HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 34 of 2009 Reserved on: 28.8.2009 Decided on: 23.10.2009 Prem Kumar ……… Appellant. Versus State of Himachal Pradesh ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.Arvind Sharma, Advocate. For the respondent: Mr.J.S. Guleria, Assistant Advocate General. V.K. Ahuja, J.: This is an appeal filed by the appellant against judgment passed by the learned Sessions Judge, Kinnaur at Rampur Bushahr, vide which the appellant was held guilty under Section 376, 366 and 363 of the IPC and was sentenced as under: Under Section 376: Rigorous imprisonment for a period of 7 years and a fine of Rs.1,000/-. Under Section 366: Rigorous imprisonment for a period of 3 years and a fine of Rs.1,000/-. Under Section 363: Rigorous imprisonment for a period of 1 year and a fine of Rs.1,000/-. ____________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - In case of default in payment of fine, the appellant was to undergo simple imprisonment for six months each under Sections 376, 366 and 363 of the IPC. The substantive sentence of imprisonment was to run concurrently. Briefly stated the facts of the case are that on 24.4.2005, a report was lodged with the police by prosecutrix Kumari ‘S’ (name not mentioned), who visited the police station alongwith her mother. It was alleged by the prosecutrix that she was studying in 9th Class in a School and on 21.4.2005, at about 7.00 p.m., her friend, namely Phool Kumari, who was studying in 10th Class, gave a telephonic call to her that her mother had asked her to visit her grand parents at Brua and she asked the prosecutrix to accompany her to Brua. The prosecutrix told the said Phool Kumari that since her mother was not in the house, she could not accompany her. Thereafter, Phool Kumari gave telephonic call to the prosecutrix 2/3 times and asked her to accompany her and the prosecutrix accompanied her friend Phool Kumari on foot. After some time, a vehicle was found parked on the road in which the cousin of Phool Kumari, namely, Prem appellant and two other persons and a driver were sitting. The prosecutrix and Phool Kumari sat in the said vehicle to visit Brua and they all went to the house of Prem where she was told by Phool Kumari and Prem that she was not to go back since she had been married with Prem. The prosecutrix alleged that she was not aware that she had been kidnapped and brought to Brua for the purpose of marriage. It was further alleged that the prosecutrix and Phool Kumari had gone to - 3 - one room for sleeping and she asked Phool Kumari to sleep with her, but Prem came there and Phool Kumari left the room. Thereafter, Prem told her that they have been married and forcibly committed sexual intercourse with her twice during the night and again on the next day, and did not permit her to give a phone call to her house. Today, her mother and other persons had reached the house of Prem on learning about her and Prem had already escaped from the house. On this report, a case was registered and after investigation, the challan was filed before the Court by the learned Judicial Magistrate, who committed the case to the learned Sessions Judge, who tried the appellant and one of the co-accused, namely, Parveen Kumar, who was also in the vehicle, which trial resulted in the conviction of the appellant and Parveen Kumar was acquitted of the charge framed against him. I have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the appellant were that the prosecutrix was known to the appellant and had voluntarily gone to the house of the appellant. It is further submitted that there is nothing to show that the sexual intercourse was committed by the appellant against the consent of the prosecutrix. It was submitted that there was a custom of elopement in the area and since the prosecutrix was a consenting party to the sexual intercourse, the guilt of the appellant was not proved under Section 376 of the IPC. In regard to the offence under Section 363 and 366 of the - 4 - IPC, it was submitted that there is nothing to show that the appellant had used force to bring the prosecutrix to his house and there is no evidence of kidnapping and as such the charge under Section 363 and 366 of the IPC also does not stand proved. On the other hand, the learned Assistant Advocate General supported the impugned judgment of the learned trial Court for the reasons recorded therein. The plea of late lodging of FIR was also taken half heartedly by the learned counsel for the appellant during the course of arguments. This plea has been duly met by the learned trial Court after referring to the two decisions of the Apex Court and had rightly concluded that the reports in such cases are not lodged with promptitude since the family of the prosecutrix has to consider as to whether the report should be lodged or not since the honour of the family is involved and the chances of the prosecutrix getting married become bleak. In the present case, the occurrence had taken place on 21.4.2005, 22.4.2005 as well as on 23.4.2005 in the house of the appellant and since the prosecutrix was surrounded by the members of the