IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.39 of 2010. Date of Decision: 23rd August, 2010. _________________________________________________ ___ Rakesh Kumar ….Appellant. Versus State of Himachal Pradesh ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. Ashok Sharma, Advocate. For the respondent: Mr. J.S. Rana, Assistant Advocate General. ____________________________________________________ SURINDER SINGH, J. (Oral) : The appellant is aggrieved by the judgment of the learned Additional Sessions Judge (Fast Track Court), Una, whereby he has been convicted of the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code and sentenced as follows: Sr. No. Offence Sentence imposed 1. Under Section 376(1) IPC. Rigorous Imprisonment for seven years and to pay a fine of Rs.5,000/-, in default of payment of fine to further undergo simple imprisonment for one month. 2. Under Section 363 IPC. Simple Imprisonment for a period of two years and to pay a fine of 1 Whether reporters of the Local papers are allowed to see the judgment? Rs.2,000/-, in default of payment of fine to further undergo simple imprisonment for one month. 3. Under Section 366 IPC. Simple Imprisonment for a period of two years and to pay a fine of Rs.3,000/-, in default of payment of fine to further undergo simple imprisonment for one month. All the sentences were ordered to run concurrently. 2. In short, the prosecution story can be stated thus. In the year 2008 the prosecutrix was studying in 9th standard in Government High School, Batehar. The work of the construction of the road to the village of the prosecutrix was going on under the “Pradhan Mantri Gramin Sadak Yojna” (PMGSY). The Contractor Krishan Lal Dhiman had deployed his tipper on that road wherein the appellant was the driver. The prosecutrix used to pass through the road, under- construction, while going to her school. It is alleged that the appellant used to tease and harass her and had threatened to abduct her. On 21st June, 2008 at about 8.15 pm, the prosecutrix was found missing from her parental house. Her mother for the first time disclosed to her husband that the appellant used to tease her and had proposed to marry her. The suspicion of her father Ashok Kumar fell upon the 2 appellant. Thus he reported the matter to the police and his statement Ext.PW-6/A under Section 154 of the Code of Criminal Procedure was recorded in Police Post, Chintpurni on 23rd June, 2008 at about 11.15 A.M. on its basis FIR Ext.PW-8/A was formally recorded in Police Station, Amb. 3. Police carried out the investigation of the case. The prosecutrix was got recovered by the police from ‘Indira Colony Chowk’, Pathankot (Punjab). During this period she was taken by the appellant to various places in Punjab and Haryana. After the recovery of the prosecutrix, she was handed over to her parents and the appellant was arrested. The statement of the prosecutrix was recorded and she was medically examined by PW-1 Dr. Usha Daroch on 25th June, 2008. She did not find any abnormality in the perineum, there was no external injury on her vagina however, vaginal orifice admitted two fingers of right hand. Hymen was found ruptured, healed and was pink in colour. Samples of pubic hair, vaginal smear and swab along with her underwear were sealed and handed over to the police for chemical examination. On the report of the Chemical Examiner Ext.PW-1/B, the said doctor opined that there was a sign of vaginal penetration. She issued Medico Legal Certificate Ext.PW-1/C. 3 4. The appellant after his arrest was also got medically examined. He was found fit to perform sexual intercourse. There was no injury on his person. 5. During the course of investigation, the police took into possession the copy of birth entry Ext.PW-4/A on the basis of which certificate with respect to her date of birth Ext.PW-4/B was taken into possession. It reflected her date of birth 15.9.1993. Thus she was alleged to be less than 16 years of age at the time of alleged incident. The police recorded the statements of the witnesses and after completing the investigation, challan was presented in the committal Court. The Judicial Magistrate concerned committed the case to the Court of Sessions, which was ultimately assigned to the Additional Sessions Judge (Fast Track Court). 6. Finding a prima facie case under Sections aforesaid, the charges were accordingly framed. The appellant abjured his guilt and claimed trial. The defence of the appellant was denial with respect to rape and it was further his case that the prosecutrix was above the age of discretion and also that the birth certificate Ext.PW-4/B was a forged and fabricated document. To prove this fact the appellant also examined two defence witnesses, when called to enter upon his defence. The learned trial Court disbelieved the defence version. Accordingly, appellant was convicted and sentenced as aforesaid. 