IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 404 of 2001 and Cr. Appeal No. 413 of 2001. Reserved on.: 8.9.2008 Date of decision: 22/9/2008 Cr. Appeal No. 404 of 2001 Sukhdai …. Appellant. Vs. State of Himachal Pradesh …. Respondent. Cr. Appeal No. 413 of 2001 Chhinda …. Appellant. Vs. State of Himachal Pradesh. ….. Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the appellant: Mr. N.K.Thakur, Advocate. For the respondent-State: Mr. Rajesh Mandhotra, Dy. Advocate General. Deepak Gupta, J. These two appeals are being disposed of by one judgement since they arise out of one judgement passed by the learned Additional Sessions Judge, Una, in Sessions Case No. 26/2000/99 decided on 23/28.6.2001. Vide the impugned judgement, appellant-Chhinda has been convicted of the offences punishable under Sections 376, 506-I IPC and appellant Sukhdai has been convicted of the offences punishable under Section 376/109 read with Section 506-I IPC. Chhinda has been sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs.3000/- and in default thereof to undergo simple imprisonment for a period of one year and Sukhdai has been ordered to undergo rigorous imprisonment for a period of six months and to pay fine of Rs.2000/- and in default of payment of fine to undergo simple 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 imprisonment for two months in respect of the offence under Section 376/109 IPC. In respect of offence under Section 506-I IPC each of the appellants has been sentenced to undergo simple imprisonment for a period of two months. The sentences have been ordered to be run concurrently. Aggrieved by the said conviction and sentence the appellants have filed the aforesaid two appeals. The prosecution case, in brief, is that the prosecutrix is the daughter of one Gurdev Singh. Admittedly, the appellant Sukhdai had extremely good relations with the prosecutrix and her family members and she was treated like a sister by the prosecutrix. On 8.8.1998 Sukhdai came to the house of the father of the prosecutrix to tie Rakhees to the brothers of the prosecutrix. She stayed in this house on the night intervening 8.8.1998 and 9.8.1998. On the next day, appellant Sukhdai took the prosecutrix to her village Chak Sadhu where she is residing with her husband Chhinda. The elder sister of the prosecutrix, i.e. Sudesh Kumari also lives in village Chak Sadhu at a short distance from the house of the accused Sukhdai. On 9.8.1998 Sukhdai left the prosecutrix at the house of her sister Sudesh Kumari. The prosecutrix stayed with her sister till 14.8.1998. On 14.8.1998, Sukhdai collected the prosecutrix from the house of her sister with the intention of leaving her at the house of the parents of the prosecutrix. Here the disputed facts start. According to the prosecutrix, Sukhdai first took her to the house of some relative in a village. Accused Chhinda met them there. Chhinda is the husband of Sukhdai. Then they all went to see a movie at Hoshiarpur. After watching the movie they left for village Saghnai i.e. the village of the prosecutrix, on a Moped. On the way, Chhinda took the prosecutrix and Sukhdai into a jungle and parked his Moped there. There he made sexual advances towards the prosecutrix. He first pressed her breasts. Then he raped the prosecutrix. 3 According to the prosecutrix, Sukhdai took an active part and help her husband in raping her. After the commission of the rape, she was criminally intimated by both the accused persons. Hence, both were charged for the offences under Section 376 and 506-I IPC. At the outset, we may note that there is hardly any dispute with regard to the age of the prosecutrix. PW-8, Rajinder Singh has proved the date of birth of the prosecutrix from the school register. The date of birth reflected in the school register is 10.12.1984. PW-10, Raghbir Singh Rana, Secretary of the Panchayat, has produced the original register of births and deaths relating to village Saghnai. He has proved the birth certificate Ext.PW-10/A and even in this record the date of birth of the prosecutrix is 10.12.1984. The prosecutrix as well as her father PW-5 Gurdev Singh and sister Sudesh Kumari have also stated this to be date of birth of the prosecutrix. It is thus evident that on 14.8.1998 she was less than 14 years old and could not have given consent. While appearing in the witness box, the prosecutrix has stated that when the accused took the Moped inside the jungle he started pressing the breasts of the prosecutrix. Thereafter Sukhdai tied her hands with her handkerchief and removed the Salwar and Shirt which the prosecutrix was wearing. Thereafter, Chhinda raped her. The prosecutrix became unconscious. When she regained consciousness she found that somebody had put her on clothes again. Thereafter, she was dropped at her parents house by Sukhdai. As soon as she reached home, the prosecutrix narrated the entire incident to her parents in the presence of Sukhdai. The Pardhan was called and according to the prosecutrix the Pardhan came the next day since the Khad near their house was flooded. Chhinda was also called for but he did not come and thereafter the F.I.R. Ext.PW- 1/A was lodged with the police. 