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2000 DIGILAW 292 (HP)

MANI RAM v. STATE OF HIMACHAL PRADESH

2000-11-10

K.C.SOOD

body2000
JUDGMENT Kuidip Chand Sood, J.—Both these appeals are being disposed of by this judgment as they arise out of the common judgment of the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushehr in Sessions Trial No. 1 of 1998 decided on 29.2.2000, 2. In Cr. Appeal No, 185 of 2000, Appellants Mani Ram and Mela Ram (Accused hereinafter) were convicted for offences punishable under Sections 342 and 376 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for seven years and fine of Rs. 1,000 each under Section 376 of the Indian Penal Code and further sentenced to rigorous imprisonment for six months under Section 342 of the Indian Penal Code. In case of default in the payment of fine (under Section 376 of the Code) both Mani Ram and Mela Ram are to suffer further rigorous imprisonment for six months. In Cr. Appeal No. 95 of 2000, Appellant Ramila was convicted and sentenced to suffer rigorous imprisonment for two years and fine of Rs. 2,000 under Section 376 read with Section 109 of the Indian Penal Code and further sentenced to rigorous imprisonment for three months under Section 342 read with Section 109 of the Indian Penal Code. In case of default in the payment of fine, she is to suffer further rigorous imprisonment for three months. 3. The substantive sentences of imprisonment were directed to run concurrently. 4. Prosecution ease, in brief, was that Reena Kumari (PW 5) daughter of Roop Singh, resident of village Khanotu (hereinafter referred to as Victim) was studying in class VIII in Government High School, Taklech in the year 1997. Accused Mela Ram, Mani Ram and Ramila of village Darkali were also studying in the same school. Mela Ram was residing in the hostel whereas, Mani Ram and Ramila were living in separate hired accommodation at Taklech at the relevant time. The victim used to come daily from her village Khanotu to attend the school. 5. During August, 1997, there were tournaments in the School. On 29.8.1997, accused and victim attended the School as usual. When the School closed at 4 Oclock in the evening, accused Ramila persuaded the victim to come with her. The victim accompanied Ramila and spent some time in her room. Ramila, then persuaded victim to accompany her to the residential quarter of Mani Ram accused. On 29.8.1997, accused and victim attended the School as usual. When the School closed at 4 Oclock in the evening, accused Ramila persuaded the victim to come with her. The victim accompanied Ramila and spent some time in her room. Ramila, then persuaded victim to accompany her to the residential quarter of Mani Ram accused. Both accused Mani Ram and Mela Ram were present when the victim and Ramila visited the room of Mani Ram. At about 6.00 p.m. Ramia left the place. Victim also wanted to return back with her. She was asked by Ramila to remain there and promised to return back within five minutes. The room was bolted from inside after Ramila left the place. 6. It is the further case of the prosecution that Ramila did not turn up though the victim kept on waiting for her. Meals were prepared by Mani Ram and part took by accused Mani Ram, Mela Ram and the victim. All three of them went to sleep at 10.00 p.m. During the night, victim was subjected to forcible sexual inter-course firstly by Mani Ram and then by Mela Ram. One Jiwani Devi, who used to live in the adjacent room, gave calls during the night as to what was happening and asked the victim to come out of the room. The victim, however, was told that if she raised any alarm, she would only face disgrace and loss of reputation. 7. Ramila returned back at about 6.00 in the next morning. Both Mani Ram and Mela Ram left the room. Victim narrated the incident to Ramila who advised her to keep quiet about the incident otherwise she may have to face disgrace. Victim came to School from the room of Mani Ram and attended her classes as usual. She narrated the incident to her friend Lata. After attending the school, she returned back to her home, washed her clothes, but did not disclose the incident to her mother out of fear. According to the prosecution case, she told her mother that she spent the previous night in the house of her Masi (mothers sister) in village Taklech. Her mother after few days enquired from her sister, who told her that she (the victim) did not come to their house on that night. Victim was confronted by her mother. It was only then that she narrated the alleged incident to her mother. Her mother after few days enquired from her sister, who told her that she (the victim) did not come to their house on that night. Victim was confronted by her mother. It was only then that she narrated the alleged incident to her mother. The First Information Report was lodged with the police on the next day on 5.9.1997, 8. Accused Mani Ram and Mela Ram were charged for the offences punishable under Sections 342 and 376 of the Indian Penal Code, whereas, accused Kumari Ramila was charged for the offences punishable under Sections 342 and 376 read with Section 109 of the Indian Penal Code. All the accused claimed trial. Learned Sessions Judge on the basis of evidence recorded at the trial, settled the following points for consideration: 1. Whether the prosecution has been able to prove and establish the charges framed against the accused persons? 