family of the appellant and was not permitted to give any call to her mother, she had no opportunity to lodge any report with the police. The mother of the prosecutrix reached the house of the appellant on 24th April and immediately on the same day, the report was lodged with the police by the prosecutrix at 9.30 p.m. The fact that the mother of the prosecutrix took her daughter to the police station in the late hours of the - 5 - evening clearly suggests that the mother took the decision to report the matter to the police and had gone to the Police Station to lodge the FIR and there was no delay in lodging the FIR. Therefore, the reasoning given by the learned trial Court is correct that there was no delay in lodging the FIR. The contention put fourth half heartedly during the course of arguments is repelled being devoid of any force. Coming to the question in regard to the findings recorded by the learned trial Court holding the appellant guilty under Section 376 of the IPC, the defence plea of consent or of custom taken in the cross examination has to be considered while appreciating the statement of the prosecutrix. In case the statement of the prosecutrix is reliable, it is not necessary that the court should insist upon the corroboration from medical evidence or other evidence. The said corroboration may be necessary in case the statement of the prosecutrix is not such upon which implicit reliance can be placed. The decision in Lal Singh versus State of H.P., Latest HLJ 2003(HP) 551 has been relied upon by the learned counsel for the appellant, which rather helps the prosecution and not the appellant. The observations made in para 9 and 12 of the said judgment may be reproduced as under: “Normally, the version given by the victim, should be believed and conviction can be based on the sole evidence of a victim, provided it inspires confidence. However, if the evidence seems to be of doubtful nature, then the court must look for assurance, if not corroboration. Set of evidence which was not correct enough against one of the accused could - 6 - possibly be not good or convincing against other accused, when case of both of these witnesses was that they were unconscious till they were left at the School or Bus Stand, Nahan.” In the light of the above discussion, the statement of the prosecutrix has to be seen if it inspirers confidence and as to whether it suffers from any infirmity that it cannot be relied upon. The prosecutrix was examined in the Court as PW-1, who clearly stated that she was asked by Phool Kumari to accompany her to Brua and she asked her to make a call again since her mother was not at the house. Thereafter, Phool Kumari gave her ring twice or thrice and impressed upon her that she should go to Brua and tell her mother afterwards. Thereafter, both of them proceeded towards Brua and near Ranchumpe Mode, a vehicle was parked in which the appellant who was the cousin of Phool Kumari, Parveen Kumar, brother of the appellant Prem Kumar, another person and a driver were present. They went in the vehicle and then they covered some distance in the said vehicle and some distance on foot. She and Phool Kumari went to sleep to another room. Appellant came there and Phool Kumari left the room. The appellant told her that since both of them have got married, he will sleep with her and he committed sexual intercourse with her 2/3 times forcibly and kept her in the house till 23.4.2005. The appellant did not allow her to make any telephonic call to her parents. On 24.4.2005, her mother came and the appellant had left the place. The prosecutrix further stated that she came to her house and then accompanied her mother and lodged the FIR Ext.PA. She admitted that she - 7 - knew the accused Prem Kumar for the last 4-5 years prior to the occurrence. She stated that Phool Kumari had simply told her that she was going to Brua as her mother had told her that there was an urgent work. The prosecutrix also stated that Phool Kumari was her childhood friend. She admitted that the grand parents of Phool Kumari were present at Brua in the house. She stated that she complained to Phool Kumari’s grand parents about the commission of rape but they told her that since they have got married, she was to live at Brua. In regard to the resistance shown by her, she stated in her cross examination that she gave fist blows on different portions of the body of the accused. There were no specific suggestions to her that she was a consenting party to the sexual intercourse by the accused with her. She denied the suggestion that she wanted to get married to Prem Kumar accused. In case she was willing to get married to the appellant, there was no occasion for her not to have stated this fact to her mother when she reached her house and rather she complained to her mother when she arrived in the house of the accused. It is, therefore, clear from a perusal of the statement of the prosecutrix that it does not suggest, in any manner, that she was a consenting party to the sexual intercourse committed by the appellant against her will in his house, where the prosecutrix had been taken by