IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 692 of 2002 Reserved on: 30.9.2011 Date of decision: 4th November, 2011 State of H.P. ….. Appellant. Vs. Sunil Kumar …. Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellant : Mr. Vivek Thakur, Addl. A. G. For the respondent : Mr. B. N. Mehta, Advocate Sanjay Karol J. (Oral. For an offence, which is alleged to have been committed on 7.4.2001, accused was put to trial. In terms of judgment dated 29.6.2002 passed by learned Sessions Judge, Hamirpur, in Sessions Trial No. 24 of 2001 titled as State of H.P. vs. Sunil Kumar, accused stands acquitted of the charged offence. 2. It is the case of the prosecution that prosecutrix is deaf, dumb and blind. She is also mentally retarted. She has no control over her senses. She was born on 9.8.1987 to Ms. Rani Sharma (PW-1) through her husband Sh. Satish Kumar (PW-3). Prosecutrix has got one elder sister and one younger brother. On 7.4.2001 at about 5.30 p.m. while PW-1 was Whether the reporters of the local papers may be allowed to see the Judgment? 2 cutting grass in the court yard of her house, she heard cries of the prosecutrix coming from one of the rooms of her house. She went into the road to see as to what had happened. She found that the accused had opened his pants and was standing besides the prosecutrix. Seeing PW-1, accused apologized for having raped the prosecutrix. Immediately PW-1 examined her daughter and found blood on her private parts. She had also urinated. In the meanwhile, accused ran away from the spot. PW-1 complained about the incident to the mother of the accused but was told her that since accused had ran away from the house, she would take-up the matter upon his return. She was requested not to make the incident public. PW-1 changed the clothes of the prosecutrix and washed the soiled clothes. On 9.4.2001 when PW-3 who was away for work returned home, PW-1 narrated the incident to him. Immediately PW-3 approached the father of the accused and narrated the incident to him. He was also told by parents of the accused that since accused was absconding, they would look into the matter upon his return. Accused returned home only on 28.5.2001. At that time PW-3 was away for work. On 30.5.2001 when PW-3 returned home, he convened meeting of the Panchayat and in the presence of residents of the village and certain members of the Panchayat i.e. Smt. Shakuntla Devi (PW-4), Sh. Bishambhar Dutt (PW-5) and Sh. Jaswant Singh (PW-6), accused admitted his guilt in terms of compromise 3 (Ext.PW-4/A). Accused promised to mend his behaviour and not to be seen around the house of the prosecutrix. Since on 20.7.2001 accused was seen around the house of the complainant, on 21.7.2001 PW-1 lodged F.I.R. No.112/2001 (Ext.PW-1) under Section 376 IPC with Police Station, Nadaun. Sh. Nathu Ram (PW-15), SHO, Police Station, Nadaun commenced investigation. During investigation, compromise (Ext.PW-4/A) was taken on record. Certificate (Ext.PW-9/A) showing date of birth of the prosecutrix to be 9.8.1987, was taken on record. Prosecutrix was got medically examined through Dr. Dinesh Thakur (PW-16) who issued MLC Ext.PW-16/A. Accused was also got medically examined through the very same doctor. As per medical record, accused was found fit to perform sexual intercourse. Possibility of the prosecutrix being subjected to rape could not be ruled out for the reason that two fingers could be inserted inside her vagina. Investigation revealed complicity of the accused to the crime. Hence challan was presented in the Court for trial. 3. Accused was charged for having committed an offence punishable under Section 376 IPC, to which he did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined 16 witnesses and statement of the accused under Section 313 Cr.PC was also recorded in which he pleaded innocence and false implication. 4 5. Accused stands acquitted by the Court below. Hence the present appeal. 6. A deaf, dumb and blind girl, supposedly minor is alleged to have been raped by the accused. It is one of those rare cases where the complainant, unfortunately has not come out with the whole truth. It cannot be said with certainty that the accused had committed the crime or that the prosecution has been able to prove the case, beyond reasonable doubt sharing complicity of the accused to the charged offence. Even the police in the instant case, in our considered view, has seriously failed in carrying out investigation with the seriousness and in the manner in which it was required to do so. 7. Unfortunately in this case statement of the prosecutrix could not be recorded for the reason that the trial Court found her to be deaf, dumb, blind and mentally retarted and also unable to walk. She was found not capable of making her statement. 8. To begin with we find that prosecution has not proved on record the exact date of birth of the prosecutrix. Unfortunately, in fact in dereliction of his duties, the Investigating Officer (PW-15) did not get the ossification test of the prosecutrix conducted from the doctor, for the reason “that prosecutrix is deaf, dumb, blind and mentally retarted”. This is no explanation in law. According to the police, a minor girl of 14 years was sexually assaulted. 