IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 318 of 2001. Judgement reserved on: 5.8.2008. Date of decision: September 5, 2008. Jagar Nath alias Charana ….. Appellant. Vs. State of H.P. …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Virender Singh Kanwar, Advocate. For the Respondent : Mr. A.K. Bansal, Additional Advocate General. Kuldip Singh, Judge. This appeal has been directed against the judgement of conviction and sentence dated 4.6.2001 passed by learned Additional Sessions Jude, Solan, in Sessions Trial No. 9-NL/7 of 1999, convicting the appellant-accused, under Sections 363, 366, 376 IPC and sentencing him to undergo five years simple imprisonment and fine of Rs.5,000/-, in default of payment of fine further imprisonment of one year under Section 363 IPC, seven years simple imprisonment and fine of Rs.10,000/-, in default of payment of fine to further undergo simple imprisonment of one year under Section 366 IPC, seven years simple imprisonment and fine of Rs.10,000/-, in default of Whether the reporters of the local papers may be allowed to see the Judgment? …2… payment of fine to undergo simple imprisonment for one year under Section 376 IPC. All the sentences have been ordered to run concurrently. 2. The prosecution case in brief is that PW 3 Gurmukh Singh reported the matter on 26.6.1998 at Police Station, Nalagarh that his family consists of his wife and four children and one of whom is a girl about sixteen years of age, the remaining children are two boys and one girl. He is a driver on truck No. HP -24-5049 and generally remains outside, his wife and four children live together in their house. Last night at about 9.00 p.m. he had gone to Ludhiana with the truck and returned today at about 1.00 p.m., his wife told him that accused had kidnapped their daughter with the intention to marry her. She came to know today in the morning when the girl was not found in the house. He came to know in the village that accused by committing theft had also taken away truck bearing registration No. HP-20-5525 of Saran Dass, which was parked by Ram Sarup brother of accused near his residence. In order to kidnap his daughter, the accused had also committed theft of truck No. HP 20-5525, his daughter is minor. On this an FIR Ex. PW 3/A was registered. The police started investigation. The accused was arrested on 31.8.1998. The prosecutrix and accused were got medically examined, statements of witnesses were recorded, during investigation, many documents were taken into possession. The Chemical Examiner report Ex. PW 20/A was obtained. On completion of investigation, challan was presented in the court. The accused was charged for having committed offence under Sections 363, 366, 376 and 379 IPC, …3… to which he pleaded not guilty. The prosecution has examined 22 witnesses to prove the charge. The statement of accused was recorded, under Section 313 Cr.P.C. The accused did not examine any witness in defence. On conclusion of trial, the learned Additional Sessions Judge convicted the appellant-accused as noticed above, hence this appeal. The accused was acquitted under Section 379 IPC. 3. I have heard Mr. Virender Singh Kanwar, learned counsel for the appellant-accused and Mr. A.K. Bansal, learned Additional Advocate General for the State and gone through the record. The learned counsel for the accused has submitted that learned Additional Sessions Judge has erred in convicting and sentencing the accused. He has submitted that on the basis of material on record, the prosecution has miserably failed to prove the case against the accused. The learned Additional Sessions Judge has erred in convicting and sentencing the accused, under Sections 363, 366, 376 IPC. On the contrary, the learned Additional Advocate General has supported the impugned judgement of conviction and sentence and has submitted that the learned trial court has rightly appreciated the material on record and no fault can be found with the judgement of conviction and sentence rendered by the learned Additional Sessions Judge. In order to appreciate the rival contentions of the learned counsel for the parties, it is necessary to refer to evidence, which has come on record. 