IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 102 of 2010. Judgment reserved on:1.7.2011. Date of Decision: July 12th, 2011. _______________________________________________________ Deepak Kumar ….Appellant. Versus State of Himachal Pradesh ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the appellant : Mr. Tarlok Chauhan, Advocate. For the respondent : Mr. A.K. Bansal, Addl. Advocate General. ____________________________________________________ SURINDER SINGH, J. The appellant is a ‘Nepali national’. He was convicted for the offences punishable under Sections 363, 366-A and 376 of the Indian Penal Code and sentenced to imprisonment under each of the Sections as hereunder:- Sl. No. Offence Under Section Sentence 1. 363 I.P.C. Rigorous Imprisonment for a period of seven years and to pay fine of `10,000/- in default, to further undergo rigorous imprisonment for one year. 2, 366-A I.P.C. Rigorous Imprisonment for a period of seven years and to pay fine of `10,000/- in default, to further undergo rigorous imprisonment for one year. 3. 376 I.P.C. Rigorous Imprisonment for a period of seven years and to pay fine of `10,000/- in default, to further undergo rigorous imprisonment for one year. Whether reporters of the Local papers are allowed to see the judgment? - 2 - All the substantive sentences are ordered to run concurrently. The fine of amount, if realized, was awarded as compensation to the prosecutrix. The appellant hereinafter referred to as ‘the accused’ was also given the benefit of Section 428 of the Code of Criminal Procedure, hence the present appeal by the accused. 2. The prosecution story, as emerges from the evidence on record, can be stated thus. The accused had been working as a labourer, in the village of prosecutrix, thus he was known to her. In the year 2008, she was studying in 6th standard in Government High School, Chowai. On 27.7.2008, she was alone in the house. Her elder sister Shanta was looking after a child in the neighbourhood and her parents had gone to the field to do the agricultural work. Finding her alone, accused visited the house of the prosecutrix and asked her whether she was ready and willing to accompany him. When she objected to the proposal, accused forcibly took her away alongwith him to village ‘Nithar’ where she was kept in an orchard in the house of PW3 Jagmohan @ Babu. During the night, accused is alleged to have committed rape twice on her. She also cried of pain, but no one heard her. (ii) When PW2 Mangat Ram, the father of the prosecutrix returned to his house, he did not find the prosecutrix there. However, he was - 3 - informed by one Guddi (PW7) of his village that she saw prosecutrix going with the accused. Thereafter he alongwith Liaq Ram started searching for her. They also associated PW13 Constable Chet Ram of the local Police Station and reached village ‘Nithar’ in the house of PW3 aforesaid and were able to trace out the prosecutrix who was in the custody of the accused. The prosecutrix and the accused were escorted by the Constable as well as the father of the prosecutrix to the Police Station, where he lodged FIR Ext.PW2/A. (iii) The investigation of the case was entrusted to PW16 ASI Luthar Singh. He recorded the statement of the prosecutrix under Section 161 of the Code of Criminal Procedure and on 28.4.2008 arrested the accused. (iv) The prosecutrix was got medically examined from PW17 Dr. Sarita Sharma. The prosecutrix was found of a thin built. Her weight was 30 Kgs. She had fourteen number of teeth in each jaw. The breast was developing, areola was brown in colour. Axillary and pubic hair were found scanty. But, however, there was no mark of any injury on the body of the prosecutrix. On - 4 - the local examination of the genitalia, labia majora was found not covering labia minora. There was no redness/swelling on the external genitalia. Hymen was found torn and healed tags were seen. Vaginal introits admitted one finger (index finger) easily. Vaginal swabs were taken and she was sent to the Radiologist and Dental Surgeon for age estimation. (v) According to PW6, Dr. Pushp Lata, Dental Surgeon, the age of the prosecutrix was less than 17 years, but it was required to be co- related with hand and wrist X-ray. (vi) PW15 Dr. M.K. Kapoor, Radiologist, on the basis of epiphysis of bones shown in the ski-grams Ext.PW15/B to 15/D, opined the skeletal age of the prosecutrix between the range of 12 to 16 years. His opinion is Ext.PW15/E. (vii) During the investigation of this case, police also obtained the birth certificate of the prosecutrix from PW8 Mukand Sharma, Secretary of the concerned Panchayat. He issued the birth certificate Ext.PW8/B showing her date of birth to be 5.4.1994 which comes to 16 years on the date of incident. He also issued the copy of the ‘Pariwar’ register - 5 - Ext.PW8/C. According to him, both these documents were maintained in the ordinary course of business of the