4 It is important to note that in the F.I.R lodged with the police the prosecutrix has not attributed the acts of tying of the hands or removal of the clothes to Sukhdai. It is also not recorded in the F.I.R. that Sukhdai had put on the clothes of the prosecutrix. In the F.I.R. there is no allegation that Sukhdai threatened the prosecutrix. These are material contradictions in the statement of the prosecutrix as far as the role of Sukhdai is concerned. In the initial complaint made to the police, which was lodged more than 36 hours after the incident, no role was attributed to Sukhdai. It appears that at a later stage, it was decided to rope in Sukhdai also. It is not disputed that Sukhdai was like a family member of the family of the prosecutrix. There is no explanation as to why she would abet and aid her husband in raping the accused. Keeping in view the aforesaid contradictions in the statement of the prosecutrix herself, it cannot be said with certainty that Sukhdai had abetted and aided her husband in committing the offence under Section 376/109 IPC. Similarly, Sukhdai cannot be convicted under Section 506 part-I I.P.C. The appeal filed by Sukhdai has to be allowed. However, as far as the case against Chhinda is concerned that stands on a totally separate footing. The statement of the prosecutrix that she was raped by Chhinda is consistent throughout. The prosecutrix was less than 14 years old. Immediately on reaching the house, she informed her parents and other family members about the rape having been committed on her. PW-5, Gurdev Singh, father of the prosecutrix, has clearly stated that on 15.8.1998 when the prosecutrix came with Sukhdai, she told him and the family members that she had been raped by Chhinda in the jungle. He, therefore, sent for the Pardhan who could come to his house only at about 7.30 P.M. The next day the Pardhan again came and thereafter the report was lodged with the police. Sukhdai remained in the 5 house of the prosecutrix on 15.8.1998 and till the morning of 16.8.1998. Sudesh Kumari, sister of the prosecutrix, has also supported the version of the prosecutrix. According to her, on 15.8.1998 she was called by her parents and when she went to her parents house the prosecutrix narrated the entire incident to all of them. PW-7 Manohar Lal, was the Up Pardhan at the relevant time. He also supports the prosecution version that he was called to the house of the prosecutrix where the prosecutrix told him that she had been raped by Chinda in a jungle and next day the report was lodged with the police. The version of the prosecutrix is fully corroborated by the medical evidence. PW-3 Dr. Mirnal Lakhi has recorded that the prosecutrix has not started menstruating as yet. She also noted that there were some abrasions on the body of the prosecutrix and there were stains of blood on the front and back side of the Salwar. Shri Naresh Thakur, learned counsel for the accused has urged that the story of the prosecutrix cannot be believed. According to him, there is great delay in lodging the F.I.R. He has also urged that when the sister Sudhesh Kumari was to go home on the same date why would the prosecutrix be sent with Sukhdai. According to him, the father of the prosecutrix owed money to Chhinda and to avoid paying such money he foisted a false case against the accused. These arguments are without any merit. The prosecutrix, who is less than 14 years old, has been subjected to sexual intercourse. As soon as she went home alongwith Sukhdai, she informed her family members about the occurrence. Sukhdai also stayed at the house of the prosecutrix. Chhinda was called for but did not come. The Pardhan was then called for who came late in the evening. This court cannot lose sight of the fact that the prosecutrix and her family members belong to a very poor strata of society, where even the victim of a rape becomes the object of public ridicule. In such families, the incident of rape is not reported 6 immediately. In fact from the evidence, it appears that probably some efforts were made to call Chhinda so that some settlement could be arrived at but when he did not come then the prosecutrix and her family members lodged the report. There is no reason why the prosecutrix would falsely implicate Chhinda. His wife was almost a part of the family of the prosecutrix. There was no enmity between them. The case of the so called loan cannot be believed. The whole story with regard to filing of the case in respect of the loan amount before the Panchayat only started after the trial had begun. This was a very poor attempt of trying to create a false defence. Since Sukhdai was almost like a family member there was nothing unusual in the prosecutrix returning to her parents’ house with Sukhdai. The evidence of the prosecutrix and her family members cannot be brushed aside. The prosecution has proved beyond any shadow of doubt that Chhinda had raped this young girl by taking advantage of the proximity which he and his wife had with the prosecutrix and her family members. We, therefore, find no error in the judgement of the learned trial Court in so far as he has convicted the accused Chhinda. In view of the above discussion, the appeal filed by Sukhdai is allowed. She is acquitted of the offences with she was charged. She is on bail and her bail bonds are ordered to be discharged. As far as accused Chhinda is concerned, the conviction and sentence recorded against him by the learned trial Court is upheld. His appeal is dismissed. He is directed to surrender to undergo the remaining sentence within a period of four weeks from today, failing which the trial Court shall take necessary action to ensure that he serves out the remaining sentence. 22nd September, 2008. (Deepak Gupta), J. ™