Judgment:
Surinder Singh, J.
1. The acquittal of the respondent, in Sessions Case No. 36 of 1994, passed by Learned Sessions Judge Chamba, on 17th July, 1995, for the offence under Sections 366 and 376 of the Indian Penal Code, has been challenged in this appeal by the State.
2. Heard and gone through the evidence on record.
3. In short, the prosecution case can be stated thus. In the year 1992-93, respondent was working as an Inspector in the Horticulture Department. He was the incharge of Progeny and Demonstration Farm in Pangi Block at Killar, District Chamba. The prosecutrix was employed as a daily-waged worker in the said Farm, in the month of December, 1992. The respondent was residing in the government quarter nearby. In the month of December itself, one day the respondent handed over the keys of his residence and asked the prosecutrix to wash his clothes. The prosecutrix went to his quarter, after short while the respondent also reached there and committed rape on her. He threatened her not to disclose this fact to anyone lest she would be retrenched. Due to this fear, the prosecutrix kept mum. It is alleged that even after the aforesaid incident, the respondent kept on exploiting her sexually, which resulted into her pregnancy. The respondent was informed by her about it and requested him to marry her. She stopped coming to the Farm and started doing tailoring work in the village.
4. It is also alleged that on 20th January, 1993, the respondent sent his Peon Hari Singh to call her to his residence, on the pretext of some urgent work. She went there. The respondent enquired about the fact of her pregnancy, to which she replied in affirmative. On this, he assured her that he would get it terminated. During the night she was kept there and was raped again. In the morning, she was given some injection, which caused pain in her stomach. The respondent told that her pregnancy would get terminated but flatly refused to marry her and warned her not to visit his residence again. She narrated the above facts to her elder sister PW7 Sulochna Devi with whom she was residing. Thereafter the prosecutrix alongwith her sister went to the police station and lodged the FIR Ex.PA.
5. The police got the prosecutrix medically examined from PW2 Dr. Rajesh Kumar on 22nd January, 1993 at 11.45 a.m. in the presence of a Female Health Worker Smt. Rekha Thakur. The prosecutrix gave the alleged history of medicine i.e. yellow and white coloured tablets and one injection. The doctor on her enquiry recorded that there was no change of clothes since the day of alleged last sexually activity. On her examination, Doctor did not find any struggle marks on any part of her body. Although, the prosecutrix complained of amenorrhea since Ist December, 1992. She allegedly complained of vomiting thrice and nausea off and on, in the morning and increased frequency of urine, but Doctor noticed that there was no Montgomery tubercles of areola. Papilla was found bilaterally projected from the level of breast and areola. On the genital examination, the doctor did not find any loose pubic hair. There were no blood stains. Although few hairs were matted with white stains, but there were no bruises, abrasions, inflammation or redness on labia majora. Clitoris was small and Urethral opening was not red or inflamed. There was no discharge from Urethral opening. Labia majora covered the labia minora. Labia minora was not having any sign of inflammation, redness and tenderness. Hymen had two radiate tears on posterior side at 4 O'clock and 8 O'clock, edges of which were not red, swollen or painful. Vaginal orifice admitted only a little finger. Forchette and posterior commissure were intact and had no sign of redness, pain or swelling.
6. The pregnancy test kit was not available at Referral Hospital Killar, therefore, the prosecutrix was referred to Gynecologist in District Hospital Chamba for amenorrhea (one month and 21 days) i.e. 7 to 8 weeks. The doctor opined the evidence of sexual activity, however, opinion regarding pregnancy and recency was reserved to be given after the reports of Gynecologist and the Chemical Examiner. He prepared and issued Medico Legal Certificate Ex.PB.
7. The Gynecologist was not examined during the trial of the case. On the report of the Chemical Examiner Ex.PC, PW2 Dr. Rajesh Kumar made an endorsement dated 27.10.1993 Ex. PB/2 on MLC Ex. PB that the sexual activity cannot be ruled out, but there was no finding with respect of pregnancy or its termination.
8. The skeletal age of the prosecutrix was opined to be between 17 to 19 years by PW1 Dr. V.K. Pathak.
9. After recording the statements of the witnesses, receipt of the reports and obtaining the copy of the muster-roll, attendance register and also documents with respect to appointment and posting of the respondent, the challan was presented in the court for his trial.
10. The respondent was accordingly charge-sheeted for the aforesaid offences. He abjured the guilt and claimed trial. Prosecution led its evidence and relied upon the statements of the prosecutrix and also the medical evidence. The respondent was examined under Section 313 of the Code of Criminal Procedure. He denied the allegations and maintained his innocence. He alleged his false implication in the case.
