop Chitkara, Advocate. For the Respondent Mr J.S.Guleria, Law officer/ Surinder Singh, J. Both the appeals are arising out of a common judgment, passed by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, H.P. in Sessions Trial No. 2 of 2006, on 7.6.2007, whereby the appellants Kanchan Nargu and Sanjay Kumar were convicted and sentenced as follows: 1 Whether the reporters of Local Papers may be allowed to see the judgment ? 2 Under section 376 IPC To undergo rigorous imprisonment for a period of 7 years and to pay a fine of Rs.10,000/- and in default of payment of fine to undergo simple imprisonment for 1 year; Under section 366 read with section 34 IPC To undergo rigorous imprisonment for a period of 7 years and to pay fine of Rs.5,000/- and in case of default in the payment of fine, to further undergo simple imprisonment for a period of 6 months; Under section 363 read with section 34 IPC To undergo rigorous imprisonment for a period of 3 years and to pay fine of Rs.3,000/- and in case of default in the payment of fine to further undergo simple imprisonment for a further period of 3 months. The amount of fine, if realized, was ordered to be paid to the prosecutrix, as compensation. Further all the sentences, aforesaid, were ordered to run concurrently and the period, already undergone by them in custody, is ordered to be set off. In order to avoid conflicting judgments, both the appeals have been clubbed together for its decision. The factual matrix of the case, as emerges from the prosecution evidence, can be summed up thus: Prosecutrix is a resident of a remote village Broua in District Kinnaur H.P. Her parents are shepherds. Appellant Kanchan Nargu is a local resident of village Barang, Tehsil Kalpa, District Kinnaur. He 3 was distantly related to the prosecutrix whereas appellant Sanjay Kumar is resident of village Ladsoli, Tehsil Garnol, District Sonipat (Haryana). He was residing in the village of the prosecutrix and was looking after the shop of his maternal uncle. Appellant Kanchan Nargu oftenly used to visit village of the prosecutrix. On 5.9.2005 he along with appellant Sanjay Kumar came to house of the prosecutrix, at that time she was alone. Her parents were away with shepherds. Appellant Kanchan Nargu gave an offer to the prosecutrix get her married with appellant Sanjay Kumar. On this allurement, both the appellants took her on foot to Karchham. From there they took a lift to Rampur and reached there at 8 p.m. Appellant Sanjay Kumar accompanied the prosecutrix to Shimla in a bus. Both of them alighted at bus stand,Shimla, there they met Devi Ram. The prosecutrix was taken in a vehicle to Jutogh to the house of one Santosh Kumari. It is alleged that appellant Sanjay Kumar slept in the room of the prosecutrix and committed rape, she raised cries but no body heard. The prosecutrix also stated that appellant Sanjay Kumar pressed her neck but none came to rescue her. Thereafter, she was taken to Hamirpur and stayed there in the house of the aunt of Sanjay Kumar. The prosecutrix further stated that appellant Sanjay Kumar 4 had committed sexual intercourse with her 4-5 times. Next day, the aunt of Sanjay Kumar asked about the address and age of the prosecutrix. The prosecutrix revealed her age 14 years and told that she belonged to village Broua. The uncle and aunt of appellant asked him to take her back to her village. Thereafter, she was brought to Shimla by Sanjay Kumar and stayed in the house of Santosh at Jutogh for the night. Prosecutrix started weeping and insisted upon Devi Ram to take her from there to her house but she was threatened not to weep as that area was a cantonment area and she would be shot-dead. Thereafter, Devi Ram and Santosh Kumari informed Sanjay Kumar. He came next day and contacted Kanchan Nargu telephonically and told him to come to Shimla, as the prosecutrix was not willing to stay with him. Next day, Sanjay Kumar took her to Shimla. Appellant Kanchan Nargu met them there and handed over the prosecutrix to him. Sanjay Kumar gave Rs.500/- to Kanchan Nargu. Kanchan Nargu took her to Rampur in a bus, where they stayed for a night in a hotel. Prosecutrix stated that Kanchan Nargu had also committed rape on her twice in the hotel. Next morning, she was paid Rs.150/- by him and at his instance boarded the bus for Reckong Peo, and reached in the house of her Gungi Daadi at village Khawangi where her aunt Hira Dassi (PW7) came and inquired about her whereabouts, she