1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 259 of 2000 Decided on October 8, 2010 __________________________________________________________ State of H.P. …Appellant. Versus Rajesh Kumar & Others ...Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. ¹Whether approved for reporting? No. For the appellant: Mr.R.K. Sharma, Senior Additional Advocate General. For the respondents: Mr. Surender Sharma, vice counsel. __________________________________________________________ Justice V.K. Ahuja,J. (Oral) This is an appeal filed by the State of H.P. under Section 378 of the Cr.P.C. against the judgment of the Court of learned Sessions Judge, Una dated 13.01.2000, vide which he acquitted the respondents of the charge framed against them under Sections 363, 366, 376 and 120-B of the Indian Penal Code. 2. Briefly stated, the facts of the case are that in the year 1996 on 25.2.1996, complainant (PW.2) Vipin Kumar came to his house and learnt from his mother that Nisha Rani, his younger sister, aged about 16 years,was missing from the house. He searched for his sister in the house of his relatives. His mother also told him that Nisha had accompanied Shiv Kumar and his wife. She told that Nisha Rani had gone to see them off at bus-stand, but she did not return at evening to the house. He enquired from his friends and relatives. On 27.2.1996 he 2 had also expressed his suspicion that Nisha Rani had gone with Shiv Kumar and Rajesh Kumar. He lodged the report and came back to his house on 27.2.1996 from the Police Station and found Nisha Rani present in his house and accused Rajesh was also present there. Nisha Rani was taken into custody by the police and police handed over her custody to her brother vide memo Ex.PC in presence of Pawan Kumar and Surinder Kumar. On this report, a case was registered and after investigation, the challan was filed before the learned JMIC, Amb, District Una, who committed the case to the learned Sessions Judge, Una and respondents were tried for the sections mentioned above, leading to their acquittal. 3. We have heard the learned counsel for the parties and have gone through the record of the case. 4. From the perusal of the evidence led by the prosecution, it is clear that the prosecution had examined 11 witnesses to substantiate their case. The material question which arises for consideration is regarding the age of the prosecutrix on the date of occurrence i.e. 25.2.1996. The prosecution had examined PW.3, who had only stated that she was less than 16 years of age at that time, but she did not state her date of birth in her statement. PW.7 Ravi Dutt, Secretary Gram Panchayat, Sathothar had brought the register in which dates of birth are entered of the area of Gram Panchayat, who had issued certificate Ex.PE pertaining to the date of birth entered in the register of Nisha Rani. He has admitted that Ex.PE is not the certified copy of the entry in the register, but is a certificate issued on the basis of the entry made in the register. The extract of the page of the register is Ex.PE/1. He has stated that he handed over the certificate Ex.PE/2 to the police in 3 presence of witnesses Ajit Sharma and Sohan Singh. He admitted that certificate was not prepared by him and the register does not have any certificate regarding paging of the papers and there are some interpolation. According to this certificate, date of birth of the prosecutrix was 22.8.1980 which suggests that she was less then 16 years of age on the date of occurrence, but entry in the Parivar register regarding the of date of birth, cannot be said to be authentic to prove the date of birth of the prosecutrix. 5. PW.9 Smt. Urmila Rani, teacher Government Primary School, Sathothar had also brought the original admission and withdrawal register alongwith original form of admission of the prosecutrix and she has also produced copy of the register Ex.PG and the date of birth is entered on the basis of the admission form Ex.PG/1. She issued certificate Ex.PG/1 in this regard. She has not stated that this certificate was issued on the basis of the original date of birth entry produced by the parents of the prosecutrix and as such, no reliance can be placed upon this certificate. 6. From the perusal of the above evidence, it is clear that the evidence led by the prosecution does not establish that the date of birth of the prosecutrix was 28.8.1980 and the documents produced by the above witnesses, namely, Ravi Dutt (PW.7) and Urmila Rani (PW.9) do not establish that the prosecutrix was of the age of less than 16 years on the day of occurrence. 7. Coming to the evidence in regard to the kidnapping of the prosecutrix Nisha Rani by one Shiv Kumar, his wife, son and maternal uncle, who had come to their house, meaning thereby they were known to the prosecutrix and she had gone to the bus stand alongwith them and 4 respondent Rajesh Kumar met them on way and she accompanied Rajesh Kumar on the motorcycle at the instance of Shiv Kumar. She further stated that on the motorcycle she was taken to a room at village Jhalera and the room belonged to one Rakesh Kumar. She admitted that when she went to the room she did not raise an alarm and attracted the attention of the passers-by and as such, there is nothing on record to show that she was forcibly taken to the room of one Rakesh Kumar at Jhalera. 