M.R. Verma, J.
1. The appellant-accused (hereinafter referred to as the Accused) has preferred the present appeal against the judgment passed by learned Sessions Judge, Solan in Session Trial No. 2-A/7 of 1999 dated 17-5-1999 whereby the accused has been convicted under Sees. 376/511 I.P.C. and has been sentenced to undergo rigorous imprisonment for 3 years and to pay fine of Rs. 3000/- and in default of payment of fine to undergo further imprisonment for six months.
2. Case of the prosecution against the accused is that Kumari Urmila (PW-4) was aged abut 11 years in the year 1991 and was studying in 5th standard in Government Middle School Bathalag. Her brother was also studying in the same school. On September 25, 1991 heryounger brother, namely, Baldev passed stool in his clothes whereupon Asha Sharma (PW-6) asked Urmila the prosecutrix to take him with her and wash his clothes. The prosecutrix took her younger brother to the water pond on way to their house where she started cleaning his clothes. At that time accused came there and requested prosecutrix to help him in lifting a maize bundle kept in the field. The accused however took her to a Nallah and subjected her to rape. In the process when the prosecutrix cried, accused threatened her to be throttled in case she cried. Finally the accused fled away. She came to the place where her brother was and then to her house. She narrated the incident to her grand mother, mother Inder Kala PW-1 and aunt Roshani Devi PW-5. They removed her Salwar and examined her private parts and found them swollen and also found whitish stains on her Salwar. The Salwar was taken apart and the prosecutrix was given another Salwar to wear. No male member of the family was present in the house and it had become dark, therefore, on the next day PW-1 Inder Kala along with the prosecutrix went to the Police Station and lodged the F.I.R. Ex. PA at Police Station, Arki. The prosecutrix was sent for medical examination which was conducted by PW-8 Dr. Manjit Kaur Baweja. She preserved the Salwar of the prosecutrix she was wearing at that time, took vaginal swab and issued M.L.C. Ex. PW-8/B. The prosecutrix was referred to radiologist for determination of her age and the report about such test given by PW-9 Dr. R.G. Sood is Ex.PW-9A. During the course of investigation the Salwar Ex. P-1 which the prosecutrix was wearing at the time of the occurrence and was removed by her mother and others when she returned home was produced by the mother of the prosecutrix and was taken in possession by the police vide Memo Ex. PB. The birth certificate of the prosecutrix Ex.PD issued by the Gram Panchayat and certificate regarding her date of birth Ex.PW-3/A issued by the Headmaster of the School where she was studying were also taken in possession by the police. Salwar Ex.P-1 was sent for chemical analysis to the Forensic Science Laboratory, H.P. Shimla and vide report Ex. PH semen stains were found on the Salwar. It is further the case of the prosecution that after committing the rape accused absconded and was declared proclaimed offender. He surrendered and was arrested in November, 1998 and was got medically examined from PW-12 Dr. Yuv Raj who has issued the M.L.C. Ex. PW-12/A about such examination of the accused.
3. The accused came to be tried by the learned Sessions Judge on a charge under Section376 I.P.C.
4. To prove the charge against the accused the prosecution examined PW-1 Inder Kala, the informant mother of the prosecutrix, PW-2 Narotam Ram Ex-President of Gram Panchayat, PW-3 Nand Lal a teacher in the School where the prosecutrix was studying, PW-4 Urmila Devi the prosecutrix, PW-5 Roshni Devi aunt of the Prosecutrix, PW-6 Asha Sharma a teacher in the school where the prosecutrix was studying, PW-7 Ram Prakash a witness regarding taking in possession the Salwar Ex. P...., PW-8 Manjit Kaur Baweja who medically examined the prosecutrix, PW-9 Dr. R.G.Sood who issued the opinion about the skeleton age of the prosecutrix, PW-10 Bali Ram Sub-Inspector, Police and PW-11 Rattan Singh Inspector Police who partly conducted the investiga tion in the case, PW-12 Yuv Raj who medically examined the accused, PW-13 Sh. Shri Ram Head Constable who took the case property to the F.S.L., PW-14 Hem Singh who partly conducted the investigation and PW-15 Kuldeep Singh who has also partly conducted the investigation.
5. Statement of the accused under Section 313 Cr.P.C. was recorded wherein he denied the case of the prosecution and claimed to be innocent. He has further stated that the witnesses have deposed against him because of land dispute.
6. To prove the land dispute the accused examined his father DW-1 Gita Ram and DW-2 Devi Chand.
7. Learned Sessions Judge found the accused guilty of the commission of the offence under Sees. 376/511 I.P.C. and accordingly convicted and sentenced him as aforesaid.
8. I have heard the learned counsel for the accused and the learned Additional Advocate General for respondent and have also gone through the records of the case.
