CRA No.2288-SB of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Appeal No.2288-SB of 2007 Date of Decision: October 15, 2010 Jamil Ahmad .......Appellant Versus State of Haryana .......Respondent CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Ms.Sharmila Sharma, Advocate for the appellant. Mr.Kshitij Sharma, Assistant Advocate General, Haryana. <><><> JITENDRA CHAUHAN, J. 1. This appeal is directed against judgment and order dated 1/2.11.2007 whereby the learned Sessions Judge, Faridabad (hereinafter referred as “trial Court”), convicted the appellant for the offence under Sections 376/506 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of seven years and to pay a fine of `500/-, and in default of payment of fine, to undergo further rigorous imprisonment for a period of two months for the offence under Section 376 of the Indian Penal Code and also to undergo rigorous imprisonment for a period of one year for the offence under Section 506 CRA No.2288-SB of 2007 -2- of the Indian Penal Code. Both the sentences were ordered to run concurrently. 2. The brief facts of the case are that a written complaint, Exhibit PK, was received by the police from the prosecutrix, stating that she was a student of 5th class and was 14 years of age. On 29.01.2007, she went to school at 7.00 a.m. but since the school was closed, she started back for home. When she reached near dharamshala, three/four boys caught hold of her and made her to smell something, as a result of which, she became unconscious. When she regained consciousness after 4/5 hours, she recognized one of the boys as Jamil i.e., the present appellant, who was a resident of her colony. She did not know the other boys. On the basis of this complaint, a case for offences punishable under Sections 328, 342, 363, 366-A read with Section 34 of the Indian Penal Code was registered. 3. On 2.2.2007, the prosecutrix made another statement that she was frightened and could not give the correct version. It was stated that when she was returning from school, Jamil son of Kallu asked her to sit on his motor-cycle. He threatened her not to raise any alarm or to jump from the motor-cycle and was taken to a lonely old building in Sector-2, Ballabgarh, where she was raped. Thereafter, the appellant left her at Anaj Mandi, Ballabgarh, at about 1.00 p.m. She then returned home and narrated the incident to her family. 4. The police investigated the matter and on completion of investigation, presented the challan against the appellant. CRA No.2288-SB of 2007 -3- 5. The appellant was subsequently charged for the offence punishable under Sections 342, 366-A, 376 and 506 of the Indian Penal Code to which he pleaded not guilty and claimed trial. 6. The prosecution, in order to prove its case, examined as many as nine witnesses, viz., Dr. Rajeev Batish as PW1; Dr.Beena Sharma as PW2; Manoj Kumar, Draftsman as PW3; Head Mistress Jyoti Gautam as PW4: MHC Rajbir Singh as PW5; Constable Ramesh Kumar as PW6; Saira, the prosecutrix, as PW7; Ashu, father of the prosecutrix, as PW8 and SI Raghbir Singh as PW9. 7. Dr. Rajeev Batish, PW1, medico legally examined the appellant and proved the medico legal report on record as Exhibit PA (opinion). Dr. Beena Sharma, PW2, medico legally examined the prosecutrix and opined that possibility of sexual intercourse with the prosecutrix could not be ruled out. Manoj Kumar, PW3, is the Draftsman who had prepared the scaled site plan, Exhibit PE, of the place of the occurrence. Jyoti Gautam, PW4, Head Mistress of the school where the prosecutrix was studying, deposed in Court that as per the school record, the date of birth of the prosecutrix was 10.4.1994. The date was recorded on the basis of an affidavit and the application form furnished by the father of the prosecutrix. PW5-Rajbir Singh, MHC and PW6-Ramesh Kumar, Constable, proved on record their respective affidavits, Exhibits PG and PH respectively. The prosecutrix appeared as PW7 and narrated the details of the incident. She deposed that the accused committed sexual intercourse with her and he also threatened her with dire consequences in case she told the incident to her family or anyone else. CRA No.2288-SB of 2007 -4- 8. Ashu, PW8, is the father of the prosecutrix who also supported the version given by her daughter. PW9-SI Raghbir Singh is the Investigating Officer of the case who got the prosecutrix medically examined and completed other formalities. 9. The appellant was examined under Section 313 of the Code of Criminal Procedure, in which he pleaded his false implication in this case. 10. The learned trial Court, after appreciation of evidence on record and hearing the defence counsel as well as the learned Public Prosecutor, convicted and sentenced the appellant as stated in para 1, at the outset of the judgment. 