JUDGMENT : V.K. Sharma, J. Being aggrieved by his conviction and consequent imposition of sentence of rigorous imprisonment for seven years and fine of Rs. 10,000/- and in default further rigorous imprisonment for six months for the offence u/s 376 of the Indian Penal Code (in short 'IPC') vide the impugned judgment/order dated 18/20.10.2010, passed by the learned Additional Sessions Judge, Fast Track Court, Shimla, Himachal Pradesh, in Sessions Trial No. 27-S/7 of 2009, the appellant, who shall hereinafter be referred to as 'the convict', is in appeal before this Court. The law enforcing machinery was set in motion in this case by the convict himself, being the complainant, who submitted complaint dated 04.07.2009, Ex. PW-7/A, to the learned Sub Divisional Judicial Magistrate, Rohru, District Shimla, Himachal Pradesh, which though later on recoiled on him as well, as would be seen hereinafter, and is to the following effect, on the basis of which FIR No. 91 of 2009, Ex. PW-7/B, dated 07.07.2009, under Sections 363, 372, 373 and 109 IPC, which is re-production of the complaint itself, was registered at PS Rohru: Sir, The complainant submits as under:- 1. That the complainant is the permanent resident of village Khalai, Sub Tehsil Tikkar Tehsil Rohru, Distt. Shimla H.P. and is married and has got two daughters Smt. Ram Kali who is married and is of 26 years of age and other daughter Kumari Raksha who is studying in 6th class in Govt. Secondary School Tikker and the complainant is employed as Chowkidar on regular basis in the H.P.P. W.D. Sub Division Tikkar for the last more than 15 years and has got rented house at Tikker proper where the complainant reside with his family members. 2. That Smt. Shanti is married at village Bardhar, in Tehsil Shilai Distt. Sirmour and she has got three daughters and two sons and her husband is a black smith having limited income. That Smt. Shanta who is closely related to the complainant bought her minor daughter (name withheld to protect the identity of the prosecutrix, who shall hereinafter be called as 'P') to the complainant 9 years before and has shown her helplessness to provide clothing, other necessities of life such as food etc. That Smt. Shanta who is closely related to the complainant bought her minor daughter (name withheld to protect the identity of the prosecutrix, who shall hereinafter be called as 'P') to the complainant 9 years before and has shown her helplessness to provide clothing, other necessities of life such as food etc. and requested the complainant being closely related to maintain her daughter and promised that in later period of life she will be maintaining the complainant and his wife at the time of odd hours. On this the complainant took the custody of the minor through her mother Shanti Devi 9 years before and kept her as his daughter with him at -Tikker and provided every necessities of life and at present she was living with the complainant for the last more than 9 years and is of the age of about 15 years. 3. That the complainant use to purchase milk from the accused No. 1 as she has kept Jarsi Cows at her village at Thana as such she is to prove daily some time 1/2 Kg. sometime 1 Kg. Milk to complainant and use to talk with the minor daughter 'P' oftently. 4. That the accused No. 1 has got married her one daughter Smt. Premlata at village Kembla Tehsil Kembla Distt. Rohtak Haryana as was told by accused Smt. Subdha and this marriage of her daughter has taken place two years before and Smt. Subdhas son in law from Haryana used to come in Thana village of Sub Tehsil Tikker, Distt. Shimla H.P. 5. That the accused No. 1 Smt. Subdha use to take 'P' to her village at Thana oftently and some time use to stay at her residence Thana and she is to give every sought of allurement to her good company. 6. That the accused No. 1, 2, 3 and 4 thereafter one and a half month before hatched a conspiracy to kidnap 'P' and to take her to Haryana and to do bargaining to get her married with an old Sikh fat who is above 58 years of age and took from him Rs. 80,000/- for the said bargaining and kidnapped 'P' on 16.5.2009 from Tikker, Sub Tehsil Tikker, Tehsil Rohru, Distt. 80,000/- for the said bargaining and kidnapped 'P' on 16.5.2009 from Tikker, Sub Tehsil Tikker, Tehsil Rohru, Distt. Shimla H.P. and the complainant made best efforts to trace out 'P' but failed in the matter and subsequently Smt. Chamku later on conveyed the message on telephone to one lady who is employed in forest department posted at Tikker that Smt. Prem Lata, Sh. Ishwar and 'P' who was bearing Gunghat and also ornament were seen traveling together in a bus from Tikker to Shimla and later on it was confirmed that the minor was kidnapped by these all persons from the lawful custody of the complainant by taking an amount of Rs. 80,000/- as it revealed. As the minor was sold by unlawful means for unlawful acts to aged person for monetary gain which is an offence u/s 363, 372, 373, 109 IPC and the accused deserve to be dealt with in accordance with law. 7. That the complainant has tried to lodge a complaint with the police at Tikker but the police has avoided the matter on one pretext or the other hence the complaint is being filed in this Ld. Court as the offence has been constituted within the jurisdiction of this Court. It is, therefore, prayed that the mischief