narrated the whole incident to her, 5 she in turn informed the police in writing Ex.PW7/A, on the basis of which FIR Ex.PW13/A was registered. Police got the prosecutrix medically examined by the Doctor Arti Garg (PW16). Her Salwar was taken into possession, sealed and sent for chemical examination. The medico-legal-certificate of the prosecutrix is Ex.PW16/A. During the investigation the police also took into possession the birth certificate of the prosecutrix Ex.PW4/A from PW4 Vijay Kumar, Panchayat Secretary wherein date of birth of the prosecutrix is mentioned as 2.7.1991. The skeletal age of the prosecutrix was also assessed, which was alleged to be between 16-18 years. Police also prepared the site plan(s) of various places, i.e. Ex.PW19/A, Ex.PW19/B and Ex.PW19/C, where the prosecutrix was taken. As per the forensic report Ex.PW19/D neither the blood nor semen-stains were found on the Salwar of the prosecutrix. Appellants along with Devi Ram and Smt. Santosh Kumari were arrested. After recording the statements of the witnesses and completion of the investigation, a challan was presented in the court for trial of the appellants for the offences charged, to which they pleaded not guilty and claimed trial. To prove its case, the prosecution examined its witnesses and the appellants were also examined under section 313 of the Code of Criminal Procedure. 6 Their case was of denial simplicitor. The trial court called upon them to enter into their defence. They examined DW1 Vidya Bhasker and DW2 Chander Kala. According to them, the prosecutrix was married to Hukam Ram in the month of July, 2004. Gungi Daadi is the aunt of Hukam Ram who is alleged to deaf and mute. At the end of the trial, accused Devi Ram and Santosh Kumari were acquitted whereas accused Kanchan Nargu and Sanjay Kumar were convicted and sentenced, as aforesaid which has been assailed in the present appeal. Shri Anoop Chitkara, learned counsel for the appellants has vehementally argued that though as per the birth certificate, the age of the prosecutrix is less than 16 years but the skeletal age of the prosecutrix has been shown her between 16-18 years by giving the benefit of +2 years on either side she comes to more than 19 years. Since she having attained the age of discretion and voluntarily accompanied the appellants to various places and did not raise hue and cry, the prosecutrix was a consenting party and the appellants were under no obligation to return her to her village. He further argued that her statement does not inspire confidence regarding the allegations of rape in view of the medical evidence. According to him, two views are also deducible from the evidence on record, the 7 view favourable to the accused has to be accepted. The learned counsel took me through the evidence on record and canvassed that the learned trial court has wrongly appreciated the evidence. Contra, Shri Guleria, learned Law officer has supported the impugned judgment of conviction and sentence and forcefully argued that the prosecutrix has been proved to be minor by leading cogent and direct evidence on the point and her statement regarding the manner she was kidnapped and raped inspires confidence. He further canvassed that she remained in the company of Sanjay Kumar more than 20 days and one day on return with Kanchan Nargu and during this period she was ravished by the appellants. She returned to her village on 27.9.2005 and the FIR was lodged on 28.9.2005. She was medically examined on the same day, by that time, there could not have been any sign of injury on the gentile organs or presence of spermatozoa etc. He also argued that absence of spermatozoa would not negate the rape but the fact that she was in the company of the appellants, she was sexually assaulted many times, her gentile became loose and admitted two fingers loosely as opined by the Doctor. He also argued that there is no embellishment or contradiction in the statement of the prosecutrix, it inspires confidence and is also corroborated by the other evidence on record. 