IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.80 of 1996 Judgment reserved on:2.3.2010. Date of decision: 16.3.2010 State of H.P. ... Appellant Versus Rangi Ram and others … Respondents 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 Singh Thakur, Additional Advocate General with Mr.R.M. Bisht, Dy.A.G. For the respondents: Mr.Sandeep Panday, counsel for respondents 1, 2, 3 & 5. Mr.Anup Chitkara, counsel for respondent No.4. ____________________________________________________________ Deepak Gupta, J. This appeal by the State is directed against the judgment dated 1.3.1995 passed by the learned Sessions Judge, Sirmour District at Nahan, in Sessions Trial No.32- N/7 of 1994 acquitting the accused of having committed an offence punishable under Sections 363, 366 and 376(2) IPC. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 The prosecution story, in brief, is that on 21.5.1994 a marriage party went to village Puruwala. Two of the accused Kedar Nath and Rishi Pal were members of this marriage party. These two accused went to the house of one Roshan Lal and consumed liquor there. The prosecutrix is a neighbour of Roshan Lal. At about 1.00 p.m. these two accused went to the house of the prosecutrix. They asked her for water and then requested her whether they could rest at her house for some time. She replied that she was alone in the house and therefore could not permit any strangers inside. Thereupon these two accused allegedly blindfolded and gagged her mouth and took her in a Maruti Van to a ‘khala’ (water pond) where they raped her. After raping her they dis- appeared from the spot. The prosecutrix then took off her blindfold and started walking towards her village. By this time it was dark. On the way the three other accused met her. They took her to a lonely place near a field and raped her one by one. The prosecutrix again started for her village. On the way she met a boy named Babloo who was travelling on a bicycle. She asked him to take her to her Mama’s (maternal uncle) house. The said boy took her to the house of one lady, namely, Roshni in 3 village Majra. The prosecutrix narrated her tale to Roshni who in turn informed the Pradhan of the Panchayat through one Latif. Next morning the prosecutrix was taken to the police post Majra and from there to Police Station, Paonta Sahib where the report was lodged and FIR No.223/1994 registered. The prosecutrix was got medically examined. Her ossification test was conducted. The investigation was completed and thereafter challan filed. The case was committed to the Sessions and thereafter accused was charged for having committed offences as aforesaid. They pleaded not guilty and claimed trial. On completion of the trial they were acquitted. Hence, the present appeal by the State. We have heard Sh.Vivek Singh Thakur, learned Additional Advocate General on behalf of the State and S/Sh.Sandeep Panday and Anup Chitkara, learned counsel for the accused. The first question which arises for consideration is what is the date of birth of the prosecutrix? According to the prosecutrix and her father PW-3 Mam Chand, her age at the time of occurrence was only 15 ½ years. PW-8 Chattar Singh has proved a copy of the extract of the Birth and Death register Ext.PM which shows that the date 4 of birth of the prosecutrix is 22.11.1978. The last piece of evidence relied upon by the prosecution is the ossification test conducted by the Radiologist PW-6 Dr.H.K. Pant. We shall first take up the probative value of Ext.PM, the copy of the entry in the register of births and deaths. PW-Chattar Singh has admitted that whereas in Ext.PM the gender of the child in whose respect the certificate has been issued is shown to be ‘Ladki’ i.e. girl, in the register actually maintained there is no mention of the gender of the child born on 22.11.1978. This itself casts a doubt on the correctness of this certificate and clearly shows that Ext.PM is not a true copy of the register. The father of the girl has admitted that besides two daughters including the prosecutrix he also begot three sons from his wife. It is, therefore, not clear whether the entry in the register relates to the birth of a male or female child. No name is mentioned and it is obvious that it is not proved that Ext.PM relates to the prosecutrix alone. Next we come to the statement of the father. In examination in chief he states that at the time of occurrence the age of the prosecutrix was 15 ½ years. In cross examination however he stated that when his marriage took place he was 18 years old. His eldest 5 daughter Urmila was born two years after the marriage i.e. when he was 20 years old. One or two years after birth of Urmila the prosecutrix was born. Thus his age at the time of birth of the prosecutrix was 21-22 years. In his statement he has stated his age to be 45 years. It therefore is obvious that the prosecutrix was born about 22-23 years earlier. As such her age cannot be below 18 years. The Radiologist PW-6 Dr.H.K. Pant on the basis of the radiologist test has opined that the age of the prosecutrix was 16 to 17 years. In cross examination he stated that there is a margin of two years on either side. Therefore, even as per his statement the prosecutrix could be more than 18 years old. It is therefore obvious that the prosecution has filed to prove that the age of the prosecutrix was below 18 years. Hence, accused Kedar Nath and Rishi Pal cannot be said to have committed the offence of kidnapping. Coming to the issue of rape by Kedar Nath and Rishi Pal accused, it would be pertinent to mention that though the prosecutrix in her statement again reiterated that she was raped by these two accused but her statement is full of inconsistencies