IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA. Cr. Appeal No. 302 of 1996. Decided on 11.3.2010 -------------------------------------------------------------------------------- State of Himachal Pradesh Appellant. Versus Kalyan Singh and Others Respondents. -------------------------------------------------------------------------------- Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. -------------------------------------------------------------------------------- Whether approved for reporting ? No. -------------------------------------------------------------------------------- For the Appellant Mr. R.M.Bisht, Deputy Advocate General. For the Respondents Ms Vidushi Sharma, Advocate. -------------------------------------------------------------------------------- Deepak Gupta, Judge (Oral). This appeal by the State is directed against the judgment dated 4.5.1995 passed by the learned Sessions Judge, Chamba in Sessions Trial No. 38 of 1994 whereby he acquitted the accused of having committed offences punishable under Section 376, 344, 202 read with Section 109 of Indian Penal Code. 2. Briefly stated the facts of the case are that on 18.12.1992, PW-3 Man Singh, father of the prosecutrix made a written complaint to the Resident Commissioner, Pangi camp at Dharwas. In this complaint it was written that the prosecutrix who is his minor daughter of tender age has been raped by Kalyan Singh S/O Shri Shiv Ram on 8.12.1992. Thereafter the complainant with a view to protect the honour of the prosecutrix made a complaint to the Pradhan and the Up Pradhan of the Gram panchayat of the area, so that some settlement could be arrived at. He also handed over his daughter to them. According to him he has no information about his ---------------------------------------------- Whether reporters of local papers may be allowed to see the judgment ? -2- daughter and the Pradhan and Up Pradhan have also not decided the dispute. This complaint was received on 18.12.1992 at 2 pm and marked to the Police Incharge Police Post Dharwas who went to the house of Kalyan Singh and recovered the prosecutrix. 3. Thereafter the prosecutrix was sent for medical examination. Both the prosecutrix as well as her father refused to get her medical examination. Other investigation was done by the police and challan was filed. The Pradhan and Up Pradhan were arrayed as co-accused on the ground that they have not reported the matter despite the fact that were aware that a cognizable offence had been committed. After trial the accused have been acquitted. 4. The prosecution story in this case is full of lacunae. In the initial complaint it was stated that the prosecutrix has been raped by Kalyan Singh on 8.12.1992 but no details have been set out. When a person makes a written complaint he could have easily given details as to how the occurrence has happened. This was not done. The story now set out by the prosecutrix and her father is that on 8.12.1992 when she was returning with her brother Master Rakesh, the accused caught hold of her. Master Rakesh ran home and informed his father PW-3 who went to the spot and then Kalyan Singh ran away. If this version of PW-1 and PW-3 is accepted then there is no explanation as to why complaint was not lodged with the police. According to the father of the prosecutrix he made a complaint to Pradhan and Up Pradhan with a view to save the honour of his daughter. Even if we accept this explanation there is no reasonable explanation as to why he handed over his daughter to the Pradhan and Up Pradhan. No father who has a young daughter who has been raped would hand over the child to the co-villagers. This conduct itself casts a grave -3- doubt on the testimony of the witnesses. There is no plausible explanation as to why the father would have handed over the custody of his minor daughter to co-accused. 5. Admittedly, the prosecutrix was recovered from the house of Kalyan Singh after the complaint was lodged on 18.12.1992 i.e. after ten days. There is no allegation or evidence that Kalyan Singh forcibly kept the prosecutrix in his house. It cannot be believed that the father handed over the custody of the minor prosecutrix to Pradhan and Up Pradhan who forcibly handed over her to Kalyan Singh. 6. These facts coupled with the facts that both the prosecutrix and her father refused to get her medically examined clearly indicate that they are trying to hide something. 7. Coming to the age of prosecutrix, according to the prosecution she was 15 years at the time of incident. Her date of birth being 1977. The prosecution has relied upon the certificate Ex. PN in which date of birth is shown to be 1977. This certificate is based on the entry made in the Pariwar Register. The relevant abstract of the Pariwar Register is Ex. D1. This clearly shows that the entry regarding the date of birth of the prosecutrix was not made at the time she was born but in fact the entry was incorporated much later. The Pariwar Register is not substantial evidence. Presumption of truth can be attached to the Birth and Death register maintained by the Panchayat which has not been produced. Even the abstract of the Pariwar Register shows that there is interpolation in the same. While the entries recorded in respect of other members of the family of Man Singh and Rakesh are in one hand, the entry in respect of prosecutrix is in a different hand. Whereas in the case of all other persons born after 1970 the date of birth is given in the case of the prosecutrix the -4- date of birth has not been mentioned and only the year has been mentioned. 8. The prosecutrix and her father also refused to get her medically examined no ossification test could be performed to determine her skeletal age. Further more, the father himself states that the prosecutrix was working as a Beldar for getting full wages. This clearly indicated that she was more than 18 years at the time of occurrence. The prosecution has miserably failed to prove that her age was below 16 years at the time of occurrence. 9. In view of the various circumstances referred to above including the facts that the prosecutrix remained with Kalyan Singh for about 10 days without any compulsion, the learned trial Court has rightly acquitted the accused and the judgment calls for no interference. We therefore, find no merit in the appeal and the same is dismissed. Bail bonds furnished by the accused are ordered to be discharged. (Deepak Gupta) Judge. (Sanjay Karol) Judge. March 11,2010. (KC)