8 I have given my thoughtful consideration to the rival contentions of the learned counsel for the parties and have carefully reappraised the evidence on record. In the instant case, the age of the prosecutrix is of utmost importance. To prove the age of the prosecutrix, the prosecution has examined Shri Vijay Kumar (PW4), Panchayat Secretary, Barua, Tehsil Sangla, District Kinnaur. According to PW5 Prabhu Lal, the father of the prosecutrix, on her birth he notified it to PW4 Vijay Kumar, he also signed the entry in the birth register. PW4 Vijay Kumar has proved the birth certificate Ex.PW4/A, made in discharge of his official duties. Certificate, prepared by him on the basis of the birth entry Ex.PW4/C, shows the date of birth of the prosecutrix to be 2.7.1991 which bears the signatures of PW5 Prabhu Lal. Further the same date has been reflected in the Parivar Register Ex.PW4/B. This evidence could not be demolished by the appellants in the cross-examination of the witnesses. Further PW7 Hira Dassi has also testified her age as 14 years on the date of occurrence which has not been assailed in her cross-examination. Even in MLC Ex.PW16/A she has been shown 14 years of age. Thus there is overwhelming evidence on record to show that at the time of the alleged occurrence, 9 i.e. on 5.9.2005 the prosecutrix was less than 16 years of age. It has been held by the Supreme Court in Harpal Singh and another versus State of Himachal Pradesh 1981 Cr.L.J.(1), the birth entry is relevant piece of evidence, which is admissible under section 35 of the Indian Evidence Act and it is also not necessary to examine its author, but in the instant case, author was not examined. Therefore, in view of the above proved facts and law, the prosecutrix is held to be under the age of 16 years, on the date of alleged incident. The opinion of Dr. Anil Kaushal (PW2) based upon the epiphysis of bones regarding age is merely an opinion it cannot have precedence over the direct and primary evidence. Now the next question arises, whether the statement of the prosecution inspires confidence with respect to the offences charged. As briefly supra the prosecutrix has corroborated the prosecution case as alleged. In her cross-examination nothing material could be extracted, the benefit of which could be given to the appellants. She also denied that she was married to Raji Ram, grand son of Gungi Daadi about two years back and further that her father took Rs.10,000/- from Hukam Lal and Raji Ram in lieu of the marriage. She also denied that she had planted a false case upon the appellants. However, she stated that she had informed 10 Devi Ram and Santosh Kumari in whose house they stayed that the appellants had brought her forcibly and further that she also raised protest in their presence. From there she was taken to Hamirpur and informed the uncle of Sanjay Kumar about the fact that she was forcibly brought by the appellants. She further stated that she remained at Jutogh for 15 days on her return from Hamirpur. When she reached bus-stand Shimla with appellant Sanjay Kumar, they met Kanchan Nargu there. On reaching Khawangi, she narrated the entire incident to Gungi Daadi, where she stayed for two days and also revealed to PW7 Hira Dassi about the entire incident, on the basis of which a case was registered against the appellants, from there she had gone to the Police Station, she was medically examined, she did not disclose the names of the appellants at the time of registering of the FIR to the police as they had threatened to kill her. She clearly stated having committed the rape by Sanjay at Jutogh and Hamirpur many times and by Kanchan Nargu at Rampur where they had stayed in the hotel on return. Shri Rana Ram (PW3) afforded corroboration to her version that appellant Sanjay Kumar had visited his house on 6.9.2005 at 5 p.m. He was accompanying with a girl. He made the inquiries from the girl, who disclosed her age 14 years and did not want to go with the appellant to Sonipat and expressed her desire to go 11 back to her village. He directed the appellant to take back the girl from where he had taken her. The prosecutrix on her return also disclosed to her father Prabhu Lal (PW5) about the entire occurrence which stands corroborated by him. Prabhu Lal stated that when he found his daughter missing, he conducted inquires at various places including the house of Kanchan Nargu and Hira Dassi but she was not found. He also asked wife of Kanchan Nargu appellant about his whereabouts as well as whereabouts of his daughter. Wife of appellant Kanchan Nargu had also lodged a report about the missing of her husband. After about 15-20 days his daughter returned back, then he came to know from Hira Dassi, his sister-in-law that she had lodged a report in the police station against the appellants about the alleged incident. Thereafter, he visited Police