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2005 DIGILAW 480 (HP)

NARESH KUMAR v. STATE OF H. P.

2005-12-19

ABHILASHA KUMARI, LOKESHWAR SINGH PANTA

body2005
JUDGEMENT Per Abhilasha Kumar, J.: This criminal appeal is directed against the judgment dated 27th July, 2002 passed by the learned Sessions Judge, Solan whereby Naresh Kumar- appellant (hereinafter referred to as the accused) has been convicted under Section 376 of the Indian Penal Code. The learned Sessions Judge, Solan has sentenced the accused to undergo rigorous imprisonment for ten years and pay a fine of Rs.20,000/- and in default of payment of fine to further undergo rigorous imprisonment for one year. 2. Briefly stated, the facts of the case, as emerging form the record, are that on 14th May, 2001 one Anupama, the prosecutrix, who was 15 years of age and studying in the 8th Class in government High School Pwab, had gone to the Ghasni (grass land) to graze cattle and collect wood for fuel. When she returned home at about 12 noon with the cattle she found that four of the cattle heads had not reached the house and therefore, she again returned back to the Ghasni to locate the missing cattle. The accused, who is also stated to be a resident of the same village, was also grazing his cattle there and when the prosecutrix reached the Ghasni. he came from behind near the Ghasni and gripped the prosecutrix by the arms and threw her on the ground. Thereafter, he loaded himself on her body and committed forcible sexual intercourse with her. The prosecutrix raised shrieks but the accused did not release her from his grip. The father of the prosecutrix came there in the meantime and gave three slaps to the accused and saved the prosecutrix from his clutches. Thereafter, the prosecutrix was taken to the Police Station, Darlaghat for registration of the case and FIR. No.24/2001 dated 14th May, 2001 under Section 376 I.PC. was lodged at Police Station, Darlaghat, Tehsil Arki, District Solan, Himachal Pradesh. The charge was framed against the accused on 15th October, 2001 The accused did not plead guilty and claimed to be tried. The learned Sessions Judge convicted and sentenced the accused, as aforesaid. Hence, the present appeal. 3. In support of the case of the prosecution 13 witnesses were produced and documentary evidence was tendered. The accused also produced two witnesses in his defence. 4. The learned Sessions Judge convicted and sentenced the accused, as aforesaid. Hence, the present appeal. 3. In support of the case of the prosecution 13 witnesses were produced and documentary evidence was tendered. The accused also produced two witnesses in his defence. 4. We have heard the learned counsel for the accused and the learned Additional Advocate General for the respondent/State and have also gone through the entire material on record. 5. In support of the present appeal, the learned counsel for the accused has argued that although the prosecutrix is admittedly below the age of consent i.e. 16 years but a close reading of the evidence on record reveals that she was a consenting party. The learned counsel for the accused has further argued that although the offence under Section 376 I.PC. is made out keeping in view the provisions of Section 375 I.PC. and the medical evidence, due to the fact that the prosecutrix is under 16 years of age, a lenient view be taken regarding sentence imposed upon the accused since at the time of the incident he was only 20 years of age and he has remained in custody from 14th July, 2001 and is still in jail. In this view of the matter, the sentence of 10 years with fine of Rs.20,000/- is on the harsher side and the same may be reduced to the statutory minimum i.e. 7 years and the amount of fine may also be reduced, looking to the poor financial condition of the accused and his family. In support of this contention, the learned counsel for the accused has drawn our attention to various aspects of the case. According to him, when the prosecutrix was medically examined, the doctor examining her found no marks of injury on her person. The Medico Legal Certificate in this regard is Ext. PA. Moreover, there were no stains of mud of grass and no tear on the clothes. Referring to the statement of the prosecutrix, who has appeared as PW-2, he has stressed on her statement in cross-examination where she has stated that "I went to the Police Station with the same clothes which I had worn at the time of sexual attack by the accused. The place of sexual assault was dusty. There were pebbles at the place of occurrence. The place of sexual assault was dusty. There were pebbles at the place of occurrence. For about one hour I was made to lie on the ground by the accused. He continued doing Bura Kaam for one hour. By Bura Kaam I mean to say Balatkar. I tried to get myself loosened from his grip. I suffered injuries on my left side of the back. I did not suffer any injury on my heaps and thighs." According to the learned counsel for the accused, it is not possible for the offence of rape to take place for the duration of one hour, and that too in an open Ghasni at 1 P.M., unless the prosecutrix herself was a consenting party. However, the learned counsel for the accused fairly states that the statutory offence of rape under Section 376 I.P.C. is made out due to the fact that the prosecutrix is below 16 years of age but looking to the evidence on record he only confines his prayer to the reduction of the sentence and the amount of fine imposed by the learned Sessions Judge. 6. On the other hand, the learned Additional Advocate General for the respondent/State contends that the accused has committed a heinous crime and since he is stated to be distantly related to the prosecutrix no leniency should be shown to him. He urged that it is fit case where the sentence should be enhanced to life imprisonment rather than be reduced as prayed for by the learned counsel for the accused. No case law has been cited by either side in support of their contentions. 