IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 334 of 2006 Date of decision: 16. 6. 2009 Chaman Singh and another …..Appellants Versus The State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 Yes. For the Appellants: Mr. K.B. Khajuria, Advocate. For the respondent : Mr. R. K. Bawa, Advocate General, with Mr. R.M. Bisht, Dy. Advocate General. Surinder Singh, J. (oral) The challenge has been made by the appellants to the judgment of their conviction and sentence passed by the learned trial court allegedly, committing gang rape on the minor prosecutrix (16 years), whereby each of the appellants have been sentenced to undergo imprisonment for a period of 10 years and to pay a fine of Rs. 25,000/-, with a default clause. In short, the prosecution case as emerges from the prosecution evidence is that the prosecutrix was carrying the pregnancy of eight months in the month of March, 2002, when 1 Whether the reporters of Local Papers may be allowed to see the judgment ? Yes. - 2 - her mother Smt. Gorkhi (PW-10) noticed this fact by observing the milk, in the nipples of the prosecutrix and asked the reason therefor. It was then the prosecutrix disclosed that in the month of July/August,2001 when she had gone to cut the grass, the appellant Chaman Singh met her and committed rape on her and further revealed that after about one month of the said incident, accused Bablu called her to the house of one Shri Runela in village ‘Kidi’ on the pretext of having some work with her. She went there where she was further sexually abused by him as well as Kaka Ram appellant. Smt. Gorkhi aforesaid disclosed the above facts to her husband PW-8 Machlu Ram. The prosecutrix is alleged to have fallen ill and she was treated from the local ‘vaid’. Thereafter the matter was reported to the police on 27.3.202 at about 6.45 p.m. The prosecutrix was medically examined by PW-6 Dr. Kamlesh Dogra. On her general examination, she was found to have been carrying the pregnancy of 32-34 weeks. She issued her Medico Legal Certificate Ext. PW-4/A. According to PW-6 Doctor Kamlesh the prosecutrix was 16 to 18 years of age and her dental bony age was also ascertained by PW-5 - 3 - Dr. Shalini Puri, between 15 to 17 years. The opinion to this effect is Ext. PW-5/A. The accused/appellants were arrested along with other co-accused Saino and Babloo and they were got medically examined. All were found capable of performing sexual intercourse. In proof of the age, the police also took into possession the admission slip Ext. PW-1/A and the copy of admission Register Ext. PW-1/B vide memo Ext. PW-1/C wherein date of birth of the prosecutrix was disclosed by her father (PW-(9) to be 16.7.1986. It was also found reflected in her Middle Standard examination certificate Ext. PW-2/A. The birth certificate issued by the Panchayat Ext. PW- 3/A disclosed her date of birth 16.10.1985, it was also taken into possession. The police prepared the site plans Ext. PW-11/A and Ext. PW-11/B of the different places of alleged incident and after recording the statement of the witnesses, presented the challan against the appellants and their co- accused. Accused Saino and Bablu both were minors, as such, being the juvenile offenders, their challan was separated and presented before the Juvenile Justice Board at Una for their trial whereas appellants were tried, acquitted by the learned trial court, on - 4 - 29.12.2008 in Criminal inquiry No. 5/203 which is allowed to be placed on record vide application Cr.M.P. No. 302/209. In the charge-sheet filed against the appellants, the charges for the offence punishable under Section 376 read with Section 34 of the Indian Penal Code were framed against the appellants, to which they pleaded not guilty and claim trial. To prove its case, prosecution examined its witnesses and the appellants were also examined under Section 313 of the Code of Criminal Procedure. Thereafter the prosecutrix was re- examined on the request of the learned Public Prosecutor under the provisions of Section 311 of the Code of Criminal Procedure. During the examination of the prosecutrix, she disclosed her age 19 years and admitted having executed the affidavit Ext. D-X on 27.10.204 to the effect that the appellants were innocent and they did nothing with her. On the request of the learned Public Prosecutor, she was re-examined under the provisions of Section 313 of the Code of Criminal Procedure. When called upon to enter into the defence, no evidence in defence was led. - 5 - The defence of the appellants as is made out from the trend of the cross- examination of the witnesses appears to be that the prosecutrix was not minor and denied the incident. According to them, they were falsely implicated in the case due to enmity. The learned trial court disbelieved the defence version as such convicted and sentenced the appellants, as aforesaid which has been assailed by them in this appeal. Sh. K.B. Khajuria, learned counsel appearing for the appellants argued with vehemence that there is a delay of 7/8 months in lodging the FIR, the prosecution has failed to prove that the prosecutrix was minor at the time of alleged incident and the testimony of the prosecutrix is full of material contradictions, improvements and omissions, which does not inspire confidence, thus the conviction and sentence deserves to be set aside. Sh. R.M. Bisht, learned Deputy Advocate General supported the impugned judgment of conviction and sentence and submitted that although there is contradictory evidence with respect to the age of the prosecutrix but she has vividly and unequivocally supported the case of the prosecution and her testimony regarding - 6 - allegation of rape is worth inspiring confidence. In so far as the delay in lodging the FIR is concerned, it was owing to the mental condition of the prosecutrix and the threatening