IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.127 of 2009. Date of Decision: 6th October, 2010. ____________________________________________________ Brij Mohan alias Anil Kumar alias Chhotu ….Appellant. Versus State of Himachal Pradesh ....Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. M.S. Guleria, Advocate. For the respondent : Mr. J.S. Rana, Assistant Advocate General. ____________________________________________________ SURINDER SINGH, J (Oral). The instant appeal has been filed by the appellant against the judgment of his conviction and sentence passed by the learned Additional Sessions Judge (2), Kangra at Dharamshala, in Sessions Trial No.16-G/VII of 2008, on 27.4.2009, whereby he was convicted for the offences punishable under Sections 363 of the Indian Penal Code and sentenced to undergo imprisonment for three years and to pay a fine of ` 10,000/- and rigorous imprisonment for a period of Whether reporters of the Local papers are allowed to see the judgment? - 2 - seven years and to pay a fine of ` 20,000/- under Section 376 of the Indian Penal Code with default clauses. Both the sentences were ordered to run concurrently and the benefit of Section 428 of the Code of Criminal Procedure was also given to the appellant. It was further ordered that out of the fine amount, if realized, ` 25,000/- be paid to the prosecutrix as compensation. 2. The prosecution story, in nutshell as emerges from the evidence on record, can be stated thus. PW2 Om Parkash, father of the prosecutrix, besides prosecutrix, was having two sons. They were residing in village Kharet, Tehsil Baroh, District Kangra. The prosecutrix was stated to be youngest of all the children. Said Shri Om Parkash used to cure the snake- bite cases. Room-mate of the appellant had a snake- bite in the month of July, 2007, he accompanied by the appellant visited the house of Om Parkash for its cure. Appellant at that time was working in the construction of Air-Tel tower as Munshi. He was having a motorbike. The appellant kept on visiting the house of the prosecutrix repeatedly. Thereafter they had developed - 3 - intimacy. The appellant became a regular visitor in the house in the presence of other family members. He proposed her to marry her, but she refused to marry against the wishes of her parents. 3. (a) On 12.9.2007 PW2 Om Parkash had gone to District Una to visit his relations leaving behind all the children under the guardianship and supervision of his wife in his village. (b) On 13.9.2007, when the father of the prosecutrix was not in the house, the prosecutrix went to Bazar to purchase medicines. The appellant is alleged to have followed her on his motorcycle and forced her to sit on the pillion- seat, took her to village Badgwar where she was kept for two days and was ravished against her wishes. (c) Two ladies suits of orange and pink colour were provided to her for the change. (d) He also took her to his aunt’s house at Palampur where they stayed for one day. (e) Thereafter she was left on Baba Baroh Road alongwith these two lady-suits assuring her to - 4 - return after sometime and would perform the marriage. (f) It is alleged that the appellant did not return, the marriage was also not performed. 4. PW2 Om Parkash had left the house to Una on 12.9.2007 and he returned on the next day, i.e., 13.9.2007 and did not find the prosecutrix in the home, he was informed by his wife that she was eloped by the appellant. 5. On 14.9.2007, PW17 ASI Rama Nand was on patrolling in Dehrian Bazar alongwith HHC Sunil Dutt. He came across PW2 Om Parkash in the Bazar. He got recorded his statement Ext.PW2/A under Section 154 of the Code of Criminal Procedure with respect to the eloping of the prosecutrix, which culminated into the FIR Ext.PW12/A. 6. During investigation the statement of Sunil Verma Contractor with whom the appellant was working, was also recorded. 7. On 16.9.2007 PW17 ASI Rama Nand was again in village Kharet in connection with the investigation. He noticed the prosecutrix sitting in the rain-shelter. Her identity was asked. Her parents were - 5 - informed. PW2 Om Parkash identified his daughter. He recorded her statement and handed over her to her parents vide memo Ext.PW17/C. 8. On 17.9.2007 the prosecutrix was medically examined at Civil Hospital, Dehra by PW1 Dr. Anita Mahajan. She found her fully conscious and well oriented to time and place. Prosecutrix had not taken bath since the last day. No mark of injury was found on her body. Her axillary hair, pubic hair and breasts were well developed. She had menarche at the age of 13 with regular normal flow. Last menstruation period (LMP) was on 11.8.2007. The sample of pubic hair was taken for chemical analysis. Doctor did not find any injury on the genital-parts. Though the hymen was torn, but no bleeding or secretions were found present. Vaginal slides were taken and sealed. In the opinion of the doctor, she was exposed to the sexual intercourse. 