IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 132/2010 Judgment reserved on 15.6.2011. Date of decision: 29.6.2011 Mast Ram …..Appellant Versus State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 yes For the Appellant: Mr. Ashok Sharma, Advocate. For the respondent : Mr. A.K. Bansal Addl. Advocate General. Surinder Singh, J. The challenge in this appeal is by the accused/appellant qua his conviction passed in Sessions trial No. 14 of 2008 decided on 26.12.2009 for the offences punishable under Sections 363, 366 and 376 Indian Penal Code whereby he has been sentenced to undergo imprisonment for a period of 7 years and to pay a fine of `20,000/- and in default of payment of fine, to further under rigorous imprisonment for a period of one year for the offence of rape under Section 376 Indian Penal Code. 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - No separate sentences were passed for other offences, in view of the aforesaid sentence being graver one. It was also ordered that the fine, if realized, would be paid as compensation to the victim. (i). The factual matrix, as borne out from the evidence on record can be stated thus. PW4 Smt. Sukhi Devi mother of prosecutrix was married to Chaman Lal. During such marriage, she gave birth to a son and two daughters, the prosecutrix is eldest of the daughters. After sometime, her husband Chaman Lal developed mental ailment. Smt. Sukhi Devi left him and started living with PW2 Keshav Ram his brother in village Chandpur Tehsil Rampur, as his wife. (ii) On 5.1.2008, prosecutrix along with her younger sister Veena Devi had gone to collect the fuel wood from the forest. At that time prosecutrix was studying in the 8th standard. On their way back, they came across the accused a Nepali. He is alleged to have forcibly taken the prosecutrix to his dera (temporary shed) whereas he told Veena Devi her sister to go away and not to disclose this matter to any one. At that time accused was working as a labourer in the orchard of one Gopal Singh. He is stated to have kept her with him in his dera and committed rape on her. Thereafter he took her to village Kartot to the house of his maternal uncle. During the night, again - 3 - accused allegedly committed rape on her. From village Kartot, he took her to village Shanadhar and committed rape there. Since in rains her clothes got drenched as such he offered clothes for change and told her that she stood married to him. (iii) When the prosecutrix did not return, her mother PW4 Sukhi Devi and PW2 Keshav Ram started searching for her. Failing to locate her, the matter was reported to the police, in terms of FIR Ext. PW2/A. 2. Police sprang into action. PW13 ASI Jawahar Singh recovered the prosecutrix from the house of Gopal Singh and vide memo Ext. PW2/B she was handed over to her parents on 7.3.2008. She was also subjected to medical examination by PW7 Dr. Bharti Azad. On her general physical examination, she noticed prosecutrix thinly built and purely nourished. There were no signs of injury or struggle mark on her person. She also noticed an old rupture of hymen and opined that he was habitual to intercourse. The medico legal certificate of the prosecutrix is Ext. PW7/C. The wearing apparels of the prosecutrix, i.e., shirt Ext. P1, Salwar Ext. P2, underwear Ext. P3 were taken in possession vide seizure memo Ext. PW1/A and were sealed and sent for forensic examination. 3. Accused was arrested on 7.1.2008 and was also medically examined by PW8 Dr. B.D. Negi. He was - 4 - found fit to perform sexual intercourse. His underwear Ext. P8 was taken into possession and was also sealed and sent for forensic examination. His medico legal certificate is Ext. PW8/A. 4. During investigation of this case, police also obtained her birth certificate. Her date of birth is alleged to be 30.1.1993. The copies of birth certificate and pariwar Register are Ext. PW2/D and Ext. PW2/C respectively having been obtained from the Secretary of the Gram Panchayat Gopalpur. 5. After completing investigation, challan was presented in the Court for the trial of the accused/appellant for which he was accordingly charge sheeted, tried and convicted as aforesaid. 