and lacks credibility. It is obvious that the prosecutrix is not telling the truth and therefore her 6 statement does not inspire confidence at all. In her statement she stated that around 1.00 p.m. she was taken away from her house after being blind folded and kicked by two accused. The distance between her house and the ‘khala’ was covered in half an hour. That means that she reached there between 1.30 to 2.00 p.m. However, according to her it had grown dark when she started back from the place of occurrence. Even as per the prosecution evidence after committing rape on the prosecutrix the two accused had returned to the village at 5 p.m. Thereafter, they took there meals at the place where the marriage function took place and returned with the marriage party to Ambala. This is clear from the testimony of PW-3 ASI Rajinder Kumar. This means they must have left the ‘khala’ latest by 4.30 p.m. The incident took place in the month of May when the sun sets around 7.30 p.m. No explanation has been given by the prosecutrix as to what she was doing from the time the two accused left her there at the ‘khala’ till it became dark. Another important factor which casts doubt on the testimony of the prosecutrix is that according to her she did not know the accused prior to the incident. She also 7 states that she has seen the two accused for the first time after the alleged offence was committed when she went to depose in the Court. There is no explanation as to how she then identified the accused. The identification of the accused itself therefore becomes doubtful. In the statement made to the police the prosecutrix had stated that after she left the place where she was raped by Kedar Nath and Rishi Pal she met the other three accused who raped her one by one. While appearing in the Court she states that she could not recognize any of the three boys who raped her on the second occasion. She categorically stated that she could not state that they were the three other accused present in the Court. Whereas in the original complaint it was stated that she met Babloo and asked for a lift on the bicycle and asked him to take her to her Mama’s house, in the court she only stated that she met another boy and asked him to give her lift. This boy left her in the house of some lady in some village. She could not even state the name of the lady or the name of the village where she spent the night. This version is totally different to the version given in Ext.PA. The prosecutrix was declared hostile by the prosecution and cross examined. Though in the complaint Ext.PA it 8 was stated that the accused Kedar Nath and Rishi Pal had gone to the house of her neighbour Roshan and consumed liquor there, she categorically stated that she never made such a statement to the police and the police may have written this on their own. She also denies that Roshan ever told her later on that accused had consumed liquor at his place and had disclosed their names to her. If Roshan also did not disclose the names to her how did she identify the accused. Whereas in the initial part of her statement she states that she was blindfolded and taken to a ‘khala’, in cross examination she states that she was not blind folded by the accused. The statement of the prosecutrix itself is full of contradictions. In the medical examination it has come that she is habitual to sexual intercourse. The accused are alleged to have kidnapped the prosecutrix from her house inside a village where there were a number of neighbours. Even the prosecutrix admits that there was a huge crowd in the village due to the marriage ceremony. In case she was not a consenting party she would have raised hue and cry. The prosecutrix in fact totally denies the facts stated in the FIR Ext.PA. She has made another false statement 9 that she asked the boy who met her on the bicycle to take her to her Mama’s house. Her father while appearing as PW-3 has stated that she has only one maternal uncle and he lives in Uttar Pradesh and nowhere near the place of incident. It is not understood why the prosecutrix would ask the boy to leave her at her Mama’s house which was not nearby and not at her father’s house. PW-5 Dr.Archana Gupta, has observed no marks or injuries on the person of the prosecutrix even though medico legal examination was conducted within 24 hours of the alleged rape. This also belies the story of the prosecutrix since according to her she was subjected to sexual intercourse on the bare surface of ‘khala’ covered with small stones. If that had been true she would have definitely received some bruises or abrasions on her back. Even PW-2 Roshan has not supported the prosecution version. According to him after the two accused had liquor with him they left for the house where the marriage was being solemnized. They returned after 10 minutes and went to a shop in front of his house and again returned to the place where the marriage party was lodged. According to him, the next day the police 10 came to his village and gave severe beating to him with a danda and thereafter the names of the two accused persons were disclosed to him by the bride-groom. This falsifies the version of the prosecutrix that she was told the names by Roshan. Despite this witness having not supported the prosecution version and having resiled from his earlier statement he was not declared hostile by the prosecution. For the foregoing reasons, we find that the prosecution has miserably failed to prove that the prosecutrix had been raped by the accused. We therefore find no reason to interfere with the well reasoned judgment of the trial court. The appeal is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ), J. March 16, 2010 ( Sanjay Karol ), J. PV