1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 327 of 1999 Reserved on: 14th June, 2010 Date of Decision: 20th August, 2010 State of Himachal Pradesh Appellant Versus Jayoti Parkash and another Respondents Coram The Hon’ble Mr. Justice Deepak Gupta,J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr.Vivek Thakur, Addl. Advocate General. For the respondents: Mr.B.K.Malhotra, Advocate. Sanjay Karol, J. For an offence, which is alleged to have been committed on the intervening night of 27th and 28th July, 1995, accused were put to trial. In terms of judgment dated 28th April, 1999 passed by learned Additional Sessions Judge, Mandi, H.P., in Sessions trial No.12 of 1997 titled as State of H.P. vs. Jayoti Parkash and another, accused stand acquitted of the charged offence. 2. It is the case of the prosecution that prosecutrix (PW-1) was residing with her parents at Village Maigal, Whether the reporters of Local Papers are allowed to see the Judgment? 2 District Mandi. On 27.7.1995, her father Shri Chaudhari Ram (PW-2) and her mother returned home after working at the orchard of Sansar Chand at Bijni. After preparing meals, at about 7.p.m. PW-1 came out of the house to answer the call of nature. She did not return till late in the evening. PW-2 searched for her but could not find her. Therefore, he lodged a report (Ext.PW-2/A) with Pradhan Hari Singh (PW-3), who advised him to report the matter to the Police at Police Station Sadar, Mandi. On 29.7.1995, PW-2 filed a written complaint (Ext.PW-2/B) with the Superintendent of Police, Mandi, which read as under:- “That the complainant is residing at village Megal, alongwith his wife and childrens (sic) and one of his daughter is Kumari Savita Devi who is of the age of 14 years. 2. That on 27.7.95 the complainant his wife and his daughter Savita Devi worked in the orchard of one Sh.Sansar Chand at Bijani, and then all of us returned to our house in the evening. 3. That at about 8 p.m. the daughter named Kumari Savita Devi went to answer the call of nature outside the house but she did not returned (sic) after that and when she did not return for a long time, the complainant searched her out here and there in the entire village but she was not traced at all and due to the night hours the complainant could not do more search. 3 4. That on the next day the complainant also searched her daughter in the near relations but she was not able to trace her whereabouts, then the complainant was about to come to report the matter to the police but in the meantime the father of accused Jayoti namely Sh. Sher Singh came to the house of complainant with some persons and told him that his daughter is taken away by his son Sh.Jayoti and she is in his house and he requested the complainant not to report the matter to the police and get her married with his son Sh.Jayoti, on this the complainant told him that his daughter is minor of the age of 14 years and is not capable of marriage, also having his children and wife so there is no question of marrying Kumari Savitra with Jayoti and he stateway (sic) refused their proposal and requested them to return his daughter to his house. On this they all have left the house of the complainant. 5. That as the accused and his family members are farly related to the complainant and the complainant also do not want to expose the matter so he did not reported (sic) the matter to the police and waited for the return of his daughter but they have not send (sic) her back uptill now. Hence this complaint. 6. That Kumari Savitra is minor of the aged of 14 years and the accused have abducted her from the lawful custody of the complainant without his consent and permission with an intention to compell (sic) her for marrying with him, as such he committed an offence under Sections 363, 366 4 of I.P.C. and the complainant is also suspecting that the accused might have raped his daughter. It is therefore requested a case may be registered against the accused, for which the applicant shall every pray.” (Emphasis supplied) 3. On the basis of the said complaint, FIR (Ext.PW- 12/A) was registered with Police Station, Mandi, on 29.7.1995 at about 4.30 p.m. Noticeably complaint was lodged only against accused Jayoti Parkash and FIR was registered under Sections 363, 366, IPC. Investigation was carried out by Ajeet Singh (PW-13). PW-1 was recovered from the house of the accused Jayoti Parkash handed over to PW-2 vide memo Ext.PW-2/C). During investigation, statements of the witnesses were recorded. The prosecutrix was got medically examined through Dr. Jaya Vaidya (PW-6), who gave her medical opinion vide MLC (Ext.PW-6/A). Accused No.1 was also got medically examined through Dr.Hemant Kumar (PW- 7). Medical opinion (Ext.PW-7/A) was taken on record. 4. In order to prove the age of the prosecutrix investigating agency took into possession certificate (Ext.PW- 5/A) issued by Head Teacher, Govt. Primary School, Nari Maigal, District Mandi. Prosecutrix was admitted to the school on 8.4.1993. Her date of birth was recorded as 27.6.1981. Certificate (Ext.PW-8/A) issued by Shri Inder Dev Paytal, 5 Secretary Gram Panchayat, Tandu, from the Pariwar register was also taken into possession by the Investigating Agency. Pariwar register was produced and photocopy of a page (Ext.DX) showing her date of birth to be 27.6.1981 was also taken on record. Investigation revealed that prosecutrix had been raped by accused No.1 and accused No.2 had induced the prosecutrix to leave her home with an intent of seducing her to have intercourse with accused No.1. 