6. Shri Ashok Sharma, learned counsel for the accused attacked the impugned judgment of conviction and sentence on the ground that the learned trial Court failed to notice that the prosecutrix was proved to be more than 18 years, at the time of the alleged occurrence. There also exists circumstance to show that it was the prosecutrix, who had voluntarily accompanied the accused and was a consenting party and the learned trial Court wrongly assessed the evidence on record to convict the accused. - 5 - 7. On the other hand, Shri A.K. Bansal, learned Additional Advocate General supported the impugned judgment of conviction and sentence on the ground that the statement of the prosecutrix is confidence inspiring and further that the prosecutrix is proved to be minor therefore, there is no question of consent at all. 8. I have given my thoughtful consideration to the rival contentions of the parties and have carefully and cautiously examined the evidence on record and I find merit in the submissions made by the learned counsel for the accused. 9. On the scrutiny of evidence, I find that the version of the prosecutrix has been distorted from the beginning to the end in an effort to suppress the actual truth. It is the case of the prosecution that the prosecutrix was kidnapped, from her way by the accused, as stated by PW3 Veena Devi sister of the prosecutrix. On the perusal of FIR, the first document which came into existence reveals that Veena Devi and the prosecutrix had gone to the house of her maternal uncle and on 6.1.2008 around 9 a.m. Veena Devi on her return informed her father that on the previous day, i.e., 5.1.2008 around 6 p.m., prosecutrix was sitting with the accused and did not accompany her to the house of her maternal uncle and even for the night she did not come to the - 6 - house of her maternal uncle. On this, he also made a search for the accused in his dera located in the orchard at Shikhardhar but she was not found there and he was told that for the last 2/3 days, he had not visited his place but PW3 Veena Devi gave another story when examined before the Court saying that she along with the prosecutrix were in the half way walking through the forest, accused met them and took the prosecutrix along. In her cross-examination she did not say whether they had left the house for collecting the fuel wood. She admitted that the house of her maternal uncle was at a distance of about 5 minutes walk from the village path. 10. PW2 Keshav Ram has also deviated from his statement made in the FIR to the extent that on the previous day Veena Devi aforesaid and the prosecutrix had left to collect the fuel wood from nearby forest and made no reference that both of them had gone to the house of their maternal uncle. 11. Whereas PW4 Smt. Sukhi Devi mother of the prosecutrix stated that the prosecutrix along with her younger daughter Veena Devi had gone to collect fuel wood from the nearby forest and they did not return. However, her younger daughter had stayed in the house of her maternal uncle and informed her that the accused had enticed away the prosecutrix. The prosecutrix (PW1) - 7 - stated that she had left for the jungle to collect fuel wood along with her younger sister and the accused met them on the way and forcibly took her to his dera and committed rape on her. Thereafter she was taken to various places, during this time, she was raped and on 7.1.2008 she was recovered. In cross-examination she stated that the house of her maternal uncle is only 5 minutes walk the place from where the accused took the prosecutrix away. Veena Devi remained with her for about 5 minutes, thereafter she left her. She also admitted that at Shikhardhar there are 3-4 houses. She was confronted with her statement recorded under Section 161 of the Code of Criminal Procedure with respect to rape having been committed in the house of her maternal uncle which fact did not find mention there. She also stated that there are large number of houses in village Kartot closed to each other. She also stated that the accused took her to the house of Bhagwan Dass where he was residing with his family and they slept in one room of Bhagwan Dass. They had left the said village for Shanadhar via village Kapati which is also a large village. They passed through village Dobi and there were shops abutting highway, but she did not raise any hue and cry. She was taken by the accused to various places and - 8 - volunteered that she was terrified because of the threat given by the accused. 