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2004 DIGILAW 348 (HP)

ASHOK KUMAR v. STATE OF H. P.

2004-12-23

M.R.VERMA

body2004
JUDGMENT M.R. Verma, J. :- This appeal is directed against the judgment dated 27.12.2003 rendered by the learned Sessions Judge, Kinnaur at Rampur whereby the appellant/accused (hereinafter referred to as the accused) has been convicted under Sections 363, 366 and 376 I.P.C. and has been sentenced as follows :- Sr. No. Penal Provision Sentence imposed 1 Section 363, IPC Simple imprisonment for 7 years and fine Rs. 5000/- and in default of payment of fine further simple imprisonment for six months. 2. Section 366 IPC Simple imprisonment for 7 years and fine Rs. 5000/- and in default of payment of fine further simple imprisonment for six months. 3. Section 376 IPC Simple imprisonment for 7 years and fine Rs. 5000/- and in default of payment of fine further simple imprisonment for six months. The different terms of imprisonment awarded to the accused have been made to run concurrently. 2. Brief facts leading to the filing of the present appeal are that on 15.4.1996 Devi Ram (PW-2) lodged F.I.R. Ext. PW-2/A at Police Station, Bhawanagar under Section 363 I.P.C. on the allegations that his daughter, the prosecutrix (PW-7) had been residing with his sister at Bhawanagar to learn knitting work. The prosecutrix used to go to meet PW-1 once in two or three months and after residing there for about a week would return to Bhawanagar. However, during the period of two months preceding the lodging of the F.I.R. she did not go to meet her father, therefore, he came to Bhawanagar. His sister Swal Devi, however, informed him that the prosecutrix had gone to his house on 15.4.1996. It led PW-2 to suspect that somebody had kidnapped the prosecutrix and he started to enquire about her from his relations and learnt on 22.5.1996 that she had been kidnapped by the accused. During investigation the prosecutrix was recovered from the house of the accused vide Memo Ext. PW-2/B and her person was handed over to her father PW-1 vide Memo Ext. PW-2/C. The prosecutrix was medically examined by Dr. Suman Thakur (PW-10) on 27.5.1996 who opined that there was nothing to suggest that fresh sexual intercourse had taken place. She referred the prosecutrix for determination of her skeleton age and also took in possession her wearing apparels i.e. one Salwar and one Kameez for being sent to the chemical examiner for analysis. Suman Thakur (PW-10) on 27.5.1996 who opined that there was nothing to suggest that fresh sexual intercourse had taken place. She referred the prosecutrix for determination of her skeleton age and also took in possession her wearing apparels i.e. one Salwar and one Kameez for being sent to the chemical examiner for analysis. As per the opinion of the Radiologist, the age of the prosecutrix was 12/4 to 15 years. PW-10 accordingly issued M.L.C. Ext. PW-10/B. On arrest, the accused was also got medically examined and as per opinion given by Dr. Lalit Mahajan (PW-7) vide M.L.C. Ext. PW-7/A the accused was found capable of performing sexual act. PW-7 also took in possession swab, pubic hair, underwear and blood of the accused for the purpose of analysis. Age certificate Ext, PW-2/D certifying the date of birth of the prosecutrix as 6.6.1982 was also taken in possession vide Memo Ext. PW-2/E and the age certificate of the accused Ext. PW-3/A was taken in possession vide Memo Ext. PW-3/B. On analysis of the articles preserved and sent for analysis Deputy Director, State Forensic Science Laboratory Junga vide his report Ext. PW-12/A opined that blood was found on the underwear of the accused but was insufficient for further tests. Nothing incriminating was detected on other articles. On completion of the investigation a charge-sheet was submitted against the accused and he came to be tried on a charge under Sections 363, 366 and 376 I.P.C. 3. To prove the charge against the accused, prosecution examined 12 witnesses. Statement of the accused was recorded under Section 313 Cr.P.C. wherein he claimed to be innocent and having been falsely implicated in the case and examined two witnesses in his defence. 4 On consideration of the material on record, the trial Court found the accused guilty and accordingly convicted and sentenced him, as aforesaid. Hence, this appeal by the aggrieved accused. 5. I have heard the learned Counsel for the accused and the learned Deputy Advocate General for the respondent/State and have also gone through the records. 6. The learned Counsel for the accused assailed the impugned conviction on the following grounds :- 1. there being no cogent and reliable evidence to prove the age of the prosecutrix. 2. conduct of the prosecutrix and her father (PW-2); and 3. the prosecution version having not been supported by medical evidence. Ground No. 1: 7. 6. The learned Counsel for the accused assailed the impugned conviction on the following grounds :- 1. there being no cogent and reliable evidence to prove the age of the prosecutrix. 