IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No.112/2001 Reserved on.28.3.2008 Decided on.1.5.2008 Arjun Singh. …Appellant. Versus State of H.P. …Respondent Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No For the appellant : Mr. N.S. Chandel, Advocate. For the respondent : Mr. Rajinder Dogra, Additional Advocate General with Mr. Anil Jaswal, Deputy Advocate General Rajiv Sharma, J. The appellant-accused has filed this appeal against his conviction and sentence in Sessions Trial No. 3-NL/7 of 2000 by the learned Additional Sessions Judge, Solan whereby the learned Additional Sessions Judge by the judgment of conviction and sentence dated 3.3.2001 has convicted and sentenced the accused under section 376 of the Indian Penal Code to undergo 7 years simple imprisonment and to pay a fine of Rs. 10,000/- and in default of payment of fine the accused was to further undergo simple imprisonment for one year. The accused was also convicted and 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 sentenced under section 511 of the Indian Penal Code to undergo 3 years simple imprisonment and to pay a fine of Rs. 5,000/- and in default of payment of fine the accused was to further undergo simple imprisonment for 1 year. He was also convicted and sentenced under section 363 of the Indian Penal Code to undergo 4 years simple imprisonment and a fine of Rs. 5,000/- was also imposed and in default of payment of fine the accused was to undergo simple imprisonment for 1 year. He has also been convicted and sentenced under section 366 of the Indian Penal Code to undergo 5 years simple imprisonment and a fine of Rs. 5,000/-and in default of payment of fine the accused had to further undergo simple imprisonment for 1 year. He has also been convicted and sentenced under section 109 of the Indian Penal Code for 7 years simple imprisonment and a fine of Rs. 10,000/- and in default of payment of fine he was to undergo simple imprisonment for 1 year. The brief facts are that on 18.7.1999 prosecutrix, namely, Miss Shivani (PW-1) boarded the bus to Shimla from Solan. When the bus bearing registration No. HP-12-4113 reached near petrol pump (HIMFED) situated near Nav Bahar towards Chotta Shimla, all the persons boarded down except the prosecutrix and accused Arjun Singh. According to the prosecution story the accused Arjun Singh committed forcible sexual intercourse with the prosecutrix against her will and without her consent. It has also been the case of the prosecution that Miss Shivani was kidnapped by the accused who was minor at the time of kidnapping in bus No. HP-12-4113 from Solan. It has further come in the version of the prosecution that the 3 accused had induced the prosecutrix that he would marry her after reaching Nalagarh. The FIR Ex. PW-1/A was registered. Thereafter the investigation was carried out and the challan was put in the Court. The appellant was charged for offences punishable under sections 376, 511, 366, 363 and 109 of the Indian Penal Code. The prosecution has examined as many as 15 witnesses in all to prove its case. The appellant had examined DW-1 Sh. Arvind Sharma as defence witness. The learned Additional Sessions Judge, Solan convicted and sentenced the accused as stated above. The sentences were to run concurrently. The accused is in appeal. Mr. N.S. Chandel, Advocate appearing on behalf of the appellant had submitted that the trial court has misconstrued and misinterpreted the evidence. The prosecution has miserably failed to bring home the charge. There are unexplained gaps in the prosecution story which is highly improbable. The statement of prosecutrix does not inspire confidence. There is no legal evidence on record to prove the guilt of the accused. The learned Additional Advocate General appearing on behalf of the State had supported the judgment dated 3.3.2001 and had submitted that the prosecution has proved the case against the accused. He had relied upon the statements of PW-1, PW-3, PW-4 and PW-13. He had strongly relied upon Ex.PW-4/A, Ex.PW-8/A, Ex.PW-9/B. I have heard the learned counsel for the parties and perused the record meticulously. 