9. Skeletal age of the prosecutrix was also assessed. It was between 14-18 years. The wearing apparels and vaginal swabs etc. were sent for the forensic examination. Its report is Ext.PW/1G. It revealed that the wearing apparels (Salwar, shirt and underwear) of the prosecutrix and the vaginal swabs - 6 - were having human blood, but semen was not detected. After perusing the forensic report the doctor confirmed the opinion given earlier vide Ext.PW1/C. Doctor also issued Medico Legal Certificate regarding observations made by her. It is Ext.PW1/B. 10. During the course of investigation, the prosecutrix revealed her age 14 years. Her school leaving certificate Ext.PW15/B and the abstract of the Pariwar register Ext.PW7/A were also obtained. 11. On 1.10.2007 the appellant was arrested from village Bagdwar and was got medically examined. His Medico Legal Certificate is Ext.PW4/B. He was opined to be sexually potent. His wearing apparels were also taken into possession, pursuant to his statement under Section 27 of the Evidence Act, which were sealed and sent for forensic examination. 12. On the completion of investigation, Challan was presented in the Court for his trial. The learned Sessions judge assigned this case to the learned Additional Sessions Judge (2), Kangra at Dharamshala. On perusing the report of the police and the documents appended thereto, the learned trial Court found a prima facie case to frame charges against the - 7 - appellant under Sections 363, 366A and 376 of the Indian Penal Code to which the appellant pleaded not guilty and claimed trial. 13. To prove its case, the prosecution examined prosecutrix (PW16), her father PW2 Om Parkash, her brother PW3 Sanjeev Kumar, PW7 Ishwar Dass Panchayat Sahayak, PW15 Ghanshyam Sharma, Principal, Government Senior Secondary School, doctors and the Investigating Officer, besides examining other formal witnesses. 14. The appellant was also examined under Section 313 of the Code of Criminal Procedure. He denied all the circumstances which were found attendant and put to him. According to him, it was a false case because of caste-factor. Further that the prosecutrix had been representing him that she was more than 18 years and wanted to marry him. He maintained his innocence and alleged false implication. 15. When called upon to enter into his defence, he did not lead any evidence in defence. At the end of the trial, he was acquitted of the offence under Section 366A of the Indian Penal Code, but convicted - 8 - and sentenced as aforesaid for the offences under Sections 363 and 376 of the Indian Penal Code. 16. Shri M.S. Guleria, learned Counsel for the appellant led me through the evidence on record and vehemently argued that the prosecutrix at the relevant time was more than 18 years of age. She had a liking for the appellant, was a consenting party. The prosecutrix was from a higher-caste and the appellant a scheduled caste, thus, the proposal of marriage did not materialize and was not accepted by her parents, whereas the prosecutrix was ready and willing to marry. It is also ventilated that the prosecutrix, at own volition left her parental house and joined the company of the appellant. She insisted upon him for getting married. She was reluctant to return to the parental house, but later she was forcibly taken and was coerced to make a statement against the appellant on caste lines. Learned Counsel further ventilated that the learned trial Court did not appreciate the evidence in its right perspective, which led to the wrong conclusion. 17. Shri J.S. Rana, learned Assistant Advocate General while supporting the judgment of conviction and sentence, vehemently argued that the prosecutrix - 9 - was less than 16 years of age, therefore, there is no question of consent or consensual sex. He further canvassed that the statement of the prosecutrix who has been proved to be a minor is inspiring confidence and was rightly acted upon. 18. I have given by thoughtful consideration to the rival contentions of the parties and have legally scanned and critically examined the evidence on record. 19. The perusal of the statement of the prosecutrix (PW16) clearly indicates that she had developed intimacy with the appellant, who at that time was having motorcycle and working as Munshi with PW6 Sanjeev Verma Contractor for raising the construction of Air-Tel Tower. He was a frequent visitor in the house of PW2 Om Parkash, the father of the prosecutrix. This fact has also been admitted by PW3 Sanjeev Kumar, her brother. Sanjeev Kumar also admitted that his sister had been occasionally frequenting him, which was not liked by his elder brother and the parents. 