7. We have given our careful consideration to the respective contentions raised by both the parties and thoroughly scrutinized the evidence and material on record. The prosecutrix is admittedly below 16 years of age. The abstract of the Family Register Ext. PG on record shows her date of birth to be 18th January, 1986. This is corroborated by the Birth certificate Ext. PH dated 7th August, 2001 issued under Section 12/17 of the Birth & deaths registration Act, 1969 under the seal and signatures of the concerned Gram Panchayat Avam Vikas Adhikari, Parnoo (Kanswala),Tehsil Arki, District Solan. PG on record shows her date of birth to be 18th January, 1986. This is corroborated by the Birth certificate Ext. PH dated 7th August, 2001 issued under Section 12/17 of the Birth & deaths registration Act, 1969 under the seal and signatures of the concerned Gram Panchayat Avam Vikas Adhikari, Parnoo (Kanswala),Tehsil Arki, District Solan. In this certificate also the date of birth of the prosecutrix is 18th January, 1986, the incident took place on 14th May, 2001 on which date the prosecutrix was 15 years 3 months and a few days old, admittedly below the age of consent i.e. 16 years, as envisaged by the provisions of section 375 (sixthly). 8. Coming to the testimony of the prosecutrix. it is well settled by a catena of judicial pronouncements that the version of the victim in an offence under Section 376 I.P.C. should not be equated to that of an accomplice and should be believed since the victim an give the best testimony of what was perpetrated on her. In the present case, the prosecutrix is a young girl below the age of 16 years and comes from a rural back ground, it is highly unlikely that she would state falsely about the offence and the trauma she was subjected to since the same could also cast a .social stigma upon her. A scrutiny of the statement of the prosecutrix reveals that the incident did take place in the manner in which she has stated. This is further fortified by the Medico Legal certificate on record and the statement of Doctor Mamta Mahajan (PW-1), who examined her. The relevant parts of which are reproduced below ".....Clothes were untiedy. No stains of blood, grass were found. No tear on clothes. Blood stains and whitish stains (dried) were noticed on the Salwar of the prosecutrix. Body examination. No injuries were noticed. Genital examination: Pubic hair scanty. Some matted, perineum, No injury seen On separating labia majora scanty amount of blood oozing from hymen tear. Hymen contused posteriorly, Hymen tear seen posteriorly....." "When I found form the examination of the prosecutrix that she had been subjected to intercourse and penetration had occurred comspicuously...." "The rupture of the hymen and other circumstances revealed that she was sexually assaulted." "I examined her on 14.5.2001 and she appeared to have been subjected to sexual assault on the same day". As far as the contention of the learned counsel for the accused that the prosecutrix was a consenting party is concerned, the same is immaterial and irrelevant since admittedly she is below 16 years of age. The only submission made by the learned counsel for the accused is that the sentence of 10 years imprisonment and fine of Rs.20,000/-, in default of which the accused shall undergo rigorous imprisonment for one year, is too harsh. Be that as it may, a close scrutiny of the evidence and the statement of the prosecutrix real that the offensive act is alleged to have continued for the duration of one hour and that too at 1 P.M. in the after noon. Moreover, there were no signs of struggle or injuries on the body of the prosecutrix when she was medically examined and neither were her clothes torn. The father of the prosecutrix (PW-3) who is stated to have gone to Ghasni after the prosecutrix went back to bring the missing cattle because he realized that a panther was found prowling in the Ghasni" some time back. It seems improbable that a panther would be prowling in the Ghasni at 1 P.M. On his going back he heard the cries of his daughter and found her to be gripped by the arm by the accused. The father of the prosecutrix gave three slaps to the accused and the prosecutrix told him that she has been subjected to forcible sexual intercourse by the accused. In view of the fact that the plea of consent is immaterial and not admissible in law keeping in view the age of the prosecutrix, even though we do find that the prosecution evidence on record is a little shaky in this direction, we do not wish to elaborate further upon this aspect. Admittedly, the learned Additional Advocate General has prayed for enhancement of sentence to life imprisonment. However, no appeal has been filed by the State of Himachal Pradesh for such enhancement, therefore, the plea of enhancement of sentence of the accused cannot be accepted. On the question of sentence, the provisions of Section, 376(1) I.P.C. are reproduced below.- "376. Admittedly, the learned Additional Advocate General has prayed for enhancement of sentence to life imprisonment. However, no appeal has been filed by the State of Himachal Pradesh for such enhancement, therefore, the plea of enhancement of sentence of the accused cannot be accepted. On the question of sentence, the provisions of Section, 376(1) I.P.C. are reproduced below.- "376. Punishment for rape.-(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the workman raped is his own wife and is not under 12 years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years." The minimum term for which an accused shall be punished under this Section is seven years but may extend to a period of 10 years or life. The learned counsel for the accused has urged that since the accused was only 20 years of age when the incident took place and he has been in Jail since 14th July, 2001 a lenient view be taken. The accused belongs to a very poor family and his is in custody and the amount of fine imposed by the learned Sessions Judge is also on the higher side. We have given our careful consideration to this prayer of the learned counsel for the accused and are of the opinion that the interest of justice would be met if the sentence of the accused is reduced to rigorous imprisonment for 7 years from 10 years and the amount of fine to Rs.5000/- from Rs.20,000/-, in default of which he will further undergo simple imprisonment of six months. 9. As far as offence of rape is concerned, we find that the same is made out against the accused. The conviction of the accused under section 376 I.P.C., is, therefore, upheld. However, the sentence is modified as indicated above. 9. As far as offence of rape is concerned, we find that the same is made out against the accused. The conviction of the accused under section 376 I.P.C., is, therefore, upheld. However, the sentence is modified as indicated above. 10.The appeal is, therefore, partly allowed to the extent indicated above.