2. Final order. 9. Learned trial Judge after considering the prosecution evidence held that the prosecution has been successful in proving the offences against the accused for which they were charged and accordingly convicted the accused as noticed earlier. Dis-satisfied with their conviction, the accused have filed the present appeals. 10. I have heard Sarv. Shri Tarlok Chauhan and Jagdish Vats, learned Counsel for the appellants and Shri R.M. Bisht, learned Additional Public Prosecutor and Assistant Advocate General and gone through the record. 11. The submissions of the learned Counsel for the accused Mani Ram and Mela Ram are three-fold: (a) Victim was not subjected to sexual inter-course by either Mani Ram or Mela Ram and they have falsely been implicated; (b) Sexual activity, if any, was with the consent of the victim; and (c) Victim is not proved to be less than 16 years of age at the time of the alleged commission of the offence. In the circumstances, accused Mani Ram and Mela Ram cannot be convicted for the offence punishable under Section 376 or Section 342, IPC. 12. Learned Counsel for accused Ramila, apart from adopting the submission on behalf of accused Mani Ram and Mela Ram urged that there is no evidence against her to show that she abetted the commission of the offence of rape or illegal confinement. 13. 12. Learned Counsel for accused Ramila, apart from adopting the submission on behalf of accused Mani Ram and Mela Ram urged that there is no evidence against her to show that she abetted the commission of the offence of rape or illegal confinement. 13. On the other hand, Shri R.M. Bisht, learned Additional Public Prosecutor submits that the evidence on record established that victim was subjected to sexual inter-course by accused Mani Ram and Mela Ram without her consent and the prosecution in any case has proved that the victim was less than 16 years of age at the time of the commission of the offences. 14. I have considered the rival contentions and reappraised the evidence with the help of learned Counsel. AGE OF THE VICTIM 15. So far the age of the victim is concerned, learned Sessions Judge on the basis of the radiological age, as determined by Dr. Sudha Parkash and report on dental examination by Dr. Rajan Bhardwaj along with the birth certificate issued by Gram Panchayat, concluded that the victim was about fourteen years of age at the time of occurrence. 16. Dr. Neeraj Kumar Ganju (PW 1) on the basis of the docket received from the police, examined the victim on 5.9.1997. Dr. Ganju did not find any mark of violence or struggle over the clothes and body of the victim. It may be noticed that prosecutrix had brought the clothes which she was wearing at the time of incidence. It is his evidence that he referred the victim to Dental Surgeon for opinion regarding the age of the prosecutrix and on the basis of the report of the Dental Surgeon and radiologist, he opined that the age of the prosecutrix was between twelve and half to fifteen years. In cross-examination, he clarifies, "my opinion regarding the age of the prosecutrix is based on clinical observations made at the time of examination of the prosecutrix and not on the basis of the opinion given by the Dental Surgeon and Radiologist". However, learned Counsel for the accused has referred to the testimony of Dr. Neeraj Kumar Ganju and Medico Legal Report issued by him Exhibit PA and submits that there is no mention about the clinical age of the victim. The mention of the age on the reverse of medical report Ext. However, learned Counsel for the accused has referred to the testimony of Dr. Neeraj Kumar Ganju and Medico Legal Report issued by him Exhibit PA and submits that there is no mention about the clinical age of the victim. The mention of the age on the reverse of medical report Ext. PA, is on the basis of the opinion of the Dental Surgeon and Radiologist. 17. Dr. Sudha Parkash (PW 2) was posted as Radiologist at Din Dayal Upadhaya Hospital, Shimla at the relevant time. It is her evidence that on 9.9.1997, she received X-ray films on the basis of which she recorded her opinion Exhibit PB that the subject of the X-ray film was between 12-1/2 to 15 years of age. Her opinion is based on the fact that Epiphysis of head femur was fused and Epiphysis of head humerus acromian medial epicondyle, distal radius, ulna, greater Trochantec, distal femur, proximal and distal tibia and fibula were not fused and, therefore, the skeletal age of the girl was between 12-1/2 to 15 years. She admitted that the X-ray films do not bear the signatures of the victim nor are there identification mark to show that X-rays related to the victim. 