committed by the accused fall under the provision of Sections 363, 372, 373, 109 IPC and the accused deserve to be dealt in accordance with law in the interest of law and justice. Complainant 2. The investigation commenced. After recording statements of the convict (complainant) Poshu Ram and his wife, Indru Devi, u/s 161 of the Code of Criminal Procedure (in short 'Cr.P.C.'), the police alongwith the convict went to Haryana in search of the prosecutrix, Satbir Singh, Ishwar Singh and Prem Lata (co-accused in the connected case) and was able to trace Ishwar Singh and Prem Lata at Gharounda and Satbir Singh alongwith the prosecutrix at Kembla on 09.07.2009. On interrogation, Ishwar Singh and Prem Lata revealed that they alongwith Subdha Devi, who is mother of Prem Lata and Satbir Singh, who is cousin of Ishwar Singh, being his maternal uncle's son (all accused in connected case), had enticed the prosecutrix from village Thana, Himachal Pradesh, with a view to get her married to Satbir Singh. On interrogation, Ishwar Singh and Prem Lata revealed that they alongwith Subdha Devi, who is mother of Prem Lata and Satbir Singh, who is cousin of Ishwar Singh, being his maternal uncle's son (all accused in connected case), had enticed the prosecutrix from village Thana, Himachal Pradesh, with a view to get her married to Satbir Singh. On further interrogation, it was revealed that the prosecutrix was raped by Satbir Singh, at his house in village Kurana on 19.05.2009. Thereafter, the police brought all of them to Police Station, Rohru, Himachal Pradesh. 3. The prosecutrix was sent for medical examination to Civil Hospital, Rohru, where she was examined by PW-1 Dr. (Mrs.) Pavitra Maitan, vide certificate Ex. PA, with the following alleged history: Person brought with the alleged H/O consentfully going with a couple called Ishwar and Prem Lata who met her at Rohru. Prom Rohru, where she met Satvir who was introduced to her by Ishwar & Prem Lata, all four of them went to Haryana, first to Kaamla and then to Krana, where she gives H/O having some ceremony and got married to Satvir. She gives H/O coming on her own from Tikkar to Rohru on 16.5.2009. She gives H/O repeated episodes of sexual intercourse being done by the man named Poshu Ram with whom she was staying for the last 2 years forcefully on last 2 years. She also gives H/O repeated episodes of sexual intercourse being done by Satvir full penetration followed by ejaculation. No H/ O of use of any contraceptive. All this history has been given by 'P' herself, 4. On examination of the prosecutrix, the Medical Expert, PW-1, Dr. (Mrs.) Pavitra Maitan, had observed and opined as under: No injury marks seen over any part of body. Local examination- 1. Secondary sexual characters - Breasts, pubic hair are moderately developed and auxiliary hair are separately developed. 2. P/s - White DPV. No bleeding or injury seen. P/v - 2 fingers can be easily inserted into vagina. Uterus - AV/NS infirm/mobile. In my opinion, 'P' is habitual of having sexual intercourse and the possibility of recent sexual intercourse cannot be ruled out. However, final opinion is reserved till expert forensic and expert radiological opinion regarding age. 5. 2. P/s - White DPV. No bleeding or injury seen. P/v - 2 fingers can be easily inserted into vagina. Uterus - AV/NS infirm/mobile. In my opinion, 'P' is habitual of having sexual intercourse and the possibility of recent sexual intercourse cannot be ruled out. However, final opinion is reserved till expert forensic and expert radiological opinion regarding age. 5. Since during her medical examination the prosecutrix had leveled allegations against the convict (complainant) Poshu Ram that he had been sexually assaulting her for the last two years, he was also booked u/s 376 IPC and a separate challan was filed against him. Satbir Singh, Subdha Devi, Ishwar Singh and Prem Lata (co-accused in the connected case) were sent up to face trial under Sections 363, 366, 366A and 376 read with Section 120B IPC vide a separate challan. In the trial held against Satbir Singh, Subdha Devi, Ishwar Singh and Prem Lata whereas Satbir Singh was convicted for the offence u/s 376 IPC and was acquitted on other counts and was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 10,000/- and in default to suffer further rigorous imprisonment for six months, co-accused Subdha Devi, Ishwar Singh and Prem Lata were acquitted of all the charges. The appeal filed by Satbir Singh (convict in the connected case) has also been heard alongwith the present appeal and is being decided simultaneously by a separate judgment. 6. The record with regard to the date of birth of the prosecutrix was collected by the police from Gram Panchayat Koti Bounch, Tehsil Shilai, District Sirmour, according to which, she was born on 25.02.1996. On the basis of ossification test, her bony age was opined to be between 12-1/2 to 14-1/ 2 years. 7. The convict was also sent for medical examination and certificate, Ex. PF, was obtained, which revealed that there was nothing suggestive that he is not able to perform sexual intercourse. 8. As per report of the State Forensic Science Laboratory, Himachal Pradesh, Junga, Ex. PE, neither blood nor semen was found on the clothes, vaginal smear slides and pubic hair of the prosecutrix. 