HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.680 of 2001. Decided on: May_19, 2011. State of H.P. …Appellant. VERSUS Mohi Ram & another. ….Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 For the Appellant: Mr. R.K.Sharma, Sr.Addl.A.G. with Mr. Rajinder Dogra, Addl. AG For the respondents: Mr. Karan Singh Kanwar, Advocate. Sanjay Karol, Judge (oral) : For an offence, which is alleged to have been committed on 18.12.1997, accused were put to trial. In terms of judgment dated 4.9.2001, passed by Sessions Judge, Sirmaur District at Nahan, in Sessions Trial No.15-ST/7 of 2000/1999, titled as State of H.P. versus Mohi Ram & Another, accused stand acquitted of the charged offences. 2. It is case of the prosecution that accused No.1, Mohi Ram, lives in Village Nalendi, Tehsil Shillai, District Sirmaur, H.P. His daughter, Narda Devi, (accused No.2), was married to a Sikh gentleman, Shri Nand Singh, (original accused No.3). Narda Devi and Nand Singh used to reside Whether the reporters of the local papers maybe allowed to see the judgment? …2… in Delhi. Prosecutrix (PW-8) is the daughter of Shri Gayaru Ram, (PW-1), who also is resident of village Nalendi. 3. According to the prosecution, Kundan Singh (PW-2), on 18.12.1997, saw the prosecutrix board a vehicle (van) at village Chaudhar. In the van, accused Narda Devi, her husband Nand Singh and three other persons (Sikhs) were sitting. The van was taken towards Paonta Sahib. Kundan Singh informed Gayaru Ram that his daughter had been taken way by the accused. Gayaru Ram confronted accused No.1 about the whereabouts of his daughter but no satisfactory explanation was forthcoming. Prosecutrix was taken by accused Narda Devi and her husband to Delhi where she was not only subjected to forcible sexual intercourse by accused Nand Singh but also threatened by accused Narda Devi. After 15 – 20 days, accused Mohi Ram came to Delhi and took away the prosecutrix and handed her over to the police who, in turn, handed her to Gayaru Ram. Complaint (Ext.PW-1/A) dated 29.12.1997 under Section 156(3) Cr.P.C. was made by Gayaru Ram and on the basis of the order passed by the Additional Chief Judicial Magistrate, Paonta Sahib, District Sirmaur, H.P., F.I.R. (Ext. PW-5/A) dated 24.1.1998 under Sections 363, 366 read with Section 34 IPC was registered at Police Station, Shillai. Sub Inspector, Paul Chand, (PW-10), who was posted as S.H.O. …3… Shillai commenced investigation. The prosecutrix was got medically examined through Dr.Mahinder Kumar Sharma (PW-7), who prepared MLC (Ext.PD). He advised that the radiological examination be also got conducted. Police got the same done and report (Ext.PE) was taken by the police on record. Accused Nand Singh was got medically examined through Dr.S.N.Sachan (PW-4) and certificate (Ext.PW-4/B) was taken on record. Vaginal swab was sent for chemical analysis and report of the chemical examiner also taken on record. Statements of the witnesses were recorded and investigation completed and challan presented in the Court for trial. Investigation revealed that prosecutrix was minor, she had been kidnapped by the accused and was subjected to sexual intercourse without her consent by Nand Singh. 4. Accused Mohi Ram, Nand Singh and Narda Devi were charged for having committed offences punishable under Sections 363, 366 read with Section 34 IPC. Accused Nand Singh was additionally charged for having committed an offence punishable under Section 376 IPC. Accused did not plead guilty and claimed trial. 5. In order to prove its case, prosecution examined ten witnesses and the statement of accused under Section …4… 313 Cr.P.C. recorded. In defence, accused examined three witnesses. The accused took the following defence:- “The complaint has been filed by the father of Sheela Devi (PW-8) with a view to grab money from us.” 6. During trial, accused Nand Singh expired. With regard to other two remaining accused persons, the Court below, after careful appreciation of the entire material on record, came to the conclusion that prosecution had failed to prove its case beyond reasonable doubt. Not only that, the version of the witnesses, in particular, the prosecutrix and her father rendered the prosecution story to be extremely doubtful, if not false. 7. The first point, which needs to be determined, is the age of the prosecutrix. According to the prosecution, prosecutrix was below 16 years of age. To substantiate the same, Mr.Sharma, learned Senior Additional Advocate General, has invited our attention to the statements of Shri Gayaru Ram (PW-1), Shri Nain Singh (PW-3), Dr.Mahinder Kumar Sharma (PW-7) and the prosecutrix (PW-8). 