IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 394 of 2009. Judgment reserved on: 22nd March, 2011. Date of Decision: March 28th, 2011. _______________________________________________________ Balbir Singh ….Appellant. Versus State of Himachal Pradesh ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes For the appellant : Mr. M.S. Guleria, Advocate. For the respondent : Mr. A.K. Bansal, Addl. Advocate General. ____________________________________________________ SURINDER SINGH, J: 1. The appellant a Nepalese, was tried for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code, but the learned trial Court acquitted him, for the offences under Sections 363 and 366 of the Indian Penal Code and convicted under Section 376 of the Indian Penal Code, for allegedly committing the offence of rape on the prosecutrix, who was less than 16 years of age, as such he was sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of ` 25,000/-. In default of payment of fine to further undergo rigorous imprisonment for a period of Whether reporters of the Local papers are allowed to see the judgment? - 2 - one year. However, he was given the benefit of Section 428 of the Code of Criminal Procedure. The convict-appellant feeling aggrieved by the impugned judgment of conviction, directed the present appeal. 2. In brief, the prosecution case as emerges from the evidence on record, can be stated thus. Appellant was an agricultural labourer, living for the last one year with his relatives Rajesh and Poonam prior to the alleged incident. All of them were housed in the premises of one Sita Ram. (ii) Rajesh and Poonam had two daughters, who were also school going children, they had friendly relations with the prosecutrix. Because of this reason, the prosecutrix was in visiting terms with them in their house. The families of the complainant and the accused were so mixed-up together that they frequented each other in the presence of the appellant. (iii) In the year 2008, the prosecutrix was studying in 8th standard. She alongwith daughters of Rajesh used to go to Govt. High School, Kathog from their village - 3 - together and returned in the evening to their respective homes. (iv) On 25.2.2008, in the morning the prosecutrix went to village Sandhu to collect her stitched clothes from the shop of one Kavita. It is alleged that while returning, on the way the appellant met her and informed her that her parents were going to Haridwar and she should accompany him to Shimla for getting the seats reserved in the bus. Taking it to be a true representation, the prosecutrix accompanied appellant and reached Shimla. She also enquired about her parents, but the appellant assured that they would be coming. Thereafter, the appellant made the prosecutrix to board a bus, gave her potato-chips packet to eat, she fell asleep and took her to Haridwar. For the night, they stayed in a room at Haridwar, where she was allegedly raped. Thereafter, they have been changing the rooms and it is alleged that the prosecutrix during this - 4 - time was threatened with her life and the appellant went on raping her. (v) On 26.2.2008, PW2 Jeet Ram, father of the prosecutrix, lodged a written complaint Ext.PW2/A with the police about missing of his daughter which was entered into daily- diary Ext.PW15/A in Police Station, Theog, which culminated into FIR Ext.PW15/B. (vi) It is alleged that on 20.2.2009 the prosecutrix rang-up to her father from Dehradun regarding her whereabouts. He informed police. Police reached Dehradun and recovered the prosecutrix from Patel-Nagar, Dehradun, from the custody of the appellant. Her custody was handed over to her father PW2 vide memo Ext.PW2/B and the appellant was also arrested. They were brought to Police Station, Theog. (vii) The appellant was got medically examined. He was found capable of performing sexual intercourse. His Medico Legal Certificate is Ext.PW16/B. (viii) The prosecutrix was also got medically examined from PW12 Dr. (Mrs.) Seema - 5 - Rani. She did not find any external injury on her person. No blood/ seminal stains were present in the local perennial area. Pubic hair were taken and sealed. On vaginal examination, uterus was noticed anti-verted, cervical length was 1.5 cms. Os was closed. Posterior fornix was much longer than the anterior fornix. Discharge was whitish in colour. Vaginal slides and swabs were taken and sealed alongwith sample of blood of prosecutrix. Her clothes were also sealed for forensic examination. Her Medico Legal Certificate is Ext.PW12/A. She was referred to the gynecologist for pregnancy test which was found negative and also for radiologist test which was conducted by PW11 Dr. (Mrs.) Neeti Aggarwal. She opined the age of the prosecutrix between 13½ to 16½ years based upon the fusion of bones. (ix) Police also took into possession the birth certificates from the Panchayat and the School record whereby she was shown to have taken birth on 20.5.1994. - 6 - (x) The report of the forensic laboratory revealed some blood stains on the vaginal swabs and ‘Pajami’ of the prosecutrix. The report is Ext.PW13/A. (xi) Police also took into possession the copy of admission and withdrawal register of the school where she was studying. 3. After the conclusion of the investigation, Challan against the appellant was presented in Court for his trial. 4. Appellant was accordingly charge-sheeted and tried for the offences aforesaid, but convicted and sentenced only under Section 376 of the Indian Penal as aforesaid. 5. To prove its case, the prosecution examined its witnesses. The statement of the appellant under Section 313 of the Code of Criminal Procedure was also recorded. He denied the circumstances which were put to him. When called upon to enter into his defence, no evidence in defence was led. The trend of cross-examination shows that the stand taken by the accused was that the prosecutrix was more than 18 years of her age and had voluntarily joined his company and act was consensual. - 7 - 6. Shri M.S. Guleria, learned Counsel for the appellant, vehemently argued that the material on record with respect to the age of the prosecutrix does not show that she was minor and in any case less than the age of discretion. He further submitted that if the testimony of the prosecutrix is scrutinized properly, it would show that she was a consenting party and defence taken by the appellant stands probablised. 7. On the other hand, Shri A.K. Bansal, learned Additional Advocate General, supported the impugned judgment of conviction and sentence. 8. I have given my thoughtful consideration to the respective contentions and have closely and cautiously examined the evidence on record. 