IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 209 of 1996 Date of Decision : February 24, 2010 State of H.P. Appellant Versus Ram Bahadur Respondent Coram: Hon’ble Mr. Justice Deepak Gupta, Judge Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Mr. Vivek Thakur, Addl. Advocate General for the appellant. For the respondent : Mr. O.P. Sharma, Sr. Advocate, with Mr. K. R. Kashyap, Advocate, for the respondent. Deepak Gupta, J. (Oral) This appeal is directed against the judgment dated 20.2.1995 passed by the learned Sessions Judge, Sirmaur District at Nahan, H.P. in Sessions Trial No. 51-N/7 of 1994/1993 whereby he has acquitted the accused of having committed an offence punishable under Section 376 read with Section 506 of the Indian Penal Code. Briefly stated the facts are that Smt. Kirpi Devi, mother of the prosecutrix was married to one Sh. Shawanu Ram. Out of this wed lock a number of children were born including the prosecutrix and a son named Inder Singh. Sh. Shawanu Ram died 12 – 13 years prior to the incident. 1 Whether reports of Local Papers may be allowed to see the judgment? 2 Four – five years after his death the mother of the prosecutrix Smt. Kirpi Devi started living with the accused. In August, 1993 Smt. Kirpi Devi fell ill and was taken to T. B. Sanitarian, Dharampur where she was admitted. Thereafter the accused returned and started living in the house of the mother of the prosecutrix. The prosecution story is that two – three days after the accused returned from Dharampur he went to the bed of the prosecutrix, gagged her mouth by placing his hand over the same, broke the string of the ‘salwar’ and committed sexual intercourse with her without her consent. It is alleged that the age of the prosecutrix at the relevant time was between 14 – 15 years. The prosecutrix being a child and having been threatened by the accused did not disclose this fact to anybody and according to the prosecution the accused had sexual intercourse with the prosecutrix every night for the next 15 to 20 days. He kept a watch on her and prevented her from complaining to any person. He also used to threaten her that he would kill her in case she disclosed the fact of their sexual intercourse to anyone. He in fact finally proposed to the prosecutrix that they should run away and get married. According to the prosecution on hearing this proposal the prosecutrix got scared and went to her maternal uncle’s (Maama’s) house in village Pabech which is at a distance of three kilometers. She remained silent for two days and only on the third day told them about the entire incident. The same day the accused also went to the house of the Maama of the prosecutrix armed with a ‘darat’. He asked the prosecutrix to join his company and threatened that if she refused to do so he would kill her. When confronted by the Maama of the prosecutrix with the sordid details given by the prosecutrix he threatened to kill the Maama of the prosecutrix also. The accused 3 thereafter returned to his own village and her Maama Sh. Jani Ram took the prosecutrix to the house of Piare Lal, Member of the Gram Panchayat, who advised them to report the matter to the police. Next day on 10.9.1993 the prosecutrix went to Police Station, Rajgarh in the company of her Maama and lodged a report and F.I.R. No. 102/1993 was registered. The prosecutrix was got medically examined. After completion of investigation challan was filed in the Court. The accused was charged with having committed offences as detailed hereinabove. After trial the accused has been acquitted. Hence the present appeal. We have heard Sh. Vivek Thakur, learned Addl. Advocate General on behalf of the State and Sh. O. P. Sharma, learned Senior Advocate, assisted by Mr. K. R. Kashyap, learned Advocate, appearing on behalf of the accused. The narration of the entire story shows that after coming back from Dharampur the accused had sexual intercourse with the prosecutrix for about three weeks. The prosecutrix did not complain about this to any person. Her explanation is that the accused used to threaten her and used to keep her in his sight and prevented her from making any complaint. It cannot be believed that for three weeks the prosecutrix could not complain to any other person. In a village any women would have to go out to answer the call of nature. It is not the case of the prosecution that the house of the mother of the prosecutrix was in a lonely or isolated place. It is in a village. Even according to the prosecution after the accused proposed marriage to her she went to her Maama’s house. She does not give any explanation as to how she escaped and went to her Maama’s house. If she could freely go to her Maama’s house after this proposal was made it is not understandable why she could not make such 4 an effort prior to this occasion. Therefore, the consent of the prosecution is writ large. Even if the consent is there if the prosecutrix is aged below 16 years the accused would still be guilty for having committed offence punishable under Section 376 I.P.C. Therefore, the next important question is with regard to the age of the prosecutrix. According to the prosecution the prosecutrix was about 15 years of age when the incident took place. Reliance is placed on Family Register Ext. PW 2/B in which it is mentioned that approximate date and year of birth is 1978. Entry in Family Register cannot be used to convict the accused because there is no legal sanctity attached to such entry. Even the column in which entry is made reads as follows:- “Approximate date & year of birth, if known”. It must be proved at whose instance the entry was made. The record which is legally to be maintained is Registration of Birth and Deaths. The entries made in the Registration of Birth and Deaths have probative value. The second fact which makes the prosecution version of the age of the prosecutrix doubtful is that in this Family Register the year of birth of the brother of the prosecutrix is shown as 1963 showing him to be fifteen years elder to the prosecutrix whereas the prosecutrix in her statement in the Court has stated that her brother was only 5 – 6 years elder to her. This makes it clear that we can place no reliance on such Family Register. The prosecutrix is an illiterate person and no record with regard to her age is produced. The Ossification Report Ext. PW 11/B has been proved by Dr. G. Narang (PW-11). According to this report the radiological age of the prosecutrix was between 14 to 16 ½ years. But the Doctor himself has admitted in cross examination that this is only an approximation and there can be variation of three years on either side. There being no 5 cogent proof with regard to the date of birth of the prosecutrix it cannot be said with certainty that she was below sixteen years of age at the time of the incident. In view of the above discussions we find no reason to interfere with the judgment passed by the learned trial Court. There is no merit in the appeal and the same is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. (Deepak Gupta), Judge. (Sanjay Karol), Judge. February 24, 2010 (PK)