2. conduct of the prosecutrix and her father (PW-2); and 3. the prosecution version having not been supported by medical evidence. Ground No. 1: 7. It was contended by the learned Counsel for the accused that there is no reliable evidence to prove that the age of the prosecutrix was 14 years of less than 18 or 16 years at the time of the alleged occurrence. It was further contended that the age certificate Ext. PW-2/D allegedly taken in possession by the police is neither in the form nor issued by the competent authority and the record on the basis of which this certificate has been issued has not been produced, therefore, no reliance can be placed on Ext. PW-2/D. It was also contended that the Radiologist, who has given opinion about the age of the prosecution, has not been examined and, thus, the opinion is not proved in accordance with law and cannot be taken into account. In any case, the opinion of the Radiologist about the age of the prosecutrix is that at the relevant time the prosecutrix was 12Y2-15 years of age and it is well settled that in such opinion a margin of two years is to be given either way and, if so, the prosecutrix as per this opinion can be said to be more than 16 years of age at the relevant time and, thus, capable of giving consent for the sexual intercourse. It was further contended that apart from the aforesaid evidence there is no cogent and reliable evidence to prove the age of the prosecutrix, therefore, it could not be said that at the time of the alleged occurrence she was below 18 years of age, hence, not a minor at the relevant time. 8. There is no dispute that Ext. PW-2/D showing the date of birth of the prosecutrix as 6.6.1982 issued by Kirpa Ram (PW-6) has not been issued on the basis of his personal knowledge nor he had any personal knowledge about the age of the prosecutrix. As admitted by PW-6, he issued this certificate on the basis of the record of the Panchayat. PW-2/D showing the date of birth of the prosecutrix as 6.6.1982 issued by Kirpa Ram (PW-6) has not been issued on the basis of his personal knowledge nor he had any personal knowledge about the age of the prosecutrix. As admitted by PW-6, he issued this certificate on the basis of the record of the Panchayat. Said record of the Panchayat has not been produced in evidence or for scrutiny of the Court, therefore, this certificate cannot be readily accepted as a substantial piece of evidence. 9. It may also be pointed out that there is no dispute that death and birth of a person in a Panchayat is recorded in the Death and Birth Register maintained by the Panchayat which has different columns including one meant for mentioning the date of birth as reported to the Panchayat, Therefore, the best evidence to prove the entries in the Death and Birth Register was to produce a certified copy of such Register or the original Register itself. 10. It is admitted case of the prosecution that the skeleton age of the prosecutrix was determined by .a Radiologist. However, neither such Radiologist nor the original opinion given by him has been produced. Thus, the accused had no opportunity to cross-examine the expert opinion about the skeleton age of the prosecutrix therefore the opinion about the skeleton age of the prosecutrix as given by Dr. Suman Thakur (PW-10) in the MLC Ext. PW-10/B cannot be relied upon to determine the age of the prosecutrix at the relevant time. 11. It may, however, be pointed out that opinion about the skeleton age of a person being an opinion cannot be treated as a substantial evidence but can be looked into only as a corroborative piece of| evidence. It may also be pointed out that it cannot be said that the opinion about the skeleton age of a person or birth entries in a particular Register are the only evidence to prove the age of a person. It may also be pointed out that it cannot be said that the opinion about the skeleton age of a person or birth entries in a particular Register are the only evidence to prove the age of a person. In my view the father or the mother of a person are the best witnesses to state about the age of their child and if evidence of either of them about the age of their child is un-rebutted and corroborated by other evidence of the relatives or the concerned person there is no reason to disbelieve the statement of either or both of the parents regarding age of their child. 12. In the case in hand, father (PW-2) of the prosecutrix while lodging the FIR has specifically stated that the prosecutrix thus was aged about 14 years. In his evidence he has specifically and un-ambitiously stated that the age of the prosecutrix was 14 years when the accused took her to village Purbani. When cross-examined on this aspect, he has stated that name of mother of the prosecutrix is Lachhi Devi and he was married to Lachhi Devi in the year 1981. He has further stated that the prosecutrix was born after one year of his marriage. On the basis of this data, the age of the prosecutrix at the relevant time works out to 14 years. The aforesaid statement of PW-2 remains un-scattered in his cross-examination and there is no suggestion to him that the above statement made by him on oath is wrong or that the prosecutrix at the relevant time was more than 14 years of age. 13. The prosecutrix (PW-1) has also specifically stated that in the year 1996 (i.e. the year of the occurrence) she was residing at Bhaba Nagar and was 14 years of age and in the cross-examination she has reaffirmed it there is nothing in the cross-examination which may render her statement doubtful. No doubt, a person having not seen his or her birth cannot be said to have the personal knowledge of his or her date of birth but this does not mean that a person will never acquire knowledge about his or her age. On the contrary, everyone is expected to know his or her age. It cannot, therefore, be said that the version of the prosecutrix about her age at the relevant time has to be ignored. 14. On the contrary, everyone is expected to know his or her age. It cannot, therefore, be said that the version of the prosecutrix about her age at the relevant time has to be ignored. 