IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 721 of 1996. Reserved on: 17.5.2010. Decided on: 17.6.2010. ___________________________________________________________ State of H.P. … Appellant. Versus Budhi Singh and others. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Vivek Thakur, Addl. Advocate General. For the Respondents : Mr. Romesh Verma, Advocate. ___________________________________________________________ V.K. Sharma, Judge. The State is in appeal against the judgment, dated 30.4.1996, of the learned Sessions Judge, Sessions Division, Kinnaur at Rampur, acquitting the respondents, who shall hereinafter be referred to as the accused (in short ‘A1’, ‘A2’, ‘A3’ (so on and so forth) of the respective charges, under Sections 363, 366-A, 368 read with Section 34 and 376 of the Indian Penal Code. 2. The law enforcing machinery was set in motion in this case by PW-2 Shri Amba Dutt by making the following complaint to the Sub Divisional Judicial Magistrate, Rampur Bushehar, District Shimla, H.P. on 10.7.1995: 1 Whether reporters of the local papers may be allowed to see the judgment? “IN THE COURT OF SUB DIVISIONAL JUDICIAL MAGISTRATE, RAMPUR BUSHAHR, DISTT. SHIMLA, H.P. Cr. Complaint No……./95. In re: Sh. Ambha Dutt, son of Sh. Gulabu Ram resident of village Larki, P.O. Kotighat, The. Kumarsain, Distt. Shimla, H.P. ….. Complainant. 1. Smt. Besru Devi, wife of Sh. Chimna resident of village Jar Tehsil Kumarsain. 2. Smt. Krishana Devi, wife of Sh. Shayama resident of village Larki. Sh. Shayama, son of Sh. Bagru resident of village Larki, 3. Sh. Gianu, son of Sh. Bagru resident of village Larki. 4. Sh. Bagru, son of Sh. Jamnu resident of vill. Larki, Tehsil Kumarsain. ….. Accused. Complaint under Section 363, 366, 366-A, 376 I.P.C. Respectfully sheweth: 1. That the complainant and the accused except accused No.1 are residents of the same village and are also related to each other. They have been visiting the house of each other. Smt. Besru accused No.1 is the mother of accused No.2. She also used to visit the house of the complainant. 2. That the complainant is having a minor daughter named (Name with-held. She shall hereinafter be referred to as the ‘prosecutrix’), who was born on 9.2.1981. The certificate to this effect from the Gram Panchayat is attached herewith. 3. That accused No. 1 and 2 used to come to the house of the complainant and some times they used to take the prosecutrix with them to the house of Sh. Bagru. The complainant never doubted their intention, being relatives. The complainant is a poor person. The accused persons have been alluring and making false promises to the daughter. All the accused persons have been inducing her that she will be given gold ornaments and better food and will also take her to Shimla and other places for touring etc. 4. That on 25th June, 1995 at about 5 PM the daughter of the complainant was alone in the house as the complainant had gone to Narkanda and the wife had gone to jungle to fetch fire wood. All the accused persons came there and compelled her by deceitful means to go from that place with them. All the accused persons kept her at some unknown place and thereafter in the night took her from there. The accused No.4 remained in his house and other accused persons accompanied her. Thus, the accused persons kidnapped and abducted the minor daughter of the complainant with intent that she may be compelled to have sexual intercourse illegally with the accused No.3 and then later to compel her to marry with him. 5. That on getting the information about her daughter, the complainant came to his house on 28th June, 95 and started searching her here and there and also in the houses of his relatives. But he could not find her. However, when the complainant came to his house on 3rd July, he was informed by Sh. Deep Ram and Kamne Ram that they have seen his daughter along with accused No.1 to 3 in Theog Bazar on 2nd July, 95. On this the complainant went to the house of accused No.4 and asked him. But he instead of giving proper reply threatened him with dire consequences. Thereafter, I went to Theog to search the daughter. But he could not search her. The complainant on 8th went to the Police Station, but no action has been taken so far. The accused No.3 had been having illicit sexual intercourse with her and might have disposed her to some other person, as he has come back to the house alone. It is, therefore, requested that in the interest of justice, the accused may kindly be convicted under the offences, they have committed. 