IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.74 of 2004. Date of decision: 30.6.2010 Rakesh Kumar & anr. ..Appellants Versus State of H.P ..Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? Yes For the appellant: Sh.B.C.Negi, Advocate. For the respondent: Sh.Rajesh Mandhotra, Deputy Advocate General. _____________________________________________________ Deepak Gupta, J, (Oral). This appeal by the accused is directed against the judgment dated 1.3.2004 passed by the learned Sessions Judge, Kullu in Sessions Trial No.37-03 whereby he convicted the accused No.1 of having committed offences punishable under Sections 363, 366-A and 376 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,000/- for the offence under Section 363, 2 IPC. In default of payment of fine, he was directed to undergo further simple imprisonment for a period of three months. For the offence under Section 366-A, IPC, the accused No.1 was sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.1,000/- and in default of payment of fine, he was directed to undergo simple imprisonment for a period of three months. He was also directed to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.3000/- for the offence punishable under Section 376, IPC and in default of payment of fine, he was directed to undergo further simple imprisonment for a period of six months. The second accused, Rajiv Gupta was convicted of having committed an offence punishable under Section 212, IPC and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.500/- and in default of payment of fine, he was directed to undergo simple imprisonment for a period of three months. 2. The prosecution story, in brief, is that the prosecutrix who was a minor girl aged about 15-½ years 3 at the time when the incident took place was kidnapped by the accused and taken out from the lawful guardianship of her parents and thereafter raped by accused No.1. Further the case of the prosecution is that the accused No.1 alongwith the prosecutrix was harboured by the accused No.2 in his house and therefore, he was guilty of having committed an offence punishable under Section 212, IPC. 3. The prosecutrix appeared as PW/12 in Court. From her statement itself, it is apparent that she was infatuated, in fact, in love with the accused No.1. This is apparent from the fact she admitted that she wrote letters Exts.DA and DB to the accused No.1. In these letters, the prosecutrix expressed her love for the accused and also stated that she cannot live even for a day without his company. Ext.DE is a photograph of the prosecutrix which she admitted that she had handed over it to the accused. Therefore, it is obvious that the accused No.1 and the prosecutrix were close to each other and were friends. 4 4. According to the prosecutrix, on 1.5.2002 when she was going to Parvati College at Bhuntar, accused Rakesh Kumar met her near Shamshi and asked her to accompany him to a distant place. He did not use any force nor did he threaten her. He also did not hold out any false promise to her but she, of her own free will, accompanied him from Bhuntar to Mandi and then from Mandi to Delhi. Thereafter, the accused No.1 told her that he wants to marry her. According to her, next morning, i,e. on 2.5.2002 they reached Delhi from Mandi. She rang up her mother at Bhuntar from Delhi and told her about the entire incident. She also asked the accused No.1 that she wanted to return to her home. Thereafter, the accused brought her from Delhi to Baijnath where they stayed in the house of accused No.2 till 6.5.2002. According to the prosecutrix, accused No.1 raped her in the house of accused No.2. She was specifically questioned as to what she meant by rape and it was only in cross-examination that she stated that she resisted the advances of the accused but she also stated that she did not raise any alarm. She also admitted that she did not 5 complain to accused No.2 or to any other family member about the action of accused No.1. 5. In the original complaint, Ext.PW5/A lodged by the father of the prosecutrix on 3.5.2002, it was averred that on 1.5.2002 at about 9.p.m. his wife rang him up at his office at Chamba to inform him that their daughter had not returned from school. He then immediately came to Kullu and was informed that on 30.4.2002, two girls from the neighbourhood namely Chetna and Urmil had come to the house of the prosecutrix and talked to her for a long time. Next day the prosecutrix did not return from school. According to him, he had come to know that one boy used to tease his daughter. He enquired about this fact from his daughter who confirmed this fact but she stated that because she was ashamed, she had not mentioned this fact to him earlier. This boy was identified as the accused No.1 and, therefore, the father of the prosecutrix expressed his apprehension that his daughter may have been kidnapped by the accused No.1 with an ulterior motive. 