Panchayat. (viii) The accused after his arrest, on 29.7.2008, was got medically examined from PW9 Dr. Bhagwat Mehta. He was found fit to perform sexual intercourse. The Medico Legal Certificate is Ext.PW9/B. He also obtained pubic hair, swab from colon sulcus and also sealed the pant and shirt of the accused in different packets, thereafter handed over to police for its forensic examination. (ix) As per the report of forensic science Ext.PW16/G coronal sulucs swab, has the blood of the accused which pertained to group ‘A’ and it was found on his shirt as well as on the ‘Salwar’ of the prosecutrix. There were also blood stains on the sleeveless vest or the prosecutrix, its grouping could not be done being insufficient. (x) During investigation, police also took into possession the bed-sheet on which the prosecutrix was allegedly raped. It was also sealed and sent for the forensic examination - 6 - over which the human semen stains were found, as per report Ext.PW16/G. 3. After completing investigation in this case, finding the involvement of the accused with the offence of rape, he was accordingly Challaned in the Court. Finding a prima facie case against him, the accused was accordingly charge-sheeted for the offences punishable under Sections 363, 366-A and 376 of the Indian Penal Code to which he pleaded not guilty and claimed trial. 4. To prove its case, the prosecution examined its witnesses and the accused was also examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances, which were found attendant upon him. According to him, it was a false case and the prosecution witnesses were interested being close relatives of the prosecutrix. 5. When called upon to enter into his defence, he did not lead any evidence in defence. 6. From the trend of the cross-examination of the prosecutrix, the story which the accused intended to propound is that the prosecutrix was having intimacy with him for the last about 9/10 months. The accused and the father of the prosecutrix had been taking liquor together and the prosecutrix who was allegedly more than 17 years - 7 - had accompanied him of her own volition to village ‘Nithar’ thus, a consenting party. 7. The learned trial Court rejected the defence raised by the accused and held that the prosecutrix was less than 16 years, thus convicted and sentenced as aforesaid. 8. Shri Tarlok Chauhan, learned Counsel for the accused vehemently argued that it stands proved on record that the prosecutrix, at the relevant time was more than 16 years of age and the circumstances on the record probalise the defence that she had accompanied the accused of her own volition. He further submitted that absence of the injuries on the private part of the prosecutrix is indicative of the consensual sex with the accused which is corroborated by the medical evidence. Therefore, the accused was wrongly convicted and sentenced. 9. Shri A.K. Bansal, learned Additional Advocate General supported the impugned judgment and further ventilated that there is overwhelming evidence on the record showing that the prosecutrix was less than 16 years of age and she never consented to the sexual intercourse by the accused and otherwise also in view of her age, her consent would not matter in any way. - 8 - 10. I have given my thoughtful consideration to the rival contentions of the parties and have carefully and cautiously and scanned the evidence on record. 11. In the instant case, the age of the prosecutrix is of prime importance. When she was examined in the Court, she testified her age as 14 years and categorically stated that her date of birth is 5.4.1994. This fact was not assailed in her cross-examination by the accused. However, she admitted in cross-examination that she failed twice during the school day, but denied she was more than 18 years on the date of alleged incident. Thus, giving allowance of two years, her age comes to 16 years on the date of alleged incident. 12. PW2 Mangat Ram, her father, also stated that the prosecutrix at the relevant time was aged about 14 years, studying in 6th standard. In cross-examination he clarified that the prosecution is 7/8 years younger to her elder sister Shanta, who on the date of his examination in the Court on 9.11.2009 was 20/22 years which comes to 13/14 years. 13. Further, PW6 Dr. Pushp Lata opined on the basis of X-rays of teeth the completion of 3rd/4th root which was surfacing second molar alongwith wide open apical foramen and the second molar erupts at the age of 12 to 14 years and root completion takes 1-2 years after - 9 - eruption, therefore, opined her less than 17 years and it was required to be co-related with hand and wrist X-ray, as per the opinion Ext.PW6/A, based upon dental ski- grams Ext.PW6/B and C. 14. PW15 Dr. M.K. Kapoor, took six X-rays of the various parts of the body of the prosecutrix including shoulder, elbow, hip wrist, knee etc. and on the basis of fusion of bones. He also opined her age between 12-16 years based on the table at page 42 of 21st Edition of Modi’s Medical Jurisprudence and Toxicology. He denied in his cross-examination that there can be variation of plus minus two years, rather stated that the variation has been taken into consideration to a normal person. Thus, the scientific evidence also fixes her age 16 years. 