Crl. Appeal No. 835 SB of 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Appeal No. 835 SB of 2000 Date of decision:20.12.2010 Aasu ..Appellant Versus State of Haryana ..Respondent. CORAM:HON'BLE MR. JUSTICE JITENDRA CHAUHAN. Present: Mr. Sudhir Sharma, Advocate for the appellant. Mr. Kshitij Sharma, AAG, Haryana. *** JITENDRA CHAUHAN, J. 1. Aasu @ Pehlwan herein the appellant has preferred this appeal against the judgment/order dated 11.7.2000/13.7.2000 by which, he was convicted under Sections 366A and 376 IPC and sentenced to undergo R.I. as under: 366A : Sentence to undergo R.I. For five years. Fine of Rs. 1000/-. In default of payment of fine R.I. for three months. 376IPC : Sentence to undergo R.I. 10 years. Fine of Rs. 2000/- In default of payment of fine R.I. for six months. 2. The FIR No. 63 dated 12.3.1998 was registered on the statement of the prosecutrix in which she has stated that 20 days ago her father had gone out of station. At about 10.00 PM when she was sleeping with her mother outside the hut, Aasu @ Pehlwan came to their house and after awakening her told that Maksoodan his wife had called her. She accompanied him. On reaching the house of the accused, she enquired from him regarding the where abouts of Maksoodan. She further stated Crl. Appeal No. 835 SB of 2000 2 that there was a cot on the first floor and he raped forcibly against here wish. The accused threatened to kill her that in case she raised a noise he will be killed with the knife, he was carring. She remained with him for about two hours. It took about 2 hours for the accused who went on committing rape on her without her consent. He committed rape 3-4 times. She further stated that she became unconscious at that time. After 10-15 minutes when she became conscious, she came back to her house and told the whole story to her mother. 3. The statement of the prosecutrix was recorded by Sub Inspector Dharam Pal PW10. After completion of investigation challan against the accused was presented in the Court of Judicial Magistrte who committed it to the Court of Session for trial. 4. Aasu @ Pehlwan was charged by the Additional Sessions Judge, Gurgaon under Section 366A IPC for forcing illicit intercourse and seducing the prosecutrix minor girl under the age of 18 years on 12.3.1998 and also for offence under Section 376 IPC for raping the prosecutrix. 5. In order to prove its case the prosecution examined eleven witnesses. In his statement under Section 313 Cr.PC the accused pleaded not guilty and claimed trial. In defence the accused proved copy of order dated 20.5.1983 in a civil suit Aasu Mohd. Versus Rozdar. 6. After appreciating evidence, the accused was convicted as sentenced as stated above. Feeling aggrieved against the judgment of conviction and sentence the accused-appellant has preferred this appeal which was admitted for hearing on 13.9.2000. 7. Learned counsel for the accused-appellant submits that there is Crl. Appeal No. 835 SB of 2000 3 unexplained delay of 20 days in lodging the FIR. There is not even an iota of evidence on record to prove the age of the prosecutrix. The prosecutrix was a consenting party. She was more than 18 years of age. As per voter identity card the prosecutrix was to born in the year 1978, therefore, on the date of the commission of the crime she was about 20 years. Even as per the ration card she was more than 20 years on the date of occurrence. 8. On the other hand, the State counsel submits that the prosecution has fully proved its case. The prosecutrix, PW2, supported the case and Amin, PW5, the father of the prosecutrix corroborated her statement. The details have been fully explained by Ratiman, PW6, a witness of the Panchayat. Sub Inspector Ram Chander, on completion of investigation submitted the challan. Shamshdeen, PW4, proved the delivery of special report to the Illaqua Magistrate. Dr. B.B. Aggarwal PW8 radiogically examined the prosecutrix and submitted his report PW8/A along with X-ray films Ex.P1 to P4. He proved that age of the prosecutrix is between 14½ to 15 years. Dr. Sonia Kohli, PW9, on 12.3.1998 at about 2.45 p.m., conducted medico legal examination of the prosecutrix he submits that age of the prosecutrix may be 15½ to 16 years. Sub Inspector Dharam Pal PW10 proved the investigation conducted by him. Sarvan Kumar, draftsman PW11 proved the site plan Ex.P11/A Constable Sabir Ahamd and Head Constable Tejbir Singh tendered their affidavits Ex. PX and PY in evidence respectively. 