IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 89 of 1996 Judgment Reserved on 24.2.2010 Date of Decision : March 17, 2010 State of H.P. Appellant Versus Narender Kumar alias Hira and others Respondents Coram: Hon’ble Mr. Justice Deepak Gupta, Judge Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the appellant Mr. Vivek Singh Thakur, Addl. Advocate General with Sh. Ram Murti Bisht, Dy. Advocate General for the appellant. For the respondents Mr. Janesh Gupta, Advocate, for the respondents. Sanjay Karol, J. This appeal under Section 378 of the Code of Criminal Procedure by the State is directed against the judgment of acquittal dated 10.1.1995, passed by the learned Sessions Judge, Solan, H.P. in Sessions Trial No. 21-S/7 of 1992 under Sections 363, 376 & 368 IPC. 1 Whether reports of Local Papers may be allowed to see the judgment? 2 It is the case of the prosecution that Sh. Mange Ram (PW-4) used to reside in village Drumbal, Kasauli H.P. along with his family including the prosecutrix (PW-3) aged 14 years. On 31.12.1991 he and his wife Smt. Laxmi Devi had gone out for work leaving behind their children, including the prosecutrix at home. Smt. Laxmi Devi came back at about 4 P.M. and did not find the prosecutrix at home. Her son Monty informed her that one Kumari Ganja d/o Sh. Nand Lal had come and the prosecutrix had gone with her. Inspite of her attempts she could not trace the prosecutrix and as such at about 5.00 P.M. she disclosed this fact to her husband. At about 6.00 P.M., both Sh. Mange Ram and Smt. Laxmi Devi visited the house of Sh. Nand Lal to enquire about the whereabouts of their daughter from Ganja. However, Ganja was not available in her house at that time. At about 8.30 P.M. Ganja visited the house of Sh. Mange Ram and told him that the prosecutrix was noticed near the gate. Accordingly Sh. Mange Ram and Smt. Laxmi Devi alongwith Sh. Gajraj and Sh. Sudershan tried to look for the prosecutrix there. They tried to locate the prosecutrix at various places and inspite of their efforts could not find her. On further inquiry Sh. Mange Ram learnt that one Sh. Bali and his wife Smt. Angoori had been visiting the house of Sh. Nand Lal recently and expressed suspicion upon these two persons. As such Sh. Mange Ram got a complaint lodged with the Police Station, Kasauli being F.I.R. No. 2/92 (Ext. PW4/A) dated 3.1.1992. The same was registered under Sections 363 and 366 of the Indian Penal Code. 3 The matter was investigated by ASI Sukh Ram (PW-12), Police Post Kuthar, Police Station, Kasauli. During investigation it was found that Ganja had taken the prosecutrix from her house on the pretext of meeting her parents in the Kasauli bazaar from where wheat flour was to be carried. Accused Narender met the prosecutrix in the bazaar at Kasauli and informed her that her parents were waiting for her at a little distance ahead. Upon expressing her reluctance to go any further, accused Narender threatened her and thereafter took her to a temple of “Gugga Marri” where she was confined in a small room throughout the night. On that night the said accused twice raped the prosecutrix. Next morning he took her to the house of his real brother namely Surender Kumar at Patiala (Punjab). Surender Kumar (accused No. 2) and his wife Smt. Lajwanti (accused No. 3) were informed by the prosecutrix that she had been forcibly brought by accused Narender and that he had forcibly committed sexual intercourse with her in the night of 31.12.1991. The prosecutrix was kept at Patiala till 8.1.1992 and even there she was forcibly subjected to sexual intercourse by accused Narender every night. Since PW-4 had lodged a complaint with the police, parents of the accused Narender and Surender came to Patiala and took the girl back to Kasauli. On 9.1.1992, both the prosecutrix and accused Narender were produced before the police by Smt. Goma Devi (mother of accused Narender). The prosecutrix was handed over to her parents. She was got medically examined by Dr. Radha Chopra (PW-1) who issued the 4 medical certificate Ext. PW1/A. As per the medical opinion prosecutrix was used to sexual intercourse. The Skiagram and the Ossification test was further got conducted upon her by Dr. J. P. Kaushik (PW-2), who opined her age to be of 15 to 16 years. Copy of the Pariwar Register (Ext. PW-8/A) of the family of Sh. Mange Ram issued by Sh. Ram Dutt Sharma, Gram Panchayat Adhikari (PW-8) was also got collected during the course of the investigation. The matter was further investigated and with the completion of inquiry the challan was presented in the Court for trial. Accused Narender Kumar was charged for an offence punishable under Section 363 IPC, for having kidnapped the prosecutrix from the lawful guardianship of her parents as also for an offence punishable under Section 376 IPC for having committed rape on her. Accused Surender Kumar and Lajwanti were charged for an offence punishable under Section 368 IPC for having wrongfully concealed the prosecutrix in their house knowing that she had been kidnapped from the lawful guardianship of her parents by accused Narender Kumar. In all, the prosecution examined 14 witnesses and the statements of all the accused persons under Section 313 Cr. P.C. were also recorded. The Court below acquitted all the accused persons of all the charged offences. Hence the present appeal. As per the version of PW-4, the age of the prosecutrix (PW-3) at the time of the commission