IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cri. Appeal No. 105 of 2009 with Cri. Appeal No. 74 of 2009 Reserved on : 15th November, 2010 Date of Decision: 29th December, 2010 Cri. Appeal No.105 of 2009 Ashok Kumar Appellant Versus State of H.P. Respondent Cri. A. No.74 of 2009 Rajesh Kumar Appellant Versus State of H.P. Respondent Coram The Hon’ble Mr. Justice R.B.Misra,J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. Cri.Appeal No. 105 of 2009 For the appellant: M/s Anup Chitkara and Chaman Negi, Advocates. For the respondent: Mr. R.K.Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. Cri.Appeal No. 74 of 2009 For the appellant: Mr. Onkar Jairath, Advocate. For the respondent: Mr. R.K.Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. Sanjay Karol, J. Accused Ashok Kumar and Rajesh Kumar are charged of having committed offences punishable under Sections 363, 376(2)(g), 342 and 506 read with Section Whether the reporters of Local Papers are allowed to see the Judgment? 2 34, IPC. In terms of judgment dated 4.4.2009 passed by Additional Sessions Judge (I), Kangra at Dharamshala, accused were held guilty of having committed the charged offences. They were sentenced to undergo rigorous imprisonment for a period of (i) one year and payment of fine of Rs.2000/- each for an offence punishable under Section 342 read with Section 34 IPC and in default thereof to further undergo simple imprisonment for a period of 2 months; (ii) five years and payment of fine of Rs.5000/- each for an offence punishable under Section 363 read with Section 34, IPC and in default thereof to further undergo simple imprisonment for a period of 6 months; (iii) ten years and payment of fine of Rs.20,000/- each for offences punishable under Section 376(2)(g) read with Section 34, IPC and in default thereof to further undergo simple imprisonment for a period of 2 years; and (iv) three years and payment of fine of Rs.5000/- each for offences punishable under Section 506 read with Section 34, IPC and in default thereof to further undergo simple imprisonment for a period of 6 months. All the sentences are to run concurrently. 2. Assailing the same accused Ashok Kumar has filed Criminal Appeal No.105 of 2009 and accused Rajesh Kumar has filed Criminal Appeal No. 74 of 2009. 3. It is the case of the prosecution that on 30.11.2005 Shri Varinder Rana (PW-1), who was serving in 3 the Army, had come home on leave at his house in village Kunshal. Same day at about 4 – 4.30 p.m. he took his wife Smt. Sapna Rana (PW-2) for shopping to the market at Mahakal (Baijnath). They left their daughter i.e. the prosecutrix (PW-8) at home. Accused Rajesh Kumar, who lived in the neighbourhood, called her to the gate of the house on the pretext of telling her something. When she reached the gate he forcibly pushed her inside the Jeep (HP-53-0216) parked in front of the house in which accused Ashok Kumar was sitting on the driver seat. Ashok Kumar brandished knife and threatened the prosecutrix not to raise alarm or else her family would be killed. Thereafter both of them took the prosecutrix in the vehicle to various places. After some time they parked the vehicle at a lonely place and raped her. She was then taken to the house of accused Ashok Kumar at Pandol Road, Baijnath. There they tied her mouth and hands with a piece of cloth and during night kept her alone in a secluded room. In the late hours of 1.12.2005 they returned and again raped her turn by turn. Next day i.e. on 1.12.2005 at 7 a.m. prosecutrix was made to sit in the train at Puprola Railway Station. They bought her a ticket upto Maranda Railway Station and then went away. Prosecutrix alighted the train at Puprola itself and after returning home disclosed the incident to her parents. Her parents took her to the Police Station at Baijnath where she lodged report and FIR No. 172/05 (Ext.PW-8/A) dated 4 2.12.2005 under Sections 376(2)g, 342, 363, 506, IPC, was registered. SI Shureshtha Thakur (PW-11) commenced investigation which revealed that prosecutrix was minor. She was got medically examined initially by Dr. Ramesh Kumar (PW-6), who issued MLC (Ext.PW-6/B) and thereafter by Dr.Bindu Sood (PW-7), who issued MLC (Ext.PW-7/A). Police took into possession certificate (Ext.PW-2/B) and abstract (Ext.PW-4/A) of the register showing that prosecutrix was below 16 years of age. Accused were arrested on 3.12.2005 and in the presence of Shri Nagesh Awasthi (PW-9) accused Ashok Kumar and Rajesh Kumar made disclosure statements (Ext.PW-9/A and Ext.PW-9/B respectively). They led the police to the place of crime. Knife (Ext.P-19) was also got recovered by them. Police took into possession