Aneep Kumar vs State Ofhimachal Pradesh on 11 September, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. Appeal No. 99 of 2010
Reserved on: 04.09.2017
Decided on: 11.09.2017

.

_

Aneep Kumar …..Appellant.

Versus
State ofHimachal Pradesh ……Respondent.

_
Coram
The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.

approved for reporting? Yes.

1 Whether

_

For the appellant: Mr. Sunil Chauhan, Advocate.

For the respondent: Mr. Virender K. Verma, Addl. AG,
with Mr. Pushpinder Jaswal, Dy. AG

and Mr. Rajat Chauhan, Law Officer.

Chander Bhusan Barowalia, Judge.

The present appeal has been preferred by the

appellant/accused/convict (hereinafter referred to as “the accused”)

laying challenge to judgment, dated 21.04.2010, passed by learned

Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr,

Camp at Reckong Peo, H.P., in Sessions Trial No. 7 of 2007, whereby

he was convicted for the commission of the offence punishable under

Sections 363, 366A and 376 of Indian Penal Code, 1860 (hereinafter

referred to as “IPC”).

2. Succinctly, the facts giving rise to the present appeal, as

per the prosecution, are that on 01.09.2017 complainant, Shri Nek

1
Whether reporters of Local Papers may be allowed to see the judgment?

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Ram (father of the prosecutrix) alongwith his brother, Gulab Chand

and one Vijay Chand reported that he is resident of village Grange

and works as Chowkidar in Government Senior Secondary School,

.

Nichar. As per the complainant, his daughter, prosecutrix (name

withheld), aged 15 years, who was studying in 7th standard left the

school for about a month. On 28.08.2007, all the family members,

after taking dinner, slept and the prosecutrix also slept in her

separate room. On subsequent morning, the complainant found his

daughter missing and despite best efforts she could not be traced.

On 01.09.2007 the complainant came to know that friend of one

Madan Lal son of Ram Sukh, resident of Rohru area on 28.08.2007

took the prosecutrix with him after alluring her that he will marry

her. On the basis of the complaint, so made by the complainant,

police machinery was set into motion and during the course of

investigation the police found the prosecutrix in the house of the

accused at village Batwari (Rohru), thus the accused was arrested on

03.09.2007 and prosecutrix was handed over to the complainant.

The prosecutrix refused to get herself medically examined. The

accused was medically examined and subsequently the prosecutrix

also assented for her medical examination. As per her medical

examination, possibility of sexual intercourse was not ruled out by

the doctor. On the basis of ossification test, age of the prosecutrix

was opined between 15 to 15½ years. After thoroughly investigating

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the matter, the police found involvement of the accused for the

commission of the offence under Sections 363, 366A and 376 IPC,

thus challan was prepared and presented in the Court.

.

3. The prosecution, in order to prove its case, examined as

many as seventeen witnesses. Statement of the accused was

recorded under Section 313 Cr.P.C., wherein he denied the

prosecution case and claimed innocence, however, the accused did

not examine any defence witness.

4. The learned Trial Court, vide impugned judgment dated

21.04.2010, convicted the accused for the offence punishable under

Sections 363, 366A and 376 IPC and sentenced him under Section

363 IPC to undergo rigorous imprisonment of five years and fine of

`5,000/- and in default to undergo one year’s rigorous

imprisonment. The accused was also sentenced under Section 366A

to undergo rigorous imprisonment of five years and fine of `5,000/-

and in default to undergo one year’s rigorous imprisonment and

under Section 376 IPC he was sentenced to undergo seven years’

rigorous imprisonment and fine of `10,000/- and in default to

undergo one year’s rigorous imprisonment. All the sentences were

ordered to run concurrently and the fine amount, if realized, was

ordered to be paid to the prosecutrix, feeling aggrieved the

accused/convict has preferred the present appeal.

