IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 245 of 2011. Judgment reserved on 16.12.2011. Date of decision: 20 . 12. 2011 Manpreet S/o Sh. Som Nath, R/o village Shehjadpur P.O. Nand Por Kalor, Police Station Bassi, District Fatehgarh Sahib, Punjab. …..Appellant Versus State of Himachal Pradesh ……Respondent Appeal under section 374 of the Code of Criminal Procedure against the judgment dated 4.5.2011 passed by the learned Sessions Judge, Solan, District Solan, H.P. in Sessions Trial No. 1-S/7 of 2009. Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 For the Appellant: Mr. N.S. Chandel, Advocate. For the respondent: Mr. P.M. Negi, Dy. Advocate General. Surinder Singh, J. Appellant has challenged his conviction and sentence, passed by the learned Sessions Judge for the offences punishable under Section 363, 366, 376 and 506 Indian Penal Code whereby he was sentenced as follows:- 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - Sr. No. Sections Sentence imposed. 1. 363 Indian Penal Code Rigorous imprisonment for a period of three years with a fine of `10,000/-. In default of payment of fine to undergo further rigorous imprisonment of six months. 2. Section 366 Indian Penal Code Rigorous imprisonment for a period of five years and fine of `10000/- in default of payment of which to further undergo rigorous imprisonment for a period of six months. 3. 376 Indian Penal Code Rigorous imprisonment for a period of seven years and to pay a fine of ` 20,000/-. In default of payment of fine to further undergo rigorous imprisonment for a period of one year. 4. Section 506 Indian Penal Code Rigorous imprisonment for a period one year and to pay a fine of ` 5000/-. In default of payment of fine, to further undergo rigorous imprisonment for a period of two months. Out of the fine if realized, was ordered to be paid to the victim as compensation under Section 357 of the Code of Criminal Procedure. All the sentences were ordered to run concurrently. The period of detention spent in custody during investigation and trial was ordered to be set-off against the substantive sentence. - 3 - 2. Prosecution story in short, can be stated thus. PW5 Shavinder Singh was “A-class” Contractor. He was doing the business of manufacturing electrical wires and also running crane services having approximately 20 employees. He along with his family was residing at Parwanoo. His elder daughter was doing MBA from Newzeland and younger to her is the prosecutrix studying in 10+2 in DAV Senior Secondary School Surajpur District Panchkula and youngest is the son in 10th standard at Mohali. (ii) Accused was employed as crane operator by him in May, 2008. It is alleged that during his employment the accused had been doing some obscene activities with the prosecutrix which were noticed by her parents as such his services were terminated in the month of January, 2009. (iii) The prosecutrix alleged that after the termination of the service, accused used to come on the stoppage of the bus near her School and threatened her. He also used to pretend that he is from a very rich family and asked her to marry him. He had been threatening to kill her and also her parents if she denied and further made allurements to her to marry him. - 4 - (iv) PW5 Shavinder Singh in the morning of 25th May, 2009 woke-up at 5.20 a.m., prepared tea for himself as well as his wife and for his daughter. After providing the tea to his wife, he went to the room of the prosecutrix but she was not found there. He waited for some time thereafter he started searching for her but when she was not traceable, he lodged complaint Ext. PW5/B to the police. At that time, he did not suspect any one but later entertained suspicion on the accused having enticed away his daughter. Thereafter he along with police went in search of the prosecutrix towards Una Lathiani and Baba Balak Nath area. On 26.5.2009 they also went to Police Station near Fategarh Sahib under whose jurisdiction the village of the accused fell. (v) The police called Som Nath his father to Bassi Pathana and made him to call the accused on his cell phone from local STD booth to enquire about his whereabouts. During that time, speaker of the STD was kept on. Father of the accused enquired about the girl from the accused. He admitted that she was with him. Som Nath told him to return back. The phone got disconnected. Thereafter Som Nath 2/3 times had tried to re-contact then accused enquired from his father whether the bald person was also - 5 - with them and disconnected the phone. In response to the next call, accused told him that they would return after about 2/3 days to their home. Som Nath father of the accused was alleged to be a conspirator as such he was also taken by the police with them for interrogation, regarding which the Local Police Station Bassi Pathana was informed. Thereafter they returned to Parwanoo and arrested Som Nath for criminal conspiracy. Later they proceeded in search of the prosecutrix along with her father and his friend during the search they visited Chandigarh, Marinda, Phagwara and Jalandhar but they could not locate the accused or the prosecutrix. For the night they stayed at Jalandhar. (vi) On 30.5.2009, police party proceeded to Dera Beas. At about 9 a.m. when they were at Dera Beas Bus Stand, searching and looking around, in the meantime, on seeing her father prosecutrix is alleged to have shouted for her father and came running to him. Accused