Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.64 of 2003. Dated of Decision: March 16, 2010. Des Raj. … Appellant. Versus State of H.P. ... Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the Appellant : Mr. Jagdish Vats, Advocate. For the Respondent : Mr.A.K.Bansal, Addl. Advocate General with Mr. J.S. Rana, Asstt. Advocate General. Surinder Singh, J. (oralJ: The appellant was acquitted by the learned trial Court, for the offence punishable under Section 376 of the Indian Penal Code, but convicted for the offences punishable under Sections 363 and 366 of the Indian Penal Code and sentenced him as under:- Sl.No. Offender Under Section Sentenced 1. Section 363 Simple imprisonment for seven years and fine of Rs.10,000/- and in default of payment of fine, he was further sentenced to undergo simple imprisonment for one year. 2. Section 366 IPC Simple Imprisonment for seven years and fine of Rs.10,000/- and in default of payment of fine, to further undergo simple imprisonment for one year. 2 Both the sentences were ordered to run concurrently and he was also given the benefit of Section 438 of the Code of Criminal Procedure. The appellant felt aggrieved by the aforesaid judgment of conviction and sentence, as such, filed the instant appeal, on the grounds that the learned trial court did not appreciate the evidence on record in the right perspective and further that the prosecutrix was more than 18 years of age. She had left the house of her parents voluntarily, therefore, circumstances on record did not warrant the conviction of the appellant. In short, the prosecution case, as emerges from the evidence can be stated thus. In the year, 2000, prosecutrix was a student of 9th standard, studying in Government High School Dofda. The appellant is also the resident of same village. He was in love with the prosecutrix and intended to marry her. On 17th May, 2000, he met her in village Uchi, while she was on her way to school. He expressed his intention to get married to her, in case she refused, he would kill her. She did not respond and went to school, but returned around 12 O’clock. Appellant again met her on the way. He is alleged to have snatched her dupatta and pretended that he would hang himself in case she did not marry him. The prosecutrix kicked of his proposal. On this, the appellant is stated to have snatched her bag, forced her to sit down and committed rape. Thereafter she left her house but she was again invited by the 3 appellant to the field. Then, he took her to the Nullah and committed rape and told her that he would marry her. When the prosecutrix was not found in the house on 19.5.2000, the father of the prosecutrix PW2 Chint Ram lodged the report with the police alleging that the appellant had enticed his daughter with an intention to marry her. On checking her school bag, he traced two love letters Exts.PW1/A and B written by the appellant to her. The appellant had kept the prosecutrix in Rama Guest House, Rampur, where she was again raped and then brought her to Basarna orchard and kept her there for two days, from where, she was recovered by the police on 25th May, 2000. At that time, her father was also accompanying the police. Prosecutrix was medically examined by PW11 Dr. Jatinder Kochhar. On her examination, he did not find any injury on the body of the prosecutrix. Hymen was found ruptured at 4 O’clock and 7 O’clock with carunculae hymenale. No edema or bleeding could be seen from edges of hymen. There was no evidence of fresh and forcible sexual intercourse. The wearing apparels were sent for the forensic examination. The police did not ask for her skeletal age, therefore, x-rays were not done. The doctor aforesaid issued Medico Legal Certificate Ex.PW11/A. The report of the 4 forensic examination Ex.PW10/A, revealed that the trouser of the prosecutrix was containing blood stains. Police collected the copies of entries of the register form ‘Rama Guest House’ and also the certificate with respect to the age of the prosecutrix. After completing the challan, it was presented in the court for the trial of the appellant. The appellant was charge-sheeted for the offences aforesaid. He pleaded not guilty and claimed trial. The prosecution examined its witnesses to prove the charges against him. He took up the stand that the prosecutrix was in love with him. She used to write letters at earlier occasions, to which he also responded. She was not minor and further that when he was in judicial lock-up, she met him and also wrote letters to him. He stated that he did not forcibly take away her, but she accompanied him with her own consent. The appellant examined DW-1 Tipu Devi, a school-mate and friend of the prosecutrix, when called upon to enter into his defence. Tipu Devi stated that the prosecutrix used to send letters to the appellant through her. She further stated that on 17th May, 2000, the prosecutrix of her own had gone with the appellant and also informed her not to disclose this to anybody. The learned trial Court did not believe the defence version, but convicted and sentenced the appellant, 5 while relying upon the prosecution version, stated by its witnesses. I have heard the learned counsel for the parties and have carefully gone through the evidence on record. At the very outset, I would like to say that the statement of the prosecutrix does not inspire confidence. When examined in the Court, she stated that she was less than 15 years of age on the day of alleged incident. To prove this fact, the prosecution examined PW3 Mohan Singh, Incharge of the Government High School Dofda to prove certificates Exts.PW3/A and B issued by him, wherein the date of birth of the prosecutrix was mentioned, 12th June, 1983, which comes around 16 years, but it is pertinent to note that there was no reliable document on record on the basis of which it was issued. Another witness is PW6 Rajinder Kumar, Panchayat Secretary. He had issued certificates Exts.PW6/A and B, but these certificates are of no use, because the date of birth mentioned in the certificates is based upon the entry in the Pariwar register and not the birth register. He categorically stated that the ‘birth and death register’, prior to the year 1988 was not available in the Panchayat. It is a common knowledge that the entries in the Pariwar register are generally made on estimation. He also did not say what was the basis for entering the date of birth in the said register, which was even not authenticated by any official of the Panchayat. Therefore, these certificates have no relevance. 6 Further, the skeletal age of the prosecutrix was not ascertained, the doctor stated that it was not asked by the police, for the best reasons known to them. In the Medico Legal Certificate Ex.PW11/A, she stated her age 18 years. There is also a mention that she had disclosed before her medical examination that she was in love with the appellant, a boy of her village and they decided to get married. They had solemnized there marriage in the temple. She also revealed that she had been staying with the appellant and she was not forced for any sexual contact. She had been doing it with her own consent. The above facts were also testified on oath by Dr. Jatinder Kochhar (PW11), which was not assailed by the prosecution, in any manner. The letters Exts.PW1/A and B produced by her father to the police, recovered from her school bag and also the letters Exts.D1 and D2 of the prosecutrix written to the appellant, speak volumes of the love affairs between them. She was confronted with her statement Ex.PW1/A wherein she also stated about her love affairs with the appellant and there was also no reference of snatching the bag and dupatta, as alleged by her, which makes her statement highly doubtful. Further she had admitted in so many words that she met appellant when he was in the judicial custody and writing the letters Exts.D1 and D2 to him. She also admitted that the case against the appellant was lodged 7 at the behest of her father. Therefore, in these circumstances, it cannot be said that the prosecutrix was any threatening to her or enticed away or raped by the appellant, as alleged. On the scrutiny of the aforesaid evidence, I find her more than the age of discretion and both of them were having love affairs. The prosecutrix was having a tacit consent, therefore, for the foregoing reasons, the judgment of conviction and sentence is unsustainable, hence, set-aside. The appeal is allowed. The appellant stands acquitted of the offences charged. He is on bail and is discharged of his bail bonds entered upon by him during the proceedings of the case. March 18, 2010. (Surinder Singh) (Pds) Judge.