18. Dr. Ranjan Bhardwaj (PW 3) was posted as Dental Surgeon, at Referral Hospital, Rampur at the relevant time. It is his evidence that victim was referred to him for opinion regarding her age on the basis of dental examination. He found that all the teeth mentioned in the report were fully erupted and well matured and assessed the approximate age of the victim to be 14 plus minus six months. 19. Mother of the victim Smt. Satya Devi (PW 6) has given the age of the victim, at the relevant time, as 13-1/2 years. However, in cross-examination, she admitted that she was married at the age of 17 or 18 years and she does not remember when the victim was born to her. However, she is definite that Reena was born within one year of her marriage. She gave her age as 35 years on 9.3.1998, when she was examined in the Court, Now if she was married at the age of 17/18 years, and Reena was born within one year of her marriage, then Reena was above fifteen but less than sixteen years of age at the time of alleged occurrence. 20. She gave her age as 35 years on 9.3.1998, when she was examined in the Court, Now if she was married at the age of 17/18 years, and Reena was born within one year of her marriage, then Reena was above fifteen but less than sixteen years of age at the time of alleged occurrence. 20. The prosecution has relied on the certificate of age issued by Ramesh Chand, Secretary, Gram Panchayat Bahli (PW 10), mark-A, on the basis of the register of births and deaths of that panchayat and copy of the Parivar Register, mark-B, which shows that victim was born on 12th of December, 1983. However, these two documents cannot be relied upon as Ramesh Chand candidly admitted in his cross-examination that the register of birth and deaths, on the basis of which the certificate mark-A purports to have been issued, was not available till the year 1985/ 86. He also admitted that register was prepared by him on the basis of the entries in the Parivar Register. In his own words, "Register of births and deaths, on the basis of which certificate mark (B* has been prepared is not available upto the year 1985-86. This register has been prepared by me on the basis of entries in Parivar Register’. He also admitted that he had no authority to issue the certificate mark ‘B’ on the basis of the Parivar Register. Now mark B’ is a certificate showing that family of Bhola Singh was earlier resident of Rasehli Gram Panchayat but has migrated to Khanotu village in Taklech Panchayat and his family consisted of his wife, daughter (the victim) and son Anil Kumar. The date of birth of Reena is recorded on 12.12.1983. The certificate to say least does not inspire confidence. Ramesh Chand admitted in his cross-examination that Parivar register on the basis of which he prepared the certificate, was started in the year 1991 and the entries in this register are not in his hand. He went on to admit that "certificate mark A’ is not in accordance with the prescribed proforma. In fact, he admitted "it is a certificate and not copy of the entries bearing in the Parivar Register". He further admitted, "the said certificate is not true copy of the entries made in the Parivar Register". He went on to admit that "certificate mark A’ is not in accordance with the prescribed proforma. In fact, he admitted "it is a certificate and not copy of the entries bearing in the Parivar Register". He further admitted, "the said certificate is not true copy of the entries made in the Parivar Register". To a court question, this witness admitted that he issued the certificate at the asking of the police though he was aware of the fact that relevant register of births and deaths is not available. 21. Learned Sessions Judge clearly erred on relying upon the certificates of age mark A and B issued by Ramesh Chand (PW 10), Secretary, Gram Panchayat Bahli. Apparent as it is, the certificates were been manufactured at the asking of the Police without any foundation on record. Learned Sessions Judge also relied on the certificate of age by Principal, Government Senior Secondary School, Taklech mark ‘C’ This certificate was also not proved, contends learned Counsel for the accused, in accordance with law. The submission is well founded. Krishan Singh (PW 11) prepared this certificate. Perusal of the certificate shows, the date of birth of the victim is recorded as 12.12.1983 in the School Admission Register. In cross-examination, this witness admitted that the entry in the register on the basis of which this certificate was issued is not in his hand. It is his evidence that victim was admitted in 6th class on 8th March, 1994 and there is no reference to the old register of the school or as to from which school she passed her class 5th. 22. It is also noticed that in certificates mark A and ‘B’ victim is shown to be daughter of Bhola Singh but there is nothing in evidence to show that Roop Singh, father of the victim, is also known as Bhola Singh or has any such alias. In these circumstances, certificates mark A, By and C cannot form basis to determine or prove the age of the victim at the relevant time. 23. In these