9. PF, was obtained, which revealed that there was nothing suggestive that he is not able to perform sexual intercourse. 8. As per report of the State Forensic Science Laboratory, Himachal Pradesh, Junga, Ex. PE, neither blood nor semen was found on the clothes, vaginal smear slides and pubic hair of the prosecutrix. 9. On conclusion of investigation it was found that in the connected case the convict, Satbir Singh, and the co-accused Subdha Devi, Ishwar Singh and Prem Lata had pursuant to a criminal conspiracy kidnapped the prosecutrix with a view to marry her to the former (Satbir Singh) and pursuant thereto they had caused the prosecutrix to leave the house of the complainant on 16.05.2009 and the prosecutrix was raped by the said Satbir Singh at his house in village Kurana (Haryana) on 19.05.2009. The further finding was that convict, Poshu Ram, in this case had been sexually exploiting the prosecutrix for the last about two years prior to 16.05.2009 when she had left his house. Accordingly, offences under Sections 372, 373 and 109 IPC were deleted from the FIR and instead offences under Sections 366A, 376 and 120B were added. Accordingly, the convict was sent up to face trial for the offence u/s 376 IPC. On being charged, he did not plead guilty and claimed trial. The prosecution evidence followed which examined 7 witnesses in all. 10. On close of the prosecution evidence, the convict was examined by the learned trial Court u/s 313 Cr.P.C. wherein he admitted that he had filed complaint, Ex. PW-7/A, in the Court of the learned Sub Divisional Magistrate, Rohru, on the basis of which FIR Ex. PW-7/B was registered at Police Station, Rohru. It was also admitted that the prosecutrix was residing at his house since long. He also admitted that she was recovered by the police from Haryana when she was with Satbir Singh, the convict in the connected case. In reply to question No. 15 of the statement, he has submitted the following explanation: Q. No. 15. Do you want to say anything else? Ans. I am innocent. The prosecutrix was residing in my house voluntarily with my wife and daughters. We used to keep her as our daughter. She ran away from my house without informing me or my family members. She was recovered by the police from Haryana. Do you want to say anything else? Ans. I am innocent. The prosecutrix was residing in my house voluntarily with my wife and daughters. We used to keep her as our daughter. She ran away from my house without informing me or my family members. She was recovered by the police from Haryana. I used to scold the prosecutrix as I had caught her red handed in compromising position with different boys. For these reasons, she has involved me in a false case. However, the convict did not lead any evidence in defence. 11. On conclusion of the trial, the convict was convicted and sentenced for the offence u/s 376 IPC, as already noticed. 12. I have heard the learned Counsel for the appellant (convict), the learned Assistant Advocate General for the respondent-State and gone through the records. 13. The impugned judgment of conviction dated 18.10.2010 has been assailed by the convict mainly on the grounds of delay in lodging FIR, conduct of the prosecutrix and variance in the alleged place of occurrence. However, the same is supported on behalf of the respondent-State. 14. The first and foremost question which arises for determination in this case is as to what was the age of the prosecutrix at the relevant time. Both the prosecutrix, PW-5 and her mother, Smt. Shanti Devi, PW-6, are illiterate. Their statements with regard to the age of the prosecutrix cannot be said to be conclusive. The date of birth of the prosecutrix, as mentioned in extract of pariwar register, Ex. PC, as 25.02.1996 cannot be safely relied upon for the reason that the same is not based on the entries in the register of births and deaths, as stated by PW-2, Shri Sanjeev Kumar, Secretary of the concerned gram panchayat. On the basis of ossification test, the prosecutrix was found to be aged between 12-1/2 to 14-1/2 years as on or about 11.07.2009 when she was examined by PW-3, Dr. (Mrs.) Neeti Aggarwal, for ascertainment of her age vide X-ray form Ex. PD and by giving margin of two years on either side age of the prosecutrix has been held by the learned trial Court to be about 16-1/2 years. The findings to this effect are based on the evidence on record. 15. (Mrs.) Neeti Aggarwal, for ascertainment of her age vide X-ray form Ex. PD and by giving margin of two years on either side age of the prosecutrix has been held by the learned trial Court to be about 16-1/2 years. The findings to this effect are based on the evidence on record. 15. However, in any case the age of the prosecutrix is not very much material in this case as in view of the evidence on record it cannot at all be said that she was a consenting party to the acts of sex with the convict. In such situation, even if she is found to be above the age of 16 years at the material time, it would not make much difference. But since the allegation was that the convict had been sexually exploiting her for the last two years prior to 16.05.2009 when she had left the house of the convict, her age at the relevant time was about 14-1/2 years or so and thus she was below the age of consent, that is, 16 years. 