blanket (Ext.P-20), on which prosecutrix was raped which had strains of her hair, bunch of sample hair of the prosecutrix (P-25) and underwear (Ext.P-26) belonging to accused Ashok Kumar. Spot maps (Exts.PW-11/A, PW-11/E and PW-1/F) were prepared at the spot. Documents of the vehicle in question were seized vide memo (Ext.PW-3/A). Accused were also got medically examined through Dr.Tilak Bhagra (PW-5), who issued MLCs (Ext.PW-5/B and Ext.PW-5/C). Pant (Ext.P-2), pajama (Ext.P-6), pubic hair (Ext.P-4 and Ext.P-7) of the accused and swab (Ext.P-3 and Ext.P-8) were also seized by the police. Clothes of the prosecutrix i.e. Salwar (Ext.P-9), 5 shirt (Ext.P-10), dupatta (Ext.P-11), bra (Ext.P-12), underwear (Ext.P-13), sample of blood in a bottle (Ext.P- 16), public hair (Ext.P-17) and vaginal swab (Ext.P-18) were also taken into possession. These articles were sent for chemical analysis to the State Forensic Laboratory and as per report (Ext.PW-17/B) human semen and blood were found on the samples collected by the police. Hair found on the blanket matched with the sample hair of the prosecutrix. Investigation revealed that case against the accused stood established, consequently challan was presented in the Court for trial. 4. Accused were charged for having committed offences punishable under Sections 363, 376(2)(g), 342 and 506 read with Section 34, Indian Penal Code, to which they did not plead guilty and claimed trial. 5. In order to prove its case prosecution examined 11 witnesses. Statements of the accused under Section 313, Cr.P.C. were also recorded in which they took up a defence of false implication. 6. Relying upon the testimonies of PW-1, PW-2, PW-8 and the medical evidence proved on record, Court below held the accused guilty, convicted them on all counts and sentenced them to undergo imprisonment and pay fine. Court found that there was no controversy with regard to the date of birth of the prosecutrix, which stood proved by prosecution by leading documentary evidence i.e. certificate 6 (Ext.PW-2/B and Ext.PW-4/A) and MLCs (Ext.PW-6/B) and (Ext.PW-7/A); testimonies of the prosecution witnesses were consistent with the fact that prosecutrix was forcibly taken away from her house under threat of her life and life of her parents; she was under constant fear of her life which compelled her not to protest against the illegal acts of the accused; prosecutrix had no reason to falsely implicate the accused; no parents would put the honour of their daughter at stake by making false allegations; parents of the prosecutrix promptly reported the matter to the police; and version of the prosecutrix and her parents fully inspired confidence. 7. At the threshold we may point out that Court below appears to have been swayed by the fact that prosecutrix was found to be minor. We may also state that Court below has been extremely presumptuous in its approach while arriving at such conclusions. To our mind, the findings are not based on sound principles of law. 8. The power of this Court under Section 386 of the Code of Criminal Procedure is wide. Court can re- appreciate the entire evidence on record as also review the trial Court’s conclusions with respect to both, facts and law. If the conclusions arrived at by the trial Court are likely to result in grave miscarriage of justice or that entire approach of the trial Court in dealing with the evidence is patently illegally rendering the judgment to be manifestly unjust and 7 unreasonable due to misreading of material evidence, the Appellate Court can correct the errors within the frame work of law. [Mohammed Ankoos & Ors. Vs. Public Prosecutor, High Court of Andhra Pradesh (2010) 1 SCC 94]. 9. In view of aforesaid statement of law we proceed to examine the evidence, oral and documentary, placed on record by the prosecution. 10. It is not in dispute that prosecutrix made a complaint in the presence of her parents, on the basis of which FIR (Ext.PW-8/A) was recorded by the police on 2.12.2005. 