IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No.318 of 2002 Date of Decision : August 26, 2011 State of H.P. …Appellant Versus: Lalu Singh & Ors. …Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Mr. Rajesh Mandhotra, Dy. A.G. For respondents 1 & 2 : S/Sh. Gian Singh Chandel, and Neeraj Sharma, Advocates. For respondents 3 & 4 : Mr. Abhishek Sood, vice Mr. Ramakant Sharma, Advocate. Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgment dated 05.12.2001 passed by the learned Additional Sessions Judge, Shimla, in Sessions Trial No. 24-S/7 of 1997, whereby the accused have been acquitted of having committed the offences punishable under Sections 373, 376, 363, 366, 366- A, 342 and 372 I.P.C. 2. The prosecution story in brief is that the prosecutrix was a minor girl aged about 15 years. In May 1995, she left her house in village Chondal without informing her family members. Her family members made attempts to trace out the prosecutrix 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 in the houses of their relatives, but they did not succeed. Sometime in the end of December 1995, the father of the prosecutrix received two letters (Ex. PW-4/A and PW-4/B) written by some un-known person informing him that his daughter is residing with Lalu Singh of village Gohara, District Ghaziabad (U.P.). It was also mentioned in these letters that the prosecutrix has been sold for Rs.35,000/- to Lalu Singh. Thereafter, the uncle of the prosecutrix went to village Gohara in Ghaziabad to inquire about the prosecutrix. They saw the prosecutrix in the house of Lalu Singh. Then PW-4 Shyam Lal came back from Ghaziabad to Theog and informed the police at Theog that the prosecutrix was in the custody of Lalu Singh at village Gohara, District Ghaziabad. Later on, the police party of Police Station, Theog, which was headed by PW-17 Basti Ram and also included PW-9 Sanjeev Kumar, went to village Gohara. The prosecutrix was found working in the fields of Lalu Singh and he was also working in a nearby field. The prosecutrix was handed over to her parents and thereafter investigation in the matter was carried out. During the course of investigation, it was found that accused Hari Chand, who belonged to Himachal Pradesh had initially abducted/kidnapped the prosecutrix. Hari Chand is alleged to have sexually abused the prosecutrix. Thereafter, he handed over the prosecutrix to accused Padmu Devi, who sold her to accused Rambir, who in turn, sold her to accused Lalu Singh, from whom she was recovered. On these grounds, the accused persons were challaned and charged for having committed the aforesaid 3 offences. After trial, the accused have been acquitted. Hence, the present appeal. 3. We have carefully gone through the record of the case. It is a well settled law that in a case of rape, conviction of the accused can be maintained even on the sole testimony of the prosecutrix. However, there is important caveat that the testimony of the prosecutrix must inspire confidence. In the present case, we are constrained to observe that the testimony of the prosecutrix herself is replete with contradictions and it will be highly unsafe to rely upon her testimony. 4. Even as per the statement made in Court, the version of the prosecutrix is that her parents were not at home. She had a quarrel with her siblings and, therefore, left her house. According to her, she boarded a bus at Matyana and came to Shimla. However, in the later part of the testimony, when she was confronted with her statement made to the police, she admitted that she had informed the police that she had walked from her village to Sunarghati and had boarded a bus at Sunarghati for Theog. She categorically admits in her statement that she had boarded the bus at Sunarghati and the earlier part of her statement that she boarded the bus at Matyana is incorrect. Therefore, it is apparent that she lied in Court. Another important factor is that the prosecutrix in her statement states that she had taken a spare suit with her when she left her house. It is thus obvious that the prosecutrix had left the house of her own accord. 4 5. While making the statement in Court, the prosecutrix stated that after she reached Solan, she went to her friend’s house and stayed there for 2-3 days. Thereafter, she came to Shimla and was sitting on Railing at Lakkar Bazar. At that time, there accused Hari Chand met her and she talked with him and immediately Hari Chand offered to solemnize marriage with her. She however did not agree but thereafter he again compelled her to marry him and she agreed to that. Thereafter, she accompanied Hari Chand to his house at village Chari-Mod in Tehsil Jubbal. She then states that Hari Chand had not taken her to his house but to the house of his uncle. According to her, she was sexually assaulted there by Hari Chand. She, in her cross- examination, has admitted that in the house of the uncle of accused Hari Chand, large number of persons were there. 