IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No.233 of 1996 Date of Decision : March 05, 2010 State of H.P. …Appellant Versus: Dola Ram & 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. Vivek Thakur, Addl. A.G. with Mr. R. M. Bisht. Dy. A.G. For the respondents : Mr. O. P. Sharma, Sr. Advocate with Mr. K. R. Kashyap, Advocate. Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgment dated 25.3.1995 delivered by the Additional Sessions Judge, Kullu, District Kullu, H.P. in Sessions Trial No. 19 of 1994, whereby the accused have been acquitted of having committed offences punishable under Sections 363, 366 & 376 of the Indian Penal Code. The prosecution story in brief is that on 3.3.1994, the prosecutrix who at that time was a student of Class 8 went to attend the school along with her sister. She did not return in 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 the evening. On the next day, according to the prosecution Sukh Ram, Tule Ram and Jalphu came to the house of the father of the prosecutrix at 7.30 A.M. Sukh Ram is the grand father of the main accused Dola Ram. He informed the father of the prosecutrix that the prosecutrix had been kidnapped by Dola Ram and they should compromise the matter. However, no compromise took place and finally written complaint (Ext.PW- 2/A) was made by her father on 8.3.1994 on the basis of which F.I.R. (Ext.PW-12/A) was recorded with the Police Station, Kullu. The prosecutrix was searched for but could not be recovered. As such, a proclamation (Ext.PW-12/D) was issued and finally on 23.3.1994, the Investigating Officer came to know from secret sources that accused Dola Ram and the prosecutrix were hiding in a vacant house at Mohal. Thereafter, the independent witnesses were associated and the prosecutrix recovered from the house at Mohal. The prosecutrix appeared as PW-1. She stated that when she was going to school with her younger sister accused Dola Ram and Tule Ram met them on the way near Tapu. Her sister was pushed away and she was taken away forcibly by Dola Ram and Tule Ram in a Maruti Van to village Bhuar. She was kept in the house of Tule Ram for one day and was raped by Dola Ram during night. Tule Ram is the brother-in-law of Dola Ram. She states that Tule Ram had gone to village Dehni-dhar to the house of the parents of Dola Ram to inform them about 3 the kidnapping. Accused Dola Ram wanted to marry her. Thereafter they took her to the jungle and kept her in the jungle for a day. In the evening the accused consumed liquor and kept her in the jungle for a night and accused Dola Ram subjected her to forcible sexual intercourse. She was detained by the accused for 10 to 12 days, some time in the house of Tule Ram and some time in the jungle. After 10-12 days, two more persons came to the house of Tule Ram. They took her and the accused to Mohal to a vacant house, where they stayed for night. Next morning, she was recovered from the said house by the police. She has further stated that Sukh Ram and Jalpu Ram, the other accused had met her in the house of the accused Tule Ram and told her that in case the police asked her, then she should tell that she had accompanied accused Dola Ram and Tule Ram of her own. In the examination-in-chief, the prosecutrix was not asked about her date of birth but in cross- examination she deposed that her date of birth is April 4, 1979 but further went on to state that she was not definite about the year of birth. She also states that she does not know what is her date of birth recorded in the school records. She admits that her statement under Section 161 Cr.PC was recorded by the police. This statement is Ext.DA. She was confronted with this statement wherein she had not stated that she was kept in the house of accused Tule Ram. Her explanation is that accused had told her not to depose in such a manner. She further states that 4 the police did not enquire all the details from her and therefore she did not tell the police about Dola Ram and Tule Ram consuming liquor in the jungle. She also in her statement Ext.DA had not stated that Sukh Ram and Jalpu Ram had taken her to a vacant house at Mohal. There are material improvements in her statement in Court vis-à-vis her statement made under Section 161 Cr.PC. In cross-examination she also admits that she and Dola Ram went to Manikaran for one day. Though she has denied the suggestion that she went alone to Manikaran with her friend even according to her she and Dola Ram went to Manikaran. No reliance can be placed on the testimony of the prosecutrix for various reasons. There are material improvements in her statement in Court. When we compare the same with the statement recorded under Section 161 Cr.PC, the two are totally inconstant. According to the prosecutrix, after 10 to 12 days she was recovered by the police. This would mean that she was recovered on or about 15.3.1994, whereas she was only recovered on 23.3.1994. This also casts a doubt on her statement. It has come in the evidence of PW-7 Shri Guber Singh that on 3.3.1994, the prosecutrix along with one boy and one girl along with accused Tule Ram boarded his taxi at Dhalpur and he dropped them at Bhunter. If the prosecutrix was not a 5 consenting party she could have easily complained to the taxi driver when she went from Dhalpur to Bhunter in his taxi. The prosecutrix has not stated that she was ever threatened at that time. In fact her case is that she was forcibly dragged into