was at a distance. He was identified by her father and taken into custody by the police. Seizure memo of the prosecutrix is Ext. PW5/B was prepared and she was handed over to her father. (vii) Statements of the witnesses were recorded. They returned to police Station Parwanoo - 6 - and on the same day, prosecutrix as well as accused both were medically examined. PW1 Dr. Manju Behl medically examined the prosecutrix. She did not find any physical injury on her person however, prosecutrix complained of some difficulty in hearing from her left ear but there was no injury mark or discharge from the left ear, as such she was referred to ENT Zonal Hospital, Solan and issued Medico legal certificate Ext. PW1/B. At the time of her examination, the prosecutrix was menstruating though the hymen was found ruptured. Possibility of sexual intercourse was not ruled out. (viii) Accused was also got medically examined from PW2 Dr. Ravi Kant Behl. He was found fit to perform sexual intercourse. (ix) PW14 Dr. R. K. Dharoch ENT Specialist had treated the ear perforation of the left ear of the prosecutrix and issued report Ext. PW14/A. (x) The polilce had recorded the statement of prosecutrix. She alleged that on 25.5.2009, at about 5 a.m. when she was getting ready for school and came out from her house, she noticed the accused present there on the gate. He caught hold of her arm and put his hand on her mouth, took on the road and threatened to kill her. Thereafter he - 7 - took her to various places, i.e., Chandigarh, Una, Peernigah and also Dera Beas. During this time he committed rape on her. On 30.5.2009 she was brought to the bus stand by the accused around 9 a.m. when she saw her father along with police. She called him and accused was arrested. They were brought to the Police Station Parwanoo and was got medically examined. (xi) Doctor took into possession underwear of the prosecutrix Ext. P1 and handed over to police for forensic examination along with vaginal swabs but no blood stains and semens were detected. However, there were blood traces on the pubic hair but it was not having any semen stains. The report is Ext. PW11/A. (xii) Police also took into possession the details of calls Ext. PW13/A, identity proof, location of Towers Ext. PW16/E. Photographs of the prosecutrix and the accused is Ext. PW15/C. They also prepared site plan Ext. PW16/A of the house of the complainant. (xiii) Police also found that the prosecutrix was initially admitted in Satvivek Study Hall School and tried to get birth entries but the Head-master certified that record was not available. The Certificate is Ext. PW17/A Thereafter police obtained - 8 - the copy of admission form Ext. PW18/A, from DAV School Pawanoo where the prosecutrix was admitted in 2nd standard. The date of birth of the prosecutrix was recorded 15.3.1993 in the School on the basis of progress report Ext. PW18/B issued by Satvivek Study Hall, Kalka, the record of which was not available. The copy of Secondary School examination 2008 (Ext. PZ) also depicts the same date of birth thus on the date of the alleged incident, prosecutrix was around 17 years of age and this age is also shown in her medico legal certificate Ext. PW1/B. However, no ossification test to ascertain the skeletal age of the prosecutrix, was conducted. 3. After completing investigation, challan was presented against the accused in the court for his trial for the offences aforesaid for which he was accordingly chargesheeted. At the end of the trial he was convicted and sentenced for the aforesaid offences. Hence the present appeal. 4. Shri N.S. Chandel, learned counsel for the accused vehemently argued that the prosecutrix has been proved to be above the age of discretion. He also referred the evidence of prosecution to show that the prosecution has failed to prove the age of the prosecutrix even as alleged. He further - 9 - readout the statement of the prosecutrix and ventilated that the version of the prosecution is quite unbelievable and her testimony does not inspire confidence. He also argued that she materially improved her version. The allegations of threats and allurement are absolutely baseless as she stands contradicted with it. Even evidence with respect to her recovery from Dera Beas is also a farce. He further argued that the learned trial Court did not appreciate the evidence of the prosecution in right manner which caused miscarriage of justice. According to him, the circumstances on record suggest that the prosecutrix was a willing party and in any case, she voluntarily accompanied the accused to various places and there is no evidence of the prosecutrix being forcible taken. It is also pointed out that the prosecutrix also did not raise any hue and cry at any of the places despite having opportunities. Thus, her statement is a gimmic. 5. Contra Shri P.M. Negi, learned Deputy Advocate General supported the impugned judgment of conviction and sentence and ventilated that the prosecutrix has clearly stated that her date of birth is 15.3.1993. This fact was corroborated by the School Leaving Certificate and - 10 - also her senior Secondary School Certificate coupled with the statement of her father. Further that the testimony of the prosecutrix is worth inspiring confidence. She vividly narrated about the entire incident without mincing any word and her testimony stands corroborated in material particulars on record. Therefore, it was rightly believed by the learned trial Court. 