11. The learned counsel for the appellant has argued that as per the FIR recorded on the basis of statement made by the prosecutrix on 29.1.2007, three-four boys caught hold of her forcibly and gagged her mouth and thereafter, she was made to smell something. She could identify only the appellant. The learned counsel further submits that after five days, on 2.2.2007, the prosecutrix made subsequent statement, Ex.D2, wherein she has given an altogether different version to the effect that while she was returning from school, Jamil son of Kallu Khan, approached her and offered her to sit on his motorcycle with a promise to drop her at her residence. The prosecutrix obliged the appellant, who took her to an isolated old building in Sector 2, Ballabhgarh, where she was raped by him. At about 1.00 p.m., the appellant left her at Anaj Mandi, Ballabhgarh, whereafter, she narrated the incident to her parents on returning home. CRA No.2288-SB of 2007 -5- 12. Therefore, the learned counsel has argued that two different and distinct versions have come on record from the statements of the prosecutrix and there are material contradictions in both these statements. In this fact situation, the very foundation of the prosecution case stands demolished. 13. The learned counsel has further submitted that the prosecution has examined Jyoti Gautam, Headmistress, Jain Vidya Mandir High School, Ballabhgarh, as PW4. During her cross examination, this witness had specifically stated that correctness of date of birth as recorded in the application form was not verified and the same was recorded on the basis of affidavit of Ashu, father of the girl. Therefore, the best evidence as regards proof of age has been withheld by the prosecution. 14. The learned counsel has further argued that as per the ossification test report, Mark X, the age of the prosecutrix was found to be 14-15 years. The learned counsel has submitted that in view of the variation given in age, the age of the prosecutrix should be read as 17 years. 15. The learned counsel has further argued that accused was not having any weapon, therefore, it cannot be said that the accused had threatened the prosecutrix. 16. The learned counsel has further stated that as per the statement of Dr. Beena Sharma, PW2, who medico-legally examined the prosecutrix, no mark of external injury was noticed on the person of the prosecutrix, nor the doctor has commented anything about finding of some intoxicating substance, as alleged by the prosecutrix. CRA No.2288-SB of 2007 -6- 17. The learned counsel has lastly submitted that both the appellant and the prosecutrix were residing in the neighbourhood. The appellant is a young man of 22 years of age and has already undergone more than 03 years and 09 months of actual sentence and thus, has prayed for taking a lenient view in the matter of sentence. 18. On the other hand, learned counsel for the State has argued that the supplementary statement cannot create a dent in the story of the prosecution in the face of other evidence in favour of the prosecution case. In the instant case, the doctor has opined that the possibility of sexual intercourse cannot be ruled out. Therefore, the case of the prosecution is fully established. 19. I have heard learned counsel for the parties and perused the record. 20. Going by the sequence of events, it comes out that on the fateful day i.e. 29.1.2007, the prosecutrix reached the school at about 7.00 a.m. and came to know that it was a holiday in the school. While she was on the way to her home, 3-4 boys caught hold of her forcibly, gagged her mouth and made her to smell something. Thereafter, she became unconscious. When she regained consciousness after 4-5 hours, she could identify the appellant, who is resident of the same locality. She was able to escape from the place of occurrence. On the basis of this statement, the instant FIR was registered on 29.1.2007. 21. However, after 5 days, i.e. on 2.2.2007, the prosecutrix made a supplementary statement, Ex.D2, to the effect that when she was returning from the school, Jamil son of Kallu, the appellant, came to her and offered her to join him on his motorcycle with a promise that he CRA No.2288-SB of 2007 -7- would drop her at her place. When she sat on the motorcycle, the appellant took her to a lonely building in Sector 2, Ballabhgarh. The appellant threatened the prosecutrix not to jump or raise any alarm. After committing rape upon her, the appellant dropped her in the area of Anaj Mandi, Ballabhgarh. 22. From both the statements, it emerges that the appellant allegedly picked up the prosecutrix from a public place and dropped her back at 1.00 p.m. in the area of Anaj Mandi, which is again a public place. The appellant was not carrying any weapon. He was riding on a motorcycle which means that his both hands were engaged in driving it from which it can safely be inferred that the appellant was not in a position to threaten the prosecutrix. She did not raise any alarm, from which it can safely be inferred that the prosecutrix accompanied the appellant with her own free will and accord. 