IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 155 of 1997 Reserved on : 8.7.2010. Decided on : 19.8.2010. ______________________________________________ State of H.P. …Appellant. Versus Gurdhian Singh …Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting? 1Yes. For the appellant : Mr. Anil Jaswal, Dy.A.G. with Mr. J.S. Rana, Asstt. A.G. For the respondent : Mr. B.M. Chauhan, Advocate. Justice V.K. Sharma,J. The present appeal at the instance of the State is against the judgment dated 21.9.1996 of the learned Sessions Judge, Kinnaur at Rampur Bushehar, whereby the respondent herein, to be referred hereinafter as the ‘accused’, was tried for the offences under Sections 341, 342, 363 and 376 of the IPC and was ultimately acquitted. 2. The law enforcing machinery was set in motion in this case by the complainant, PW1 Shri Thewa Ram, who on 4.7.1993 submitted the following complaint Ext. PW1/B to the Station House Officer (SHO), Nirmand, on the basis of which FIR Ext. PW12/D was registered on the same day: 1 Whether reporters of the local papers may be allowed to see the judgment?Yes. 2 “To The Station House Officer, Nirmand, Tehsil Nirmand, District Kullu, H.P. Complaint/FIR under Section 341, 342, 363,366 and 368 IPC read with Section 376/511 IPC against Shri Gurdhian, s/o Shri Sabloo Ram, r/o village Katerra, Phati Plehi, Kothi Himri, Teh. Anni, Distt. Kullu, H.P. Sir, The complainant father of the minor daughter kumari ‘P’ (name of the prosecutrix with-held with a view not to disclose her identity) reports as under:- 1. That Kumari ‘P’ aged about 14 years has gone to the house of Smt. Saroja her sister on dated 27.6.93 at Katar Phati Plehi. 2. That she was coming back to her home on dated 28.6.93 when she was obstructed by the accused Shri Gurdhian in her way and was enticed/kidnapped by the accused with some ulterior motive and under some serious conspiracy. 3. That the complainant went in search of his daughter alongwith Shri Bishan Dass, Up-Pradhan and Shri Balak Ram, s/o Shri Bala Ram, r/o Kather, Ward Panch, G.P., Kuther, Phati Palehi to different places and also visited Katar and Katerra village in search of her daughter. 4. That the complainant and his accomplices also went to the house of the accused and enquired about his daughter. The accused was also missing from the house and this confirmed the doubt of the complainant. On deep investigations, the complainant got the clue that Shri Gurdhian, s/o Shri Sabloo Ram has enticed away the minor daughter of the complainant against her will under threat to her life and has confined her in some secret place knowingly and intentionally. 3 5. That the date of birth of the minor girl as per school leaving certificate is 18.2.1978 and the photostat copy of the school certificate is attached with this complaint. It is, therefore, requested that the complaint under Section 341,342,363,366 IPC read with Sec. 376/511 IPC against the accused be registered and he be prosecuted in the Court of law after due investigation. The minor daughter be got released from the unlawful confinement and handed over to the complainant. The complainant shall ever pray. Witnesses: 1. Bishan Dass, Up-Pradhan. 2. Balak Ram, s/o Bala Ram, Ward Panch, G.P. Kuther. Complainant. LTI Theba Ram, s/o Shri Man Chand, Village Ghulat, Phati Plahi, Tehsil Anni. LTI Sh. Theba Ram, complainant.” 3. Consequently, PW12 SI Khub Ram took over investigation of the case and recovered the prosecutrix from the house of Sabloo Ram, father of the accused on 6.7.1993, vide memo Ext. PW1/A and restored her custody to the complainant, vide memo Ext. PW12/C of even date. 4. In her statement Ext. DA recorded by the police under Section 161 Cr.P.C., the version stated by the prosecutrix is to the following effect:- “Stated that I am a resident of Ghulat. We are three sisters and one brother. The eldest sister’s name is (illegible) Devi and younger to her is Soja Devi, while the name of the brother is Pradeep. I had left the 4 school in fifth class, about four years back. About three months back, I had been working as a labourer in the Department of Forest. Gurdhian (the accused) used to be the Mate there. He used to propose me for marrying him but I used to reply in negative. On having felt insulted, I left the job as ‘Beldar’. Thereafter, I kept on living at my house. On 27.6.93, at about 9.00 O’ Clock Smt. Satya Devi, wife of late Shri Karam Chand, resident of Ghulat had called on me at my home. She told me that on