12. As against the aforesaid statement, statement of PW7 Dr. Bharti Azad who examined the prosecutrix assumes importance. According to her, prosecutrix had attained the menarche at the age of 13 years. She did not notice any sign of injury or struggle on her person. There was an old healed rupture of hymen. Doctor did not find anything to suggest that the rape had occurred on her. At the time of her examination, she was menstruating. It is also important to note that the prosecutrix was recovered from the house of Kali Bahadur as per memo Ext. PW2/B where she was sleeping alone in the attic and the accused was not there. But as per PW13 ASI Jawahar Singh, the prosecutrix was recovered from the house of Gopal Singh resident of village Lohat. Said Shri Kali Bahaduur is not an accused in this case nor he was examined as a witness to lend strength to the version of the prosecutrix. The prosecutrix had an opportunity to flee from the said place but she did not run away. Rather she was found sleeping alone in the attic where said Shri Kali Bahadur was residing with his family. She was recovered vide memo Ext. PW2/B in the presence of Guddu Ram and Jagdish Chand. Jadish Chand was not examined. Guddu Ram did not say - 9 - anything about the recovery. The prosecutrix also stated that a similar type of case was also instituted against one Durga Singh by her sister Veena Devi and on her statement, he was acquitted which fact has been admitted by her mother as well as Veena Devi aforesaid. 13. Another most important circumstance which has come to the fore in prosecution evidence is that from the place of incident, as alleged by the prosecutrix and her sister, the house of her maternal uncle is only a 5 minutes walk. During the night, after the alleged incident, Veena Devi had also stayed there but there is nothing on record to show that she had made the complaint about this incident to her maternal uncle. Even her maternal uncle was not examined to throw light as to what were the actual facts. 14. On the above scrutiny of evidence I find that it is the prosecutrix who is a consenting party to the entire episode. The statement made by the prosecutrix regarding rape also does not inspire confidence. 15. Against the above evidence, now the age of the prosecutrix assumes importance. The prosecutrix admitted that at the time of the alleged incident, she was studying in 8th standard and she was admitted by PW2 Keshav Ram in the School at the age of 7/8 years, which fact is also admitted by PW4 Sukhi Devi. But however, - 10 - PW2 Keshav Ram stated that she was admitted in the School by Chaman Lal. It is also admitted that once failed in 8th standard, then her age comes to more than 16 years on the day of the alleged incident. 16. Further PW2 Keshav Ram expressed ignorance about the date of birth of the prosecutrix. He stated that after the death of his wife in the year 1991 Sukhi Devi, mother of the prosecutrix was residing with him. He stated that in the year 1988 Sukhi Devi had married his younger brother Chaman. According to PW4 Sukhi Devi she had married Chaman Lal 23 years back and the prosecutrix took birth after one year of such marriage. Thus, her age comes to 21 years on the date of the alleged incident. 17. Further PW13 ASI Jawahar Singh stated that he did not obtain the copy of the birth and death register of the prosecutrix. The person issuing the birth certificate has not been examined and this certificate has been admittedly issued on the basis of Pariwar Register in which the date/age is recorded on estimation. Even Veena Devi who is younger to the prosecutrix stated her birth year 1992. The prosecution could not prove beyond doubt that the age of the prosecutrix was less than the age of discretion at the time of the alleged incident rather it stands proved that she was more than 18 years of age at the time of the alleged incident. - 11 - 18. Thus, in sequel to the above discussion, in my considered opinion, prosecutrix being more than the age of discretion and was major at the time of the alleged incident. She has been proved to be consenting party. Therefore, the case of the prosecution against the accused is not proved beyond reasonable doubt. As such, the benefit of doubt is required to be given to the accused. 19. In result, the appeal filed by the accused is allowed. The judgment of conviction and sentence passed against the accused is set aside, consequently, accused stands acquitted by giving him the benefit of reasonable doubt. 20. Since the accused is undergoing sentence passed by the learned trial Court which has been set aside he be released forthwith if not required in any other case. Fine amount, if any deposited be refunded to him. 21. The Registry is hereby directed to issue release warrant of the accused forthwith. The appeal disposed of. June 29, 2011 (Surinder Singh), (cm) Judge.