IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 383 of 1996 Date of decision: 16.3.2010 State of H.P. …. Appellant. Vs. Ramesh Kumar ... Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting?1. No. For the appellant-State: Mr. Ram Murti Bisht, Deputy Advocate General For the respondent: Mr. R.K.Gautam, Sr. Advocate with Sh. Sandeep Panday, Advocate. Per Deepak Gupta, J.(oral) This appeal by the State is directed against the judgement of the learned Additional Sessions Judge, Kullu, in Sessions trial No.4/95 dated 17.7.1995 whereby he acquitted the accused of having committed offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. According to the prosecution, the accused was working as a labourer in village Siunidhar in Tehsil and District Kullu with Shri Mani Ram (PW-9) uncle of the prosecutrix. The prosecutrix belongs to the same village. He used to visit the house of the prosecutrix off and on. According to the prosecutrix he made advances towards her and used to kiss and embrace her 1 Whether the reporters of the local papers may be allowed to see the Judgment. Yes. 2 whenever he visited her house in the absence of the family members. On 2.11.1993 the prosecutrix had gone to attend school. In the evening at about 4.00 p.m the accused met her. The accused then took her to a nearby orchard and told the prosecutrix that he wanted to marry her. He also told her that he would give her some ornaments and good clothes to wear. Thereafter, the accused caught hold of the prosecutrix and despite her protest untied the string of her salwar and made her lie on the ground. After completing the sexual act, the accused asked the prosecutrix to meet him next morning at village Laran- kelo. The prosecutrix went to Laran-kelo on 3.11.1993. At about 9.00 a.m the accused met her there and then took her to Harabag in Tehsil Jogindernagar by bus. From Harabag they both went to the village of the accused which was at a distance of about 1-1½ kilometer from the road. The prosecutrix and the accused slept in the house of the accused where he had sexual intercourse with her four times. On the next night also he had repeated sexual intercourse with the prosecutrix and this continued till the night of 6.11.1993. In the meantime, the father of the prosecutrix lodged a complaint with the police and on 7.11.1993 the police 3 accompanied by PW-5 Anup Kumar uncle of the prosecutrix went to the house of the accused and the prosecutrix was recovered. The accused was arrested. The prosecutrix was got medically examined. The clothes which she was wearing were sent for chemical examination and after completion of investigation challan was filed. After trial, the accused has been acquitted. Hence the present appeal. From the statement of the prosecutrix itself it is apparent that she was a consenting party to the sexual act. The accused had sexual intercourse with her in an orchard which is an open place. The prosecutrix does not state that she raised any alarm or hue and cry. Thereafter, she came home and did not inform any member of the family about the incident. Next morning of her own accord she went to Laran-kelo and met the accused. Thereafter, she travelled with the accused by bus till Harabagh in Jogindernagar. She does not even state that she attempted to inform any person that she had been raped. She stayed in the house of the accused for four nights and had sexual intercourse with him on numerous occasions. The house of the accused is in a village and obviously there are a number of other houses nearby. No attempt was made by the prosecutrix to report the matter to any person. Consent is, therefore, writ large. 4 This brings us to the next important question as to the age of the prosecutrix. If she is below 16 years of age then even if she is a consenting party the accused is guilty of having committed an offence. The prosecution in this behalf relied upon certificate Ext.PW-6/A. This certificate has been proved by the Record Keeper (PW-6) from the office of the CMO, Kullu. He brought the original register in the Court and according to him the entry in respect of Kumari Kala was at serial number 4 on 13.4.1978. This would make the prosecutrix fifteen years and six months at the time of occurrence. However, this certificate cannot be relied upon because PW-6 admits that in the register at Sr. No. 4 only the name Kala is written and he could not say how many girls by this name are there in the Gram Panchayat Nathan. Similarly, he could not state if there were other Piarus’ in Gram Panchayat Nathan. However, even more damaging is the fact that this witness admits that the entries in the register are not serial wise and that entries pertaining to the year 1979 are followed by the entries pertaining to the year 1978. This shows that the register is not maintained properly and in accordance with law. The learned trial Court rightly held that no reliance can be placed on this register. Furthermore, the person who made the entries has not been examined and only the 5 record keeper has been examined. The entry made in the register of births and deaths has probative value and is per-se admissible in evidence being a public record. However, when the record is not being maintained properly then it looses its probative value. We may also make a reference to the statement of PW-3 Dr. G.D.Gaur, who conducted the ossification test of the prosecutrix. On the basis of the skia-grams Ext.PW-3/A to Ext.PW-3/C, this witness has opined that the age of the prosecutrix appears to be 17 to 19 years. Therefore, the learned trial Court was right in holding that the prosecution has failed to prove that the prosecutrix was below 18 years. Neither any offence of kidnapping nor any offence of rape is proved against the accused. In view of the above discussion we find no merit in the appeal, which is accordingly dismissed. Bail bonds are discharged. (Deepak Gupta) Judge. 16th March, 2010 (Sanjay Karol) ™ Judge.