15. Next important piece of evidence is birth certificate Ext.PW8/B wherein the age of the prosecutrix has been shown to be 5.4.1994 as stated by her and this certificate was issued by PW8 Mukand Sharma, Panchayat Secretary on the basis of entries made in the birth and death register, which was brought by him in original, in the Court during his examination having been maintained in the ordinary course of business of the Panchayat. He denied that the said entry was incorrect. His testimony could not be shattered nor the birth - 10 - certificate qua the prosecutrix could be proved to be wrong. 16. Significantly, the Court during examination of the prosecutrix in the Court also observed that she is a child witness, as such to ascertain whether she knew the meaning of oath certain questions were put and found that she has the understanding of the meaning of oath. Thus her statement was recorded. Even PW17 Dr. Sarita Sharma who clinically examined her and at that time the prosecutrix referred to her age as 14 years. Her physical built was thin and her weight was 30 Kgs. and was having 14 number of teeth in each jaw, is also indicative of the fact that the prosecutrix was a minor child. 17. Thus, examined from all the angles, I find that the prosecution has been able to prove that the prosecutrix at the relevant time was less than 16 years of age. 18. Confronted with the above position, learned Counsel for the accused argued that if the allowance of two years is given on either side to the opinion given by the Radiologist and also the fact that the prosecutrix had failed twice, during her school time her age comes to more than 18 years. It was examined this submission also. This argument though looks attractive, but is fallacious. There is no material on record to show that the prosecutrix - 11 - can be held 18 years by giving the allowance of two years on the basis of fusion of bones to the age of prosecutrix as opined by the doctor, without any supportive material. The Supreme Court in State of U.P. v. Chhotey Lal AIR 2011 SC 697, observed that there is no such rule much less absolute one that two years have to be added to age determined by the doctor. Thus by no stretch of imagination the prosecutrix can be held to be more than 16 years of her age on the date of incident. 19. Thus, the evidence of the prosecutrix has to be examined in view of the above context with respect to her age. In cross-examination, she admitted that for the last about 8/10 months the accused was known to her. At that time he was residing in the house of one Chhajju Ram in their village. She admitted having visited his place only once and also that the accused had been taking liquor with the father of the prosecutrix. She further admitted that she left the house all alone and the accused met her near Chowai. From there they had gone to village ‘Nithar’ on foot through Chowai-bazar, Jaban, Dalash, Kandagai and Jhali villages. She was neither dragged nor beaten by the accused. She stated that the accused had threatened her only by taking to accompany him and enroute they came across many persons, but she did not raise any hue and cry to get her saved. She stated that - 12 - during the night she was kept in the house of PW3 Jagmohan alias Babu from where she was recovered by her parents from the company of the accused and they took her alongwith him on the pretext to perform their marriage. She admitted that her father and the sister were in the knowledge that they loved each other. 20. PW3 Jagmohan also admitted the recovery of the prosecutrix from his house in the orchard. According to him, the accused has been visiting the village of the prosecutrix on the pretext that he had been married there. He further stated that the accused returned on 27.7.2008 during the night and found the prosecutrix there. He also received a telephonic call from one Sunder Singh from village ‘Nithar’ that the Nepali Gorkha had taken away a girl from his village and requested him to see that they did not run away. He also stated in the cross- examination that the prosecutrix did not raise any hue and cry in his presence neither she was frightened or weeping. 21. PW16 ASI Ludar Singh stated that during the investigation it did not come to his notice that the prosecutrix had raised any hue and cry while she was taken by the accused. PW17 Dr. Sarita Sharma, as already stated above, did not find any sign of violence on her body. There was no redness/swelling of the external - 13 - genitalia and hymen was torn and tags were healed. From the clinical examination of the prosecutrix and on the basis of forensic report, Ext.PW16/G, though she was of the opinion that the prosecutrix was subjected to sexual intercourse by the accused without her consent. 