10.7.95. Complainant. Sd/- in Hindi.” 3. The learned Sub Divisional Judicial Magistrate, Rampur Bushehar forwarded the above complaint to the S.H.O., Police Station, Kumarsain on the same day (10.7.1995), vide the following endorsement: “10.7.95. Present: Complainant in person with Sh.K.C. Bansal, Advocate. Heard. Let this complaint be forwarded to S.H.O., P.S., Kumarsain for investigation u/s 156 (3) of Cr.P.C. Sd/- 10.7.95.” 4. Consequently, a case under Sections 363, 366, 366-A and 376 IPC was registered at Police Station, Kumarsain, vide FIR No. 60/95 Ext. PW-11/A, dated 13.7.1995. 5. During investigation, the prosecutrix was recovered from the house of A-1 Budhi Singh on 19.9.1995, vide recovery memo Ext. PW-2/B. She was entrusted in the custody of her father PW-2 Shri Amba Dutt, after recording her statement Ext. PW-1/A, under Section 161 Cr.P.C., wherein she absolved the persons mentioned as accused in complaint Ext. PW-2/A and FIR Ext. PW- 11/A and instead involved the accused herein for the above offences. In nut shell, she alleged that she was allured by A-2 to A-4 to marry A-1 Budhi Singh, who misrepresented that he was unmarried and that thereafter, she was taken by him to different places such as Kangal, Shimla, Karsog, Tatapani etc. where they worked as labourers. During this period, except when they stayed at the house of one Sat Pal at Kangal for the night, A-1 Budhi Singh committed sexual intercourse with her. It was further stated by her that lateron she came to know that A-1 Budhi Singh was already married and was having two children. Lastly, she stated that Gian Chand (mentioned at Sr. No.3 (in fact Sr. No.4) of complaint Ext. PW-2/A) is related to her as cousin in brotherhood. 6. Thereafter, she was sent for medical examination to CHC, Kumarsain and Medico Legal Certificate Ext. PW-7/A was obtained from PW-7 Dr. Era Vermani, who opined as under: 1. Ruptured hymen, introitus admitting two fingers are positive signs indicating sexual penetration. 2. No sign of any injury on the body or genitalia, no fresh tear of the hymen, no spermatozoa in the posterior fornix aspirate indicate no recent sexual intercourse. 3. Single finger P/V examination revealed a nulliparous uterus indicating, she is not pregnant at present.” 7. The prosecutrix was also subjected to ossification test as per skigrams Ext. PW-11/F (colly) and certificate Ext. PW-7/B was obtained, according to which, her skeletal age was stated to be 14½ to 15½ years. As per birth certificates Ext.PW-5/A and Ext. PW-5/B, date of birth of the prosecutrix is recorded as 9.2.1981. 8. A-1 Budhi Singh was also subjected to medical examination, vide certificate Ext. PW-8/A and found to be capable of the act of sex. ‘Kamiz’ and ‘Salwar’ of the prosecutrix and underwear of the accused were sent to the State Forensic Science Laboratory, H.P., Shimla for examination and report Ext. PW-11/G was obtained, which revealed presence of human semen on the same. 9. On completion of investigation, the accused were sent up to face trial. On being charged, they pleaded not guilty and claimed to be tried. The prosecution evidence followed. It has examined 11 witnesses in all. 10. On close of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. Their case in defence is that of denial simplicitor, innocence and false implication. However, A-1 Budhi Singh admitted that he was medically examined. According to him, the prosecution witnesses have deposed against him at the instance of the police and Bagru, Gianu and Krishna (mentioned as accused in complaint Ext. PW-2/A). 11. On conclusion of the trial, all the accused were acquitted, as already noticed. 12. We have heard the learned Additional Advocate General for the appellate-State and the learned counsel for the respondents-accused and perused the record. 13. The impugned judgment, dated 30.4.1996, has been challenged on behalf of the appellant-State mainly on the ground that at the relevant time the prosecutrix was below the age of 16 years and as such, was not competent to consent for the act of sex with A-1 Budhi Singh and the findings to the contrary returned by the learned trial Court are not borne out of the evidence on record, the same is supported by the respondents-accused. 