5. The learned counsel for the appellant has argued that

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the Court below, without appreciating the evidence correctly, has

convicted the accused. He has further argued that the learned Court

below has also failed to take into consideration the fact that as per

.

the prosecutrix her age was more than 17 years on the date of

occurrence and also that when she left for Rohru her cousin brother

was accompanying her. As per the prosecution story, the medical

examination of the prosecutrix nowhere reflects that she was

subjected to sexual assault, further that the medical was conducted

after a month, as initially the prosecutrix refused to undergo the

medical examination. Even as per the radiological examination the

bony age of the prosecutrix was 15½ years so there is possibility of

three years’ plus-minus. Thus, the age of the prosecutrix could very

well be 18½ at the time of the occurrence. He has argued that the

learned Trial Court ignored all the above vital aspects of the case and

wrongly convicted the accused, who is a young man and was only 23

years of age at the time of the incidence. He has argued that the

judgment may be set aside and the accused may be acquitted. He

has placed reliance on the following judicial pronouncements:

1. Jinish Lal Sha vs. State of Bihar, AiR
2003 Supreme Court 2081;

2. Alamelu and another vs. State, (2011)
2 SCC 385.

Conversely, Mr. Rajat Chauhan, Law Officer, has argued that it has

come on record that the age of the prosecutrix was 15½ years on the

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day of the occurrence, so the judgment passed by the learned Trial

Court is as per the law. Further argued that the record also reflects

that accused had enticed away the prosecutrix to accompany him to

.

Rohru from his native place. He has prayed that the findings of

conviction, as recorded by the learned Trial Court, need no

interference and the appeal of the appellant be dismissed. He has

relied upon judgment of Hon’ble Supreme Court rendered in

Mahadeo vs. State of Maharashtra and another, (2013) 14 SCC

637, to support his contentions.

6. In rebuttal, the learned counsel for the appellant has

argued that the accused is innocent and he has been falsely

implicated in the case and one reason is his poverty, the judgment of

conviction which suffers from major lacunae, may be set aside and

the accused may be acquitted.

7. In order to appreciate the rival contentions of the parties,

this Court has gone through the record carefully and in detail.

8. The complainant, Shri Nek Ram (PW-1), father of the

prosecutrix, while appearing in the witness-box deposed that he is

working as Chowkidar in Government Senior Secondary School

Nichar. He has two children, viz., elder child Pawan and younger is

the prosecutrix. As per this witness, the prosecutrix was 15 years of

age in August, 2007. On 28.08.2007 when he woke up in the

morning, he did not find the prosecutrix in the house and she went

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missing. He alongwith others searched the prosecutrix, but could

not found her and on 01.09.2007 he came to know that a boy of

Rohru, who was on visiting terms with nearby house of Madan Lal,

.

enticed away his daughter on the intervening night of 28.08.2007-

29.08.2007, so he reported the matter to the police and the police

found his daughter and handed over her custody to him. This

witness, in his cross-examination, has deposed that he did not

search his daughter between 28.08.2007 to 31.08.2007, as he was

expecting that she would return on her own. He has further deposed

that 2-3 days prior to 28.08.2007, when he took the local deity to his

house, he saw the accused there. The accused was working in

connection with the visit of the deity and during that time his

cousin, Madan, was also present in his house. He has further

deposed that he was informed by the children of Madan that accused

had enticed the prosecutrix, but it is not so recorded in the FIR, Ex.

PW-1/A. He denied the suggestion that he refused for medical

examination of the prosecution. However, volunteered that at that

time the prosecutrix was under menstrual cycle and on the third day

she was taken to MGMSC, Mhaneri for her medical examination and

on that day also she was under menstrual cycle. He feigned

ignorance whether in his presence the police seized the clothes of the

prosecutrix or not. He has further deposed that he had married his

son when he was 19 years of age and the prosecutrix is three years

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younger to his son. This witness did not clearly state the date of

birth of the prosecutrix and he deposed that at the time of the

incidence the prosecutrix was running in her fifteenth year. He

.

could not state the age of the prosecutrix when she was admitted in

the school. As per this witness, the prosecutrix left the school a year

prior to 28.08.2007 and he has also informed this fact to the police,

however, in FIR, Ex. PW-1/A, it is not so recorded. When inquired

from the prosecutrix, she divulged that she is not ready to reside at

Rohru and she did not complain against the accused. As per this

witness, his wife informed him that the prosecutrix was taken by

accused persons in a light vehicle, but he could not tell that the

accused was accompanied by whom. Later on, he deposed that son

of Madan was accompanying the accused on the day of occurrence.

