1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cri. Appeal No.438 of 1996 Reserved on : 30.3.2010 Date of Decision: 30.4.2010 State of Himachal Pradesh Appellant Versus Bihari Lal Respondent Coram The Hon’ble Mr. Justice Deepak Gupta,J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No For the appellant: Mr. Vivek Singh Thakur, Addl. Advocate General, with Mr. Rajesh Mandhotra, Dy. Advocate General. For the respondent: Mr.R.S.Jamalta, Advocate. Sanjay Karol, J. (Oral) Present appeal is directed against the judgment dated 8.1.1996 passed by the Sessions Judge, Kinnaur Sessions Division, Rampur Bushahr, H.P., in Sessions Case No. 46-R/7 of 1995/94, titled as State vs. Bihari Lal, whereby accused Bihari Lal has been acquitted of the charge of having committed an offence under Sections 376, 506 of the Indian Penal Code, 1860. Whether the reporters of Local Papers are allowed to see the Judgment? 2 It is the case of the prosecution that on 28.5.1994 the prosecutrix had visited the house of her friend Kumari Roshni. On her way back when she reached the place near ITI boys’ hostel the accused caught her and dragged her towards a Gali (lane). She was muffled and further taken by the accused to his room in the hostel. There the accused untied the string of the Salwar worn by the prosecutrix and forcibly committed sexual intercourse without her consent. During this process the accused continued to muffle her mouth and as such she could not raise hue and cry. She was threatened not to disclose the said incident to anyone or else face dire consequences. As such she went home and later when her mother Smt. Devazin (PW-7) inquired the cause of her body pain that she narrated the incident to her. PW-7 in turn narrated it to Shri Kirpa Ram (PW-6), father of the prosecutrix, who lodged report on the basis of which FIR (Ext.PW-6/A) dated 28.5.1994 under Section 376, 506, IPC was registered with the Police Station Rekong Peo. The prosecutrix was got medically examined on the same day at District Hospital, Rekong Peo. Her medical examination was conducted by Dr.Rajan Angra (PW-9), who issued medical certificate (Ext.PW-9/P). Her clothes were taken into possession and sent for chemical analysis and report (Ext.PW- 14/B) from the Forensic Science Laboratory, Bharari 3 was obtained. The matter was investigated by SI Duni Chand (PW-14) and with the completion of investigation, the challan was presented in the Court for trial. The accused was charged for having committed an offence punishable under Sections 376 and 506, IPC, to which he did not plead guilty and claimed trial. In all, prosecution examined 14 witnesses. Statement of the accused under Section 313, Code of Criminal procedure, was also recorded. The Court below acquitted the accused, hence the present appeal. First point which needs to be considered is the age of the prosecutrix. As per her statement prosecutrix was a student of 8th class. She, however, does not disclose her age. Her father has stated her age to be of 14 years. In his cross-examination he admits that he has neither maintained the horoscope nor does he know the person who reported the birth of the prosecutrix to the Panchayat. PW-7 has disclosed the age of the prosecutrix to be 15 years. On the advice of PW-9 further medical examination of the prosecutrix was got done and according to the report (Ext.PW-12/A) of Dr.Suman Gupta, (PW-12) Radiologist, the skeleton age of the prosecutrix is opined to be between 15 and 16 ½ years. The margin of error is two years both on the higher and lower side. 4 Shri Jawala Bhagat (PW-11), Secretary, Gram Panchayat, Pangi, has proved copy of Pariwar Register (Ext.PW-11/A) and the date of birth of the prosecutrix is recorded as 3.8.1980. On whose asking the entry was made and also who made the entry in the Panchayat Register has not been disclosed. PW-11 admits not to have made such entry. As such, pariwar register cannot be said to be an authentic document conclusively proving her age. Hence the prosecution has failed to conclusively prove the age of the prosecutrix. Considering the opinion of the medical expert, it cannot be said that the age of the prosecutrix is definitely below 18 years. It is a settled position of law that the conviction of an accused can be based upon the sole testimony of the prosecutrix subject, however, if the same inspires confidence. The incident is alleged to have taken place in the boys’ hotel. The version of the prosecutrix that she was going from the house of her friend Roshni Devi (PW-13) is evidently false. Even though PW-13 was declared hostile she has not supported the prosecution and has denied that on the date of the incident prosecutrix had visited her house to do her school work. That apart, undisputedly the house of this witness is at a distance of one hour. Hence it is unlikely that a student of Class 8th would walk for 5 such a long distance and that too to finish her normal class-work. It is not that the prosecutrix had gone to her friend’s house to prepare for an examination. According to the prosecutrix before the accused took her to the room she had been dragged towards the lane. Now, according to her, she was dragged for a short distance of 1-2 steps, whereas according to PW-7 the distance between the place where the accused caught hold the prosecutrix and dragged her to the room is approximately 100 yards, whereas according to PW-14 this distance is approximately 50 meters. Now had the accused dragged the prosecutrix even for a short distance, there would have been some injury marks on her body. Also someone must have noticed the said incident. According to Doctor (PW-9) there were no injury marks, bruises, swelling on the body of the prosecutrix. Further it is the version of the prosecutrix that even after the commission of the crime she continued to remain in the room for about half an hour. She was sitting on the cot all alone. The crime is alleged to have been committed in a boys’ hostel. It is highly unbelievable that even after the commission of the crime she would have sat there quietly. Why did she not raise any hue and cry at 6 that time? Her version that earlier she did not raise hue and cry as the accused had muffled her face with his hands is not supported by medical version. According to Doctor (PW-9) if the victim is gagged by hand for some time, some bruises, marks, swelling are likely to appear on the inner part of the lips. Her version that she did not disclose the offence to any one under the fear of threat does not appear to be true. She admits to have known the accused from before. She had known his identify and whereabouts. She could have conveniently walked to the warden of the hostel or immediately disclosed the incident to her parents upon reaching home. She disclosed the incident to her mother only she was asked to explain the cause of her pain. To us it appears to be a case of consent. PW-9 has categorically opined that there was no swelling, redness, tenderness or bruises on vulval region. According to her, there was nothing to suggest that intercourse had not taken place and “signs of previous intercourse were present”. In cross-examination she clarified that from physical examination it is quite apparent that the prosecutrix was habitual to sexual intercourse. The case set up by the prosecution does not appear to be true. The same cannot be said to have been conclusively proved beyond reasonable doubt. 7 The Court below has rightly acquitted the accused and no ground for interference is made out. The appeal is accordingly dismissed. Bail bonds, if any, furnished by the accused are discharged. (Deepak Gupta) Judge. 30th April, 2010 (Sanjay Karol) (C) Judge.