that day I should go to the house of my sister at Katehar and on 28.6.93 the accused would meet me at about 3.30 p.m. She further told that she had talked to the accused about the marriage and asked me to accompany him. At 3.30 p.m., when I reached near Ropru, where there are two passages, the accused met me. He stopped me from heading towards my house and told me that we would go via Shahni and solemnize the marriage. On this, I instead of going to my house, started towards Shahni. Thereafter, he took me by the passage through Shahni and we reached at ‘Rainchi Mor’ at about 6.30 O’ Clock. The accused told me that on that day we would stay at the house of Mehar Chand. Mehar Chand made us to stay in a ‘Dawar’ (cave) near his house. On the next day i.e. 29.6.93, I and the accused, reached the house of Mehar Dass at 12.00 midnight. There we took our meals and then both of us left to the house of the accused, where Sita Devi started beating me. The accused and his father saved me from her. They also told her not to give beatings to me and if she wanted to go she could leave. The accused did not commit any misdeed with me in the cave. On 30.6.93, Sabloo 5 Ram (father of the accused) took me and the accused to the ‘Dawar’ (cave) and told us to run away from there. He also gave Rs. 3000/- to the accused besides bringing meals. On that night the accused twice performed ‘Bura Kam’ with me and he told me that he would give me of Rs. 20,000/- and transfer half of his land in my name. On 1.7.93 both of us went to (illegible) on foot and from there to Una in a bus and reached the quarter of Manohar Lal (PW8) and stayed there for the night. During that night also the accused committed ‘Bura Kam’ with me once. On the next day the accused, myself and Manohar Lal came to Shimla from where (illegible) the accused went back and Manohar Lal hired a taxi and I along with him reached Ghorla nullah in the taxi during night at 1.30 a.m.. From there Manohar Lal took me to the house of Shyam Dass at Gati. I stayed at the house of Shyam Dass whereas Manohar Lal left. Thereafter, Shyam Dass made me to stay at his house for three days. During the night I used to stay at his house and in day time he used to send me to the nullah. On 6.7.93 Sabloo Ram came to me in the nullah who told me that the police people had gone to Ghulat and asked me to accompany him to his house. Accordingly, I started for the house of the accused and reached there. Thereafter, the police came there. Sabloo Ram had left towards Shahni before arrival of the police. The accused, after stopping me on the way without my consent, had enticed me to his house by giving allurement of money and land with a view to compel me to marry him. And had committed ‘Badpheli’ ‘Galat Kam’ with me without my consent. I was entrusted in the custody of my father by the police. 6 The clothes, Salwar and Kameez worn by me had been washed on 5.7.93.” 5. Thereafter, the prosecutrix was sent for medical examination to RH, Rampur, vide application Ext. PW16/A, where she was examined by PW16 Dr. Mrs. Sunita Gupta, who issued medico legal certificate Ext. PW16/B, containing the following observations:- “She was fully conscious, well nourished an average built. Secondary sexual character had developed. Clothes She had changed the clothes worn at the time of act. External Examination No evidence of external and internal injury on face, breast, abdomen, chest, back, thighs and perineum. Local Examination Pubic hair not matted. No injury seen. P/s Smear taken from posterior fx. and two slides prepared and sent for laboratory examination. P/V Examination Labira majora and minora have developed. Hymen ruptured and admits two fingers easily. Introitus lax. Posterior commissure intact. Fourchette intact. Vaginal smear for sperm Lab No. 2900 dated 8.7.93. No sperms seen.” 6. On the basis of the above observations, PW16 Dr. Mrs. Sunita Gupta has opined as under:- 7 “She is habitual of intercourse and she has not been subjected to intercourse in the last 24 hours. She was used for sexual intercourse. I had referred the case to Radiologist for age determination. As reported by Radiologist vide x-ray No. 198- 201/8.7.93. The age of the girl is 15 to 17 years.” 7. School Leaving Certificate Ext. PW13/A of the prosecutrix, wherein her date of birth is recorded as 18.2.1978, was also taken into possession by the police. 