IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.548 of 1999 Decided on: 27th July, 2010 State of H.P …..Appellant. VERSUS Karam Singh …..Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the Appellant: Mr.Rajesh Mandhotra, Dy.Advocate General. For the Respondent: Mr.N.K.Thakur, Advocate. Deepak Gupta,Judge (Oral) This appeal by the State is directed against the judgement dated 18.9.1999 delivered by the Learned Sessions Judge, Chamba in Sessions Case No.23 of 1996 whereby he acquitted the accused of having committed offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. 2. On 18.4.1995, Sh.Rasalu, father of the prosecutrix (PW/2) lodged a complaint (Ext.PA) with the 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… Deputy Commissioner, Chamba to the effect that his daughter (the prosecutrix) who was a minor had been kidnapped by the accused Karam Singh alongwith Hari Ram, Dasi, Kishan, Chanchlo, Lachhoo, Janta, Dharam Singh, Lal Dei, Inder and Mahesh. According to the complainant, the prosecutrix had been kidnapped with the intention of getting her married to the accused Karam Singh. Thereafter, the police swung into action and on 26.4.1995 the accused and the prosecutrix were recovered in the area of ‘Purbet Nallah’. The accused was arrested and the custody of the prosecutrix was handed over to her parents. Thereafter, the prosecutrix was got medically examined and her statement was recorded. The accused was also got medically examined. After completion of investigation, it was found that the prosecutrix had not only been kidnapped/abducted but had also been raped by the accused. Thereafter, a challan was filed and the accused was charged for the aforesaid offences. He pleaded not guilty to the charges levelled against him and claimed trial. After trial, the accused was acquitted. Hence the present appeal by the State. …3… 3. The prosecutrix appeared as PW/1. From a perusal of her statement itself, it is apparent that after she was allegedly abducted by the accused from the jungle where she had gone to graze cattle, the accused had taken her to his house at village Aayal where the prosecutrix was living with the parents, brothers and sisters of the accused in the same room. She admitted that she did not complain to the sisters of the accused that she had been forcibly brought by the accused. She did not complain that she was forcibly restrained or confined in the house by the accused. She also admitted that her grandmother was residing in village Aayal itself but she did not even make an effort to talk to her grandmother. She did not complain to any person that she had been forcibly brought by the accused to his house or that she had been raped by him. Even on medical examination, no injury has been found on her person. It is, therefore, more than apparent that the prosecutrix accompanied the accused and stayed with him for about seven days of her own free will. Even when she was recovered by the police, it was not that she has been illegally restrained or confined by the accused. She was freely moving around with the accused. Therefore, it cannot be said …4… that the prosecutrix was forcibly taken away against her wishes. 4. This brings us to the most important issue in the case, what is the age of the prosecutrix? If she was below 16 years then whether she was a consenting party or not the accused would be guilty of having committed an offence of rape and in case she was below 18 years and had taken away out of the lawful guardianship of her parents by the accused, the accused would be held guilty of having committed an offence of kidnapping. The prosecutrix when she appeared in the witness box did not state a word as to what is her age. Her father, Rasalu Ram (PW/2) and mother, Ram Dei (PW/12) stated that the prosecutrix was 16 years of age at the time when their statements were recorded. Their statements were recorded in the year 1998 and this would mean that the prosecutrix was only 13 years of age at the time when the offence, in question, was committed. This does not tally with the other evidence led on record. 5. PW/5 Narinder Pal Singh produced the school leaving certificate, Ext.PC in which the date of birth of the prosecutrix is recorded as 2.8.1982. Her date of admission in the school is given as 17.3.1990. He also placed on …5… record the photocopy of the certificate, Ext.PC/1 issued by the school authorities to the effect that the age of the prosecutrix is 2.8.1982. The copy of the admission form is Ext.PC/2 in which also the same date is given. This would make the prosecutrix about 13 years of age at the time of the alleged incident but this certificate does not appear to be correct since according to Dr.Neelam Mahajan (PW/10) who conducted the medical examination of the prosecutrix, breasts of the prosecutrix are well developed and axillary and pubic hair also well developed. The prosecutrix was referred to the radiologist for determining her skeletal age. The opinion of the radiologist is Ext.PF according to which the skeletal age of the prosecutrix is between 14½ to 16½ years. It is well settled position of law that this estimation of skeletal basis is only an estimation and can vary upto 2-3 years on either side. 6. It would also be pertinent to mention here that PW/5, Narinder Pal Singh in cross examination admitted that in the original certificate Ext.PC/1, the name of the prosecutrix, her father’s name and the name of the village as well as the date of birth of the prosecutrix had been filled in subsequently in different writing and with a different ink. This clearly shows that the prosecution …6… wanted to mislead the Court by filing a photocopy of the certificate, Ext.PC/1 in which the difference of the ink could not be ascertained but when confronted with the original certificate, this witness was forced to admit that the columns of the certificate, Ext.PC/1 were filled in different writing and in different ink. 7. As far as the admission form Ext.PC/2 is concerned, PW/5 admitted that no admission number is entered in the form. It is also not clear on what basis the entry of the date of birth was made in the admission form. 8. The prosecution for reasons best known to it has not made any effort whatsoever to produce the original Birth and Death Certificate which would have been conclusive proof of the date of birth of the prosecutrix. Instead of proving the entry in the Birth and Death Register, the prosecution examined PW/13 Baldev Ram, Secretary of the Panchayat to prove the date of birth entered in the Parivar Register. It is well settled law that the entry in the Parivar Register is not conclusive with regard to the date of birth. In fact, PW/13 also admitted that the entry of date of birth is recorded in the Birth and Death Register and thereafter, in the parivar register. The Parivar Register has also not been properly maintained. …7… The original Parivar Register was perused by the learned Trial Court which bore a certificate that the register has hundred pages but on examination, it was found that there was only 90 pages in the register. It was also found that page No. 89 out of the 90 pages was also missing. No reliance can be placed on a record which is not maintained in a proper manner. 9. When the prosecutrix and her mother appeared in the witness box, a suggestion was put to them that the prosecutrix had been married to Hoshiar Singh and had also borne two children out of this marriage and that this marriage took place 3-4 years earlier which would be around the time of the alleged rape. The prsoecutrix and her mother denied the fact that she was married to Hoshiar Singh. 10. The accused in his defence produced DW/1 Roomi and DW/2 Mahesh. Both these witnesses stated that the prosecutrix was married to Hoshiar Singh and at the time of her marriage which took place about 3-4 years prior to the year when their statements were recorded, she was 17-18 years old. There was no cross- examination with regard to the marriage of the prosecutrix to Hoshiar Singh. It is apparent that the …8… prosecutrix and her mother were not telling the truth since the defence witnesses have stated, which fact has not been controverted by the prosecution, that the prosecutrix was in fact, married to Hoshiar Singh and had borne two children out of this marriage. DW/2 is the real uncle of Hoshiar Singh and there is no reason to doubt his statement. 11. Keeping in view the aforesaid discussion, we are of the considered view that the learned Trial Court was fully justified in holding that the prosecution has miserably failed to prove that the prosecutrix at the relevant time was below 18 years of age. Since we have held that the prosecutrix herself went with the accused and stayed with him, no offence under Section 363, 36 and 376, IPC is made out against the accused. The appeal being without merit is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. July 27, 2010 (Sanjay Karol) (m) Judge …9…