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Himachal Pradesh High Court · body

2013 DIGILAW 818 (HP)

TILAK RAJ v. STATE OF H. P.

2013-09-17

A.M.KHANWILKAR

body2013
JUDGEMENT A.M.KHANWILKAR, J. - 1. THIS appeal takes exception to the judgment of the Additional Sessions Judge, Mandi, dated 16/23.9.2011, convicting the appellant for offences punishable under Section 363, 366 and 376 of IPC and sentencing him to undergo rigorous imprisonment for a period of 7 years and to pay fine of Rs. 10,000/- and in default, to further undergo simple imprisonment for six months for the commission of offence punishable under Section 376 of the IPC. He has been further sentenced to undergo rigorous imprisonment for a period of 5 years and to pay fine of Rs.10,000/- and in default, to further undergo simple imprisonment for a period of 6 months for the commission of offence punishable under Section 366 of the IPC. Further, as offence punishable under Section 363 IPC being a minor offence, the trial Court opined that it would merge in the offence punishable under Section 366 of IPC and, thus, no separate sentence was ordered for that offence. The trial Court further ordered that both the substantive sentences of imprisonment shall run concurrently; and out of fine realized, a sum of Rs. 15,000/- be awarded to the victim as compensation. The trial Court also provided for period of detention undergone by the appellant as set off in terms of Section 428 of Cr.P.C. Consequential order regarding return of property is also passed by the trial Court. Although, the appellant had applied for suspension of sentence and grant of bail, this Court while admitting the appeal challenging the aforesaid decision of the trial Court, disposed of the Cr.M.P. No. 831 of 2011 as not pressed, with liberty to the appellant to make fresh application for interim relief. The appeal is now posted for hearing. 2. THE prosecution case, in brief, is that the prosecutrix (name being withheld to protect her identity) was studying in class 10th in the year 2010. At the relevant time, she was around 15 years old. She had gone to her school on 18.2.2010 as usual, but did not return back home. She could not be found inspite of enquiries made by her parents. The FIR was registered on 20.2.2010 at 19.30 hours against the appellant only for offences punishable under Sections 363 & 366 IPC. At the relevant time, she was around 15 years old. She had gone to her school on 18.2.2010 as usual, but did not return back home. She could not be found inspite of enquiries made by her parents. The FIR was registered on 20.2.2010 at 19.30 hours against the appellant only for offences punishable under Sections 363 & 366 IPC. On the basis of the FIR, investigation was conducted by Inspector Sureshtha Thakur, PW-11 who found the prosecutrix from the residence of the appellant- accused on 21.2.2010. Her custody was then handed over to her father. On the basis of revelations made by the prosecutrix, investigation was conducted and eventually charge-sheet came to be filed against the appellant for offences punishable under Sections 363, 366 and additionally 376 of IPC. The accused pleaded not guilty to the charge and claimed to be tried. The prosecution examined 12 witnesses to prove its case. The appellant-accused also examined defence witness DW-1 Chaman, s/o Tule Ram. On analyzing the ocular and other evidence on record, the trial Court found the appellant guilty of the alleged offences. For recording finding of guilt, the trial Court, in the first place, noted defence taken by the appellant in his statement recorded under Section 313 Cr.P.C. wherein he admitted that the prosecutrix had visited his house and stayed with him. The defence, however, was that the prosecutrix had done so on her own accord and that she was more than 18 years of age. The trial Court then analyzed the evidence produced by the prosecution to establish the factum of prosecutrix being minor at the relevant time. The trial Court took into account the evidence of the prosecutrix that she was born on 13.4.1995 as also the deposition of her father PW-2, who stated that the prosecutrix was his daughter and aged about 15 years and 8 months, when he was deposing before the Court on 23.12.2010. The trial Court also took into account the birth certificate of the prosecutrix Ext.PW-7/A, which mentioned her date of birth as 13.4.1995. The trial Court then took into account the copy of the Pariwar Register (Ext. PW- 11/G), which mentioned the date of birth of prosecutrix as 13.4.1995. The trial Court held that these documents were prepared by the public officials in discharge of their official duties and, therefore, were admissible under Section 35 of the Indian Evidence Act. The trial Court then took into account the copy of the Pariwar Register (Ext. PW- 11/G), which mentioned the date of birth of prosecutrix as 13.4.1995. The trial Court held that these documents were prepared by the public officials in discharge of their official duties and, therefore, were admissible under Section 35 of the Indian Evidence Act. These documents were produced by PW-12. He had admitted in cross examination that original entries were not made by him. The trial Court held that it was not possible to disregard the documentary evidence which were maintained in ordinary course of business and in discharge of official duty. To buttress this view, the trial Court placed reliance on the decision of the Apex Court in Harpal Singh Vrs. State of H.P.1 and in the case of Vidyadhar vrs. Mohan Lal2. With regard to discrepancy about different ink and in a different pen, noticed in the official documents, the trial Court opined that the same was not material. The trial Court opined that it was not the case of defence that the father of the prosecutrix had any other girl, which could have been the basis to doubt the correctness of the official documents. Instead, the trial Court opined that judicial notice can be taken of the fact that the child is not named immediately after the birth and there is likelihood of addition of alias to the name of the child in later point of time in the Register of birth. That cannot be the basis to discredit the entry found in the official documents. The trial Court also placed reliance on the evidence of Dr. Jyoti Vaidya, PW-8, who had conducted radiological examination of the prosecutrix and found that her approximate age was 13 1/2 - 15 1/2 years. She had admitted in her deposition that there can be variance of 2 years in the approximate age depending upon climate and other circumstances, but the trial Court found that this cannot assist the accused because the doctor had already taken the difference into account by giving approximate age of 13 1/2 - 15 1/2 years. The trial Court, thus, concluded that there was 1. AIR 1981 SC 361 2. ILR 1978 HP 174 overwhelming evidence on record to prove that the prosecutrix was less than 16 years of age on the day of incident. . 