1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T RAM PRATAP @ MAKIYA & ANOTHER VS. STATE OF RAJASTHAN S.B. Criminal Appeal No.674/2003 under Section 374 Cr.P.C. against the Judgment dated 21.5.2003 in Sessions Case No.33/2000, passed by Sh. Hari Kumar Godara , RHJS, Special Additional District & Sessions Judge (M.U.& Dahej Cases) Sri Ganganagar DATE OF JUDGMENT : April 12 , 2007. REPORTABLE P R E S E N T HON'BLE MR.JUSTICE CHATRA RAM JAT Mr. Basti Chand Bhansali, counsel for the appellants. Mr.JPS Choudhary, Public .Prosecutor. BY THE COURT: 1. This appeal is directed against the judgment and order dated 21.5.2003 passed by the Special Additional District & Sessions Judge (M.U.& Dahej Cases) Sri Gangagnar, whereby he convicted and sentenced accused appellants Ram Chandra @ Makiya and Om Prakash under Section 376(2)(g) Indian Penal Code and sentenced for 10 years rigorous imprisonment and fine of Rs.5000/- each and a in default of payment of fine, to further 2 under go for a period of two months' rigorous imprisonment. He further ordered for offence under Section 306 IPC sentenced for 3 years each accused appellants and a fine of Rs.1000/- and in default of payment of fine to under go for one months' additional rigorous imprisonment.Both sentences are ordered to run concurrently. 2. The prosecution story is woven like this:- (i) On 18.5.2000 complainant Harjinder Singh and his wife along with his three daughters viz. Lali, Nirmaljeet and Sohanjeet kaur was in village Mohala and were sleeping in court yard of the house. At 11 P.M. when Nirmaljeet awake and did not find her elder sister Lali on bed,then she informed his father Harjinder Singh. He searched his daughter Lali inside and out side the house then behind the house search in well (Kui) but did not find. Whe he reached back side of the house and found foot-prints which was going in the boundary of Niburai Sikh and heard whispering slow voice of Om Suthar that Harjinder is coming and on reaching Harjinder Singh, father of the deceased Lali, accused ran away from other side and deceased Lali also ran away towards her house. On asking Lali, she said that she went for toilet then Mekia and Om Suthar raped(Khota kam) her. In the morning he called his friend Girdhari that sent his wife because he wants to sent his daughter Lali to her Nanihal. This was hearing Lali. At about 2 P.M. Lali has consumed spray,he was sleeping in other room. His wife and other 3 daughters were sleeping in other room and when Lali started vomitting then on asking she said that she consumed spray. Upon knowing this fact, by tractor of Pradhan Singh he reached to Satiya and from Staiya he took taxi and reached Gharsana and admitted her daughter Lali in hospital of Dr. Bhadu where she was treated. Lali consumed spray due shame and because of Mekiya and Om Suthar have committed rape on her. (ii)On 19.5.2000 parcha bayan (statement) of Harjinder was recorded by Shri Mahadev Singh, A.S.I. P.S.Gharsana and on the basis of this parcha bayan, F.I.R. No.201/2000 was lodged under Sections 376 and 306 IPC and investigation was started. During investigation, usual memos were prepared and accused appellants were arrested. (iii) After investigation, challan against accused appellants was filed before the Judicial Magistrate, Gharsana, who committed this case for trial to the court of Addl.Sessions Judge, Anupgarh and who sent the matter to the Sessions Judge, Sri Gangangar, who transferred this case for trial to the Court of Special Additional District & Sessions Judge ((M.U.& Dahej cases), Sri Gangangar. (iv) After framing charges for offences under Section 376 (2)(g) and 306 IPC and charges were read over 4 and after hearing on charges, accused appellants pleaded not guilty and claimed for trial. (v) Prosecution has produced 17 witnesses viz.P.W 1 Girdhari, P.W.2 Pradhan Singh, P.W.3 Swraj Singh, P.W.4 Angrej Singh P.W.5, Harjinder Singh @ Jogendra Singh,P.W.6 Banwari Lal, P.W.7 Pooran Mal, P.W.8 Dr.Angat Dev Chorad,P.W.9 Janak singh, P.W.10 Pratap Singh, P.W.11 Dr.Hans Raj Bhadu, P.W.12Gurudev Singh, P.W.13 Mukund Singh, P.W.14 Basantkaur,P.W.15 Nirma, P.W.16 Babu Lal, & P.W.17 Mahadeo Singh and exhibited Ex.P1 to Ex.P.27 documents. Thereafter statement under Section 313 Cr.P.C. was recorded in which accused appellants stated that they have been falsely implicated due to enmity in a false case. No defence witness was produced in support of their case. After hearing the counsel for the parties, learned Special Additional District & Sessions Judge (M.U.& Dahej Cases) Sri Gangangar, has convicted and sentenced,as mentioned hereinabove. Hence, this appeal. 3. Heard the learned counsel for the appellants and the 5 learned Public Prosecutor and perused the record of the case . 4. Learned counsel for the appellants contended that the alleged incident is said to be of mid night and as per P.W.8 Dr. Angat Dev Jhord, who has not expressed any opinion in regard to recent sexual inter course with the deceased victim and because of death she has not been produced in evidence so case of rape is not proved by the prosecution. 