4. PW 1 Dr. Sarad Gargia examined Jagar Nath accused and issued MLC Ex. PW 1/A. PW 2 M.R. Verma, has stated that on 20.7.1998 prosecutrix was referred for assessment of her age. The …4… X-ray were taken under his supervision and X-Ray films are Ex. SK-1 to Ex. SK-5 and as per radiological finding the age of the prosecutrix comes between 16-20 years and his report to this effect is Ex. PW 2/A. There can be variation of one year in age only either sides. PW 3 Gurmukh Singh was examined on 12.9.2000 and has stated that age of the prosecutrix is 18 years. On 26.8.1998 at about 1.00 p.m. he came to his residence, his wife told him that the prosecutrix was not present in the house since last night. The wife also told him that truck No. HP-20-5525 was also missing. He came to know that the said truck was taken away by the accused, his wife suspected that accused might have kidnapped the prosecutrix. He lodged FIR Ex. PW 3/A. The age of the prosecutrix at the time of the occurrence was 15 years 10 months. The prosecutrix studied at Government Primary School, Majra and her date of birth was recorded in the school on the basis of Panchayat record. On 17.7.1998, the prosecutrix returned to her house. She told that accused had taken her to Indore in order to marry her. In cross examination, he has stated that the prosecutrix was born after one and half years of his marriage. No horoscope of the prosecutrix was prepared. The entry in the Panchayat register was made at the instance of his father. He denied that earlier also the prosecutrix had run away from the house. He denied that his daughter had left her house of her own. 5. PW 4 Balbir Singh has stated that during the year 1998, he was posted as Principal Government Senior Secondary School, Dhabota and he issued certificate Ex. PW 4/A regarding the date of birth i.e. 3.8.1982 of the prosecutrix. In cross examination, he has …5… stated that in Ex. PW 4/A, it has not been mentioned who got the date of birth recorded. No Panchayat record was filed with the admission form. PW 5 Som Nath is a witness regarding production of prosecutrix by her mother before Investigating Agency and his statement is not relevant on the question involved in the case. PW 6 Smt. Rachana Devi has stated that prosecutrix is her eldest child and they came to know that accused had kidnapped the prosecutrix. The house of the accused is adjacent to their house. The prosecutrix returned to their house after 22 days. The prosecutrix informed her that accused had raped her. The incident took place about two years back and at that time prosecutrix was aged about 15 years 10 months. She was examined in the court on 13.9.2000. She does not remember the dates of birth of her other children. She has denied that prosecutrix was about 20-21 years on the date of her examination in the court. 6. PW 7 Ram Saroop is the elder brother of the accused and was working as driver on truck No. HP-20-5525 in the year 1998. He has stated that he does not know who had stolen the truck. He was declared hostile and cross examined by the prosecution. In the cross examination conducted by the prosecution, nothing favourable to the prosecution was extracted. PW 8 Saran Dass owner of the truck No. HP-20-5525 did not support the prosecution and was declared hostile. In the cross examination conducted by the prosecution, he has denied that he was informed that accused had kidnapped a girl. PW 9 Swaran Singh is the brother of Saran Dass who is the owner of truck No. HP-20-5525. He did not support the …6… prosecution and was declared hostile. In his cross examination conducted by the prosecution nothing favourable to the prosecution was extracted. PW 10 Amit Kumar is the Manager, Girish Lodge, Indore, Madhya Pradesh for the last ten-twelve years. He has stated that the accused present in the court on 29.6.1998 had brought a girl in their lodge. The accused disclosed his name and address, which was entered in the register by him. He disclosed the name of the girl as Praveen Kaur daughter of Gurcharan, Tehsil Nalagarh. Both of them had stayed at their lodge up to 5.7.1998. The accused had signed the register as Jagar Nath. Photo copy of register in two pages is Ex. PW 10/A. In cross examination, he has stated that the entry of accused in the register was not written by him. PW 11 Gopal Singh has stated that during the year 1998-99, he was posted as Headmaster at Government Primary School, Majra. On 16.1.1999, he prepared copy of admission particulars of prosecutrix as per original record which is Ex. PW 11/A. In cross examination, he has admitted that on original admission slip, there is overwriting on the month, year. PW 12 Ram Avtar Constable is a witness to the recovery of extract of register Ex. PW 10/A vide recovery memo Ex. PW 10/B. 7. PW 12 is the prosecutrix and she has stated