3. The trial Court, thus, concluded that there was 1. AIR 1981 SC 361 2. ILR 1978 HP 174 overwhelming evidence on record to prove that the prosecutrix was less than 16 years of age on the day of incident. . 3. HAVING said this, the trial Court then proceeded to examine the defence version that the prosecutrix had visited the house of the accused as she had missed the bus after attending the Shivratri fair. The trial Court was of the view that the said explanation was unacceptable, inasmuch as a normal reaction of the accused and his family members, who were also residing in the same house at the relevant time, as is the case made out by the accused, would have been to intimate the parents of the prosecutrix about the visit of the prosecutrix to their home. This was not done notwithstanding that the father of the prosecutrix was known to them being their family-priest (Kul Purohit). Further, it was not even suggested to the father of the prosecutrix that information was given to him by the accused or his family members about the arrival of the prosecutrix in their home. 4. THE trial Court then went on to analyze the evidence of the prosecutrix and found that the same supported the prosecution case in toto. The prosecutrix in her deposition has stated that the appellant met her when she was returning home from the school on 18.2.2010. He told her that he would tell her about the questions, which were likely to be asked in the examination. She was told to come to Slot for that purpose. When she reached Slot at 7.00 p.m., the appellant was waiting in a vehicle (car). When she reached near the car, the appellant told her to enter the car and promised to tell her the questions inside the car. When she entered the car, she was told that he would tell her the questions at his home. She was assured that she would pass the examination with good marks once she knows the questions. Accordingly, he took her to his home. After reaching home, the appellant told her that he would tell the questions in the morning. She was given independent bedroom for her stay in the house of the appellant. The appellant came to her bed in the night and raped her, despite her protest. Accordingly, he took her to his home. After reaching home, the appellant told her that he would tell the questions in the morning. She was given independent bedroom for her stay in the house of the appellant. The appellant came to her bed in the night and raped her, despite her protest. He also promised to marry her. She has deposed that she did not have any money to return to her home. On the next day, the appellant took her to his fields during the day time and brought her back to his house in the night. Even on the second night, the appellant raped her and promised to marry her. He assured that he would persuade her parents. The prosecutrix has further deposed that when the police arrived alongwith her father and brother at the house of the appellant, she narrated the incident to her brother and police. The prosecutrix version found favour with the trial Court being natural and trustworthy. The trial Court also analyzed the version given by the prosecutrix during her cross examination, but found that there was nothing in the cross examination to show that she was deposing falsely or out of any motive. Besides the evidence of the prosecutrix, the trial Court found that the version of prosecutrix was corroborated by the report of FSL, wherein human blood and human semen were found on her underwear. Human semen was also found on the underwear of the appellant. These clothes were recovered from the house of the appellant at his instance. The trial Court held that this evidence corroborates the version of the prosecutrix regarding rape. 5. THE trial Court then analyzed the evidence of Dr.Charu Samita Thakur (PW-9), who had conducted medical examination of the prosecutrix and found that there was no marks of violence. There was no edema, redness or signs of inflammation in labia majora and labia minora. This witness has stated that there was nothing to suggest fresh sexual intercourse, but the possibility of attempt of sexual intercourse could not be ruled out. 6. THE trial Court relied on the decision of the Apex Court in the case of Raghu vrs. State3 to hold that the testimony of the complainant has to be relied upon in a rape case and absence of injury will not falsify her testimony. 6. THE trial Court relied on the decision of the Apex Court in the case of Raghu vrs. State3 to hold that the testimony of the complainant has to be relied upon in a rape case and absence of injury will not falsify her testimony. The trial Court also noted that the medical evidence on record established that the prosecutrix was habitual to sexual intercourse and, therefore, found that the possibility of sustaining injury was less. The trial Court found that presence of human semen and human blood on the underwear of the prosecutrix as also semen on the underwear of the appellant corroborated her testimony about illicit intercourse. With reference to the criticism of the defence in respect of writing in the seizure memo Ext.PW-2/B changing the name of father of the witness, the trial Court, relying on the decisions of the Apex Court in Amar Singh vrs. Balvinder4 and Rambal vrs State5 held that the defective investigation cannot be a ground for acquittal of the accused in the case of sexual offence, so as to disregard the testimony of the prosecutrix. The trial Court also found the explanation offered by the Investigating Officer read with the evidence of PW-4 Hari Singh regarding discrepancy in the 3 (2007) 12 SCC 57 4 (2003) 2 SCC 518 5 AIR 2004 SC 2329 said document to be plausible. The trial Court also rejected the criticism of the defence about the disclosure statement and the . recovery of clothes keeping in mind the version of the prosecutrix that she had changed her clothes and her clothes were lying in the house of the appellant and that she had worn the clothes of the sister-in-law of the appellant, which were given to her for changing. 