Crl.A. No.725-SB of 1999 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.A. No.725-SB of 1999 DATE OF DECISION: July 6, 2011 JAI SINGH @ JAIYA S/O RISAL SINGH ...APPELLANT VERSUS THE STATE OF HARYANA ...RESPONDENT CORAM: HON'BLE MR. JUSTICE M.JEYAPAUL. 1. Whether the judgement should be reported in the digest? Yes ---- PRESENT: MR. SUDHIR SHARMA, ADVOCATE FOR THE APPELLANT. MR. V.P.S. SIDHU, AAG, HARYANA. M.JEYAPAUL, J.(ORAL) 1. Accused Jai Singh @ Jaiya and accused Rakesh were both convicted for the offence under Section 366 IPC and were each sentenced to undergo 4 years R.I. and to pay a fine of 500/- and in default to undergo a period of 1 months R.I. Accused Jai Singh was also convicted for the offence under Section 376 IPC and was sentenced to undergo 7 years R.I. and to pay a fine of 500/- and in default to undergo a period of 1 month R.I. Accused Rakesh preferred separate Crl.A. No.718-SB of 1999. As he died during the pendency of the appeal, the said appeal abated. Now this Court is concerned only with the present appeal filed by accused Jai Singh aggrieved by the order of conviction and sentence passed by the trial Court. 2. The case in brief of the prosecution is that accused Jai Singh and accused Rakesh met their neighbour PW3 and PW4 on 24.9.1997, when they had been to the fields to attend the call of nature. At that point of time, Crl.A. No.725-SB of 1999 -2- PW3 was studying in 7th Standard and PW4 was studying in 8th Standard. Both the accused having obtained the consent of PW3 and PW4 took them in a Maruti van on the pretext that a magician was performing a show at Gurgaon. The accused without stopping the van at Gurgaon proceeded to Delhi. PW3 and PW4 were taken to a hotel where accused Jai Singh committed rape on PW3 and accused Rakesh committed rape on PW4. Thereafter, both the girls were taken to Kharkoda in Uttar Pradesh where the sister of Rakesh was living. Both the girls were kept at the house of the sister of Rakesh for two days. Thereafter, they were taken to Gurgaon. The girls were secured when they were found loitering at the railway station. Both the accused were arrested on 28.9.1997. They were subjected to medico-legal examination. The school certificates showing the date of birth of PW3 and PW7 were also obtained. Having completed the investigation, the Investigating Official laid challan as against both the accused. 3. The trial Court having relied upon the evidence of PW2 Krishna Kumari, School Mistress, PW3 and PW7 Dr.Ila Garg returned a verdict of conviction as against accused-appellant Jai Singh. It is to be noted that the trial Court also arrived at a decision that accused-appellant had intercourse with PW3 only with her consent. Having found on the basis of Ex.PE School Certificate produced by PW2 Krishna Kumari showing the age of PW3 below 16 years, convicted the accused-appellant under Section 366 and 376 IPC. 4. Learned counsel appearing for the accused-appellant would vehemently submit that the age of PW3 was not established. The Crl.A. No.725-SB of 1999 -3- prosecution has not cared to produce the birth certificate of PW2 and radiology test report. Even the parents of PW3 were not examined. Therefore, it is his submission that the prosecution has failed to establish that the accused-appellant committed rape on a minor girl aged below 16 years, having kidnapped her, intending to have intercourse with her. 5. Mr.V.P.S. Sidhu, AAG, Haryana would submit that there is no reason to reject the school certificate Ex.PE produced by the prosecution in the absence of birth certificate. It is his further submission that the case of the prosecution that PW3 was studying in 7th Standard was not challenged by the accused. No wonder, the trial Court has come to a decision that PW3 was below 16 years of age at the time when the occurrence took place. He would also submit that non-examination of parents of PW3 does not loom large in this case. 6. PW3 is the victim in this case. She has categorically deposed before the Court that the accused took her in the guise of watching the performance of a magician at Gurgaon in a Maruti van and took her to a hotel in Delhi without stopping the Maruti van at Gurgaon and committed rape on her at a hotel room in Delhi. 7. PW1 Dr.Ramesh Kumar had medico-legally examined the accused-appellant and certified that the accused-appellant was potentially capable of performing intercourse. PW6 Dr.Ila Garg had medico-legally examined the victim. Though PW6 had not noticed any external injury on the private parts of victim PW3, she could find that the hymen was perforated and it was capable of admitting one finger at ease. Crl.A. No.725-SB of 1999 -4- 8. No motive could be attributed against PW3 to falsely implicate her neighbour, the accused herein. Her testimony is found to be credible and trustworthy. Her testimony could not be demolished in spite of elaborate cross-examination done by the accused. Her evidence is supported by the medical testimony available on record. The above detailed evidence let-in by the prosecution would go to establish that PW3 who was taken by the accused-appellant in the guise of showing a show of magician was taken to a hotel in Delhi and was subjected to intercourse. 9. Of course, the trial Court has rightly evaluated the evidence on record and come to a decision that the accused-appellant had sexual intercourse with PW3 only with her consent. It is on record that PW3 had voluntarily left alongwith the accused. She had not chosen to raise any alarm the moment the van was crossing Gurgaon which was the proposed destination. It is her testimony that she came across many police personnel during the course of her journey to Delhi, but she had not chosen to report to any of the police officials about the kidnapping committed by the accused. To top it all, as per the medical testimony, no mark of violence was found on the person of PW3. In my considered view, the trial Court has rightly come to a decision that the accused had sexual intercourse with PW3 only with her consent. 