IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 152/2008 Date of decision: 8.3.2010 Mohammad Janu Deen …..Appellant Versus State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Appellant: Mr. Vinod Gupta, Advocate . For the respondent : Mr. Anshul Bansal, Addl. Advocate General. Surinder Singh (Oral) Appellant, professing Islam, resident of Bihar, aged about 21 years, was convicted under Sections 363, 366 and 376 Indian Penal Code and sentenced to undergo imprisonment under each of the Sections as under:- Sr. No. Offence under Section. Sentence awarded 1. Under Section 376 Indian Penal Code Seven years rigorous imprisonment and fine of Rs. 20,000/-. In default of payment of fine, 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - to further undergo one year simple imprisonment. 2. Under Section 366 Indian Penal Code Five years rigorous imprisonment and fine of Rs. 10,000/- and in default of payment of fine, to undergo simple imprisonment for six months Appellant is in jail, undergoing sentence and this jail appeal has been filed by him through Superintendent Jail and Shri Vinod Gupta, Advocate, Legal Aid Counsel was engaged for him. In short, prosecution story, as it transpires from the statement of the prosecution witnesses, can be stated thus. PW2 Onkar Singh, father of the prosecutrix was an employee of Indian Railways and posted at Jammu. His wife PW1 Indira Devi along with her two sons and a daughter (prosecutrix) was residing in the village Hatwas in Tehsil and District Kangra, H.P. In the year 2006, prosecutrix (17 ½ years) was studying in 10+2 in Government Senior School Nagrota. At that time, appellant Janu Deen @ Sagar was a tenant in one of the room of their cattle- shed which was at a distance of about 1km. - 3 - from their residence. On 13.10.2006 at about 8.45 am prosecutrix had gone to School but she did not turn up thereafter. She was searched in and around but could not be traced. On the same day in the evening PW2 Onkar Singh, father of the prosecutrix came on leave and reached his village. PW1 Indira Devi informed him about missing of their daughter. Next day, i.e, 14.10.2006, they informed the police, a missing report was lodged. The police recorded it in the daily diary Ext. PW2/A. On 17.10.2006, Indira Devi mother of the prosecutrix received a telephonic call from the appellant informing that the prosecutrix was with him at Delhi. She suspected that the appellant had forcibly taken her daughter with him from the School. Thus, on 22.10.2006, she got recorded her statement Ext. PW1/A under Section 154 of the Code of Criminal Procedure and narrated the above facts to the police. On the basis of her statement, formal FIR was registered. Police started investigation of the case. - 4 - During the investigation, they came to know that the appellant had taken the prosecutrix to Delhi and Bihar to his house and thereafter they returned to Delhi. The parents of the appellant told him to take her back and hand over to her parents. Then they reached Railway Station Delhi. Appellant informed the mother of prosecutrix on phone. Police party accompanied by PW2 Onkar Singh and his brother-in-law Gian Chand (PW5), reached Railway Station Delhi in search of the prosecutrix and found the prosecutrix in the company of the appellant. Appellant was taken into custody and prosecutrix along with her father was brought to Kangra. Statement of the prosecutrix was recorded, she was got medically examined from PW7 Dr. Sumanju Dhiman B.M.O., Gopalpur. She did not find any injury on her body. Prosecutrix was referred to Gynecologist for expert opinion. Her pregnancy test was taken which was found negative. The vaginal swab were also taken and sent for forensic examination. Medico Legal Certificate Ext. PW7/B was issued by the said Doctor. - 5 - Prosecutrix was also referred to ascertain her skeletal age. In the opinion of the Radiologist, she was between 16 ½ to 19 years. The certificate issued by the Secretary of the Panchayat Block Nagrota Bagwan is Ext. PW4/A showing the date of birth of the prosecutrix as 17.4.1989 and a certificate Ext. PW10/A from PW10 Ashok Sharma, Principal of the School were taken into possession. Respondent was medically examined by PW15 Dr. Rajesh Guleria. After completing the investigation of the case, challan was presented in the court for the trial of the appellant. He was charge sheeted for the offences aforesaid and the prosecution examined its witnesses to prove the charges against the appellant. Appellant was examined under Section 313 of the Code of Criminal Procedure. He admitted that he was a tenant in one of the rooms of the cattle- shed of PW2 Onkar Singh at village Hatwas. His defense was that the prosecution was major and in love with him and she voluntarily left the company of her - 6 - parents. He further stated that the prosecutrix knew that he was a Muslim but her mother thought that he was a Hindu but when she came to know about his religion, she turned hostile to him. Thus, a false case was lodged against him. Appellant did not lead any evidence in defense when called upon to do so. At the end of the trial, he was convicted and sentenced as aforesaid. Shri Gupta learned counsel for the appellant vehemently argued that the evidence on record if disseminated dispassionately, no case against the appeal is made out for the reasons that the prosecutrix has been proved to be more than 18 years and also that she was in love and a consenting party. Her statement in the court is not confidence inspiring. Being a Hindu girl and the appellant a Muslim, their relations were not acceptable to her parents. Thus, her statement before the court was a coloured version, as she had remained in the custody of her parents after her return from Delhi. - 7 - Shri A.K. Bansal learned Additional Advocate General supported the impugned judgment of conviction and sentence. I have given my thoughtful consideration to the rival contentions of the parties and reappraised the evidence on record. The arguments of the learned counsel appear to be convincing. Let me examine it in the light of the settled principles of law. In the instant case, the age of the prosecutrix is of a paramount importance. PW3 Rajesh Mehra, Secretary of the Panchayat has issued the certificate Ext. PW4/A wherein he had mentioned the date of birth of the prosecutrix 8.4.1989 purported to be based upon an entry in the birth Register which was not produced. Further, the name of the prosecutrix is wrongly depicted in the said certificate. According to him, the name which finds mention in the