6 6. While appearing as PW/7 in Court, the father of the prosecutirx did not say anything about the other two girls who resided in his neighbourhood who had allegedly met his daughter. These two girls have not been associated with the case. No explanation has been given for their non-examination. In Court, PW/7 stated that his daughter had willingly gone with the accused. This witness was declared hostile and was cross-examined by the prosecution. He again repeated that he later came to know that his daughter had willingly gone with the accused. 7. PW/8 Smt.Suman Bhardwaj is the mother of the prosecutrix. Her version is similar to that of PW/7. However, she made a significant statement. According to her, her daughter had been missing for six days and it was the parents of the accused No.1 who brought her daughter back to her house at Bhuntar. This is totally different from the version of the prosecution that the prosecutrix was recovered from the house of the accused No.2. There is another important contradiction between the statements of these three witnesses. According to the 7 prosecutrix, she telephoned her mother on 2.5.2002 that she was in Delhi. If this be true, why was this fact not stated by the father while lodging the report, Ext.PW5/A on 3.5.2002. Even the mother is totally silent in this regard. 8. From the evidence on record, it is more than apparent that the prosecutrix had accompanied the accused No.1 of her own free will. The prosecutrix was examined by PW/11, Dr.Neena Lal. According to her, the prosecutrix was subjected to coitus. Even if this is taken to be correct, there is nothing on record to prove that the sex, if any, was not consensual in nature. No doubt, the law is well settled that the conviction in the case of rape can be made only on the basis of the sole testimony of the prosecutrix and her testimony does not require corroboration in each and every case but this can be done only when the statement of the prosecutrix inspires confidence. If the statement is full of holes and untruths then obviously, no reliance on such a statement can be made. 9. We are dealing here with a case where even as per the prosecutrix, she had extremely friendly relations 8 and was in love with the accused prior to the incident in question. She willingly accompanied him from Bhuntar to Mandi, Mandi to Delhi and from Delhi to Baijnath. She did not raise any alarm nor complain to any person about the fact that she was kidnapped or raped. She had not even stated a word that she was threatened by the accused or by any other person and, therefore, she could not raise an alarm. It is, therefore, apparent that the act of sex was consensual in nature. 10. This brings us to the most important issue in the case, what is the age of the prosecutrix? If she was below 16 years then whether there was consent or not the accused would be guilty. As far as medical evidence is concerned, as per Certificate Ext.PW11/A, the age of the prosecutrix has been opined to be between 15-16 years on radiological basis. In fact, this report, Ext.PW11/A has not been proved strictly in accordance with law. This report was given by Dr.Yash Pal Sharma but has been proved by Dr.Neena Lal who had only examined the prosecutrix for gynaecological purposes. No doubt, Dr.Neena Lal has identified the signature and handwriting 9 of Dr.Yash Pal Sharma. This would only prove that the document was signed by Dr.Yash Pal Sharma but the contents of the report cannot be proved in this manner. The expert has to be examined in Court and he has further to be subjected to cross examination. In cross- examination, he could be asked on what basis, he had made the report. Just by proving the signature of the expert, the contents of the report have not been legally proved. It was for the prosecution to explain why they could not examine Dr.Yash Pal Sharma. If evidence had been led that either he is no longer in the land of living or that it is not possible for any reason to examine him then probably the report could have been read in evidence even without examining him but if such an effort is not made, the contents of the report cannot be read in evidence as has been done in the present case. 11. Similarly, the learned Trial Court gravely erred in relying upon the Certificate Ext.P/3 to hold that the prosecutrix was born on 10.5.1985. This certificate is a character certificate issued by the principal of the Government Senior Secondary School, Bhuntar. Neither 10 the principal of the said school has been examined nor the original register on the basis of which the certificate was issued has been produced in evidence. 