10. The important question which survives for determination is whether PW3 was below 16 years at the time when the occurrence took place. The prosecution has produced a school certificate (Ex.PE) through PW2 Krishna Kumari, School Mistress of the school to establish that the Crl.A. No.725-SB of 1999 -5- victim girl PW3 was born on 21.12.1984. As per the said school certificate, PW3 had not crossed even the age of 13 years. Yet another important factor also has been highlighted in this case by the prosecution. PW3 was studying in 7th Standard at the time when the occurrence took place. Though she could not say how long she had been attending the school, she has categorically stated that she was doing 7th Standard at the time when the occurrence took place. The said version of PW3 was not subjected to challenge by the accused. In a normal course, a girl who is studying in 7th Standard would not have crossed even the age of 13 years. The above materials would go to establish that PW3 was just below 13 years and was studying in 7th Standard at the time of occurrence. 11. Of course, the prosecution has not taken any efforts to secure the birth certificate of PW3. She was also sent for radiology examination, but the radiologist report was not produced. At any rate, I am not inclined to draw an adverse inference as to the age of the victim girl just because there was the lapse on the part of the investigating agency. 12. When there is no material to show that the parents had purposely suppressed the real age of the victim girl PW3 for the purpose of taking advantage of her underage, the school certificate produced from the competent authority concerned cannot be ignored by the Court of law. In the rural area, it is highly doubtful whether the parents would have reported scrupulously the birth of the child to the authority concerned. Further, in my considered view, any radiology report could only reflect an approximate age and not the exact age of the person concerned. Crl.A. No.725-SB of 1999 -6- 13. Learned counsel appearing for the appellant cited a decision of this Court in Som Nath vs. State of Punjab, reported as 2008(3) RCR (Criminal) 510. Having doubted the authenticity of the school certificate produced in a case of rape, this Court made an observation in the said case that report of the radiologist could be safely relied upon when the birth certificate from the Municipal record was withheld by the prosecution. That was a case where the authenticity of the school certificate was itself doubted by the Court. The witness who produced the school certificate has categorically admitted that the related records were completed destroyed in the floods. The school certificate produced in the said case did not even reflect the correct present name of the issuing authority. The fact that the prosecutrix in that case underwent an educational course in the school was also doubted by the Court. Under such circumstances, the aforesaid observation was made and the only available medical testimony was preferred by the Court. In the case in hand, I do not propose to entertain any doubt as to the authenticity and veracity of the school certificate produced by the prosecution through PW2, school mistress who maintained the records. Therefore, the aforesaid decision of this Court does not apply to the facts of this case. 14. Yet another decision in Hira Lal vs. State of Haryana, 1994(2) RCR (Criminal) 435 was also cited by the learned counsel appearing for the appellant. That was a case where the prosecutrix came with a version that she was 17½ years old; her father came with a different version that she was 16 years old and the school certificate reflected that she was 17 years Crl.A. No.725-SB of 1999 -7- old. When the age of the prosecutrix was on the border line, this Court in the aforesaid case observed that in all fairness the prosecution should have produced the birth certificate from the authority concerned. 15. The Hon'ble Supreme Court in Brij Mohan Singh vs. Priya Brat Narain Sinha and others, reported as AIR 1965 SC 282, has of course held that it would be improper for the Court to base any conclusion on the basis of the entry found in the school records when it was alleged that the entry was made upon false information supplied with some motive. In the instant case, no such allegation has been made by the accused saying that a school certificate has been produced on the side of the prosecution with the false information supplied to the school authorities with certain motives by the parents even at the time when PW3 was admitted. Therefore, I do not find any reason to reject the school certificate produced by the prosecution in this case through PW2 who is the authority concerned in the background of the admitted fact that PW3 was doing 7th Standard at the time when the occurrence took place. 16. In view of the above facts and circumstances, I have no hesitation to reject the submission made on the side of the appellant that the age of victim PW3 was not established below 16 years. 17. In a case of rape, non-examination of parents of the victim does not loom large. Even otherwise, the prosecution could establish through other witnesses that PW3 was in fact kidnapped by the accused-appellant and was subjected to rape. 18. In view of the above facts and circumstances, I find that no case Crl.A. No.725-SB of 1999 -8- has been made out to upset the verdict of the trial Court. Therefore, the judgement of the trial Court is confirmed and the appeal is dismissed. 19. The accused-appellant is on bail. His bail bond stands cancelled. He shall surrender before the trial Court within 15 days from the date of this judgement. In default thereof, the trial Court shall issue non- bailable warrant and send him to prison to undergo the unexpired portion of his sentence. July 6, 2011 (M.JEYAPAUL) Gulati JUDGE