certificate was also found written in the Original Record. The said witness had brought the family Register of the - 8 - Panchayat. It also reflects different name of the prosecutrix. Precisely, the primary evidence, on the basis of which the said certificate was issued, did not find the light of the day. Therefore, this certificate looses importance. Further, the prosecution relies upon the certificate issued by the Principal Ext. PW10/A which records her date of birth to be same as mentioned in Ext. PW3/A. The name of the prosecutrix in Ext. PW4/A and Ext. PW10/A are also different, though the parentage is correct. Although PW1 mother Indira Devi stated that she had two sons and one daughter but her testimony cannot be relied by the entries on the record also, in view of the peculiar facts of this case when the name of prosecutrix differ in the record. Further, admission slip and the supporting document about the age of the birth has neither been procured nor proved which could have authenticated the record with respect to the age of the prosecutrix, on the day of the alleged incident. - 9 - Another piece of evidence is the ossification report Ext. PW7/C. Although the Radiologist in this case has not been examined with respect to the epiphysis of bones to prove this certificate but it is sought to be proved by PW7 Dr. Sumanju Dhiman. The report of radiologist based upon the fusion of bones shows the age of the prosecutrix between 16 ½ to 19 years. Otherwise also taking into consideration, the age of the prosecutrix, on the basis of the Panchayat Record, she comes to slightly less than 18 years. In view of the above evidence, regarding age, there is no clinching evidence to hold that prosecutrix was less than the age of discretion. Rather she has been proved above the age of discretion. As already discussed above, prosecutrix was a student of 10+2 standard. Keeping in view the defense raised by the appellant, her statement is required to be scanned carefully. She was examined as PW8 during the trial of this case. She admitted that the appellant was a tenant in one of the rooms of the cattle-shed of her parents located at a - 10 - distance of about 3 km. She used to cut grass from the fields adjoining to the cattle-shed. She stated that she never had any talk with the appellant but on the day of alleged incident when she took the grass to the cattle-shed where the accused came and took her forcibly to his room and committed rape. She also stated that she was threatened not to reveal anything to any one. Thus, out of fear she did not disclose anything to any one. Thereafter, appellant locked the premises, left the place. On 13.10.2006, when she was going to the School, appellant met her on the way near the Railway Station and asked her to accompany him but she refused. She was threatened to be killed thus, she followed his instructions, boarded the bus and reached Delhi. They stayed in a Hotel for a week. Appellant is alleged to have committed rape on her. Thereafter, she was taken to Bihar to his house. There, she was again raped. The parents of the appellant told him to take her back. Then they reached Railway Station Delhi where she was recovered from the custody of the appellant. - 11 - Significantly, when cross-examined some other version came to the fore. She was confronted with her statement Ext.DA recorded by the Police under Section 161 of the Code of Criminal Procedure wherein she had stated that both of them had been meeting each other. The appellant used to reside in one of the rooms as a tenant. The appellant had been in visiting terms in their house in the presence of her parents. He expressed his love to her and requested that she should visit him off and on. When she used to go to cut grass in the cattle-shed, she had been visiting the appellant to ask about his welfare. But lateron, he left the place and locked the premises. He also stated that thereafter, he was in contact with her on telephone and pretended that he was having cloth shop at Delhi, vehicles and has also a house there. He had proposed her for marriage but she refused because he was a Muslim boy and their marriage was not possible. When confronted, these facts were denied by her. Pertinently, Ext. DA statement of the prosecutrix was taken down by the police on 28.10.2006, i.e., - 12 - after about 4 days of her recovery. From the scrutiny of the above statement, it can be safely inferred that the prosecutrix had a tacit consent. She accompanies him of her own accord. She had left the guardianship of her parents of her own free will. She took the Bus from Nagrota Bagwan which is nearer to her village and in case she was taken forcibly against her will by the appellant, she could have raised hue and cry or made complaint to the people present there and even while traveling to Delhi in the bus to the passengers and also at various places, till her recovery. But she did not do that rather obediently followed the appellant. Her statement that she was under fear and threat is absolutely incorrect. Even when she was handed over to her parents and her statement was recorded after four days of her recovery, by the police, she gave altogether different story as deposed by her during the trial of the case. Reason is obvious that she was a Hindu girl and the appellant was a Muslim, hailing from Bihar. Both were in love. Appellant was - 13 - alone in the village of the prosecutrix whereas she had many relations and friends to whom she could have complained but she did not say anything either to her parents or to her friends, rather the appellant informed the mother of the prosecutrix that the prosecutrix was with him at Delhi and it was on his information that the police was able to recover the prosecutrix from the company of the appellant. Against the aforesaid background, the prosecutrix is proved to be more than 18 years at the time of alleged incident. There is no active participation of the appellant proved in the prosecutrix leaving her guardian’s house. The circumstances show that she left the house of her parents of her own free will without any threat, inducement, promise or undue pressure. She was a consenting party. Therefore, for the foregoing reasons, the appeal is allowed and the conviction and sentence passed by the learned trial Court is hereby set aside and the appellant stands acquitted. - 14 - Appellant is serving out the sentence in the jail. He be released forthwith, if not required in any other case. Registry to take up follow up action. Send down the record. March 8, 2010 (Surinder Singh),J (cm)