8. On production by the prosecutrix, her Salwar Ext. P1, which she was stated to be wearing at the time of the alleged occurrence, was also taken into possession by the police, vide memo Ext. PW7/A. 9. On medical examination of the accused, PW15 Dr. K.B.L. Srivastava had found nothing to suggest that he was not capable of the act of sex. 10. The police also took into possession bed sheet Ext. P2 from the quarter of PW8 Shri Manohar Lal at Saloh, District Una, where the accused had allegedly taken the prosecutrix and raped her, vide memo Ext. PW8/A. The accused had also produced his underwear to the police, which was taken into possession, vide memo Ext. PW11/A. 11. The clue materials as aforesaid were sent to the State Forensic Science Laboratory, Himachal Pradesh, Shimla-1 for chemical examination and report Ext. PW18/A was obtained. However, neither blood nor semen was found on the same. 8 12. On completion of investigation, the accused was sent up to face trial. On being charged, he did not plead guilty and claimed to be tried. The prosecution evidence followed. It has examined as many as 19 witnesses. 13. On close of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. While denying the incriminating circumstances appearing against him in the prosecution evidence, he has stated that at the relevant time, the prosecutrix was major and she had voluntarily joined him and had come back at her own will. According to him, a false case was registered against him at the instance of Bishan Dass, Balak Ram and Krishan Singh etc. The specific defence raised by him in answer to question No.18 of the statement is to the following effect:- “I am innocent and the case is false. The prosecutrix was major and drawing salary of a major from the Forest Department which is given to a person of 18 years of age.” In defence, the accused has examined two witnesses, namely DW1 Shri Budhi Ram, Junior Assistant, DFO Office, Kotgarh and DW2 Shri Hardyal. 14. On conclusion of the trial, the accused was acquitted by the learned Sessions Judge by extending benefit of doubt to him. Being aggrieved, the State has laid challenge to the impugned judgment dated 21.9.1996, which is supported by the accused. 9 15. We have heard the learned Deputy Advocate General for the appellant-State, learned counsel for the respondent- accused and have perused the record. 16. The most material question for determination in this case is as to what was the age of the prosecutrix at the time of occurrence, which is stated to have taken place on 28.6.1993. In complaint Ex.PW1/B, the complainant had stated vide para 1 that the prosecutrix was aged about 14 years. However, the recitals in para 5 of the complaint are to the effect that as per school leaving certificate, date of birth of the prosecutrix is 18.2.1978. A photo copy of the certificate was also stated to have been attached with the complaint. School leaving certificate of the prosecutrix has been brought on record as Ex.PW13/A and has been proved by PW13, Shri Daya Nand, Teacher, Govt. Primary School, Himri wherein her date of birth is recorded as 18.2.1978. According to this piece of evidence, the age of the prosecutrix at the relevant time comes to 15 years 4 months and 10 days. On 1.7.1993, while making statement Ex.DA to the police under Section 161 Cr.P.C, the prosecutrix had disclosed her age as 15 years. In MLC Ex.PW16/B, prescription slip Ex.PW6/C and X-Ray form Ex.PW17/A, issued on 8.7.1993, her age is recorded as 15 years. 17. As already noticed radiological age of the prosecutrix at the given time as ascertained on the basis of 10 ossification test carried out vide X-ray form Ex.PW17/A and x- ray films Ex.PW17/A1 to A4, has been opined by PW16 Dr. Sunita Gupta and PW17 Dr. P.C. Gupta to be between 15 to 17 years. 18. The complainant, Shri Thewa Ram, who is father of the prosecutrix, while appearing as PW-1 has made the following statement with regard to the age of the prosecutrix:- “I having four children three daughters and one son. My eldest daughter is 24 years of age, Kumari Sauja is 19 years, Satya was of 15 years of age and the age of my son is 13 years.” 19. In cross examination he has admitted that the prosecutrix was working on muster roll in the Forest Department for the last about three months prior to the occurrence, but has denied that she was working as such for the last two years prior thereto. However, he has admitted that she was drawing wages that of an adult (major), but at the same time has denied that she was major. PW-2 Shri Bishan Dass, who is Vice President of the Gram Panchayat to which the prosecutrix belongs has admitted in the last lines of cross examination that the prosecutrix was working in the Forest Department for the last two years and was drawing wages as an adult. PW6 Shri Prakash Chand has also admitted that the prosecutrix was getting wages of an adult labourer. 