4 7. Shri Ashok Sharma, learned Counsel for the appellant, vehemently argued that the prosecutrix was proved to be more than the age of 18 years on the relevant day further that she had the affairs with the appellant and she was interested to marry him to which the appellant had also agreed but it was not acceptable to her parents. The learned Counsel took me through the evidence on record and pointed out that the evidence on record suggests that there was no inducement, fraud or allurement offered or practiced by the appellant and she had voluntarily left the guardianship of her parents. The evidence on record does not prove the offence of alleged rape and he also made reference to the statement of PW-3 Ashok Kumar to the effect that the prosecutrix had disclosed in the presence of the appellant that she had come with appellant there of her own sweet-will. It is also argued that the learned trial Court did not appreciate the facts in its right perspective, hence a material prejudice has been caused. 8. Contra, Shri J.S. Rana, learned Assistant Advocate General, supported the impugned judgment of conviction and sentence and prayed for the dismissal of the appeal. 9. I have carefully heard learned Counsel for the parties and have scanned the evidence on record meticulously and in result I do not concur with the findings of 5 guilt recorded by the learned trial Court for the reasons stated hereinafter. 10. In this case the prosecutrix was examined as PW-2. She stated that while commuting to the school, the appellant used to meet her daily and proposed to marry her, but she refused. On this, the appellant threatened to take her forcibly. She also stated that on 21st June, 2008 at about 7.30 p.m. he took her to Kangra in a Tata-sumo vehicle, on the pretext of marrying and kept her in a hotel for the night, he had sexual intercourse with her by saying that he would marry her. Next day the appellant took her to Panipat and then to Pathankot where they were apprehended by the Police and she was handed over to her parents. Thereafter she was medically examined at Amb, the appellant was arrested. 11. Now her cross-examination in the court against the above narration is very relevant. She did not remember the date and month when the appellant had first proposed her to marry. About this fact she did not speak to any member of her family including her sister regarding leaving the house of her parents. She stated that it took about five minutes to reach Tata-Sumo from her house. Significantly, there is no reference in her statement that appellant had either allured, induced her or forced her to leave the guardianship of her parents. She also stated that there were two persons in Tata- Sumo apart from the appellant, who accompanied them upto 6 Kangra. She did not say if they had given any threat or promised to accompany the appellant. It was 2½ hours journey from her house to Kangra. She stated that the vehicle was stopped at two places for toll tax and at both those places police was also present. Even in the hotel where they stayed for the night many persons were staying in that hotel. Pertinently, she did not make any complaint to anyone. Next day, from Kangra they went to Panipat and traveled in the bus upto Ambala having about 35 passengers therein and from Ambala they went by train. In the train there were number of people and traveled upto Panipat where they allegedly stayed in the house of relatives of the appellant. None of them enquired anything from her. Even she did not make any complaint to them. They also took tea there and returned back to Kangra. After spending a night at Kangra they went to Pathankot. 12. She further stated that she spent three nights together and stayed in the house of the relatives of the appellant. She denied the suggestion that she and appellant used to exchange love letters with each other and appellant had expressed his wish to marry her whereas her parents intended to marry her elsewhere. She also denied that the appellant never committed any forcible intercourse with her. 13. PW-5 her father Ashok Kumar simply stated about the missing of his daughter on 21st June, 2008 at about 7 8.00 p.m. He reported the matter on 23rd June, 2008, when she was not traceable. On 25th June, 2008 the police had handed over the prosecutrix to him after recovery from Pathankot. In cross-examination he stated that his daughter had gone to fetch water from the tap. When he was confronted with his statement Ext.PW-5/A this fact was not found recorded there. He also stated that he was not knowing of it till 23rd June, 2008 as to where his daughter had gone, but his wife revealed to him a day before lodging of the FIR, i.e., on 22nd June, 2008, for the first time that the appellant had been proposing her to marry. 14. PW-6, the mother of the prosecutrix, stated that she knew the appellant as he was working with the Contractor engaged for the construction of the road in their village. When her daughter was found missing, attempt was made for search in the houses of their relatives. She further stated that whenever the prosecutrix used to go to school the appellant used to tease her and say that he wanted to marry her and she did not disclose this fact to her husband till 22nd June, 2008, when the prosecutrix was not located, FIR was lodged. 