circumstances, certificates mark A, By and C cannot form basis to determine or prove the age of the victim at the relevant time. 23. Learned Counsel for the accused submitted that if evidence of age in terms of certificates mark A, ‘B and ‘C’ is excluded, then we are left with the radiological and dental age of the victim and owing to the variations in climatic, dietetic hereditary and other factors, effecting the people of different States of India, it cannot reasonably be expected to formulate a uniform standard for the determination of the age by the test of ossification and the union of epiphyses in bones. This Court, it is submitted, can take judicial notice that margin of error in age ascertained by the radiological examination is two years on either side and, therefore, possibility of the victim being more than 16 years of age cannot be ruled out. 24. It hardly need emphasis that the ossification test for the determination of the age is not surest test. It is now well settled that there is always variation of about 2 to 3 years either side (See: Jai Mala v. Home Secretary Government of Jammu and Kashmir and others, AIR 1982 Supreme Court 1297; State of Rajasthan v. N.K., (2000) 5 Supreme Court Cases 30). In Jai Mala, Their Lordships noticed: “......It is notorious and one. can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side." 25. In the present case, as already discussed, the evidence of mother of the victim Smt. Satya Devi (PW 6) shows that the victim was less than 16 years of age at the time of the alleged occurrence. The father of the victim Roop Singh appearing as PW 9 stated that the victim was born on 12th December, 1983. In cross-examination, he stated that he was married in February, 1983. The evidence of this witness is of no assistance. Victim while appearing as PW 5 stated that she started attending the School at the age of 5 or 6 years. She failed twice, i.e., in Class 6 and Class 8. It is admitted position that at the time of the alleged occurrence, the victim was studying in class 8. The evidence of this witness is of no assistance. Victim while appearing as PW 5 stated that she started attending the School at the age of 5 or 6 years. She failed twice, i.e., in Class 6 and Class 8. It is admitted position that at the time of the alleged occurrence, the victim was studying in class 8. Now if she was admitted in the school at the age of 6 years, she would be 15 years of age in Class VII with one failure in Class VI. She further clarified that she was declared fail in class VIII on 5.2.1998. Thus, in the year 1997, at the time of occurrence, she would be about 15 years of age or in other words, less than 16 years of age. 26. The age given by the victim and the mother of the victim is corroborated from the medical evidence and it is proved that victim was less than 16 years of age at the time of the occurrence. I am supported in the view, I have taken by State of H.P. v. Mango Ram, (2000) 7 Supreme Court Cases 224. In that case the occurrence took place on 17.4.1993 and the family history showed that prosecutrix was born in the year 1979. Radiological age of the prosecutrix was found to be about 14 years. In these circumstances, it was held that it cannot be said that the prosecutrix was above the age of 16 years. 27. Taking into consideration the preponderance of evidence and probability factor, it cannot be said that the victim was more than 16 years of age at the time of occurrence. Findings of the learned Sessions Judge even after excluding the certificates of age mark A, ‘B and C, that prosecutrix was less than 16 years of age thus cannot be faulted with. Victim was not subjected to sexual inter-course or sexual activity was with the consent of the victim. 28. Shri Tarlok Chauhan and Shri Jagdish Vats, learned Counsel for the accused strenuously urged that there is no convincing evidence that victim was subjected to sexual inter-course either by Mani Ram or Mela Ram accused. They further submitted that if at all there was sexual activity, then it was only with the consent of the victim and excludes any possibility of rape. 29. They further submitted that if at all there was sexual activity, then it was only with the consent of the victim and excludes any possibility of rape. 29. Learned Counsel for the accused referred me to the medical evidence and submitted that medical evidence does not supports the version of the victim. The victim was examined, as noticed earlier, by Dr. Niraj Kumar Ganju (PW 1) on 5th September, 1997 at about 8.00 p.m. after seven days of the alleged rape. According to Dr. Niraj Kumar, prosecutrix disclosed that she had taken bath after the alleged occurrence and washed the clothes which she was wearing at the relevant time of the alleged occurrence though victim was wearing same clothes when he examined her. He noticed : "The Salwar which the prosecutrix was wearing was having whitish stains anteriorly as also brownish stains on both the legs portion." Dr. Neeraj noticed that there were no marks of violence/signs of struggle over any part of the