9. PW-2, Shri Madan Lal, deposed that he has flock of

sheep and goats and his son had been taking the flock to Rohru

area. As per this witness, accused was friend of his son and he

visited his house about fifteen days prior to 28.08.2007, but he was

not there, as he had gone with his flock to higher hills. Later on, he

came to know that accused enticed away the prosecutrix. The

complainant (PW-1) is his first cousin. He also accompanied the

police while searching the prosecutrix. He denied that the

prosecutrix was recovered in his presence by the police. This

witness was declared hostile, as he has resiled from his previous

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statement and was subjected to exhaustive cross-examination. He,

in his cross-examination, deposed that the accused had been on

visiting terms to his house and he used to provide him food,

.

boarding and lodging, whenever he use to stay in his house. He

signed document, Ex. PW-2/A (recovery memo) at Nichar. He did

not state before the police that accused enticed away the prosecutrix.

He has further deposed that in his presence no one signed Ex. PW-

2/A.

10. PW-3, Shri Krishan Gopal, Secretary, Gram Panchayat

Nichar, deposed that birth certificate, Ex. PW-3/A, is correct, as per

the original record. As per this witness, the record shows that the

prosecutrix was born on 21.02.1992. This witness, in his cross-

examination, has deposed that initially the name of the prosecutrix

was recorded as ‘Guddi’ and he had incorporated her name (name

withheld) when he issued the birth certificate, Ex.PW-3/A. As per

this witness, on the asking of the police he traced the name of the

prosecutrix from column of parentage of the child born and also with

the help of pariwar register.

11. The prosecutrix was examined as PW-4 and she has

deposed that her date of birth is 21.02.1992. House of her uncle,

Shri Madan, is close to their house in village Grange. She has further

deposed that she is well acquainted with the son of Madan and

accused used to come to the house of Madan. On 28.04.2007, she

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was sleeping in the upper storey and during the night when she

came out to attend call of nature, she found the accused hiding near

to their house. The accused caught hold of her and asked not to

.

raise alarm otherwise he would kill her. The accused took her to the

nearby place where a vehicle was parked and he took her to his

house in Tehsil Rohru. As per the prosecutrix, she was recovered by

the police from the house of the accused after four-five days. The

accused also sexually assaulted her two-three times against her will.

The prosecutrix has further stated that initially, she refused for her

medical examination at CHC Nichar. The prosecutrix, in her cross-

examination, deposed that when her elder brother was married his

age was eighteen years and he was married two-three years back.

She further deposed that at that time, she was seventeen years of

age. She left the school a month prior to the incident and she met

the accused once before the incidence. As per the prosecutrix, they

have toilet in their house. She did not raise any hue and cry when

she was being taken by the accused, as she was threatened by the

accused. She has deposed that she informed the police that the

accused had threatened to kill her, however, in her statement

recorded under Section 161 Cr.P.C., it is not so recorded. She

refused for her medical examination, as she was afraid of it. Later

on, she agreed for her medical examination. She further deposed

that there were four-five persons in the vehicle, viz., accused, his

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brother and son of Madan, however, again, it is not so recorded in

her statement under Section 161 Cr.P.C. In Rohru, she did not

complain about the accused to anyone.

.

12. PW-5, Shri Milap Chand (uncle of the prosecutrix),

deposed that when the prosecutrix went missing, the complainant

(PW-1) reported the matter to police and he accompanied the police

to Rohru. In his presence, the prosecutrix was recovered from the

house of the accused and the police arrested the accused. The

accused made disclosure statement, Ex. PW-5/A, and he had also

signed the same. Demarcation report is Ex. PW-5/B. This witness,

in his cross-examination, deposed that he did not visit the house of

the accused and also not enquired from the prosecutrix on their

return journey. The prosecutrix did not complain to him against the

accused. This witness could not tell, even by guess, the date of birth

or the age of the prosecutrix and her brother. As per this witness,

the accused pointed out the location of the house of the complainant

(PW-1). Lastly, this witness unequivocally deposed that he could not

tell whether the prosecutrix accompanied the accused on her own.