16. A combined and harmonious reading of the deposition of the prosecutrix as PW-5 would go to show that though in chief examination she has only stated that she was raped by the convict in a government house during night after consuming alcohol, in cross-examination on behalf of the convict, while denying that she never went to the Rest House where the convict was posted, she has volunteered to categorically state that the convict used to take her to the Rest House with him, meaning thereby that it was not a single act of sexual exploitation of the prosecutrix by the convict and instead it was a continued affair. 17. It appears that the hapless situation in which the prosecutrix was placed at the hands of the destiny, she was reticent in her deposition against the convict and that is why she denied having identified the place(s) of incident before the police and was, therefore, declared hostile and it appears that for the same reason she denied having identified the place of incident during cross-examination by the learned APP. Her statement in further cross-examination on behalf of the convict that when she was medically examined, she did not state anything before the Medical Officer, also appears to have been made in the same vein. Her statement in further cross-examination on behalf of the convict that when she was medically examined, she did not state anything before the Medical Officer, also appears to have been made in the same vein. The reason to arrive at this inference is that PW-1 Dr. (Mrs.) Pavitra Maitan, who is an independent official medical witness and has no personal interest in the matter, has categorically stated about the alleged history disclosed to her by the prosecutrix implicating the convict for her continued sexual exploitation for two years before she left his house on 16.05.2009. The medical witness has denied during cross-examination on behalf of the convict that the history has been mentioned by her at the instance of the police and has volunteered to state that it was mentioned in the medico legal certificate as narrated by the patient (prosecutrix). According to her, before examining the prosecutrix she had gone through the police file. 18. The statement made by the prosecutrix in further cross-examination on behalf of the convict that before her statement u/s 161 Cr.P.C. was recorded, she had not disclosed to anyone that she was raped by the convict is otherwise factually incorrect as whereas she was medically examined by PW-1 (Mrs.) Pavitra Maitan vide certificate, Ex. PA, on 10.07.2009, her statement u/s 161 Cr.P.C. was recorded by the police only on 11.07.2009 as stated by the Investigating Officer, PW-7, ASI Mohar Singh, in the opening lines of his cross-examination on behalf of the convict, wherein he has categorically stated that the statement was recorded after medical examination of the prosecutrix. The prosecutrix has denied in quite categorical terms that she did not disclose the factum of rape before anyone as she was never raped by the convict. 19. Insofar as the delay in lodging the FIR is concerned, true it is that the prosecutrix did not come forward to state anything about her continued sexual exploitation by the convict for a sufficiently long time of about two years, yet the learned Trial Judge has dealt with this aspect of the matter in quite detail and the reasoning adopted by him is based on the evidence on record. The background facts of the case cannot be lost sight of. The father of the prosecutrix had died soon after her birth. The background facts of the case cannot be lost sight of. The father of the prosecutrix had died soon after her birth. Her mother had remarried thereafter and had left the prosecutrix in the care and custody of her (mother's) real maternal uncle, the convict. It is in evidence that the prosecutrix was never sent to school. Thus she was an illiterate, rustic and hapless village girl. She was totally dependent on the convict and his family. In such circumstances, when she had no other relation or confidant to fall back upon, she ultimately left the house of the convict. However, when he lodged the aforesaid complaint, she at the first available opportunity narrated her tale of woes to PW-1 Dr. (Mrs.) Pavitra Maitan at the time of her medical examination. Thus in the facts and circumstances of the case, the delay is of no consequence. 20. As far as the variance in the place of occurrence is concerned, the same is also not very material in the peculiar facts and circumstances of the case keeping in view the background of the prosecutrix. The narrative given by her that the convict had been committing rape upon her in a government house cannot be said to mean that there is variance in the place of occurrence from the room of the Chowkidar shown at point 'D' in site plan, Ex. PW-7/C, located in the PWD Office building to the PWD Rest House shown at point 'E' of the site plan. Terms 'government house' and 'Rest House' in the given circumstances can be said to have been used by the prosecutrix in common parlance and more particularly keeping in view her socioeconomic background and the fact that she is illiterate. In such circumstances, the convict cannot derive any benefit from the law laid down by this Court in Budh Ram v. State of Himachal Pradesh, Latest HLJ 2010 (HP) 58, Head note (D), para 13. For the reasons stated hereinabove, the appeal is dismissed being without any merit.