a Maruti Van when she was going towards the school. This version of the prosecutrix is contrary to the statement of PW-7 who clearly states that Tule Ram had told that the girl is his sister and she and the boy had boarded the taxi at Dhalpur (Kullu) for Bhunter. This belies the version of the father of the prosecutrix that she was forcibly taken in a Maruti Van. The prosecutrix remained with the accused Dola Ram and Tule Ram for 20 days. Many people visited them during this period. She remained in the house of Tule Ram. Though she states that she was told that if the police comes she should tell them that she has come of her own, she has not made any statement that during this period that she was kept alone or in such position that she could not complain about her kidnapping or rape to any person. It can not be believed that for 20 days, she did have the opportunity to raise an alarm or complain to anybody. It is a clear cut case of consent. The next important question which arises is with regard to the age of the prosecutrix. In case she is below 16 years then even if she is a consenting party, the accused can be convicted for offences punishable under Sections 363, 366 & 376 IPC. Similarly, for a case of kidnapping, the age must be proved 6 to be below 18 years. With regard to the age, statement of the prosecutrix has already been discussed above in which she is uncertain about the year of her birth. PW-2 the father of the prosecutrix has stated that the date of birth of the prosecutrix is April, 4, 1979. However, in cross-examination when asked about the details of date of birth of other children, he could not give their dates of birth and in fact state that Neelam Kumari and Ishwar Dev both were born in the year 1980 but could not give their date of birth. He has only studied upto class 7 and it is apparent that he is not aware about the date of birth of the prosecutrix. The father of the prosecutrix states that in the school records he had got entered the date of birth of the prosecutrix as 4.4.1979 on the basis of the Panchayat records. This statement is absolutely false. PW-6 Shiv Ram Thakur is Gram Panchayat and Development Officer. He brought the original birth register pertaining to village Jagot for the year 1994. He states that he had entered the date of birth of the prosecutrix as 4.4.1979 on the basis of the orders of the Executive Magistrate, Kullu, dated 17.3.1994. He admits in cross-examination that before 17.3.1994 there were no entries of the date of birth of the prosecutrix in the Panchayat records. This show that her father had made a false statement in the Court because if there was no entry in the Panchayat records about the date of birth of the prosecutrix how would that have been the basis of the entry when she was admitted in the school. 7 It is apparent that after the complaint was lodged on 8.3.1994, then an order was passed by the Executive Magistrate, Kullu, directing the Panchayat to make an entry in the Panchayat records regarding the date of birth of the prosecutrix. Such entry made after the commission of the offences has no evidentiary value whatsoever. The only other piece of evidence is Ext.PW-15/A which is the copy of the school leaving certificate of the prosecutrix. In this certificate it is mentioned that the prosecutrix joined the Govt. Girls High School, Sultanpur, Kullu on 11.4.1991 and her name was struck off from the school records on 4.3.1994. This certificate is purported to have been issued on 4.3.1993. How could the certificate be issued on 4.3.1993 when the date of striking of the name is 4.3.1994. Assuming for the sake of arguments that this is a bona fide mistake and the certificate was in fact issued on 4.3.1994, the question then arises is that why was the certificate obtained on 4.3.1993. No complaint had been filed till that date though some talks of compromise were going on. The complaint (Ext.PW-2/A) was lodged by the father on 8.3.1994. According to the Investigating Officer Inspector Paras Ram (PW-12), this certificate was handed over to him by the father of the prosecutrix on 8.3.1994. This statement also appears to be false because on this certificate there is an entry which states that dues received upto March, 1994. If the name of the child had 8 been struck off on 4.3.1994, the dues would have been taken only on re-admission and not earlier to that. Another reason to doubt the veracity of the certificate is that even according to the prosecution the prosecutrix attended the school till 2.3.1994 and only on 3.3.1994 she was allegedly kidnapped by the accused. PW-15 has clearly stated that the name of a student is struck off from the school records only if a student remains absent for 10 days without any reason. How could the name of the prosecutrix be struck off on 4.3.1994 when she was absent only for 2 days. Once a complaint had been lodged that she had been kidnapped then the school could not have struck off her name because she was not voluntarily absent. Therefore, it is apparent that this certificate was obtained only for the purpose of creating evidence and as such no reliance can be placed on it. In view of the above discussion, we are of the view that the learned trial Court has rightly acquitted the accused. The benefit of doubt had to go to the accused. We find no merit in the present appeal, which is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ), Judge. ( Sanjay Karol ), Judge. March 05, 2010. (rana)