that about two and half years ago, the accused called her at brick-kiln situated at Majra. The accused told her that he would marry her. The accused took her in the truck at 12.00 night and on the next day at about 12.00 noon, the fuel in the truck had finished. Thereafter accused left the truck and took her in a train to Indore where she stayed with the accused for about twelve days in a room, where accused committed …7… “Galat Kam” with her. The accused then brought her from Indore and left her at her parental house at Majra. She narrated the whole incident to her mother. She was medically examined at C.H.C., Nalagarh. She has education up to 5th standard. In cross examination, she was confronted with her statement A to A in Ex.PW 13/A. She was unmarried at the time of incident, but thereafter she had been married. When the fuel of the truck had finished, many persons were walking on the road, but she did not inform anybody that the accused had forcibly kidnapped her. In the train also, she did not inform anybody that she had been kidnapped by the accused. In the train even police personnel were also available. At Indore, room was taken in the bazar and there also she did not inform anybody that the accused had kidnapped her. She denied her age to be 20 to 21 years. PW 14 Pohu Lal has stated that in the year 1997, he was posted as Secretary, Gram Panchayat, Majra. He had prepared certificate Ex. PW 14/B. In cross examination, he has stated that information was given by Ram Rakhu grand father of the prosecutrix. 8. PW 15 Mansha Ram, Constable is the witness of depositing two bottles and one parcel with F.S.L., Junga. PW 16 Manju, Lady Constable is the witness for taking the prosecutrix to hospital for medical examination. PW 17 Chanchal Singh, Head Constable has stated that on 31.8.1998, he took the accused to Police Station, Nalagarh where accused was arrested. PW 18 Sohan Lal is the witness to the effect that case property was deposited with him, which he sent to F.S.L., Junga. PW 19 Guler Chand ASI has …8… stated that on 26.6.1998 he investigated the case. PW 20 Mohinder Partap Bam, SHO/ Inspector has stated that on 26.6.1998 a report Ex. PW 3/A was lodged by Gurmukh Singh at Police Station. On 18.7.1998 prosecutrix was produced by her mother at Police Station. PW 21 Bhisham Thakur, SHO, Pachhad has stated that in the year 1998, he was posted at Police Station, Nalagarh. On 19.8.1998 the present case was handed over to him for investigation. He and accused Jagar Nath went to Indore on 3.9.1998. He took into possession extract Ex. PW 10/A, certificate from Municipal Committee, Indore Ex. PW 21/A. PW 22 Dr. Devya Mahajan examined the prosecutrix on 18.7.1998 and found as follows:- “1. There were no bite mark. No external injury of signs of protest over any part of body. Particularly on breast, private parts and face. 2. On examination of private parts: Pubic hair were present. There were no signs of inflammation protest or any injury or signs of fresh intercourse. Whitish discharge was present per vagina. Swabs were taken and preserved. Hymen was ruptured. No signs of virginity were present Vagina roomy and admits one finger. P/V examination was painless. It shows that the sexual intercourse had been down several times. Swabs were taken from the anterior and posterior fornix and preserved and sent for examination. Clothes show no signs of defence or protest. There were no marks over clothes and the same were preserved for examination. X-rays of shoulder, elbow, writ, pelvis, knees, Ankle joints and chest X-ray of the body were advised for age determination. As per the report of Radiologist the age of the prosecutrix was 16 to 20 years at the time of examination.” …9… In her opinion, there was no fresh signs of intercourse. She issued MLC Ex. PW 22/A. In cross examination, she has stated that she did not refer the prosecutrix to dental expert for determination of her age. She did not give opinion regarding clinical age of the prosecutrix. 9. The statement of accused was recorded under Section 313 Cr.P.C. in which he denied the prosecution case. On 21.4.2001, the accused stated that he does not want to lead any evidence in defence. 10. The learned counsel for the accused has submitted that prosecutrix was above eighteen years of age at the time of incident. He has submitted that it emerges from the evidence that she of her own accompanied accused and visited many places and then returned to her house. The prosecutrix in her statement has not stated that accused had forcible sexual intercourse with her against her wish. It appears that she voluntarily without any fear or pressure was a consenting party to move out with accused and had consensual intercourse. It has been submitted that no case under Sections 363, 366 and 376 IPC has been proved by the prosecution. 