IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. 472 of 2000 Decided on: 23.11.2010 State of H.P. ..…Appellant Versus Padam Singh & ors. ..…Respondents Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting?1 Yes. For the appellant : Mr. R.K. Sharma, Sr. Addl. A.G. For the respondents : Mr. Romesh Verma, Advocate. Sanjay Karol,J. (Oral) For an offence, which is alleged to have been committed on 20.3.1997, accused were put to trial. In terms of judgment dated 18.3.2000, passed by learned Additional Sessions Judge, Shimla, in Sessions Trial No. 6-S/7 of 1999 titled as State of H.P. Vs. Padam Singh and others, accused stand acquitted of the charged offence. 2. It is the case of the prosecution that on 20th of March, 1997 Roshan Lal (PW-2) had got bullocks from the house of accused Banka Devi (accused No. 3) for ploughing his fields. In the evening, 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 he had asked his daughter, the prosecutrix (PW-7) to return the same to the accused. She was accompanied by Gorkha Jeet Bhadur. However, they did not return home in the evening. In the morning Roshan Lal went to the house of Uttam Chand and Banka Devi to enquire about their whereabouts. He was informed by Banka Devi that neither had the prosecutrix come to the village nor did she return the bullocks. He searched for his daughter at the places of his relatives and other residents of the village, but, however, her whereabouts were not known. Again on 22nd of July, 1997 he went to the house of Banka Devi, but of no avail. Accordingly, on 23rd of March 1997 he lodged a report with the police and FIR No. 70 (Ext.PW2/A) dated 23.3.1997 was registered at Police Station, Rohru, under Sections 363 and 366 IPC. Police commenced investigation. Prosecutrix was recovered from the house of the accused. Investigation revealed that accused No. 1 Padam Singh and accused No.2 Shiv Ram are real brothers. Accused Padam Singh was adopted by accused Banka Devi and was staying with her in village Todsa. On 20th of March, 1997 when prosecutrix reached the water channel of the village accused Padam Singh whistled to her and Gorkha Jeet Bahadur, who was accompanying her. They went upto him. Padam Singh threatened them with a sickle and took them to village Todsa. In the village the accused asked the prosecutrix to solemnize marriage with accused Padam Singh. Prosecutrix cried. However, accused threatened her with a “Drat” (sickle) and forcibly made her agree to marry accused Padam Singh. At about 10.00 P.M. she was forcibly taken to the house of accused Padam Singh in village Bholar where again she was threatened with dire consequences. Consequently, she could not raise alarm. There accused detained the 3 prosecutrix and Gorkha Jeet Bhadur in separate rooms. Accused Padam Singh forcibly committed sexual intercourse with the prosecutrix. During the day accused would lock the door from out side. On the third day Roshan Lal (PW-2) and Uttam Singh (PW-4) came but were not allowed to meet the Prosecutrix. From 21st of March, 1997 onwards till the time she was recovered by the Police on 28th of March, 1997 prosecutrix was subjected to rape every night by accused Padam Singh. On the sixth day, at about 4.00 a.m., villagers whistled to the accused indicating that police had arrived in the village, which prompted them to flee from the spot. Police recovered the prosecutrix from the house of the accused. She was got medically examined by Dr. Uttra Smayal Bhau (PW-3) who issued MLC (Ext.PW3/A). She was also got medically examined by Dental Surgeon who issued report (Ext.PW16/A) opining her dental age to be between 13 to 15 years. Police collected the school leaving certificate (Ext.PW13/A), Pariwar register (Ext.PW17/D) and the certificate of birth (Ext.PW17/A), in terms whereof prosecutrix was born on 1.10.1983. Police completed the investigation and presented the challan in the Court for trial. 3. Accused Padam Singh was charged for having committing offences punishable under Sections 363, 366 and 376 IPC to which he pleaded not guilty and accused Shiv Ram and Banka Devi were charged for having committed offences punishable under Sections 363, 366 read with Section 109 and 366-A IPC to which they also did not plead guilty and claimed trial. 4. In order to prove its case, prosecution examined seventeen witnesses and statements of the accused under Section 313 Cr.P.C. were also recorded. 4 5. The Court below acquitted the accused of the charged offences, hence the present appeal. 6. In order to prove its case prosecution has to prove, beyond reasonable doubt, that the accused kidnapped and abducted the prosecutrix, who was minor from the lawful guardianship of her father by giving allurement and then compelled to her to solemnize the marriage with accused Padam Singh. Prosecution also has to prove that accused Padam Singh forcibly committed rape on the prosecutrix. 