9. I have heard learned counsel for the parties and carefully gone through the record. Crl. Appeal No. 835 SB of 2000 4 10. After perusing the record I feel that the prosecution has failed to prove the age of the prosecutrix. Amin, PW5, the father of the prosecutrix while appearing as a witness did not state even a single word about the age of the prosecutrix. The mother of the prosecutrix was neither cited nor examined as a witness. Both the parents of the prosecutrix are the best and material witnesses to prove the age of the prosecutrix. The birth entry record of the Chowkidar was not produced. The prosecution withheld the best available evidence from the Court, regarding the age of the prosecutrix. Therefore, it is not proved on the basis of any document that the prosecutrix was below the age of 18 years. 11. Hon'ble Supreme Court in "Sunil Versus State of Haryana" 2010 (1) Supreme Court Cases Criminal 910 while acquitting the accused held that in such cases conviction cannot be based on an approximate age which is not supported by any oral or documentary evidence. 12. The prosecutrix, PW2, deposed that she and her mother were sleeping outside the hut when the accused-appellant came there. The appellant called her, on which she awakened from sleep. When a stranger had come to her house, the prosecutrix was supposed to awaken her mother, but she did not do so. It is not the case of the prosecutrix that the appellant was armed with any deadly weapon. Therefore, her conduct becomes doubtful. She appears to be the consenting party. She has made material improvements in her depositions. In statement Ex. PC, it is not mentioned that the appellant threatened her to kill with the knife. She remained in the Chobara ( upper storey room) for two hours. She did not receive any scratch or even a minor injury. It appears that she was a Crl. Appeal No. 835 SB of 2000 5 consenting party to the alleged act of rape. It is admitted by her that the house of Aasu accused-appellant, where she went with him, is surrounded by the house, on all four sides. She even did not raise voice while going to his house so it can be informed that she was a consenting party she might have called accused-appellant or she went with him voluntarily otherwise she would have resisted entry of the accused- appellant in the area of their hut by awakening other family members. 13. Dr. Sonia Kohli PW9 who examined the prosecutrix stated that on 12.3.1998 at about 2.45 p.m. She medico legally examined prosecutrix on police request and found as follows:- "Alleged history of rape 20 days back, general condition good well oriented to time and space, conscious pulse was 80 per minute, BP 110/70 RR 18 per minure, adolescent female with secondary secondary sexual character well developed, external genitalia well developed, patient was having her menstrual period since yesterday. On P/V utns, A/V. No injury mark on private part or other parts of body. There was nothing to suggest that sexual inter course has taken place recently. She could not see the hymen of the patient. So, she could not say what was the position of hymen at that time, because of menstrual period she could not examine the hymen of patient". This witness after seeing the X-Ray report stated that the prosecutrix could be 17 years of age at the time of her medical examination. 14. There is inordinate and unexplained delay of 20 days in lodging the FIR, the same is fatal to the case of the prosecution. During Crl. Appeal No. 835 SB of 2000 6 this interrgnum period there might be some consultations, deliberations confabulation to twist the real story or she might have been tutored. 15. As per Modi's Medical jurisprudence the test pertaining to ossification test is helpful for determining the age, but this was not got done. 16. Keeping in view the totality of the circumstances I am of the considered opinion that the age of the prosecutrix could be more than 18 years and that she was the consenting party. The prosecution has failed to proved its case against the appellant beyond reasonable doubt. 17. Resultantly this appeal is allowed, judgment of conviction and sentence is set aside and the accused-appellant is acquitted of the charge by giving him the benefit of doubt. (JITENDRA CHAUHAN) 20.12.2010 JUDGE Poonam (II) Whether referred to reporter = YES