5. Learned counsel for the appellant further urged that trial court find that this is a case of consent sexual intercourse so presence of semen on the vaginal smear, salwar of the victim and kachha of the appellants vide Ex.P.25 is not material looking to the consent of factual position. 6. Learned counsel for the appellant further urged that as per provisions of clause sixthly of Section 375, I.P.C the prosecutirx is under 16 years of age, the consent is not material and legally cannot be treated consent and it is the bounden duty of the prosecution to strictly prove that prosecutrix ( victim) was minor. On the overall evaluation of the prosecution evidence, it is not so proved, rather it appears that prosecutrix is above 16 years of age and is major one and if it is so then appellants are entitled to be acquitted and there is no relation for offence under 6 Section 306 I.P.C for abating to consume spray (poison) by the victim deceased. 7. Learned counsel relied on Jagan Nath vs Moti Ram & others AIR(38) 1951 Punjab 377 and Richpal @ Malia vs State of Rajasthan W.L.C.(Raj.)UC2003 page 388 and states that only production of documents as Scholar Register/ admission form is not sufficient proof regarding the correctness of such entry and it should be proved as observed in former ruling in para No.10 which reads as under :-. “10. With very great respect, I agree with the opinion expressed by Nasim Ali J, in Janki Nath v.Jyotish Chandra, A.I.R.(28) 1941 Cal.41 :(I.L.R.(1941) 1 Cal.234), that the school register is not of much evidentiary value when there is no evidence to show on what materials the entry in the register about the age of the pltf. was made.” Learned counsel for the appellants further states that P.W.5 Harjinder Singh who is father of the deceased did not mention the age of the deceased in Parcha bayan Ex.P.-13 and statrement under Section 161 Cr.P.C Ex.D-1 and the fact of age of deceased in Post Mortem report Ex.P -23 has been mentioned on the identification and telling of father and no enquiry of ossification test has been made as per statement of 7 P.W.8 Dr. Angat Dei Johard. T.C. Ex.P.6 is not a reliable piece of evidence because the name of deceased has been mentioned as Lakhvir Kaur whereas she was Lali and the witness Swrar Singh P.W.3 specifically said that she was not knowing Lakhvir Kaur, neither she was studying during his tenure and he has not seen admission form. Thus, the date of birth as indicated in this T.C as 1.5.86 cannot be accepted having contradictions from P.W.1 and 2 who has indicated the age of deceased as 17-18 years. Learned Public Prosecutor supported the conviction and sentence passed by the learned Trial Court and stated that prosecutrix was minor and, therefore, under Clause sixthly of Section 375 IPC she was not legally competent to consent for sexual intercourse and prosecution has proved by the evidence that prosecutrix was minor and her father P.W.5 Harjender Singh specifically said that she was 14 years old as supported by P.W.8 Dr.Angad Dev, in Post Mortem Report Ex.P23, and also Panchnama Ex.P-3, and Ex.P-4.dead body inventory. Over and above, prosecution proved the date of birth of prosecutrix as 01.05.1986 vide Transfer Certificate Ex.P-6 which is fully proved by P.W.3 Swaraj Singh who specifically stated that 8 Lakhveer Kaur D/o Joginder Singh was admitted for Class I on 14.07.1992 and the incident occurred on 20.05.2000. Thus at the time of incident the age of prosecutrix was 14 years and 17 days and P.W. 1 Girdhari Singh and P.W. 2Pradhan Singh being hostile witness, their version that prosecutrix Lali was 17-18 years old is not reliable. Learned Public Prosecutrix has placed relied in the matter of Vishnu Vs. State of Maharashtra reported in 2006 Cr.L.J. [SC] 303 which held that for determination of the date of birth of child, the best evidence is of father and mother and in the present case the age of prosecutrix stated by P.W. 5 father of prosecutrix should be considered reliable. On analysing the prosecution evidence it appears that the trial court came to the conclusion that prosecutrix consented for sexual intercourse but this consent is only legally possible if the prosecutrix age is above 16 years of age. Thus the age of prosecutrix is very crucial for the consent as well as for the decision of this case. Prosecution is bound to prove that age of the victim girl was below 16. the data from which age may be ascertained are; 1] teeth,. 