7. TO support this version, the prosecution examined Hira Lal (PW-2), who had told the police that the clothes of the girl were lying in his room at Pandoh. The trial Court accepted the evidence of Hira Lal (PW-2) to be trustworthy. The trial Court also considered the evidence of Hari Singh (PW-4), who stated that the accused disclosed in the police custody that he was aware about the clothes of the prosecutrix. The trial Court accepted the evidence of Hira Lal (PW-2) to be trustworthy. The trial Court also considered the evidence of Hari Singh (PW-4), who stated that the accused disclosed in the police custody that he was aware about the clothes of the prosecutrix. The criticism of the defence that the recovery of clothes was doubtful, as no independent person from neighbourhood was examined, has been negatived by the trial Court relying on the decision of the Apex Court in State vrs. Sunil6 and Parveen Kumar vrs. State7, which have taken the view that there is no such requirement under Section 27 of the Indian Evidence Act. The trial Court also relied on the decision of the Apex Court in State vrs. Navjot Sandhu8 to hold that the prosecution case cannot be doubted merely on this count. 8. THE trial Court also noticed that the appellant in his statement recorded under Section 313 Cr.P.C. had not disputed about the factum of visit of prosecutrix to his house and, therefore, discarded the evidence of Chaman (DW-1), who was examined by the defence to prove that the appellant had never hired his vehicle. 6 (2001) 1 SCC 652 7 (2003) 12 SCC 199 8 (2005) 11 SCC 800 The trial Court noticed that the said witness did not produce the record to substantiate his claim in that behalf. Thus, he had . withheld the best evidence and could not be trusted. On the other hand, the trial Court found that the prosecution had established the fact that the prosecutrix was taken in an Alto, by examining PW-3 Madan Lal, who had seen her boarding the car at Slot. In his cross examination, nothing was brought on record to indicate that he was deposing falsely. The trial Court also noted that there was nothing in the cross examination to doubt the testimony of the prosecutrix, who had deposed that the appellant had told her that he would disclose the questions likely to be asked in the examination and on that pretext, she was taken to his home. The trial Court also noted that there was nothing in the cross examination to doubt the testimony of the prosecutrix, who had deposed that the appellant had told her that he would disclose the questions likely to be asked in the examination and on that pretext, she was taken to his home. The trial Court noted that since the family of the prosecutrix was known to the appellant's family and there was nothing to indicate in her evidence that the prosecutrix had reason to depose falsely against the accused, coupled with the fact that it was established that she had gone to the house of the appellant due to inducement by the appellant, the appellant was guilty of offence not only of kidnapping under Section 366 of IPC, but also of rape under Section 376 of IPC. The trial Court relied on unreported decision of this Court in Chandu Ram versus State of H.P., Criminal Appeal No.297 of 2010, decided on 1.7.2011 in support of the conclusion that the appellant was guilty of offence under Section 366 of IPC. Further, that offence being major offence, the minor offence under Section 363 of IPC would merge and no separate sentence, in that behalf, would be required. 9. AFTER recording finding of guilt on 16.09.2011, the trial Court considered the matter on the point of sentence and a speaking order was passed on 23.09.2011, ordering the appellant to undergo rigorous imprisonment and pay fine, as noted earlier. 10. THIS decision of the trial Court is the subject matter of the present appeal. The learned counsel for the appellant has taken me through the entire ocular as well as other evidence on record. He made fervent attempt to persuade the Court that the version of prosecutrix is not free from doubt. He submits that it is very unnatural that she would not complain about the alleged rape to any family member immediately on their arrival in the house of the appellant. No one made enquiry about her clothes. Much emphasis was placed on her statement appearing in cross- examination that she had not intimated to her parents about her whereabouts and that she had admitted that her parents reported the matter to the police due to mis-conception. No one made enquiry about her clothes. Much emphasis was placed on her statement appearing in cross- examination that she had not intimated to her parents about her whereabouts and that she had admitted that her parents reported the matter to the police due to mis-conception. Counsel for the appellant also assailed the evidence of PW-2 by pointing out that although the prosecutrix did not disclose the fact of rape on 20.2.2010 in the statement given to the police, this witness has mentioned about that fact which was obviously a material improvement. According to him, this witness also admits that the prosecutrix had not disclosed to him that the accused had taken her away to his home by giving promise to marry her. The evidence of PW-3 Madan Lal is also assailed on the ground that this witness has not given any details that he had seen prosecutrix being taken in car by the accused. This witness had met the father of the prosecutrix on 20.2.2010 but the FIR is registered at 19.30 hours. No explanation has been offered by the prosecution about the time gap in registration of FIR. . 11. EVEN the evidence of PW-11 Sureshtha Thakur has been criticized, which states that the girl was found on 21.2.2010 and not 20.2.2010 at 7:00 AM. Learned counsel also criticized the process of recovery of clothes and sending it to the chemical analyzer for examination. According to the appellant there was obvious inconsistency in the medico-legal evidence. No attempt was made by the prosecution to seize the bed sheet immediately. It is a clear case of attempt to fabricate version of the concerned witnesses. The version of the prosecutrix is tailor made and does not establish the factum of rape at all, muchless during the period when she was in the house of the appellant. Further, the prosecutrix had visited the house of the appellant on her own and it was a case of consensual sex. She was more than 18 years of age and the prosecution has failed to establish the fact that she was less than 16 years of age. Much emphasis was placed on Ext.PW-7/A, birth certificate, allegedly of the prosecutrix. According to the appellant, the birth certificate of the prosecutrix Ext. PW-7/A and the extract of the Pariwar Register PW-11/G cannot be relied upon in support of the prosecution case. Much emphasis was placed on Ext.PW-7/A, birth certificate, allegedly of the prosecutrix. According to the appellant, the birth certificate of the prosecutrix Ext. PW-7/A and the extract of the Pariwar Register PW-11/G