IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.714 of 2008 Date of judgment: June 22, 2009 Prem Bahadur ..Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Ms. Archana Dutt, Advocate. For the Respondent : Mr. Ramesh Thakur, Asstt. Advocate General. Surjit Singh, J. (Oral) Appellant has preferred this appeal against the judgment dated 16.6.2008, passed by learned Additional Sessions Judge (Fast Tract Court), Solan, convicting him of offences, under Sections 363, 366 and 376 IPC and sentencing him to undergo rigorous imprisonment for 7 years and to pay fine of Rs.10,000/- of offence under Section 376 IPC; imprisonment for 3 years and fine of Rs. 5000/- of offence, Whether reporters of the local papers may be allowed to see the judgment? - 2 - under Section 363 IPC and rigorous imprisonment for 7 years and fine of Rs. 5000/- for the offence, under Section 366 IPC. Appeal has been filed by the appellant from jail. Appellant is represented by Ms. Archana Dutt, Advocate, who has been appointed as counsel for the appellant, by the H.P. High Court Legal Services Committee. Case of the prosecution, as per evidence on record, may be summed up thus. Appellant Prem Bahadur, a native of Nepal, started living as tenant at the house of Jaswant Singh (PW7), in a village in Solan District. Initially he was paying Rs.200/- per month, as rent. Lateron, he started paying @ Rs.1000/- per month, and in lieu of this increase, he was provided meals and tea etc., by Jaswant Singh. It appears that while living in the house of PW7 Jaswant Singh, appellant developed intimacy with the prosecutrix, examined as PW6. On 29.1.2007, when Jaswant Singh and his wife Krishana Devi, had gone to another village, the appellant allegedly forced the prosecutrix to leave her parents home and to accompany him. They left the house of Jaswant Singh around 11 in the night and reached a place known as Naina Tikkar, early in the next morning, by walking through a forest path. Next day, they stayed in a hotel at Bagthan, where the prosecutrix was raped. On the next following day, they - 3 - boarded a bus for Rishikesh and from there, they went to Tihri Gharwal, where the appellant rented a room in the house of Bachan Singh (PW2). Said Bachan Sigh employed both the appellant and the prosecutrix. On 24.2.2007, the prosecutrix made a call to her Mama Joginder Singh (PW14) and told him that she was speaking from her house but when her Mama confronted her that she was not at home, she disconnected the phone. PW14 Joginder Singh, then made a call on the phone using which the prosecutrix had called him, as the number of phone appeared on his mobile. He came to know that the call had been made from a cell phone, belonging to Vijay Kumar (PW3), who on enquiry told Joginder Singh that the prosecutrix had been living in his neighbourhood, in the house of PW2 Bachan Singh. On 6.3.2007, father of the prosecutrix, accompanied by his wife and PW14 Joginder Singh, went to Tihri and the prosecutrix was found at the house of Bachan Singh (PW2). She was got medically examined at a Government Hospital at Tihri. Medical examination showed that she was used to sexual intercourse. Ossification test was also conducted, which indicated that the age of the prosecutrix was between 16 to 18 years. - 4 - Thereafter, case was formally registered, with Police Station Sadar, Solan. Police procured copy of the school leaving certificate and the certificate, which was submitted to the school at the time of admission of the prosecutrix, in which the date of birth of the prosecutrix is recorded as 1.3.1993. As per these certificates, age of the prosecutrix was a little less than 14 years when, she had allegedly been kidnapped and subjected to rape. On completion of the investigation, Challan was filed against the appellant. Case was committed to the Sessions Court. It was assigned by the Sessions Judge to the learned Additional Sessions Judge, who charged the appellant with the aforesaid offences and ultimately convicted and sentenced him. Appellant did not deny having had sexual intercourse with the prosecutrix and she having been recovered from his custody in Tihri Gharwal. He pleaded that the prosecutrix was more than 16 years of age and she voluntarily accompanied him and married him and stayed with him, as his wife, at the house of Bachan Singh (PW2). However, this plea of the appellant did not find favour with the learned Sessions Judge and it was held that the age of the prosecutrix being less