Surinder Singh, J.
1. The appellant has challenged his conviction and sentence passed by the learned Additional Sessions Judge under Section 376 of the Indian Penal Code, whereby he was sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 3,000/-. The period of detention, if any, undergone by him during the investigation of the trial was ordered to be set off.
2. Precisely, the appellant was put on trial on the allegations that the prosecutrix aged about 16 years was engaged with one Budhi Singh. Her marriage was fixed for 23-4-1998, but on 18-4-1998, the appellant started persuading her to marry him, on the assurance to keep her well with great comforts and offered 10 tolas of gold ornaments, thus allured and compelled her not to marry Budhi Singh. It was also alleged that the appellant induced and took her away from her parental house during the intervening night of 18th/19th April, 1998 to his house and committed sexual intercourse on the assurance to marry her, where she was kept in the night and in the wee hours of the morning she was taken to the jungle on 19-4-1998 and in the afternoon next day i.e. on 20-4-1998, she was brought back to his house. When Jagat Ram entered his room, the prosecutrix was pushed outside by his parents and relatives to the verandah where she put a dharna.
3. On 23-4-1998, the prosecutrix approached her Advocate, who drafted a complaint at the instance of the prosecutrix and presented it in the Court of the Executive Magistrate. He forwarded the same to the SHO Karsog for immediate and necessary action in accordance with law. The police registered the FIR Ex. PK under Section 376 of the Indian Penal Code.
4. Police took into possession the clothes of the prosecutrix vide memo Ex. PB and moved an application Ex. PE for getting her medically examined. On her medical examination by P.W. 7 Dr. Renu Behl, did not find any injury on her person, but on the vaginal examination, she found the hymen torn at 5 O'clock and in her opinion, the prosecutrix was exposed to the coitus. She issued the medico legal certificate Ex. PF to this effect and was referred to the Radiologist for assessing her skeletal age. On the basis of the epiphysis of bones, P.W. 4 Dr. G.D. Gour assessed her age between 16 to 17 years.
5. As per the register of admission and the school leaving certificate, her date of birth was recorded as 30-5-1982, as stated by P.W. 9 Mangat Ram and he had issued the certificate Ex. PJ to this effect.
6. The clothes of the prosecutrix were sent for the forensic examination. As per the report Ex. PA, the Salwar of the prosecutrix contained the semen stains.
7. The appellant was arrested and at the request of the police he was medically examined by P.W. 8 Dr. Mahesh. He did not find anything to suggest that the appellant was not capable of performing the sexual intercourse and issued medico legal certificate Ex. PH.
8. During the investigation of this case, the police prepared the site plan Ex. PM and after recording the statements of the witnesses and completing the challan, it was presented in the Court for the trial of the appellant under Sections 366 and 376 read with Section 34 of the Indian Penal Code and under Section 3 of the Prevention of Atrocities (Scheduled Castes and Scheduled Tribes) Act.
9. The learned trial Court, prima facie found the existence of the ingredients of the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code, accordingly he was charge-sheeted. The appellant pleaded not guilty and claimed trial.
10. The prosecution examined its witnesses to prove the charges and the appellant was also examined under Section 313 of the Code of Criminal Procedure, with respect to the circumstances which were found attendant upon him.
11. In defence, it was put to the prosecutrix in her cross-examination that she was more than 18 years of age and she forced the appellant to leave his house along with her. He denied having committed sexual intercourse with her as alleged. However, his case under Section 313 of the Code of Criminal Procedure was of total denial, but he stated that she was being forcibly married to Budhi Singh by her mother and brothers, on this she approached him and expressed her desire to marry him to which he refused. The appellant when called upon to enter into his defence, he did not lead any evidence in defence.
12. At the end of the trial, the appellant was convicted and sentenced as aforesaid.
13. Feeling aggrieved and dissatisfied by the impugned judgment of the conviction and sentence, the instant appeal has been filed, on the grounds that the learned trial Court committed the material illegalities and irregularities while appreciating the evidence on record and further that the prosecutrix was proved to be more than 18 years of age, therefore, in such like circumstances, the implicit reliance placed on the testimony of the prosecutrix was wrong and illegal.
14. Shri Ajay Sharma, learned Counsel for the appellant has vehemently argued that the prosecutrix was above the age of discretion. The circumstances suggest the consent and otherwise also the statement of the prosecutrix is full of contradictions and replete, thus inspires no confidence to sustain the conviction of the appellant.
15. Shri J. S. Guleria, learned Assistant Advocate General for the State has supported the findings arrived at by the learned trial Court and submitted that the conviction is legally and factually sustainable and the sentence passed by the learned trial Court is already on the lower side, which requires to interference.
16. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the record and judiciously scanned the evidence in the light of the well settled principles of law.