14. Rattan Singh (PW-8) is a close relative of the father of the prosecutrix, being husband of his sister. The prosecutrix had been residing in his house for quite some time. He has stated that the prosecutrix was born in the yet 1982. No attempt was made to challenge this statement by way of further and appropriate cross-examination by the accused nor it is his case in his statement under Section 313, Cr. P.C. that the prosecutrix at the relevant time was more than 16 or 18 years of age. 15. Thus, in view of the statement of the father of the prosecutrix | regarding her age duly corroborated by the prosecution and PW-8, it is proved beyond any reasonable doubt that the prosecutrix at the relevant time was 14 years of age and had not attained the age of discretion or majority. Therefore, the contention to the contrary cannot be sustained. Ground No. 2 : 16. It was contended by the learned Counsel for the accused that the prosecutrix when allegedly removed by the accused to his house in Purbani, she did not protest and raise cries not did she do so on the way to attract people nor she complained to any one while allegedly in the house of the accused about her forcible removal. Similarly, she did not complain to any one during the period of her stay in the house of the accused about the alleged commission of rape. It was also contended that the prosecutrix during this period had admittedly accompanied the accused to Rekong Peo and then to the house of the accused but during this period she did not complain to anyone about the alleged kidnapping and rape whereas in the ordinary course had any offence been committed against her she had the opportunities to have complained, therefore, the version of the accused that the prosecutrix herself had gone to the house of the accused is probable and he could not have been convicted. 17. 17. A perusal of the statement of the prosecutrix reveals that in the month of 1996 the accused took her to Purbani where he committed forcible sexual intercourse with her after(?) breaking string of her Salwar and when she raised the voice no person heard it. Then the accused brought her to Rekong Peo under the pretext that he would marry her but he did not do so and took her back to Purbani and thereafter repeatedly committed forcible sexual intercourse with her and did not allow her to go anywhere and kept her in his house for about a month till her father and the police officials came there and rescued her. In her cross-examination she has stated that when she was being removed to Purbani she cried but nobody came forward to help her and thereafter she became unconscious till they reached Purbani where initially for a period of about 6-7 days she used to weep and cry but nobody came forward for her help as the house of the accused is situate at a lonely place and no other house was nearby. Her aforesaid evidence does not appear to have been controverted by anything in her cross-examination. On the contrary, the accused in conformity with his defence in his statement under Section 313, Cr.P.C. put suggestion to her in the cross-examination that she had voluntarily gone to the house of the accused and that she intended to marry the accused. Not only by this suggestion but also specifically stating it in his statement under Section 313, Cr.P.C. by necessary implications the accused had admitted that the prosecutrix was in his house and was recovered from there by a police party though he claims that at the time of such recovery he was not in the house. Thus, there is nothing in the conduct of the prosecutrix of which the accused may be given any benefit. 18. It was further contended by the learned Counsel for the accused that even according to the prosecution the prosecutrix was missing from her house since 15.4.1996 and the matter was reported to the police on 22 5.1996. In between, the father of the prosecutrix nor took immediate steps to trace her out. 18. It was further contended by the learned Counsel for the accused that even according to the prosecution the prosecutrix was missing from her house since 15.4.1996 and the matter was reported to the police on 22 5.1996. In between, the father of the prosecutrix nor took immediate steps to trace her out. This conduct on the part of PW-2 by necessary implications means that the case of the prosecution is false and the accused was implicated in the case when he refused to marry the prosecutrix who wanted to marry him. 19. I do not find any substance in the aforesaid contentions. The prosecutrix was not residing with her father (PW-2) but her relatives at Bhaba Nagar and PW-2 used to meet her once in a month or so. When he went to the house of his relatives only then he learnt that his daughter was not present there. PW-8 has specifically stated that when PW-2 came to their house he was informed by him that the prosecutrix has gone to his (PW-2) house, however, PW-2 informed that the prosecutrix had not reached his house. Thereafter they started searching for the prosecutrix but she could not be traced. At a late stage it was learnt that the accused had removed the prosecutrix, therefore, they went to the residential house of the accused where his mother was present and she told that the accused and her husband had gone to Rekong Peo. It was thereafter that the report was lodged with the police. PW-2 has also stated that his sister had enquired from him whether the prosecutrix had come to his house or not and thereafter he started tracing out his daughter but she could not be traced for about one month. Thereafter, he was informed that she was at Purbani and he lodged the report with the police. Thus, there is nothing in the conduct of PW-2 on the basis of which the contention raised for the accused may be sustained. Therefore, the contention raised for the accused is not sustainable. Ground No. 3: 20. Thereafter, he was informed that she was at Purbani and he lodged the report