23. In the circumstances, the prosecutrix seems to be a consenting party. The Hon’ble Supreme Court in Musauddin Ahmed Vs. State of Assam, 2009(4) RCR (Criminal) 856, has observed as under:- “16. Learned Standing counsel for the State, Mr. Jr. Luwang, could not satisfy the court as to why in absence of any allegation of threat or coercion, the prosecutrix could not have raised the alarm or informed any person on the road. Nor he could explain as to why the independent witness or an employee of the hotel was not examined and why parents of the prosecutrix were not examined to find out her age. CRA No.2288-SB of 2007 -8- 24. The purpose of the supplementary statement is to add to the earlier version in order to fill up the material omissions, if any, left out while making the first statement on account of disturbed state of mind. In the instant case, both the statements are complete and mutually exclusive to each other in all respects. These two statements, in my considered opinion, are totally divergent and distinct and are irreconciliable on all factual aspects of the matter. This Court, in Bakhtaur Singh Vs. State of Punjab, 2006 Crl.L.J. 3574 has held as under:- "13. The arguments raised by the Deputy Advocate General is that no lady would record the false FIR as she would not put her character at stake. Therefore, on this analogy, the story as set up by the prosecutrix should be believed. Mere this ground has no universal truth but each case has to be examined on the touch stone of the factual matrix thereof. A similar view has been taken by the Apex Court in the case Pandurang Sitaram Bhagwat Vs. State of Maharashtra, AIR 2005 SC 643. In this case, the story of house trespass has been disbelieved and it was observed that the version of the prosecutrix was replete with serious contradictions and improbabilities. No injuries were found on the person of the prosecutrix. The aforesaid judgment is applicable to the facts of the present case on all fours. Had she ever made some resistance, injuries on her private parts were bound to occur. The presence of Semen was obvious, as within time given by the CRA No.2288-SB of 2007 -9- Doctor, she admittedly had committed intercourse with her husband; FIR has been lodged after an inordinate delay. It is also improbable that the accused continued catching her neck till he completed the intercourse, also does not appeal to the reason of prudent man. The statement of prosecutrix is replete with serious contradictions and improvements. The testimony of the prosecutrix and PW2 Nirmal Singh lack credibility as such no reliance can be placed upon them." Therefore, I am of the considered view that the prosecution has suppressed the true genesis of the crime. 25. As per the case of the prosecution, the age of the prosecutrix is stated to be 14 years. In this regard, the prosecution has examined Jyoti Gautam, Headmistress, Jain Vidya Mandir High School, Ballabhgarh, as PW4, who has placed on record school certificate, Ex.PF, wherein the date of birth of the prosecutrix finds recorded as 10.4.1994. However, there is neither mentioning of any document on the basis of which, the date of birth was recorded in the school certificate nor the date of the admission of the prosecutrix in the school is mentioned. Apart from the school certificate, there is no other authentic document and material on record to prove conclusively the age of the prosecutrix. The prosecution has not placed on record the Birth Entry or any other authentic proof of age. Therefore, the prosecution has withheld material piece of evidence regarding age of prosecutrix from the Court due to which this Court is left with no option except to draw CRA No.2288-SB of 2007 -10- adverse inference in accordance with Section 114, Illustration ‘G’ of the Indian Evidence Act. 26. As per the ossification test, the age of the prosecutrix has been determined as 14-15 years. The ossification test is only an indicator and not a conclusive proof of age of a person. In the ossification test, a variation of two years is possible on either side but in view of the other physical characteristics like the general built, physique and appearance of the prosecutrix mentioned in the ossification test, therefore, keeping in view the physical attributes of the prosecutrix, the age is required to be counted on higher side, which approximately comes to 16-17 years. As per Section 366/376 IPC, a female of more than 16 years of age can legally consent to sexual intercourse. The submission of the learned counsel for the appellant is that once a report has been given by the doctor, emphasis should not have been given on the oral evidence by the Court to arrive at the conclusion that the age of the prosecutrix is below 16-17 years of age. On a perusal of the evidence of Dr. Beena Sharma, PW2, it is apparent that as per her opinion, the victim/prosecutrix is between 14 to 15 years of age. Ossification test is an instrument for determining the approximate age of a person. It has been held in Sribatcha Kumar Vs. State of Orissa, (1993) 6 OCR 661 and Bishnudas Vs. State of Orissa, (1996) 11 OCR 602 : (1997 Cri LJ 2207) that variation of age in the ossification test can be up to 3 years in either way. The High Court of Bombay in the case of Balasaheb Vs. The State of Maharashtra, 1994 Cri LJ 3044, after referring to Modi's Medical Jurisprudence and Toxicology (First Edition) expressed thus: CRA No.2288-SB of 2007 -11- "It is observed that the error in the case of age based on ossification test may be three years." 