HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 368 of 1995 Reserved on: 8.4.2009 Decided on: 10.4.2009 State of Himachal Pradesh ……… Appellant. Versus Krishan Kumar ………Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the Appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondent: Mr.Raj Pal Thakur, vice Mr.M.S. Guleria, Advocate. Per V.K. Ahuja, J.: This is an appeal filed by the State of Himachal Pradesh under Section 378 of the Cr.P.C. against the judgment of the court of learned Sessions Judge, Hamirpur, dated 29.12.1994, vide which the respondent was acquitted of the charge framed against him under Section 363, 366 and 376 of the IPC. The prosecution story in brief is that on 21.6.1992, at about 6.25 p.m., a report was lodged with the police by one Smt.Sureshan Devi that her daughter ‘N’ (name not mentioned), aged about 14 years, was missing from the house since previous evening. It was alleged that at about 6.00 p.m. on the previous day, the prosecutrix ‘N’ had asked her mother for permission to visit the house of her friend Fluran Devi at Bohni. She denied the permission but the prosecutrix insisted that she would come back within a short time and thereafter the ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. prosecutrix ‘N’ left for her friend’s house. It was further alleged that when the prosecutrix did not return, the complainant visited the house of her friend and enquired about ‘N’ and she was told that the prosecutrix ‘N’ had not visited her. It was further alleged that she learnt from one Bhola that he had seen her daughter going with one Gulabu Ram. She alleged that the respondent may have enticed her daughter on the pretext of marrying her. On this report, a case was registered. The police recovered the girl in the company of the respondent on 25.6.1992 at Santokhgarh in District Una, H.P. The investigation was conducted and on completion of investigation, the challan was filed in the court of learned Chief Judicial Magistrate, Hamirpur, who committed the case to the learned trial Court, who tried the respondent leading to his acquittal. We have heard the learned Deputy Advocate General for the appellant as well as the learned counsel for the respondent and have gone through the record of the case. On appraisal of the evidence led by the prosecution, it is clear that the first question which arises for consideration is as to the age of the prosecutrix on the day of occurrence. The prosecution had relied upon the entry in the school register Ext.PE, which shows that the prosecutrix was admitted in the Government High School, Tal on 22.4.1991 in 6th class. The date of birth mentioned in the said register is 4.12.1977 and therefore, the age comes to 14- 1/2 years. However, the learned trial Court had observed and it has also come up in evidence that the girl was earlier admitted in a school when she was staying with her maternal uncle and in the school, in the village of the prosecutrix’s parents, she was admitted in 6th class only. This entry was proved from the statement of PW-10 Ishwar Dutt Sharma, Teacher, Government High School Tal, who stated that he had brought the register of admission and withdrawal and Ext.PE is the correct copy of this register, which shows the date of birth of the prosecutrix as 4.12.1977. He also stated that this entry was made on the basis of the certificate proved at the time of admission which had been issued by the Head Master of Government High School, Bohni. He also stated that the girl was admitted in the School in 6th class. The basis of the entry was the certificate issued by the Head Master of the previous school. There is nothing that the entry in regard to date of birth of the prosecutrix was made on the basis of any entry in Panchayat record or Municipal record or any other record. The original record from the earlier school should have been produced if it had contained any copy of the birth entry in regard to the prosecutrix. However, that would not have even served any purpose since the father of the prosecutrix, namely, PW-7 Rattan Chand has not stated that any report was lodged with the Panchayat regarding the birth of the prosecutrix but his wife PW- 1 Sureshan Devi is specific that no information regarding the birth of the prosecutrix ‘N’ was lodged anywhere. Thus, it is clear that this date of birth entry in the school register Ext.PE cannot be said to be a correct entry and since it has no basis, the same cannot be relied upon. The learned trial Court had referred to the evidence of PW-1 Sureshan Devi and PW-7 Rattan Chand, parents of the prosecutrix, and had referred to their statements in regard to the birth of their children and had also referred to their testimony as to when they were married, after how much the first child was born and after how much time the other children were born. This type of evidence is only by estimation and the learned trial Court, after referring to the evidence, had concluded that this evidence cannot be relied upon to determine the age of the prosecutrix. In case, the parents of the prosecutrix themselves are not aware of the dates of birth of their children, how the age given by them by approximation of different children can be looked into to fix the date of birth of the prosecutrix. The learned trial Court had also referred to the evidence of the Radiologist, PW-3 Dr. J.R. Azad, who, after conducting epiphysis test of the prosecutrix, had given her age as more than 14-1/2 years but below 16-1/2 years. According to law, there can be variation of two years on either side in such reports and accordingly, the age of the prosecutrix can be said to be more than 18 years. The prosecutrix herself, who appeared in the witness box as PW- 4, has not been able to state her age and prove any entry in regard to her age. In view of the above discussion, it is clear that the learned trial Court had come to a right conclusion that the age of the prosecutrix was not proved to be less than 16 years on the day of occurrence. A careful perusal of the statement of PW-4 the prosecutrix ‘N’, who is the only witness to the rape, allegedly committed by the respondent with her, clearly shows that she had voluntarily gone from the house on the pretext of meeting one of her friends, but never visited her and she was thereafter seen going with the respondent. She herself states that she went on foot, then in a truck and then to the Hamirpur Town from where they hired a taxi and thereafter stayed in the house of respondent’s Bua and thereafter in the house of respondent’s sister where the husband of the respondent’s sister was only present. The fact that she crossed from Hamirpur Town and went on a truck and then in a taxi clearly shows that she had every opportunity to raise an alarm or seek help of the people if she was being taken by the respondent against her wish. Her statement also is not of such nature upon which implicit reliance can be placed because at one stage she states that she treated the respondent and used to call him mama since he was visiting their house for the work of agriculture and had also stayed there at times. But this time, the prosecutrix voluntarily accompanies the respondent and allows him to have sex with her at both the places where they stayed. She had an opportunity to complain to the aunt of the respondent or to the brother-in-law of the respondent or other persons whom she may have crossed on way while going through the bazaar or by other transport. However, her conduct in accompanying the respondent willingly and allowing him to have sex does not lead to the inference that there was any inducement or threat or forcible sexual intercourse committed upon her against her wish. The Medical Officer Sunita Gloda, when appeared as PW-2, has clearly stated that the vagina of the prosecutrix admitted two fingers easily and the prosecutrix was used to sexual intercourse. The prosecutrix has been held to be of the age of more than 16 years and, therefore, she voluntarily gave her consent and the evidence led shows that she was a consenting party to the act of leaving the house or accompanying the respondent or having sex with him and, therefore, the learned trial Court had rightly concluded that the charge under Section 376 of the IPC was not proved. Coming to the findings that the guilt of the respondent was not established under Sections 363 and 366 of the IPC, the learned trial Court has, after referring to the testimony of the prosecutrix, come to the conclusion that there is no proof of inducement or allurement that she was taken out of the custody of her father on the promise to marry her. Her own statement was sufficient to demolish her case that there was no promise of marriage when she treated the respondent as her mama and used to call him as such also. Her statement as PW-4 does not lead to the inference that she had left the house of her father on the promise or allurement given by the respondent to perform marriage with her and, therefore, the findings of the learned trial Court holding that the charges under Sections 363 and 366 of the IPC were not proved are based upon correct appreciation of evidence and law, and such the findings recorded by the learned trial Court cannot be termed as perverse calling for an interference by this Court. In view of the above discussion, we find no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged. (Deepak Gupta), Judge. April 10, 2009. (V.K. Ahuja), (TILAK) Judge