4 PW-1 Miss Shivani, the prosecutrix, has stated in her statement that she was made to board the bus to Shimla by the accused which was being driven by one Sh. Daler Singh. She had identified the accused Arjun Singh and Daler Singh. She has stated that Arjun Singh was the conductor of the bus and he had made her to sit in the front seat. She has stated that when the passengers got down from the bus near the petrol pump, accused Arjun Singh came near to her and told her that he would marry her at Nalagarh. He committed ‘GALT KAAM’ on the back seat of the bus. She has further stated that the accused had forcibly laid her on the seat of the bus and her face was covered by Arjun Singh with blanket. The incident according to her has taken place at 1.30 P.M. (noon). The bus thereafter left Shimla for Nalagarh. The bus reached at Nalagarh at 8.00 P.M. When the bus reached Nalagarh, the accused told the prosecutrix that he will ensure that she gets the bus for Ludhiana, however, the accused did not come back. She has specifically stated that she has passed her middle standard examination from High School Trilokinath. She has identified the clothes in the Court, which were worn by her at the time of incident. PW-2 Dr. P.S. Bains has medically examined the accused. He has stated that the accused was capable of performing sexual act. He has issued MLC Ex.PW-2/A. PW-3 Smt. Neelam is the mother of the prosecutrix. She has stated that the prosecutrix has told her that the accused has committed rape on her and has assured that he would marry the 5 prosecutrix. She has also stated that Shivani has got education in Trilokinath School upto 2nd class. PW-4 Sh. Mohan Lal has issued the date of birth certificate Ex.PW-4/A. He has specifically stated that Ex.PW-4/A was true and correct as per original register. According to him, the date of birth of Shivani is 19th October, 1984. She was admitted in 6th Class on 1st April, 1997 and she left the school on 24th October, 1998. PW-5 Miss Surekha has taken the prosecutrix to CHC Nalagarh where she was examined by the Medical Officer. PW-6 Sh. Baldev Malhotra is the owner of the bus. He has admitted that on 17th July, 1999, Daler Singh was the driver and accused Arjun Singh was the conductor of the bus. PW-7 Sh. K.D. Khan has stated that he remained posted as Additional Station House Officer at Police Station, Solan in the year 1999 and he had prepared the challan. PW-8 Sh. Madan Lal had issued the certificate Ex.PW-8/A i.e. copy of Pariwar register. PW-9 Dr. Neenu Narula had examined the prosecutrix. She has issued the MLC Ex.PW-9/B. She has stated that the hymen was not intact due to reasons that the prosecutrix may be subjected to sexual intercourse earlier and the same could also rupture by cycling, jumping, dancing, swimming etc. PW-10 Sh. Chanchal Singh Head Constable No.59 has stated that during the course of investigation of the case he visited Trilokinath, District Lahaul-Spiti and on 2.8.1999, Sh. Mohan Lal, Head Master, Government High School, Trilokinath produced Ex.PW-4/A showing the date of birth of Kumari Shivani. PW-11 Sh. Vidya Chand, ASI, Police Post, Kunihar has stated that the 6 investigation of the case was entrusted to him on 24.7.1999 and on the same day he along with prosecutrix and her mother Neelam visited Shimla. He had prepared the map Ex.PW-11/A. He has also recorded the statement of Smt. Neelam and prosecutrix Kumari Shivani. PW-12 Sh. Dharam Singh, Head Constable No.55, Police Station Sadar, Solan has recorded the statement of Sh. Baldev Mahlotra owner of bus No. HP-12-4113. PW-13 Sh. Ashok Kohli is the uncle of prosecutrix. He has stated that the prosecutrix had told her that the accused had committed rape. PW-14 Sh. M.P. Baam, Station House Officer, Nalagarh has stated that he was posted at Nalagarh since 1999 and on 18.7.1999 prosecutrix came to Police Station and lodged report at about 9.15 P.M. PW-15 Dr. Sandhya Gargia Radiologist CHC Nalagarh has issued Ex.PW-15/B. Mr. N.S. Chandel had strenuously argued that the age of the prosecutrix was about 17years at the time of commission of offence i.e. 18.7.1999. He has drawn the attention of the Court specifically to Ex.PW-15/A whereby Dr. Sandhya Gargia has opined that the age of the prosecutrix was 15 to 17 years. He also contended that the Court could not rely upon Ex.PW-4/A as well as PW-8/A. Mr. N.S. Chandel also contended that in the absence of the register of the Primary School produced before the Court, Ex.PW-4/A could not be relied upon. He further contended that Ex.PW-8/A has no evidentiary value since according to him it is merely a copy of the Pariwar register. He has also contended that at the top of the statement given by Shivani prosecutrix her age has been mentioned as 17 years. He has also drawn the attention to the copy of MLC 7 issued by PW-9 whereby her age has been