9. The learned counsel for the accused has assailed the impugned conviction and sentence on the ground that there are reasons to believe that the case is fabricated one and outcome of the spoiled relations between the family of the prosecutrix and the family of the accused. To substantiate the ground it was contended that it is evident from the statements of DW-1 Geeta Ram and DW-2 Devi Chand that on 25-9-1990 a tree standing on the boundary of Geeta Ram father of the accused was felled by him which led to a quarrel. PWs Kalawati and Chanderkala threatened him to spoil his family and thereafter the relations between them became strained and they continued to challenge and abuse Geeta Ram and his family and that thereafter on 25-9-1991 a false case was made out against the son of Geeta Ram, that is, the accused. It was further contended that DW-1 Geeta Ram father of the accused went to Mashobra and complained about the implication of his son in a false case by the women folk of the family of Jagdish, father of the prosecutrix. The learned counsel sought corroboration of the defence that the case against the accused is false from the fact that the salwar of the prosecutrix which she was wearing at the time of the alleged occurrence was handed-over to and taken in possession by the police not at the time of lodging of the F.I.R. when it could be produced but on the 3rd day of the occurrence, that is, on 28-9-1991. The delay in the production of this Salwar was subsequently found to contain semen stains leads to the inference that some tampering with the Salwar was done to stain it with semen. Thus, in view of this fabrication a grave suspicion is created about the truthfulness of the prosecution version. It was further contended that the allegation of the prosecutrix clearly and unambiguously in her statement is that in fact there had been complete penetration and she was raped whereas this part of her statement is wholly belied by the medical evidence and even by the conclusion arrived at by the learned Sessions Judge that there was no penetration at all. Therefore, even the unfounded version of commission of rape as given by the prosecutrix is another factor which renders the prosecution story unreliable. The learned counsel has further pointed out certain contradictions regarding the place of occurrence as given in the F.I.R., the statements recorded in the proceedings under Section 299 of the Code of Criminal Procedure and the statements recorded at the trial and that these contradictions have not been taken into account by the learned Sessions Judge. Hence, it has been urged that even the commission of offence punishable under Sections 376/511, I.P.C. was not proved against the accused and, therefore, he could not be convicted and sentenced.
10. On the other hand the learned Additional Advocate General has supported the reasonings given by the learned Sessions Judge in arriving at the conclusion that the accused was guilty of commission of an offence punishable under Sections 376/511, I.P.C. and has contended that the conviction of the accused is sustainable on the basis of the evidence on record.
11. PW-4 Kumari Urmila Devi, the prosecutrix, in her statement has fully supported the prosecution version regarding commission of rape on her by the accused after having stated about the circumstances under which she had reached at the Bowli with his brother. She has further stated that accused came there, asked her to help him in lifting maize load kept in the fields. The accused however held her from the arm and took her to a Nullah and after removing his pant and underwear, removed her salwar, made her lie on the ground and then committed rape on her. When on feeling pain she started crying the accused threatened her to be throttled. After having committed the rape the accused fled away and the prosecutrix while crying and weeping went to her house along with her brother and narrated the incident to her mother Chander Kala, grand mother Kalawati and Aunt Roshni Devi. They inspected her private parts and some white stains were found on the salwar. The salwar, prosecutrix was wearing, was kept apart and she was given another salwar. The F.I.R. Ex. PA was thereafter lodged and the prosecutrix is also a signatory to the F.I.R. along with her mother PW-1 Inder Kala. The prosecutrix supported the version as contained in the F.I.R. on all the material particulars. The version of the prosecutrix is supported by PW-1 Inder Kala and PW-5 Roshni Devi as regard the account of occurrence as given by the prosecutrix after reaching at her house. They have further supported the version that after opening the salwar, the prosecutrix was wearing at that time, they checked her private parts which were found swollen and white stains were found on the salwar she was wearing. The prosecutrix was medically examined by PW-8 Manjit Kaur Baweja who vide M.L.C. Ext. PW-8/B did not find any injury on her private parts and hymen was found intact but a superficial irregular laceration was found present on the posterior commissure and perineum about 1 cm., red in colour. The laceration was extended towards the Anal sphincter. The said laceration was opined to be of a duration of within 48 hours. As per her opinion there was an attempt for the act and - it emerges from the reading of her statement that there was no penetration. Thus, the statement of the prosecutrix finds corroboration from the opinion of the medical expert to the extent that around the time of occurrence there had been an attempt to have sexual intercourse with her.