12. PW/10 Suresh Kumar is a Clerk of the Government Senior Secondary School, Bhuntar who stated that he had prepared the certificate Ext.P/3 on the basis of the record of the school. However, no record of the school was produced before the Court. The certificate becomes virtually meaningless without production of the original register in which the original entry of the date of birth was made. The certificate could not have been relied upon by the learned Court below. 13. Coming to the oral evidence with regard to the age of the prosecutrix. According to the prosecutrix and her mother, she was born on 10.5.1985. However, the father of the prosecutrix initially stated in examination-in- chief that the prosecutrix was born on 15.5.1984. He after being declared hostile corrected himself and stated that the prosecutrix was born on 10.5.1985. We are dealing here with the date of birth of a girl who has studied throughout in school and whose father is an educated 11 person employed as a Clerk. It can be reasonably presumed that an entry regarding the date of birth of the prosecutrix must have been made in the register of Births and Deaths maintained by the concerned Municipality or by the Panchayat. No effort has been made to produce such record. Similarly, no effort has been made to produce the original record from the school. Therefore, it would not be unreasonable to draw an adverse inference against the prosecution that such record if produced would not have supported the prosecution. 14. For the foregoing reasons, I am of the considered opinion that the prosecution has miserably failed to prove the age of the prosecutrix. The benefit thereof obviously has to go to the accused. I am constrained to observe that the manner in which the learned Sessions Judge dealt with the case shows total non-application of mind on his behalf. Not only were the documents exhibited in a cursory manner but the manner in which the accused No.1 was punished under Section 336-A shows that the learned Trial Court did not even go 12 through the bare provisions of the said section. Section 366-A of the IPC reads as follows:- “366-A.Procuration of minor girl.-Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.” 15. This section deals with persons who procure a minor girl and make her available for sex by other persons. It has no relation with a case like the present one where even if the prosecution story is to be believed, the accused had kidnapped a minor girl and raped her. No offence under Section 366-A was made out against the accused since there was no allegation that the accused had kidnapped the presecutrix with intent to force her or seduce her to have illicit sexual relations with some other person. In this behalf reference may be made to the judgement of a learned Single Judge of this Court in Cr.Appeal No.675 of 2000 titled as Ashok Kumar Vs, State 13 of H.P, Latest HLJ 2001 (HP) 569 wherein it was held as follows:- “7. A bare reading of the above provision makes it clear that to constitute an offence punishable thereunder, the following three ingredients must be satisfied; (i) that the accused induced a girl below 18 years of age, (ii) that such girl was induced to go from one place to another place from lawful custody and (iii) that such girl was induced with intent that it was likely that she would be forced or seduced to illicit intercourse with another person. 8 It is evident from ingredient No.(iii) supra that the inducement of the minor girl must be with the intention that it was thereby likely that she would be forced to illicit intercourse with a person other than the person who kidnaps her.” 16. As far as accused No.1 is concerned, since the age of the prosecutrix has not been proved and it has come on record that the prosecutrix had willingly gone with the accused No.1, no offence under Section 363, 366-A and 376 are made out against him. 17. As far as accused No.2 is concerned there is no evidence against him. Even if the prosecution story is taken as the gospel truth, all that is proved, is that the accused alongwith the prosecutrix stayed in the house of 14 the accused No.2. Admittedly, the prosecutrix raised no alarm nor did she complain to accused No.2 that she had been kidnapped or raped. She had willingly gone with the accused to his house. He had no reason to enquire about her age. He had no ground to suspect that she had been kidnapped. Therefore, no case of harbouring a criminal as envisaged under Section 212, IPC was made out against him. His conviction has also been recorded in a very cursory manner without referring to any evidence whatsoever. 11. In view of the above discussion, the appeal is allowed. The learned Trial Court was not justified in convicting the accused. The judgment of conviction and sentence passed by the learned Trial Court is accordingly set aside. Bail bonds, if any, furnished by the accused are ordered to be discharged. Fine, if any, deposited shall be refunded to the accused in accordance with law. Case property be disposed of in terms of the orders of the learned Trial Court. 30th June, 2010 ( Deepak Gupta ) (m) Judge 15