KAMELSH SHARMA, J.

(1.) This appeal at the instance of the State of Himachal Pradesh is against the judgment dated 16-9-1991 whereby the Sessions Judge, Una has acquitted the respondent under Section 376, I.P.C. The brief facts of the case are that on 23-5-1989 at 11.15 a.m. the prosecutrix alongwith her parents came to police station Bangana and made a report on the basis of which FIR Ex. PC. was recorded. According to her she was studying in Primary School Raipur and her father was working as labourer. On Sunday the 21st May, 1989 at about 6.00 p.m. she had gone to the house of the respondent to watch a film on the television. After watching the television for some time on the asking of the mother of the respondent to bring a Patili (utensil for cooking rice and pulses etc.), the prosecutrix went to the flour mill of the respondent where he was sleeping outside over a cot. When she was returning after picking up the Patili, she was followed by the respondent and as soon as she turned back after keeping the Patili in the kitchen of the respondent, he gagged her mouth with one of his hands and took her to flour mill. After carrying her to the other room the respondent made her to lie on a gunny bag, broke the string of her Salwar (trousers), kept it aside after removing the same from her legs and subjected her to rape. She felt pain and consequently cried but the respondent threatened her that in case she would cry she would be given beating. When after some time the respondent freed the prosecutrix, she found her shirt stained with blood oozing out from her vagina which was washed by her with the water brought by the respondent from his house. Thereafter the prosecutrix put on her Salwar and went to her aunt's house and slept there during the night and went to her house in the morning, where on finding the shirt and Salwar of the prosecutrix blood stained, her mother made enquiries and she narrated the whole incident to her.

(2.) On returning the father of prosecutrix in the evening her mother narrated the entire incident to him and on the next day the prosecutrix was brought to the police station. She has also added that the clothes, which she was wearing at the time of the complained of incident, were taken off by her mother, which were later on taken into possession by memo Ex. PD in the presence of witness Roshan Lal and sent to Chemical Examiner, who detected Spermatozoa on Salwar and blood stains on Salwar and Kameej as per report Ex. PM, and further, stains on Salwar and Kameej were found of human blood by the Serologist as per Report Ex. PN.

(3.) The prosecutrix was medically examined by Doctor J. S. Kanwar PW-14 the then Medical Officer, District Hospital, Una on 23-5-1989, who has identified the prosecutrix in the Court on the basis of identification marks given in his medico-legal certificate Ex. PQ, wherein he has mentioned the following injuries found on genital examination of the prosecutrix :-

"1. There was congestion (contusion) of labia minora both sides.2. There was perineal tear in the fourchette in midline involving vaginal mucosa and perineal skin (3/4th cm long in skin). Swelling and tenderness was there.3. There was congestion and oedema of vestibule (around urethra).

(4.) Hymen was showing lacerations on left side. There was oedema and tenderness. It was bleeding on touch.

"According to Doctor J. S. Kanwar, the probable duration of the injuries was between 24 to 48 hours. As per his opinion the injuries on the person of the prosecutrix could be due to forceful penetration of disproportionately large penis or an object. He has admitted the suggestion that smegma accumulates if no bath is taken for 24 hours. In his cross-examination he has stated that he wrote the age of the victim on the medico-legal certificate as 10 years as per the report made by her mother and on his clinical examination, and did not go for X-ray or ossification test. He has further stated that the prosecutrix complained pain on walking and separation of thighs, though he had not mentioned it in his report. He has also admitted that there was no mark of resistance on the body of the victim and he was not shown the clothes which she was wearing at the time of occurrence. Doctor J. S. Kanwar has admitted a suggestion that it is not necessary that if a male of 29 to 30 years forcefully commits sexual act on a female of 10 years there will be bleeding for days together but himself stated that it depends upon the injury. He has specifically denied another suggestion that the injury on the prosecutrix was not so deep as to result bleeding on the third day, though he has not made any mention of open bleeding in his report. He has specifically denied further suggestion that injury found on the prosecutrix could be caused by fall on the hard surface. He has also stated that normally the sperms remain alive from 24 to 72 hours but their life can also be longer depending upon the temperature and media. In the end he has stated that he has examined the prosecutrix as she was brought by the police and the Senior Medical Officer of District Hospital, Una had directed him to conduct the medical examination of the prosecutrix.4. The respondent was also examined by Doctor Rajinder Puri PW-1 on 4-8-1989 and as per the medico-legal certificate Ex. PB he was found fit for sexual intercourse.