cannot be relied upon in support of the prosecution case. Further, from the medical evidence Ext. PW-9/A, it was evident that the prosecutrix was grown up and was above 18 years of age. In that, it has been mentioned that her breast was well developed and axillae hair were present, brownish black in colour, pubic hair were present brownish black in colour and matting not present. In support of the argument that from the medical evidence on record, the finding that the prosecutrix was more than 18 years was inevitable, the text from Modi's Medical Jurisprudence, 23rd edition, . was relied upon, the relevant portion of which reads thus: "(4) Secondary Sex Characters The growth of hair appears first on the pubis and then in the axillae (armpits). In the adolescent stage, the development of the pubic hair in both sexes follows the following stages: (a) One of the first signs of the beginning of puberty is chiefly on the base of penis or along labia, when there are few long slightly pigmented and curled or straight downy hair; (b) The hair is coarser, darker and more curled, and spread sparsely over the junction of pubis; (c) More or less like an adult, but only a smaller area is covered, no hair on the medial surface of thighs; (d) Adult type with the spread of hair of the horizontal (or classically 'feminine') pattern, also on the medial surface of thighs. In the case of girls, it commences with the appearance of soft and pale coloured downy hair on the pubis at the age of about 13 years, and a few sparse dark hair appears at about 14 years. The growth becomes thicker in the course of a year or two, when hair commences to grow in the axillae. In the case of boys, downy hair appears on the pubis at about 14 years, and a few dark hairs appear at about 15, when downy hair begins to grow in the axillae. A thick growth of dark hair is well marked on the pubis, scrotum and in the axillae at about 16 or 17 years of age. In the case of boys, downy hair appears on the pubis at about 14 years, and a few dark hairs appear at about 15, when downy hair begins to grow in the axillae. A thick growth of dark hair is well marked on the pubis, scrotum and in the axillae at about 16 or 17 years of age. (e) Hair begins to appear on the chin and the upper lip between 16 and 18 years. The development of breasts in girls commences from 13 to 14 years; however, it is liable to be affected by loose habits and social environments. During adolescence, the hormone flux acts and the breasts develop through the following stages: (i) Breast and papilla are elevated as a small mound, and there is enlargement of areolar diameter. (ii) More elevation and enlargement of breast and areola, but their contours are not separate. (iii) Areola and papilla project over the level of the breast. (iv) Adult stage only the papilla projects and the areola merges with the general contour of the breast." 12. ACCORDING to the appellant, the cross-examination of PW-12 Khem Raj clearly shakes confidence as no school record was produced; and going by the ossification test, it was uncertain that the age of the prosecutrix was below 16 years. Even the evidence of PW-8 Dr. Jyoti Vaidya does not lend credence to the fact that the prosecutrix was, in fact, below 16 years of age. . Learned counsel placed reliance on the decision of the Apex Court in Dr. Ramesh Chandra Sinha versus State of Bihar and others9 to contend that the birth certificate Ext. PW- 7/A (Paragraph 14) cannot be said to have been proved and thus admissible in evidence. Reliance is also placed on the decision of the Apex Court in Madan Mohan Singh & ors. Vrs. Rajni Kant & anr10. (paragraph 16) and the case of State of HP Vrs. Phurva and ors.11 (paragraph 19), to contend that the prosecution has failed to substantiate the factum of prosecutrix being minor on the day of incident. Reliance is also placed on the decision of the Apex Court in the case of Jyoti Prakash Rai alias Jyoti Prakash versus State of Bihar12. In paragraph 13 of this decision, the Court opined that the age determined by the doctors should be given flexibility of 2 years on either side. Reliance is also placed on the decision of the Apex Court in the case of Jyoti Prakash Rai alias Jyoti Prakash versus State of Bihar12. In paragraph 13 of this decision, the Court opined that the age determined by the doctors should be given flexibility of 2 years on either side. Relying on this observation, learned counsel contends that the medical evidence disclosed that the age of the prosecutrix was between 13 1/2 to 15 1/2 years. In that case, adding two years to the assessed age up to 15 1/2 years, the prosecutrix was more than 16 years of age and for which, benefit of doubt should be given to the appellant. 13. RELIANCE is also placed on the decision in the case of Alamelu and anr. versus State13, wherein the Court had occasion to consider the date of birth on the basis of the evidence brought on record in that case. In paragraph 48 of this reported 9 AIR 1988 SC 1976 10 AIR 2010 SC 2933 11 Latest HLJ 2011(HP) 490 12 (2008) 15 SCC 223 13 (2011) 2 SCC 385 judgment, the Court has adverted to Section 35 of the Indian Evidence Act and held that a public document has to be tested by applying the same standard in civil as well as criminal proceedings. Relying on the dictum in this judgment, it was argued that the date of birth produced on record was not admissible and it cannot be taken a gospel truth by the prosecution. Reliance has also been placed on the decision of the Apex Court in the case Abdul Sayeed versus State of Madhya Pradesh14 in support of the argument that the evidence produced by the prosecution to establish the fact that the prosecutrix was less than 16 years of age must be examined with circumspection. It was submitted that the issue of age of prosecutrix will have to be decided only on the basis of the medical evidence and in that case, the appellant would get benefit of doubt. 14. LEARNED counsel for the appellant has also extensively relied on the decision of the Apex Court in Narender Kumar versus State15 to contend that the version of the prosecutrix in the present case does not inspire confidence as it suffers from serious infirmities and inconsistencies. 