20. When the prosecutrix was produced before PW1 Dr. Mrs. Anita Mahajan for her medical - 10 - examination, she gave the history of having sexual assault by the appellant on 13.9.2007 at 1.30 p.m. when her father was not at home. She further revealed that she telephonically informed the appellant at Badoh and went alongwith him to his house at Badgwar. She married him on the same day in the temple where his parents were present and she stayed there for three days and had sex three times with the appellant. Twice she took bath and also cleaned her private parts and changed her cloths to which she had left in the house of the appellant. She further stated that when the appellant left her at Kharet rain-shelter on 16.9.2007 during noon from there police took her and was handed over to her parents. She also revealed to the doctor that she used to meet the appellant earlier also and had sexual intercourse with him. All these facts were testified by the doctor during her examination, which found mentioned in the Medico Legal Certificate (Ext.PW1/B) of the prosecutrix and have not disputed by the prosecution. The above narration given to the doctor also finds corroboration from the statement of PW10 Bihari Lal, the father of the appellant. He stated that the prosecutrix alongwith his - 11 - son came to house. She remained there for one day. Thereafter she was sent to her village Badoh. He admitted that the prosecutrix had accompanied the appellant voluntarily. He had also enquired from her about the whereabouts and she claimed that she was 18 years of age and had joined the company of the appellant of her own volition. 20. Although, the prosecutrix in her cross- examination stated that she was forcibly taken on the motorcycle on 13.9.2007 by the appellant, but when confronted with her statement Ext.DA and DB this fact did not find mentioned. She also stated that when she was forced to occupy the pillion seat of the appellant on 13.9.2007 she did not raise any alarm. She further admitted that between the place from where she was taken on the motorcycle to village Badgwar many inhabitat areas fell in between, but she did not try to jump from the motorcycle. Though according to her, she raised alarm but this fact was not found mentioned in her statement when confronted therewith. 22. PW17 ASI Rama Nand is alleged to have found the prosecutrix near the rain shelter in village - 12 - Kharet, the parental village of the prosecutrix. Even on seeing the police, she did not go running to them or raised any hue and cry that she was taken forcibly by the appellant. But her presence was noticed by the police, in the rain shelter and on enquiry she disclosed her identity. Later she was handed over to her parents. 23. The above scrutiny of evidence certainly leads me to the firm conclusion that the prosecutrix had left the house of her parents and joined the company of the appellant of her own volition and without persuasion creating her willingness by the accused. 24. Once it is established that the prosecutrix had joined the company of the accused of her own wishes, even though she was less than 18 years, it was not incumbent upon the appellant to return her to the guardianship of her parents. But in the instant case, the age of the prosecutrix even for the offence of rape because of the above proved facts is of a pivotal importance. 25. To appreciate the evidence with respect to her age, I shall first take up the skeletal age. The Radiologist in this case has not been examined, but the - 13 - ossification report proved by PW1 Dr. Mrs. Anita Mahajan, the prosecutrix was found between 14 to 18 years on the basis of epiphysis of bones. Taking the two views adduced from the record, favourable to the accused, comes to 18 years. Secondly, PW3 Sanjeev Kumar brother of the prosecutrix testified that the prosecutrix was married to Shri Naresh Kumar of village Sihunta and the prosecutrix had also admitted that after two months from the alleged occurrence, her marriage took place of her own free will with Naresh Kumar aforesaid. She knew that a girl cannot be married who is below the age of 18. Although she denied that at the time of marriage, she was 19 yeas of age, but according to her brother PW3 Sanjeev Kumar the prosecutrix was married at the age of 18 years. 26. The prosecution has relied upon the abstract of the Pariwar Register Ex.PW7/B, wherein the prosecutrix was recorded of 8 years of age in the year 2000. The alleged incident had taken place in the year 2007 and according to this entry she was 15 years on the day of alleged incident. The perusal of column No.7 of Ex.PW7/B shows that it was an approximate age. PW7 Ishwar Dass, Panchayat Sahayak categorically - 14 - stated that there was no record to verify the birth entry in the Pariwar Register and the entry was recorded therein as disclosed by the head of the family on estimation. He also admitted that there has been no document to this effect, but he did not rule out the possibility about the age of the prosecutrix in the year 2000 i.e. more than 8 years. 