2] ossification of bones, 3] heigh and weight, 4] 9 miscellaneous signs. When considered individually little reliance is to be placed on each individual test, but taken together they may offer a fairly reliable means to ascertain the age. Medical evidence about age based upon epiphyses of bones is based on scientific test and is acceptable. But, if there is any conflicting evidence, e.g. Conflict between medical evidence and entry in school certificate, the benefit of the uncertainty as to age should go to the accused. As to ascertainment of age by ossification test, if all the epiphyses are found to be united, it proves that the person is about 25 years. Margin of error in age ascertained by radiologist is two years on either side. Birth certificate and oral evidence when are doubtful, radiologist's opinion as to age is to be accepted. School admission Register gives the best proof of age. In its absence, ossification test is to be considered. Ossification is not a sure test. But it is generally accepted as best available test for the determination of age. For determination of age of prosecutrix [deceased] the evidence of [P.W.5] Harjender Singh father, [P.W.14] Basant Kaur grand mother, [P.W.15] Nirma younger sister [P.W.1] Girdhari, [P.W.2] Pradhan Singh, [P.W.8] Dr. Angat Dev and [P.W.3] Swaraj Singh and Ex.P-3, 4 and Ex.P-6, 13 and Ex.D-1 and D3 are the relevant evidence which 10 prosecution examined for the purpose. Admittedly. Balwant Kaur and Nirma said nothing for the age of the deceased. P.W.1 Girdhari who is a close friend of Harjender Singh [P.W.5] and [P.W.2] Pradhan Singh though both hostile but they stated the age of prosecutrix [deceased] 17-18 years. Medical Officer [P.W.8] Dr.Angat Dev specifically mentioned in his cross examination that for age he did not examine the deceased Lali and the age in Post Mortem Report Ex.P-23 was mentioned by telling the father of the deceased. Probably, the same is mentioned in Ex.P-3 and 4 because of that fact. As per the statement of [P.W. 3] Swaraj Singh which relates regarding Ex.P-6 Transfer Certificate indicating the date of birth of prosecutrix as 01.05.1986 but he admitted the fact in cross examination that he has not seen the admission form of the deceased neither he knows the deceased or her father and during his tenure Lakhveer Kaur @ Lali was not studying. As to the statement of [P.W.5] Harjender Singh he mentioned the age of Lali to be 14 years old and he also admitted the fact that his younger daughter Nirma is of 10 years old. Admittedly, this witness Harjender Singh has not mentioned the age of deceased in his parcha bayan Ex.P-13 and also in the statement under Section 161 Cr.P.C. Ex.D-1. It is notable fact that prosecutrix deceased Lali's mother Balvender Kaur has been cited as witness in committal calender at Serial No.7 but she has not been produced though she might be a 11 source of best evidence for the age of the deceased. The younger sister of deceased Nirma's [P.W.15] age has been mentioned as 13 years in Ex.D-3 being statement recorded under Section 161 Cr.P.C. dated 20.5.2000Ex.D-3. T.C.Ex.P-6 cannot be said to be reliable evidence, as per statement of P.W. 3 Swraj Singh having lacking of the examination of admission form, even on the identity of the deceased is doubtful whether deceased Lali or Lakhvinder Kaur. Admittedly no Radiological examination has been has been done and mother,though, cited as witness but not produced and neighbours Girdhari P.W.1 and P.W. 2 Pradhan Singh stated the age of deceased is 17-18 years and admittedly younger sister Nirma P.W.15 is 4 years younger as per statement of Harjinder Singh P.W.5 and as per Ex.D-3 the age of younger sister Nirma being 13 years so the age of deceased prosecutrix come to 17 years. As regards ruling cited by prosecution Vishnu vs State of Maharastra (Supra), this ruling is distinguishable on the factual position and it is bounden duty of the prosecution to prove that the deceased was minor but because of of above discussions, prosecution is not able to prove that the deceased was below 16 years of age. 12 Having carefully scanned the evidence of P.W.5 Harjinder Singh and P.W.3 Swraj Singh, I find that the prosecution has not succeeded in making out a convincing case for recording of finding that the deceased prosecutrix (victim) is below 16 years of age,and, thus recording of finding of conviction against the appellants cannot be upheld. In the ultimate analysis, I hold that the prosecution is not able to to establish charges against accused appellants Ram Pratap alias Makiya and Om Prakash byond reasonable doubt, therefore, I grant them benefit of doubt. For these reasons , appeal of the appellants Ram Pratap alias Makiya and Om Prakash is allowed and the judgment and sentence dated 21.5.2003 of the Special Additional District & Sessions Judge (M.U.& Dahej cases) Sri Gangangar in Sessions case No.33/2000 is set aside and they acquitted of the charges under Section 376(2)(g) and under Section 306 IPC. The appellants are in jail, they shall be set at liberty forthwith, if not required to be detained in any other case. [CHATRA RAM JAT],J. CKThanvi 13 S.B.CR.APPEAL NO.674/03 12.4.2007 HON'BLE MR.JUSTICE CHATRA RAM JAT. Mr.Basti Chand Bhansali, counsel for the appellants. Mr.JPS Choudhary,P.P. Judgment dictated in open court.Operative portion of the judgment reads as under:- “For these reasons , appeal of the appellants Ram Pratap alias Makiya and Om Prakash is allowed and the judgment and sentence dated 21.5.2003 of the Special Additional District & Sessions Judge (M.U. & Dahej cases) Sri Gangangar in Sessions case No.33/2000 is set aside and they acquitted of the charges under Section 376(2)(g) and under Section 306 IPC. The appellants are in jail, they shall be set at liberty forthwith, if not required to be detained in any other case. (See separate judgment.) [CHATRA RAM JAT],J. CKThanvi