of the alleged offence was 14 years whereas according to her she was of 12 years. There is no clear, 5 cogent, reliable and convincing material/ evidence on record to prove the said fact. Importantly no certificate/record of date of birth of the prosecutrix maintained under the Registration of Births and Deaths Act, 1969 has been placed on record. As per the statement of PW- 12 and Dr. Radha Chopra (PW-1) the medical examination of the prosecutrix was got conducted on 10.1.1992. In the medical certificate Ext. PW-1/A, PW-1 has recorded her age to be of 18 years. Even though in her deposition she stated that the age of the victim appeared to be 17 to 18 years but she clarified that the clinical age is determined by looking at the face and physical appearance of the person and that she indicated the age of the victim after examining the secondary sex characters being the growth of auxiliary hair, pubic hair, breast development, teeth and genital organs. Therefore on physical appearance the age of the prosecutrix was found to be 18 years. Even according to the prosecutrix, she had disclosed her age to PW-1 to be of 18 years. No doubt, she volunteered to explain that the same was done at the instance of the accused and their mother but importantly there is nothing on record to substantiate or corroborate this version of hers. Importantly, subsequently she admitted that even at the time of her subsequent medial examination at Solan (i.e. when the ossification test was conducted on her), where she was accompanied by her mother, uncle and one police constable she had disclosed her age to the Doctor to be eighteen years. 6 The skiagram and the ossification test was carried out on the prosecutrix by Dr. J. P. Kaushik (PW-2) and as per his report (Ext. PW2/A), her age was determined to be 15 to 16 years. He clarified that the development of the bones of a person depends upon various factors like dietary, climatic and hereditary conditions. He opined that as compared to a good nutrient diet a person taking less proteins and less energy diet is likely to have slow development of bones and while determining the age of the prosecutrix he has not taken these factors into consideration. Therefore, the report by itself cannot be said to be of conclusive or binding nature. He has admitted that the bony age of a person can vary two-three years on positive or negative side. Undisputedly prosecution does not hail from higher strata of society and her development of bones not being complete cannot be ruled out. Importantly the report is dated 10.1.1992 and the alleged offence is stated to have taken place on 31.12.1991. Keeping in view the negative and positive variations while determining the age of the prosecutrix it cannot be said that the age of the prosecutrix would definitely be not more than eighteen years. We are fortified to take this view, keeping in view of the decision taken by the Apex Court in Jaya Mala vs. Home Secretary, Govt. of J&K & Ors. (1982) 2 SCC 538. Dayachand versus Sahib Singh and another, (1991) 2 SCC 379, State of Rajasthan versus Ram Narain and others, (1996) 8 SCC 64 and by a Division Bench of this Court in State of Himachal Pradesh versus Om Parkash and another, Latest HLJ 2005 (HP)(DB) 179. 7 The other evidence on this issue itself is the Family Register (Ext. PW-8/A) maintained by the Gram Panchayat Officer, Nayaye Panchayat Kendra, Titota, U.P., which records the date of birth of the prosecutrix to be 3.3.1977. The same has been proved by Sh. Ram Dutt Sharma (PW-8), Gram Panchayat Adhikari, Gram Panchayat Titota, Tehsil Anup Shahar, Distt. Bulland Shahar, U.P. The document as prepared and maintained raises doubt about its genuineness. The Pariwar Register is not shown to be maintained under any statute. It does not bear the signature of either the Pradhan or any other officer of the Panchayat. Even according to PW-8 the register is neither printed in a government press nor issued by any panchayat officer and is easily available in the open market. In fact the same was purchased and prepared by him in June, 1992 i.e. after the date of the alleged incident. He also did not verify the entries made in the register though previous registers were available with him. The prosecution has chosen neither to produce nor prove the entries made in the said registers. This witness has admitted to be in touch with PW-4. He admitted to have deleted the names of two persons entered as family members of PW-4. This he did even though they had died in the year 1987 and 1969. If the register was prepared in June,1992 then obviously the names of the persons having died prior thereto could not have been entered into therein. The manner of preparation of the Pariwar Register raises doubt about its authenticity and genuineness. Importantly the Pariwar Register does not disclose the name of the 8 person who had disclosed the information on the basis of which the said entry of date of birth of the prosecutrix was made there. PW-8 was not in service at the time of making the entry in the earlier registers and the Pariwar Register is also not shown to be maintained under any statute. It is also not the case of PW-4 that he had got the particulars entered in the Pariwar Register at the time of the birth of the prosecutrix. In fact it is not the case of the prosecution that the prosecutrix was not born in Kasauli and was in fact born at the native place of her parents in the State of Uttar