11. In the complaint, prosecutrix disclosed her age to be 15 years. In Court she also states this fact. According to her, at the time of the alleged offence, she was studying in 8th class. According to the parents, PWs 1 and 2, at the time of the alleged offence their daughter (prosecutrix) was 15 years and 2 months of age. This contradiction is insignificant. But, however, matter does not end here. Parents admit that out of the wedlock four children were born. Importantly, their names, ages and particulars of date of birth have not been placed or proved on record by the prosecution. PW-1 admits to have disclosed the age of the prosecutrix for the first time in Court. He admits that prosecutrix was born at Village Ahmednagar in Maharashtra and her date of birth was 8 neither registered at Ahmednagar nor registered in the Panchayat of his village by him. He volunteers to state that he had requested his mother to enter the date of birth of his daughter in the village Panchayat but clarifies that he is not aware as to whether same was got done by her or not. Mother has not been examined. Smt. Sapna Rana (PW-2) admits that she handed over certificate (Ext.PW-2/B) obtained from the school of the prosecutrix to the police. According to this certificate, prosecutrix was born on 7.9.1990 which means as on 30.11.2005, the date of the alleged offence, prosecutrix was 15 years and 2 months of age. Certificate (Ext.PW-2/B) was taken into possession vide recovery memo Ext.PW-2/A dated 9.12.2005, by H.C. Rajinder Singh (PW-3) according to whom certificate was handed over by the prosecutrix and not by her mother. There is minor contradiction to this extent but we have ignored it. Shri Baldev Singh, Head Master of Govt. High School, Kunshal (PW-4) issued certificate (Ext.PW-4/A), according to which date of birth of the prosecutrix as entered in the school register is also 7.9.1990. Importantly, this witness admits that neither did he make the entry in the register nor was it made in his presence. He could not state as to whether parents of the prosecutrix had filed an affidavit pertaining to her age at the time of admission. Register pertains to the admission made on 16.4.2005 in the 9th standard. He further admits that birth 9 certificate from the concerned Panchayat was not attached with the record. He could not state with certainty as to whether prior to 16.4.2005 prosecutrix was a student of the same school or not. Importantly Ext.PW-4/A pertains to the year in which the offence took place. Previous record has not been produced. Further it has also not been established as to who get the entry recorded in the school register. Therefore not much reliance can be placed on the same. None has come forward to prove the date of birth so recorded in certificate Ext.PW-2/B. None of the prosecution witnesses have deposed that entry in the school register was made on the basis of the entries recorded in the register maintained under the Births, Deaths and Marriages Registration Act, 1886 (for short the ‘Registration Act’) or the Pariwar register maintained by the Panchayat in which entry was made of the said basis.. 12. In order to prove the exact date of birth of the prosecutrix, prosecution ought to have placed material on record to show that name of the prosecutrix was entered either in the register maintained under the Registration Act or the Pariwar register maintained by the Panchayat in which entry was made on the basis of some authentic source/record. Proof of date of birth of other children could have reflected the tentative age of the prosecutrix. Most importantly S.I. Shureshtha Thakur (PW-11) has deposed that :- 10 “It is correct to suggest that the panchayat birth register extract of the prosecutrix has not been attached with the case file. It is also correct to suggest that even the parents of the prosecutrix had not produced such record of the panchayat about the age of the prosecutrix before me. It is also correct to suggest that the doctor has not written the bony age of the prosecutrix on her MLC. It is also correct to suggest that I had not applied for radiological age determination of the prosecutrix. Self stated the doctor had not advised for it. It is correct to suggest that I have not recorded statement of any panchayat official whether the age of the prosecutrix has been mentioned in the panchayat record or not.” 13. Here we may also note that version of the Investigating Officer to the effect that doctor had not advised him to get the radiological age of the prosecutrix determined stands contradicted by Dr.Bindu Sood (PW-7) who states that:- “I had also advised for x-ray examination of the prosecutrix to know her radiological age.” 14. In almost similar circumstances, this Court in State of H.P. v. Narender Kumar alias Hira and others, 2010 Cri.L.J. 3545, has held as under:- “9. The other evidence on this issue itself is the Family Register (Ext. PW-8/A) maintained by the Gram Panchayat Officer, Nayaye 11 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 person who had 12 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. 10. 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 13 evidentiary value to prove the age of the person in the absence of the material on which the age was recorded." (emphasis supplied) 11. 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.” 