mentioned as 17 years. However, the learned Additional Advocate General has strongly relied upon Ex.PW-4/A and Ex.PW-8/A to establish that the age of the prosecutrix was 15 years at the time of incident i.e. 18.7.1999. I have gone through Ex.PW-4/A duly proved on record by Sh. Mohan Lal, Head Master, Government High School, Trilokinath. The date of birth of the prosecutrix in Ex.PW-4/A is 19.11.1984. PW-4 Sh. Mohan Lal has specifically stated that Ex.PW-4/A was true and correct as per the original register. Similarly in Ex.PW-8/A, which was issued by PW-8, the age of the prosecutrix has been mentioned as 19.10.1984 though there is variance in the date of birth in Ex.PW- 4/A and Ex.PW-8/A, but it will of no consequence since the age of the prosecutrix as per both the certificates was about 15 years at the time of incident. In the opinion i.e. Ex.PW-15/A, the age of the prosecutrix could be between 15 to 17 years. The certificates Ex.PW-4/A and Ex.PW-8/A have been issued by the competent authorities while discharging their official duties. The date of incident in the present case is 18.7.1999 and the statement of the prosecutrix was recorded by the trial court on 16.10.2000 that is why the age of the prosecutrix has been mentioned as 17 years at the top of the statement recorded by the trial court. The court is of the considered opinion that on the basis of Ex.PW-4/A and Ex.PW-8/A it can safely be presumed that the age of the prosecutrix as on 18.7.1999 was about 15 years. The finding recorded by the trial court to this effect is correct. 8 Mr. N.S. Chandel had strongly argued that in view of Ex.PW- 15/B, Ex.PW-4/A and Ex.PW-8/A are to be ignored. Their Lordships of the Hon’ble Supreme Court have held in Vishnu alias Undrya versus State of Maharashtra, (2006) 1 SCC 283 that the expert medical evidence is not binding on the ocular evidence. Their Lordships have further held that the opinion of the Medical Officer is to assist the Court as he is not a witness of fact and the evidence given by the Medical Officer is really of an advisory character and not binding on the witness of fact. Their Lordships have further held as under while examining the age of the prosecutrix: “It is urged before us by Mr. Lalit that the determination of the age of the prosecutrix by conducting ossification test is scientifically proved and, therefore, the opinion of the doctor that the girl was of 18-19 years of age should be accepted. We are unable to accept this contention for the reasons that the expert medical evidence is not binding on the ocular evidence. The opinion of the medical officer is to assist the court as he is not a witness of fact and the evidence given by the medical officer is really of an advisory character and not binding on the witness of fact. In the case of Madan Gopal Kakkad v. Naval Dubey and Anr. (1992) 3 SCC 204 this Court has considered a similar question and pointed out in paragraph 34 at page SCC 221 as under: "34. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of symptoms found on examination. The expert witness is 9 expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court." We are of the opinion that this contention of the counsel for the appellant will be of no assistance in the face of evidence of fact from the mouth of PW-1 father and PW-13 mother, well corroborated by the register of the date of birth of Bombay Greater Municipal Corporation and the evidence of Dr. Shashikant Awasare, who is one of the proprietors of Dr. Kashibai Nursing Home, Santa Cruz (West), Mumbai, produced by him which shows that PW-4 Pushpa was born on 29.11.64. In the case of determination of date of birth of the child, the best evidence is of the father and the mother. In the present case, the father and the mother PW-1 and PW-13 categorically stated that PW-4 the prosecutrix was born on 29.11.64, which is supported by the unimpeachable documents, as referred to above in all material particulars. These are the statements of facts. If the statements of facts are pitted against the so called expert opinion of the doctor with regard to the determination of age based on ossification test scientifically conducted, the evidence of facts of the former will prevail over the expert opinion based on the basis of ossification test. Even as per the doctor's opinion in the ossification test for determination of age, the age varies. In the present case, therefore, the 10 ossification test cannot form the basis for determination of the age of the