IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 403 of 1998 Date of decision: 17.5.2010 State of H.P. Appellant. Versus Balbir Singh and others Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the appellant: Mr. Rajesh Mandhotra, Dy Advocate General. For the respondent No.1: Mr. Chandernarayana Singh, Advocate. For the respondent No.2: Mr. Vinay Thakur, Advocate. For the respondent No.3: Mr. S.S.Rathore, Advocate. Per Deepak Gupta, J, (oral) 1. This appeal by the State is directed against the judgement dated 14.07.1998 delivered by the learned Additional Sessions Judge, Shimla, in Sessions Trial No. 34-S/7 of 1993 whereby he acquitted the accused of having committed offences punishable under Sections 363 and 366-A and 376 of the Indian Penal Code. 2. On 18.1.1993, PW-24 Man Dass, father of the prosecutrix, lodged a complaint with the Police Station, Chopal. In this complaint it was alleged that on 14.1.1993 at about 2.00 p.m when his daughter was near Rana Kiar, the accused Balbir Singh S/o Durga 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 Singh, Kanta Devi D/o Liaq Ram and Yashpal owner of Shivalik Hotel, Rohru, kidnapped his 14 years old daughter and put her in a taxi bearing No. HP-02-0784 and took her towards Paonta Sahib. On the basis of this complaint Ext.PW-20/A, F.I.R. Ext.PW-20/B was recorded. Thereafter, investigation was carried out. The prosecutrix returned to Nerwa on 21st January, 1993. Her statement and the statements of other witnesses were recorded. The prosecutrix was also got medically examined. After completion of evidence report under Section 173 Cr.P.C. was filed with the concerned Magistrate. Since the offences were exclusively triable by the Court of Sessions the case was committed to the Sessions Court. After trial, the accused has been acquitted. Hence the present appeal by the State. 3. At the out-set, we may note that there is four days delay in lodging the complaint Ext.PW-20/A. The incident took place on 14th January, 1993 and this complaint was made on 18th January. There is no reasonable explanation for this delay. If the father had come to know about the abduction of his daughter there was no reason why he would not have lodged the report immediately. It would also be pertinent to mention that in this complaint though it is mentioned 3 that father can produce eye witnesses but the names of such witnesses have not been given. Delay by itself may not be fatal to the prosecution but because there is inordinate delay we must scrutinize the evidence of the prosecution with great care and caution. 4. The prosecutrix appeared as PW-21. According to her she had been sent by her mother to Rana Kiar to purchase some house hold articles. She was accompanied by her friend Subhadra. Since her friend Subhadra was not feeling well they went to the hospital at Nerwa where Subhadra got some medical treatment. Thereafter, they were returning to the market. On the way she met her cousin Neelam. All of them stayed in Nerwa Bazar and took tea. Then they started their return journey. When they were near She-Kiar a white Maruti van came from Nerwa side. This van was going towards Rana Kiar. The accused were in the van. Yashpal was driving the van. Balbir and Kanta Devi accused came out of the van, caught hold of the prosecutrix and forced her to sit in the van. Though the prosecutrix cried for help, none came to help her. She was also threatened by the accused that in case she raised an alarm she would be killed. 5. According to the prosecutrix, the van first stopped at village Rohnat where accused Balbir brought 4 some biscuits and tea for the prosecutrix. Thereafter it became dark. Accused Balbir and Kanta went out side the vehicle while accused Yashpal raped the prosecutrix. Thereafter, Balbir and Kanta again sat in the van. Then the accused took her in the van to Vikas Nagar. At Vikas Nagar they stayed at Yanterik Hotel. In room no. 102 of the said hotel the accused persons drank liquor and forced the prosecutrix to also drink liquor. Thereafter, again Yashpal slept with the prosecutrix and raped her. Kanta and Balbir slept in the adjoining room. Yashpal raped the prosecutrix in the morning also. 6. On the next day the accused persons took the prosecutrix to Chandigarh where they stayed in Sector 37. Balbir, Kanta and the prosecutrix stayed in one room whereas Yashpal went to sleep in the house of his relative. That night accused Balbir raped the prosecutrix. The next day the prosecutrix and the accused move to Himachal Bhawan Chandigarh. Again Balbir, Kanta and the prosecutrix stayed in one room and Balbir again committed rape on her in the room of Himachal Bhawan. 7. On the 4th day in the morning accused Yashpal visited Himachal Bhawan and he took the prosecutrix to Sector 40 where he purchased one suit and one 5 cardigan for the prosecutrix. Thereafter Yashpal took the prosecutrix and the other accused to I.S.B.T at Chandigarh where Balbir, Kanta and the prosecutrix boarded a bus for Yamunanagar whereas Yashpal boarded a bus for Shimla. Next day, accused Balbir left for Chopal while the prosecutrix remained with Kanta at Yamunagar in the house of one Krishan Lal. On 20.1.1993 accused Kanta took the prosecutrix to Paonta Sahib and handed over Rs.50/- to the prosecutrix and left her alone. One Raju s/o Krishan Lal in whose house the prosecutrix stayed with Kanta also accompanied them to Paonta Sahib. Thereafter, they boarded a bus for Nahan which was fully packed. In the meantime, PW-11 who was driving a bus met the accused Kanta and asked her about the whereabouts of the prosecutrix who told that the prosecutrix had boarded another bus which had left for Sarkaghat. Thereafter, PW-11 chased the earlier bus and deboarded the prosecutrix from the said bus and took her to Nerwa. 