13. PW-6, Shri Ravinder Kumar, was associated in the

investigation by the police. As per this witness, the accused

disclosed and identified the place from where he took the prosecutrix

and one Nehar Singh was also present at that time. In his presence,

disclosure statement of the accused, Ex. PW-6/A, was recorded,

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which bears his signatures encircled “A” and Nehar Singh also

signed the same. This witness was declared hostile and subjected to

exhaustive cross-examination. He deposed that disclosure

.

statement, Ex. PW-6/A, was made on 05.09.2007 and as per this

witness, it is correct that he stated the date to be 29.08.2007, as the

same was disclosed to him by the accused.

14. PW-7, HC Mohinder Singh, deposed that on 03.09.2007,

LHC Daulat Ram deposited with him five sealed samples with

specimen impression of the seal. On 08.09.2007, HC Anil Kumar

deposited three more sealed parcels with specimen impression of

seal. On 25.09.2007 LC Santosh Kumar deposited a sealed parcel

alongwith specimen impression of seal. On 17.09.2007, through RC

No. 186/2007, he handed over three sealed parcels to Constable

Ashwani Kumar, which were to be deposited in SFSL. Receipt qua

deposit of the same was handed over to him. On 24.09.2007, five

sealed parcels alongwith specimen impression of seal vide RC No.

193/2007 were handed over to Constable Ashwani Kumar and on

02.10.2007, a sealed parcel, vide RC No. 198/2007, was handed

over to Constable Kunga Palzor. Receipts after deposit of the same

were handed over to him. As per this witness, the case property

remained intact, under his custody.

15. PW-8, Constable Kunga Palzor, and PW-9, Constable

Ashwani Kumar, deposed qua the deposit of the samples in SFSL

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and stated that under their custody, the parcels remained intact. As

the role of these witnesses is limited qua deposit of the case property

in the SFSL, so, no more comprehensive discussion of their

.

testimonies is required.

16. PW-10, Dr. Bharti Azad, medically examined the

prosecutrix on application, Ex. PW-10/B, moved by the police. As

per this witness, the prosecutrix was unwilling for her medical

examination and she obtained the signatures of the prosecutrix to

this effect. This witness, in her cross-examination, has denied that

she thoroughly examined the prosecutrix and did not notice any

injury on her person. She deposed that she prepared medico legal

certificate, Ex. PW-10/C, stating that the prosecutrix is unwilling for

her medical examination. PW-11, Dr. Anupam Gupta, deposed that

on 24.09.2007 police moved application, Ex. PW-11/A, requesting

for medical examination of the prosecutrix with the alleged history of

sexual assault on 29.08.2007. As per this witness, he did not notice

any struggle marks on the person of the prosecutrix. Slide of vaginal

smear could not be done, as the prosecutrix, at the time of her

medical examination, was menstruating. He handed over sealed

sample of pubic hair, sealed letter to Chemical Examiner with seal

sample, i.e., having sample seal inside, X-ray forms of the

prosecutrix and original copy of medico legal certificate. This

witness, after receipt of the report from the Chemical Examiner, gave

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final opinion. PW-11 issued medico legal certificate, Ex. PW-11/C,

and gave final opinion is Ex. PW-11/D. This witness, in his cross-

examination, has denied that secondary sexual characters, as

.

observed by him, are suggestive of the fact that the prosecutrix was

18 years of age.

17. PW-12, Dr. Ashwani Kumar, deposed that the

prosecutrix was referred to him for determining her bony age. As per

this witness, under his supervision X-ray examination of the

prosecutrix was conducted. He has further deposed that acromion

of the prosecutrix was found fused and generally it fuses at the age

of 15-16 years. Distal tibia of the prosecutrix was found unfused

and generally it fuses at the age of 13¾-15½. He opined that as per

the skigrams the age of the prosecutrix was between 15-15½ years.

X-ray forms are Ex. PW-12/A and Ex.PW-12/B, which bears his

signatures encircled in portion ‘A’. This witness, in his cross-

examination, has deposed that the age of fusion of spiphysis is

hereditary, due to climatic conditions and diet. He admitted that

fusion of spiphysis may vary from person to person and depends

upon living. He further admitted that as per Modi the fusion of

acromion takes place at the age of seventeen years. He denied that

his opinion qua the age differs between 2-3 years.