Pradesh. In any event Pariwar Registers cannot be held to be of conclusive and binding evidentiary value. The Apex Court in Birad Mal Singhvi v. Anand Purohit, (1988) Supp. 1 SCC 604 has held as under: "To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded." (emphasis supplied) 9 The same has been reiterated in Ravinder Singh Gorkhi vs. State of U.P , (2006) 5 SCC 584 and Ram Suresh Singh vs. Prabhat Singh (2009) 6 SCC 681. According to PW-4 he has been working at Central Research Institute, Kasauli for the last 17 years. The family was residing at Kasauli and the prosecutrix had been studying in a Government Primary School at Kasauli. PW-4 has admitted that at the time of her admission her date of birth had been mentioned by him in the admission form. Most importantly, the Investigating Officer (PW-12) has deposed as under: - “During the course of investigation I had recorded the statement of the Principal of Govt. Primary School, Kasauli and I had also taken into possession the record of the said school in respect of Geeta, the prosecutrix. No efforts were made by me to look into the record of the Cantonment Board, Kasauli. According to my investigation the prosecutrix was born in U.P. I did not try to find out about the birth entry in respect of the prosecutrix either in the record of the concerned Panchayat in UP or in the records of the Health Department.” Significantly the record and the statement of the Principal has not been produced on record. In fact it has been concealed by the prosecution, rendering the case of prosecution to the effect that at the time of the commission of the alleged offence the prosecutrix was not more than 18 years of age to be absolutely doubtful. 10 From the aforesaid discussions it is thus evident that the prosecution has failed to conclusively prove that the prosecutrix was under eighteen years of age at the time of the alleged incident. Thus it cannot be said that the accused Narender had committed the alleged crime of having taken away the prosecutrix out of the lawful guardianship without the consent of the guardian. A Division Bench of this Court in State of Himachal Pradesh versus Om Parkash and another, Latest HLJ 2005 (HP) (DB) 179 has held as under: “22. It is well settled that the appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. Every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial court acquitted him, he would retain that benefit in the appellate Court also. Thus, the appellate Court in appeals against acquittals has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, that the order of acquittal is liable to be interfered with or disturbed.” Except for the sole testimony of PW-3 there is no other ocular evidence to prove the fact that accused Narender committed rape with her. PW-4 has admitted that Ms. Ganja, daughter of Smt. Goma and sister of accused Narender and Surender was on friendly terms with the prosecutrix. The prosecutrix herself has admitted this fact. 11 Statement of PW-3, in our considered view does not inspire confidence so as to prove the guilt of the accused persons. She does not appear to be a truthful witness. According to PW-3, Ganja, sister of the accused came to her house. She informed her that her parents were in the market and had called for her. She accompanied Ganja towards the market where she met accused Narender. There she was informed by him that her parents were at a little distance ahead and made her walk with him. On her expressing reluctance to accompany him, he threatened her. She was taken to “Gugga Marri” (near Mashobra at Kasauli) where they reached at about 11.00 P.M. and took shelter in a dilapidated room. She did not meet her parents on the way. During the night of 31.12.1991, accused Narender twice forcibly committed sexual intercourse with her. She did not raise any hue and cry out of fear. The following morning accused Narender took her to the house of his brother (accused Surender Kumar) and sister-in-law (accused Lajwanti) at Patiala. There she informed the said accused persons that she had been forcibly brought by accused Narender and was also forcibly subjected to sexual intercourse the previous night. She was made to stay in the house of accused Surender Kumar till 8.1.1992 where she was again forcibly subjected to sexual intercourse two or three times every night by accused Narender. On 9.1.1992 parents of Narender came to Patiala and took both of them to Kasauli where she was handed over to her parents and got medically examined. However, in her cross examination she 12 admitted the bazaar at Kasauli to be a crowded place. She admitted “Gugga Marri” temple to be at a distance of one kilometer from the Kasauli Bazar. The road is pucca and police station, tehsil office, post office and high school fall on its way. She admitted residential houses to be on both sides of the road leading to “Gugga Marri” temple. She further admitted the house of accused Surender Kumar to be situated in a thickly populated area comprising of residential and commercial buildings. She travelled from ‘Gugga Marri’ temple up to Kalka on foot and then from Kalka to Patiala by bus. Importantly, she also deposed as under:- “It is correct that during the day time I was not being kept under lock or restrain in the house. I was free to move about either in the house or to go out side.” It is beyond comprehension and belief that the version given by the prosecutrix that she was forcibly