8. Neelam, who is the cousin of the prosecutrix, was given up by the prosecution and not examined. She in fact has been examined as a defence witness (DW-4) and has not supported the prosecution case. According to her when the van stopped the prosecutrix voluntarily went alongwith the accused in the van. She in fact told 6 her cousin Neelam that she is going to Chandigarh with the accused. The other witness, as per the prosecution, was PW-22 Subhadra. She also has not supported the prosecution. No doubt, she says that Balbir and Kanta came out of the Maruti van and took the prosecutrix with them but she does not state that the prosecutrix was forcibly made to board the van. The other witness relied upon by the prosecution is PW-3 Chet Ram. As noted above, his name does not find mentioned in the complaint. Be that as it may, this witness also does not support the prosecution because he also does not state that the prosecutrix was forcibly taken into the van. He admits that no hue and cry was raised by the prosecutrix when she was taken inside the van. 9. From the aforesaid statement of the prosecutrix and the other witnesses, it is apparent that the prosecutrix herself joined the company of the accused. Her version that she was raped by the two accused cannot be believed. The van was first stopped at village Rohnat where she could have raised an alarm. Thereafter, she stayed for one night in a hotel at Vikas Nagar. Admittedly, she stayed in a separate room alongwith accused Yashpal. She says that Yashpal went to sleep with her. If that be true what prevented her from raising an alarm at least at that stage. Thereafter, 7 she went to Chandigarh where she stayed in Sector 37 for one night. Lastly, she stayed for one night in Himachal Bhawan, which is a State run guest house and there would have been no difficulty for her to raise an alarm at least here. She then went with the accused Yashpal and purchased some clothes for herself in the market. Thereafter, she stayed one night at Yamunanagar in the house of Krishan Kumar. It cannot be believed that during this entire period she did not have an opportunity to raise an alarm or complaint about the accused. Her story is full of holes and contradictions and cannot be believed. 10. Therefore, we now come to the important question as to what is the age of the prosecutrix. PW-1 Dr. Usha Sharma conducted the radiological examination of the prosecutrix and according to her report Ext.PW-1/B the age of the prosecutrix was between 15 to 16½ years. It is well settled law that there can be a difference of two years on either side and she admitted that the prosecutrix could be as old as eighteen and half years old. PW-4 Vijay Kumar is the Principal of the Middle School, Kedi, where the prosecutrix studied from 1990 onwards. According to him, the age of the prosecutrix as entered in the school record is 23.10.1977, which would make the prosecutrix 8 about 15 years 2 months and 10 days old at the time of the incident and if this age is proved then the accused could be guilty of having committed the offence, even if the prosecutrix was a consenting party. However, we cannot rely upon this age certificate because this witness in examination-in-chief itself has stated that the age of the prosecutrix was entered on the basis of an earlier certificate which certificate has neither been produced nor proved on record. PW-5, Inder Singh is a teacher in the Govt. Primary School, Kedi where the prosecutrix studied. According to him the date of birth of the prosecutrix in the register Ext.PW-5/G is 23.10.1977. He in cross-examination admitted that there is cutting with regard to the year. It is important to note that the learned trial Court on visual examination of the register came to the conclusion that the date of birth had been changed from 23.10.1976 to 23.10.1977. If the date is 23.10.1976 then the prosecutrix was more than 16 years old. PW-6 Liaq Ram has produced the Pariwar Register. The Pariwar Register is not primary evidence to prove the date of birth. Further this witness has admitted that there are a number of over writings in this register and he does not know who made the entry with regard to the date of birth of the prosecutrix. Therefore, no reliance can 9 be placed on it. The prosecution has thus miserably failed to prove that the prosecutrix was less than 16 years or 18 years of age. 11. Since we have held that the prosecutrix had willingly accompanied the accused and was a consenting party to the sexual act, we find no merit in the appeal, which is accordingly dismissed. The bail bonds furnished by the accused are discharged. ( Deepak Gupta ) Judge 17th May, 2010. ( Rajiv Sharma) ™ Judge.