18. PW-13, Head Constable Anil Katoch, deposed that on

03.09.2007 he accompanied SHO Ravinder Nath Sood for tracing the

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accused. They found the accused and the prosecutrix in the house

of the accused at Chirgaon in village Pekha. Shri Milap Chand

(uncle of the prosecutrix) identified the prosecutrix and she was

.

entrusted in the custody of said Milap Chand. He prepared spot

map, Ex.PW-13/A. On 08.09.2007 the accused identified the room

where he had kept the prosecutrix. A jean pant, a bed sheet, a

salwar and a shirt were given by the accused, which were taken into

possession, vide seizure memo, Ex. PW-13/B. He prepared the spot

map, Ex. PW-13/C, with regard to the recovery of the clothes. This

witness, in his cross-examination, has deposed that the house of the

accused was identified by one Madan. He did not associate any local

persons to identify the house of the accused, as no one assented. As

per this witness, there are approximately fifty houses in the village of

the accused, but the house of the accused is at a solitary place.

19. PW-14, Dr. Atal Sood, deposed that on 03.09.2007 on

application, Ex. PW-14/A, of the police, he medically examined the

accused and on examination he found no external injury on his

person. He issued medico legal certificate, Ex. PW-14/B, which

bears his signatures. As per this witness, there was nothing

suggestive that the accused is impotent. PW-15, ASI Chita Ram,

deposed that after completion of the investigation, he prepared the

final report. Report of SFSL is Ex. PW-15/A. PW-16, Shri Pramod

Kumar, deposed that he was associated by the police in the

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investigation and in his presence police took into possession a bed

sheet, jean pant, salwar and a shirt, which are Ex. P-1 to Ex. P-4,

vide seizure memo, Ex. PW-13/B, which bears his signatures,

.

encircled in portion ‘A’. This witness, in his cross-examination, has

deposed that police had come to Panchayat Bhawan, Gram

Panchayat, Deuri Maila, and he was also present there at that time.

In his presence no one had delivered anything to the police.

20. PW-17, S.I. Ravinder Nath (Investigating Officer),

deposed that on 01.09.2007 FIR, Ex. PW-1/A, was registered and he

started investigation. He prepared spot maps, Ex. PW-17/A and Ex.

PW-17/B. He, vide memorandum, Ex. PW-17/C, arrested the

accused. He also obtained date of birth certificate of the prosecutrix,

Ex. PW-3/A, by moving application, Ex. PW-17/D. The accused

divulged to him that he took the prosecutrix and he also got

identified his house vide memorandum, Ex. PW-5/B. The accused,

vide memorandum, Ex. PW-6/A, got identified the place wherefrom

he took the prosecutrix. The prosecutrix was medically examined

through application, Ex. PW-10/B. Likewise, by moving application,

Ex. PW-14/A, the accused was medically examined and his medico

legal certificate, Ex. PW-14/B was procured. He recorded the

statements of the witnesses under Section 161 Cr.P.C. Statements

of witnesses, Shri Madan and Shri Ravinder Kumar, are Ex. PW-

17/E and Ex. PW-17/F, respectively. This witness, in his cross-

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examination, has deposed that he did not obtain copy of pariwar

register. As per this witness, the prosecutrix did not disclose to him

that accused was accompanied with five more persons.

.

21. Complainant, Shri Nek Ram (PW-1) has categorically

stated that the age of his daughter was 15 years at the time of the

incidence, but he has admitted that he had married his son, who

was 19 years of age at the time of his marriage, a year before the

occurrence. He has further deposed that accused had come to their

house with the local deity. He has admitted that the prosecutrix had

gone to Rohru alongwith her cousin brother Nand Lal, who is son of

his maternal brother. It has also come on record that 5-6 persons

were sitting in the vehicle with the prosecutrix, who was

accompanied by her cousin brother, Shri Nand Lal, and they went to

Rohru. It has also come on record that though the prosecutrix had

left her home on 28.08.2007, but no report qua her missing was

made for three days, as the family of the prosecutrix was expecting

her return on her own. Thus, it can be safely held that the

prosecutrix had gone from her house on her own and not because of

the fact that she was enticed away by the accused. This fact is

further fortified by the statement of the prosecutrix (PW-4). The

prosecutrix, in her cross-examination, has stated that at the time of

marriage of her brother, she was 17 years of age and if it is taken

into consideration, then in any case, she was more than 16 years of age at

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the time of the occurrence.