27. There is no dispute that under the Panchayati Raj Act, the Panchayat is required to maintain the records of births and deaths within its local limits. To maintain such records, the Panchayat is mandated by law to maintain Birth and Death register in prescribed form wherein all births and deaths within the local limits of the Panchayat have to be recorded alongwith the date of birth or death as the case may be. Thus, the primary evidence of date of birth or death of a person is the entry in the said register. Such entry or a certificate based on such entry will undoubtedly carry the presumption of truth. Any other record which may be maintained by the Panchayat, thus cannot be a primary evidence of the date of birth or death of the person. For similar reasons, the entry in the Pariwar Register made Ex.PW7/B is held to be not a primary - 15 - evidence of the date of birth of the prosecutrix. {See also Shyam Kumar v. State of Himachal Pradesh [Latest HLJ 2005 (HP) 1035]}. Thus, the certificate aforesaid is of no avail to the prosecution. 28. The prosecution has also next relied upon the school leaving certificate Ex.PW15/B of the prosecutrix, wherein her date of birth has been mentioned as “15.3.1993”. PW15 Ghanshyam Sharma, Principal of the Government Senior Secondary School, Upperli Kothi admitted that to verify the age of the child at the time of first admission in the school, birth certificate is required to be submitted, which is an authenticated document, but the admission record contained such certificate has not been produced in evidence. The perusal of the school leaving certificate shows that the prosecutrix was admitted in the school on 19.4.2005 itself in ‘middle standard’ in Govt. High School, Kharet, she had left the school in the same year on 6.12.2005. It means that the prosecutrix was in some other school prior to seeking admission in the aforesaid High School. 29. Although, an entry relating to the date of birth made in the school register is relevant and - 16 - admissible under Section 35 of the Evidence Act, but the entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of a person in the absence of the material on which the age was recorded. Merely by its production and proof thereof, such a document like Ext.PW15/B would not tentamount to be the proof of all the contents or the correctness of date of birth stated therein. Relevancy of the document is one thing but what value should be attached to it, is another thing. In the absence of the primary evidence with respect to the date of birth, the school leaving certificate in the aforesaid circumstances can also not be believed to be true. 30. Now, it is also worth making a reference to the statement of PW2, the father of the prosecutrix whereby he admitted that the date of birth of his children was registered in the Gram Panchayat, Madanpur Basoli, District Una where he then used to reside and these facts were revealed by him to the police. He was also taken along by the police to the said Panchayat in Una during the investigation of this case, but the police could not obtain the birth - 17 - certificate of the prosecutrix as it was said to be not available. PW17 ASI Rama Nand also stated that the entry of the date of birth of the prosecutrix was not found in the Panchayat record, but he did not record the statement of the Secretary of the Panchayat concerned. But the birth entries with respect to the sons of Om Parkash were available in the Panchayat as admitted by him, even those could have been obtained in order to ascertain the age of the prosecutrix who was the youngest of all the children. It leads me to take an adverse inference that the certificate of the prosecutrix and other children was not obtained for the reasons by that she would have been shown a different date of birth than alleged by the prosecution which would have been gone in favour of the appellant. 31. In conclusion from the above facts and circumstances, in all probabilities the prosecutrix is found to be more than age of discretion and the possibility of her being 18 years of age at the time of alleged incident cannot be ruled out. Once this conclusion is arrived at, the other circumstances appearing on the record lead me to the conclusion - 18 - that the prosecutrix had voluntarily left the guardianship of her parents and joined the company of the appellant and had consensual coitus with the appellant. 32. Thus, for the above stated reasons, the impugned judgment of conviction and sentence passed by the learned trial Court is not sustainable, as such set aside. Consequently, the appellant is acquitted of the offences charged and he be released forthwith, if not required in any other case. Registry to take follow-up action. The appeal stands allowed. October 6, 2010. (Surinder Singh), J. (rc)