15. In cross-examination, she stated that when she disclosed this fact to her husband, she knew about the particulars of the appellant, which was disclosed to her by the Contractor on her enquiry. The tap from where the water was to be fetched was at a distance of about 25 steps away from 8 their residence and she stated that the prosecutrix informed her that she was going to fetch water from the tap. She also stated that when the prosecutrix was brought back, she asked her as to where she had gone. She revealed that she had been taken away forcibly after gagging her mouth which fact has not been stated at all by the prosecutrix, in the Court. It is also worth noticing that her mother, i.e., PW-6 Sushma Devi categorically stated that after the occurrence the appellant had also been pressurizing them to get the prosecutrix married with him. 16. In such type of case the age of the prosecutrix is of prime importance. I would advert back with regard to the age of the prosecutrix later. 17. Assuming that the prosecutrix was a minor, a minor may not be competent to give her consent to her taking, but a minor is certainly competent to leave the protection of her guardian of his or her volition. Therefore, it is immaterial whether the prosecutrix alleged to be kidnapped was a minor or not in so far as her leaving the house of her own accord is concerned. It is own case of the prosecution that appellant was known to the prosecutrix and according to her mother, even the appellant had proposed to marry her earlier to the alleged incident and also even after this case fell upon him. Thus, there is probability that some kind of love affair was going on between them. If it was so, the prosecutrix joined the 9 company of the appellant and befriend her. Thus, there was a complete absence of evidence regarding another essential ingredient of the offence, namely, the taking of the girl by the appellant. He was not shown and proved to be an active participator, therefore, neither the offence under Section 361 nor 366 of the Indian Penal Code stands proved against the appellant. 18. Further in so far as the allegation of rape is concerned, Section 375 of the Indian Penal Code needs to be noted. It speaks of ‘rape’ as ‘against her will’. It connotes that the offending act was despite resistance and opposition of the woman. 19. From the evidence on record it is also not borne out that the prosecutrix while taking in the Tata-Sumo was threatened or she was put to some fear by the appellant. All this, is negated by the circumstances that the prosecutrix was taken away by the appellant right from the near relatives when they were present in the house and the distance was covered by her on foot while boarding the Tata-Sumo. She did not even say that she was threatened by the persons, who accompanied her, in the said vehicle. Thus, the circumstances deducible from the evidence on record are capable of being considered in no uncertain measures that she was not under any fear from the appellant. It has also come in the evidence that at various places, she came across many persons while 10 traveling in the bus/train and also while staying in the hotel at Kangra, but she did not make any complaint to any of them or even to the police when she was traveling about the allegation of abduction/kidnapping and even she did not offer any resistance to the act of alleged rape by the appellant when she was not put under any fear or threat. Even on the day when she was recovered by the police from “Indira Colony” at Pathankot in the presence of PW-3 Ashok Kumar, she did not say about any fear or threat. Ashok Kumar (PW-3), stated that the prosecutrix told them in the presence of police that she had come there with the appellant of her own sweet-will to perform the marriage with him. 20. There is a good analysis of the expression “consent” in the context of Section 375 IPC in Rao Harnarain Singh Sheoji Singh v. State, AIR 1958 Punjab 123. There is a difference between consent and submission and every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent. 21. In Uday v. State of Karnataka, JT 2003 (2) SC 243, the Supreme Court observed in para 12 as under: “12. The courts in India have by and large adopted these tests to discover whether the consent was voluntary or whether it was vitiated so as to be legal consent”. 11 22. In State of H.P. v. Mango Ram, JT 2000 (9) SC 408, the Supreme Court observed as follows: “Submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.” 23. Thus the consent given pursuant to false representation that the accused intends to marry would also be called as a consent given under the misconception of fact which was not acted upon. The failure to keep the promise at a future uncertain date, due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. 24. In the present case, the circumstances do not militate against the appellant. Rather, he is proved to have promised to marry the prosecutrix even after the alleged incident which was not acceptable to the parents of the prosecutrix. 12 25. On the critical examination of the evidence as aforesaid, it transpires that the plea of consent of the prosecutrix in any case about the consensual intercourse cannot be ruled out. 26. The circumstances in the case in hand do not even remotely indicate that from the very inception the appellant never intended to marry her. Therefore, the tacit consent of the prosecutrix in the instant case is writ large. 