Cr. Appeal No. 720 of 2008. Case: Sonu Kumar Vs State of H. P. Himachal Pradesh High Court
| Case Number | Cr. Appeal No. 720 of 2008 |
| Counsel | For Appellant: M. S. Guleria, with Anupam Bhandari, Adv. and For Respondents: R. K. Sharma, Sr. Addl. Advocate General |
| Judges | R. B. Misra , J. and Sanjay Karol, J. |
| Issue | Indian Penal Code (45 of 1860) - Section 376; Evidence Act (1 of 1872) - Section 3 |
| Citation | 2012 CriLJ 3210 |
| Judgement Date | March 01, 2012 |
| Court | Himachal Pradesh High Court |
Judgment:
Sanjay Karol, J.
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In terms of judgment dated 27.11.2008, passed by the Ld. Sessions Judge, Mandi, H.P. in Sessions Trial No.9 of 2008, titled as State v. Sonu Kumar, i.e. the accused (the present appellant) stands convicted for having committed offences punishable under Sections 366-A and 376 of The Indian Penal Code, 1860 (referred to as I.P.C.). He is sentenced to undergo imprisonment for a period of ten years in relation to each of the offences and also to pay fine of `10,000/- each, and in the event of default to further undergo simple imprisonment for a period of one year each.
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It is the case of prosecution that on 5.10.2007, prosecutrix (PW-11) aged about 13-14 years, student of 8th standard, was subjected to forcible sexual intercourse by the accused who lives in her neighbourhood, under promise and inducement of marriage. Out of fear she did not disclose the incident to anyone, and also left her house on 6.10.2007 to an undisclosed place. Eventually, her parents found her at Sundernagar and brought her home on 7.10.2007. She narrated the incident to them. They took her to the Police Station, Balh and got FIR No.290 (Ex.PW13/A) recorded on 7.10.2007 at 7:00 p.m. Copy of the FIR was immediately sent to the concerned Magistrate for information. S.I. Beant Singh (PW-14) was asked to investigate the matter. Prosecutrix was immediately sent for medical examination which was conducted by Dr. Anita Thakur (PW-8), Medical Officer posted at the Zonal Hospital, Mandi. Doctor opined that prosecutrix was subjected to sexual intercourse without her consent. In order to determine her radiological age, prosecutrix was medically examined by Dr. Rakesh Kumar (PW-9) who opined it to be between 14-16 years. Police visited the spot where accused had subjected the prosecutrix to rape and in the presence of witnesses, prepared site plans Ex.PR and PS and got the spot photographed (Mark A-1 to A-D) and collected four pieces of condoms(Ex.P2) allegedly used by the accused while having sexual intercourse with the prosecutrix on 5.10.2007. Clothes of the prosecutrix and the accused were also collected by the police. Sample of vaginal swab taken by the Doctor, handed over to the police, along with incriminating evidence i.e. clothes and condoms were sent for chemical analysis to the FSL Laboratory and report Ex.PK obtained by the police. Police also took on record certificate of birth of the prosecutrix (Ex.PD and PG) issued by the concerned school and the Panchayat. With the completion of investigation, challan was presented in the Court for trial.
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During trial, following charges were framed against the accused to which he did not plead guilty:-
That on 5.10.2007 at about 2 p.m. at place Grancha tower near village Ner, you induced Harsh Lata, a girl under 18 years, with intent that said Harsh Lata will be forced to illicit intercourse and thereby committed an offence punishable under Section 366-A of the Indian Penal Code and within the cognizance of this Court.
Secondly, on the aforesaid date, time and place, you committed rape on Harsh Lata and thereby committed the offence u/S 376 I.P.C., within the cognizance of this Court.
And, I hereby direct that you be tried for the said charge.
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In order to establish the same, prosecution examined as many as 14 witnesses and statement of the accused under Section 313 Cr.P.C. was also recorded in which, significantly, accused took the following defence:-
"Qus.24. Why the witnesses have deposed against you?
Ans. I have land dispute with the prosecution witnesses and due to that they have deposed against me."
Que.25. Do you want to say anything else?
Ans.: I have been falsely implicated in the present case due to land dispute with the complainant."
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The accused also examined 11 witnesses in support of his defence.
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The Court below convicted the accused of both the charges, hence, the present appeal.
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Mr. M.S. Guleria, learned counsel for the accused has vehemently argued that the accused (appellant) has been falsely implicated in the present case; parties have been harbouring animosity over a land dispute, factum of which is admitted by the mother of the prosecutrix; in any event, prosecutrix being more than 16 years of age, was in a position to exercise discretion, could differentiate between right and wrong and sexual intercourse, if any, is consensual in nature; also there is no substantive proof of sexual intercourse by the accused, whether voluntary or involuntary in nature; there are major flaws in the investigation and testimonies of prosecution witnesses are replete with exaggerations, improvements, embellishments and contradictions rendering them to be untrustworthy and unreliable. In support, he has invited our attention to the decision rendered by the Apex Court in Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130: (AIR 2011 SC 2877: 2011 Cri LJ 4274); Radhu v. State of Madhya Pradesh (2007) 12 Supreme Court Cases 57: (AIR 2007 SC (Supp) 847: 2007 Cri LJ 4704) and Bibhishan v. State of Maharashtra (2007) 12 SCC 390: (AIR 2007 SC (Supp) 1436: 2008 Cri LJ 721) and also by this Court in Ashok Kumar v. State of H.P. Rajesh Kumar v. State of H.P., 2011 (2) Him L.R. (DB) 793.