11. At the end of trial, respondent was acquitted by the learned trial court, precisely, on the grounds that the statements of the prosecutrix did not inspire confidence and medical evidence did not corroborate her version of alleged pregnancy. Further she being more than 16 years of age and the circumstances show that she was a consenting party.
12. We have reappraised the evidence led before the trial court. The age of the prosecutrix in the given circumstances is of prime importance. The age of the prosecutrix at the relevant time was alleged to be less than 16 years of age. To prove this fact, the prosecution examined PW3 Devi Singh Pradhan of the concerned Gram Panchayat. He had issued the certificate Ex.PE with respect to her date of birth, at the instance of PW7 Sulochana Devi, elder sister of the prosecutrix, after ascertaining her age from the Parivar register, wherein only the month and year of her birth was recorded as July, 1974. This certificate was issued by him on 22nd January, 1993. Her age on the date of alleged occurrence comes to 18 years approximately. He did not know as to who and from where this entry was reflected in the Parivar Register. He further stated that Birth and Death register maintained in the Panchayat prior to the year 1985 was not available. Therefore, in these circumstances, it is not known what was the basis for making this entry, in the Parivar register.
13. Another evidence is radiological examination, wherein the prosecutrix is stated to be between 17 to 19 years of age. PW7, Sulochana Devi, sister of the prosecutrix stated that on the date of her examination in May, 1995, the prosecutrix was aged about 17 years, whereas the prosecutrix (PW3) herself disclosed her age on that date as 20 years. In view of the above evidence from all the angles, the prosecutrix is proved to be more than 18 years of age. Once we have come to this conclusion, the statement of the prosecutrix need to be examined and weighed carefully.
14. To corroborate her case, she inter-alia stated that when she conceived, she had left the employment in the Horticulture Farm and started tailoring work in her village. In the month of January, 1993, she was called by the respondent through Hari Singh, to his residence on the pretext of some urgent work. She reached there around 2 p.m. and the respondent asked her about the pregnancy, to which she confirmed and the respondent assured her not to worry as he would get it terminated and asked her to stay in his quarter for a night. During the night, he allegedly committed sexual intercourse and she stated that in the following morning, he took out four injection vials, he mixed some medicine and gave two intra muscular injections to her and told her that the pregnancy would be terminated. Thereafter she returned home and narrated the entire sequence of happenings to her elder sister Sulochana Devi (PW7) and the matter was reported to the police. She further stated that when the police was taking her from Chamba to Zonal Hospital Dharamshala, she aborted while travelling in the bus.
15. Significantly, neither the Gynecologist gave any findings with respect to her pregnancy and also regarding its termination or any sign of termination. Even the police officials, who had accompanied her did not know about the fact that pregnancy of the prosecutrix got terminated while travelling in the bus from Chamba to Dharamshala. Even PW2 Dr. Rajesh Kumar did not notice any physical sign of pregnancy in the prosecutrix and the Gynecologist also did not confirm this fact. Therefore, the very allegation of becoming pregnant on account of coitus with the respondent, as alleged becomes doubtful and the entire version of the prosecutrix comes under cloud.
16. Further the version given by PW7 Sulochana Devi, her sister, also need to be noted. According to her, the prosecutrix did not disclose about having stated to her about the repeated sexual intercourse by the respondents with her during the period she worked in the said Horticulture Farm. Further the story of calling the prosecutrix by the respondent through Hari Singh, Peon also remains unsubstantiated. Hari Singh was not examined and according to Sulochana Devi, the prosecutrix did not return during the previous night. She was searched in and around in the neighbourhood and also in the houses of her relatives, but of no avail. When she came in the morning about 8/9 a.m. and was confronted about her absence, she revealed that she was called by the respondent to make the payment of wages to her, but she was forcibly detained and was subjected to the sexual intercourse, which fact also goes contrary to what the prosecutrix deposed.
17. From the above statement of Sulochana Devi, we find that it was not the prosecutrix, who narrated about the incident immediately on reaching her residence to her sister, but on rowing enquiry she offered this explanation for her absence.
18. On the critical examination of the aforesaid evidence, we did find that the statement of the prosecutrix and her sister Sulochana Devi are full of omissions, contradictions and embellishment. Statement of the prosecutrix is not worth inspiring confidence. She has been proved to be 18 years of age, in any case more than 16 years and the circumstances on record show that she was a consenting party. Thus, the finding of acquittal, recorded by the learned trial court, are borne out from the record, which require no interference, as such, the appeal sans merit and is accordingly dismissed.