prosecutrix on the face of witness of facts tendered by PW-1 and PW- 13, supported by unimpeachable documents. Normally, the age recorded in the school certificate is considered to be the correct determination of age provided the parents furnish the correct age of the ward at the time of admission and it is authenticated. In the present case, as already noted, the parents had admitted to have given an incorrect date of birth of their daughter, presumably with a view to make up the age to secure admission in the school. Apart from this, as noticed earlier, the school certificate collected by PW-15 S.I. Bagal was not an authenticated document. No body was produced to prove the date of birth recorded in the school certificate. The date of birth recorded in the school certificate as 29.6.63 is, therefore, belied by the unimpeachable evidence of PWs.- 1 & 13 and contemporaneous documents like date of birth register of Greater Bombay Municipal Corporation and the register of the Nursing Home where the prosecutrix was born and proved by Dr. Shashikant Awasare, as noted above. Similarly, their Lordships of the Hon’ble Supreme Court in State of Chhattisgarh versus Lekhram, (2006) 5 SCC 736 have held that a register maintained in a school is admissible in evidence to prove date of birth of the person concerned in terms of section 35 of the Evidence Act. Their Lordships have held as under: “A register maintained in a school is admissible in evidence to prove date of birth of the person concerned in terms of Section 35 of the Indian 11 Evidence Act. Such dates of births are recorded in the school register by the authorities in discharge of their public duty. PW-5, who was an Assistant Teacher in the said school in the year 1977, categorically stated that the mother of the prosecutrix disclosed her date of birth. Father of the prosecutrix also deposed to the said effect. The prosecutrix took admission in the year 1977. She was, therefore, about 6-7 years old at that time. She was admitted in Class I. Even by the village standard, she took admission in the school a bit late. She was married in the year 1985 when she was evidently a minor. She stayed in her in-laws place for some time and after the 'gauna' ceremony, she came back. The materials on record as regard the age of the prosecutrix was, therefore, required to be considered on the aforementioned backdrop. It may be true that an entry in the school register is not conclusive but it has evidentiary value. Such evidentiary value of a school register is corroborated by oral evidence as the same was recorded on the basis of the statement of the mother of the prosecutrix. Only because PW-3 the father of the prosecutrix could not state about the date of birth of his other children, the same, by itself, would not mean that he had been deposing falsely. We have noticed hereinbefore, that he, in answer to the querries made by the counsel for the parties, categorically stated about the year in which his other children were born. His statement in this behalf appears to be consistent and if the said statements were corroborative of the entries made in the register in the school, there was no reason as to why the High Court should have disbelieved the 12 same. We, therefore, are of the opinion that the High Court committed a serious error in passing the impugned judgment. It cannot, therefore, be sustained. It is set aside accordingly.” Mr. N.S. Chandel has argued in the alternative that it is evident according to him on the basis of Ex.PW-9/A that no injury marks were present on the body of the prosecutrix. He has also contended that there were no injury marks on the private parts of the prosecutrix and no semen was present on the private parts of the prosecutrix. Their Lordships of the Hon’ble Supreme Court in Narayanamma (Kum) versus State of Karnataka and others (1994) 5 SCC 728 have held that in the absence of spermatozoa on vaginal smear does not falsify the version of the prosecutrix and its absence may be due to various other factors such as faulty taking of smear, its preservation quality of semen, etc. Their Lordships have further held that the hymen of the prosecutrix was ruptured and admitted two fingers cannot be viewed as if the prosecutrix was habitual to sexual intercourse. Their Lordships have held as under: According to Dr Reeta, Public Witness 3 hymen of the prosecutrix was ruptured, admitted two fingers, bled on touch, was reddish in colour, and was painful and tender. On this basis, the