IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 352 of 1998. Decided on: 12.05.2010. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Jai Parkash and another. …Respondents. Coram: The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1. __________________________________________________________ For the appellant : Mr. Rajinder Dogra, Additional Advocate General. For the respondents : Mr. Vinay Thakur, Advocate. ---------------------------------------------------------------------------------------- Surjit Singh, Judge(Oral) : This appeal by the State is directed against the judgment dated 16.05.1998 of the Sessions Court, whereby respondents Jai Prakash and Vinod Kumar, who were charged with and tried for offences, under Section 342,376 and 506 read with Section 34 of the Indian Penal Code, have been acquitted. 2. Case of the prosecution, which led to the trial of the respondents, may be summed up thus. Prosecutrix (name withheld) examined as PW-1, was deputed by her mother PW-2 Usha Devi on 15th August, 1996 to fetch rice from society depot. Depot is situated in a different village at a distance of about ½ K.M. from the residence of the prosecutrix. When she reached 1 Whether the reporters of the local papers may be allowed to see the judgment? the depot and found that it was closed, she enquired from respondent Jai Prakash, who happened to be present nearby as to where the salesman of the depot, namely, Geeta Ram (PW-9) could be. Respondent allegedly told the prosecutrix that he was in the room just above the store-room. She went up-stairs. Room was open. Respondent Jai Prakash followed her and pushed her inside the room. The other respondent, Vinod Kumar, was already in the room. Both of them over-powered the prosecutrix and committed rape on her, one after the other. 3. Prosecutrix returned home. Her mother was not there at that time as she had gone to fetch medicine for one of her younger siblings. She returned late in the evening. She enquired from the prosecutrix whether she had brought rice. Prosecutrix told that since the depot was closed, she did not bring the rice. The mother also enquired as to why she went to sleep early, upon which she told that she had headache. Next day, the prosecutrix asked her younger sister PW-14 Kamlesh to wash her Salwar which had stains of blood. Prosecutrix instructed her sister not to disclose the fact of stains of blood on her Salwar to the mother. However, PW-14 Kamlesh informed her mother. Mother of the prosecutrix then made enquiries with the prosecutrix. Prosecutrix told her mother about the incident. Her mother also noticed tooth bite marks on her cheeks. Then, a letter was got written by the mother of the prosecutrix from her and it was sent to the sister of the mother of the prosecutrix. In that letter, details of the incident were given. On getting that letter, the sister of the mother of the prosecutrix sent her son, who was then deputed to inform the father of the prosecutrix, who had gone to a jungle those days to do lumbering work. 4. Father of the prosecutrix returned 3-4 days thereafter. Prosecutrix’ father wanted to settle the matter amicably by talking to the father of respondent Jai Prakash, but he was not available. Prosecutrix’ father Liaq Ram (PW-6) waited for the father of respondent Jai Prakash for 2-3 days and when he could not be located, prosecutrix was taken by him to Police Post, Junga, where her statement, Ex.-PW 1/A, under Section 154 of the Criminal Procedure Code was recorded on 22.08.1996 at 5:00 P.M. On the basis of this report, a case was formally registered at Police Station, Theog vide F.I.R., Ex.-PW 17/A. Prosecutrix was got medically examined. PW-19 Dr. Ashok Thakur conducted the medical examination. He did not notice any injury on any part of the person of prosecutrix, including her private parts. He found that vagina of the prosecutrix admitted two fingers easily and so he gave the opinion that she was habitual of sexual intercourse. 5. Both the respondents were arrested and got medically examined. Their medical examination revealed that there was nothing abnormal qua their reproductive system and they were capable of performing sexual intercourse. 6. Police procured the School Leaving Certificate from the School last attended by the prosecutrix and as per that certificate, date of birth of the prosecutrix is 15.04.1981. Certificate was also obtained from the Panchayat Secretary about the date of birth of the prosecutrix. Certificate, Ex. PW 22/A was issued by PW-22 Sushil Kumar and as per this certificate, date of birth of the prosecutrix is entered as 15.04.1981 in the Parivar Register (family register). Skeletal age of the prosecutrix was got determined from Radiologist PW-26 Dr. Minu Sood, who opined her age between 13 ¾ years to 16 years. 