(5.) The prosecutrix has appeared as PW-2 and has reiterated her statement under Section 154 Cr. P.C. She has added that the respondent had dragged her forcibly to the side room of the flour mill, where he made her lie on the gunny bag and committed rape. She was put to very lengthy and minute cross-examination in respect of the location of the room of the flour mill as well as the house of the respondent, the distance between the two and the presence of other members of his family in the house at the time of occurrence. The discription given by her tallies with the sketch map Ex. PK on the record that the room of the flour mill in which she was raped, is adjacent to the road which leads from Nangal to Una via Bhakhra, Raipur and there was a shop of one Durga Dass, Tailor in between the flour mill and the said room but has specifically stated that the said shop of the tailor was closed at the time when she was taken to the room by the accused. She has further stated that there are three fields in between the flour mill and the house of the respondent, which is in the vicinity of 2-3 houses and its kitchen is on one side of its long Varandah and the doors of the room and the kitchen open towards the Varandah. She has further admitted that mother, sister-in-law and her children and others were sitting in the room facing the door opening in the Varandah while watching the T. V., which was placed in the window. According to the prosecutrix she used to come to the respondent's house earlier to watch TV when respondent's mother had never asked her to do any work. As per the statement of the prosecutrix the respondent's mother told her to bring Patili after the film was over and news were being telecast. She has admitted that she did not tell her mother before coming to the house of the respondent that she would go there for watching TV rather she had told her mother that she was going to the house of Babli, her cousin sister, for studies, the daughter of brother-in-law of her aunt, in whose house she stayed at night. In her further statement she has categorically stated that she came to the house of Babli at 6.00 p.m., after studying there for some time she came to see TV accompanied by Babli but when she went to bring the Patili, Babli left for her house. She has reiterated that she went to her house next morning at 7/8 a.m. She did not go to school for next two days. She has specifically denied the suggestion that her mother got her medically examined and applied some medicines or chilli to her private parts.

(6.) The mother of the prosecutrix, Kunta Devi PW-3 and her aunt Kaushlya Devi PW-4 have appeared as PW-3 and PW-4 respectivelyand corroborated her statement. Kunta Devi has stated that she got married with Sher Singh PW-5, 13 years ago and the prosecutrix is her eldest child running 13th year of age and studying in 4th Class. She has further stated that on the day of occurrence in the evening after sunset and taking her meals the prosecutrix had gone to her aunt's house to study in the company of her cousin Babli as she used to do on the earlier occasions and came back on the next morning, when she noticed bloodstains on her Salwar and Kameej and on enquiry the prosecutrix had told her the whole incident hesitatingly. Thereafter she made her to change her clothes and gave her bath. According to Kunta Devi her husband had gone to his work on 21-5-1989 and thereafter to his in-laws' place and returned to his house on Monday evening when she narrated him the whole incident and on the next morning she and her husband took the prosecutrix to Police Station Bangana to lodge the report. As per her statement she gave consent to the Doctor for medical examination of the prosecutrix and handed over her clothes vide memo Ex. PD. Kunta Devi has also been put to very lengthy cross- examination but she has stuck to her statement in the examination-in-chief. She has admitted that she had accepted whatsoever was stated by her daughter and did not go to respondent's mother to make further inquiry. Her statement under Section 161, Cr. P.C. was put to her to prove that she had not stated that her daughter had informed her that she was caught from behind by the hair tail and her mouth was gagged and also that she could not make noise as her mouth was gagged and the respondent had threatened to kill her in case she disclosed the incident to anybody. This witness has categorically denied the suggestion that she had applied Chillies instead of getting the prosecutrix treated and had put her own blood on the shirt and Salwar in order to create false evidence against the respondent and volunteered that no mother would have done so, more specifically when she had no enmity with the respondent. As per her statement she did not make enquiry when the prosecutrix did not come back during the night, as she used to visit the house of her Devar frequently. She has further stated that after knowing the incident she did not tell it to anyone and waited for her husband to come home. She has categorically denied that she had a dispute with the father of the respondent for not returning the buffalo as per the agreement, for which reason she had falsely implicated the respondent.