6. According to the prosecutrix, she was then taken to the house of an aunt of the accused and from there to Solan. Then she was taken to Delhi and from Delhi to the house of accused Padmu Devi at Bagpat. According to the prosecutrix, she was sold by accused Padmu Devi to one Pal Chand. Because he did not pay the full amount, she was brought back to the house of Padmu Devi by accused Rambir. She alleges that both Padmu Devi and Rambir used to torture her in the house and take excessive work. Her case is that thereafter accused Padmu Devi sold her to accused Lalu Singh for a sum of Rs.35,000/- and Rs.21,000/- were paid in her presence. She was then taken to the house of Lalu Singh, where she remained for about 1½ month. According 5 to her version, she was detained in his house and, therefore, did not have opportunity of informing to anybody. Only after her uncle came to the police, she could be recovered. She however, states that she had told one young girl Rekha who lived in her neighbourhood about the manner in which she was being treated, who may have written the letters Ext.PW-4/A & Ext.PW-4/B. 7. It is apparent that the prosecutrix was missing for more than 8 months when the F.I.R. was first lodged. There is no explanation by the prosecution as to why the F.I.R. was not lodged earlier. It cannot be believed that the parents of a young girl aged about 16 years would keep silent and not inform the police about the disappearance of their daughter for so many months. It is thus apparent that there is something more in the matter, which has been concealed from the Court. Another important aspect is that the prosecutrix while appearing in the witness box first stated that she stayed in the house of one Kiran at Solan. The prosecutrix was confronted with her statement made to the police wherein she had stated that at Railway Crossing, Chambagaht, she had met one Shanti of village Kalin, who was accompanied with a boy. When confronted with her statement, the prosecutrix denied having made this statement. According to her, she went to the house of one Geeta, where she stayed. However, when cross-examined, further she admitted that she stayed in the company of Rajinder and Ramesh for one night at Solan. Who were these Rajinder and Ramesh? They have not been examined by the prosecution. 6 8. The genesis of the abduction, kidnapping and sexually molestation of the prosecutrix lies at this stage when the prosecutrix left her village and went to Solan. There is virtually no explanation for this period of 4 days either by the prosecutrix or by the prosecution, as to where she stayed and with whom she stayed. 9. Coming to the second part of the story which starts four days later at Lakkar Bazar in Shimla, the version of the prosecutrix that she was accosted by accused Hari Chand and on coming to know of her plight, he compelled her to get married to him, does not inspire confidence. Even if this version is believed the prosecutrix thereafter willingly left with Hari Chand and went to his village. She states that she was sexually abused by Hari Chand. She was in the house of an uncle of Hari Chand. Thereafter, she was taken to the house of an aunt of Hari Chand and then again brought to Solan, from where she was taken to Delhi and then to Bagpat. She had more than sufficient opportunities to raise an alarm or complain to persons about the manner in which she was abducted. Admittedly, she did not make any complaint to any person. It is more than obvious that the prosecutrix willingly accompanied Hari Chand. 10. The third chapter of the story relates to Bagpat where the prosecutrix is alleged to have been illegally confined in the house of Padmu Devi with the help of Rambir. If her version that she stayed with Lalu Singh for about 1½ month is accepted it means that she lived at Bagpat for more than six months. Except 7 for a short period when she was allegedly kept in the house of one Pal Chand, in a long period of six months, the prosecutrix would have gone in and out of the house. She does not even state that she was confined inside a room. Her only explanation is that since the accused was present most of the time, she could not make complaint. This version cannot be accepted. No independent witnesses from Bagpat have been examined to support the case of the prosecution. In a case like the present one where the version of the