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2010 DIGILAW 346 (HP)

State of Himachal Pradesh v. Karam Singh

2010-02-25

RAJIV SHARMA, SURJIT SINGH

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JUDGMENT : SURJIT SINGH, J. 1. Judgment dated 1.8.1997 of learned Sessions Court, whereby Respondent Karam Singh, who was tried for an offence, u/s 376 Indian Penal Code, had been acquitted, is assailed by the State in the present appeal. State seeks reversal of the judgment of trial Court and conviction of the Respondent for the said offence. 2. On 9.5.1994, prosecutrix went to the Police Station and lodged report Ext. PW6/A that about 8 months back, when she was returning home from village Dhani, where she had gone for tow days to stay with her sisters, who are married in that village, and was passing through a forest, Respondent appeared from behind and forcibly carried her on the lower side of a path into the bushes and committed rape on her. She was got medically examined and per medical certificate Ext. PW2/B, conducted on 11th May, 1994 by PW-2 Dr. R.G. Sood, she was carrying 30 weeks and 5 days pregnancy. Evidence regarding her age was collected from the school she had been studying in and also from the Panchayat, within the area of which her parental house is situate. As per these documents, her date of birth is 15.2.1979. Her skeletal age was also got determined. According to PW-1 Dr. Rama Singh, Radiologist, her age was 17 to 19 years. According to Dental Surgeon PW-3 Dr. S.C. Aggarwal, her age was between 15 and 16 years. 3. Trial Court after the commitment of the case to it, charged the Respondent with offence, u/s 376 Indian Penal Code. He pleaded not guilty. 4. Prosecution examined the prosecutrix as PW-8, her mother Gango Devi as PW-9, her sister Ram Payari as PW-12 and one Besari Devi, who was allegedly accompanying the prosecutrix, as PW-11. 5. Respondent denied that he had had sexual intercourse with the prosecutrix or he was responsible for the pregnancy she was found to be carrying, during the course of investigation. 6. Trial. Court came to the conclusion that prosecutrix was more than 16 years of age and she appeared to be a consenting party to the coitus. 7. We have heard the learned Additional Advocate General as also the Learned Counsel for the Respondent. 8. 6. Trial. Court came to the conclusion that prosecutrix was more than 16 years of age and she appeared to be a consenting party to the coitus. 7. We have heard the learned Additional Advocate General as also the Learned Counsel for the Respondent. 8. Though we do not find ourselves in agreement with the finding of the trial Court that the prosecutrix was more than 16 years of age, in view of the unchallenged testimony of the mother of the prosecutrix, namely PW-9 Smt. Gango Devi that the age of the prosecutrix was 15 years at the time she made the statement in the Court, which is corroborated by the entries in the school and panchayat rerord, as also by the opinion evidence of Dental Surgeon PW-3 Dr. S.C. Agarwal and also we do not agree with the finding that the coitus was the result of consent of the prosecutrix, we are not inclined to interfere with the judgment of acquittal, for different reasons, which we are noticing in the succeeding paragraphs. 9. According to the prosecutrix, the incident had taken place 8 months prior to her lodging the report. Report was lodged on 9.5.1994. Her medical examination was conducted on 11.5.1994 and per certificate Ext. PW2/B, issued by PW-2 Dr. R.G. Sood, she was carrying 30 weeks and 5 days pregnancy on the day of her medical examination, i.e. 11.5.1994. If we convert this period of gestation into months, it comes to around 7 months, whereas as per testimony of the prosecutrix the period should have been 8 months. 10. Again, according to the mother of the prosecutrix, namely PW-9 Smt. Gango Devi, prosecutrix had gone to village Dhani two days prior to Diwali in the company of PW-11 Besari Devi. Diwali in the year 1993 was observed on 13th November. Now, if we count the period from 13th November, 1993 onwards up to the date of medical examination of the prosecutrix, it comes to 25 weeks and 4 days only. Thus, the statement of the mother of the prosecutrix also does not fit into the prosecution version, as regards the date of the alleged rape. 11. Sister of the prosecutrix, namely PW-12 Ram Payari, appeared in the witness box on 24th April, 1996, and stated that the prosecutrix nad visited her village Dhani about two years back. Thus, the statement of the mother of the prosecutrix also does not fit into the prosecution version, as regards the date of the alleged rape. 11. Sister of the prosecutrix, namely PW-12 Ram Payari, appeared in the witness box on 24th April, 1996, and stated that the prosecutrix nad visited her village Dhani about two years back. That means, she visited her sometime around the month of April, 1994. Thus, her statement also does not fit into the prosecution version that the Respondent was responsible for the pregnancy, which the prosecutrix was carrying at the time of her medical examination, per certificate Ext. PW2/B. 12. Hon'ble Supreme Court in the matter of Vijayan v. State of Kerala, (2009) 3 SCC 585, the facts whereof were similar to the facts of the case in hand, has held that where the prosecutrix lodges report 7 months after the alleged incident and is carrying seven months pregnancy and the explanation offered by her for delayed reporting is that she had been promised marriage by the accused and no DNA test has been conducted, it would not be safe to act on her sole testimony. In view of the above stated position, appeal is dismissed.