deceitful method by her friend in whom she reposed confidence and accompanied her to her grand parents’ house. The fact that Phool Kumari gave telephonic calls 2/3 times - 8 - to her, insisting her to accompany her, clearly proves that Phool Kumari had already made up her mind to take the prosecutrix to her cousin’s house for which a vehicle was also already standing at some distance with her cousin i.e. the appellant and with some other persons in the vehicle. It would not have been in the knowledge of the prosecutrix that her fiend Phool Kumari and cousin of her friend had planned and had also arranged for a vehicle to take her to her grand parents’ house. There were no suggestions to her that she voluntarily had gone with Phool Kumari to her grand parents’ house since she wanted to marry the appellant or expressed her willingness to go to his house alongwith Phool Kumari. Thus, this fact stands established that it was Phool Kumari who gave 2/3 calls to the prosecutrix asking her to accompany her to her grand parents’ house and had already contacted the appellant, who was present in the vehicle at some distance alongwith other persons. The learned trial Court has discussed in detail the predicament of the prosecutrix in which she found herself, having been taken out of her house in a deceitful manner by her childhood friend, in whom she reposed confidence. The learned trial Court has discussed in detail, and rather rightly so, that it would not have been possible for the prosecutrix to offer much resistance when she found herself amongst the persons who had deceived her and brought her to the house of the accused. The friend of the prosecutrix, namely, Phool Kumari told the prosecutrix that she has been married to the accused and - 9 - she left the room when the accused entered it and in such circumstances, it cannot be said that when the sexual intercourse was committed by the appellant, the prosecutrix had consented to the said sexual act. The facts and circumstances of the case have to be considered in which the prosecutrix was placed and accordingly there is nothing to suggest that the sexual intercourse was even done with the consent of the prosecutrix or that she was a consenting party to this act, for which she had been brought in a deceitful manner by the friend of the prosecutrix and the appellant, who was the cousin of the said friend. On careful appraisal of the statement of the prosecutrix, I find no infirmity in her statement so as to hold that it cannot be believed, which statement does not suffer from any infirmity and has to be relied upon even without any corroboration. However, the prosecution has examined PW- 2 Amita Devi, the mother of the prosecutrix, who partly has corroborated the statement that when she returned in the evening, she found that the prosecutrix was not in the house and then she learnt that the prosecutrix was in the house of the accused, where she went and brought her daughter on 24.4.2005. The medical evidence also partly corroborates the statement of the prosecutrix. PW-9 Dr.Manju Raina has clearly stated that there was a history of sexual assault on the person of the prosecutrix on 21st April to 23rd April, 2005, which was the first version given by the prosecutrix and, thus, has to be relied upon. She - 10 - further stated that the hymen was ruptured. The mere fact that she found that there are no sings of violence on the private parts of the body of the prosecutrix i.e. on breasts, thighs etc. is not sufficient to hold that the prosecutrix was a consenting party. No sperms, dead or alive, were found on 24.4.2005 at 11.55 p.m. when she examined the prosecutrix, though the rape had been committed on the night intervening 21st and 22nd as well as on 23rd April. She also opined that there was nothing to suggest that intercourse has occurred within 48 hours. This is only an opinion and it takes back to a the evening of 22nd April. It cannot be specifically opined by a Medical Officer as to at what particular time the rape in question or sexual act took place. Therefore, the opinion expressed by the Medical Officer does not go against the prosecution and it has come up that the victim had taken the bath and the mere fact that no dead or alive sperms were found is not sufficient to disbelieve the oral statement made by the prosecutrix. On careful appraisal of the statements of the prosecutrix, medical officer and other corroborative evidence, I do not find anything to hold that the findings of the learned trial Court holding the appellant guilty under Section 376 IPC are not correct. I, therefore, hold that the findings recorded by the learned trial Court holding the appellant guilty under Section 376 of the IPC are liable to be affirmed and the same are affirmed accordingly. - 11 - Coming to the findings of the learned trial Court holding the appellant guilty under Section 363 and 366 of the IPC, learned counsel for the appellant submitted that there was no positive evidence to prove that the age of the girl was less than 18 years and as such the charge under these Sections does not stand proved. Coming to the evidence in regard