7. The first point which needs to be considered is the age of the prosecutrix. Now, prosecutrix in her testimony does not indicate her exact death of birth. She states that her mother died 14 years prior to the date when her statement was recorded in the Court i.e. 19.11.1999. She also states that at the time of death of her mother she was six years of age. Thus, according to the prosecutrix as on the date of the alleged offence which is 20th of July, 1997, she was more than 18 years of age. 8. Prosecution has relied upon certificate (Ext.PW13/A) issued by the Principal, Govt. Senior Secondary School, Jangla which records the date of birth of the prosecutrix to be 1.10.1983. Importantly, there is no link evidence to show that on what basis the said date was recorded in the school record. There is nothing to show when prosecutrix was admitted in the school. Shri Manmohan Singh (PW-13) who has come forward to prove the said certificate states that the date in the school was neither entered by him nor was it entered in his presence. He also does not state that it was recorded on the basis of the record maintained under the Births and Death Registration Act. 5 9. Prosecution has also relied upon certificate issued by the Secretary Gram Panchayat Chirgaon and the Pariwar Register (Ext.PW17/D). Now, Julgi Ram (PW-17) who has come forward to prove the same admits that entry in the Pariwar Register is neither made by him nor could he depose who had come forward to get the entry recorded. It is also not his case that entry in the Pariwar Register is made on the basis of the record maintained under the statutory provisions. He is neither the author nor does he has personal knowledge about such entry. 10. That apart, prosecutrix was got examined through Dr. K.S. Negi (PW-16) who found her dental age to be between 13 to 15 years. This expert admits that there can be error of margin of three years while ascertaining the dental age. In law, accused is entitled to the benefit thereof. Thus, it cannot be said that prosecution has been able to prove, beyond reasonable doubt, the age of the prosecutrix to be less than 18 years as on the date of the alleged offence. 11. Prosecution has to further prove that prosecutrix was kidnapped by the accused from the lawful guardianship of her father knowing fully well that she was compelled for marriage or seduced for sexual intercourse by accused Padam Singh. This has to be proved by leading clear, cogent, convincing, reliable and acceptable evidence. Prosecution has also to prove that the accused enticed the prosecutrix by giving her some assurance and allurements. 12. Now importantly none of the prosecution witnesses, including the prosecutrix, has deposed that the accused had given any sort of assurance or allurement or that prosecutrix was actually taken away from the guardianship of her parents. 6 13. We find the genesis of the prosecution story to be false and the version of the material prosecution witnesses especially that of the father to be contradictory. In the FIR (Ext.PW2/A) it is the case of the complainant (PW-2) that he had brought the bullocks from the house of accused Banka Devi and had asked the prosecutrix to leave it at her house. However, in Court, PW-2 has introduced an entirely different story. According to him, bullocks were brought from the house of Uttam Singh (PW-4) and not accused Banka Devi. If the bullocks were to be returned to Uttam Singh then what prompted him to visit the house of accused Banka Devi on 21st and 22nd of March, 1997. Further, even according to the prosecutrix her father stayed in the house of accused Banka Devi for 3-4 days. This was three days after the incident. Yet he did not report the matter to the police clearly disclosing the fact that he suspected the accused to have kidnapped his daughter and kept under confinement in the house. According to him, at the time when the police raided the house of the accused, Jeet Bahadur was not there. Whereas according to the Investigating Officer, Jeet Bhadur was very much present in the house of the accused when prosecutrix was recovered. In fact he was a witness to the recovery memo (Ext.PW2/B). 14. According to the father both he and Uttam Singh stayed in the house of the accused at village Bholar for three days which version stands contradicted by PW-4 according to whom he had visited the house of the accused only on 27th of March and stayed there for one night. The contradictions are material rendering the prosecution case to be doubtful, if not false. 7 15. It is settled position of law that if the statement of the prosecutrix alone inspire confidence, then without any corroboration, reliance can be placed on the same to determine the guilt of the accused. 