Natho Ram vs State of H.P.

Bhawani Singh, J.—This appeal is directed against the judgment of Sessions Judge, Chamba, in Sessions Case No. 3 of 1994, dated 18.7.1994, whereby the accused has been convicted for an offence u/s 376 of the Indian Penal Code and sentenced to rigorous imprisonment for 7 years and to pay a fine of Rs. 3000/-, in default of payment of fine, to undergo further rigorous imprisonment for one year. Fine, on recovery, has been directed to be paid to the prosecutrix.

The prosecution case is that Smt. Hari used to live with Natho Ram accused for the past 8-1/2 years alongwith two-daughters - Pinki (16) (hereinafter prosecutrix) and Anju (11) - from her previous husband. The accused was providing food and clothing to these daughters as if they were his own daughters. On 13.9.1993, they were sleeping in the same room on the floor. The accused asked Smt. Hari to sleep at some distance from him since he was feeling warmth from her body and she being also a patient of tuberculosis and was having some fever. Accordingly, Smt. Hari shifted to the other side and slept. After an hour or so, she heard murmuring. She switched on the light and found that the accused was naked. He had removed his Pyjama and underwear. Shalwar of Pinki was also removed and the accused was lying over her and was performing sexual intercourse with her daughter. She pulled him and separated him from Pinki. The accused threw his underwear and ran away after taking his Pyjama.

3.The prosecutrix told Smt. Hari that the accused had been committing sexual intercourse with her for the past 8/9 months on 4/5 occasions by threatening her that in case she told this fact to anyone, she would be killed as he knew Jadu-tona and would destroy her with it. The accused used to earn his livelihood by working as Chela. Smt. Hari made the prosecutrix to wear the Shalwar and reported the matter to the Police after 2/3 days. Report (Ex. PA) was written by Rai Singh (P.W. 13), Inspector/SHO, Police Station, Sadar. It was thumb marked by Smt. Hari after admitting the contents as correct. The prosecutrix was subjected to medical examination by Dr. Brij Bala Sharma (PW-6), who reported that the prosecutrix was habitual of sexual intercourse. Medico legal certificate, Ex. PH, was issued. The prosecutrix was also referred to Radiologist Dr. V.K. Pathak (P.W. 12) for opinion of age. Accordingly, she was examined on 20.9.1993. According to the Radiologist, the prosecutrix was between 15 to 17 years and gave his report (Ex. P.W. 12/A). The skiagrams are Ex. P.W. 12/B to Ex. P.W. 12/C.

The Investigating Officer went to the spot and prepared site-plan (Ex. PJK The accused ran away from the place and he was declared proclaimed offender. He was arrested by ASI Phool Chand (P.W. 11) on 22.10.1993. On the basis of the disclosure statement of the accused (Ex. PH), underwear was recovered and taken into possession vide memo.(Ex. PB) in the presence of Jeet Ram (P.W. 3). It was sealed. The underwear and the packet of shalwar and vaginal swab was sent to the office of Chemical Examiner by Piar Chand (P.W. 9), to whom they were given by Chain Singh, MHC. On 23.12,1993, one sealed parcel was also sent to Forensic Science Laboratory, Shimla. The police took into possession birth register (Ex. PC) from Lekh Raj, Panchayat Secretary (P.W. 4). After arrest, the accused was also examined medically by Dr. Raman Puri (P.W. 5). Medico-legal certificate reports that the accused was capable of performing sexual intercourse. Reports from the Chemical Examiner (Ex. PK and Ex. PH) were received. Investigation was completed and the accused was challened before the trial Court. The accused has denied the commission of crime. He states that he has been falsely implicated since Smt. Hari (P.W. 1) wanted to grab his property which he had refused to transfer in her favour. The trial Court examined the question whether the evidence pointed out the commission of crime by the accused u/s 376 of the Indian Penal Code beyond reasonable doubt. This question was answered in the affirmative and the accused was accordingly convicted and sentenced as aforesaid. Through the present appeal, he has challenged his conviction.

Learned Counsel for the parties were heard and the matter examined comprehensively and carefully. Smt. Hari (P.W. 1) has stated that on 13.9.1993 she was sleeping on the floor in the same room alongwith the accused and her daughters. She was sleeping at some distance from the accused. After about an hour or so, she heard some murmuring noise. She got up, switched the light and found the accused naked. He had removed his underwear and pyjama. Prosecutrix''s shalwar had also been removed and the accused was lying on her and was performing sexual intercourse. She pulled the accused and separated him from the prosecutrix. The accused ran away. He was apprehended after about 1-1/2 months. She also states that the prosecutrix told her that for the past 8/9 months, the accused had been doing sexual intercourse with her on 4/5 times by giving threats that she would be killed and destroyed by Jadu-tona. The accused had been earning his livelihood by working as chela. She saw the private parts of the prosecutrix. It was smeared with fluid/discharge. The prosecutrix was made to wear the shalwar and the matter was reported to the police after 2/3 days. The shalwar, which the prosecutrix was wearing at the time of the occurrence, was taken into possession by the medical officer and the same is Ex.P. l. The underwear of the accused (Ex.P. 2) was taken into possession by the police subsequently.

The prosecutrix (P.W. 2) stated that the accused had been committing sexual intercourse with her for the last 8/9 months. He would put his hand on her mouth and whenever she would try to cry in pain, the accused would tell her that he would destroy her with jadu-tona. She did not tell her mother about it because of the threats extended by the accused. The accused had been committing the act against her will by extending threats to her. She was medically examined after she was taken to the hospital.