6. To appreciate the rival contentions of the parties, I have critically and carefully gone through the evidence on record. 7. Admittedly in the month of May/June, 2008 accused was employed as Crane operator by PW5 Shivander Singh father of the prosecutrix. It is also admitted that in January, 2009 his services were terminated. According to the prosecutrix, as PW1 during the time of his employment, he had been indulging into obscene activities with her and even her father stated that he had also noticed it and that was the reason for his termination. Now question is that after having terminating his services in the month of January, 2009 why accused had been trying to meet the prosecutrix either in the School or near her house. This clearly indicates that the accused had infatuation with the prosecutrix and - 11 - she also appears to have developed liking for her. When accused had been trying to meet the prosecutrix even after terminating his service, the prosecutrix also did not make any complaint to her parents. She stated as PW4 in the Court that on 25.5.2009 at 5 a.m. when she was getting ready for school and came out of the house, she met him on the gate. Accused caught-hold of her arm and put his hand n her mouth and took her to the road. Pertinently, when her father stated that he got up on 5.20 a.m. and prepared the tea, he provided a cup of tea to his wife, thereafter went to the room of prosecutrix, at that time, she was found missing. It is not understood as to how a young girl could have left for the school without even having break-fast or taking lunch with her around 5.30 a.m.. She was also confronted on this score with her statement recorded under Section 161 of the code of Criminal Procedure where it was not found recorded that the accused had caught hold of her from her arm and gagged her mouth and took her to the road. She also stated that thereafter accused took her to Chandigarh, Una by bus and then stayed at the place known as ‘Peernigah’ where accused committed sexual intercourse with her. Thereafter he - 12 - took her to Gurdwara Sahib at Ludhiana. On 27.5.2009 she was taken to Ludhiana and on 30.5.2009 she was recovered by the police from the custody of the accused. 8. In cross examination she stated that the building where she was staying with her parents has 12 sets occupied by various other families and besides it, there was another block of 12 sets. She also stated that across the road, there was a hospital at a distance of about 30 feet. Parwanoo bus stand is also located in the same locality at a distance of 300 meters having about 400 shops in between her house and bus stand and road is also quite busy. Even she admitted that around 6 a.m. in the morning road is occupied by morning walkers. She stated that on the school gate, there are security guards. The National Highway is at a distance of half kilometers from her residential house. She also stated that she used to take bus at 7.20 a.m. from Parwanoo to her school and that she had told the police that during the journey to Una, accused had threatened her but when confronted with her statement under Section 161 of the Code of Criminal Procedure, this fact was not found mentioned. She categorically stated that when she saw the - 13 - accused on the gate of her house, she did not raise any alarm. According to her, he had put his hand on her mouth and pulled her to the road and thereafter he caught hold of her hand and took in some bus to Chandigarh having few passengers but did not say that either he had threatened her or had gagged her mouth throughout. They reached at Chandigarh around 8 a.m. From there, they boarded another bus full of passengers. She stated that she had taken chips and chocolate at bus stand Chandigarh and around noon, they reached Una. There she noticed many persons standing at the bus stand. From there, they went to Peernigah from a local bus stand via bus. According to her, there were about 15 shops at Peernigah. They took evening food in the Inn where they had stayed. Next morning around 7 a.m. they left Una and reached Ludhiana in the evening by train. As there was ‘train roko agitation’ in Punjab, they could not take food during day time while enroute to Ludhiana. She also admitted that Railway Police was present on the Railway Station and also in the train. She did not make any compliant to them or any of the Railway Officer. But she stated that she was beaten up by the accused in the train and they were sitting in the compartment where no other - 14 - passengers were there. However, she did not disclose this fact to the police. She stated that the because of beating she got cut on the lip and blood had come out but when examined by the doctor, no such injury was noticed. Further according to her they had gone to Gurdwara where many persons were there and next morning about 9 .am. they left via train for Beas and had taken meals in the langer. She also stated that Beas is a complete township having security guards at the gate. She further stated that she crossed the gate with some lady and not with the accused. At that time, some ladies from the village of the accused to whom the accused instructed that she should tell to the security on the gate that she was daughter-in-law of that lady. But admittedly, she did not disclose anything to that lady. She further stated that both of them stayed in Dera Beas for three days and had been taking food in the “langer”. She admitted that accused had been receiving calls from his father. She did not disclose this fact to the police. According to her, she had not stated to the police but revealed it to her parents. She was also confronted with her statement under Section 161 of the Code of Criminal Procedure to the effect that accused had told him that he is - 15 - from a very rich family and would marry her but this fact was not found mentioned therein. 