IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 561 of 1999 Date of Decision : August 04, 2010 State of H.P. …Appellant. Versus: Raj Kumar ………....respondent-accused. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Vivek Thakur, Addl. A.G. with Mr. Rajesh Mandhotra, Dy. A. G. For the respondent : Mr. Romesh Verma, Advocate Deepak Gupta, J. (Oral). This appeal by the State is directed against the judgment dated 30.08.1999 delivered by the learned Sessions Judge, Solan, in Sessions Trial No. 24-S/7 of 1998, whereby the accused was acquitted of having committed an offence punishable under Section 376 read with Section 506 IPC. 2. On 25.9.1997, PW-4 Kamla Devi, mother of the prosecutrix lodged a complaint with the Police Station, Parwanoo alleging that her daughter (the prosecutrix) aged about 14 years was raped by the accused on 24.9.1997 at about 6.30 p.m., 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 when the prosecutrix had gone to cut the grass in the field. It was averred that Bimla Devi reached the spot on hearing the cries of the prosecutrix and that she (Bimla Devi) was also threatened by the accused. Thereafter, the accused and his father were approached but they also threatened the prosecutrix and her parents. On the basis of the complaint (Ext.PW-4/A) made to the Deputy Commissioner, F.I.R. (Ext.PW-12/A) was registered. Thereafter, the prosecutrix was medically examined by PW-1 Dr. Radha Chopra who also proved the medico legal certificate (Ext.PW-1/A) in respect of the prosecutrix. Other investigation was carried out by the police and on completion of the investigation the accused was challaned and charged with having committed the aforesaid offence. He was tried by the learned trial Court and after trial he was acquitted. Hence this appeal by the State. 3. The evidence of the prosecutrix is to the effect that when she had gone to the field for cutting grass the accused came stealthily, embraced her and forcibly had sexual intercourse with her. She raised an alarm and then Bimla Devi came to the spot. Then the accused ran away. He did not say anything to the prosecutrix. In cross-examination, she admits that the place where the accused committed rape with her could be reached within 2 to 3 minutes from her house. According to her, she shouted for help but other than her aunt nobody came on the spot. She also admitted that her house and the house of 3 the accused is visible from the place of occurrence. She stated that she did not try to stop the accused during this act. According to her, no talk take place between the accused and Bimla Devi. She also states that the occurrence took place in the maize field. 4. The statement of Bimla Devi is contradictory to that of the prosecutrix. She states that on hearing the cries of the prosecutrix she went to the spot and saw the accused raping the prosecutrix. The accused had already threatened the prosecutrix and thereafter he ran away. In cross-examination, she states that she heard the accused threatening the prosecutrix and when she reached the spot the accused was still indulging in the act of sex. Whereas the prosecutrix stated that the string (nada) of the salwar was untied and not broken and her clothes were not torn, the aunt Bimla Devi stated that the string (nada) of the salwar was broken and the clothes were torn. The other material contradiction is that whereas according to the prosecutrix the accused did not threaten her or say anything to her, the aunt says that she heard the accused threatening the prosecutrix. 5. The statement of the aunt does not inspire confidence at all. The photographs of the spot were taken and have been exhibited. These show the spot to be a maize field and the surface is rough. In case the prosecutrix had resisted the attempt of the accused, she would have suffered some injuries on her back, but there are no injuries in the medico legal report 4 (Ext.PW-1/A). Dr. Radha Chopra, in her statement clearly stated that she found no injuries on the person of the prosecutrix. 6. According to the prosecutrix, before she was raped she had not had sex with any person. This statement of the prosecutrix is also not corroborated by the medical evidence, since Dr. Radha Chopra had found that the hymen was absent and the vagina easily admitted two fingers and was still loose and, as such, opined that the prosecutrix was habitual to sexual intercourse. In these circumstances, when the prosecutrix has been found telling lies on various important aspects, it would be very dangerous to rely upon her statement to convict the accused. Further more even as per the prosecutrix, she was not threatened by the accused. It is, therefore, clear that the sex, if any, was consensual in nature. 7. This brings us to the other important factor i.e. the age of the prosecutrix. The prosecution with regard to the age has relied upon the birth certificate (Ext.PW-5/A) issued by the Gram Panchayat, Kawakalan under the Birth and Death Registration Act, in which the date of birth of the prosecutrix is mentioned as 1.1.1983. Even in the school leaving certificate (Ext.PW-6/A), the date of birth of the prosecutrix is assessed to be 1.1.1983. As far as school leaving certificate is concerned, not much reliance can be placed on the same, since according to PW-6 prior to her being admitted the school at Nau, the prosecutrix was studying in the school at Gatogara. It was required of the 5 prosecution to have produced the original admission form and record of the Primary School, Gatogara because the entry in the school at Nau is based only on the basis of the school leaving certificate issued from the school at Gatogara. Even the school leaving certificate of Gatogara school had not been proved in evidence. 8. As far as the birth and death register is concerned, this is admissible in evidence under Section 35 of the Act and, therefore, this certificate cannot be discounted easily. However, one material fact which has come on record in this case is that according to PW-8 Dr. J. P. Kaushik, on radiological examination, the age of the prosecutrix was assessed to be between 17 to 19 years. He appeared as a prosecution witness and by leading his evidence, the prosecution itself virtually admitted that the prosecutrix was aged 17 to 19 years. The learned Public Prosecutor did not seek to cross-examine this witness or examine this witness in such a manner so as to show that there was any chance of the age being different. Having relied upon the age of the prosecutrix on the basis of the radiological examination and there being serious conflict between the age assessed by the Radiological examination and the age given in the birth and death register, the benefit has to be given to the accused. In view of the peculiar facts and circumstances of the case, we are of the view that not much reliance can be placed on the certificate Ext.PW-5/A. 6 9. In view of the above discussion, the appeal is dismissed. The bail bonds are discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. August 04, 2010. (rana)