to the age of the prosecutrix, the prosecutrix gave her age in her statement on oath in court as 19-1/2 years when she appeared in the Court on 10.6.2008 i.e. more than 3 years after the occurrence, meaning thereby that she was of the age of 16-1/2 years at the time of occurrence. Her mother has not specifically stated about the date of birth of the prosecutrix. PW-4 Smt.Chheyang Dolma, Lecturer in Senior Secondary School, Kalpa, had brought the admission and withdrawal register, which proved that the prosecutrix was admitted in the school and her date of birth is recorded as 16.12.1988 in the register. The copy of the said extract is Ext.PW-4/A. She admitted in her statement that the date of birth was recorded in the register on the basis of the previous school leaving certificate which has not been brought by her today. PW-6 Basant Kumar, Secretary Gram Panchayat, has stated that he has brought the Pariwar Register and the date of birth of the daughter of Balbir Singh has been recorded was 16.12.1987. He stated that this entry was got recorded by the mother of the prosecutrix and extract of Pariwar Register is Ext.PW-6/A. It is, therefore, clear from the above discussion that as per the school record, the date of birth of the prosecutrix - 12 - was 16.12.1988, while as per the copy of the Pariwar Register, the date of birth of the prosecutrix was 16.12.1987. According to the opinion of the Radiologist, PW-7 Dr.Neeraj Mittal, the age of the prosecutrix was in between 15 to 16-1/2 years and there is variation in age of two years on either side, which leads to the inference that the age of the prosecutrix can also be said to be 17 or 18- 1/2 years. The learned counsel for the appellant had submitted that the copy of the pariwar Register or the entries in the school register cannot be relied upon conclusively to hold that the age of the prosecutrix was below 18 years. He relied upon a decision of this Court in State of H.P. versus Karan Bahadur, latest HLJ 2008 (HP) 985, in which it was held that no probative value can be attached to the entry in school register when entry of birth and death register has not been produced. There was nothing on record to show the basis for recording the age in the school register. The above observations were made by this Court in considering the question whether the prosecutrix was above the age of 16 years or not and whether she was a consenting party to the rape. Reliance was also placed upon the decision in Nek Ram versus State of H.P., Latest HLJ 2004 (HP) 800, wherein while considering the charge under Sections 363 and 366 of the IPC, it was observed by this Court that the prosecutrix in her statement had nowhere stated that the accused used force to compel or used deceitful means to induce her to go with him. The observations were also made that the - 13 - prosecutrix accompanied the accused of her own free will. She did not disclose anything to any passenger of the bus and driver of the taxi by which they traveled or to any person in the rest house where she stayed. The facts of the present case are different since the prosecutrix had no opportunity to know that she was being kidnapped by her friend in whom she had reposed confidence and once she reached the house of the accused, there she learnt that she had been brought in a deceitful manner by her friend. Therefore, the facts of the abovementioned case are not attracted to the present case since in the present case, the prosecutrix had been brought in a deceitful manner, which leads to the inference that she had been taken against her consent. Coming to the charge under Section 363 of the IPC, it provides for kidnapping any person from India or from lawful guardianship, which is punishable upto 7 years. This charge under Section 363 of the IPC does not relate to kidnapping of a minor or that the person kidnapped should be below the age of 18 years to hold that the offence under Section 363 of the IPC stands proved. In regard to the charge under Section 366 of the IPC, it relates to kidnapping, abducting or inducing woman to compel her to marriage against her will or may be forced to have illicit intercourse. There is nothing that the age of the girl has to be below 18 years to prove the charge under Section 366 of the IPC. Therefore, it follows from the above discussion that the facts of the case clearly show that the - 14 - prosecutrix had been taken against her will in a deceitful manner, was compelled to have illicit intercourse and she was also made to believe that she has now married the appellant. The ingredients of the offence under Sections 363 and 366 of the IPC stands fully proved and I find no reason to interfere in the findings of the learned trial Court holding the appellant guilty under these Sections. No arguments were advanced on the sentence and the sentence imposed by the learned trial court, keeping in view the facts of the case, is proper and the same calls for no interference by this Court. In view of the above discussion, there is no merit in the appeal filed by the appellant which is dismissed accordingly. October 23, 2009. (V.K. Ahuja), (TILAK) Judge.