prosecutrix is full of contradictions, some corroboration was required before her statement could be relied upon. 11. Coming to the last aspect of the matter, the prosecutrix admitted that in the house of Lalu Singh, there were other members of the family. She herself states that she had gone to the house of Rekha at village Gaura, who in turn, may have written the letter. Even this Rekha has not been examined in Court. Even when the prosecutrix was recovered, she was found working alone in the field and Lalu Singh was found working in the adjoining field. Therefore, it is apparent that she had more than ample opportunities to raise an alarm or to complain about the conduct of Lalu Singh, if she has in fact been kidnapped or sexually assaulted by him. All these factors clearly indicate that she had willingly gone to the house of accused persons from place to place and the sexual intercourse, if any, was consensual in nature. 8 12. The most important issue in the case is what was the age of the prosecutrix? If she was below 16 years then whether she was a consenting party or not, the accused would be guilty of committing the offence of rape. The prosecutrix while appearing in the witness box stated that in the year 1995, her age was 15 years. She also states that she started menstruating at the age of 14. This statement is in total contradiction to the record produced by the prosecution. 13. PW-7 Bala Nand Sharma produced a copy of the Parivar register, in which date of birth of the prosecutrix is shown to be 14.02.1983, which would mean that she would be a little more than 12 years of age in 1995. Therefore, no reliance can be placed on this witness because even according to the prosecutrix, she was about 15 years of age at that time. It is a well settled law that primary evidence to prove the age is the birth and death register and not the parivar register. The birth and death register is stated to be maintained by the Gram Panchayat. This fact has been admitted by PW-7. However, for reasons best known to the prosecution, the said register has not been produced and reliance has been placed only upon the Parivar register. PW-7 admitted that entry in the Parivar register was not in his hands and he also admitted that he did not bring the birth and death register on the basis of which entries in the Parivar register are purported to have been made. If entries in the Parivar register were made on the basis of the birth and death register, primary evidence was the 9 said register which is statutorily required to be maintained under law. Therefore, no reliance can be placed on this register. 14. Another document relied upon by the prosecution is the certificate issued by the school (Ext.PW-13/A). PW-13 Sh. Naresh Chand, who was Headmaster at that time states that he had issued the certificate on the basis of the school record. This certificate itself cannot be read in evidence and it was incumbent upon the prosecution to have produced the original school record. The school record has not been produced and only the statement of the witness has been tendered in evidence. This witness also admits that he does not know on what basis the entries regarding the date of birth were made in the register at the time of admission of the prosecutrix in the school. Therefore, no reliance can be placed upon this certificate also. 15. Lastly coming to the medical evidence regarding the age of the prosecutrix, statement of PW-3 Dr. Sudha Parkash is relevant. She had carried out the Radiological examination of the prosecutrix on 29.1.1996 to determine her skeletal age. After carrying out all tests and conducting skiagrams, she opined that the skeletal age of the prosecutrix was between 15 to 17 years. This again shows that no reliance can be placed upon the certificates, according to which, the age would have to be 12 years. She also admitted that there can be a variation of about 2 years on either side and, therefore, as on January, 1996, the age of the prosecutrix could be between 15 to 19 years. Therefore, the prosecution has not been able to prove that the prosecutrix 10 was below 16 years or even below 18 years at the time when the alleged offence was committed. 16. The prosecutrix admittedly left the house of her own accord. Nobody compelled her by any deceitful mean to leave her house nor was she taken out of the guardianship of her parents without the consent of the guardians. She has also not been proved below 18 years. Therefore, we find no merit in the present appeal, which is accordingly dismissed. The bail bonds furnished by the accused are discharged. ( Deepak Gupta ), Judge. ( Sanjay Karol ), Judge. August 26, 2011. (rana)