20. PW-5, Smt. Saroja Devi, one of the elder sisters of the prosecutrix has stated that the prosecutrix was aged 15 11 years at the time of the occurrence. In cross examination she has admitted that she was working in the Forest Department for the last two years. However, she has feigned ignorance whether she was drawing wages of an adult labourer. She has denied that the prosecutrix was 18 years of age. 21. The prosecutrix has appeared as PW-7. She has stated that they are three sisters and one brother. She is youngest amongst sisters and elder to the brother. According to her she was aged 15 years at the time of the occurrence. In cross examination she has stated that she was working in the Forest Department as labourer uptil about 5-6 months prior to the occurrence. However, she has denied that she was working as such for the last two years prior to the occurrence. She has also denied that she was getting full wages and instead has volunteered to state that she was getting half wages. It is also denied that children of her elder sister are studying in 8th Class and has volunteered to state that they are very small. She has feigned ignorance whether her age is given in muster roll as 19 years. She has volunteered to state that her age was 15 years and she was getting half wages and the remaining half were misappropriated by the accused. In further cross examination she has denied that she was 18 years of age at the time of the occurrence and had voluntarily accompanied the accused. 12 22. PW-13,Shri Daya Nand, Teacher, Govt. Primary School, Himri, who has proved the school leaving certificate, Ex.PW-13/A of the prosecutrix, wherein her date of birth is recorded as 18.2.1978, has stated during cross examination that the entries made in the school leaving certificate were based on the admission record kept in the school. However, he had not brought the said record to the court at the time of his examination as witness. According to him, the entry with regard to the date of birth in the school admission record is made on the basis of panchayat record. 23. PW-14, Shri Liak Ram, Secretary, Gram Panchayat Dalash, has stated that he remained posted as Secretary, Gram Panchayat Kather upto September, 1984. He had brought the original record of the concerned Gram Panchayat, that is, Parivar Register, according to which, the date of birth of the prosecutrix is 18.2.1978. He has also stated that certificate mark `X’ was issued by the Chowkidar of the Panchayat. In cross examination he has admitted that as per the Panchayat record only date of birth of the prosecutrix is written. He has also admitted that the date of birth of the prosecutrix is not given in the relevant column, but had been written in the remarks column, which has been entered by him. According to him, he made the entry regarding the date of birth of the prosecutrix on the basis of school record. At this stage, 13 the following observation has been made by the learned trial Court:- “Parivar register of the Panchayat produced by the witness. On the perusal of the Parivar register the witness has stated that he has made the entry showing the date of birth of the prosecutrix as 18-2- 1978 on the basis of the school leaving certificate. The witness has stated that he had the authority to make the entry in the record on the basis of document. If the date of birth is wrong then the permission from S.D.M. is required but in case the approximate age is given in the Parivar register then that can be corrected on the basis of the school leaving certificate.” 24. In further cross examination PW-14 Shri Liak Ram, Secretary, Gram Panchayat, has stated that he cannot say whether the entry regarding date of birth is correctly entered in the Panchayat record after 1975 and before that approximate age was entered in the record. He has admitted that there are certain pages left blank in the register, but, has volunteered to state that these pages were left after the completion of entry of one village. However, he has denied that he made the entry in the Parivar register after the registration of the present case at the instance of the police. 