IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.72 of 1995 Decided on: 6th March, 2009 State of H.P …..Appellant. VERSUS Babu Ram …..Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K.Ahuja, Judge. Whether approved for reporting?1No For the Appellant: Mr. R.M.Bisht, Dy.A.G for the appellant For the Respondents: Shri Jagan Nath, vice counsel for the respondent Deepak Gupta,Judge (Oral) This appeal is directed against the judgement of the Learned Sessions Judge, Sirmaur, District at Nahan in Sessions Trial No.12-N/7 of 1993, decided on 8.4.1994, whereby he acquitted the accused of having committed offences punishable under Sections 363/366 and 376 of the Indian Penal Code. 2. Briefly stated the facts of the case are that one Parwati who is the cousin of the prosecutrix is married to Ramesh Chand, brother of the accused. Since his brother was married in village Bara Ban, the accused used to visit this village off and on. 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes The accused developed friendship and established physical relations with the prosecutrix. Prosecution story is that on 12.12.1991, the accused visited the village Bara Ban and sent a message to Meena Kumari through Kiran Bala to meet him in the forest. The prosecutrix did not act upon this message. In the night, she was sleeping in her grandfather’s room. The accused tip-toed into that room and asked the prosecutrix to accompany him to his village. The prosecutrix expressed her reluctance and then the accused threatened her that in case she would not go with him, he would tell the whole world that she had been enjoying sex with him. The prosecutrix succumbed to this black-mail and accompanied the accused to the forest where he allegedly subjected her to forcible sexual intercourse. From the forest, the accused brought the prosecutrix to Nahan town in a taxi. From Nahan, both of them took a bus to Pinjore where they resided in the house of one Kishan, friend of the accused. Accused there also allegedly raped the prosecutrix. Then he took her to a temple at Kalka where they exchanged garlands and the accused declared that they stood married. 3. Report was lodged with the police by the grandfather of the prosecutrix on 14.12.1991. According to him, he did not lodge the report earlier because he was advised by the Pradhan of the Gram Panchayat to first search for the girl at the houses of the relatives. His sister Parwati however informed him that she had seen the accused with some friend in the village and she suspected that he might have kidnapped the prosecutrix. 4. The police after making some inquiries, went to Pinjore on 14.12.1991 where the prosecutrix was recovered from the residence of Kishan. The girl was handed over to the father. Next day, the girl was got medically examined. Ossification test was conducted and the Radiologist determined the age of the prosecutrix between 18-19 years. According to the police, as per certificate of the Pardhan of the Gram Panchayat, the date of birth of the prosecutrix was 25.5.1975. Even this would mean that she was above 16 years on the date when the occurrence allegedly took place. Medical examination of the prosecutrix showed that she was habitual to sexual intercourse. No injuries were found on the person. 5. The learned Trial Court has come to the conclusion that the age of the prosecutrix was more than 18 years at the time when the occurrence took place. As per the report of the Radiologist Ext.PE/1, the skeletal age of the prosecutrix has been opined to be between 18-19 years. The learned Trial Court has rightly not relied upon the certificate issued by the Gram Panchayat. This certificate is based on the entries made in the Register of Births and Deaths, Ext.PG. We have perused the said Register. It is not properly maintained at all. Column Nos.2 and 3 of the said Register relate to the date of birth and the name of the informant. We find that in the column of date of birth, not only the date of birth is entered but also the date on which the information was given is entered. Obviously, the entries had to be made in accordance with the date on which the information had been given. However, the register has not been filled in this chronological manner. It appears that the entry has been interpolated at the later stage. This Register was not taken into possession during the investigation but was produced only during the course of trial. It appears that this entry in the register has been manipulated. 6. The prosecutrix while appearing in the witness box had stated that she had joined school when she was eight years old and she failed twice in the 8th standard and thereafter, she stopped going to school. Therefore, she studied in the school for at least 9 years. This would mean that when she stopped going to school in the month of March, 1990, she was 17 years old and in December, 1991 when the alleged occurrence took place, she was well above 18 years. From the evidence discussed above, it is more than apparent that the prosecutrix was more than 18 years and, therefore, she could not have been kidnapped. 7. The evidence on record clearly shows that the prosecutrix of her own free will went with the accused. She was sleeping in her grandfather’s room and she could easily raised an alarm when the accused took her away. The prosecutrix has admitted that she was having an affair with the accused for more than one year prior to the alleged occurrence. She also admits that she had sex with the accused 4-5 times before this occurrence. It is thus clear that she was a consenting party and no offence of rape has been committed on her. 8. In view of above discussions, we find no merit in the appeal which is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. (V.K.Ahuja) 6th March, 2009 Judge (m)