15. Consequently certificates (Ext.PW-2/B and Ext.PW- 4/A) cannot be accepted to be legal evidence proving the factum of date of birth of the prosecutrix. 16. No doubt in MLCs Ext.PW-6/B and Ext.PW-7/A, age of the prosecutrix is recorded to be 15 years, but however, noticeably in Court it is not the version of the Doctors that upon medical examination they found the prosecutrix to be of 15 years of age. Doctor Bindu Sood was not sure of the age of the prosecutrix and therefore advised the police of getting the x-rays examination conducted to determine the radiological age of the prosecutrix. Reliance on the age indicated in the MLCs (Ext.PW-6/B and Ext.PW-7/A) to prove the age of the prosecutrix in the circumstances is thus misconceived. No ossification test/skiagram was conducted by the prosecution to determine the exact date of birth of the prosecutrix. Evidence with regard to the age of other children has been withheld. 14 17. Keeping in view the ratio of law laid down by the Apex Court in Birad Mal Singhvi (supra), it cannot be held that the prosecution has been able to establish the exact date of birth of the prosecutrix, beyond reasonable doubt. She also cannot be held to be below the age of discrimination. 18. Before we further discuss the prosecution case and the testimonies of the prosecution witnesses we fell it prudent to discuss certain other principles of law laid down by the Apex Court in its various judicial pronouncements. 19. In Radhu vs. State of Madhya Pradesh, (2008) 2 SCC (Cri.,) 207, the Apex Court has held that:- “6. It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a 'rape', if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of 15 rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, writs, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case.” (Emphasis supplied) 20. In Tameezuddin alias Tammu vs. State (NCT of Delhi), (2009) 15 SCC 566, Court held that: “It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter.” (Emphasis supplied) 21. Further in Dinesh Jaiswal vs. State of Madhya Pradesh, (2010) 3 SCC 232, Court held that: 16 “10. Mr. CD. Singh has however placed reliance on Moti Lal's case (supra) to contend that the evidence of the prosecutrix was liable to be believed save in exceptional circumstances. There can be no quarrel with this proposition (and it has been so emphasised by this Court time and again) but to hold that a prosecutrix must be believed irrespective of the improbabilities in her story, is an argument that can never be accepted. The test always is as to whether the given story prima facie inspires confidence. We are of the opinion that the present matter is indeed an exceptional one.” (Emphasis supplied) 22. In Mussauddin Ahmed vs. State of Assam, (2009) 14 SCC 541, Apex Court further held that:- “It is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such material evidence is withheld, Court may draw adverse inference under Section 114 illustration (g) of the Evidence Act notwithstanding that onus of proof did not lie on such party and it was not called upon to produce the said evidence (vide Gopal Krishnaji Ketkar vs. Mohamed Haji Latif & Ors., AIR 1968 SC 1413).” 23. In the instant case Dr. Ramesh Kumar (PW-6), medically examined the prosecutrix on 2.11.2005 and found the following injuries on her person, “1.Lower lip an rounded minor laceration was present over the left side of 17 the lower lip. Painful to touch ½ cm x ½ cm in length and half cm. in breath (in measurement). The injured part was covered by a white stuff (whitish material); 2. Right side of the neck. Two scratch abrasions marks present over the right side of the neck. (posterior triangle of the neck). The above one is 3 cm. from angle of mandible, 2 mm x 1 mm in breadth covered with dark coloured blood (clotted blood), second abrasion (scratch) was situated at a distance of 5 cm. on the angle of mandible 2 mm x 1 mm in measurement and covered with clotted blood. Two scratch abrasions are separated by 2 cm. apart, and 3. Tenderness was present over the thyrohyorel region of the neck (frontal region.” (Emphasis supplied) 24. According to him, nature of the injuries were simple and 2-3 days old and abrasions could be sustained in a case of a person resisting rape. He states that tenderness found on the body of the prosecutrix was possible due to pressing of her throat and injury on her lip could be possible due to teeth bite. Further, after recording the aforesaid injuries he referred the prosecutrix to be examined by a lady doctor which was so done by Dr. Bindu Sood (Pw-7). Importantly on physical examination she found no injury marks on the breast, labia majora, labia minora,