IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 84 of 1999. Decided on: 24.05.2010. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Ram Kumar. …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1No. __________________________________________________________ For the appellant : Mr. Vivek Singh Thakur, Additional Advocate General. For the respondent : Mr. Vinay Thakur, Advocate. ---------------------------------------------------------------------------------------- Deepak Gupta, Judge(Oral) : This appeal by the State is directed against the judgment dated 18.09.1998, delivered by the learned Sessions Judge, Kinnaur, Session Division at Rampur Bushahr in Sessions Trial No. 28 of 1996, whereby the accused has been acquitted of having committed offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. 2. The prosecution case, in brief, is that on 20th July, 1995, PW-4 Shri Bhajan Lal, father of the prosecutrix filed a complaint Ex.-PD with the S.H.O., Police Station, Bhabanagar, District Kinnaur. In this complaint, it was alleged that his daughter (prosecutrix) was studying in 8th Class in the school at 1 Whether the reporters of the local papers may be allowed to see the judgment?.Yes. Miru village. On 17th July, 1995, she did not return from the school. The complainant thought that she might have gone to visit the house her relatives. On 19th July, 1995, the complainant came to know that in fact his daughter had been enticed away by the accused and one Sukh Ram, resident of village Miru. One brother of the accused was posted at Hisar and the complainant came to know that his daughter had been taken to Hisar by these boys. It was, therefore, prayed that action be taken against them. 3. On the basis of this complaint, F.I.R. Ex.-PE was recorded at the Police Station on 20th July, 1995. The prosecutrix was recovered on 27th July, 1995 from the ‘Dogri’ of father of accused Ram Kumar. Thereafter, she was handed over to her parents. She was examined by Dr. Raj Kumar Sharma (PW-1), who found that she was used to sexual intercourse. He did not find any evidence of injuries on the prosecutrix. He also examined the accused and did not find injuries on his person. The prosecutrix was also got examined from PW-2 Dr. Sudha Parkash, who assessed the skeletal age of the prosecutrix to be between 15 and 16 ½ years. She admitted that there can be difference of two years on either side. 4. The learned trial court acquitted the accused holding that this is a clear case of consent and the prosecution has miserably failed to prove that the prosecutrix was below 18 years of age. 5. We have heard Mr. Vivek Singh Thakur, learned Additional Advocate General on behalf of the State and Mr. Vinay Thakur, learned counsel for the accused, and have gone through the entire record of the case. 6. The prosecutrix was examined as PW-3. A perusal of her statement shows that first she stated that nothing was happened with her. Thereafter, she stated that she was forcibly taken away by accused Ram Kumar and then she went with him to Hisar. They came back from Hisar on 25th July, 1995 and on the night intervening 26/27th July, 1995, they stayed at a Dogri in village Kyurmi. There, the accused allegedly raped the prosecutrix. Next day, she was recovered. The learned trial court has noted the demeanor of the prosecutrix and observed that the prosecutrix was smiling while deposing in court as if she was feeling happy. From the evidence of the prosecutrix itself, it is apparent that first the prosecutrix went to the bus-stand at Tapri. Then, she travelled by bus from Tapri to Hisar. On the way, they crossed Police Check Post at Wangtu. She stayed in a military camp at Hisar in the house of Sher Chand, brother of the accused. They returned from Hisar on 25th July, 1995 by bus following the same route. She went in a van to Choling village, where a number of houses and shops are situated and from Choling she walked to the Dogri. She admitted that there are a number of residences around the Dogri. During this entire period of about 10 days, she did not raise an alarm though she had more than one opportunity to raise an alarm. She crossed Police Check Post and Military Check Post. She never raised a hue and cry when she was being kidnapped. Even she stated that in Hisar, she and the accused stayed in different rooms. So, there is no allegation of rape till the incident at Dogri, i.e., one day before she was found. The story of the prosecutrix is difficult to believe. It cannot be believed that for ten days she could have been kept under so much threat that she could not raise an alarm, especially when she was being taken from Kinnaur to Hisar. She was travelling by buses. If she was not a consenting party, she would have raised a hue and cry. Thus, it is more than obvious that she had consented to go with the accused. There are no injuries on her person. She has been found habitual to sexual intercourse. No injuries have been found on the person of accused. Therefore, sexual intercourse, if any, was consensual in nature. 7. That brings us to the most important issue with regard to the age of the prosecutrix. The radiological age has been assessed to be between 15 and 16 ½ years and if margin of two years is given on either side, the age of the prosecutrix could be up to 18 ½ years. 8. The primary evidence of the births and deaths register has been withheld from the court and certificate from such register has not been produced on record. The prosecution has relied upon the Parivar register Ex.-PG. This entry has been proved by Roop Singh (PW-7), Gram Panchayat and Development Officer, Bhabanagar. This witness has candidly admitted that the entry in the Parivar register is approximate in nature and only made for the purpose of issuing ration card etc. The entry in the Parivar register is not the primary evidence and when the witness proving the entry himself admitted that the entry was made on the basis of approximation, no reliance can be placed on the same. 9. Another document relied upon by the prosecution is Ex.-PH, which has been issued by the Gram Panchayat and Development Officer, PW-7 Roop Singh, is also of no use in ascertaining the age of the prosecutrix since this certificate is based on the entry made on the Parivar register, to which we have already adverted above. Similarly, Ex.-PI issued by PW-12 is also on the basis of Parivar register. Therefore, we have three certificates based on the Parivar register, which are all meaning less. 10. The 4th certificate relied upon by the prosecution is Ex.-PL, which has been proved by PW-10 Des Raj. This is a certificate based on the school record and as per the school register, the date of birth of the prosecutrix is 20th February, 1980. This witness in cross-examination has admitted that the admission form is filled in when admission is taken in primary class. He stated that he had not seen the admission form while issuing the certificate. He also could not state as to on what basis the date was entered in the school register. Since the primary evidence is missing, no reliance can be placed on any of the certificates produced by the prosecution. 11. PW-4 Bhajan Lal, father of the prosecutrix, while appearing in the witness box could not even give the year of his marriage. He also could not state as to how many years he had got married. The statement of a person, who could not give the year of his marriage, can not be relied upon to prove the age of his daughter. 12. In view of the above discussion, we are of the clear cut opinion that the prosecutrix willingly went with the accused. We are also of the considered opinion that the prosecution has miserably failed to prove that she was a minor. The learned trial court was justified in acquitting the accused. The appeal is accordingly dismissed. Bail bonds are ordered to be discharged. (Deepak Gupta), Judge (Rajiv Sharma) Judge May 24, 2010. (bhupender)