body or clothes. He found : "Axillary hair sparase. Public hair sparse and thin without evidence of seminal/blood stains or loose hair. Breast developed with pink areola. There were no marks of violence on private parts. No abraision/seminal stains/blood stains on thighs and private parts. Labia majora separate and labia minora cutaneous in appearance. Hymen ruptured with old healed tages present/ non tender/no laceration/non swoollen. Two fingers can be easily passed. Uterus normal size/anteverted adenaxa clear. No discharge seen. Veginal smear from posterior fornix taken and sent for laboratory for spermatozoa/smegma bacilli. In my opinion, the possibility of sexual inter-course having taken place prior to the last 24 hours could not be ruled out". (Emphasis supplied) 30. Evident as it is, the victim was habitual to sexual intercourse. Dr. Ganju stated : "It is difficult to state as to since how long she was being habitual to sexual inter-course on the basis of the fact that two fingers could easily pass in the vagina." (Emphasis supplied) 31. To a court question, he replied that "the age of the healed tages present in the hymen could not be indicated. I would say that the tags were totally healed and healing process would have been completed within 10 days." (Emphasis supplied) 32. To a court question, he replied that "the age of the healed tages present in the hymen could not be indicated. I would say that the tags were totally healed and healing process would have been completed within 10 days." (Emphasis supplied) 32. Modi in his Medical Jurisprudence and Toxicology (Twenty-first edition) at page 356 has observed that if the labia majora are separated and flabby, the labia minora cutaneous in appearance and separated, the fourchette torn, the vagina roomy and enlarged, then there is certainly very little probability that the subject is true virgin and such a subject if not habitual has atleast repeated intercourse. At page 375, Modi observed : "4. In nubile virgins the hymen, as a result of complete sexual inter-course, is usually lacerated, having one or more radiate tearns (more so in posterior half) the edges of which are red, swollen and painful, and bleed on touching, if examined within a day or two after the act. These tears heal within five or six days, and after eight to ten days become shrunken and look like small tags of issue. Frequent sexual intercourse and parturition completely destroy the hymen, which is represented by several small tags of tissue, which are called carunculae hymenealis or myrtiformes" "......In grown-up virgin girls, unmarried or married women, when they offer resistance marks of violence, such as bruises, scratches of finger-nails, etc., may be found on the external genitals, perinaeum, abdomen, chest, back, limbs, neck and face”. 33. In the present case, Dr. Ganju found that the hymen was totally torn with old healed tags and two fingers could be easily passed. It is further to be noticed that labia majora was separated and labia minora cutaneous in appearance. This all goes to show that victim was habitual to sexual inter-course. In any event, the fact that hymen had old healed tags would show that sexual intercourse had also taken place 8 to 10 days before her examination and, therefore, before the date of occurrence. This, however, does not exclude the possibility of the sexual inter-course having taken place within 8 or 10 days. 34. In tender aged girls who have not indulged in frequent sexual inter-course, the vaginal orifice is usually so small that it hardly allow the passage of little finger through the hymen. This, however, does not exclude the possibility of the sexual inter-course having taken place within 8 or 10 days. 34. In tender aged girls who have not indulged in frequent sexual inter-course, the vaginal orifice is usually so small that it hardly allow the passage of little finger through the hymen. In this case, "two fingers could easily be passed" again showing that the victim had indulged in frequent sexual inter-course in the past. 35. It may also be noticed that it is not the case of the prosecution that victim received any resistance struggle injuries which might have healed. In the absence of resistance or struggle marks on the body of the victim or over the clothes of the victim indicate, submitted learned Counsel for the accused, that victim was not subjected to sexual inter-course by the accused. True it is, however, absence of struggle marks does not in itself show that she was not subjected to sexual inter-course on the .date of alleged occurrence, The evidence, on probability factor, clearly points out that accused Mani Ram and Mela Ram indulged in sexual activity with the victim though with her consent. 36. It is the evidence of victim (PW 5) that she was forcibly subjected to sexual inter-course and she did not go to her house in the nearby village after the school. Satya Devi, mother of the victim (PW 6) also stated that on 29.8.1997, victim did not return from the school and she returned back home next day on 30.8.1997. Now victim, when confronted, lied to her mother that she spent the night in the house of her Masi (mothers sister) at Taklech. It is writ large that accused indulged in sexual inter-course with the victim with her consent. 