IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 102 of 2011. Judgment reserved on: 16th June, 2011. Date of Decision: June 28th, 2011. _______________________________________________________ Pawan Kumar ….Appellant. Versus State of Himachal Pradesh ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. N.S. Chandel, Advocate. For the respondent : Mr. A.K. Bansal, Addl. Advocate General. ____________________________________________________ SURINDER SINGH, J, Appellant has challenged his conviction and sentence passed by the learned Sessions Judge in Sessions Trial No.19-S-7 of 2010, on 30.12.2010, for the offences punishable under Sections 342, 376(1) and 506 of the Indian Penal, whereby he has been sentenced as under: Sr. No. Offence Sentence In default of payment of fine. 1. Under Section 376 (1) IPC To undergo rigorous imprisonment for seven years and to pay a fine of `5,000/- To further undergo imprisonment for one year. 2. Under Section 342 IPC. To undergo rigorous imprisonment for three months and to pay fine of `500/-. To further undergo imprisonment for one month. 3. Under Section 506 IPC. To undergo rigorous imprisonment for three months and to To further undergo imprisonment for one month. Whether reporters of the Local papers are allowed to see the judgment? - 2 - pay fine of `500/-. The substantive sentences were ordered to run concurrently. 2. Precisely, the facts which emerge from the evidence on record can be summed up thus. PW9 Jaswinder Kaur, was married to Rakesh Kumar, resident of Garshankar (Punjab), 25 years back. Thereafter they shifted to Shimla and hired a quarter at ‘Ghora Chowki’ (Shimla), where they lived for sometime and she (PW9) worked as Sweeper in HP Govt. Printing Press situated nearby. Rakesh Kumar aforesaid worked as a tailor with some one at Shimla. After solemnization of her marriage with Rakesh Kumar aforesaid she did not conceive any child for about eights years, then vide Ext.PW9/A, adoption-deed they adopted the prosecutrix, daughter of Balbir Singh, who was in relation from the side of her husband. The adoption-deed was prepared after about eight months of her adoption and her date of birth was got registered in the office of the Municipal Corporation, Shimla, showing them as her parents. Jaswinder Kaur on having been promoted as Daftri, was allotted Quarter No.8 in Block No.1 in the 4th storey near her work place. Her husband died sometime before the alleged incident. (ii) It is alleged that the date of birth of the prosecutrix is 5.1.1996 and on the date of alleged incident she was 14 years of age. - 3 - (iii) The accused/appellant, hereinafter to be referred as ‘the accused’, is the son of another Balbir Singh, who was employed as Clerk in the same Govt. Printing Press. He was allotted quarter in the ground floor in the same block. Said Balbir Singh alongwith his wife was residing in a private residence at ‘Chakkar’ (Shimla), where they used to run a shop, whereas the accused was residing in the Government quarter allotted in the name of his father. (iv) The prosecutrix was admitted by Rakesh Kumar in J.C.B. Senior Secondary School, Khalini (Shimla) in the 1st standard and in the year 2010 she was a student of 8th standard. (v) It is alleged that the accused used to tease the prosecutrix, while passing through on the ground floor besides his residence, ever since the time of her husband. She also made a complaint to the father of the accused, but he did not pay any heed to it. The prosecutrix had been going to School alongwith her younger sister PW14 Simran. (vi) On 10.3.2010, the prosecutrix and Simran aforesaid who was also studying in the same school came late, i.e., around 5.30 P.M. and their mother took them to task for coming late - 4 - and sought the explanation. To avoid the furry of their mother, she wrongly disclosed that the bus was late or that they could not catch the bus. Both of them were rebuked. The prosecutrix took it serious and left the house for going to the house of her maternal-uncle Raj Kumar, who was residing at Bemloe (Shimla), but after some thought she decided to come back and sat on the stairs leading to her house outside the residence of the accused on the ground floor. She was still in school dress. The accused, who was already having a bad eye upon her, took and pushed her inside his room. He bolted the door from inside. There was only one entry in the said house. He threatened her that in case she would raise any alarm and disclose this fact to anybody, he would kill her, her mother and brother like her father. Thus she kept mum. Her mother kept on searching for her throughout the night at various places of her relations, but was not traceable anywhere. Next morning, she went to Police Station, Boileauganj (Shimla) to report the matter regarding missing of the daughter. On being asked, she casted a doubt upon the accused with respect to the said episode, but the police - 5 - turned deaf ears. Around 1/1.30 P.M. she noted the accused standing outside Police Station and asked him about the whereabouts of her daughter, who after some reluctance he told her to go to his quarter and find her out. (vii) When she returned to her house she found the prosecutrix in her house and told her about the incident that she was kept confined by the accused in his quarter but did not disclose about the rape. Jaswinder Kaur felt depressed. Next morning she went to her office got typed a complaint Ext.PW3/A and handed over to Superintendent of Police, Shimla, which was made basis to lodge the FIR. The prosecutrix was got medically examined. Later she alleged rape with her throughout the night and next morning, i.e., 11.3.2010, around 7.00 A.M. the accused is alleged to