5. With the completion of the other necessary investigation, challan was presented in the Court for trial. Accused No.1 was charged for having committed an offence punishable under Sections 363, 366 and 376, IPC. Accused No.2 was charged for having committed an offence punishable under Section 366-A IPC, to which they did not plead guilty and claimed trial. 6. In order to prove its case, prosecution examined 13 witnesses and the statements of accused under Section 313, Cr.P.C. were also recorded. Learned Additional Sessions Judge acquitted the accused of the charged offence for the simple reason that prosecution had failed to prove, by leading clear, cogent and reliable material the exact age of the prosecutrix. On merits, it was found that prosecutrix had left her house voluntarily. The charge of rape was not proved at all. 6 7. We have heard learned counsel for the parties and also perused the record. 8. Now with regard to the age of the prosecutrix, her mother has not been examined in the Court. Prosecutrix has simply deposed that in the year 1995 she was about 14 years of age and was a student of 4th standard in Govt. Primary School, Maigal. She does not give her exact date of birth. Statement of her father (PW-2) is also to the similar effect. It is his version that from his first wife he had four issues and from his second wife two daughters. Prosecutrix is from the second wife. Now he does not state as to when he was married second time. He also does not disclose the difference in age between his daughters from the second marriage. 9. Shri Rama Kant (PW-5), Teacher from Govt. Primary School, Maigal, has simply proved the school leaving certificate (Ext.PW-5/A). As per this certificate, prosecutrix was born on 27.6.1981. He admits not to have produced the original record of admission of the prosecutrix. He does not know who had got her admitted in the school. Now school leaving certificate is dated 3.8.1995 i.e. after the date of occurrence of the incident. In the absence of any supportive material to prove the entries in the school record to be genuine, certificate issued by the school authorities cannot be said to have any probative value. Shri Inder Dev Patyal (PW- 8), Secretary, Gram Panchayat, has proved certificate 7 (Ext.PW-8/A). Now this document also shows prosecutrix to be born on 27.6.1991. It was issued on 20.3.1996. This witness admits Ext.DX to be the photocopy of the original Pariwar register. He further admits that name of prosecutrix has been inserted in between the widow of Kanhaya and Smt. Mohindra. Even the ink used is different. The same seems to have been inserted subsequently. He could not confirm who had carried out the entry in the pariwar register. Noticeably this document does not contain names of other children of PW-1. Further in the column of age and date of birth except for two entries date of birth against the name of the person is not mentioned. This renders the entry made in the pariwar register and consequently certificate (Ext.DX) to be doubtful. The preparation of false record for the purposes of proving the prosecution case cannot be ruled out. The register does not appear to have been prepared in the normal course of business. 10. Importantly, as per version of Dr.Jaya Vaidya (PW-6) for verification of the age of the prosecutrix she had filled up x-ray form and handed over the same to a Constable. She had asked the Constable to bring the prosecutrix to the hospital for Radiological examination. She herself was the Radiologist in the hospital. However, prosecutrix did not come for examination. Now why this opinion of an expert was not heeded to has not been 8 explained. In fact this examination in all likelihood would have determined her age. The said x-ray form has also not been placed on record. Whether examination was got carried out somewhere else or not has also not come on record. All this only shows that prosecution had failed to prove the exact age of the prosecutrix. 11. Admittedly, parties new each other. In fact they are related. Version of PW-1, to say the least, does not inspire confidence. In her statement she no where states that the accused had intimidated or threatened her to accompany him to his house. Her statement that the accused had promised to give her number of presents is extremely vague and unspecific. She admits that between her house and the house of accused persons there are also many houses. Yet she admits not to have raised any hue and cry. According to her, the accused persons were not known to her. In fact she had met accused No.1 for the first time on the date of occurrence of alleged crime. This version of hers stands contradicted by the contents of complaint (Ext.PW-2/B) as also her subsequent version wherein she admits to have known accused Sarla Devi. Even prior to 26.7.1997 