11. Ex. PW 14/B is the certificate issued under the Registration of Births and Deaths Act, 1969. PW 14 has stated that information was given by Ram Rakhu, grand father of the prosecutrix. In other words, 3.8.1982 date of birth of the prosecutrix in the original record from where Ex. PW 14/B was prepared was recorded at the instance of Ram Rakhu, the grand father of the prosecutrix. Ram Rakhu has not been examined by the prosecution in order to prove …10… the fact that he correctly supplied the date of birth of prosecutrix for entering in the register from where Ex. PW 14/B was prepared. Therefore, it is not safe to rely on the age of prosecutrix recorded in Ex. PW 14/B. Ex. PW 11/A contains the particulars of the admission of the prosecutrix. In Ex. PW 11/A, the date of birth of the prosecutrix has been shown as 3.8.1982. In cross examination, PW 11 has admitted that in original admission slip there is overwriting on the month and year pertaining to the date of birth of the prosecutrix. It means, in the original record on the basis of which Ex. PW 11/A has been prepared, there is overwriting regarding the date of birth of the prosecutrix and, therefore, 3.8.1982 date of birth of prosecutrix recorded in Ex. PW 11/A cannot be taken as the correct date of birth of the prosecutrix. Ex. PW 4/A is the school leaving certificate of the prosecutrix. In this certificate, the date of birth of the prosecutrix has been mentioned as 3.8.1982. As per Ex. PW 4/A, it appears the prosecutrix had joined Government Senior Secondary School, Dhabota on 11.1.1994 and her name was struck off from the school on 21.4.1995. PW 4 has stated that in Ex. PW 4/A the name of the person who got the date of birth recorded has not been mentioned, but he has also stated that same is recorded on the admission record and certificate issued by the previous school where the student had studied. The prosecutrix had earlier studied in Government Primary School, Majra. It has already been noticed above that in the record of Government Primary School, Majra, there is overwriting in the month and year regarding the date of birth of the prosecutrix which has been admitted by PW 11 in his cross examination. …11… 12. The cumulative effect of statements of PW 4 and PW 11, is that the date of birth of a student is entered in the new school on the basis of record of previous school. The date of birth of prosecutrix in certificate Ex. PW 4/A is based upon the entry of the previous school, therefore, in view of controversy of age in the present case, the certificate Ex. PW 4/A regarding the date of birth of prosecutrix is not sufficient when PW 4 has stated that it has not been mentioned in Ex. PW 4/A that at whose instance the date of birth of the prosecutrix was recorded. 13. As per Ex. PW 2/A, the Radiological age of the prosecutrix comes in between 16-20 years. In MLC Ex. PW 22/A, it has again been stated that according to radiological report, the age of the victim is between 16-20 years. PW 3 Gurmukh Singh father of the prosecutrix has not given date of birth of the prosecutrix in his statement. The prosecutrix in her statement in the court has also not given her date of birth. PW 6 Smt. Rachana Devi mother of the prosecutrix has also not given in her statement the date of birth of the prosecutrix. In these circumstances, the age of the prosecutrix is to be determined on the basis of material on record. In the present case, the defence of the accused is that prosecutrix was more than eighteen years of age on the date of incident. This stand of the accused to some extent has been supported by the radiological age of the prosecutrix mentioned in Ex. PW 2/A and MLC Ex. PW 22/A. 14. In Brij Mohan Singh vs. Priya Brat Narain Sinha and others AIR 1965 SC 282, the question was with respect to entry of …12… date of birth in the school admission register. In that context in para- 20, the Supreme Court has held as held:- “An objection was faintly raised by Mr. Agarwal as regards the admissibility of Ex. 2 on the ground that the register is not an official record or a public register. It is unnecessary to consider this question as the fact that such an entry was really made in the admission register