17. There is bed-roll of the judicial precedents repeatedly reiterated by the Apex Court that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is also no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is physical as well as psychological and emotional. The Apex Court has held that if the Court on facts finds it different to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony and assurance short of corroboration as understood in the context of an accomplice would suffice. In this behalf reliance can be put on the judgments rendered by the Supreme Court in case of State of Himachal Pradesh v. Shree Kant Shekari : AIR 2004 SC 4404 : 2004 Cri LJ 4232 and State of H.P. v. Asha Ram : AIR 2006 SC 381 : 2006 Cri LJ 139.
18. Now on examining the case of the prosecution against aforesaid facts and law, I find that the testimony of the prosecutrix is worth inspiring confidence.
19. Insofar as the age is concerned, her skeletal age has been assessed to be between 16 to 17 years based upon the X-ray Exts. PC1 to 3 by P.W. 4 Dr. G. D. Gour. In Cross-examination he has stated that estimation of the age is reliable one and there can be variation of 1 to 2 years on either side, but he categorically denied the age of the prosecutrix was 19 years at the relevant time. Mangat Ram is an important witness as he is the official, who has entered the date of birth of the prosecutrix in the admission register at the time of her initial admission in the first standard. He has categorically stated that the prosecutrix was admitted in the school on 19-4-1989, but she left on 19-8-1989 in Class Ist and again she was admitted in the school on 12-3-1991 and left the school on 17-3-1993 when she was in the third standard and her date of birth at both the times is recorded as 30-5-1982, which comes about one month less than 16 years of age on the date of alleged incident. He has proved the certificate Ex. PJ issued by him. Although he did not bring the record of the admission viz. proof of age appended to the admission form, but he being the author of both the entries, which were made by him in official discharge of his duties in the register aforesaid is relevant document and admissible, under Section 35 of the Evidence Act and his statement cannot be doubted in absence of any allegation made against him.
20. The learned Counsel for the appellant has referred to the statement of P.W. 2 Kehar Singh, brother of the prosecutrix to show that she was major at the time of incident, wherein he stated his age 26 years at the time of recording his evidence before the learned trial Court on 11-7-2001 and further stated that the prosecutrix is the youngest one, who is six years younger to him. I have examined this plea, but this does not find favour with the Court.
21. In this case, the alleged incident had taken place on 18/19-4-1998. on which date. P.W. 2 was aged about 22 years by deducting 6 years the age of the prosecutrix comes to 16 years, which matches with the entries of the admission register itself.
22. For the sake of arguments, even if she is considered to be little above the age of discretion, even then no benefit can be given to the appellant because the sexual intercourse without consent with a woman more than 18 years is also a rape. The appellant has not pleaded consent his case is that of denial. However, it is clearly proved to be the case of allurement and sentimental blackmailing of the prosecutrix by the appellant. To appreciate this circumstance, the statement of the prosecutrix is relevant and quite important. She deposed that she was engaged to Budhi Singh which fact is also admitted by the appellant in his statement under Section 313, Cr.P.C. She knew the appellant, who was residing in the house at two minutes walkable distance of her house. She stated that 3/4 days before her marriage, the appellant told her that if she would marry Budhi Singh, he would commit suicide in the backside of her house. She felt frightened. It was further stated by her that the appellant threatened her that he would consume the poison and would implicate her family members falsely in the criminal case. She further stated that she did not agree to the proposals of the appellant, but he constantly raised pressure on her to submit his will. She also stated that she made it clear to the appellant that she was illiterate and belonged to Herijan caste, whereas the appellant was a literate and belonging to a Rajput family, therefore their marriage was not possible, but in spite of that the appellant insisted upon her to get married with him and told that he did not believe in castism and continued alluring and promised to offer her gold ornaments. Even he fixed the time for taking her away along with him at 7 p.m. but she did not agree. In the evening, according to her, she went towards the jungle to answer the call of nature, the appellant suddenly came there, gagged her mouth, forcibly picked her up and took her 3-4 kms. away from her village. She was taken in the underground story of his newly built house in village Mana and committed sexual intercourse upon her. She was kept till 1.00 a.m., thereafter, she was taken to the Jungle side. She categorically stated that sexual act committed by the appellant was without her consent. They spent one day in the jungle then he took her to his house next day, where many relatives of the appellant had assembled. The appellant was walking ahead of her followed by her. The relatives of the appellant took the appellant inside and did not allow her to enter the house. Rather, they threatened her as to how she dared to come there being a Harijan girl. In turn she told that they have no concern with them and she requested to allow her to meet the appellant, but she was not allowed to do so. Then she sat on Dharana in front of the house of the appellant. From there she was taken by P.W. Lachhi Ram of village Trahi. Her mother and the brothers told them that she should go back to the appellant as she has no place to live with them. She further stated that next day, Jethu and Lachhi Ram took her to village Pangna, on the assurance that she could live with them till the appellant returned. On the way Sher Singh, father of the appellant met them who threatened to kill her by throwing into the khud. When she returned to her house next day, her cousin Gopi Ram took her to Karsog and contacted their Advocate P.W. 13 Ram Lal Sharma, who prepared the complaint. She admitted her signatures and its presentation before the S.D.M. who in turn sent it to the police for investigation.