5 9. As per medical report (Ext.PW-16/A), age of the prosecutrix is 14 years. This is so recorded by the Doctor (PW-16). But then he was not testified with regard to the age of the prosecutrix. According to the mother (PW-1), her eldest child was born on 29.9.1983. Second child i.e. the prosecutrix was born on 9.8.1987 and the youngest amongst her children was born on 7.11.1988. Now except for this oral testimony, she has not placed anything on record to corroborate this fact. Father of the prosecutrix (PW-3) is a teacher by profession and is posted at Govt. High School, Badoli, Distt. Una. No doubt on the question of age he has corroborated the version of his wife but even he has not produced any other material to substantiate this fact. 10. Unfortunately the only other evidence on record to prove the age of the prosecutrix is the statement of PW-9 who has proved certificate of age Ext.PW-9/A. PW-9 is Sh. Parkash Chand, Secretary of Gram Panchayat, Dhaneta. Ext.PW-9/A is the certificate issued by the Gram Panchayat, Dhaneta on 23.7.2001 to the following effect: “Certificate Certified that as per census of 1991, the age of Kumari Rajni d/o Sh. Satish Kumar, Caste Brahaman, Village Baag Sheetla, Post Office Dhaneta, Tehsil Nadaun, Distt. Hamirpur was recorded as 3 years in the Parivar Register at Sl. No.9, Page No.14, Part-I.” 6 Sd/- Gram Panchayat -cum- Development Officer, Dhaneta,Distt. Hamirpur (H.P)” 11. Unfortunately while proving Ext.PW-9/A, PW-9 clearly admits that ”the record pertaining to date of birth is estimated because no proof of age is taken by Panchayat at the time of recording the age”. No proof of date of birth was taken by the Panchayat before effecting entries in the Parivar register. Who and on what basis these entries were got effected has also not been proved on record. Also PW-1 & PW-3 have not deposed that certificate (Ext.PW-9/A) was issued on the basis of the entries got recorded by them in the family register. Family register is not a statutory register required to be maintained under the provisions of the Registration of Births and Deaths Act, 1969. Prosecution ought to have proved that the register required to be maintained under the said Act was either not maintained or that the entries in the Parivar register were got recorded by or through them in accordance with law. Further prosecution has also not placed any documentary material to establish the age of the other two children of PW-1 & PW-3. This only could have thrown some light with regard to approximate date of birth/tentative age of the prosecutrix. 12. In order to prove the exact date of birth of the prosecutrix, prosecution ought to have placed material on record to show that name of the prosecutrix 7 was entered either in the register maintained under the Registration Act or the Pariwar register maintained by the Panchayat in which entry was made on the basis of some authentic source/record. 13. In almost similar circumstances, this Court in State of H.P. v. Narender Kumar alias Hira and others, 2010 Cri.L.J. 3545, has held as under:- “9. The other evidence on this issue itself is the Family Register (Ext. PW-8/A) maintained by the Gram Panchayat Officer, Nayaye Panchayat Kendra, Titota, U.P., which records the date of birth of the prosecutrix to be 3.3.1977. The same has been proved by Sh. Ram Dutt Sharma (PW-8), Gram Panchayat Adhikari, Gram Panchayat Titota, Tehsil Anup Shahar, Distt. Bulland Shahar, U.P. The document as prepared and maintained raises doubt about its genuineness. The Pariwar Register is not shown to be maintained under any statute. It does not bear the signature of either the Pradhan or any other officer of the Panchayat. Even according to PW-8 the register is neither printed in a government press nor issued by any panchayat officer and is easily available in the open market. In fact the same was purchased and prepared by him in June, 1992 i.e. after the date of the alleged incident. He also did not verify the entries made in the register though previous registers were available with him. The prosecution has chosen neither to produce nor prove the entries made in the said registers. This witness has admitted to be in touch with PW-4. He admitted to have deleted the names of two persons entered as family members of PW-4. This he did even though they had died in the year 1987 and 1969. If the register was prepared in June,1992 8 then obviously the names of the persons having died prior thereto could not have been entered into therein. The manner of preparation of the Pariwar Register raises doubt about its authenticity and genuineness. Importantly the Pariwar Register does not disclose the name of the person who had disclosed the information on the basis of which the said entry of date of birth of the prosecutrix was made there. PW-8 was not in service at the time of making the entry in the earlier registers and the Pariwar Register is also not shown to be maintained under any statute. It is also not the case of PW-4 that he had got the particulars entered in the Pariwar Register at the time of the birth of the prosecutrix. In fact it is not the case of the prosecution that the prosecutrix was not born in Kasauli and was in fact born at the native place of her parents in the State of Uttar Pradesh. In any event Pariwar Registers cannot be held to be of conclusive and binding evidentiary value. 14. The Apex Court in Birad Mal Singhvi v. Anand Purohit, (1988) Supp. 1 SCC 604 has held as under: "To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in 9 a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded." (emphasis supplied) 15. The same has been reiterated in Ravinder Singh Gorkhi vs. State of U.P , (2006) 5 SCC 584 and Ram Suresh Singh vs. Prabhat Singh (2009) 6 SCC 681.” 16. Consequently certificate (Ext.PW-9/A) cannot be accepted to be legal evidence proving the factum of date of birth of the prosecutrix. 