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To rebut the same, Mr. R.K. Sharma, learned Sr. Additional Advocate General has invited our attention to the testimonies of the relevant prosecution witnesses. It is urged that no interference is called for as the judgment is based on sound principles of law. He has referred to and relied upon the decision of the Apex Court rendered in Krishan Kumar (supra) to contend that submission on the part of prosecutrix does not amount to consent. (Satpal Singh v. State of Haryana, (2010) 8 SCC 714): (2010 AIR SCW 4951: 2010 CRI LJ 4283).
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The first question which needs to be examined is the age of the prosecutrix. In Court, prosecutrix (PW-11) states that she was born on 30.3.1994 and her mother Smt. Daya Devi (PW-12) corroborates this version. Significantly, on this aspect there is no cross-examination by the accused at all. In fact to establish that she was born in the year 1990 and not 1994, accused examined mid-wife Smt. Finji Devi (DW-5), who states that prosecutrix was born to Smt. Daya Devi in March 1990 and she acted as a midwife. But strangely in the very next breath, this witness contradicts herself by stating that the child was born in the year 1991. Not only that, in cross-examination, she fully supports the prosecution case by uncontrovertidly stating that prosecutrix was actually born on 30.3.1994, and at that time Sohan Singh was the Ward Panch.
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To complete the sequence of events, Sh. Hans Raj (PW-3), Secretary, Gram Panchayat, Ner has proved the birth certificate (Ex.PD) issued by him under Sections 12/17 of the Registration of Births and Deaths Act, 1969 and Rule 8 of the H.P. Registration of Births and Deaths Rules, 2003. This certificate clearly records date of birth of the prosecutrix to be 30.3.1994. This witness categorically states that entry in the register, extract of which is Ex.PE, was made on the basis of information given by Ward Panch Sh. Sohan Singh. Surprisingly accused himself made a suggestion to this witness that Bhoop Singh, Secretary who prepared the record in the year 1994 is dead. The endorsement made in the register has been testified to be that of said Secretary. Ward Panch, Sohan Singh (PW-4) has also testified that he got the entry recorded on the basis of information furnished by the parents of the prosecutrix. He clarifies that he had himself signed the register maintained by the Secretary.
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Additionally Dr. Anita Thakur (PW-8) and Dr. Rakesh Kumar (PW-9) have proved medical evidence (Ex. PJ, Ex.PL and Ex.PM) to establish that age of the prosecutrix is between 14 to 16 years. Significantly, Doctors have not been cross-examined on this aspect at all.Hence benefit of doubt, of difference in the radiological age of the prosecutrix to be that of 2-3 years, as is urged by Mr. Guleria can not be given to the accused. It is not a thumb rule that in every case benefit of difference of two years on the higher side has to be given to the accused. Each case has to be determined on given facts.
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The Apex Court in Mohd. Imran Khan v. State Government (NCT of Delhi), (2011) 10 SCC 192: (AIR 2012 SC (Cri) 5: 2012 Cri LJ 693) had an occasion to deal with a case where the medical report of the radiologist who examined the prosecutrix revealed that the age of the prosecutrix was between 16 to 17 years. On the basis of the proven material i.e. birth certificate, Court found her age to be less than the radiological age. In this background the Apex Court, while reiterating its earlier view taken in Jaya Mala v. Govt. of J and K, (1982) 2 SCC 538: (AIR 1982 SC 1297: 1982 Cri LJ 1777), held the age of the prosecutrix to be below 16 years of age.
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Thus the fact that the prosecutrix was born on 30.3.1994 stands conclusively proved, in accordance with law, by the prosecution by adducing legally admissible evidence, which fact is also corroborated by medical evidence. As on the date of alleged offence, i.e. 5.10.2007 age of the prosecutrix was 13 years 3 months.
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Before we deal with the prosecution case, we shall first deal with the alternative and multiple defences taken by accused during trial. Here we may add a note of caution, that this endeavour, at the threshold, is undertaken only to judge the possibility and/ or probability of such defences.
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We find that accused has taken multiple defences, some of which we find are absolutely false. He did, unsuccessfully, try to prove the age of prosecutrix to be more than 18 years.
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The only defence taken by the accused while recording his statement under Section 313 Cr.P.C. is that there is a land dispute with the complainant and as such, prosecution witnesses have falsely deposed against him.
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Now undisputedly, there is no land dispute with the prosecutrix as such. But to show that there was a...
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