Station Sangla, where the police recorded his statement. He further stated that Gungi Dassi is his sister but he did not know Eelam Ram her son. Though he had been visiting the house of Gungi Dassi. He stated that he did not know Hukkam Ram and Raji Ram. He also denied that his daughter was married to Raji Ram in village Khawangi. He further stated that Raji Ram and Maljeet had once visited his house for the marriage of his daughter but he refused as she was only 14 years of age. He denied having been received Rs.10,000/- in lieu of marriage with Raji Ram. 12 Rajinder Singh (PW6) is the owner of Deepak Guest House, Rampur and proved the entry Ex.PW6/A of his hotel, pertaining to 24.9.2005. He identified the appellant Kanchan Nargu who stayed along with the prosecutrix in the hotel. In the cross-examination he has stated that he made the entry in his own hand in the register and Room No.1 was allotted to them and both of them slept in that room. At that time he had disclosed that the prosecutrix was his niece. However, she did not make any complaint to him at that time. Smt.Hira Dassi (PW7) has again corroborated the statement of the prosecutrix that on 5.9.2005 the prosecutrix was taken away by the appellant Kanchan Nargu. She came back to village Khawangi after 22 days. Thereafter, she went to village Khawangi and met the prosecutrix. On her asking, the prosecutrix narrated the entire incident to her, on the basis of which she moved an application (Ex.PW7/A) to the Superintendent of Police, on the basis of which FIR was registered. In the cross-examination she has stated that the prosecutrix had only mentioned the name of Kanchan Nargu in the application and never disclosed the names of other appellants because she was under fear. She further stated that the prosecutrix was made to stay at the house of Gungi Daadi by the appellant Kanchan Nargu and he also visited her house oln 27.9.2005. 13 Dr. Arti Garg (PW16) examined the prosecutrix on 28.9.2005 on the request of the police. On her examination, she found hymen of the prosecutrix ruptured and vagina admitted two fingers loosely. No marks of semens were seen. No spermatozoa or semen stains were found on the Salwar or vaginal swab of the prosecutrix. In the opinion of the Doctor, there was clinically nothing to suggest that the prosecutrix has undergone forceful intercourse. She had issued the Medico-legal-certificate Ex.PW16/A. However, the Doctor was positive in her opinion that the prosecutrix had undergone sexual intercourse before her examination but its duration could not be ascertained. Dr. Raj Kumar (PW17) examined appellant Kanchan Nargu on 29.9.2005. He was found fit to perform sexual intercourse. Dr. Ashish Chava (PW18) had examined Sanjay Kumar on 25.10.2005. He was also found fit to perform the sexual intercourse. On the critical examination of the aforesaid evidence, it is crystal clear that the prosecution was able to prove its case beyond doubt against the appellants. The prosecutrix has been proved to be a minor girl of less than 16 years of age, she was kidnapped by the appellants from the lawful guardianship of her parents with an intention to commit rape on her. Appellant Kanchan Nargu had allured the 14 prosecutrix to get her married with Sanjay Kumar appellant, he being known to the prosecutrix played a vital role in her elopement, she was taken to various places including Rampur,Shimla, Jutogh and Hamirpur and was kept by the appellant Sanjay Kumar in his custody for more than 15 days. It stands proved that Sanjay Kumar had committed rape at Jutogh and Hamirpur and on her return even the appellant Kanchan Nargu had committed rape on her at Rampur. The statement of the prosecutrix inspires confidence and is corroborated by material particular and other evidence on record, as discussed above. The prosecutrix did not join the company of the appellants voluntarily, as already said, she was allured and raped. Once she is proved to be minor and her version with respect to rape having been committed by the appellants is found to be cogent, reliable and worth inspiring confidence, the appellants cannot escape their conviction under the aforesaid sections. On the close scrutiny of the evidence on record, I find no infirmity in the impugned judgment, as such the conviction and sentenced passed by the learned Sessions Judge, requires no interference. Both the appeals are accordingly dismissed. October 24, 2008 (Surinder Singh),J. (D)