IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 64 of 2007 & Cr. Appeal No.328 of 2006 Date of Decision: 30-5-2008. ____________________________________________________________ i) Criminal Appeal No. 64 of 2007. Sunder Lal. Appellant. -versus- State of H.P. Respondent. ii) Criminal Appeal No. 328 of 2006. State of H.P. Appellant. -versus- Sunder Lal. Respondent. Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. 1. Cr. Appeal No. 64 of 2007 For the appellant : Ms. Ritta Goswami, Advocate. For respondent : Mr.P.K.Sharma, Addl. Advocate General. 2. Cr. Appeal No. 328 of 2006 For the appellant : Mr. P.K.Sharma, Addl. Advocate General. For the respondent: Ms. Ritta Goswami, Advocate. __________________________________________________________ SURJIT SINGH, J. (oral) These two appeals are directed against the same judgment of the trial Court and so they are being disposed of together by a common judgment. One appeal, i.e, Criminal Appeal No. 328 of 2006 has been filed by the State for enhancement of punishment Whether reporters of the Local papers are allowed to see the judgment? Yes. awarded to respondent Sunder Lal for the offence of rape under Section 376, I.P.C. Other appeal No. 64 of 2007 has been filed by convict Sunder Lal seeking reversal of the judgment of conviction and sentence awarded by the trial Court. Facts relevant for the disposal of the two appeals may be noticed. Appellant, who is resident of some place in Hoshiarpur District of State of Punjab, got employed in a factory at Solan. He took on rent residential accommodation in village Kather. Prosecutrix is also resident of that village. Parents of the prosecutrix are milk vendors. Appellant Sunder Lal started purchasing milk from the parents of the prosecutrix. Prosecutrix used to go to the tenanted premises of the appellant to supply milk, while on way to the School. Once in the month of September 2004, when the prosecutrix was student of 7th standard, she, on way to the School, carried milk for being delivered to the appellant. Appellant took her inside the room and allured her that he would be marrying her and committed rape on her. He repeated the act in October, 2004 also. Prosecutrix, who was then aged between twelve to fourteen and a half years, became pregnant as a result of the aforesaid act. When her belly protruded out, her sister PW2 Sushma on noticing it asked her about the same. The prosecutrix told her that she had become pregnant because of the appellant having raped her in September and October, 2004. The matter was reported to the Police on 4-4-2005. Police got the prosecutrix medically examined. She was found to be carrying pregnancy of twenty-six to twenty-eight weeks. For determination of her age, ossification test was also conducted. Out of thirteen unions, which were x-rayed, only one, i.e, head femur was found to be fused. All other epiphyses had yet not fused. Radiologist gave report, Exhibit PW8/D, that the age of the prosecutrix was twelve and half to fifteen years. The report is dated 11th April, 2005. An entry from the School record was also procured by the Police which indicated that her date of birth was 1-12-1992. Prosecution examined the prosecutrix as PW1, her sister Sushma as PW2, her father Tula Ram as PW16, the Doctor who conducted the medico legal examination, namely, Dr. Savita Aggarwal as PW3 and radiologist Dr. Sandip Jain as PW8. Appellant continued to deny that he had had any sexual inter-course with the prosecutrix till the verdict of his being guilty was given by the trial Court. It was only when he was being heard on the quantum of sentence that the plea was raised that the prosecutrix was a consenting party and that she had been in love with him. This plea, he appears to have been compelled to take, because of two reasons. First that DNA test showed that the appellant had fathered the child delivered by the prosecutrix on 9.4.2005 and secondly, he had been held guilty of the charge of rape. Learned counsel representing the appellant does not dispute the fact that sexual inter-course between the prosecutrix and the appellant had taken place and that the coitus resulted in the pregnancy of the prosecutrix and delivery of the child by her on 9.4.2005. She has candidly admitted that in the face of the evidence on record, especially DNA test report, the plea that no sexual inter- course had taken place, cannot be successfully raised on behalf of the appellant. Her (Ld. counsel’s) plea is that the age of the prosecutrix was above sixteen years at the time when the two incidents of alleged rape took place. We do not find ourselves in agreement with the submission. No doubt, there is no entry regarding the birth of the prosecutrix in the register of Births and Deaths as is made out from the testimony of CW1 Ram Lal, whom we examined as a court witness on 22.5.2008, but the appellant cannot be allowed to go scot free only on account of omission on the part of her parents to report her birth to the Panchayat. There is other evidence which clearly points that the age of the prosecutrix was not more than fifteen years at the time when the two incidents of rape took place. Ossification test of the prosecutrix was conducted during the investigation of the case. Thirteen epiphyses were x-rayed. All of them, except one, i.e, head femur were found to be not fused. Radiologist PW8 Dr. Sandip Jain, who conducted the epiphyses test on 11-4-2005, has mentioned in his report Exhibit PW8/D, the range of age of fusion of each of the epiphyses which were x-rayed, in the case of the prosecutrix. The age of the twelve unions which had not fused varies from twelve and a half years-fifteen years to fifteen and a half years-nineteen years. The age of epiphyses which was found to have fused, i. e., head femur as per the chart given in report Exhibit PW8/D is twelve and a half years to fourteen and a half years. Prosecutrix was a student of 7th standard at the time when the incidents took place. No suggestion was put to the prosecutrix that she had failed in any class up-to the date of the incidents. Normally, the age of a student of 7th standard, particularly in rural areas, where the initial admission is in the first standard, is thirteen to fourteen years. Also the testimony of the prosecutrix who appeared as PW1 and her father PW16 Tula Ram to the effect that the age of the prosecutrix at the relevant time was about twelve years is conformity with the school records. According to the school record, the date of birth of the prosecutrix is 1-2-1992. While lodging the F.I.R., the prosecutrix got her age recorded as fourteen years. At the time of her medico legal examination also, she got her age recorded as fourteen years with the Doctors. Looking to all these facts, we have no hesitation in concluding that the prosecutrix was not more than fourteen years of age at the time when the two incidents of rape took place. No other submission with regard to the plea for reversal of the judgment of conviction has been raised by the learned counsel for the appellant. As regards the appeal filed by the State for enhancement of sentence, learned counsel for convict Sunder Lal says that he has already been awarded four years imprisonment and that looking to the facts and circumstances of the case, particularly the fact that the prosecutrix was in love with the said Sunder Lal as is made out from the photographs Exhibits D1 to D4, the sentence cannot be said to be on the lower side. We do not find any merit in this submission. As already noticed, Sunder Lal had been denying, till he was found guilty, that he had had sexual inter-course with the prosecutrix. It was only after the DNA test nailed him and the trial Court found him guilty that he came up with the plea of love affair with the prosecutrix. The photographs Ext. D1 and D2 were also introduced only when the father of the prosecutrix, who was one of the last witnesses to be examined in the case, was in the witness box. These were not shown to the prosecutrix or Sushma, the sister of the prosecutrix. Looking to the age and the facts and the circumstances of the case, we are of the firm view that the sentence awarded by the trial Court is in-adequate. Sentence of at least seven years substantive imprisonment ought to have been awarded. As an up-shot of the above discussion, appeal filed by Sunder Lal seeking reversal of his conviction is dismissed. Appeal filed by the State seeking enhancement of sentence is allowed and the convict- respondent Sunder Lal is ordered to under-go rigorous imprisonment for seven years instead of four years imprisonment awarded by the trial Court. Appeals stand disposed of. (Surjit Singh) Judge. (Surinder Singh) Judge. May 30, 2008. (bm)