27. This Court, in Molu Ram Vs. State of Haryana, 1986(2) R.C.R. (Criminal) 142, has held as under:- "3. ........During the days of the occurrence, the prosecutrix was studying in Government Girls High School, Saha. In the admission form, her date of birth was recorded as 5.4.1967. This means at the time of occurrence Santosh Kumari was aged 17 years. It is known that at the time of getting the child admitted in the school, the parents generally have in mind the prospect of the child getting into service for which the maximum age has been prescribed. It is just possible that effort might be made to minimise the age of the child. It is upon these circumstances that an entry about the date of birth in the school record is not given any weight. In this view I am fortified by a Supreme Court decision in Brij Mohan Singh V. Priya Brar Narain Sinha and others, A.I.R. 1965 S.C. 282. Dr. Subhash Chander Goel PW3 who radiologically examined the prosecutrix gave her age between 15 and 16 ½ years. He has, however, himself stated at the trial that ossification test is not a sure test and it admits of margin of two years on either side. Therefore, the opinion of the Doctor based on such a test cannot be regarded as a conclusive evidence especially when the difference in the approximate age fixed by him and the one fixed under CRA No.2288-SB of 2007 -12- Section 366, Indian Penal Code, is not wide. In the absence of cogent evidence regarding the age of girl, no safe conclusion can be based on the opinion of the Doctor. The prosecution has miserably failed to establish that Santosh Kumari was aged below 18 years at the time of alleged occurrence." 28. From the statement of Dr. Beena Sharma, PW2, no mark of injury was found on the person of the prosecutrix. Therefore, absence of any injury on any part of the body of the prosecutrix, including her private parts makes the prosecution version doubtful. This Court, while dealing with a similar issue in Avdesh V. State of Haryana, 2010(4) RCR (Criminal) 154, has held thus:- "15. ...........In Pratap Misra v. State of Orissa, AIR 1977 (SC) 1307, it was held, that absence of injuries, on the prosecutrix, or the accused, clearly showed, that she was a consenting party. In Tameezuddin @ Tammu v. State of (NCT) of Delhi, 2009(6) R.A.J. 143 : 2009(4) RCR (Criminal) 345 (SC), the medical evidence, showed that, it was not a rape case. Vaginal swabs and salwar, had semen stains. Under these circumstances, it was held, that it would, at best be the case of sexual intercourse, but not of rape. No evidence, was produced, to prove, that semen was of the accused. Even no other evidence, was available, to support the prosecution case. There was no injury found, on the person of the prosecutrix. Under these circumstances, it was held, that the statement CRA No.2288-SB of 2007 -13- of the prosecutrix, was improbable and belies the logic. Ultimately, the appellant, was acquitted. In Tukaram v. State of Maharashtra, AIR 1979 (SC), 185, it was held, that if a consent, is given, by the prosecutrix, for the commission of sexual intercourse with her, and, she was major, at that time, and the circumstances negatived the existence of fear, consent given, could be held to be passive submission, and, the conviction, was liable to be set aside. The Court below, was, thus, completely wrong, in holding, that the accused, committed rape with the prosecutrix, and, she was not a consenting party. The findings of the trial Court, in this regard, being not based on the correct reading and due appreciation of evidence, are liable to be set aside." 29. The accused-appellant and the prosecutrix lived in the same locality. Both were known to each other. She was picked up from a public place from where she was taken to an isolated place, where both of them stayed for 4/5 hours. Thereafter, she was dropped by the appellant on his motorcycle in the area of Anaj Mandi Ballabhgarh, which is again a busy place. The explanation rendered that the appellant threatened her seems to be highly improbable as the appellant was not carrying any weapon with him. 30. On examination of the evidence on record, it is clear that prosecution has failed to prove the guilt against the appellant beyond reasonable doubt. Thus, it is a clear-cut case of consent. The learned trial Court has not taken into consideration the above mentioned CRA No.2288-SB of 2007 -14- inconsistencies/incongruities. On such like shacky evidence, conviction of the appellant cannot be upheld. 31. Accordingly, present appeal is allowed and the impugned judgment and order dated 21.12.2007 passed by the learned trial Court is set aside. The appellant is stated to be on bail. His bail bond shall stand discharged. 32. Since the main appeal is decided, misc. application(s) pending, if any, shall stand disposed of accordingly. ( JITENDRA CHAUHAN ) October 15, 2010 JUDGE SRM/atulsethi Note: Whether to be referred to reporter ? Yes/No