22. In the aforesaid circumstances when the prosecutrix stands proved to be less than the age of 16 years, her consent, would not matter at all. In the circumstances on record show that she was not forcibly taken by the accused from the guardianship of her parents, and the accused did not threaten or offer any allurement to her. The prosecutrix from the evidence on record appears to have voluntarily left the guardianship of her parents and joined the company of the accused. If the prosecutrix left the guardianship of her parents voluntarily, the accused is not under obligation to return her back to her parents. 23. As already stated above, she was minor at the relevant time. She had a liking for the accused. The prosecutrix wanted to marry him. The father of the prosecutrix appears to have found it difficult as stated by him to take her alongwith him when she was recovered from the company of the accused. Thus he had to assure her that he would marry her with the accused. In the aforesaid circumstances, there may be consent of the - 14 - prosecutrix to accompany the accused. According to the Investigating Officer (PW16), also during the investigation he did not find that the prosecutrix raised any hue and cry. Had she been under some threat of the accused, she would have definitely complained to PW3 Jagmohan, who met them during the night and also on next morning before her recovery by her father from his orchard meaning thereby the sexual intercourse by the accused with the prosecutrix was consensual, but because of her age, this consent has no meaning under law. As such, the accused is guilty of the offence of rape punishable under Section 376 of the Indian Penal Code, and not under Sections 363 and 366-A of the Indian Penal Code for the reasons that it is the prosecutrix who had voluntarily left the lawful custody of her parents and joined the company of the accused and further that from the scrutiny of the evidence on record it is not proved that the accused induced the prosecutrix, to go from any place or to do any act with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person. Therefore, the ingredients of Section 366-A of the Indian Penal Code are not made out. Hence, the conviction and sentence of the accused under Sections 363 and 366-A of the Indian Penal Code are set aside, being unwarranted whereas, his conviction - 15 - for the offence punishable under Section 376 of the Indian Penal Code is upheld. 24. So far as the sentence is concerned, the prosecutrix is proved to be less than 16 years of age but more than 14 years. The circumstances appearing on record show her a consenting party, since she happens to be a minor the offence of rape against the accused is made out. In sub-section (1) of Section 376 of the Indian Penal Code after its amendment in the year 1983, minimum sentence of rigorous imprisonment of seven years has been prescribed upon a person convicted under Section 376 unless the case is covered by the proviso whereby for the adequate and special reasons to be mentioned in the judgment the Court may impose sentence for a period of less than seven years. In my opinion, the accused deserved leniencey in the matter of sentence in the above fact situation. In fact, the adequate and special reasons are that the parties have some relations which facilitated the commission of offence. These facts are amply discussed above, thus for the age of the prosecutrix the accused would not have been held guilty of the offence of rape. Since it is a technical offence to which the prosecutrix was a party, therefore, the ends of justice would be met in case the sentence of the accused passed by the learned trial - 16 - Court is reduced to three years without disturbing the fine imposed by the learned trial Court. However, it is ordered that in default of payment of fine, the accused shall undergo Simple Imprisonment for a period of six months under this section. The accused shall also be entitled for the benefit under Section 428 of the Code of Criminal Procedure. 25. In result the appeal is partly allowed and conviction and sentence of the accused/appellant passed under Sections 363 and 366-A of the Indian Penal Code are set aside. However, his conviction for the offence under Section 376 of the Indian Penal Code is maintained, but the sentence is reduced to the above extent and in case the fine is recovered, 75% thereof shall be paid to the prosecutrix as compensation. 26. The accused is undergoing the sentence in this case. Learned trial Court is hereby directed to send the modified jail warrant in tune with the judgment of this Court, to the Superintendent of the concerned Jail. 27. Send down the record. July 12th, 2011. (Surinder Singh), (rc) Judge.