have left his quarter and locked the door from outside. Around 8/8.30 A.M., she picked up the mobile of the accused lying there and called her mother on mobile, but it was with her maternal-aunt, Neeta Devi (PW3). Prosecutrix disclosed her while crying about having been kept confined by the accused in the room. At about 1.30 P.M., the - 6 - accused is alleged to have opened the door and sent her outside to go to her residence. She went there. After sometime her mother (PW9) came there and enquired about the incident as stated above. In the meantime, PW13 Neeta Devi aforesaid also came to their house, she also questioned the prosecutrix about her absence and she is alleged to have disclosed about the same to her. (viii) When the matter was reported to the police vide FIR Ext.PW15/A, PW15 ASI Ram Singh took up investigation. On 12.3.2010, the prosecutrix was got medically examined from PW5 Dr. Neelam Pathania. She issued the Medico Legal Certificate Ext.PW5/B and took into possession her underwear which was sealed and handed over to the police for forensic examination. On having perused the report of the forensic examination Ext.PX in conjunction with the Medico Legal Certificate, she could not authentically say about the alleged rape. She did not find any sign of violence or any swelling on her private parts. Hymen was also found intact. (ix) The accused was arrested on 13.3.2010. He was also got medically examined from PW4 Dr. Dilsher Singh. The accused was found fit to - 7 - perform sexual intercourse. His pubic hair were also taken into possession alongwith his under-garments. The Medico Legal Certificate of the accused is Ext.PW4/B. As per report of the forensic examination (Ext.PX), semen stains were found on the Pajama (Ext.P.4) of the accused and underwear (Ext.P.6) of the prosecutrix. (x) Police also prepared the site plan Ext.PW15/B of the place of incident and seized the bed-sheet vide recovery memo Ext.PW1/A and sent the same for chemical examination. Photographs of the crime-scene were also taken. (xi) During investigation, police also obtained the birth certificate Ext. PW2/A of the prosecutrix. 3. After completing the investigation, Challan was presented in the Court for the trial of the accused. After complete trial he was convicted and sentenced as aforesaid. 4. Shri N.S. Chandel, learned Counsel for the accused, forcefully argued that the age of the prosecutrix being minor is not proved, the FIR, in the instant case, is the result of due deliberations and also the exercise of the pressure on the prosecution to register the case with respect to the incident which did - 8 - not take place. Therefore, the delay in lodging FIR is fatal. He further argued that the medical evidence on record shows that no rape was committed. It is also argued that the prosecution was not able to prove authentically the date of birth of the prosecutrix. The story which was initially propounded with respect to her date of birth was later improved during the trial. The learned Counsel also ventilated that the prosecutrix, at the relevant time was having mobile of accused and intimated her maternal-aunt and also talking to various persons on different numbers which shows her voluntary association with the accused. He also argued that it is not understood why her aunt after having been informed by the prosecutrix did not immediately inform the mother of the prosecutrix about her presence in the residential quarter of the accused, which smacks of something fishy. The learned Counsel also took me through the evidence on record and tried to pin-point the discrepancies here and there occurring in the statements of the prosecution witnesses and finally concluded that the testimony of the prosecutrix did not inspire confidence, as such it has to be rejected. 5. Contra, Shri A.K. Bansal, learned Additional Advocate General, while supporting the impugned judgment of conviction and sentence argued that true facts have been brought before the learned trial Court with respect to the adoption and date of birth of the - 9 - prosecutrix. The adoption deed stands duly proved. It is also stated that Shri Rakesh Kumar, father got her admitted in the school, wherein the same date of birth as alleged has been mentioned. Keeping in view the fact that she was at the relevant time the student of 8th standard and if she was admitted at the age of six years, her age comes to slightly less than 16 years of age. Since she has been proved to be a minor and her testimony inspires confidence and was rightly acted upon. The delay in lodging the FIR is not fatal in the fact situation. Therefore, he was rightly convicted and sentenced by the learned trial Court. He also argued that the medical evidence has a corroborative value and no benefit can be derived by the accused from the statement of the Lady Doctor, more specifically when Pajama of the accused and underwear of the prosecutrix had the semen stains, which is indicative of the foul play with her. 6. I have given my thoughtful consideration to the rival contentions of the parties and have carefully and cautiously scanned the evidence on record. 7. The age of the prosecutrix, in the instant case, is of a prime importance. At the time of medial examination, the prosecutrix supplied her age as 13/14 years, as indicated in the MLC Ext.PW5/B. The alleged incident had taken place on 10.3.2010 and she was examined in the Court on 14.9.2010 and on that day she disclosed - 10 - her age as 14 years and testified her date of birth as 5.1.1996, which has not been challenged in her cross- examination. The adoption deed is Ext.PW9/A, is stated to have been executed on 25.6.1996 after about eight months of her date of birth. The prosecutrix at the time of adoption was only two months old, as stated by PW9 Jaswinder Kaur. 8. To prove the adoption deed, the prosecution examined PW11 Ashok Chaudhary, document-writer. He stated that the adoption deed was read over and explained to both the parties who after having admitted the same as correct put their signatures.He further stated that the date of birth of female child was written as 5.1.1996 at the instance of natural parents. 