showing the appellant’s date of birth as October 15,1937 has all along been admitted by him. His case is that this was an incorrect statement made at the request of the person who went to get him admitted to the school. The request was made, it is suggested, to make him appear two years younger than he really was so that later in life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed. The appellant’s case is that once this wrong entry was made in the admission register it was necessarily carried forward to the Matriculation Certificate and was also adhered to in the application for the post of a Sub-Inspector of Police. This explanation was accepted by the Election Tribunal but was rejected by the High Court as untrustworthy. However much one may condemn such an act of making a false statement of age with a view to secure an advantage in getting public service, a judge of facts cannot ignore the position that in actual life this happens not in-frequently. We find it impossible to say that the Election Tribunal was wrong in accepting the appellant’s explanation. Taking all the circumstances into consideration we are of opinion that the explanation may very well be true and so it will not be proper for the court to base any conclusion about the appellant’s age on the entries in these three documents viz., Ex. 2, Ex. 8 and Ex. 18.” 15. In Bishnudas Behera vs. State of Orissa 1997 Crl. L.J. 2207, it has been held that the school admission register cannot be regarded as sole clinching factor for determination of the age. In Paramjit Singh vs. State of Himachal Pradesh 1987 Crl. L.J. …13… 1266, where the skeletal age of the victim according to the radiologist was 16 to 17 years, it was held that in such tests the margin of error on either side varies from one and half years to two years and the benefit of margin of error was given to the accused and the age of the prosecutrix was taken 18 years or above. As per Ex. PW 2/A the radiological age of the prosecutrix was 16-20 years on 21.7.1998. In Lal Singh vs. State of H.P. Latest HLJ 2003 (HP) 551, the radiologist had given the age of the prosecutrix between 14 to 17 years with the margin of two years on either side and therefore, the age of the prosecutrix was taken as more than eighteen years at the time of occurrence. In the present case, as per radiological age of the prosecutrix and after giving benefit of two years to the accused, the age of the prosecutrix on the date of incident definitely comes to more than eighteen years. 16. It has come on record that prosecutrix went with the accused from her village in a truck. The fuel of the truck had finished midway , thereafter the prosecutrix and accused went to Indore in a train. The prosecutrix and accused stayed together at Girish Lodge, Indore for couple of days. She met several persons including police personnel in the train but she never complained to anyone that she was being carried under threat or by force by the accused. The prosecutrix in her statement has nowhere stated that accused had forcible sexual intercourse with her against her wish. She returned to home after 22 days as per PW 6 Smt. Rachana Devi mother of prosecutrix. The cumulative effect of her statement and conduct leads to only inference that she was a consenting party when she left …14… her home with the accused and she had consensual intercourse with the accused. In Ajay Kumar vs. State of H.P. 1994 (2) Sim. L.C. 471, it has been held that despite the fact that defence of denial was taken by the accused, but on the basis of material on record in that case it was held that sexual intercourse was committed by the accused with the passive submission of the prosecutrix. In the present case also, even though the accused has taken the plea of denial but it has been proved on record that prosecutrix of her own without any fear or pressure accompanied with the accused from her village Majra, Tehsil Nalagarh to Indore and returned to her village after staying with the accused for many days. Therefore, irresistible conclusion is that prosecutrix was a consenting party, she was above eighteen years of age on the date of occurrence and prosecution has miserably failed to prove the offence punishable under Sections 363, 366, 376 IPC against the accused. The learned Additional Sessions Judge has not properly appreciated the evidence on record in convicting and sentencing the accused under Sections 363, 366 and 376 IPC. Therefore, the conviction and sentence of the accused are liable to be