(7.) Kaushlya Devi PW-4 has stated that during the night of occurrence the prosecutrix came to her house at 11.00 p.m. and brought Khandolu (a type of bed cushion) and slept on the same in the open and went to her house on the next morning at about 6.00 a.m. without talking to her in the night and she noticed blood in the pitcher and bloodstains on Khandolu, which was washed by Babli, daughter of Sandhya Devi, her Jethani (sister-in-law). In her cross-examination she was confronted with her statement under Section 161, Cr. P.C. wherein there is no mention that the prosecutrix came to her at about 11.00 p.m. and also that Khandolu was washed by Babli. As per her statement she had not asked the prosecutrix wherefrom she had come at that time of the night. She has further explained that Khandolu was brought by her from the house of Babli, where she was studying. But this part of the statement was not found recorded in her statement under Section 161, cr. P.C. She has further stated that she had come to know about the incident on Tuesday when her husband was informed by the father of the prosecutrix.

(8.) Sher Singh PW-5, the father of the prosecutrix, has corroborated the statement of his wife Kunta Devi PW-3. In his cross-examination he has admitted that on having known the incident from his wife on Monday evening he did not make any complaint to Panchayat and did not tell the incident to anyone including his brothers before lodging the report in the police station. He has categorically denied that there was some dispute between him and the family of the respondent on account of return of buffalo.

(9.) Roshan Lal PW-6 has proved memo Ex. PD whereby possession of Salwar Ex. P-1 and Kameej Ex. P-2 was taken by the police. Head Constable Har Pal, Police Post Haroli PW-6, Constable Rajinder Singh, Police Station Amb PW-7 and L.H.C. Gurdial Singh, Police Lines Una PW-9 have brought their affidavits Ex. PE, PF and PG respectively on record to prove that sealed parcel containing the clothes of the prosecutrix remained intact while in their custody and by the time it was handed over to the Chemical Examiner. Ram Dass Sharma PW-10, Head-Master Government Primary School Raipur Maidan has produced andproved certificate Ex. PH of the prosecutrix issued by him on the basis of record maintained by him in the school, stating the date of birth of the prosecutrix as 11-11-1978. He has stated in the cross-examination that the certificate was prepared on the basis of admission form which was filled in as per the information given by the person who got the prosecutrix admitted. According to him as per the present procedure the date of birth is recorded on the basis of certificate issued by village Panchayat and in its absence the affidavit of the person who wants to admit his child in the school.

(10.) Gurbachan Dass PW-13, Secretary Gram Panchayat and Vikas Adhikari, Bangarh, Teh. and Distt. Una has produced and proved birth certificate Ex. PO in which the date of birth of the prosecutrix is written as 24-11-1978. In his cross-examination he has admitted that entry against Serial No. 7 at page No. 26 of the Register of Birth and Deaths brought by him, is in Urdu script which he got translated by someone before issuing certificate Ex. PO believing the translation to be correct. He has admitted that at page No. 25 there was no entry and he did not remember why entry No. 7 at page No. 26 was recorded on 9-6-1989. Head Constable Daulat Ram PW-11 and Sub Inspector Parkash Chand PW-12 were the Investigating Officers, who conducted the investigation.