doctor opined that these were signs of rape. The ability of admission of two fingers and the hymen being ruptured was viewed by the High court as if the prosecutrix was habitual to sexual intercourse. When the doctor had opined that the hymen was ruptured, she did not qualify her statement that it stood ruptured as of old or carried an old tear. With clear objective in view, the doctor must be presumed to 13 have noticed the hymen as freshly ruptured, as otherwise, the doctor would not have described it in that fashion to be bleeding, tender and painful. The factum of admission of two fingers could not be held adverse to the prosecutrix for it would depend upon the size of the fingers inserted. Experience tells us that when medical experts try to opine about the medical condition of a woman used to sexual intercourse, it is described as admission of two fingers easily, but here the doctor qualified her statement by saying that it was painful and bleeding on touch. These conditions obviously related to the hymen. The doctor was thus clear in her opinion that rape had been committed on the prosecutrix. There was no occasion for the High court in holding it to the contrary. That there were injuries such as irregular linear contusion on both the breasts of the prosecutrix being 3 to 4 in number, reddish in colour, is also suggestive of force being used on her while she was subjected to the crime. The High court unfortunately did not give weight to this piece of evidence as it deserved. Their Lordships of the Hon’ble Supreme Court in State of H.P. versus Lekh Raj and another, (2000) 1 SCC 247 have held that the absence of dead or alive spermatozoa either in the vagina or in the cervix of the prosecutrix is not necessary to come to conclusion that the prosecutrix was not subjected to forcible intercourse. Their Lordships have held as under: “We are, however, of the opinion that the High Court was not justified in holding that the prosecutrix had not been subjected to forcible sexual intercourse or the prosecution had failed to prove the case against the respondent No. 1 also. To hold that the prosecution had not proved the case against the respondent, beyond reasonable doubt, the High Court mainly relied upon the 14 medical evidence and finding that "no dead or alive spermatozoa were seen. Absence of such dead or mobile spermatozoa either in the vagina or in the cervix of the prosecutrix rules out the possibility of the prosecutrix having been subjected to sexual intercourse on the date and time alleged by the prosecution". Such a conclusion is not referable to any evidence on record. No such suggestion was put to the doctor nor any medical authority referred to in support of the conclusions arrived at by the High Court. This Court in State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 : (AIR 1990 SC 658 : 1990 Cri LJ 889) relying upon medical evidence observed that "spermatozoa can be found if the woman is examined within 12 hours after intercourse, thereafter they may be found between 48 and 72 hours but in dead form. If the prosecutrix washes herself by then, the spermatozoa may not be found. In that case the Court after satisfying itself regarding the presence of semen on the clothes of the prosecutrix held that "the absence of semen or spermatozoa in the vaginal smear and slides, cannot cast doubt on the creditworthiness of the prosecutrix". Modi in his Medical Jurisprudence and Toxicology has noted : "The presence of spermatozoa in the vagina after intercourse has been reported by Pollak (1943) from 30 minutes to 17 days, and by Morrison (1972) 9 days in vagina and 12 days in the cervix. However, in the vagina of a dead woman, they persist for a longer period." It follows, therefore, that the presence of spermatozoa, dead or alive, would differ from person to person and its positive presence depend upon various circumstances. Otherwise also the presence or absence of spermatozoa is ascertained for the purposes of corroboration of the statement of the prosecutrix. If the prosecutrix is believed to be truthful witness, in her 15 deposition, no further corroboration may be insisted. Corroboration is admittedly only a rule of prudence.” Their Lordships in State of H.P. versus Gian Chand, (2001) 6 SCC 71 have held that the discovery of spermatozoa in the private parts of the victim is not a must to establish penetration. Their Lordships have held as under: “The observations made and noted by Dr. Mudita Gupta during medico legal