than was 16 years, she could not have consented for the act of sex. - 5 - I have heard the learned counsel for the appellant, as also the learned Assistant Advocate General and perused the record. It appears from the testimony of PW4 Jai Kumar, Headmaster of the school, the prosecutrix had been studying in that at the time of her admission, a certificate Ex.PW4/C, purporting to have been issued by the Registrar, Births and Deaths of the concerned Panchayat, had been submitted. As per this certificate, the date of birth of the prosecutrix entered in the register of Births & Deaths is 1.3.1993. However, the prosecution did not prove the entry in the register of Births and Deaths itself, which was the primary evidence. It is not the case of the prosecution that this primary evidence had been lost or had got destroyed. If that is so, the secondary evidence could not have been allowed to be led. Otherwise also, entry in the Register of Births and Deaths could have been proved, even by way of secondary evidence, only by the Registrar of Births and Deaths, who was supposed to be in possession of the register. By not examining the said Registrar of Births and Deaths, the prosecution denied to the defence opportunity to test veracity of the entry, by cross-examining the said Registrar. - 6 - Prosecutrix was produced before the Magistrate, during the investigation of the case, for getting her statement recorded, under Section 164 Cr.P.C. Copy of that statement has been proved and the same is Ex.PW6/A. The statement shows that at the time of making the statement to the Magistrate on 27.3.2007, prosecutrix got her age recorded as 16 years. Father of the prosecutrix Jaswant Singh, while in the witness-box as PW7, stated that his daughter might have completed the age of 16 years, at the time of the incident. Mother of the prosecutrix was not examined. A brother of the prosecutrix, namely, Jitender (PW8), stated that his own date of birth was 24.12.1990 and the prosecutrix was younger to him by 1½ year. He also stated that the prosecutrix was born in the year 1992. However, certificate Ex.PW4/C shows her date of birth to be 1.3.1993. That means the entry, on which the certificate purports to be based, is not correct. PW14 Joginder Singh, Mama of the prosecutrix stated that the age of the eldest son of his sister, married to Jaswant Singh (PW7), is 17 years. At the same time, he stated that his sister was married to PW7, 15 -16 years back. Ossification test conducted by PW22 Dr. Rashmi Shukla, shows her age between 16 to 18 years. - 7 - In view of the above discussed evidence, it cannot be said that prosecutrix was below 16 years of age, at the time when she was allegedly raped. Evidence on record clearly suggests that prosecutrix went with the appellant, on her own, and had been having sex with him voluntarily. Prosecutrix and the appellant were found missing by PW7 Jaswant Singh, father of the prosecutrix, on 30.1.2007. He did not lodge any report with the police. Mama of the prosecutrix, namely, Joginder Singh (PW14) came to know that the prosecutrix was at Tihri on 24.2.2007 but he accompanied by the father and mother of the prosecutrix went to Tihri only on 6.3.2007. Prosecutrix told her Mama PW17, while making call to him on 24.2.2007 that she was speaking from her father’s place. Her conduct suggests that she was living with the appellant at Tihri of her own free will. Further the prosecutrix went with the appellant on foot and walked for the whole night through a forest path. Then she travelled with him by Bus from Naina Tikkar, a place in Solan District, upto Tihri Gharwal and did not complain to anybody that she was being taken forcibly, as testified by her in the Court. She stayed with the appellant for more than a month at the house of PW2 Bachan Singh and told PW2 Bachan Singh that she was the wife of appellant. She did not complain to anybody that she - 8 - had been kidnapped. Prosecutrix’s own conduct and the conduct of her father, mother and Mama, as noticed hereinabove, clearly suggest that she left her father’s house, on her own, to live with the appellant as his wife and had sex with him voluntarily. As a result of the above discussion, appeal is accepted, trial Court’s judgment convicting and sentencing the appellant is set aside and consequently, the appellant is acquitted. He, being in jail, serving out the sentence awarded by the trial court, is ordered to be set at liberty forthwith. June 22, 2009. (Surjit Singh), J. s.