(11.) The Sessions Judge in her judgment on the basis of school certificate Ex. PH and Panchayat certificate Ex. PO has come to the conclusion that the age of the prosecutrix was about 12-13 years at the time of occurrence, as such there was no question of her consent to the alleged act of sexual intercourse. Learned counsel for the respondent-accused has not been able to find fault in these findings of the Sessions Judge except stating that no ossification test was conducted and the certificates Ex. PH and PO are not believable as these are based on the records which are proved to have not been kept properly. But we do not find any substance in these submissions as Kunti Devi PW-3 and Sher Singh PW-5 who have given the age of the prosecutrix as 13 years at the time of their deposition in the Court, have not been cross-examined to challenge their veracity in this regard. Doctor J. S. Kanwar PW-14 has also given the age of the prosecutrix as 10 years on the basis of his clinical examination and also as told by the mother of the prosecutrix. According to the school certificate Ex. PH which was given on the basis of school record prepared at the time of the admission of the prosecutrix the age of the prosecutrix was 101/2 years at the time of the occurrence. Therefore, from all this evidence on record the Sessions Judge has correctly come to the conclusion that the age of the prosecutrix was 12-13 years at the time of the occurrence.

(12.) But according to the Sessions Judge the "statement of the prosecutrix is highly improbable, highly contradictory and does not inspire confidence and it is also not consistent with the other prosecution evidence available on the record as will be borne out from the following

" :-(i) Unexplained time-gap between 6.00 p.m., when the prosecutrix went to the house of the respondent for the purpose of watching the film, and 11.00 p.m. when she reached the house of Kaushlya Devi PW-4.(ii) In view of the definite and categorical statement of the prosecutrix that after removing her Salwar was kept aside and she was wearing only shirt at the time of alleged occurrence, which got stained, the question of presence of Spermatozoa on the Salwar will not arise at all, whereas as per the report of the Chemical Examiner Ex. PM Spermatozoa was detected on it.(iii) In view of the presence of mother, sister-in-law, her children and other members of the family of the respondent in the house and the location of the kitchen in the Varandah of the house and the other two houses in the vicinity, as admitted by the prosecutrix in the cross-examination, it was not believable that the respondent was not noticed by anyone while he was dragging the prosecutrix by gagging her mouth.(iv) According to the Sessions Judge there are missing links in the prosecution case, such as, nobody from the family of the respondent of the locality has been examined in order to prove the presence of the prosecutrix in the house of the respondent in the evening on the day of occurrence and also that on the asking of the mother of the respondent she had gone to bring the Patili from the flour mill. According to the Sessions Judge, "an attempt could have been made to extract the names of those others who allegedly were present in the house of the accused at the time when she allegedly was dragged by the accused from his kitchen towards theflour mill."(v) The part of the statement of the prosecutrix that she reached the house of her aunt Kaushlya Devi PW-5 and slept there in the night, is also shrouded by grave suspicion. Kaushlya Devi PW-5 is the real aunt of the prosecutrix as her husband and the father of the prosecutrix are real brothers and Babli is the daughter of third brother and first cousin of the prosecutrix but she has not been cited and produced as witness, though she was witness, who could throw, light on many material points, such as, the time when the prosecutrix came to her house, whether she had told anything on her return or what was the state of prosecutrix at that time or whether she had washed Khandolu provided to the prosecutrix for sleeping purpose during the night.(vi) It remains mystery how the blood stains appeared in the pitcher or near it and why these were not collected by the Investigating Officer in order to ascertain whether it was human blood matching with the blood stains found on the clothes of the prosecutrix.(vii) The statement of the mother of the prosecutrix is also not believable, who after knowing the incident of rape committed on her daughter made her to change her clothes and waited for the arrival of her husband in the evening instead of informing him, who was working at a distance of 1/4 kilometre and did not tell the incident to Kaushlya Devi PW-4 or to verify from her whether the prosecutrix had slept in her house during the previous night. She even did not try to approach the Members of the Panchayat or Pardhan or any other respectable.