7. Respondents in their statement, under Section 313 of the Criminal Procedure Code denied having committed sexual intercourse with the prosecutrix. They pleaded that they had been falsely implicated on account of enmity between the father of the respondent Jai Prakash and the father of the prosecutrix. 8. Trial Court has acquitted the respondents, holding that there is un-explained delay in lodging the F.I.R., conduct of the prosecutrix in not informing her mother promptly and requesting her younger sister not to disclose the fact of blood stains on her Salwar to the mother, suggests that it was not a case of rape, medical evidence does not support the prosecutrix’ testimony, there is enmity between the father of the respondent Jai Prakash and the father of the prosecutrix, and evidence with respect to the age of the prosecutrix is also not authentic. 9. We have heard the learned Additional Advocate General as also the learned counsel representing the respondents and gone through the record. 10. We do not find ourselves in agreement with the view taken by the learned trial Court that delay in lodging the F.I.R. itself is enough to disbelieve the prosecution version. Delay may not have been satisfactorily explained in the manner in which the prosecution sought to explain it, but the fact remains that in cases of this type, the honour of the lady being at stake, delay does take place in lodging the report, because the family members deliberate on the issue whether to make the incident public, by reporting to the Police. 11. But, we are in agreement with the view taken by the trial Court that evidence with respect to the age of the prosecutrix, does not sufficiently prove that she was below 16 years of age and, hence, incapable of consenting to the sexual intercourse. Primary evidence with regard to the age of a person is the entry in the register of births and deaths, maintained by the Panchayat or the Muncipality or the Registrar of births and deaths in bigger cities. In the present case, entry from the births and deaths register, which is supposed to be maintained by the Panchayat, has not been proved. In fact, the said register was not produced by the prosecution while leading evidence. Father of the prosecutrix Liaq Ram (PW-6), while appearing in the witness box, stated that he reported the birth of the prosecutrix to the Gram Panchayat soon after her birth. That means, birth register is maintained by the concerned Panchayat. Prosecution is, therefore, liable for adverse inference for withholding the birth register. Skeletal age of the prosecutrix, according to the prosecution’s own evidence, is 16 years. PW-26 Dr. Minu Sood stated that X-ray Skia-grams, Ex.-PW26/A to Ex. PW26/G, of the prosecutrix suggest that the age of the prosecutrix could have been up-to 16 years. 12. Prosecution itself tried to prove that the room, in which the alleged crime had been committed, was occupied by two school going boys, who had locked it and that the lock of that room had been broken by the respondents. They examined one witness namely PW-4 Badri Dutt, who stated that lock of the room was broken by the two respondents in his presence and it took them about 20 minutes to accomplish the task, and that during that period of 20 minutes, the prosecutrix remained sitting outside that room. PW-5 Asha Devi living in the neighborhood of the society building, also stated that she saw the lock of the room lying broken and informed Geeta aRam (PW-9), Secretary of the society, who got the room re-locked. Geeta Ram corroborates the testimony of PW-5 Asha Devi. 13. Now, if the room was locked and it was broken open by spending about 20 minutes in the presence of the prosecutrix herself and she sat there silently while the two respondents were breaking the lock, it can legitimately be presumed that the alleged act of sexual intercourse had not been committed without her being a willing party to it. 14. Also, we find from the testimony of the prosecutrix, examined as PW-1 and her father Liaq Ram (PW-6) that there was litigation going on between Liaq Ram (PW-6) and the father of respondent Jai Prakash. Not only this, both the prosecutrix and her father stated that the respondents had been defaming the prosecutrix by falsely propagating that she was not a girl of good character. The father of the prosecutrix stated that because of this propaganda by the two respondents, he was annoyed with them. If that is so, possibility of two respondents having been falsely implicated because of this grouse, cannot be ruled out. In view of the abovestated position, we are of the view that this is not a fit case for interfering with the judgment of acquittal. Hence, the appeal is dismissed. (Surjit Singh), Judge (Rajiv Sharma) Judge May 12, 2010. (bhupender)