12. The salwar which the prosecutrix was wearing at the relevant time was taken off by her mother when she reached home and as per the statements of prosecutrix, PW-1 Inder Kala and PW-5 Roshni Devi there were some white stains on the salwar. According to the prosecutrix her salwar got such stains at the time when the accused raped her. This salwar was not produced at the police station at the time of the lodging of the F.I.R. but it is contained in the F.I.R. that the salwar which the prosecutrix was wearing at the relevant time had whitish stains and had been safely kept at home which would be produced at the relevant time. The F.I.R. was lodged on 26-9-1991, the prosecutrix was medically examined on the same day and her mother PW-1 Inder Kala remained present with her. The X-ray of the prosecutrix was taken on 27-9-1991. It is evident from the statement of PW-15 Kuldip Singh the then SHO Police Station, Arki that he visited the spot on 28-9-1991. It was on 28-9-1991 that the Salwar of the prosecutrix Ex. P-1 was taken in possession vide memo Ex. PB. The taking in possession of the Salwar by the police is cogently established in view of the statements of PW-15 Kuldip Singh, PW-1 Inder Kala and PW-7 Ram Parkash. This Salwar was sealed with seal-P by the police and was sent for chemical analysis and vide report Ex. PW-11 /B was found to contain human semen. Be it stated that the occurrence was reported to the police by a village woman who is otherwise not - shown to be well read and capable of knowing the implications of law. The omission on her part to carry the salwar along with her at the time when the FIR was lodged does not necessarily mean that the salwar was kept back with a view to make it semen-stained and then use as evidence against the accused. There is no suggestion in this regard to any of the material witnesses. Therefore, from the mere fact that the salwar was not handed over to the police at the time of the lodging of the F.I.R. but was handed over on 28-9-1991 when the police came on the spot it cannot be inferred that it is fabricated piece of evidence and, therefore, the entire case of the prosecution must be disbelieved. In view of the contents of the F.I.R., the medical examination of the prosecutrix on 26-9-1991, taking of her X-ray films on 27-9-1991 and then taking her Salwar in possession on 28-9-1991 when the police arrived on the spot fully explains the delay in taking - possession of the salwar and cannot be treated as a suspicious circumstance rendering the case of the prosecution false or unreliable.
13. There are yet other circumstances which lend credibility to the prosecution version on some of its material particulars. One of such circumstance is that DW-1 Geeta Ram, father of the accused admittedly approached Jagdish, father of the prosecutrix at Mashobra immediately after the occurrence. It is so stated by DW-1 Geeta Ram himself. Why did he approach the father of the prosecutrix immediately after the occurrence is explained by him on the ground that he had gone to Jagdish to apprise him that women folk of his house had made a false case against the accused. However, the explanation is not reliable for the reason that had there been enmity between the family of the accused and the family of the prosecutrix, as claimed for the defence in the ordinary course of conduct DW-1 Geeta Ram would not have gone to the father of the prosecutrix but would have taken a lawful course for redressal of his grievance of false implication of his son in the case. Moreover, it is not disputed that Geeta Ram before going to Mashobra went to PW-2 Narotam, Ex-President of the Gram Panchayat Palania. He has stated that Geeta Ram had come to him and told him that his son teased the daughter of Jagdish of village Chainya (that is prosecutrix) and did unwarranted act with her and requested him to accompany him to Mashobra where father of the girl was working. DW-1 Geeta Ram in his statement had nowhere controverted this statement of PW-2 Narotam Ram. Therefore, there is no reason to disbelieve the version of PW-2 Narotam Ram assuring the involvement of the accused in the commission of the offence and the attempt by his father to settle the matter with the father of the prosecutrix.
14. The other circumstance which lends corroboration to the prosecution version is the fact that after the commission of the offence the accused fled away from his village and was arrested after about 7 years of the occurrence. As per the version given by PW-14 Hem Singh, S.I. the accused was declared proclaimed offender and was arrested in November, 1998 when his bail application was rejected by this Court. It is not disputed even by the accused or DW-1 Geeta Ram that the accused had after the occurrence fled away from the village. The explanation given about the conduct of the accused in absconding after the occurrence is that due to land dispute accused was threatened by Inder Kala so he went out of the village. The land dispute between the parties allegedly took place one year before the fleeing of the accused from his village. So such a remote occurrence does not afford a good ground for him to leave his village and the explanation, therefore, is simply an afterthought.
15. The learned Sessions Judge on the basis of the evidence on record found it to be a case of attempt to rape and not that of rape. Such a conclusion is fully and firmly established on the basis of the cogent and reliable evidence led by the prosecution. As already stated hereinabove the delay in production of the salwar to the police is duly explained and does not render the prosecution case suspicious.