given by the accused/appellants to her. Therefore, there is no valid ground to interfere into the impugned judgment of conviction passed by the learned trial court. We have thoughtfully examined the rival contentions of the parties viz-a-viz the statement of the prosecution witnesses on record. On its re-appraisal we do not concur with the findings of guilt arrived at by the learned trial court against both the appellants. The reasons therefor are given hereinafter. It is a settled law that the delay in lodging the FIR in the rape cases is not ipso facto fatal to the prosecution to disbelieve the prosecution story unless it is so borne out by the facts and circumstances on record. Therefore, the entire prosecution case is required to be examined closely and cautiously. Before critically examining and reevaluating the version of the prosecutrix, her age, in the instant case which is of a vital importance requires to be ascertained because the prosecutrix had never complained - 7 - voluntary about the alleged incident to any one else including her mother, prior March, 2002. It was only when her mother noticed the milk in her breast and became apprehensive of her pregnancy; the prosecutrix was asked and imputed the allegations of rape against the appellants and two other juvenile offenders. At the very outset, we are constrained to say that the evidence with respect to the age of the prosecutrix is quite contradictory and dilatory in this case. The prosecution has relied upon the statement of PW-1 Kasturi Lal Centre Head teacher. He proved the extract Ext. PW-1/B of the admission Register wherein the date of birth of the prosecutrix was shown to be 16.7.1986, recorded on the basis of School admission slip is Ext. PW-1/A. Both these documents were taken into possession from PW-1 Kasturi Lal vide memo Ext. PW-1/C. During trial of the case said Shri Kasturi Lal admitted that on the admission Register, the signatures of the father of the prosecutrix were not obtained. It is pertinent to note that there is neither in his statement nor anywhere else in the record to substantiate the fact that the date of birth of the prosecutrix is 16.7.1986. What were the basis of making such an entry of the date - 8 - of birth of the prosecutrix in the relevant column in the School admission slip is also not made known. Although the School admission slip is relevant evidence but what value should be attached to it is a separate matter based upon the other available evidence on record. Neither the School admission Register nor the admission slip can be regarded as the sole clinching factor for determining the age in absence of any proof on the basis of which it has been entered. In this case, it also assumes importance in the light of the statement of PW-9, the father of the prosecutrix, who has categorically stated that he did not even know his own date of birth and also the date of birth of any of his children including the prosecutrix. Therefore, the School admission slip Ext. PW-1/A, admission Register and also the Middle standard certificate Ext. PW-2/A wherein the date of birth of the prosecutrix was recorded on the basis of above School admission slip are of no use to the prosecution. The next important witness regarding age is PW-3 Shri Sahibdyal SEBPO, who has been examined to prove the birth certificate Ext. PW-3/A, of the prosecutrix. In the certificate, the date of birth of the - 9 - prosecutrix is depicted as 16.10.1985 and not 16.7.1986, as indicated in the School admission slip. No explanation has come forward for recording these two different dates. According to him, the date of birth, which is mentioned in the said certificate, was carried in the Pariwar Register of Gram Panchayat ‘Kidi’ where the prosecutrix had been residing along with her parents. He admitted that the name of the person who got recorded the age and date of birth of the prosecutrix was not recorded against the relevant entry in the certificate aforesaid. Significantly, he admitted that the entries with regard to the age and date of birth of Machlu, Gorkhi (her parents), Nimo Veena and the prosecutrix all were made in one day, which were extracted from the old Pariwar Register which was also not brought by him. The certificate aforesaid was issued by him in the year 202, after the lodging of FIR. If the date of birth mentioned in this certificate is taken to be correct even then her age at the time of the alleged incidents comes out to be more than the age of discretion. But the said certificate looses its importance when there is no informant nor birth Register was - 10 - produced to ascertain the correctness of the birth certificate issued by him. The third piece of evidence regarding the age is the opinions of the medical doctors. Dr. Shalini Puri, (PW-5) assessed her age between 15 to 17 years, on the basis of dental bone age. But she further stated that she was neither Radiologist nor expert to ascertain the bony age. Even PW-6 Dr. Mrs. Kamlesh Dogra clinically opined the age of the prosecutrix between 16 to 18 years. Not only this, the prosecutrix admittedly executed an affidavit Ext. D-X on 27.10.2004 before the Notary Public wherein she gave her age to be of 19 years on the day of its execution. Thus, in these circumstances, the prosecution cannot be said to have proved that the prosecutrix at the relevant time was less than her age of discretion. Once it is concluded then the delay in lodging the FIR becomes relevant and the testimony of the prosecutrix is required to be scanned in the light of the settled law propounded by the apex Court. To constitute an offence of rape with a woman, other then the wife of the accused either the victim must be below 16 years of age or sexual intercourse with her by - 11 - the accused must be against her will or without her consent. Thus, it is