17. Hence it cannot be said that prosecution has been able to prove that prosecutrix was either of 14 years of age or for that matter she was below 16/18 years of age. 18. The incident allegedly took place on 7.4.2001 and F.I.R. was registered on 21.7.2001. Admittedly as per the sequence of events narrated by the prosecution witnesses, PW-1 & PW-3 not only informed the parents of the accused about the alleged incident (on 7.4.2001; 9.4.2001) but also reported the matter to the Panchayat on 30.5.2001 when compromise was effected. As such, undoubtedly there is delay in lodging the FIR. Delay is of more than 3½ months. Explanation furnished by the parents of the prosecutrix for not promptly reporting the matter to the police was fear of loosing honour of the family. However, to our mind, this explanation is unconvincing. We find that there are improbabilities, improvements and certain missing gaps in the statements 10 of the parents. They do not inspire confidence. We also find that these witnesses have not been truthful in deposing the events leading to the registration of the FIR. 19. Also compromise (Ext.PW-4/A) records the fact that two families i.e. complainant and the family of the accused had been abusing and quarrelling with each other. Though it is denied by both PW-1 & PW-3, but accused has placed on record material to show that some altercation took place between the two families and the family members of the accused received injuries. However without taking note of the evidence placed on record by the accused, we have independently come to the conclusion that the delay in the instant case has not been explained satisfactorily. 20. According to PW-1, on 7.4.2001 itself she reported the matter to the mother of the accused who asked her not to make the incident public. She was assured that the matter would be looked into upon the return of the accused. On 9.4.2001 when PW-3 came home she narrated the incident to him, who in turn, took-up the matter with the father of the accused, who also furnished the very same explanation. According to PW-1, accused returned on 28.5.2001. What steps were taken by the parents to trace the accused is not on record. Also why did they not report the matter to the Panchayat or Biradari. Also did they follow up the matter with the parents of the accused in between is not disclosed. 11 Further PW-1 does not explain as to why did she immediately not take up the matter with the parents of the accused and waited for her husband to come back on 30.5.2001. It is not the case of PW-1 or PW-2 that even on 30.5.2001 parents of the accused refused to intervene and then only the matter was brought to the notice of the Panchayat. 21. Further PW-3 is a teacher. It is unbelievable that having learnt about the alleged crime, he would have waited for the accused to return home. He furnishes an explanation that there was pressure from the villagers and that the honour of the family was at stake. Now no such villager(s) has been examined in Court to corroborate such version. With regard to the question of saving honour of the family, there is no reference of the same in the compromise (Ext.PW-4/A). In fact this document negates such plea. Copy thereof was agreed to be placed on the records of the Panchayat and also the police. In fact parties to the same had admitted not to abuse and quarrel with each other in future. Compromise bears signature of PW-3. Hence plea of saving honour of the family is not acceptable. 22. Even though PW-1 has denied the fact that on 18th/19th July, 2001, she gave beatings to the mother of the accused and his sister and has also denied the suggestion that it was for this reason that FIR was got registered on 21.7.2001, but however PW-9, in cross- examination admits that accused and his brother 12 remained Incharge of the temple in relation to which there was some dispute between the two families. Also PW-3 does not deny the fact that the complaint was lodged by the father of the accused on account of the beatings given by his family members to the brother and sister of the accused on 18th/19th July, 2001. Hence the defence set up by the accused that the instant complaint was filed on 21.7.2001 appears to be probable. 23. Significantly PW-1 admits that even though prosecutrix used to be at home in the company of mother of PW-3. However her absence from the spot at the time of occurrence of the incident is sought to be explained by stating that at that time she had in fact gone to the house of the accused. Now grand mother has not been examined in Court. She would have thrown some light with regard to the events which transpired at the spot and thereafter. It is unbelievable that a person whose daughter is raped, would wait for the accused to return home, enter into compromise and that too not benefiting the victim in any respect. Compromise is definitely not to her advantage. Accused did not agree to marry her. It is also difficult to believe that a teacher and that too a government employee would not report the matter of a heinous crime committed upon his infirm and minor daughter at the very first instance. Apparently PW-3 left his home for work even after the occurrence of the incident. This conduct of the father 13 is unnatural and unbelievable. Father admits that it was only after he noticed the accused present near his house on 20.7.2011 that he reported the matter to the police. It has come through the testimonies of the prosecution witnesses (PW-5 & PW-6) that the accused has land adjoining to the house of the complainant. Thus, there was nothing unusual for the accused to be present near the house of the complainant. Why did the parents not inform the police after the compromise is also not explained. Also what steps were taken to trace the accused between 7th/9th April,2001 upto 28th May, 2001 has not been disclosed. Even the Panchayat did not report the matter to the police. They were duty bound to do so. This, to our mind, in the given facts, prosecution has not been able to explain the delay in lodging the report with the police. 