IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 24 of 2000 Date of Decision : August 5, 2010 State of Himachal Pradesh Appellant Versus Bar Chand Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Rajesh Mandhotra, Deputy Advocate Geneeral for the appellant/State. For the respondent : Mr. Umesh Kanwar, Advocate, vice Mr. Dilip Sharma, Advocate, for the respondent. Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgment dated 9.9.1999 passed by the learned Sessions Judge, Mandi, District Mandi, H.P. in Sessions Trial No. 30 of 1997 whereby he acquitted the accused of having committed offences punishable under Sections 363, 366-A and 376 of the Indian Penal Code. Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 2. On 23.10.1996 Sh. Keshav Ram (PW-1), father of the prosecutrix lodged a complaint at Police Station, Karsog. In this complaint it was alleged that the complainant was employed in the department of the Irrigation and Public Health and was living with his family in village Salogi in Illaqua Chaursi of Tehsil Karsog. Keshav Ram had six daughters and one son. The prosecutrix was his eldest child. Accused Bar Chand worked as a Carpenter. Keshav Ram had engaged him to make some furniture for him. During the period of this employment their relations became friendly and the accused used to visit the house of Keshav Ram off and on. 3. On 22.10.1996 when Keshav Ram came home he found that the prosecutrix was missing. A search was made for her but in vain. It was found that the accused was also missing from the village and therefore the complainant suspected that his daughter had run away with the accused and therefore lodged a complaint with the police. Consequent to the complaint the police swung into action and one month later on 22.11.1996 the prosecutrix was recovered from the company of the accused in village Jaksha. According to the prosecution the prosecutrix who is a minor girl aged 15-½ years was allured by the accused with false promise of marrying her. It was also alleged that the accused had committed forcible sexual intercourse with the prosecutrix and thus was liable to be punished under law. 4. After completion of the investigation challan was filed against the accused and he was charged with having committed 3 offences of kidnapping, rape and procuration of a minor girl. The learned trial Court after trial by a well reasoned judgment has acquitted the accused. Hence this appeal by the State. 5. The main ground which weighed with the trial Court was that the prosecutrix was more than eighteen years of age and that she was a consenting party and had willingly gone with the accused and had sex with him. 6. The first question which arises for consideration is – what was the age of the prosecutrix? PW-1 father of the prosecutrix stated that the prosecutrix was 15-½ years of age at the time when she was kidnapped and raped. However from the cross examination of this witness it is apparent that this version cannot be true. He stated that he was aged 39 years and was married at the age of 15 years. This means that he was married 24 years earlier. He then stated that he was married 21 years prior to making of his statement. He also clearly stated that the prosecutrix, who was the eldest child, was born one year after the marriage. The statement of the complainant Sh. Keshav Ram (PW-1) was recorded on 18.8.1998 which would mean that he was married in the year 1977 or even earlier. This would also mean that the prosecutrix was born in the year 1978 and thus in the year 1996 when the occurrence took place she would have been more than 18 years of age. 7. The other document relied by the prosecution is the extract of the birth and death register of Gram Panchayat, Pokhi maintained under the Registration of Births and Deaths Act. This 4 register and its contents are admissible under Section 35 of the Indian Evidence Act. However it must be shown that the Register has been maintained properly and in the ordinary course of business. It was found by the learned trial Court on inspection that the register commenced on 1.4.1981 and all the entries except one were made in ink. The entry not made in ink but in a ball-pen relates to the prosecutrix. As per this entry the prosecutrix was born on 28.1.1981. Sh. Mahesh Chand (PW-4) who produced the register was asked to explain how entry of 28.1.1981 was made in the register which commenced on 1.4.1981. He candidly stated that he could not offer any explanation for the same. This witness also admitted that the register was torn and many pages were loose. The learned trial Court in such a situation was absolutely justified in holding that no reliance can be placed on this register which was torn and pages of which were loose and most importantly it contained an entry in a totally different ink in respect to the prosecutrix of a date on which the register had not even been brought into the Panchayat. 8. Similarly the learned trial Court was fully justified in discarding the copy of the extract of the Pariwar Register (Ext. PW 4/A). It is settled law that entries made in a Pariwar Register do not have such force which is attached to the entries made in births and deaths register. When the entries from a Pariwar Register are to be proved it must be proved that the register is maintained properly and the manner in which the entry was made in the Pariwar Register 5 must also be explained. The trial Court has discarded this register because in this register, copy of extract of which is Ext. PW 4/A the age of wife of Keshav Ram i.e. mother of the prosecutrix is entered as 15 years, age of two other daughters is entered as 16 years and only in respect of the prosecutrix the date of birth is given. This clearly shows that the Pariwar Register was not maintained properly and the entries are incorrect. 