14. The most material question in this case is as to what was the age of the prosecutrix on or about 25.6.1995 when the alleged occurrence had taken place. In complaint Ext. PW-2/A, the complainant, PW-2 Shri Amba Dutt had stated that the prosecutrix was minor and her date of birth is 9.2.1981. In birth certificates Ext. PW-5/A and Ext. PW-5/B proved in evidence by PW-5 Shri Mangat Ram, Secretary of the concerned Gram Panchayat as well, the date of birth of the prosecutrix is recorded as 9.2.1981. Though PW-5 Shri Mangat Ram has stated during cross-examination that he had not brought the birth register to the Court on the day he was examined as a witness, yet this part of his deposition would not make any difference for the reason that even otherwise certificates Ext. PW-5/A and Ext. PW-5/B are per se admissible in evidence and as such, can be safely relied upon, as has been held by the Hon’ble Supreme Court in Harpal Singh and another v. State of Himachal Pradesh, AIR 1981 Supreme Court 361, vide para 3 of the judgment which reads as under: “In the instant case the prosecution has proved the age of the girl by overwhelming evidence. To begin with, there is the evidence of Dr. Jagdish Rai (PW 14) who is a radiologist and who after X-Ray examination of the girl found that, she was about 15 years of age. This is corroborated by Ex. PF, which is an entry in the admission register maintained at the Government Girls High School, Samnoli. (wherein the girl was a student) and which is proved by the Head Master. That entry states the date of birth of the girl as 13th October, 1957. There is yet another document viz., Ex. PD, a certified copy of the relevant entry in the birth register which shows that Saroj Kumari, who according to her evidence was known as Ramesh during her childhood, was born to Lajwanti wife of Daulot Ram on 11-11-1957. Mr, Hardy submitted that in the absence of the examination of the officer/chowkidar concerned who recorded the entry, it was inadmissible in evidence. We cannot agree with him for the simple reason that the entry was made by the concerned official in the discharge of his official duties, that it is therefore clearly admissible under Section 35 of the Evidence Act and that it is not necessary for the prosecution to examine its author. From whatever angle we view the evidence, the conclusion is inescapable that Saroj Kumari was below 16 years of age at the time of the occurrence. Accordingly we agree with judgments of the courts below and see no merit in this appeal which is dismissed.” 15. To the similar effect is the law laid down by the Hon’ble Apex Court in a recent judgment reported as Arjun Singh v. State of Himachal Pradesh, (2009) 4 Supreme Court Cases 18. 16. In Medico Legal Certificate Ext. PW-7/A, the age of the prosecutrix as on 20.9.1995 is recorded as 14 years. As already noticed, her skeletal age was also opined to be between 14 ½ and 15 ½ years at that time. The prosecutrix while appearing as PW-1 on 16.4.1996 and on being declared hostile has admitted during cross-examination by the learned Public Prosecutor that she was aged 13 years at the time of occurrence. Though apparently such statement was on the face of it a conscious effort to scale down her age, yet this aspect of the matter is not very material for the reason that in any case she was below 16 years of age at the relevant time. 17. The testimony of PW-3 Smt. Budhi Devi @ Chander Mani, the mother of the prosecutrix, who was also examined on 16.4.1996, also falls within the same category as that of the prosecutrix. She has stated that she is having three children. The elder son is Kailash, who is 16 years of age. The prosecutrix is aged 14 years. The age of the younger son, Ramesh is 10 years. 18. Similarly, the testimony of PW-2 Shri Amba Dutt, the father of the prosecutrix, who was also declared hostile, during cross-examination by the learned defence counsel that he was married about 20-25 years ago and that his elder son Kailash was born about three years after his marriage and the prosecutrix was born thereafter after 2 ½ years would not make any difference in the face of the above documentary evidence as also for the reason that this part of his testimony is based on mere approximation, there being a gap of five years relating to the estimated period when he was married. 