with the police. Thus, there is nothing in the conduct of PW-2 on the basis of which the contention raised for the accused may be sustained. Therefore, the contention raised for the accused is not sustainable. Ground No. 3: 20. It was contended by the learned Counsel for the accused that it is evident from the MLC Ext, PW-10/B regarding medical examination of the prosecution read with the statement of PW-10 that no injury marks whatsoever were found on the private parts or any other part of the body of the prosecutrix and that the opinion of PW-10 is that there was nothing to suggest that fresh sexual intercourse had taken place with the prosecutrix. Moreover, on chemical analysis of the wearing apparels of the prosecutrix nothing incriminating was detected there in vide report Ext. PW-12/A, therefore, in view of the medical evidence and the report Ext. PW-12/A it cannot be said that the accused had committed forcible sexual intercourse with the prosecutrix. 21. A perusal of MLC Ext. PV 10/B, no doubt, reveals that injuries on face, breast and thighs of the osecutrix were not found. Similarly, no injuries were found in labia, majora/minora or vagina but her hymen was found ruptured. The opinion by PW-10 in the MLC that there was nothing to suggest that fresh sexual intercourse had taken place with the prosecutrix does not rule out the subjecting of the prosecutrix to sexual intercourse during the period when she was in the house of the accused for the simple reason that the opinion is not to the effect that there was no evidence of sexual intercourse having been committed with the prosecutrix at any point of time. On the contrary, PW-10 has stated that in view of the presence of tenderness in the vagina of the prosecutrix and her hymen being ruptured sexual intercourse might have been committed with the prosecutrix. Thus, in her opinion on oath, PW-10 does not rule out the act of sex with the prosecutrix. 22. Finding no other struggle injury on the person of the prosecutrix is not suggestive of the fact that she was not subjected to sexual intercourse. Thus, in her opinion on oath, PW-10 does not rule out the act of sex with the prosecutrix. 22. Finding no other struggle injury on the person of the prosecutrix is not suggestive of the fact that she was not subjected to sexual intercourse. The prosecutrix had admitted in her cross-examination that she did not inflict tooth or nail injuries on the accused nor she sustained injury on her person but she tried to save herself and also cried but accused did not leave her and committed rape on her which he continued to commit till she resided in his house. 23. Absence of anything incriminatory on the wearing apparels of the prosecutrix also does not support the theory that she was not subjected to sexual intercourse primarily for the reason that there is nothing cogent and reliable on record to suggest that the Salwar and the shirt the prosecutrix was wearing at the time of her medical-examination were the same which she was wearing as and when she subjected to sexual intercourse by the accused. The learned Counsel for the accused to show that the Salwar and shirt sent for chemical analysis were the same which the prosecutrix was wearing at the time of the commission of rape referred to the statement of the prosecutrix wherein she had stated that the clothes were the only clothes which she had worn at the time of the occurrence which were only Salwar and shirt because she was minor at the time of the incident. This does not at all mean that such clothes were the clothes which was wearing at the time of medical examination and were taken in possession by PW-10. It cannot be inferred from her statement that the clothes the prosecutrix was wearing as and when she was subjected to rape were never cleaned/washed and it is unimaginable that the prosecutrix continued to wear the same Salwar and shirt without washing the same for a period of more than one month. Therefore, absence of anything incriminating on her Sa/war and shirt is of no help to the accused. 24. In view of the above discussion, the contention for the accused that the medical evidence is contrary to the version of the prosecutrix or belies her version cannot be sustained. 25. Therefore, absence of anything incriminating on her Sa/war and shirt is of no help to the accused. 24. In view of the above discussion, the contention for the accused that the medical evidence is contrary to the version of the prosecutrix or belies her version cannot be sustained. 25. It may be pointed out here that now it is well settled that while appreciating the testimony of a prosecutrix in a rape case, the Court must remain alive to the fact that ho self-respecting woman muchless an unmarried girl would come forward to make a humiliating statement against her honors as in a rape case. Therefore, the Court should not find any difficulty to act on the testimony of the prosecutrix who is not an accomplice but victim of crime and conviction can be based on her confidence inspiring and reliable statement. If for some reason the Court is hesitant to act on the sole testimony of the prosecutrix it may look into other evidence which may lend assurance to her testimony. 26. As seen hereinabove, the statement of the prosecutrix is confidence inspiring and supports the prosecution case as a whole. It is further corroborated by the evidence already referred to herein above. There is no reason to disbelieve the prosecution case which is fully proved in view of the evidence on record. Therefore, the impugned conviction and sentence do not call for any interference by this Court. 27. As a result, this appeal merits dismissal and is accordingly dismissed.