9. The prosecution by moving an application also tried to examine the biological father Balbir Singh, which was allowed by the learned trial Court, but despite best efforts he could not be located, as such the evidence was closed by the order of the Court. Exts.DA and DB propounded by the PW2 Kanteshwari Rawat, Sub Registrar, reveal the birth at ‘Phagli’ (Shimla). According to the learned Counsel for the accused, the parentage and particulars with respect to her date of birth and place did not tally and are incorrect. 10. Scrutiny of the evidence on record shows that earlier at the time of the FIR the fact regarding the - 11 - adoption was not disclosed by Jaswinder Kaur to the police, may be with a view not to disclose this fact to the adopted child or that she was treating her as her own daughter, but in view of the fact of adoption deed and also the fact that at the time of adoption the prosecutrix was only two months of age, she is proved to be having taken birth on 5.1.1996. Further, the plea that the name of the child given the adoption deed is different from the name of the prosecutrix and the prosecution could not connect the adoption deed with that of the prosecutrix is also wrong because not only the deed-writer named above, but also PW12 Nasib Chand, who is cited a witness to the said deed corroborated this fact and also stated that the prosecutrix was fifth female child of said Balbir Singh and he had no male issue. The accused in his cross- examination did not dispute that the prosecutrix was not originally named as “Kajal”, rather made a positive suggestion that the prosecutrix was 2-2½ years of age at the time of adoption to which PW12 denied. In other words, the accused never disputed the adoption of the prosecutrix by PW9 and her husband. Therefore, the identity of the prosecutrix as adopted child by PW9 stands established. 11. Further, the birth entry of the prosecutrix in the record of the Municipal Corporation has also been proved by PW2 Kanteshwari Rawat, Sub Registrar, who - 12 - issued the certificate Ext.PW2/A based upon the entries made in the record, showing the same date of birth which was entered on the basis of application of Rakesh Kumar, though regarding which no verification was conducted, but evidence led before the Court clearly shows her less than 16 years of age at the time of alleged incident. Thus I find no discrepancy in the impugned judgment on this aspect of the case. 12. Now, I proceed to examine the other evidence with respect to the incident in question. It stands proved on record that the prosecutrix and her sister Simran both at the relevant time were studying in J.C.B Senior Secondary School, Khalini. On 10.3.2010, they came late. PW9, their mother got offended and rightly, sought explanation for this lapse. According to the prosecutrix, they lied to their mother by saying that the bus was late. As she felt offended, the prosecutrix took it to heart and left the residence and tried to proceed to the house of her maternal-uncle Raj Kumar who was residing in Bemloe, but having some thought in mind she returned and sat on the stairs outside the residence of the accused. Taking the advantage of the situation the accused is alleged to have pushed her inside and threatened her with dire consequences. He stated that she was terrified and did not raise any hue and cry. It was around 7.30 P.M., the accused had bolted the door from inside. She stated that she was raped by the - 13 - accused 3-4 times during the night. She also stated that earlier to the said occasion, the accused had been teasing. She also made the complaint to her mother PW9 and her mother informed about his father, but was of no avail. In cross-examination she stated that when she was confined by the accused inside, she also heard the noise of her mother and other persons who were searching for her, but she did not raise any hue and cry because of the threatening by the accused. She admitted that she also come towards the window so that her mother could notice her presence. She also stated that during the night she went to the toilet, but did not make any hue and cry from the window and even on 11.3.2010 from 7.00 A.M. to 1.30 P.M. she was alone in the quarter. She further stated that though she noticed her maternal-uncle and aunt passing through the passage and tried to talk with them by removing the curtain of the window, but as her condition was very bad because of forcible sexual intercourse committed by the accused throughout the night, therefore, she could not talk to them. She stated that though she was asked politely by the police about the incident, she did not tell about alleged rape because of fear. She denied that on 11.3.2010 she reiterated before the police that she had no relations with the accused and the accused did not commit any rape with her. She stated that she had disclosed this fact about the rape to the doctor - 14 - who medically examined her. She also stated that her statement was recorded on 13.3.2010 and she got identified the bed-sheet Ext.P.2 lying on the bed on which she was raped and the same was taken into possession by the police, but she denied having fabricated a false case against the accused. 