JUDGMENT
V.K. Ahuja, J.
1. This is an appeal filed by the appellant against the judgment of the Court of learned Additional Sessions Judge, Fast Track Court, Shimla, dated 30th August, 2006, vide which the appellant was held guilty under Sections 342 and 376 I.P.C. and was sentenced as under:
(i) 376 IPC Imprisonment for 7 years and fine of Rs. 1,000/-. In
default of payment of fine, to suffer imprisonment for
3 months.
(ii) 342 IPC Imprisonment for 6 months.
2. Briefly stated the facts of the case are that a report was lodged with the police on 12.5.2004 at about 12.10 p.m. by one X (name not mentioned) that she is living with her parents near Sankat Mochan and her father is serving at Shimla. The prosecutrix alleged she was a student of 10th class studying at Lakkar Bazar, Shimla and on the night intervening 28/ 29.4.2004, she had gone to the marriage of sister of her friend where one boy met her about whom she learnt that he was bua’s son of her friend. The said boy named Naresh took her phone numbers from his cousin and he started giving phone calls to her and she as well as her elder sister told the said Naresh Kumar not to give the phone calls. He again gave a call on 29.4.2004 asking the prosecutrix to, come to Scandal Point, Shimla but she did not go there and thereafter 2-3 times, he gave calls which were heard by her as well as by her sister and again on 10.5.2004, he gave a call to her and asked her to meet him at Mall Road, Shimla, at 3.00 p.m., after she is free from the school. On 11.5.2004, she was roaming at Mall Road, Shimla and she saw Naresh accused there but she did not talk to him. In the evening, she was going towards Bus Stand and she slipped on the road and suffered some injury and Naresh Kumar treated her with bandage and also offered her to leave her at her place. He took her to his uncle’s quarter on the pretext of taking some articles from there but after reaching the quarter, he bolted the door and told the prosecutrix that she should only go in the morning. He also asked her to give a call to her parents that she will come in the morning and was staying with her friend, but she did not give a call and he asked Naresh Kumar to let her go but he did not allow her. She did not take meals in the evening but these were taken by Naresh Kumar and he slept thereafter in a separate bed. During the night at about 11/12, Naresh Kumar started committing indecent behaviour with her and she got up and knocked the door but nobody heard her voice. She wept and cried and thereafter lay in a separate bed and the accused entered her bed and he forcibly removed her salwar and committed sexual intercourse with her against her will. She kept on crying and thereafter the accused slept and in the morning she got up and came to Bus Stand, Shimla where her mother met her and she came with her mother to lodge the report.
3. On the above mentioned facts having been disclosed to the police, a case was registered by the police. After investigation, the challan was filed before the learned Judicial Magistrate, who committed the case to the learned Sessions Judge and it was assigned to the Trial Judge, who tried the appellant under Sections as mentioned above leading to the conviction and sentence of the appellant.
4. The submissions made by the learned Counsel for the appellant were that the age of the prosecutrix was 16 years, 1 month and 9 days on the day of occurrence and since the prosecutrix had gone to the uncle’s quarter if the accused out of her own accord, she was a consenting party to the sexual intercourse. It was also submitted that no rape was committed by the appellant and if sexual intercourse was committed, it was with the express or implied consent of the prosecutrix since she was known to the appellant with whom she had been having talks on telephone. It was submitted that the prosecutrix had stated that the coitus was committed twice but the hymen was not reptured and there was no semen or sperms on the clothes of the prosecutrix and the blood may be due to menstruation. In regard to the semen on the undergarments of the accused, it was submitted that the age of the semen was not determined and it could be a natural discharge also. It was also submitted that it looks unnatural that the accused was having a bandage with him and he applied it upon the person of prosecutrix when she had a fall. It was submitted that the medical evidence does not corroborate the testimony of the prosecutrix and as such the prosecution has miserably failed to prove the guilt of the accused.
5. On the other hand, the learned Additional Advocate General for the State submitted that there no consent for the sexual act by the prosecutrix and merely because of her young age and the fact that she was already late and could not have reached her house, she agreed to accompany the accused who promised to leave her at her residence, therefore, it cannot be inferred that the prosecutrix was a consenting party to the act of rape committed subsequently by the accused. It was submitted that there was sufficient evidence on record to show that the prosecutrix resisted the said attempt, cried also, but since she could not get any help, the act of rape was committed by the accused. It was further submitted that there was no cross-examination qua the consent and if there was any consent, it was for the accused to prove and the mere fact that the age of the girl was beyond 16, it does not lead to the inference that she was a consenting party to the act of rape. It was further submitted that the prosecutrix had herself stated that she had not responded to the phone calls given by the appellant and there is nothing on the record to show that the prosecutrix or her family had any enmity with the appellant or there is anything on record that the appellant was falsely implicated for any such reason. It was also submitted that the medical evidence duly corroborates the version given by the prosecutrix and since the prosecutrix was a teenager had accompanied the appellant to his uncle’s house on a bona fide belief that he will leave her at her house, she was not a consenting party to the rape and since the prosecution case does not suffer from any infirmity or contradictions in the statements of the prosecution witnesses, the appellant was rightly convicted by the learned trial Court, which findings do not call for an interference by this Court.