essential for the prosecution to prove either of the aforesaid ingredients of the offences of rape before a person can be convicted for the offences charged. We are aware of the fact that the corroborative evidence is not imperative component of the judicial credence in every case of rape. Corroboration is a condition for judicial reliance on the testimony of the prosecutrix, is not a requirement of law but a guidance of prudence under the given circumstances. Therefore, if it is found that the evidence of the prosecutrix is worth inspiring confidence, it must be relied upon without seeking corroboration of her statement without material particulars. This proposition of law was reiterated by the apex Court in State of H.P. vs. Asha Ram: AIR 2006 SC 381 and Moti Lal Vs. State of Madhya Pradesh (2008) 11SCC 20 and the apex Court further held that even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. But however, the basic fact remains that the statement of the prosecutrix should inspire confidence in order to sustain the - 12 - conviction. Further, the above settled principle of law is being followed till date and has also been followed in State of H.P. vs. Suresh Kumar @ DC JT 2009 (7) SC 514 (ii). Arising from a judgment of this court. Now the question which is of prime importance is whether the statement of the prosecutrix inspires confidence. As PW-8 prosecutrix stated that appellant Chaman Singh had caught her forcibly and committed rape on her and stated that if something wrong would happen, he would take her to his house. One month thereafter Bablu accused called her to the house of Renula in village ‘Kidi’ on the pretext of some work and she accompanied him where she was raped by him and also by co-accused Kaka. Thereafter she became mentally ill and was got treated from local “Vaid”. It is pertinent to note that neither the police examined the said “vaid” in order to ascertain the truthfulness of her statement nor the prosecution examined him during the trial to lend any credence. Further her father PW-9 Machlu Ram had caused a dent in her statement saying that when his wife disclosed about the said fact to him, after about one month of this incident, she became mental and was got treated from the local “Vaid”. He also stated that she was brought - 13 - to District Hospital of her Medical checkup in the month of September, 2000 and it was then they came to know from the doctor in the hospital that it was a delivery case. If this version is to be believed, then the statement of her mother PW-10 Gorkhi Devi becomes a suspect because according to her she came to know about the pregnancy in the month of March, 2002 when her breast started emitting milk. If the fact of pregnancy was made known to the parents in the month of September, then it is not understood as to why either of them did not ask the prosecutrix as to whose pregnancy she was carrying. Till March, 2002 when the FIR was lodged, nothing was against the appellants. Further when the FIR Ext. PW-7/A was lodged by the prosecutrix she did not even utter a single word against any of the accused having given threatening to her. She also admitted to have delivered a child in District Hospital in May, 2002. But no DNA test was got conducted to link any of the accused persons with the child. The statement of the prosecutrix also creates a doubt in view of the affidavit Ext. D-X executed by her on 27.4.2004 which was got attested by her from the Notary Public wherein she categorically stated that the appellants Chaman Singh and Kaka Ram were not - 14 - involved in this incident in any way and their names were got written in the FIR by mistake as she could not recognize the assailants due to darkness. When re-examined on 16.8.2005 in the court on the request of the Public prosecutor under Section 311 of the Code of Criminal procedure, she further admitted the execution of the affidavit in the presence of parents. Although, she deviated to the extent that she had signed the affidavit without going through its contents or without having been read over to her. But in the cross- examination she admitted having also signed the register of the Notary Public and also admitted that when the said affidavit was drafted by the Petitioner Writer she along with her parents were present. The statement on the affidavit aforesaid is certified by the Notary Public having been made before him, to which the presumption of correctness is attached. Thus in these circumstances applying the above settled law in the facts and circumstances of this case, in our considered opinion, it is dangerous to rely upon the testimony of the prosecutrix as it is not confidence inspiring. There is also no other evidence which may lend credence to her version. Thus, placing the reliance on her - 15 - statement to connect the appellants is hazardous. In view of the above discussion, we are constrained to hold that the delay in lodging the FIR cast an aspersion on the conduct of the prosecutrix and her version involving the appellants for the offence of rape remains doubtful. Therefore, for the reasons aforesaid, the appeal is allowed. Consequently the impugned judgment of conviction and sentence passed by the learned trial court cannot be sustained which is accordingly set aside and the appellants are acquitted of the charge against them by giving them the benefit of doubt. Since the appellants are presently lodged in the Jail, undergoing imprisonment awarded to them by the learned trial court, they are ordered to be set at liberty forthwith, if not required to be detained under any other process of law. The fine amount, if any recovered be refunded to them. The matter stands disposed of. Registry of this court to take the following up action forthwith in conformity with this judgment. (Deepak Gupta),J. June 16, 2009 (Surinder Singh),J (cm)