14. LEARNED counsel for the appellant has also extensively relied on the decision of the Apex Court in Narender Kumar versus State15 to contend that the version of the prosecutrix in the present case does not inspire confidence as it suffers from serious infirmities and inconsistencies. It is a case of deliberate improvement on material points and there being no injury on her person, reliance ought not to be placed upon her evidence. According to the appellant, the prosecution has not proved its case beyond reasonable doubt on material points that the prosecutrix was below 16 years of age on the day of incident and prosecutrix had consensual intercourse during her stay in the house of the appellant. As a result, no offence was made out against the 14 (2010) 10 SCC 259 15 (2012) 7 SCC 171 appellant. Relying on the observations in the case of Shyam & anr. Versus State of Maharastra16 it was submitted that it was not a case of abduction as the prosecutrix had not put up any struggle or raised alarm and merrily continued to stay with the appellant for over two nights. On the other hand, learned counsel for the State supported the finding of fact recorded by the trial Court and submitted that the view taken by the trial Court is a possible view. He submits that the controversy gets narrowed down because of the stand taken by the appellant in his statement under Section 313 of Cr.P.C. The defence is one of consensual sex. Thus, the core question that needs to be considered is - whether the prosecutrix was below 16 years of age; and if that finding of the trial Court is to be upheld, nothing more is required to be examined by this Court. He submits that even with regard to the factum of rape, there was overwhelming evidence on record to establish the same. 15. RELYING on the decision of the Apex Court in the case of Pushpanjali Sahu versus State of Orissa & anr.17, it is submitted that the evidence of prosecutrix will have to be accepted and, as observed by the Apex Court, if there is nothing to indicate that the prosecutrix was deposing falsely out of motive, no corroboration of her version needs to be insisted by the Court. Reliance is also placed on the decision in the cases of State of Uttar Pradesh versus Chhotey Lal18, and B.C. Deva alias 16 AIR 1995 SC 2169 17 (2012) 9 SCC 705 18 (2011) 2 SCC 550 Dyava versus State of Karnataka19, to contend that the Apex Court has consistently held that the sole testimony of the . prosecutrix is also enough to record finding of guilt unless there was material to disbelieve and discard her testimony. Relying on the decision of the Apex Court in Harpal Singh & anr. versus State of H.P.20, it is submitted that the entry made by the concerned official in discharge of his official duties, it is not necessary to examine the concerned official who made the entry, by virtue of Section 35 of the Evidence Act. In substance, the learned counsel for the State would contend that no interference in this appeal is warranted. 16. HAVING considered the rival submissions, it would be apposite to first advert to the defence taken by the appellant in his statement recorded under Section 313 of Cr.P.C. He has admitted that the prosecutrix had stayed in his house from 18.2.2010 till she was traced from his house on 21.2.2010. He has, however, stated that the prosecutrix had visited Mandi to watch Shivratri festival. He admits that the father of the prosecutrix was Family Priest (Kul Purohit) and as such, the prosecutrix was known to him and his family members. He admits that she stayed in his house for two days and nights. He asserts that she was looked after properly during her stay. In view of this stand, the limited issue that arises for consideration is - whether during the stay of prosecutrix in the house of the appellant, the appellant had illicit intercourse with her; and what was the age of the prosecutrix at the relevant time. 19 (2007) 12 SCC 122 20 AIR 1981 SC 361 Thirdly, whether it was a case of consensual intercourse or otherwise. The other question is whether the appellant had coaxed . the prosecutrix to come with him to his house by representing her that he would disclose the questions, which were likely to be asked in the ensuing examination, so that the prosecutrix could pass the examination with good marks and also whether the appellant had promised her to marry. 17. The other question is whether the appellant had coaxed . the prosecutrix to come with him to his house by representing her that he would disclose the questions, which were likely to be asked in the ensuing examination, so that the prosecutrix could pass the examination with good marks and also whether the appellant had promised her to marry. 17. THE moot issue to be answered is about the age of prosecutrix on the day of incident. In her evidence, she has stated that she was born on 13.4.1995. In the cross examination what was suggested to her was that she had not given her birth date to the police. The falsity of the statement regarding her birth date stated by her has not even been suggested in the entire cross examination at all. The only suggestion found in the cross examination is that she was more than 18 years of age in the last year, which suggestion has been denied by her. The defence thus did not dispute the date of birth of the prosecutrix as stated by her. Further, the father of the prosecutrix, PW-2, in his evidence has stated that he has two children. He has stated about the age of prosecutrix as 15 years and 8 months on the date when he was deposing before the Court. There is no cross examination whatsoever on this aspect at all. On the basis of this evidence, it was open to hold that the appellant has admitted the factum of date of birth of the prosecutrix as 13.4.1995. Nevertheless, the factum of age of the prosecutrix is also sought to be corroborated by the prosecution by proving the birth certificate issued by the Authorized Officer of the Government of Himachal Pradesh, Ext. PW-7/A. This certificate mentions the name of the girl and the date of birth as 13.4.1995. The registration about the birth is . made on 28.4.1995. In addition, the prosecution has proved Ext. PW-11/G, extract of Pariwar Register, which mentions the name of the head of the family, of PW-2, and his family consisting of his wife, daughter and one son. The name of the girl mentioned in the Pariwar Register as well as the birth certificate corresponds with the name of the prosecutrix. The date of birth mentioned against her name is 13.4.1995, which also corresponds with the date mentioned by the prosecutrix. The name of the girl mentioned in the Pariwar Register as well as the birth certificate corresponds with the name of the prosecutrix. The date of birth mentioned against her name is 13.4.1995, which also corresponds with the date mentioned by the prosecutrix. PW-12, Khem Raj, who was posted as Secretary in Gram Panchayat Thachi, has deposed that the birth certificate Ext. PW-7/A and Pariwar Register Ext. PW-11/G, were issued by him. He produced the summoned record. He has then stated that the true copies of the original record were