6. Coming to the points raised by the learned Counsel for the appellant, it has been submitted that the prosecutrix had herself shown interest in the accused, when she met him few days earlier at a marriage and they had been talking on telephone. Coming to this plea, PW-3 has stated that on 28.4.2004, she had gone to attend the marriage in Village Chamba where Pushpa had introduced her with accused Naresh, who was a cousin brother of Pushpa. She stated that the accused might have obtained the telephone number from cousin brother of Pushpa namely Nitu and he started giving telephone calls to her residence and she resisted him. She also stated that she had asked the accused not to telephone her at her residence. In further cross-examination, she had stated that in the marriage, when the accused passed though, she had enquired about him from Pushpa and she had introduced him with her. The mere fact that a teenager, out of curiosity or attraction towards the person of opposite sex, enquires from her friend about the identity of the person, namely, the accused in the present case, does not lead to the inference that the prosecutrix was interested in having friendship or relationship with him. She had asked about the identity of the accused because of some fascination or attraction being a teenager but to my mind, that does not lead to the inference that the prosecutrix was interested in having a relationship or friendship with the accused, when the prosecutrix specifically stated that she had not given her telephone number and that when he telephoned her several times, she asked him not to give telephone calls at her residence. There are no suggestions that she responded to the telephone calls of the accused or indulged in sweet talks with him to encourage the accused to contact him or have relations with ‘ him at a subsequent date.
7. Apart from the above, it is also in evidence that on 29.4.2004, the accused had telephoned her that she should meet him in the morning but she did not meet him and rather went to Kufri for attending an NCC Camp. Thereafter, on 10.5.2004, the accused had telephoned her at her residence requiring her to meet him on 11.5.2004, but there is nothing that she went to meet him.
The above discussion, therefore, leads to the inference that no benefit can be taken from the statement of the prosecutrix showing some interest in the accused and there is nothing that she was interested to have relationship or friendship with him and being a teenager, such behaviour cannot be said to be abnormal enquiring about a person of opposite sex.
8. The next plea was in regard to the consent that the prosecutrix had willingly gone to the flat of the uncle of the accused and had not resisted going to the said flat and, therefore, inference can be drawn that she was a consenting party to the subsequent act of rape’ committed by the accused. Coming to the evidence in this regard, it is clear that she started at 5.30 p.m. from Mall Road towards Bus Stand and gave a telephone call to her brother that she would be late in coming to home. She slipped and got minor injury at her hand and accused met her and asked her where she was going. The accused asked her to go to Rippon Hospital and the accused brought bandage and put the same on her hand. There is nothing abnormal that since the bandage was provided by the accused, how he was ready with the bandage or was knowing that the prosecutrix will slip and will require a bandage. This plea was not elaborated but it is clear from the statement of PW-3 (X) that she did not go to the Hospital but the accused brought the bandage and put the same on her hand. Thereafter, the accused told her that he would be going towards her residence and would leave her there, but in the meantime he would collect some material from the residential quarter of his uncle which was at US Club. She went to the quarter of the uncle of the accused and reached there at about 6.00 p.m. She further stated that she stayed on the persuasion of the accused and asked him that she would like to go to her home, but the accused delayed the matter and ultimately said that it is now evening and that she should go to her home in the morning. She refused to telephone at her residence, as suggested by the accused and persisted to go home but the accused did not allow her and bolted the room from inside. In her further cross-examination, she had stated that the last bus goes towards their house at 6.00 p.m. and it used to get dark at about 6/7 p.m. in those days. She admitted in her statement that she went to US Club with the accused of her own. This statement cannot be used as against the prosecutrix to hold that since she had accompanied the accused to the quarter of his uncle, she was a consenting party to the sexual act performed subsequently. Her situation has to be seen in her context that she was a teenager of the age of above 16, had suffered some minor injury and was going towards her house when the accused assured her to accompany her to her residence, but in the meantime, he wanted to go to his uncle’s house to collect some articles. She willingly or because of her adolescence, agreed to accompany the accused to her uncle’s house but it cannot be presumed that she was knowing what fate was waiting for her there. It is in her evidence that the accused passed the time and when it became 6,00 p.m., when the last bus goes towards her house, as per her statement, the accused asked her to go in the morning but it cannot be said that she was aware that she will be ravished there by the accused during night time. She had not accompanied a stranger but a cousin of her friend who had met her a few days earlier and had assured her to leave her at her place which is at some distance from Shimla Town for which it takes 1/2 hour in a bus to reach Sankat Mochan as stated by her. In the totality of the circumstances, the mere fact that the prosecutrix accompanied the accused on his persuasion to his uncle’s quarter on way to her house for which the accused had assured to help her, no inference can be drawn that she was a consenting party to the act committed subsequently.