kidnapped or subjected to rape is complete and correct. Her earlier version does is not reflective of the natural course of events. From Kasauli upto Patiala she passed through various crowded and public places during day time. She could have easily raised hue and cry on the way attracting public attention. Importantly, as per her deposition threats were meted out by accused Narender only till the time they reached Patiala. At least thereafter, as per her own admission that she was free to move in and out of the house, she could have contacted people in the colony or made a phone call to her parents or relatives 13 at Kasauli, disclosing her whereabouts. This was not done so. She could have conveniently slipped out of the house and returned to her house or atleast gone to the local police station for help. She knew accused Narender since long and it appears to be a case of prosecutrix having voluntarily left with him from Kasauli and be with him thereafter. Importantly she has made various significant improvements in her earlier version given to the police. This further renders her statement to be unbelievable. She was confronted with her statement recorded under Section 161 Cr. P.C. In her earlier version she nowhere stated that when she tried to raise hue and cry she was threatened by the accused with dire consequences or that she had disclosed it to the accused Lajwanti and Surender Kumar that she had been forcibly brought to Patiala by accused Narender and that she had been twice forcibly subjected to sexual intercourse by him at Gugga Marri. Further the allegation of the accused having forcibly committed sexual intercourse in the house of accused No. 2 and 3 does not appear to be correct. According to her the act of rape was committed only at night. In her cross examination she admitted that accused Surender and Lajwanti had a child and the total accommodation available with them one living room and a kitchen. Allegedly all stayed under one roof. Therefore it is beyond comprehension and belief that accused Narender would have 14 subjected the prosecutrix to rape in the presence or sight of his real brother, bhabhi and their child. Importantly medical evidence does not show that the prosecutrix sustained any injuries on her body. In fact the medical opinion discloses that she was used to sexual intercourse. The sole testimony of the prosecutrix cannot be said to be natural, trustworthy and worth being relied upon. No implicit reliance can be placed thereupn. It is true that no person would risk her reputation putting her honour and prestige at stake to falsely implicate a person and that too in a case of sexual offence but as noticed herein earlier, prosecutrix and the accused were known to each other since long and may have developed intimacy during the course of their interaction and under pressure from the family deposed falsely. Importantly no explanation is forthcoming for the delay in the registration of the FIR. PW-4 has admitted that Police Post, Garkhal and Police Station, Kasauli to be near his house. He did not report the matter either to the police authorities, ward member or any member of his community. The prosecutrix was missing from her house from the evening of 31.12.1991. F.I.R. was registered only on 3.1.1992. PW-4 has not disclosed with whom, where and how he had searched for his missing daughter during the said period. What transpired between this period has not been explained by the prosecution nor by the parents of the prosecutrix. The F.I.R. was registered under Section 366 IPC. Importantly in the complaint, 15 PW-4 does not state that the prosecutrix had been kidnapped by the accused with an intent that she may be compelled to marry or forced/likely to force/seduced to for any illicit intercourse. Importantly police has examined neither Smt. Goma (mother of the accused) nor Smt. Laxmi Devi (mother of the prosecutrix). They were the best witnesses to have disclosed the truth and complete sequence of events. The prosecution has suppressed material evidence to this account. As per memo (Ext. PW4/B) the prosecutrix was produced by Smt. Goma and handed over to her parents. The same is witnessed by Sh. Gajraj and Sh. Rajinder. None of these witnesses have been examined by the prosecution. As noticed above Smt. Goma has also not been examined by the prosecution. Importantly, prosecution has also not associated Sh. Sudershan and Sh. Gajraj who allegedly searched the prosecutrix alongwith PW-4 on 31.12.1991. Further neither Ms. Ganja nor the brothers and sisters of the prosecutrix have been examined by the prosecution. The prosecution has not made any efforts to make inquiries from the priest of the temple of “Gugga Marri”. It is not the case of the prosecution that the temple is situated at a lonely place or that no one stays in the temple at night. It is not the case of the prosecutrix that accused No. 2 and 3 had forcibly concealed or confined the prosecutrix. The accused have been acquitted by the Court below. From the record it cannot be said that there is clear, convincing and 16 cogent material leading to the conclusion that the accused Narender Kumar had forcibly committed sexual intercourse with the prosecutrix. For the aforesaid reasons we do not find any ground for interference. There is no merit in the appeal and the same is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. (Deepak Gupta), Judge. (Sanjay Karol), Judge. March 17, 2010 (PK)