1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 104 of 1994 Date of decision: 08.01.2008 ____________________________________________________________ State of H.P. Appellant -vs- Vinod Kumar Respondent. __________________________________________________________________ Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellant : Mr. Som Dutt Vasudeva, Additional Advocate General with Mr. D.S. Nainta, Dy. Advocate General. For respondent Mr. Vinay Thakur, Advocate, vice Mr. T.R. Chandel, Advocate. __________________________________________________________ Surjit Singh, J. (oral) This appeal is directed against the judgment of the trial Court, whereby respondent Vinod Kumar, who was sent up for trial for an offence punishable, under Section 376, Indian Penal Code, has been acquitted. Report was lodged against the respondent by Jawala Dass (PW1) on 11- 1-1989 to the Judicial Magistrate Ist Class, Rampur, District Shimla that his daughter, aged about fifteen years, had been raped by the respondent when she went to the water tap installed in front of the house of the respondent, to fetch water. It was alleged that his daughter did not disclose to any body about the incident as she was promised by the respondent that he would be marrying her, but later on when her abdomen was found enlarged and it was suspected that she was pregnant, she told her mother Leela Devi (PW2) that she had conceived from the Whether reporters of the Local papers are allowed to see the judgment? 2 respondent. The Judicial Magistrate marked the complaint to the Station House officer concerned for investigation under Section 156 (3) of the Code of Criminal Procedure. Police registered a case against the respondent. Certificate was obtained from the Pradhan of the Gram Panchayat per which the date of birth of the prosecutrix is 26.2.1973. The prosecutrix was medically examined by Dr. Sushma Bajaj (PW5). She conducted the medico legal examination on 16-1-1989 and found that the prosecutrix was carrying pregnancy of thirty to thirty two weeks. Skeletal age of the prosecutrix was got determined in the month of July, 1989 and the Doctor opined that her age could have been between fifteen to seventeen years. Prosecutrix herself, while in the witness box deposed as PW3 that she had been raped by the accused in the month of Jeth. She stated that she was dragged by the respondent to his house when she went to fetch water from the tap and that when she resisted the attempt of the respondent and tried to raise cries, he (the respondent) promised that he would be marrying her and so she kept quiet. Trial Court has acquitted the respondent holding that the prosecutrix had reached the age of discretion at the time when the incident took place and the incident appeared to have taken place with her consent. We have gone through the record and heard the learned counsel for the parties. The certificate of date of birth of the prosecutrix Exhibit PB issued by the Pradhan of the Panchayat is based on entry in the Parivar register. Pradhan of the Panchayat Shiv Lal (PW4) while in the witness box admitted that Birth and Death register from which the entries are shifted to the Parivar register is also available with the Panchayat. Prosecution did not offer any explanation for not proving the entry in the birth and death register, which is supposed to be the primary evidence of 3 the birth of a person. Therefore, the prosecution is liable to adverse inference. The date of birth mentioned in Exhibit PB based on the entry in the Parivar register does not appear to be correct. The date of birth as per this certificate is 26-2-1973 but the father and mother of the prosecutrix namely, Jawala Dass (PW1) and Leela Devi (PW2), respectively, testified that the prosecutrix was born in the month of Chet. The month of Chet corresponds to the period mid March to mid April. 26-2-1973, the date mentioned in the certificate Exhibit-PB, falls in the month of Phagun. This fact also casts doubt qua the correctness of the certificate Exhibit PB as also the entry in the Parivar register on which this certificate is based. Prosecutrix was subjected to ossification test by Dr. V.K. Bhardwaj (PW6) . According to him, the age of the prosecutrix was between fifteen to seventeen years meaning thereby that the prosecutrix at the relevant time could have been sixteen years or above and hence past the consenting age mentioned in Section 376, Indian Penal Code. Prosecutrix has not corroborated many material allegations contained in the complaint Exhibit PA which her father lodged with the Judicial Magistrate. For example in the complaint it is alleged that after the prosecutrix became pregnant, the respondent was approached to fulfill his promise of marrying the prosecutrix but initially he put the prosecutrix off and finally backed out. Prosecutrix herself no-where says in her testimony as PW3 that she had ever asked the respondent to fulfill the alleged promise, after it came to notice that she was pregnant. Again in the complaint it is alleged that the prosecutrix was gagged with her own Dhatu when she tried to raise cries but the prosecutrix in her testimony as PW3 does not say so. Again the prosecutrix says that she had told her friend Meenu about the coitus with the respondent one or two months 4 after she stopped menstruating but the prosecution did not examine the said friend of the prosecutrix. For the foregoing reasons, we find no merit in the present appeal. The same is therefore dismissed. (Surjit Singh) Judge. (Surinder Singh) Judge. January 8, 2008. (bm) 5