9. PW1 Dr. Manju Behl stated that on clinical examination of the prosecutrix, she did not mention in the medico legal certificate Ext. PW1/B that the prosecutrix was exposed to coitus. She could not tell about the time of rupture of the hymen as the prosecutrix was menstruating. She further stated that police had brought the prosecutrix for her medical examination as having run away with a boy on the promise of marriage and had sexual relations. At the time of her examination, she had disclosed her age 17 years. There were no marks of injury on her person. She could not confirm whether the sexual intercourse had taken place during the period aforesaid. 10. PW6 Tarsem Kumar is a friend of the father of the prosecutrix. He was accompanying him to the various places in search of the prosecutrix. 11. PW7 Karnail Singh PCO owner did not support the case of the prosecution. According to him only father of the accused had come to him and none-else for using STD booth. Thereafter he was taken by the police along with them. The medico legal certificate or the forensic examination of the - 16 - underwear of the prosecutrix could not establish sexual activity with the prosecutrix. 12. In so far as the age is concerned, according to the prosecution and her father, she was born on 15.3.1993 at Parwanoo but no entry with respect to her date of birth was either taken or proved. She was initially admitted in Satvivek School at Kalka but PW Shri S.M. Bogra Headmaster husband of Smt. Beena Bogra Headmistress stated that record of the school with respect to prosecutrix was not traceable and issued certificate Ext. PW17/A to this effect. 13. PW18 is Clerk of DAV Public School Parwanoo in which the prosecutrix was admitted in 2nd standard produced the school leaving certificate of Satvivek school wherein her date of birth is mentioned as 15.3.1993. But there was no other supporting document to show the correctness of the age. The prosecutrix was admtited in 2nd standard on the basis of school leaving certificate Ext. PW18/B (colly.) wherein against the height, the date of birth is written without having any column therein. It is only a photocopy even not attested by the Principal. The details of the subject make it quite doubtful that in the first standard, the prosecutrix was being taught - 17 - English and Hindi Literatures along with Computer. The Secondary School certificate Ext. PZ is based upon the entry made in Ext. PW18/A which sans authenticity proof. In any case, on the date of the alleged incident, prosecutrix is proved to be around 18 years of age a fully grown up girl having the age of discretion, who know good and bad. 14. On the critical examination of the aforesaid evidence, in my opinion, prosecution has failed to prove that the prosecutrix was minor at the relevant date. It is well established that even with reference to Section 35 of the Evidence Act, public document has to be tested by applying some standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by the apex Court in Ravinder Singh Gorkhi versus State of U.P. (2006 2 SCC584. “38. The age of a person as recorded in the school register or otherwise may be used for various purposes; namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum, e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately - 18 - represented therein or any transaction made on his behalf was void as he was minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted.” 15. Further, the conviction for abduction and rape can also be recorded on the sole testimony of the prosecutrix. Undoubtedly, the testimony of the victim of sexual assault stands at par with the testimony of an injured witness and is entitled to great weight, therefore, corroboration in the testimony of the victim would not be insisted upon provided the evidence does not suffer from any basic infirmities and the probability factors do not render it unworthy of credence. - 19 - 16. In my considered opinion, applying the above settled principles the prosecutrix in her statement does not satisfy the aforesaid test. The circumstances appearing on record suggest that she had willingly gone with the accused and visited various crowded places. She came across Railway Police officials and bus passengers wherein she was traveling many other persons in Dera Beas as also in Gurdwara, Peer Nigah temple Chandigarh bus stand and Una. She had, in fact, the opportunity to make a complaint on so many occasions but she did not do so. The circumstances show that the prosecutrix was a willing partner in the entire episode. Even if the prosecution version is accepted in its totality, it stands clearly established that she was staying with the accused at her own will w.e.f. 25.5.2009 till the date of her recovery along with accused at bus stand Dera Beas which is a quite busy place. 17. The allegations of threat or allurement at the time of her alleged abduction are unbelievable as she did not make any hue and cry at that time or immediately thereafter till