27. Now it is essentially to be seen whether the prosecutrix was of the age of discretion even to give her consent which assumes importance for proving the case for the offence of ‘Rape’. The prosecutrix herself stated that she had given the age of 16 years to the doctor at the time of her examination. PW-1 Dr. Usha Daroch revealed she stated her age 15½ years. Further, the prosecutrix as PW-2 stated that she is 4th child of her parents and her brother is four years younger to her. On the day of examination in the Court on 4th June, 2009 she stated that her said brother is studying in 10th class. If he was in the 10th class and normally the child is admitted in the school at the age of six years, then on the day of her examination in the Court the age of her brother would be 16 years but not in any case less than 15 years. Thus her age comes to 18/19 years on 4th June, 2009 and more than 17 years on the date of alleged occurrence which is alleged to 13 have taken place on 21st June, 2008. The prosecutrix was also not subjected to the scientific determination of the age. 28. Although her father PW-5 stated that the date of birth of the prosecutrix is 15.9.1993, but he did not know the date of birth of other children. However, he stated that he was married to PW-6 Sushma Devi about 25 years and after about one year of their marriage his eldest son Pankaj was born. According to PW-6 Sushma Devi, Nisha Devi was born about three years of the first daughter and then the third daughter namely Mamta was born after two years. The prosecutrix was born on 15.9.1993 after three years of the birth of Mamta. The younger son Harish Kumar was born after two years of the birth of the prosecutrix. In seriatim the prosecutrix falls at Sr. No.4, who is alleged to have taken birth on 15.9.1993. The gap between the children given by PW-6 is contradicted by her as against the claim of her husband Ashok Kumar. But in cross-examination he stated that after about one year of their marriage his wife gave birth to Pankaj and three daughters after interval of one year each and this calculation establishes the age of the prosecutrix more than 18 years. The birth certificates of the children elder to the prosecutrix have not placed on record. But, an attempt has been made to place on record the birth certificate of the prosecutrix, photocopy of which is Ext.PW-4/ A, which according to PW-4, was correct as per original. Birth 14 certificate Ext.PW-4/B was issued showing her date of birth to be 15.9.1993. 29. The aforesaid entry is also subject to criticism. The name of the prosecutrix is overwritten in Ex.PW4/A and is encircled red, its column No.19 states that it pertains to “5th issue” of PWs-5 and 6, whereas the prosecutrix, as per the statement of her parents is admittedly the “4th issue”. Further one Onkara Devi is informant and the relation of Onkara Devi with the prosecutrix is not established. There is a cutting and overwriting in the name of prosecutrix which is also admitted by PW-4, but according to her, it was not made by her and she further stated that this cutting and overwriting is also not attested by any higher authority. Even the register did not contain any page number or certificate regarding the pages it contained. 30. Further, in defence the appellant examined DW-1, who was Panchayat Secretary when this birth register was maintained. He testified that the entry Ext.PW-4/A pertains to “5th child” of the parents of the prosecutrix. He also denied having made cutting regarding the name of the child shown in the said register. He admitted that during his tenure this record remained in his custody. Not only this, there is another fact which goes against the prosecution that is the statement of DW-2 Jagdish Ram. He stated that after the alleged incident admittedly the prosecutrix was 15 married to one Mukesh Kumar son of Shri Tilak Raj, resident of village Chapla, Tehsil Dehra District Kangra on 15.4.2009. The entry with respect to their marriage was made in the matrimonial register by DW-2 aforesaid wherein the date of birth of the prosecutrix has been shown as 8.7.1990 and not 15.9.1993 which is signed by her. 31. Further the prosecutrix has stated that her date of birth has been reflected in the school record, but the school record was not taken into possession by the police nor the prosecution made any attempt to prove the same. Thus an adverse inference has to be drawn. 32. Therefore, in view of above discussion examined from every angle, the age of the prosecutrix is proved to be more than 18 years. Thus neither the offences punishable under Sections 363 and 366 nor the offence under Section 376 of the Indian Penal Code are made out. Accordingly, the judgment of conviction and sentence deserves to be set aside, which is accordingly so ordered. The appeal in result is accepted. 33. The appellant is undergoing sentence, he be released forthwith, in case he is not required in any other case. Registry to take necessary steps forthwith. The fine amount, if any, deposited be refunded to him forthwith. 34. Send down the record. 16 August 23, 2010. (Surinder Singh), J. (rc) 17