brought by him in Court. The trial Court has noted that the original record was seen and returned. In other words, the date of birth of the prosecutrix has been proved by the prosecution to be 13.4.1995. In the cross examination of PW-12, what is suggested is that the original entry in the birth register was not in his hand writing. It is unfathomable as to how this suggestion can further the case of the defence. Indubitably, Ext. PW-7/A and Ext. PW-11/G are official documents which have come from the proper source. Authenticity of those documents cannot be doubted on this consideration. The original register was produced before the Court and the authenticity of the original documents produced by the prosecution has remained unchallenged. The witness in the cross examination has than stated that the entry in the Pariwar Register was in his own hand writing. No doubt, this witness has admitted that the writing recording the name of the prosecutrix in Ex. D1 (birth . register) was in different hand writing and in different pen. Further, the birth register produced by him was not paginated and name of the Panchayat was also not mentioned thereon nor the seal and signature of the Secretary or Pradhan was found. He has also admitted that the column No. No. 24 of the birth register on every page, for recording the signature of Registrar was blank and that there was overwriting in some of the names and the names have been changed. However, what is significant to note is that PW-12 has stated that the entry in the Pariwar Register, which is also contemporaneous official record (Ex. PW-11/G), was made by him in the year 2008 on the basis of entries in the old register. The correctness thereof has not been challenged in the cross- examination at all. However, what is significant to note is that PW-12 has stated that the entry in the Pariwar Register, which is also contemporaneous official record (Ex. PW-11/G), was made by him in the year 2008 on the basis of entries in the old register. The correctness thereof has not been challenged in the cross- examination at all. Indeed, PW-12 did not bring the old register to the Court. The entries in the Pariwar Register (Ex. PW-11/G) having remained uncontroverted, it substantiates the version of the prosecutrix about her birth date being 13.4.1995. 18. ATTEMPT was made to persuade the Court to discard the evidence in the form of birth certificate Ext. PW-7/A and Pariwar Registrar Ext. PW-11/G. On a fair reading of the evidence of PW-12, it is not possible to countenance the challenge to Ext. PW-11/G, which is a contemporaneous official record. The attempt in the cross examination is to create confusion in respect of two documents. One is based on Pariwar Register i.e. Ext. PW-11/G and the other being birth certificate Ext. D-1. The authenticity of the Pariwar Register has not been assailed in the cross examination at all. The cross examination is directed against the entries found in the birth register. As regards Pariwar Register, the witness PW- . 12 has re-affirmed that the entries found therein are in his hand writing and made by him in the year 2008 on the basis of old register. Due to non-production of the old register, the said Pariwar Register Ex. PW-11/G cannot become inadmissible. Further, there was no challenge thereto. The extract from the Pariwar Register Ext. PW-11/G indisputably mentions the date of birth of the prosecutrix as 13.4.1995. The appellant, therefore, relying on the provisions in Rule 21 of the Himachal Pradesh Panchayati Raj (General) Rules, 1997, argued that the prosecution has failed to prove that the essential formalities in maintaining the Register have been fulfilled. As regards the birth certificate issued by the authorized officer of Government of Himachal Pradesh, the defence tried to create doubt about the authenticity thereof. But, as aforesaid, there is no challenge to the correctness and authenticity of Ex. PW-11/G (pariwar register). That is sufficient to uphold the prosecutrix version that she was born on 13.4.1995. As regards the birth certificate issued by the authorized officer of Government of Himachal Pradesh, the defence tried to create doubt about the authenticity thereof. But, as aforesaid, there is no challenge to the correctness and authenticity of Ex. PW-11/G (pariwar register). That is sufficient to uphold the prosecutrix version that she was born on 13.4.1995. The fact that the entry regarding birth of girl child on 13.4.1995, of PW-2, Hira Lal, was reported and registered on 28.4.1995, has been proved by the prosecution. Be that as it may, the prosecution has also relied on the evidence of PW-8 Dr. Jyoti Vaidya, who conducted radiology test on the prosecutrix. From the medical examination and the medical reports, it is seen that she has opined that the approximate age of patient (prosecutrix) was about 13 1/2 - 15 1/2 years. This opinion of PW-8 has remained unshaken. In the cross examination, suggestion given to this witness, was that, she had given her opinion on the basis of opinion of the police, which she . has denied. She has also further stated that there is difference of 2 years in the approximate age depending upon the climate and other circumstances. Relying on this statement, it was argued that this opinion must enure to the advantage of the accused and in that case, the age of the prosecutrix must be assumed to be over 17 1/2 years, in any case. It is not possible to countenance this submission, in view of the clear opinion given by PW-8 in the medical reports as well as affirmed before the Court that the prosecutrix was less than 16 years of age on the date of examination. The ossification test conducted on the prosecutrix also corroborates this opinion given by PW-8. Reliance placed on the extract in Modi's Medical Jurisprudence is inapposite to the fact situation of the present case. As a result, no fault can be found with the conclusion reached by the trial Court that there was overwhelming evidence on record to prove that the prosecutrix was less than 16 years of age on the day of incident. Some observation here or there cannot be the basis to overturn that finding of fact- moreso when that is a possible view. 19. Some observation here or there cannot be the basis to overturn that finding of fact- moreso when that is a possible view. 19. ON upholding this finding, the argument of the appellant that it was a case of consensual sex or that the prosecutrix had visited the house of the appellant on her own accord and not a case of abduction as such, have become inconsequential. Indeed, it will have to be examined whether the prosecution has established the factum of appellant having