she had been visiting the house of parents of accused Sarla Devi. She admits accused No.2 to be related to her as sister on account of village brother-hood. She admits occasionally to have resided with her relatives. She admits that from the very 9 beginning she had been living with different relatives which often offended her parents. Further she admits not to have complained against accused to any one. 12. In the instant case, the victim had attained the age of discretion and willfully left her father’s house voluntarily accompanying the accused. She did not disclose the factum of the accused having promised to offer presents to any one. There is nothing on record to show that there was any overt act on the part of the accused of either inducing or by deceitful means taking away the prosecutrix out of the lawful custody of her guardian. 13. The Apex Court in S.Varadarajan v. State of Madras, AIR 1965 SC 942, has held as under:- “It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S. 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her 10 away from the keeping her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active partcipation by him in the formation of the intention of the minor to leave the house of the guardian.” 14. Father of accused No.1 had visited the house of PW-3 and informed him that prosecutrix was at his house. As per the complaint, father of accused Jayoti Parkash had refused to hand over the prosecutrix back to her father. Now, importantly this witness does not even whisper that prosecutrix had been illegally detained, abducted, kidnapped or enticed by the accused persons. No complaint was made against the father of accused No.1. 15. Further FIR was registered on 29.7.1995 itself and prosecutrix was recovered on 31.7.1995. What transpired between this period has not been explained on record. Version of PW-2 to the effect that he had reported the matter to Hari Singh (PW-3) and lodged complaint (Ext.PW-2/A) stands contradicted by Hari Singh. According to him, it was Smt. Prem Latta wife of PW-2 who had approached him. He does not name PW-2 at all. PW-3 clarifies that Sher Singh, father of accused No.1 had informed him and also Smt. Prem Latta that prosecutrix had reached his house. Admittedly after filing of complaint (Ext.PW-2/A), 11 complainant did not make any grievance about the alleged detention, threats, intimidation or inducement with the Pradhan. 16. Most importantly, Jhabey Ram (PW-4) who is the son-in-law of PW-1 states as under:- “I am son in law of PW-2 Chaudhari Ram. PW-1 Savitri Devi had not complained against her having been kidnapped/abducted or raped by anyone on 31.7.1995. PW-1 Savitri Devi had informed the police that she had visited the house of the accused persons on account of relationship. Earlier as well PW-1 had been leaving for the house of her relatives.” This witness has not been cross-examined by the Public Prosecutor. Hence, he totally demolishes the prosecution case. In this background version of the prosecutrix that she has been visiting houses of the relatives, to the annoyance of her parents, acquires significance. 17. With regard to charge of rape again the version of prosecutrix does not inspire confidence. She states that after taking food both the accused persons and their daughter slept in the kitchen. She was also made to sleep in separate beds in the kitchen itself. In the night intervening 27.7.1995 and 28.7.1995 at about 11 p.m. accused Jayoti Parkash left his bed and came to her. After molesting her he forcibly untied the string of her Salwar and then committed rape. She 12 pleaded accused No.2 to save her, but, however, nothing was done. Her version is highly improbable and unbelievable. Accused No.2 is the wife of accused No.1. In the morning at about 4 a.m. her menstruation cycle started and accused Sarla Devi provided her with new clothes. She remained in the house of the accused for three days. For the remaining two days, she slept with Padma, (sister of Jayoti Parkash) in another room. Padma has not been examined. Now this witness was confronted with her earlier statement (Ext.DY) wherein allegation of rape does not find mention. This fact stands confirmed by the Investigating Office Ajeet Singh (PW- 13) also. 18. Further this witness admits that other family members of the accused were residing in the adjoining house and in the close vicinity houses belonging to other persons were there. Yet she did not either raise any alarm or make any grievance with anyone. It is not her case that she was under any threat or intimidation from any of the accused persons or other members of the family. Importantly, even PW-2 does not state that his daughter had been raped by accused No.1. That apart, her version is not supported by any medical evidence. We are conscious of the fact that even in the absence of any medical evidence, if the version of the prosecutrix inspires confidence accused can be held guilty for the charged offence, but, however, as has been noticed 13 earlier, the version of the prosecutrix does not inspire confidence. 19. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Deepak Gupta) Judge. August 20, 2010 (Sanjay Karol) (C) Judge