13. PW9 Jaswinder Kaur stated when that she found the prosecutrix in the house present, she was perplexed. On enquiry she did not disclose anything to her. Thereafter, she disclosed about having kept confined by the accused in his quarter by the accused and also about the threatening. 14. PW3 Prem Raj Thakur, a colleague of PW9, stated that on 12.3.2010 when she (PW9) came to the office, she was weeping and tense. She got a complaint Ext.PW3/A typed from him, which according to Jaswinder Kaur was presented before the Superintendent of Police. 15. A perusal of the complaint Ext.PW3/A shows that at the time of recovery of the prosecutrix she was in a bad shape and was not able to say anything nor ate anything and her mother (PW9) apprehended that she was raped and was put under fear, meaning thereby till the time of moving of this application, nothing was disclosed by the prosecutrix to anyone with respect to the rape by the accused. Therefore, police registered a case for the offence punishable under Section 354 of - 15 - the Indian Penal Code and the prosecutrix was got medically examined in order to verify the fact of rape, from PW5 Dr. Neelam Pathania. Doctor also noted down the history and stated in the court that she was brought to the hospital with the alleged history of missing for one night. The parents of the prosecutrix were entertained suspicion of her being raped by the accused. There is no reference that the prosecutrix had disclosed her about the rape, as stated by her. On examination of her genitals, doctor did not notice any bleeding nor vaginal tenderness. Hymen could not be differentiated. Even vaginal mucosa was found normal and non-tender. There was no mark of violence on her body. Even she found it difficult to introduce single finger/speculum in the vaginal orifice. She had taken the vaginal swabs and slides. Only blood detected on the vaginal slides was menstruation blood on the perusal of the forensic report she gave her opinion vide Ext.PW5/C and opined that the person must have tried to perform the sexual intercourse, but penis was not entered into the vagina. This opinion has been endorsed by her as correct when examined in the Court. In cross-examination she categorically stated that the prosecutrix did not disclose about the rape at the time of examination nor made any complaint. She also did not find any injury on reproductive tract. She - 16 - also testified that the blood which was found on the vaginal slide was menstruation blood. She further admitted that in case of forcible intercourse, injuries were bound to be there over the private part of the prosecutrix. She stated that her opinion to the effect that the person tried to perform sexual intercourse is based upon the forensic examination Ext.PX, but clinically there was no evidence. 16. The report of the forensic examination indicates the semen stains on the underwear of the prosecutrix and also Pajama of the accused. As per PW4 Dr. Dilsher Singh, accused at the time of his medical examination disclosed neither he took bath from the date of incident nor changed the clothes. He had taken into possession innerwear (Pajama Ext.P.4) of the accused, which was sealed and sent for forensic examination. 17. From the aforesaid evidence, in my opinion, the statement of the prosecutrix inspires confidence only to the extent that when she was sitting depressed on the stairs of the accused which led to her residence and taking the advantage, the accused pushed her inside his room and bolted it. This fact cannot be lost sight that she was under such a mental distress that she returned from half way while going to the house of her maternal- aunt and came back to her house, but due to fear of her mother she could not go to her residence and remained sit on the stairs. She was totally shaken and did not raise any - 17 - hue and cry when pushed in his room by the accused fearing that it would add fuel to the fire, when her mother was already in high rage. At that state, she must have been overpowered by strong feeling of fear. Therefore, by not raising the cries at that time, she might have thought that she would be released by the accused but did not expect that he would behave in such a bad fashion. 18. Further, it is on record that the accused at the relevant time was about 20 years of age and the prosecutrix has been proved less than 16 years. Had he committed rape 3-4 times with her, as alleged by her, then the condition of her genitals would have been worst and at least it would have been inflamed and there would have been swelling, but as per the observations of the doctor even the entry of one finger with difficulty was not possible in the vaginal orifice, which was indicative of the fact that there was no complete or partial penetration of the male organ. But however, the presence of the semen stains on the underwear of the prosecutrix as also on the innerwear of the accused are indicative of the fact that the accused must have attempted to commit the rape, but pre-ejaculated on the underwear of the prosecutrix while making an attempt to commit rape. Thus she was in a bad-shape and not presentable. Thus, keeping in view the mental condition of the prosecutrix that she - 18 - was earlier rebuked by her mother, she was absent from her house throughout the night in the custody of the accused. She was effected with the psyche and the shocking experience thus she did not want that her condition be noticed by them. When she was released by the accused and came to her residence even at that time she was physically and mentally distressed. Her disclosure about the commission of rape appears to be made under tremendous pressure from near relatives and fury of mother. 19. On the scrutiny of above evidence, the accused is