(13.) After hearing the learned counsel for the parties and marshalling the evidence we find the above stated conclusions of the Sessions Judge as most unreasonable, rather perverse and no prudent person can arrive at them on the basis of material on record. We will deal with these conclusions in seriatim :-

(i) There is no unexplained time gap between the time when the prosecutrix went to the house of the respondent for the purpose of watching the film on TV and the time when she reached the house of her aunt Kaushlya Devi PW-4. The Sessions Judge has not referred to the cross-examination of the prosecutrix where she has stated that she came to the house of her cousin at 6.00 p.m. and after staying there for some time for the purpose of studies she came to watch TV at the house of the respondent. She has also stated that when respondent's mother asked her to bring Patili, film was over and news were being telecast. On this part of her statement the prosecutrix has been fully corroborated by her mother Kunta Devi, who has also added that the prosecutrix had told her that she watched TV for half an hour to one hour. The Sessions Judge has not referred to this part of the statement of the prosecutrix and her mother, from which it is clear that the prosecutrix might have stayed in the house of her cousin Babli for about one hour or so for the purpose of studies and thereafter reached the house of the respondent by 7.00 p.m. near about sunset as per the statement of Rameshwar Dutt DW1 and watched TV by 8.30 p.m. When news were being telecast in Hindi on Doordarshan, which could be the only TV Channel available in the villages in the year 1989. Time spent in going to the flour mill for bringing Patili, dragging the prosecutrix to a room adjacent to the flour mill, committing the act of rape and thereafter bringing the water from his house by the respondent for washing the shirt of the prosecutrix and thereafter prosecutrix going to the house of her aunt Kaushlya Devi might be about 11/2 hours to 2 hours. By re-enacting in our mind the incident in question and also by taking into consideration that the time given by the prosecutrix, her mother Kunta Devi as well as her aunt Kaushlya Devi, who were rustic villagers from labour class, cannot be exact and margin of half an hour to one hour should be given. We do not find any unexplained time gap as held by the Sessions Judge. Moreover, the prosecutrix and her mother had not given the time when the prosecutrix reached the house of her aunt Kaushlya Devi. It is only Kaushlya Devi who has stated that the prosecutrix had come to her house at about 11.00 p.m. when she was asleep. In the absence of her further statement that she has noticed the time as 11.00 p.m. in her wrist watch or in any other watch or clock, the possibility cannot be ruled out that she gave the time only as per her estimate and the margin of error might be from half an hour to one hour.(ii) While arriving at the second conclusion the Sessions Judge has not considered that the prosecutrix had worn her Salwar immediately after the commission of crimeand had washed her shirt which she was wearing at the time she was raped, from which the possibility of presence of Spermatozoa on the Salwar and stains of human blood on both, as found by the Chemical Examiner and Serologist in their reports Ex. PM and PN cannot be ruled out.(iii) The third conclusion of the Sessions Judge is also not reasonable. She has not applied her common sense that in the villages there are no street lights and after the sunset when it gets dark, it is not possible to see at a short distance, more so, when TV sets are on in the houses, the full attention of all the persons residing therein is on watching the programmes on the TV and the possibility of anyone not noticing the respondent dragging the prosecutrix by gagging her mouth cannot be ruled out. Moreover, the respondent had followed the prosecutrix from the flour mill with his nefarious designs in his mind to ravish her, which he would have implemented in such a clandestine manner as to escape the notice of anyone either in his house or in the surroundings.(iv) The fourth conclusion of the Sessions Judge is perverse. It is too much to expect that any member of the family of the respondent or from the houses in the neighbourhood would appear as witness in support of the statement to the prosecutrix that she was present in the house of respondent for watching TV and was told by the mother of the respondents to go to flour mill to bring Patili, more so, when the prosecutrix is a daughter of a poor daily-wage labourer, whereas, the respondent is a son of a proprietor of a flour mill and landlord.(v) So far the fifth conclusion of the Sessions Judge is concerned, she is right that the prosecution has failed to produce material witness Babli, the cousin of the prosecutrix, in whose company the prosecutrix had studied for some time and thereafter went to the house of the respondent to watch TV and who had later on washed blood stained Khandolu on which the prosecutrix had slept in the night. But it is not enough to cause suspicion in the statement of the prosecutrix that she went to the house of her aunt Kaushlya Devi and slept there in the night as she had been duly corroborated by Kaushlya Devi in this regard. Though it has not come on record as to what was the age of Babli at the time of occurrence, yet in view of the fact that prosecutrix had come to study with her in her house it can be presumed that she was studying with the prosecutrix and was of tender age like the prosecutrix, the prosecution might not have thought it proper to cite her as witness, possibly for many reasons.(vi) The sixth conclusion arrived at by the Sessions Judge pertains to the failure of the Investigating Officer to collect blood stains found by Kaushlya Devi in pitcher or near it is of no consequence.(vii) The seventh and last conclusion about the conduct of the mother of the prosecutrix is also unreasonable. How a person reacts to a situation and conducts himself/herself depends upon number of factors, such as, his or her education, family background, social background, individual traits and psychology etc., etc. It is not unnatural for the mother of the prosecutrix to wait for the arrival of her husband from his place of work instead of first telling it to her relations or to President or Members of the Gram Panchayat or respectables of the village or even to make enquiries in this regard from the person concerned, as the rape of a daughter is most serious and sensitive matter involving the honour and prestige of the family as well as the daughter.

