IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No. 209 of 1998. Judgment Reserved on April 8, 2010. Date of decision April 9, 2010. State of Himachal Pradesh …Appellant. Versus Rajesh Kumar …Respondent. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. The Hon’ble Mr. Justice Kuldip Singh, J. Whether approved for reporting?1 No. For the appellant Mr. P.K.Sharma, Addl. AG. For the respondent Mr. Rakesh Jaswal, Advocate. Dev Darshan Sud, J. The State has preferred this appeal against the judgment of acquittal passed by the learned Sessions Judge, Shimla. Respondent Rajesh Kumar was charged for offences under Sections 363, 366 and 376 of the Indian Penal Code. According to the case put forth by the prosecution on 12.9.1994, the prosecutrix Meera, daughter of Sh. Tota Ram, resident of Village Karcholi, Police Station, Dhalli, District Shimla had gone to the market of village Baldian 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - to buy some provisions like tea, sugar etc. The accused met her there and forced her at the point of a knife to accompany him. He took her to his house in village Khatnol where he purportedly confined her for 2/3 days, during which period he repeatedly raped her. From there, she was brought to Shimla to the house of the father of the accused where she was kept for 4/5 days and during this period also, she was forcibly subjected to sexual intercourse against her will and without her consent. The disappearance of the prosecutrix was reported to the police by her father and First Information Report was lodged on 16.9.1994. The reasons stated for the delay in lodging the First Information Report is that the father of the prosecutrix was searching her at the residence of his relatives etc. at different places and when he got no clue about her whereabouts, he lodged the FIR. The prosecutrix was purportedly recovered from Shimla from the house of the father of the accused and was medically examined. She was subjected to ossification test to determine her age. The clothes which the prosecutrix alleged she was wearing at the time when she was subjected to rape, were also recovered from the house of the father of the - 3 - accused. The accused was also got medically examined which showed that he was a healthy young man capable of performing sexual intercourse. The prosecution examined 11 witnesses in all. The prosecutrix appeared as PW-5. Doctors PW-3 Dr. S.S.Negi and PW-4 Dr. Sanjay Vikrant were also examined to establish the commission of the offence. The mother and the father of the prosecutrix, PW-6 Shanti Devi and PW-7 Tota Ram and her uncle PW-11 Rup Singh, who was the Secretary of the Panchayat, Basantpur testified to prove the factum of kidnapping, rape and the age of the prosecutrix. The learned Sessions Judge framed three questions for determination which were central for determining the guilt of the accused. The first was as to whether the age of the prosecutrix had been proved to be below 18 years, second as to whether the prosecutrix had been forcibly abducted by the accused and third as to whether she had been raped by the accused as alleged. On the question of age of the prosecutrix, learned Sessions Judge considers the evidence of PW-6 Shanti Devi, mother of the prosecutrix, PW-7 Tota Ram, father of the prosecutrix and PW-11 Rup Singh, Secretary - 4 - Panchayat, Bansantpur Block, who purportedly proved on record Ex.PN, certificate issued by him with respect to the age of the prosecutrix who is his niece. The so called certificate has been rightly rejected by the Court below as the Register in which the age was recorded has not been produced. He is not aware as to who passed the information to him and how it came to be recorded in the Register which was never produced in Court. Turning to the statement of PW-7 Tota Ram, father of the prosecutrix, he states that the factum of birth of the prosecutrix was recorded in the panchayat record. Beyond this, his statement does not prove anything, except that he was witness to the recovery etc. According to the mother PW-6 Smt. Shanti Devi, the factum of birth of the prosecutrix was entered in the Register of Births and Deaths maintained by the Panchayat. She further states that the prosecutrix is her 5th child. Three children are alive, one is dead. She states that she has nine children and she gave birth to each of them after one / one and a half year. When read in conjunction with the statement of PW-7 Tota Ram, the learned Sessions Judge concludes that since the eldest daughter is 26/27 years of age and the prosecutrix is the 4th issue, her age could not - 5 - be less than 21 years on the date when she was deposing in Court and at the time of incident she was above 18 years of age. Coupled with the fact that the ossification test Ex.PB/1 proved by Dr. Asha Negi, PW-3, who states that the age of the prosecutrix is anything between 15 to 19 years, the learned Judge concludes that on the date when the offence was committed, she was major. We cannot find fault with this reasoning. It is strange that when the name of the prosecutrix was entered in the panchayat register, why such register was not produced in Court. We fail to comprehend as to why this evidence was not produced. In Jaya Mala v. Home Secretary, Government of Jammu and Kashmir and others, AIR 1982 SC 1297, the Supreme Court holds: “9……However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side.” In Chintu alias Chint Ram v. State of H.P., 1997 (2) Sim. L.C. 294, this Court, following the judgment of the Supreme Court in Jaya Mala’s case (supra) and Paramjit Singh v. State of Himachal Pradesh, 1987 Cri. L.J. 1266, - 6 - held that margin of error of two years should be given in favour of the accused. In these circumstances, the age of the prosecutrix definitely is more than 16 years. We cannot find any fault with the reasoning of the learned Sessions Judge and cannot come to a different conclusion. On the question of kidnapping and forcible sexual intercourse, the learned Judge holds that the statement Ex.DA which was made by the prosecutrix at the time of her recovery is at complete variance with what she stated in Court. No doubt when she was in Court, she tries to make out a case of forcible sexual intercourse, but in her statement Ex.DA, there is not one whisper about her being kidnapped. Rather, the case made out is that she was in love with the accused and when she was harassed and beaten by her father having expressed her desire to marry him, she fled away with the accused. What also requires to be noticed here is that for seven days, she has been going around with the accused. She admits in her statement that the house where she was kept in Shimla was in a thickly populated locality. It is strange as to why she did not complain against the accused when she was being taken from place to place by him. The story that she - 7 - was abducted at knife point by him is an after thought and fabricated. We cannot persuade ourselves to accept that she was subjected to forcible rape. She has completely changed her stand when she made statement in Court. When read in conjunction with the medico legal report Ex.PB and evidence of doctors PW-4 Dr.Sanjay Vikrant and PW-3 S.S.Negi, we find that the medical evidence does not support the case of rape. In fact, PW-3 states that she was habituated to sexual intercourse. From the evidence on record, we are unable to persuade ourselves to hold that the prosecutrix was either kidnapped or abducted at the point of knife as the prosecution story unfolds and that she was subjected to rape. The case at best is one of consensual sexual intercourse which cannot be an offence. (See Lata Prasad v. State of Madhya Pradesh, AIR 1979 SC 1276). There is, thus, no merit in the appeal which is accordingly dismissed. Bail bonds furnished by the accused are discharged. (Dev Darshan Sud), J. April 9, 2010(PC). (Kuldip Singh), J.