16. After careful scrutiny of the statement of the prosecutrix, we find that even her version cannot be said to be trustworthy. It does not inspire confidence. There are too much improbabilities, blemishes and improvements. Undoubtedly prosecutrix has deposed that accused Padam Singh called her by whistling and then under threat took her to his residence at village Bholar where he asked her to marry him. She also states that accused showed her Drat and threatened her that if she did not marry him he would kill her as also Jeet Bhadur who was accompanying her. According to her, marriage was forcibly solemnized in the presence of Banka Devi and Shiv Ram. She did not raise any hue and cry as she was threatened for life. Accused Padam Singh informed his relatives that they had solemnized the marriage. Her father and Uttam Singh came to the house of the accused but she was not allowed to meet them. This happened on the third day of the incident. In his house accused Padam Singh forcibly committed sexual intercourse with her every night till the time she was recovered by the police. But we find that in Court she has made several improvements from her earlier statement recorded by the police with which she was confronted. Her version that she was recovered from the house of accused Padam Singh; accused Shiv Ram used to lock her from outside; the villagers whistled in the night when the police came thereby prompting the accused to flee from the house does not find mention therein. 8 17. Further, prosecutrix admits that there are several houses in village Bholar and families also reside there. Admittedly, she was in the company of the accused for more than 8/9 days. Yet, she did not raise any hue and cry or tried to flee away from the house of the accused. She was not alone. Jeet Bhadaur was with her all along. He has not been examined. Why so, is not clear. He was the most relevant witness to the entire episode and would have thrown light on the true and correct events which took place. She admits that village Todsa is also thickly populated and there are about 90 houses. Her cries would have definitely attracted attention of the neighbours. Marriage between the prosecutrix and accused Padam Singh allegedly took place. Importantly, she admits that accused Padam Singh whistled to her and of her own she went to meet him. There is nothing in the statement from which it could be inferred that accused had given any inducements. She admits that other people were present in the house of the accused and to go to village Bholar from Todsa one has passed through villages Thana, Jangla, Badkvara and Seema which are not only crowded places but various public authorities function from there. Now, her cries would have definitely attracted public attention yet she chose not to do so. What did her companion do all this while is not clear. Her statement is full of improbabilities and there are missing links in her statement. It is unbelievable that a father would allow the girl to be left in the house of a person whom he himself suspects of having kidnapped his daughter. Truth appears to have been suppressed. 18. Most importantly, she did not resist the advances of the accused. The Doctor who medically examined her found her to be 9 habitual to sexual intercourse. No injury marks found on her body. She could have resisted the advances of the accused. Her father knew about the fact that the accuse had kept the prosecutrix in his custody yet he continue to stay there for more than 3 to 4 days. 19. According to PW-15 he did not associate any person of the village at the time of investigation and search for the reason that all male members of the village had fled away. Now, this versions stands contradicted by the prosecutrix herself according to whom 3-4 villagers of Bholar were present at the time when the police came. 20. Most importantly, prosecution has not explained as to why statement of the prosecutrix was recorded three days after she was recovered from the accused. Prosecutrix is alleged to have been raped by the accused. Her statement ought to have been recorded at the very first instance. Even on this point there is glaring contradiction on record. Statement of the prosecutrix under Section 161 Cr.P.C. records the date of her statement to be of 28th of April, 1997, whereas according to PW-15 it was actually recorded on 31st of March, 1997. Now, if this was true then why was the prosecutrix got medically examined by the police. Undisputedly she had no injuries on her body and none had told the police that she was raped. 21. On the careful scrutiny and appraisal of the entire evidence, we feel that there are serious and glaring contradictions and improvements in the prosecution version. It is crystal clear that prosecution has miserably failed to prove the incident in the manner in which it warrants the court to believe it to be. Prosecution has thus miserably failed to bring home the guilt of the accused beyond reasonable doubt. 10 22. The accused had 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. (R.B. Misra), Judge. November 23, 2010 (Sanjay Karol), (vs/C) Judge.