9. Coming to the statement of Dr. Jai Vaidya, Radiologist (PW-2) relied upon by the prosecution. It is apparent that as per the ossification test the Doctor opined that the age of the prosecutrix was between 15 to 16-½ years. PW-2 in cross examination admitted that fusion of bones can take place at later age where the economic conditions of the subject are not good and such person suffers from malnutrition. It is also settled position of law that fusion of bones depends not only on nutritional diet but also on climatic conditions and racial and genetic attributes of an individual. It is settled position of law that there can be a margin of error of 2 to 3 years on either side. In view of the aforesaid evidence the learned trial Court was fully justified in holding that the prosecution has miserably failed to prove that the prosecutrix was below 18 years of age. 10. The next question which arises for consideration is whether the prosecutrix was taken away by the accused against her wishes and whether the act of sex was forcible in nature. No doubt the prosecutrix has stated that she was forcibly taken away and 6 raped by the accused. It is also true that conviction of rape can also be based on the sole testimony of the prosecutrix. However such testimony must inspire confidence and have a ring of truth. In case there are unexplained inconsistencies in the statement of the prosecutrix it would be highly unsafe to base conviction only on her sole testimony. 11. Even as per the prosecutrix on 22.10.1996 the accused came to her house during day time. Her parents were working in the fields. The accused asked her to accompany him to his village. She refused but the accused insisted and promised to marry her. She therefore accompanied him. She does not state that she was taken by force. Nor is it stated that she raised an alarm. Just on the promise she accompanied the accused. According to her the accused first took her to village Bindal where they spent the night in the house of one Balu Ram. Next day they went to village Dalash. Thereafter the accused took her to a jungle where he committed forcible sexual intercourse with her. She was then taken by the accused to the residence of his relatives and he had sexual intercourse with the prosecutrix throughout. Admittedly the prosecutrix spent one month with the accused. According to her though she met Balu Ram and his wife in village Bindal she did not complain either to Balu Ram or his wife that the accused had brought her forcibly. She spent a month with the accused in the houses of his relatives. She admitted in cross examination that she did not complain to anybody that she had been abducted or 7 subjected to forcible sexual intercourse. She in fact admits that she even met the wife of the accused and that the wife of the accused hurled abuses at her. The prosecutrix does not state that she was threatened or restrained in such a manner that she could not raise an alarm or complain to any of the persons in whose houses she spent time with the accused. 12. In view of the above evidence it is impossible to believe that the prosecutrix was taken away against her wishes. It is writ large that she willingly eloped with the accused and the sexual acts, if any, were consensual in nature. 13. Coming to Section 366-A of the Indian Penal Code the said provision has been wrongly invoked. Not only is the prosecutrix a major but before invoking the provisions of Section 366-A of the IPC it must be proved that the accused has procured the minor girl with the object of making her available for sex by other persons. It is not applicable in a case like the present. 14. Section 366-A of the IPC reads as follows: “366-A.Procuration of minor girl.-Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.” 8 15. This section deals with persons who procure a minor girl and make her available for sex by other persons. It has no relation with a case like the present one where even if the prosecution story is to be believed, the accused had kidnapped a minor girl and raped her. No offence under Section 366-A was made out against the accused since there was no allegation that the accused had kidnapped the prosecutrix with intent to force her or seduce her to have illicit sexual relations with some other person. In this behalf reference may be made to the judgment of a learned Single Judge of this Court in Cr. Appeal No.675 of 2000 titled as Ashok Kumar Vs, State of H.P, Latest HLJ 2001 (HP) 569 wherein it was held as follows:- “7. A bare reading of the above provision makes it clear that to constitute an offence punishable thereunder, the following three ingredients must be satisfied; (i) that the accused induced a girl below 18 years of age, (ii) that such girl was induced to go from one place to another place from lawful custody and (iii) that such girl was induced with intent that it was likely that she would be forced or seduced to illicit intercourse with another person. 8 It is evident from ingredient No.(iii) supra that the inducement of the minor girl must be with the intention that it was thereby likely that she would be forced to illicit intercourse with a person other than the person who kidnaps her.” 9 16. In view of the above discussions it is held that no offence was made out against the accused. The learned trial Court rightly acquitted the accused. 17. We find no merit in the appeal which is accordingly dismissed. Bail bonds furnished by the accused are ordered to be discharged. (Deepak Gupta), Judge. (Sanjay Karol), Judge. August 5, 2010 (PK)