19. For the reasons stated above, the case law cited on behalf of the accused on the point of determination of the age of the prosecutrix does not apply to the facts and circumstances of the present case and is clearly distinguishable. The authorities are: i) Paramjit Singh v. State of Himachal Pradesh ILR (Himachal Series) (1986) 459, ii) Balvinder Singh alias Billa v. State of H.P. 1996 STPL (HJ) 1102 HP, iii) Chaman Singh and another v. State of H.P. 2009 STPL (HJ) 1960 HP, iv) Khyali Ram v. State of Himachal Pradesh, 1978 STPL (HJ) 229 HP and v) Chidda Ram v. State 1992 Cri.L.J. 4073. 20. In view of the above discussion, it can be safely concluded that the prosecutrix, who was born on 9.2.1981 was aged about 14 ½ years and thus, below the age of 16 years on or about the date of the alleged occurrence, that is, 25.6.1995. 21. True it is that conviction can be based on the sole testimony of the prosecutrix, if otherwise found to be reliable, trustworthy and inspiring confidence. This proposition has been succinctly laid down by the Hon’ble Supreme court, vide para 5 of a recent judgment, reported as Dinesh Jaiswal v. State of M.P., AIR 2010 Supreme Court 1540, as under: “Mr.C.D. Singh has however placed reliance on Moti Lal’s case (AIR 2008 SC (Supp) 882: 2008 AIR SCW 4846( (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 emphasized 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.” 22. To the similar effect is the law laid down by Hon’ble Supreme Court in S. Ramakrishna v. State (2009) 1 Supreme Court Cases 133. 23. However, in the present case the testimony of the prosecutrix does not come up to the above standard. The reasons to arrive at this inference are set out hereinafter. 24. While making complaint Ext. PW-2/A to the Sub Divisional Judicial Magistrate, Rampur Bushehar, the complainant, PW-2 Shri Amba Dutt had named five persons, namely Besro Devi, Krishna Devi, Shyama, Gianu and Bagru as accused for commission of the offences, under Sections 363, 366, 366-A and 376 IPC and consequently, all of them were named as such in FIR Ext. PW-11/A. However, neither any of them has been arraigned as an accused in this case nor their names have been shown in column 2 of the format of the final report submitted under Section 173 Cr.P.C. Furthermore, there is not even a mention about them in the said report. The genesis of the alleged occurrence shall have to be viewed against this backdrop. 25. The prosecutrix, who has been examined as PW-1, her father PW-2, Shri Amba Dutt (complainant) and her mother PW-3, Smt. Budhi Devi @ Chander Mani are the most material witnesses for the prosecution. However, they have turned hostile. 26. It is a settled proposition of law that testimony of a hostile witness is not liable to be discarded in its entirety and is required to be appreciated in the light of the law laid down by the Hon’ble Suprme court in the authorities relied upon on behalf of the appellant-State reported as (i) Radha Mohan Singh alias Lal Saheb and others v. State of U.P. with Kaushal Kishore Singh and another v. State of U.P. (2006) 2 Supreme Court Cases 450, (ii) Ramappa Halappa Pujar and others v. State of Karnataka (2007) 13 Supreme court Cases 31 and (iii) Ramkrushna v. State of Maharashtra (2007) 13 Supreme Court Cases 525. 27. The version stated by the prosecutrix before she was declared hostile is to the following effect: “I do not recognize the accused persons present in the court. Today I was called with my statement regarding my removal by one Gianu who is not present in the Court. I was taken by Gianu from my house and thereafter we went to the house of Besru. The incident is of last year probably of Jaith month. One Krishan and Besru came to my house and asked me to accompany Besru to marry with Gianu.” 28. In cross-examination by the learned Public Prosecutor, she has stated that she was kept at the house of A-1 Budhi Singh by Besru, Krishna and Gianu, (who were named as accused by the complainant, PW-1 Shri Amba Dutt in complaint Ext. PW-2/A and are not accused herein). While admitting that she was recovered from the house of A-1 Budhi Singh, she denied that she was kept in the room of A-2 Het Ram by A-1 Budhi Singh. She has also denied that A-3 Balmo, A-4 Kalu @ Kalawati and A-5 Savitri had come with A-1 Budhi Singh to her house and had asked her to marry him and that at that time her parents were away. However, she has volunteered that only Besru and Krishna had come to her house during the absence of her parents. At this juncture, she admitted that A-1 Budhi Singh committed sexual intercourse with her, when he took her to Shimla. She has also admitted that A-1 Budhi Singh promised that he would marry