So far as the age of the prosecutrix is concerned, Smt. Hari has stated that the age of the prosecutrix was 16 years in August, 1994. Similar is the statement of the prosecutrix. According to Lekh Raj (P.W. 4), Secretary Panchayat, the date of birth of the prosecutrix is 26.6.1976 as per entry (Ex. PC) of the school register lying in possession of the Panchayat. Dr. V.K. Pathak, (P.W. 2) examined her on 20.9.1993. She was referred to him by Dr. Brij Bala, Medical Officer, for X-Ray examination as to age. According to his report (Ex.P.W. 12/A), the age of the prosecutrix was between 15 to 17 years. Dr. Brij Bala (P.W. 6) examined the prosecutrix on 16.9.1993 at 4.30 P.M. and observed as under:

Menarche 2-1/2 years back. IMP started menstruation on 16th Sept.1993. She was an unmarried and not studying and stays at home. On examination, built moderate, weight 39.5 kg., height 152 cms. fully conscious, mentally alert and sound. Her systemic examination, hearts, lungs per, abdomen and CNS, were normal.

Breasts well developed. Axillary hair and pubic hair were well developed and black in colour. There were no marks of 4 injuries or violence such as scratches, abrasions, bruises or laceration found on her person. On local examination of genitals and per vaginal examination, no seminal stains were seen, on thigh and genitals. Fresh blood over thigh and genitals was found. The victim had started the menstruation one hour back. Labia Majora, thick, firm and well rounded and covers the vulva completely. Fresh blood was present over the labia majora and inside labia majora. No signs of bruises, redness or laceration seen over the labia majora and labia minora.

Vestibule fourchettee and posterior sommisure and perinum were in tact.

Hymen was annular in shape, margins were irregular. No tender, not swollen. Not inflammed and did not bleed on touch and look like small granular tags of tissue.

Pubic hair not matted.

The vaginal orifice was easily distensible and admitted one index finger easily.

Bleeding from inside vagina was present. The victim Pinki had started the menstruation one hour back today.

She further stated that the girl was wearing the same salwar which she had worn during the act, which was stained with blood. Vaginal swab from posterior fornix had been duly preserved, packed and sealed alongwith the salwar. Parcel containing salwar and bottle having vaginal swab was handed over to the police for chemical examination and according to the report of the Chemical Examiner, certainty of rape was equivocal. In her opinion, the girl was habitual to sexual intercourse and she could not say about the number of times this act was committed prior to the occurrence in question. She issued medico-legal certificate (Ex. PH) in this regard and request from the police was received by her vide docket Ex. PG.

The accused was also examined by Dr. Raman Puri (P.W. 5) on 25.10.1993. In his opinion, he was capable of performing sexual intercourse. According to Chemical Examiner, human blood was found on Shalwar, but no spermatozoa were omit. Neither there was blood nor supermatozoa on the underwear of the accused.

The eforesaid evidence discloses that the age of the prosecutrix on the day of the occurrence was more than 16 years. Question arises whether the prosecutrix was subjected to sexual intercourse against her will? The answer to this question is in the affirmative. The prosecutrix has stated that she did not tell her mother about this fact since the accused had threatened to kill her with jadu-tona. On the day of occurrence, the accused had put his hand over her mouth. It was due to her uttering of some words that her mother woke-up and switched on the light. She had stated this fact to her mother. The accused was working as Chela. Extension of threats by such a person may have caused serious apprehensions in the mind of the prosecutrix not to protest his activities and state them to her mother. Accordingly, it can very well be said that the prosecutrix was subjected to sexual intercourse by the accused against her will. (See: Rabinarayan Das Vs. State of Orissa, .

It was contended that absence of injuries on the person of the prosecutrix demonstrates consent on her part. There is no force in this submission since it is not always necessary that forcible sexual intercourse must cause injuries on the person and private parts of the prosecutrix (See: Amar Dev and Ors. v. State of H.P. 1992 (1) Sim.L.C. 77).

It was also contended that there is delay in the lodging of the First Information Report in this case, therefore, the prosecution case is fabricated. The incident took place on the intervening night of 13/14 September,1993 and the report was lodged on 16.9.1993 at 1.30 PM. Police station is located at a distance of 4 Kms from the place of occurrence. Smt. Hari (PW 1) has stated that she did not lodge the report immediately since she was under a shock as her daughter had been spoiled by the accused. The prosecutrix also stated that Smt. Hari was thinking to lodge the report and was waiting for the accused so that talks could be held in the house.

If one looks at the background of the case, there is no delay in the lodging of the report to the police. The accused was living with Smt. Hari like her husband and was treating the children of Smt. Hari from her previous husband as his children and was looking after them as such. Such a person subjecting the prosecutrix to rape was really a matter of shock to Smt. Hari. Moreover, the matter was likely to affect her and the prosecutrix socially, therefore, they must be thinking whether to report the matter to the police or castigate the accused at home. In these circumstances, delay of 2-1/2 days is not damaging to the prosecution Case.

It was also contended that the case against the accused is false since Smt. Hari was not given property by the accused, therefore, she was annoyed with the accused. The accused has no property except the house in which they were living. Moreover, he had not formally married Smt. Hari and was simply living with her, therefore, there was no question of Smt. Hari getting his property.

Compassionate plea was made for the reduction of sentence. It was submitted that the accused is the first offender and an aged person. He has also minor children to be looked after. Looking to these submissions, the sentence of imprisonment is reduced to five years from seven years.

The appeal is dismissed except as to the reduction of jail sentence by two year.