(14.) We are of the considered vie

w that despite her tender age and being student of fourth class as well as village and social background the statements of the prosecutrix under Section 154, Cr. P.C. as well as in the Court read with the statement of her mother in respect of the place and manner of commission of crime by the respondent have been consistent, without any contradiction or improvement and inspire confidence. The manner she has withstood the cross-examination and given correct information in respect of the location and surroundings of the kitchen, house and flour mill of the respondent it is not possible to doubt the truthfulness and veracity of her statement. In fact for arriving at above referred to conclusions the Sessions Judge has not correctly read and appreciated the statement of the prosecutrix in respect of commission of crime and has relied upon such circumstances which are not very relevant and material to dub the statement of the prosecutrix as doubtful. The Sessions Judge has also not cared to refer to the medical evidence of Doctor J. S. Kanwar, who has fully corroborated the prosecutrix that she was ravished as a result of whichinjuries were found on her vagina, which were of probable duration of 24 to 48 hours. The defence of the respondent is denial simpliciter, though he has stated in his statement under Section 313, Cr. P.C. in reply to Question No. 29 that a false case has been foisted on him due to enmity but he has not elaborated it by stating the cause thereof. From the trend of cross-examination of prosecution witnesses also no cause of alleged enmity has been proved on record. Therefore, there is no possibility that the father of the prosecutrix, who is only a labourer would falsely involve the respondent, who is a son of a rich and influential man of the village, for the rape of his minor daughter for no rhyme and reason, and without any past enmity or motive. (15.) The result of above discussion is that we find merit in this appeal and it is allowed and the judgment of the Sessions Judge, Una dated 16-9-1991 is set aside. The respondent is held guilty of rape and is convicted under Section 376, I.P.C. (16.) We have heard learned counsel for the respondent on the quantum of sentence. Though the facts and circumstances proved on record suggest that the respondent deserves a severest punishment yet in view of the fact that the occurrence is of 21-5-1989 when he was 25 years of age and he might have settled in life, we sentence him to undergo rigorous imprisonment for three years and to pay a fine of Rs. 10,000/-. In default of payment of fine, he shall further undergo simple imprisonment for one year. The fine if recovered, will be paid to the prosecutrix as compensation. The respondent is directed to surrender himself before Session Judge, Una within a period of one month and receive sentence awarded to him.Appeal allowed.