25. The above is the entire evidence about the age of the prosecutrix. Insofar as the oral evidence relating to the age of the prosecutrix comprising of the depositions of the complainant, Shri Thewa Ram, father of the prosecutrix, as 14 PW-1, her sister PW-5 Smt. Saroja Devi and the prosecutrix as PW-7 is concerned, the same does not inspire much confidence being inconsistent and based on an conscious effort to bring her age to the lower side. 26. Now, we are left with the documentary evidence about the age of the prosecutrix. From a combined and harmonious reading of the depositions of PW-13, Shri Daya Nand, Teacher, Govt. Primary School, Himri and PW-14 Shri Liak Ram, the then Secretary of the concerned Gram Panchayat, much reliance can also not be placed on the school leaving certificate Ex.PW-13/A for the reasons that neither the original school record relating to the admission of the prosecutrix in the school nor the original Panchayat record with regard to the birth of the prosecutrix, that is, birth and death register, has been produced. Insofar as the parivar register is concerned, authenticity of the same looses its very significance keeping in view the manner in which the entry with regard to her date of birth has been made in the said register. 27. On the other hand, it is established from the muster roll Ex.D-1 that in the month of February, 1993, when the prosecutrix was working as daily wage labourer in the Forest Department, her age was recorded as 21 years. In all probability such entry must have been recorded at her own behest. The record also reveals that she was getting full wages as were 15 payable to an adult labourer, albeit the fact that she has stated to the contrary, but, this fact is borne out from the other evidence on record, as already stated here-in-above. 28. In view of the above, it shall not be unsafe to conclude that the inference drawn by the learned trial court that the prosecutrix was above the age of 18 years at the time of occurrence is borne out from the evidence on record and no fault can be found with such finding. 29. Now while adverting to the merits of the case, it would be seen that it is apparent from the evidence on record that the prosecutrix was a willing party to go with the accused, as also to have indulged in the act of sex with him, if any, out of her free and independent volition. The inkling to this effect is very much manifest even from the testimony of the complainant PW-1, Shri Thewa Ram, father of the prosecutrix, who has stated as under:- ”My daughters are unmarried. Again said two daughters are married and one daughter run away herself. Again said she was taken away by accused Gurdhyan present in the Court.” “The prosecutrix had gone to the house of my elder daughter Surja. One Rama Nand of village Sheog came to me who told me that my daughter has been taken away by accused. I called Balak Ram and Bishan Dass in my house and told them about the 16 incident and thereafter, I remained in my house. The above named persons might have searched my daughter. Accused was searched Bishan Dass etc. but he was not at his house. I do not know from where my daughter was recovered as I was busy in my work. The police handed the custody of prosecutrix to me at Anni vide memo Ex.PW-1/A. I do not remember whether I affixed any thump impression on some application or not. Again said I affixed my thumb impression on Ex.PW-1/B.” 30. At this stage, it shall be pertinent to notice that whereas the occurrence pertains to 28.6.1993, the matter was reported to the police by the complainant PW-1, Shri Thewa Ram, for the first time on 4.7.1993, vide complaint Ex.PW-1/B, that is, after six days, without there being any reasonable explanation coming forth for the intervening delay. 31. The above inference that the prosecutrix had voluntarily joined the company of the accused and had also accompanied him to Una District, where both of them had stayed in the quarter of PW-8, Shri Manohar Lal, Patwari, who though belongs to the area of Ani, but was posted as such in District Una for the last about seven years, is also deducible from the testimony of PW8 Shri Manohar Lal. He has stated that on 3.7.1993, the accused had come to his house with one girl (prosecutrix). On enquiry, the accused had told him that she 17 was his wife. According to him, the accused had told him that since he was not feeling well he wanted to take some rest and stay there for some days. He has further stated that when he was coming to his native place on holiday, the accused had