24. Even with regard to the actual incident, we find the prosecution version not to be convincing. 25. Ext.PW-16/A reveals that there is overwriting on the document. Words “admitted one finger” have been changed to “admitted two fingers”. Word “one” has been cut out and word “two” has been written over it. Dr. Dinesh Thakur (PW-16) admits this fact. His opinion that the possibility of rape cannot be ruled out is based only on the fact that two fingers could be admitted in the vagina. Report of the Scientific Laboratory does not link the accused to the crime. No marks of violence were found on the body of the 14 prosecutrix. Perhaps it was also not to be found for the simple reason that prosecutrix was examined after a period of 3½ months but then PW-1 admits that she did not get the prosecutrix medically examined immediately after the incident. At least this could have been got done. There is no explanation for not having the same done. Mother had found blood on the private parts of the prosecutrix. She also washed her clothes. Further testimony of PW-1 to the effect that she had seen blood and urine on the private parts of the prosecutrix does not find mention in her previous statement (Ext.PW-1/A) recorded by the police with which she was confronted with. It appears that she has made significant improvements. She was also separately confronted with the same. She admits that her version in Court to the effect that prosecutrix was lying on the floor; that after seeing her the accused had pulled the zip of his pant; that she saw blood and urine on the private parts of the prosecutrix; that she had disclosed to the police that she had washed and changed the clothes of the prosecutrix, not to be mentioned there. It does not sound to logic that any parent would leave an infirm and bed ridden child, having no control over her senses without any attendant. Brother, sister and grand mother of the prosecutrix have not been examined in Court. Their examination was necessary to unfurl events in a true manner. It is also not the 15 case of the prosecutrix that accused was otherwise on visiting terms with the complainant. 26. PW-3 states that he made an oral complaint with the Pradhan who deputed S/Sh. Raj Kumar and Jaswant Singh to look into the matter. At the relevant time Pradhan was Sh. Kamal Nanda. Now he has not been examined in court. According to PW-3, he compromised the matter at the instance of Panches and other villagers who had gathered, since honour of his daughter and family was involved. However, this version of his does not inspire confidence. His version is also not corroborated. Who were these other villagers who pressurized, has neither been examined nor particulars thereof disclosed in court. 27. There is yet another mitigating circumstance in favour of the accused which has come on record. 28. Ext.PW-4/A is the alleged admission dated 30.8.2001 made by the accused. He admits having done some ‘Harkat’ (misbehave) and ‘Jaghanya’, (which according to PW-8 was meant to be rape) with the prosecutrix on 7.4.2001. In the presence of members of the Panchayat and residents of the village, he apologized for the same and agreed not to abuse or repeat the incident in future. On the reverse of this document there is yet another compromise recorded by the Pradhan, Gram Panchayat, Dhaneta, signed by PW-3 and Jagdish Ram father of the accused whereby both the parties agreed not to abuse or assault each other in 16 future and both promised to maintain peace in the Panchayat. The fact that such compromise was arrived at is evident from the statement of PW-3 itself. 29. Further even though PW-3 & PW-4 have denied but however Ward Members Bishamwar Dutt (PW-5) and Jaswant Singh (PW-6) have admitted that before the accused admitted his guilt by signing Ext.PW-4/A, he was beaten up by his father as also PW-3. Even PW-8 had caught hold of the accused and inquired from him as to why he had committed the crime. In fact PW-5, in his uncorroborated and unrebutted testimony, has deposed that initially accused was not prepared to compromise but later on when he was beaten up by his father and his mother asked him to do so, accused compromised the matter. He also states that the accused was not aware of the consequences of the compromise. Now this totally shatters the prosecution case of the accused having voluntarily admitted his guilt of having committed an offence of rape upon the prosecutrix. 30. Undisputedly compromise was reduced into writing by Sh.Vipan Kumar (PW-8), nephew of PW-3. Even though PW-8 denies having given any beatings to the accused but this version of his stands belied by the other panch witnesses present at the spot. Significantly he also does not know where signatures of PW-3 were appended on the compromise deed. 31. Significantly one of the Panches i.e. Jaswant Singh (PW-6) has not supported the prosecution. He was 17 declared hostile. He was cross-examined by the Public Prosecutor, yet nothing fruitful would come out from the testimony in support of the prosecution.