16. The contention for the accused that the case is an outcome of enmity is not reliable. The alleged dispute had its genesis in the felling of a tree by the father of the accused on his land on the boundary with the field of the father of the prosecutrix. It has not been specifically put to the material witnesses, namely, PW-1 Inder Kala, PW-4 Urmila Devi and PW-5 Roshni Devi. DW-1 Geeta Ram in his cross examination could not state the number of his fields in which the tree was felled or the field number of the adjoining land of Jagdish. No copy of revenue papers, particularly, the Sajra has been filed to show that their lands have a common boundary. Admittedly no physical fight took place. The matter was not reported to any authority. Had there been a dispute about the felling of a tree illegally, some litigation or action in the ordinary course would have been taken against the wrong doer but nothing like that is shown to have happened? Though to corroborate - the version of the alleged felling of the tree DW-2 Devi Chand has been examined but he is not the resident of the concerned village, where there are 15 or 16 houses, but is a resident of a place at a distance of 3/4 kilometers from the house of Geeta Ram. Even if it is presumed that some tree was felled and some dispute arose between the parties about one year before the present occurrence and no litigation took place between the parties even then it cannot afford a good ground for falsely implicating the accused in a serious offence of rape by staking the honour and future of an unmarried girl. Even if any score was to be settled other accusations could be levelled against the accused and it is not believable that for a petty matter like felling of a tree a Hindu family will come forward with a false allegation that the chastity of their daughter has been violated and she has been raped.
17. It is true that the prosecutrix has in her statement stated that at the time of rape there was full penetration which statement is not corroborated by the Medical evidence. At the relevant time prosecutrix was a girl of tender age that is about 11 years and presumably not in a position to know and understand as to what sexual intercourse is. A girl of such tender age may have her own conception as to what the sex is which may not be correct. Therefore, her saying that it was a complete act of sex cannot render the entire prosecution version as unbelievable and unreliable. An injury near her private part was found at the time of her medical examination which is suggestive of the attempted rape.
17A. The minor discrepancies/contradictions which have crept (sic) in the statements of the witnesses about the manner as to how the prosecutrix was taken from the pond to the place of occurrence by the accused and the place of the occurrence are insignificant.
18. The Court while appreciating the evidence must not attach undue importance to minor discrepancies which do not shake the basic version of the prosecution. Such discrepancies may creep due to normal errors of perception and observation and lapse of memory, therefore, should be given due allowance. As and when a doubt arises in respect of certain facts stated by a witness the proper course is to ignore such facts which may seem to be exaggerated unless they go to the root of the case so as to demolish it entirely.
19. The contradictions/discrepancies pointed out by the learned counsel for the accused are; (i) that PW-4 Urmila Devi when examined on 17-3-1999 at the trial has stated that the accused requested her to help him in lifting a maize load kept in the field and thereafter held her from the Arm and pulled her down below in the Nallah whereas in her statement recorded during the proceedings under Section 299, Cr. P.C. she has stated that she accompanied the accused to the field in order to help him in lifting the Bundle of the crop and accused Nand Lal caught hold of her and thereafter committed rape on her. The contradiction is not of any vital nature. It is possible that the prosecutrix might have accompanied the accused upto the field of her own accord as per the request of the accused to help him and then the accused might have caught hold of her and taken to a Nallah to commit forcible sexual intercourse with her. Thus, from this contradiction it cannot be inferred that the place of the attempt to commit rape was the field and not the nearby Nallah; (ii) Next contradiction pointed out was that the prosecutrix in her statement at the trial has stated that the accused threatened her that in case she raised noise he would throttle her whereas in her statement at the time of proceedings under Section 299, Cr. P.C. she had stated that the accused threatened her that in case she raised cries or informed anybody he would kill her. This contradiction is insignificant and the words used at the time of making these two statements - differ but mean almost the same thing.
20. It can also not be ignored that the occurrence took place on 25-9-1991 whereas the prosecutrix was examined at the trial on 17-3-1999 i.e. after more than 7 years. In view of this period having elapsed in between a photographic version of the occurrence cannot be expected to be given by the witness.
21. In view of the above discussion, what can be said is that there is cogent and reliable evidence to conclude that the accused attempted rape on the prosecutrix and he has been rightly held guilty of the offence punishable under Sections 376/511 of the Indian Penal Code.
22. It was lastly contended by the learned counsel for the accused that the offence was allegedly committed in the year 1991, therefore, the time which has elapsed in between and the fact that at the time of the commission of the offence the accused was about 16 years of age some leniency may be shown in the matter of punishment awarded to the accused. No.-doubt the offence was committed on 25-9-1991 and the accused was convicted and sentenced on 17-5-1999. However, the delay caused in the disposal of the case is entirely attributable to the accused wo has absconded with a view to evade the trial and the punishment immediately after the commission of the offence and was apprehended after about 7 1/2 years, therefore, the delay in the disposal of the case cannot be treated as a mitigating circumstance in the case. The age of the accused at the time of commission of the offence though alleged to be about 18 years of age at the time of commission of the offence. The allured a girl of tender age to accompany him n the pretext to get some help from her and took advantage of her good gesture in accompanying the accused to help him, therefore, I am of the view that the punishment awarded to the accused also does not call for any interference.
23. As a result, the appeal fails and is accordingly dismissed.