8. Coming to the fact of sexual intercourse, she has stated that Rajesh Kumar had committed sexual intercourse with her during her stay for two nights and two days (25.2.1996 and 26.2.1996) in the room of Rakesh Kumar at village Jhalera. In the morning of February 27,1996 she alongwith Rajesh Kumar had gone in a bus from Jhalera to Dussara. He thereafter asked the prosecutrix to go to her house and promised her to follow her to her house. In cross- examination, she has deposed that she remained in the room at Jhalera for two days and two nights and she did not urinate nor went to ease out during this period. Now question arises whether this statement of the prosecutrix can be believed that for two days and two nights she did not urinate at all. In cross-examination in her statement, she has nowhere stated that sexual intercourse was done with her against her consent or she raised an alarm or she resisted this act of the respondent by any means. 9. The medical examination of the prosecutrix was done by PW.6 Dr. Usha Daroch, who issued certificate Ex.PD in this regard. The observations made by the Medical Officer are as under:- “The vagina and uterus of the prosecutrix admitted two fingers. 5 The hymen of the prosecutrix stood completely destroyed. The margin of the hymen were reddish and swollen. There was no injury present on the vagina.” 10. She has clearly stated in cross-examination that it was given in certificate Ex.PD that there was no injury found on the vagina and hymen. The prosecutrix was used to sexual intercourse, as per opinion given by the Medical Officer, since the vagina of the prosecutrix admitted two fingers and nothing has been stated by the Medical Officer which could suggest that this was done forcibly and there was any injury on the person of the prosecutrix. The clothes of the prosecutrix were also taken into possession by the Medical Officer (PW.6) and according to the report of the Chemical Examiner Ex.PK, no blood or semen was found on the clothes taken into possession by the medical officer and the police. Therefore, there is no corroboration to the statement of the prosecutrix that she was raped by the accused. There are no signs of resistance on the body of the prosecutrix and she remained in the house of the accused for two days and had every opportunity to raise an alarm or attract the attention of the persons of the nearby locality but she did not make efforts to do so during the period she was confined in the house of accused Rakesh Kumar. Therefore, it cannot be said that rape was committed upon the prosecutrix by the accused. 11. It has come in the evidence of PW.11 Om Prakash, the Investigating Officer, that he recovered the prosecutrix at bus stand Amb and he also arrested the accused on the same day. However, the statements of the prosecutrix herself and that of her brother suggest that she was recovered from the house and accused was also present in the 6 house, where she had reached prior to reaching of her brother Vipin Kumar. Learned trial court had also observed that the prosecutrix has stated in her statement that she did not come out for urinating nor went to ease out for two days, when she stayed in the house of accused. This was not believed by the learned trial court by holding that she had tried to suppress something in her statement made in the Court. Moreover, she has admitted in cross-examination that there is a bazar at Jhalera, then why she did not raise any alarm or tried to attract any passers-by for help. 12. The evidence led, therefore, clearly shows that the charge of rape and kidnapping was not established beyond reasonable doubt and the prosecutrix had voluntarily gone with the accused on his motorcycle. The owner of the motorcycle, namely, Prem Kumar was not examined by the prosecution to prove that his motorcycle had been taken by the respondent on that day. The prosecution has also not examined the witnesses to the recovery memo Ex.PC, namely, Pawan Kumar and Surinder Kumar, who could prove if the girl was recovered from the bus stand as stated by PW.11 S.I. Om Prakash, the Investigating Officer, or she was recovered from the house, as stated by the prosecutrix herself as PW.3 as well as by her brother Vipin Kumar PW.2. 13. The learned trial court has also observed that the girl was abducted on 25.2.1996 but the report was lodged on 27.2.1996 and no explanation has been given for the delay in lodging the report by the complainant. The delay in lodging the report does not prove to be fatal for the prosecution but it sounds a note of caution for the court to be more careful while appreciating the evidence of the prosecution 7 witnesses. 14. In view of the aforesaid discussion, it is clear that the the learned trial court had come to the conclusion that prosecution has failed to prove its case, which findings of the learned trial Court cannot be said to be perverse calling for an interference by this Court. We accordingly hold that there is no merit in the appeal filed by the appellant, which stand dismissed. The bail bonds furnished by the respondents shall stand discharged. (R.B. Misra) Judge October 8, 2010 (V.K. Ahuja) (Purohit) Judge