9. The evidence on record produced before the learned trial Court makes it clear that on 25.2.2008 the prosecutrix went missing and her father lodged complaint, Ext.PW2/A, in writing, which needs to be noticed. He specifically mentioned that his daughter had gone alongwith Rajesh, his wife Poonam and their two daughters to the school in the morning and during day time around 3.30 p.m. the appellant packed-up the luggage and left the place. Next day he enquired from the school authorities, but he - 8 - was informed that the prosecutrix did not attend the school. Further, there is an averment made in the said complaint that the prosecutrix had gone with the ‘Gorkhas’, who had been residing in the house of Sita Ram. On the basis of this complaint, FIR, Ext.PW15/B, was lodged on 3.8.2008. 10. For about 11 months, nothing was heard, but suddenly on 20.2.2009, a telephonic message was received from the prosecutrix that she was at Dehradun, from where she was recovered. None of the witnesses stated that the prosecutrix was confined and detained against her wishes. 11. The prosecutrix, when examined in the Court stated that she found the opportunity only on 20.2.2009 and informed her father on the said date from the local PCO at Dehradun. On 21.2.2009, she was recovered from the place aforesaid from the custody of the appellant. In her cross-examination, she had given the details of the journey from her village to Haridwar and during this period she traveled through the inhabited areas, busy markets and also stayed on the inhabited places, met many persons. She also admitted that some other people were staying in the house in which she alongwith appellant was residing at Dehradun. Significantly, - 9 - she did not make any complaint to any one there. She categorically stated that there were several houses abutting the house where she was staying at Dehradun and in the day time the appellant used to go to work and she used to stay alone in the room, but, however, stated that he used to bolt the door from outside and the neighbours knew that she alongwith appellant lived in one of the rooms. But with the same breath she further stated that she used to cook meals and come out of the room to spread the washed clothes. Her brother Joginder Singh was having mobile phone, but she did not even tell or contacted him with effect from 25.2.2008. All the aforesaid circumstances go to show that there has been a tacit consent of the prosecutrix, her act of joining and remaining with the appellant was the free exercise of her discretion, without any fear from him. Thus, against this background the age of the prosecutrix assumes importance. Although, prosecutrix and her parents stated that her date of birth is 20.5.1994, but it has been disputed in their cross-examination. Whereas, her radiological age is 13½ to 16½ years. According to the doctor, there can be variation of two years on either side. - 10 - 12. The determination of the date of birth before a Court of law whether in the civil or in the criminal proceedings would depend upon the facts and circumstances of each case. Such a date of birth has to be determined on the basis of material on record. It will be a matter of appreciation of evidence adduced by the parties. 13. In the written request for her medical examination (Ext.PW6/A) made by the police, her age is given 16 years. In the Medico Legal Certificate (Ext.PW12/A) she supplied her age as 16 years. Pertinently, prosecutrix stated that her youngest brother Pardeep Kumar is studying in 10+2 and as per the statements of the parents, Pardeep Kumar is elder to the prosecutrix which fact is also evident from the copy of Pariwar register Ext.PW10/B, whereby his date of birth has been shown to be 7.11.1990 and his father PW2 corroborates this fact. Thus his age comes to around 18 years on the date of alleged incident. 14. Further PW4 Madan Premi is a teacher where the prosecutrix was studying in 8th standard. He proved the abstract of the school leaving certificate Ext.PW4/C, but the original school leaving certificate did not find the light of the day. However, he stated - 11 - that the entries in the school register were made on the basis of the previous school leaving certificate, which was not produced. 15. PW14 Shyam Singh Thakur is the Head Teacher of Government Primary School where initially the prosecutrix was admitted. He had also prepared the abstract of the entry made in the admission register (Ext.PW14/B), and handed over the copy of birth certificate Ext.PW14/C vide memo Ext.PW14/D, which was allegedly produced at the time of her admission showing date of birth as 20.5.1994, but the admission slip signed by parents/ guardian against which the prosecutrix was admitted was not produced. The alleged birth certificate was issued by the Secretary of the Panchayat. PW10 Lokinder Verma, is the Secretary of the said Panchayat and had issued the birth certificate Ext.PW10/A prepared by him on the basis of birth entries in the concerned register, which requires consideration wherein prosecutrix has been shown to have taken birth on 20.5.1994. This entry is stated to have been made on 18.2.1995, but when confronted with the birth register he admitted that some of the pages of the same were not numbered and one of the pages of the register was almost 1/4th blank containing the entries - 12 - of births taken place in different families. Further, admitted that the date of birth of the prosecutrix was entered in the said register on 18.2.1995 and it did not contain the signatures of the informant. Since the basic entry with respect to her date of birth does not contain the signatures of the informant, it looses its importance. 16. In the instant case, on the scrutiny of the above evidence, the entries with respect to her date of birth whether in the Panchayat or in the school register cannot be believed, as the basic entry itself is found to be doubtful and otherwise also the statements of the witnesses reveal that she was more than 16 years and in other words she had attained the age of discretion at the time of alleged incident. Since she happens to be a consenting party in the entire episode, therefore, the conviction and sentence recorded by the learned trial Court for the offence of rape is hereby set aside. Consequently, the appeal filed by the appellant is allowed and the appellant be set at liberty if not required in any other case. Registry to take appropriate steps forthwith. 17. Appeal stands disposed of accordingly. March 28, 2011. (Surinder Singh), (rc) Judge.