9. This fact also cannot be ignored that she did not take meals though the accused took meals and it may be that she was not happy the way she had been made to stay at the house of the uncle of the accused. It is also clear that the accused did not make an attempt in the early hours but made an attempt late at night when possibly the prosecutrix was not able to get any help in spite of the fact that, as per her statement, she resisted the attempt of rape made upon her. She escaped from the quarter of the uncle of the accused at the earliest when she got the opportunity in the morning and it cannot be accepted that if she had made an attempt during night, it was possible for her to reach her house when there was no bus available at that time and, therefore, she might have waited to leave the place in the morning. Therefore, no inference of consent can be drawn, as argued by the learned Counsel for the appellant and the consent for going to the house of the uncle of the accused, unaware of the consequences that will follow, does not lead to the inference that the prosecutrix was a consenting party to the sexual act. There is substance in the plea raised by the learned Counsel for the appellant that the consent can be express or implied, but neither there were any suggestions about the consent nor these can be implied from statement made by the prosecutrix. The mere fact that the girl has crossed the age of 16 years is not sufficient to hold that she was a consenting party and this act could be committed by the accused since she was above the age of 16. A girl may be of above 16 years but no consent can be implied though in the case of girl below 16 years no question of consent arises.
10. In case the prosecutrix was a consenting party, she would not have stated to her parents about the rape since nobody had seen her indulged in the sexual act with the accused and she could have simply stated that since she was late, she was compelled to stay in the house of the accused and would not have levelled the charge against the accused. Therefore, the arguments advanced in this regard regarding consent are repelled being devoid of any force.
11. Coming to the medical evidence that her hymen was not ruptured, the Medical Officer, who conducted the medical examination of the prosecutrix, has been examined as PW-2 Pratibha Sood, who had examined the prosecutrix on 12.5.2004 at about 4.20 p.m. i.e. on the next day of occurrence. She has clearly stated that there was alleged history of sexual assault on the person of the prosecutrix and no mark of violence was found on the body of the prosecutrix. She stated that vagina admits one finger with difficulty, painful and hymen was intact. There was no swelling or bruising on laceration on the genitalia. But the mere fact that the hymen was intact or that there were no marks of violence on the body of the prosecutrix do not lead to the inference that the possibility of sexual intercourse or rape is ruled out. The marks of violence may or may not have been there and the mere fact that the hymen was not ruptured, though sexual act was performed during night time, does not lead to the inference that the girl was not subjected to sexual intercourse.
12. The Medical Officer has further stated that she had taken vagina ear report and the report showed that there was no spermatozoa. According to the report of the Chemical Analyst Ext. PW-12/C, human blood was found on the pubic hair of the prosecutrix but no semen was found. However, it was also found on the underwear of the accused though no human blood was found. The mere fact that no semen was found on the clothes etc. is not sufficient to hold that the possibility of sexual attempt is ruled out. In regard to the semen found on the underwear of the accused, it was submitted that it could be natural discharge and there is substance in this plea. In regard to the human blood found on the pubic hair of the prosecutrix, it was submitted that it could be due to menstruation. However, this report cannot be said as against the prosecution particularly when there is clear statement of PW-2 Dr. Pratibha Sood that possibility of sexual intercourse with the prosecutrix cannot be ruled out. The Medical Officer has admitted that generally in such cases marks of violence are found on the body of the prosecutrix when they resist or struggle but the mere fact that these were not there, are not suffficient to hold that the statement of the prosecutrix cannot be relied upon.
13. Learned Counsel for the appellant had relied upon Charan Singh and Anr. v. State of Haryana 1988 Recent Criminal Report (2) 6, a perusal of which shows that there was a rape of unmarried girl of 16/17 years. No tenderness, swelling or blood found in vagina. It was held that the girl was not subjected to sexual intercourse. The prosecutrix had not suffered any injury. It was held that corroboration of statement of prosecutrix is required where the prosecutrix suffered no injury.