23. The prosecutrix has also stated that she was wearing the Salwar Ex. P1 and shirt Ex. P2 at the time when the rape was committed by the appellant on her and later it was handed over to the police during investigation. Both these articles were sealed and taken into possession vide memo Ex. PB. She has stated having been medically examined by the Doctor and identified her Salwar Ex. P1 and shirt Ex. P2 during the trial of the case.
24. In her cross-examination, she admitted that Gopi Ram had consulted the Advocate for drafting the complaint, which was signed by her. Her statement was recorded by the police during investigation. She was also confronted with her statement to prove the contradictions, which were not got proved in accordance with law, therefore, it looses its importance. However, she specifically denied that she had forced the appellant to leave his house along with her.
25. P.W. 6 Jethu Ram has corroborated the version of the prosecutrix. According to him, the family of the prosecutrix was refusing to accept her when he took the prosecutrix to her house, thus, he along with Lachhi Ram took her to their house where she stayed with them during the night but next day, they took her to the P. P. Pangna.
26. P.W. 2 Kehar Singh her brother has stated that when the prosecutrix did not turn up for the night, they went in search of her, on 20-4-1998, when he along with other boys went to graze the cattle in Jangli Nallah, there he came to know that the accused and the prosecutrix both are in the house of the appellant. He went there, he found the prosecutrix setting in the courtyard of the appellant. Lachhi Ram took her to their house, but his mother declined to accept her. P.W. 5 Devi Ram has also offered the corroboration to his statement.
27. P. W. 3 Tulla Ram is a witness of the recovery of the clothes Exts. P1 & P2 of the prosecutrix.
28. PW 13 Ram Lal Sharma, Advocate, who drafted the complaint of the prosecutrix, has proved its contents and the presentation before the Executive Magistrate. He categorically denied that no allegations were made by her against the appellant. He also denied that she never came to him for moving the application.
29. On the critical examination of the aforesaid evidence, as already stated above, it is apparent that the prosecutrix was compelled by the appellant to decline the marriage with Budhi Singh and alleged to marry him and he promised to offer all the comforts of life along with precious ornaments and she was taken forcibly, to the ground floor of the newly built house where she was ravished against her wishes, during the intervening night of 18th/19th April, 1998.
30. The prosecutrix was medically examined on 24-4-1998 by PW7 Dr. Ranu Behl. On her genital examination, i.e. after about 6 days, the Doctor found slight congestion on peri urethral mucosa. The hymen was found torn and healed at 5 O'Clock position and two fingers were easily introduced into the vagina, P/V-U.T was found introverted and A/F was nulliparous mobile and clinical findings were that the prosecutrix was exposed to intercourse and this fact has not been disputed in her cross-examination.
31. Admittedly, the prosecutrix was unmarried before the said incident and she has categorically stated that she was wearing Salwar Ex.P1 and shirt Ex.P2 at the time when she was raped which facts stands proved. On the forensic examination of her Salwar, it was found having the semen stains, which affords material corroboration to her version. Therefore, in the proved circumstances stated above, I do not find that the statement of the prosecutrix is not worth inspiring confidence.
32. The appellant has taken two contradictory irreconcilable circumstances of evidence firstly, that no such incident had taken place and the other pleading that the circumstances show that the act was consented as she was major at the time of the alleged incident. Unfortunately, it is not so. The consent in the instant case is not at all proved in this case, primarily for the reason that immediately after the incident she protested and put Dharna in the courtyard of the appellant, thereafter approached the Advocate to draft a complaint against the appellant and then made the statement to the police about the rape committed by the appellant and categorically also stated against him during the trial of the case. Therefore, it was not a case of consent at all even if the age of the prosecutrix is taken to be more than 16 years of age. The appellant could not prove even by the probability his defence and also the fact why she chose him to foist a false case on him.
33. Thus for the foregoing reasons, I do not find any illegality or perversity in the judgment of conviction and sentence passed by the learned trial Court, as such, the appeal sans merit and is accordingly dismissed.
34. Since the sentence was suspended by this Court vide its order dated 18-1-2002, but in view of the dismissal of the appeal of the appellant, the appellant is hereby directed to surrender before the learned Additional Sessions Judge, Mandi on 27-3-2009, failing which the learned trial Court i.e. the Additional Sessions Judge, Mandi shall take appropriate steps for execution of the remaining sentence imposed upon the appellant.
Send down the records.