37. It is the evidence of victim that on the day of occurrence, the School closed at 4 Oclock in the evening and she went to the quarter of accused Ramila and thereafter, they came to the residential quarter of Mani Ram though according to the victim, she declined to accompany her but still Ramila "took me to the quarter Mani Ram, where accused Mela Ram and Mani Ram were present. Ramila left the place at about 6.00 p.m. Nevertheless, she kept on sitting in the room of Mani Ram and Mela Ram. Ramila left the place at about 6.00 p.m. Nevertheless, she kept on sitting in the room of Mani Ram and Mela Ram. Though she would have us believe that she had also intended to go back alongwith Ramila yet remained with the accused as Ramila had promised to return back within five minutes forgetting that she was to go Back to her house in nearby village. She then tried to explain her conduct and stated that the accused did not permit her to go outside. 38. It is the further evidence of the victim that Ramila is not related to her nor was she know to Ramila. According to her, "accused Ramila was not my friend. Prior to the alleged incidence, I was neither on speaking terms with her nor acquainted with her". Now, if victim was not friendly with Ramila and was not even acquainted, then there was no reason for her to have accompanied Ramila either to her (Ramila) residential quarter or subsequently to the quarter of her cousin accused Mani Ram. It is evident that she voluntarily accompanied Ramila to the residential quarter of the accused for obvious reasons. 39. According to the evidence of the victim, four boys and six girls of her village used to attend the school alongwith her. It is her evidence, "we used to come to the school together. On that evening, I did not convey any message through those boys and girls to my home that during that night, I would be staying in village Taklech". After the closure of the school she accompanied Ramila for no apparent reason, at her asking, even when she was not even acquainted with her. In a normal routine, she would have accompanied those four boys and six girls back to her village. She even did not tell them that she is staying back at Taklech or would be late. This also shows that she had intended to stay back at Taklech without informing her parents or her companions from the village. 40. It may be significant to note that the victim did not disclose the alleged incident to her mother when she reached home the next day. In fact, on enquiry from her mother, she made up a story that she stayed back with her Masi. Had she been subjected to forcible sexual inter-course, she would have disclosed the occurrence to her mother immediately. In fact, on enquiry from her mother, she made up a story that she stayed back with her Masi. Had she been subjected to forcible sexual inter-course, she would have disclosed the occurrence to her mother immediately. She told her mother only on 4.9.1997 when her mother learnt that she did not spent that night in the house of her Masi. This also strengthens the submission of the learned Counsel for the accused that if at all there was a sexual activity by the accused with the victim, it was with her consent. According to the victim, she did not disclose the facts of the occurrence to her parents" out of fear". There was nothing to fear. It is the own version of the victim that she was advised by both the accused that she will have to face disregard (Bezti) if she disclosed the occurrence but she was not put to any fear. This apart, it is the evidence of the victim that next day, she attended the School and narrated this incident to her friend Lata. Kumari Lata has been examined as PW 7. It is her evidence that victim did not disclose anything to her. In her own words, "Reena is my Didi and she is resident of village Khonotu. She met me on the next day in the School. "She did not disclose anything to me". It is the evidence of Kumari Lata that she did not know accused persons. One Makli nay Ramila pulled Reena from the ground to the residential quarter of accused Mani Ram and Mela Ram. This witness admits in the cross-examination that at the time of occurrence, several boys were present nearby. It is difficult to believe that victim was forcibly taken by accused Ramila to her quarter. Otherwise also, if victim was forcibly taken by Ramila, she could have protested and could have been rescued or saved by the other students who were present in the ground. There is no room of doubt that the victim voluntarily and of her own volition, went to the residential quarter of Mani Ram where Mela Ram was also present. 41. Learned Counsel for the accused also submitted that there is unexplained delay in lodging of the First Information Report. The occurrence took place on 29.8.1997, whereas, First Information Report was lodged on 5th September, 1997 and delay of about eight days remained unexplained. 