14. The above decision is based upon facts of that case, and in my view it is not necessary that there has to be corroboration to the statement of the prosecutrix if she has not suffered any injury. Moreover, in that case the findings were given that the girl was used to sexual intercourse. But in the present case, there is evidence of the Medical Officer that vagina admits one finger with difficulty which shows that the girl was not used to sexual intercourse.
15. Coming to the evidence led by the prosecution, the prosecution had also examined PW-1 Neeraj Mital, Radiologist, to show that the age of the girl was in between 15-1/2 to 19 years, which age stands established as above 16 years in view of the statement made on oath by PW-3 prosecutrix that her date of birth was 22.3.1988 corroborated by the statement of her father PW-4 who also proved the birth certificate Ext. PW-4/A. Accordingly, on the date of occurrence, the prosecutrix was of the age of 16 years, 1 month and about 19 days. The statement of the prosecutrix on material points has been duly corroborated by PW-4 Jagdish Singh, father of the prosecutrix that he reached home at 6.00 p.m. on that day, but the prosecutrix had not come back and they went to Bus Stand and lodged the report about the missing of their daughter and they were asked to come in the morning again and his wife told him that when they reached Panchayat Bhawan near Bus Stand on the next morning, they saw the prosecutrix running towards Bus Stand and also noticed the accused following her. PW-7 Smt. B (mother of the prosecutrix) had also supported the statement by stating that the girl did not return in the evening. They went to the Police Station Boileauganj to make a report and a missing report was lodged. On the next day, she saw the prosecutrix running towards them and the accused was following her. They enquired from the prosecutrix, who told them that the accused taken her forcibly to US Club where she was ravished by the accused. She asked the accused to come to Police Station Boileauganj as the report has been lodged there and the accused also went to the Police Station alongwtih them. She enquired from the accused who admitted that he had taken the prosecutrix to US Club of his own. PW-8 Kumari Kavita sister of the prosecutrix had stated about the phone calls being made by the accused.
16. An inference was sought to be drawn by the learned Counsel for the appellant about the innocence of the accused since he had accompanied the prosecutrix and her mother to the Police Station on her asking.
17. It was submitted that it shows the innocence of the accused. In my opinion, the fact that the accused followed the prosecutrix till the Bus Stand where she met her mother and narrated the facts to her and thereafter accompanied them upto Police Station on the asking of her mother or of his own does not lead to inference of innocence of the accused. It may be that he may be willing to compromise with the prosecutrix and her family or may be persisting that they should pardon him or to put pressure on the police that a case is not registered against him. To my mind, this act of the accused in accompanying the mother of the prosecutrix to the Police Station is not a pointer of the innocence of the accused.
18. A perusal of the evidence shows that the prosecution had examined PW-6 Shri Ranjeet Singh in regard to the recovery of bed sheet etc. The statements of other witnesses including that of I.O. are of formal nature and have been discussed by the learned trial Court also.
19. Coming to the plea that it was a false case or that the accused as been falsely implicated, I am of the opinion that there is nothing on the record even to suggest any enmity in between the prosecutrix’s family and that of the accused. There were no suggestions in this regard. Nothing was elicited from the prosecution witnesses that they had any reason to falsely implicate the accused. In my view, rather the prosecutrix may be having some soft corner for the accused since he was not an unknown person but a cousin of her friend who met her when she had gone to attend the marriage in her village and she will not have any intention to falsely implicate the cousin brother of her friend or because of any enmity which was neither brought on record nor there were any suggestions. The report had been lodged by the prosecutrix and her mother immediately after the occurrence on the next morning and there was no question of false implication or introduction of witnesses since no false witnesses were introduced. It cannot be believed that the prosecutrix will try to implicate the accused for any reasons whatsoever being fully aware of the facts that her reputation will be at the stake and the chances of marriage of the prosecutrix may become bleak after these facts are told to the police or are made known during the trial of the case. From whichever angle the facts of the case are considered, there is nothing to show that there was false implication of the accused.
20. I have considered the evidence and have appreciated the same with great care and caution and neither there are material contradictions in the statements of the witnesses nor there are infirmities in the prosecution case. The medical evidence does support the statement of the prosecutrix and the evidence led with medical evidence and other evidence clearly prove the fact that the findings of the trial Court convicting the appellant for the offences under Sections 376 and 342 IPC are liable to be confirmed which are confirmed accordingly.
21. Coming to the sentence imposed by the learned trial Court, the learned trial Court has imposed minimum sentence as prescribed by law and there are no reasons to interfere in the said sentence imposed by the learned trial Court, which findings are upheld and appeal filed by the appellant is dismissed. Copy of the judgment be sent to the appellant through Jail Superintendent for information and filing of appeal, if any. Copy of the judgment along with record be also sent to the learned trial Court.