had illicit intercourse with the prosecutrix during the two nights when she was staying in his house. Indisputably, the prosecutrix stayed in the house of the appellant on the night of 18th & 19th, when the . incident of rape allegedly took place. According to the appellant, other family members were also residing in the same house and, therefore, it is incomprehensible that the appellant would indulge in such act. However, no evidence has been produced by the defence in this behalf. None of the family members have been examined by the defence. On the other hand, I have the version of the prosecutrix clearly stating that the accused had raped her on the night of 18th as well as on the night of 19th when she was staying in the house of the appellant on promise to marry her. This version of the prosecutrix cannot be lightly brushed aside. The Apex Court in catena of decisions has re-stated the legal position that in cases of physical violence, evidence of the prosecutrix must receive same weight as it is attached to an injured. The Court must act on the evidence of the prosecutrix without insisting for corroboration, if it is satisfied that the testimony of the prosecutrix does not have a strong motive to falsely involve the person charged (see State of Maharastra versus Chandra Prakash Kewal Chand Jain21). In paragraph 16 of the said decision at page 559, the Court observed thus: "16. A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under S. 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under S. 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be ( 1990) 1 SCC 550 alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the . prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to S. 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage: "It is only in the rarest of rare cases if the Court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary." With respect, the law is not correctly stated. If we may say so, it is just the reverse. Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation." (emphasis supplied) 20. IN another case Vijay alias Chinee versus State of Madhya Pradesh22, the Court after considering the abovesaid decision in State of Maharashtra vrs. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 ; and the decisions in State of UP vrs. Pappu, (2005) 3 SCC 594 ; State of Punjab vrs. Gurmit Singh, (2010) 8 SCC 191 (1996) 2 SCC 384 ; State of Orissa Vrs. Thakara Besra, (2002) 9 SCC 86 , State of H.P. vrs. Raghubir Singh, (1993) 2 SCC 622 ; . Whaid Khan Vrs. State of MP (2010) 2 SCC 9 ; Rameshwar vrs. State of Rajasthan, AIR 1952 SC 54 , opined that the statement of prosecutrix, if found to be certainly of credence and reliable, requires no corroboration. The Court may convict the accused on the sole testimony of the prosecutrix. In the case of Gurmeet Singh (supra), the Court opined that because of lapse or laxity in the investigation can be no basis to dis-credit the testimony of the prosecutrix. For, prosecutrix has no control over the investigating agency. The Court may convict the accused on the sole testimony of the prosecutrix. In the case of Gurmeet Singh (supra), the Court opined that because of lapse or laxity in the investigation can be no basis to dis-credit the testimony of the prosecutrix. For, prosecutrix has no control over the investigating agency. It went on to observe that the Courts must, while evaluating the evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In Bharwada Bhoginbhai Hirjibhai vrs. State of Gujarat23 the Apex Court has made a significant observation. It has said that in the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration, as a rule, is adding insult to the injury. The Court observed- why should the evidence of a girl or a woman, who complains of rape or sexual molestation, be viewed with the aid of spectacles fitted with lenses, tinged with doubt, disbelief or suspicion? In the same judgment, the Apex Court has delineated 12 principles as to why the statement of the victim of sex offence must be given due consideration, which read thus: (1983) 3 SCC 217 "(1) A girl or a woman in the tradition- bound non- permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends, and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition-bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross-examination by counsel for the culprit, and the risk of being disbelieved, acts as a deterrent." 21. IN the case of State of Uttar Pradesh vrs. Chhotey Lal the Apex Court re-stated the principles expounded . in the aforesaid decisions. Keeping in mind the dictum of the Apex Court in the aforesaid decisions, I find it difficult to discredit or disregard the version of the prosecutrix that on the nights of 18th and 19th of February, 2010, the accused had intercourse with her on the promise that he will marry her. She has stated that the accused forcibly raped her despite her protest. The fact that she did not suffer any injuries will not militate against the prosecution. The trial Court having accepted this version of the prosecutrix could have recorded finding of guilt against the appellant without looking for corroboration by other material especially when there is nothing in the corss-examination of the prosecutrix that she had any motive muchless strong motive to falsely involve the appellant. Nevertheless, the trial Court has considered the other material which corroborates the prosecutrix version. Nevertheless, the trial Court has considered the other material which corroborates the prosecutrix version. The trial Court has also relied on the report of the FSL wherein human blood and semen were found on the underwear of the prosecutrix. Similarly, human semen was found on the underwear of the accused. The trial Court has also considered the medical evidence and including the evidence of Dr. Charu Samita Thakur PW-9, who has deposed that attempt of sexual intercourse could not be ruled out although there was no edema, redness or signs of inflammation in the labia majora and labia minora and there was nothing to suggest fresh sexual intercourse. This medical evidence clinches the issue in addition to the statement made by the prosecutrix in that behalf. (2011) 2 SCC 550 22. TO get over this position, the appellant would argue that the recovery of the clothes on which human blood and semen . were found was doubtful and stage-managed. However, I find that the recovery of the clothes has been substantiated by the prosecution by not only examining Hira Lal PW-2, who has stated that the accused told the police that the clothes of the girl were lying in the room at Pandoh and accused went to the bed room and got recovered