IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 124 of 1995 Reserved on : 20.03.2009. Date of decision: 1.4.2009 State of H.P. …. Appellant. Vs. Suneel Kumar ... Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. The Hon’ble Mr. Justice V.K.Ahuja. Whether approved for reporting?1. No. For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondent: Mr. Vinay Thakur, vice counsel for the respondent. Per Deepak Gupta, J. This appeal by the State is directed against the judgement of the learned Additional Sessions Judge (I), Shimla, in Sessions Trial No. 18-S/7 of 1993 decided on 25.4.1994 whereby she acquitted the accused of having committed an offence punishable under Section 376 IPC. Briefly stated, the facts of the case are that the prosecutrix was living with her parents and other family members in a rented house at Chopal. She was studying in 8th class. The accused was a teacher in the local DAV School at Chopal. He was also residing in the same building. According to the prosecution, the prosecutrix and her two younger brothers were taking tuition from the accused in the year 1990 and during this period the accused indulged in forcible sexual intercourse with the prosecutrix. In September, 1991 the prosecutrix complained of stomach-ache. She was brought to Shimla for medical check up and during the course of this check up it was found that she was pregnant and she was carrying a foetus of about five months. On inquiry the prosecutrix stated that the accused is the person who had raped her and she had conceived this child through him. 1 Whether the reporters of the local papers may be allowed to see the Judgment . yes. 2 Thereafter, the prosecutrix was got medically examined. F.I.R. was registered and on completion of the investigation challan was filed. The accused was charged for having committed an offence punishable under Section 376 IPC. He pleaded not guilty and claimed trial. After trial the accused has been acquitted. Hence this appeal by the State. We have heard Shri Rajesh Mandhotra, learned Deputy Advocate General for the State and Shri Vinay Thakur vice counsel for the respondent. The learned trial Court came to the conclusion that the prosecution has failed to prove that it was the accused who raped the prosecutrix. She further held that the age of the prosecutrix is over 16 years and the sexual intercourse, if any, was with her consent. As far as the age of the prosecutrix is concerned, the prosecution has only relied upon the certificate Ext.PC in which the date of the birth of the prosecutrix is shown to be 17.8.1976. It would be pertinent to mention that Ext.PC is only an abstract of some school record. It has been proved by PW- 6. No evidence has been led to show as to how the entries were made in the school record. The original register of births and deaths which has probative value has not been produced in this case. There is no material on record to show as to whether the Investigating Officer even tried to trace out the statutory record maintained in respect of births and deaths. The entry in the school register cannot be used to prove the age of the prosecutrix on its own. The parents of the prosecutrix have been examined as PW-4 and PW-7. They have not stated a word about the age of the prosecutrix. The prosecutrix while appearing as PW-1 has also not stated what is her age. As per the statement of PW-5, Dr. Suman Gupta , Radiologist, the skeletal age of the prosecutrix is between 15 to 16-½ years. In cross-examination this witness has admitted that there can be variation of two years while determining the skeletal age. On the basis of this evidence, the trial Judge 3 rightly held that the prosecution has miserably failed to prove that the accused was below 16 years of age. In fact all the material on record other than the school leaving certificate indicates that the age of the prosecutrix was more than 16 years. According to the prosecutrix, she was raped by the accused when she used to go to tuition to him. She states that she and her younger brothers used to go together for tuition but the accused told her brothers to go outside. In cross-examination she states that when the accused indulged in forcible intercourse with her, he was living in the same house as the prosecutrix and her family. It is clear from the statement of this witness that she was raped when the accused was living in the same house. The father of the prosecutrix has clearly stated that his children did not take any tuition from the accused after December, 1990. It is also proved from the statement of the father that the accused shifted his quarter in December, 1990. The prosecutrix herself has stated that she never visited the accused after he shifted his quarter. This would mean that the accused and the prosecutrix were not in contact with each other after December, 1990. The prosecutrix was medically examined in September, 1991 when she was found to be carrying a pregnancy of five months. This is apparent from the statement of the mother of the prosecutrix PW-4 and also from the medical evidence. Therefore, at best the conception of the unborn child took place some time in the end of April, 1991. If the prosecutrix was not in touch with the accused after December, 1990 then it is apparent that the child which she was carrying when she was medically examined was from the loins of some other person. It has been urged that the statement of the prosecutrix that she was raped in the year 1990 cannot be brushed aside. The law by now is well settled that conviction in a rape case can be made on the sole statement of 4 the prosecutrix. However, the statement must inspire confidence. In the present case, the statement of the prosecutrix lacks credibility and does not inspire confidence. On the one hand she states that she never met the accused after December, 1990 but she also claims that the child she was carrying was that of the accused. This cannot be true in view of the discussion made above. This is a material infirmity in the statement of the prosecutrix and therefore, her statement cannot be believed without proper corroboration. Even if it be assumed that the accused did have sex with the prosecutrix it appears that this was consensual sex since the prosecutrix kept silent for a long time and never spoke a word about the accused sexually abusing her. The material on record also shows that the mother of the prosecutrix was aware about the pregnancy and there is great delay in lodging the F.I.R. Keeping in view the entire facts and circumstances of the case, we are of the considered view that the learned trial Court rightly acquitted the accused. 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), J. April 1, 2009. ( V.K.Ahuja ), J. ™