8. Prosecutrix has not disclosed her age in Court. While taking oath in Court on 25.5.2000, she gets her age recorded as 16 years. The alleged offence is stated to have taken place on 18.12.1997. Therefore, by implication as on …5… the date of the alleged offence, she was about 13 years of age. But record does not substantiate the same. Significantly, in her statement, prosecutrix states that she has studied up to 5th standard and has got a certificate to that effect. Neither prosecutrix nor prosecution has produced the same on record why so?, has not been explained. It could be of some corroborative value. That apart, even the father (PW-1), does not disclose the exact date of birth of the prosecutrix. Undisputedly, prosecutrix was born from the first wife of PW-1 and according to him, his first wife expired in the year 1987 when they were married for about 10 to 13 years. He states that his first child was born after 18 years of his marriage and that he was married second time in the year 1988. Now, with regard to his marriage and date of birth of his children, there is no consistency. In fact, there is contradiction. No exact particulars are disclosed by him. In fact, he does not even know his date of birth. 9. Ext.PW-3/B is the certificate issued by the Panchayat Sub Inspector (PW-3). The certificate is the extract of the new Parivar Register. The date of birth recorded is 4.8.1982. It is a well settled position of law that Parivar Register alone cannot be made the basis for conclusively determining the age of a person (Ashok Kumar versus State of H.P., Criminal Appeal No.105 of 2009, decided …6… on 29.12.2010). In the instant case, we have yet another reason to disbelieve the authenticity and the genuineness of the Parivar Register or the contents thereof. According to PW-3, the original register was gutted in the fire and the new register was prepared on the basis of the information furnished by the “persons”. He has not made entries in the new register. The entries made in the new register were also not got verified from other contemporaneous sources and materials. Parents of the prosecutrix has also not got the same entered. Hence, this evidence cannot be looked into to prove the guilt of the accused. 10. Significantly, it has come in the version of Dr.Mahinder Kumar Sharma (PW-7) that he had asked the police to get the radiological examination conducted which was done by Dr.G.Narang (PW-9), according to whom, the radiological age of the prosecutrix was between 14 to 16 years. There can be a variation of two years on either side. It is also a settled position of law that benefit of doubt with regard to higher age is to be given to the accused. Dr.Mahinder Kumar Sharma (PW-7) on physical examination concluded that prosecutrix was a well built girl. Her physical features had fully developed. Hence, from the record, it cannot be said that prosecution has been able to conclusively prove, beyond reasonable doubt, the exact …7… age of the prosecutrix or the fact that she was below 16 / 18 years of age. 11. The charge against the present accused is that of kidnapping and compelling the prosecutrix of forcing / seducing her to have illicit intercourse with the accused who has since died. 12. In this regard, our attention has been invited to the statement of Gayaru Ram (PW-1), Kundan Singh (PW-2) and the prosecutrix (PW-8). According to PW-8, accused Mohi Ram had been asking her to go to Delhi for getting married so that she could live comfortably there. Mohi Ram called her out of her house and asked her to go to village Chaudhar where accused Narda Devi was to meet her and take her to Delhi in a vehicle. Accordingly, she went to Chaudhar where she boarded the van in which accused Narda Devi and Nand Singh were sitting. From there, they all went to Delhi. In the house of the accused, she was subjected to sexual intercourse by accused Nand Singh. She disclosed this fact to Narda Devi in the morning but was asked to obey the commands of Nand Singh. She was again subjected to sexual intercourse. In fact, Narda Devi herself took her into the room where she was raped. She requested both of them to send her back home but Nand Singh told her that he would marry her. However, after …8… about 15 – 20 days, Mohi Ram came and took her to Shillai where she was handed over to police and later on to her father. 