41. Learned Counsel for the accused also submitted that there is unexplained delay in lodging of the First Information Report. The occurrence took place on 29.8.1997, whereas, First Information Report was lodged on 5th September, 1997 and delay of about eight days remained unexplained. Mr. Bisht, learned Additional Public Prosecutor submits that the incidence was not disclosed by the prosecutrix till 4.9.1997 and the report was lodged promptly on 5.9.1997 and, therefore, delay is fully explained. In the circumstances, it cannot be said that there is unexplained delay in the lodging of the FIR though such delay occurred due to the guilty conscious of the victim. 42. Learned Counsel drew my attention to the fact that victim not only stayed back but also part took the food prepared by accused Mani Ram. Had she been confined to the room by the accused, she would have refused to take food. He further referred to the evidence of the victim where in cross-examination she stated that the latrine was inside the quarter of Mani Ram and the evidence of Investigating Officer (PW 17) where A.S.I. Amar Chand, the Investigating Officer, categorically state, "there was no facility of latrine and urinal in the room of accused Mela Ram’. It is difficult to believe the victim that she was confined to the room by the accused. She necessarily had to come out of the room if only to ease herself or to answer the call of nature. 43. Learned Counsel for the accused also submitted that one Jeewani had heard the calls made by the victim but Jeewani Devi was not examined and was given up by the prosecution. This in turn shows that the story of the victim that she cried for help, is an afterthought. In view of the doubtful nature of the evidence of the victim, the non-examination of Jeewani Devi, raises presumption that had Jeewani Devi been examined, she would not have supported the version of the victim. 44. It is admitted position that victim did not go back to her village on that evening after the School. It is also not seriously disputed that the victim spent night of 27th September, 1997 in the residential quarter of Mani Ram where the other accused was also present. 44. It is admitted position that victim did not go back to her village on that evening after the School. It is also not seriously disputed that the victim spent night of 27th September, 1997 in the residential quarter of Mani Ram where the other accused was also present. It is only when it was discovered that she lied to her mother about spending the night in the house of her Masi, that she stated that she was subjected to sexual inter-course by accused Mani Ram and Mela Ram. The preponderance of evidence on record demonstrates that accused Mela Ram and Mani Ram indulged in sexual intercourse with the victim though with her consent. 45. It is true that conviction of an accused, for sexual assault can be maintained on the sole testimony of a victim provided such testimony inspires confidence and is reliable and acceptable. It is also well settled that corroboration to the testimony of victim is not required. But, it is equally well established that if the testimony of a victim does not inspire confidence or is tainted, then Court must look for some assurance of her testimony, if not corroboration, to satisfy its judicial conscious. 46. There is no gain saying that no self-respected woman in our society, would come forward in Court just to make a humiliating statement against her own reputation just to involve a person falsely in the case of rape and to shield the real culprit. Therefore, evidence of the prosecutrix indeed is entitled to great weight but at the same time, false charges of rape, as noticed by Modi in his Medical Jurisprudence and Toxicology (Twenty-first Edition) at page 377, in certain situations are not uncommon. Some times, young girl consents to the act of sexual inter-course but does not scruple to accuse her partner of rape in order to save her own reputation when she is discovered by a third party in actual act or when she cannot account to her mother or other near relation for injury to her private parts or blood or seminal stains on her garments. If a complaint in such case is made, observed Modi, a few days after the incidence, the case is probably one of fabrication. Modi noticed, "adult females, who have been used to sexual inter-course, are known to have brought false charges of rape against individuals." 47. If a complaint in such case is made, observed Modi, a few days after the incidence, the case is probably one of fabrication. Modi noticed, "adult females, who have been used to sexual inter-course, are known to have brought false charges of rape against individuals." 