those clothes. Similarly, PW-4, has stated that the accused disclosed in the police custody that he was aware about the clothes of the prosecutrix which can be shown by him and thereafter the accused led the police to the house where the recovery of clothes were made underneath the double bed. The argument, is that, no independent witness was examined by the prosecution to prove the recovery. This contention has been rightly negatived by the trial Court, relying on the decision of the Apex Court in State versus Sunil; Parveen Kumar versus State; and State versus Navjot Sandhu (supra). It is well established position that recovery of clothes at the instance of the accused would lend assurance to the prosecution case. Further, for recovery under Section 27 of the Indian Evidence Act, there is no requirement that the same must be proved through independent witnesses. Even the testimony of police officials can be relied by the Court. The appellant then attempted to discredit the prosecution case by contending that it has come in the evidence that the prosecutrix had taken bath and washed her clothes. Even the testimony of police officials can be relied by the Court. The appellant then attempted to discredit the prosecution case by contending that it has come in the evidence that the prosecutrix had taken bath and washed her clothes. In view of that version, it is unfathomable as to how human blood and semen could be detected on Ext. P-1 (underwear of the prosecutrix). In my view, nothing has come in the cross examination to discredit the finding recorded by the Forensic . Science Laboratory. No suggestion has been made to any of the prosecution witnesses to even remotely indicate that the exhibits forwarded to the laboratory were manipulated and tailor-made as such. In any case, no explanation is forthcoming about the detection of human semen on the under garments of the appellant recovered at his instance from his house in a concealed place. Taking totality of the evidence into account, I find no tangible reason to over-turn the finding of fact recorded by the trial Court about the commission of rape by the appellant on the nights of 18th and 19th of February, 2010. 23. HAVING said this, it would necessarily follow that the appellant is guilty of offence punishable under Section 376 of IPC. The next question is about the finding of guilt in relation to offences under Sections 366 and 363 of IPC. The evidence of the prosecutrix, which has remained unshaken, does establish that the prosecutrix was coaxed to accompany the appellant to his house in the car in which he was waiting for her. It has also come in the evidence that he promised the prosecutrix that he will marry her. The defence of the appellant is that she had gone with him on her own accord. Considering the finding that the prosecutrix was below 16 years of age, coupled with the version of the prosecutrix that she was told by the appellant that he will marry her and on that pretext had illicit intercourse with her, it was certainly a case covered by Section 366 of IPC and also punishable under Section 363 of IPC. The trial Court has recorded a finding of fact that the prosecutrix had no reason to depose falsely against the accused and that the prosecutrix had left the house on the inducement of . the accused and that she was less than 18 years of age. The trial Court has recorded a finding of fact that the prosecutrix had no reason to depose falsely against the accused and that the prosecutrix had left the house on the inducement of . the accused and that she was less than 18 years of age. The trial Court has relied on the unreported decision of this Court in the case of Chandu Ram vs. State of H.P. (Cr.A. No.294 of 2010), dated 1.7.2010, wherein the prosecutrix was taken from her home on the pretext that she would be given mobile phone and clothes. She was subsequently raped. It was held that offence of kidnapping the prosecutrix with the intent that she would be forced to have illicit intercourse was made out, thus, attracting the provisions of Sections 366 and 363 of IPC. Further, as the offence under Section 363 IPC was a minor offence, would merge in the major offence under Section 366 of IPC for which no separate sentence was required. This finding recorded by the trial Court is unexceptionable, having accepted the version of the prosecutrix to be truthful. In other words, the trial Court justly recorded finding of guilt against the appellant for offence punishable not only under Section 376 of IPC, but also under Sections 366 and 363 of IPC. 24. THE last question is whether the sentence imposed by the trial Court is excessive or inappropriate. The trial Court has directed the accused to undergo sentence to rigorous imprisonment for a period of 7 years and to pay fine of Rs.10,000/- and in default, to further undergo simple imprisonment for six months for the commission of offence under Section 376 of IPC. As regards offence under Section 366 of IPC, the accused has been directed to undergo rigorous imprisonment for a period of five years and to pay fine of Rs.10,000/- and in default, to further undergo simple imprisonment for a period of six months from the date of commission of offence. The trial Court has further directed that the . substantive sentences of imprisonment shall run concurrently and out of the fine realized, a sum of Rs.15,000/- be awarded to the victim as compensation. The trial Court has further directed that the . substantive sentences of imprisonment shall run concurrently and out of the fine realized, a sum of Rs.15,000/- be awarded to the victim as compensation. The trial Court has also directed to provide set off to the appellant-accused as per the provisions of Section 428 of Cr.P.C. The operative order passed by the trial Court, in the fact situation of the present case, in my opinion, is unexceptionable. The trial Court has recorded reasons for awarding that sentence. It has referred to the decision of the Apex Court in State of M.P. vs. Babu Lal25, wherein it is held that social impact of the crime, particularly, where it relates to offences against women, cannot be lost sight of and per se require exemplary treatment. No liberal attitude of imposition of meager sentence or too sympathetic view may be counter productive in the long run and against social interest. Keeping this principle in mind, the trial Court has awarded sentence of rigorous imprisonment as also fine to be paid by the appellant. No interference with the said discretionary order is warranted and more so, because the same is unexceptionable. 25. IN view of the above, this appeal ought to fail. The same is, therefore, dismissed.