13. Having perused the record, we find that this version of hers does not inspire confidence at all. In any event she does not whisper anything about kidnapping. She went of her own accord. There was neither any threat nor any inducement / coercion up to the time she reached Delhi. She admits that she had informed her father about the fact that Mohi Ram had been asking her to accompany Narda Devi to Delhi. Narda Devi had come to her father’s house. She admits that she boarded the vehicle of her own. There is nothing to show that she was under any threat, coercion, inducement or that she was kidnapped. She admits that before she had seen accused Nand Singh, she did not know his name. She had only known him as ‘Sardarji’ and learnt about his name only in the Court. Admittedly, no test identification parade was got done by the police. If prosecutrix was not aware of the particulars of the ‘Sardarji’ then on what basis did the police come to the conclusion about the complicity of accused Nand Singh to the alleged crime. She had not seen accused ‘Sardarji’ nor had she known him from before. Surprisingly, name of Nand Singh is not mentioned in complaint (Ext.PW-1/A). …9… 14. That apart, it has come on record that Nand Singh was blind and was staying in his house with his wife, son and two daughters. It is thus highly improbable and unbelievable that she would have been raped in the same house where the entire family used to reside. Further it is not her case that she was threatened in Delhi or that she was kept in a closed place. She could have conveniently slipped out and reported the matter to anyone. She could have raised hue and cry. 15. That apart, she admits that complaint (Ext.PW- 1/A) was typed out in her presence and that she was also present at the time when the same was presented before appropriate authorities. Now, significantly, in the said complaint there is no reference of rape at all. In fact, it appears that the complaint was filed after due deliberation and at a belated stage. The complaint only raises an “apprehension” of the prosecutrix being “used for illicit business of prostitution” which in any event is not the prosecution case. We find that her version does not inspire confidence. She has materially contradicted herself as also the version of her father. According to PW-1, prorsecutrix was kidnapped on 18.12.1997 whereas she was brought back on 29.1.1998 itself. Further, according to PW-1, prosecutrix was brought back within 4 – 5 days itself whereas …10… PW-8 states that she returned after 15 days. She has tried to introduce yet a new case of getting married in Delhi. 16. According to Gayaru Ram (PW-1), after his daughter was found missing, he was informed by Kundan Singh (PW-2) that his daughter had been taken away in a van by the accused and, therefore, he questioned Mohi Ram about the whereabouts of his daughter. After about 4 – 5 days, Mohi Ram got the prosecutrix back. 17. Significantly, the complaint is dated 29th December, 1997, which means that there is a delay of at least eight days in lodging the F.I.R. why this delay has not been explained. Gayaru Ram (PW-1), in cross examination, specifically admits that he went to the police after 3 – 4 days of the occurrence. Now, what did he do for these 3 – 4 days is not disclosed by him. Why did he not search for her or make any complaint to anyone is not shown on record. The genesis of the reason for absence of the prosecutrix from her house is thus not fully disclosed by the prosecution. Further, version of PW-1 gives an impression that on the date of lodging the complaint prosecutrix was missing which version stands contradicted by PW-8 herself. 18. That apart, his version that the police had not recorded his complaint or that they had demanded money was found not to have proven to be correct during …11… investigation. Significantly, complaint was also made against a fourth person, namely, Jangli Ram and even against him the Investigating Agencies could not find anything. The complaint was false qua him. Accordingly, his version does not inspire confidence. 19. Kundan Singh (PW-2) simply states that prosecutrix sat in the vehicle. His version does not advance the case of the prosecution in any manner. Police recorded his version after some time. Possibility of thus witness being introduced later on cannot be ruled out. 20. It has also come on record that accused owns immovable property and are otherwise well off. It has also come on record that prosecutrix comes from a poor family and PW-1 found it difficult both ends to meet on his megre income. The defence taken by the accused that prosecutrix was taken to Delhi as a maid servant thus does not appear to be improbable. 21. It could be true that prosecutrix was generally wanting to leave her house, more-so, for the reason that she had a step mother, step brothers and sisters and in order to have a comfortable life in Delhi. That apart, from the testimony of these witnesses, it cannot be said that essential ingredients so as to constitute an offence of kidnapping / abduction stands established by the prosecution witnesses. …12… Thus, for all the aforesaid reasons, we find that prosecution has not been able to bring home the guilt of the accused beyond reasonable doubt. The testimony of the material witnesses do not inspire confidence. 22. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos & Ors. versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused, are discharged. (R.B.Misra), J. May 19, 2011. (Sanjay Karol), J. (soni)