47. In the present case, the conduct of the victim shows that not only she voluntarily went to the residential quarter of Mani Ram but also indulged in sexual activity without any force. The victim admitted in her testimony that house of her Masi is situate in the same village at a distance of about 10 to 20 yards from the quarter of Mani Ram. If she was forced to stay in the quarter of Mani Ram accused against her wishes, as the victim would have us believe, she could have walked across to the house of her Masi which was only 10 to 20 yards from the quarter of Mani Ram, when Ramila left the residential room of Mela Ram. Had victim really protested and raised alarm for help, the neighbourers certainly would have come to her rescue. It is the evidence of victim that she did not resist the sexual assault nor she "caused any injury to Mani Ram with teeth or nails’. It is her evidence that when Mela Ram committed sexual act with her, she did not raise any "hue and cry". It may be noticed that according to the victim, blood oozed from her vagina and stained the chaddar on the bed when she was subjected to sexual inter-course. Now this chaddar was taken into possession by the police from the room of Mani Ram vide recovery memo Exhibit PG and the same was sent to the Chemical Examiner. The Chemical Examiner vide his report Exhibit PK did not find any blood on this chaddar though simen stains were found. This also show that version of the prosecutrix is riot correct. 48. The inescapable conclusion is that accused Mela Ram and Mani Ram indulged in sexual act with the victim but that was with her consent and active participation. However, accused cannot be absolved of the criminal liability as the victim is proved to be under sixteen years of age at the time of commission of the offence. Section 375 of the IPC reads : 375. However, accused cannot be absolved of the criminal liability as the victim is proved to be under sixteen years of age at the time of commission of the offence. Section 375 of the IPC reads : 375. Rape.—A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual inter-course with a woman under circumstances falling under any of the six following descriptions: First. Against her will. Secondly. Without her consent. Thirdly. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly,, With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly. With her consent, when at the time of giving such consent by reason of unsoundness of mind or intoxication or the administration by him personally or through another or any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly. With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual inter-course necessary to the offence of rape. Exception.—Sexual inter-course by a man with his own wife, the wife not being under fifteen years of age, is not rape. 49. Clause sixthly to Section 375 provides that if a person indulges into sexual inter-course with a woman, with or without her consent, when she is under sixteen years of age, then he commits the offence of rape. The accused Mela Ram and Mani Ram in the circumstances have rightly been convicted for the offence punishable under Section 376 of the Indian Penal Code. 50. In view of the evidence discussed above, there is no question of wrongful confinement of the victim in the room of Mani Ram as she went and stayed back in that room of her own free will and accord. 51. In the facts and circumstances of the case, the conviction of the accused Mani Ram and Mela Ram under Section 376 IPC is liable to be maintained. However, they are entitled to be acquitted for offence under Section 342 of the Code. 52. 51. In the facts and circumstances of the case, the conviction of the accused Mani Ram and Mela Ram under Section 376 IPC is liable to be maintained. However, they are entitled to be acquitted for offence under Section 342 of the Code. 52. So far accused Ramila is concerned, there is no abetment of the offence of rape on her part as the victim not only visited accused Mani Ram and Mela Ram in their room of her own free will and volition but also consented to the sexual activity they had with her. It is admitted position that Ramila was not present when sexual activity took place. She cannot be held to be responsible if victim chose to stay back in the room of Mani Ram. Accused Ramila in the facts and circumstances of the case is entitled to acquittal. 53. In result, appeal Ramila v. State (95 of 2000) is allowed. The conviction of accused Ramila is quashed and set aside. She is acquitted of the charges framed against her. Her bail bonds are discharged. 54. Appeal of Mani Ram and Mela Ram (185 of 2000) is partly allowed. Conviction of the accused for the offence under Section 342 is quashed and set aside. However, their conviction under Section 376 is maintained. Taking into consideration the fact that victim though under sixteen years of age was of mature age and the fact that sexual inter-course took place with her consent, the sentence imposed by the learned Sessions Judge is modified and reduced to three years rigorous imprisonment and fine of rupees 1,000. In case accused (Mani Ram and Mela Ram) fail to pay the fine imposed, if not already paid, they shall undergo further rigorous imprisonment for six months. The case property shall be dealt with in accordance with the orders of learned Sessions Judge. Appeal partly allowed.