her. However, she has denied that he allured her and committed sexual intercourse. She admitted that A-1 Budhi Singh was already married and having children and that he had not disclosed this fact to her when he had committed sexual intercourse with her. However, she has denied that due to the allurement given to her by him, she had permitted him to have sexual intercourse with her. She has also admitted that A-3 Balmo, A-4 Kalu @ Kalawati and A-5 Savitri had not disclosed about marriage of the accused. However, she denied that they had asked her to marry A-1 Budhi Singh. She has also denied that A-1 Budhi Singh had taken her to the house of Het Ram and there also he committed sexual intercourse with her. She has admitted that A-1 Budhi Singh had kept her for a period of over one month and taken to different places and during this period, he was subjecting her to sexual intercourse. She has also admitted that A-1 Budhi Singh committed the act of sex with her without her consent. She has also admitted that on being recovered from the house of A-1 Budhi Singh, she was handed over to her father and thereafter, she was medically examined and her ‘Kamiz’ and ‘Salwar’ were also taken into possession by the police. 29. She has further admitted that her statement was recorded by the police under Section 161 Cr.P.C. and that portion A to A of the same is correct. However, she has volunteered to state that the statement was made by her under fear of the aforesaid Besru and Krishna, who threatened her that if she disclosed their names, they would kill her, though she has admitted that the police had not compelled her to make this statement. She has denied that when she was going in search of Mushroom (Guchhi), the accused had met her in the jungle. She has also admitted that she had told A-1 Budhi Singh that as she was under age, she could not go with him. She has denied that on the next day, she had gone to Shimla from the house of A-1 Budhi Singh and has volunteered to state that she was in the house of the aforesaid Besru. She has denied that A-1 Budhi Singh had asked her to keep mum in the presence of his parents. She has also admitted that she had disclosed to the police that A-1 Budhi Singh had committed sexual intercourse with her at Shimla. She has further admitted that when she came to know about the marriage of A-1 Budhi Singh, she asked him to take her to her parents house but he refused. However, she has denied that one Gopal Singh and A-1 Budhi Singh came to meet her parents. She has further admitted that the accused remained committing sexual intercourse with her after disclosing the fact of his earlier marriage. It is further admitted by her that Gian Chand (mentioned at Sr. No.3 of complaint Ext. PW-2/A) is related to her as brother from village brotherhood being the son of her uncle. However, she has denied that all the accused allured her and compelled her to marry A-1 Budhi Singh. Despite the denials noticed hereinabove, she has owned her statement Ext. PW-1/A, except its portion J to J. She has denied that she was deposing falsely. 30. In further cross-examination by the learned defence counsel, she has admitted that when she was with A-1 Budhi Singh, she was doing labour work at different places. She has further admitted that during this period she did not disclose that he had taken her forcibly from her house. However, she has denied that both of them traveled in buses during this period. It is further admitted by her that prior to this case, she had run away with the aforesaid Gianu, who had committed sexual intercourse with her, but the matter was compromised. She has denied that Gianu had given 1 ½ bighas of land to her father in lieu of compromise and volunteered to state that the land was purchased from the father of Gianu prior to the incident. According to her, she came to know about the marriage of A-1 Budhi Singh after 20-25 days of her stay with him. Thereafter, she remained with him for about one month. She has further stated that Gianu is not her real brother but is from her village. She has also admitted that statement Ext. PW-1/A was made by her to the police at the instance of Besru, Krishna and Gianu. She did not remember after how many days her custody was handed over to her father. She had not disclosed “anything that I was asked (by) Gianu, Besru and Krishna to involve the accused in the case”. She had also not disclosed anything about this incident to her parents. It was