22. This Court needs to delve into the statement of Dr.

Bharti Azad (PW-10), which is very vital, for ascertaining whether the

.

prosecutrix was subjected to sexual intercourse or not. This witness

has deposed that on 04.09.2007 the prosecutrix has refused to

undergo medical/physical examination, when she was brought for

medical examination. She has further deposed that such statement

of the prosecutrix was recorded in presence of Lady Constable,

Santosh Kumari, and Ward Sister, Vidya Devi. This demonstrates

that the prosecutrix was not sexually assaulted, as had it been so,

she would have definitely opted for her medical examination. At the

same point of time, PW-11, Dr. Anupam Gupta, on 24.09.2007

medically examined the prosecutrix, i.e., after a month of the

occurrence. Medico legal certificate, Ex.PW-11/C, issued by this

witness, reflects that vagina admitted one finger with difficulty and

hymen was torn with tear present on 3 O’clock and 9 O’clock

position. Thus, the statement of this witness also castes a serious

doubt with regard to veracity of the prosecution story that the

accused has committed sexual intercourse with the prosecutrix. On

the other hand, Shri Nand Lal, cousin brother of the prosecutrix,

who accompanied the prosecutrix upto Rohru, was not examined by

the prosecution and the reason for his non-examination goes

unexplained. There is nothing on record whether for such a long

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distance, viz., from the house of the prosecutrix to Rohru, they

stopped at any place. Likewise, there is nothing on record which

demonstrates that en route the prosecutrix raised any hue and cry,

.

especially when she was allegedly enticed away by the accused. As

far as the age of the prosecutrix is concerned, there is no conclusive

evidence to hold that she was less than 18 years of age and further

there is no evidence on record to demonstrate that the prosecutrix

was enticed away by the accused.

23. The date of birth certificate of the prosecutrix, Ex. PW-

3/A, has been issued by Shri Krishan Gopal (PW-3), Secretary, Gram

Panchayat, Nichar, and as per his statement he prepared the said

certificate on the basis of pariwar register, which is not as per the

procedure. The learned Court below has failed to take into

consideration the fact that date of birth certificate, so produced by

the prosecution is inadmissible. Further PW-3, has unequivocally

deposed that name of the prosecutrix was earlier recorded as Guddi.

Thus, the date of birth certificate, Ex. PW-3/A, which is engulfed

with suspicions, cannot be made a ground for convicting the

accused.

24. The learned counsel for the appellant has placed reliance

on a judgment of Hon’ble Supreme Court rendered in Jnish Lal Sha

vs. State of Bihar, AIR 2003 Supreme Court 2081, wherein the

Hon’ble Supreme Court observed that physique of girl, as explained

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by the doctor, indicated probability of girl being above 18 years of

age. Evidence of the girl in such a backdrop appeared wholly

unreliable, when she deposed that she was only 14 years of age. The

.

Hon’ble Supreme Court held that charge under Section 366-A has

failed against the accused on the premise that the prosecution has

not been able to establish that the girl was less than 18 years of age

on the date of occurrence. Apt para of the judgment (supra) is

extracted hereunder for ready reference:

“5. PW-10 the doctor in his
evidence has stated that PW-1’s
X-ray photograph showed
partial epiphy seal fusion of
r iliac crest. In her opinion, PW-1
appeared to be 17 years old

which opinion of the Dr. is from
the very language used by her
shows it to be approximate.

The physique of PW-1 as
explained by PW-10 also

indicates the probability of PW-

1 being above the age of 18
years. In this background if we
examine the evidence of PWs. 6

and 10 it is clear that evidence
of PW-1 is wholly unreliable
when she states that she was

only about 14 years old. Even
though PW-10 Dr. stated that
PW-1 appeared to be 17 years
old cannot be held that this

evidence is conclusive enough
to come to the conclusion that
PW-1 was really below 18 years
on the date of incidence, in
view of positive statements
made by PW-6 the father. We
have already referred to the
evidence of the father,
according to whose evidence
PW-1 was 19 years of age when
she left the house of the father.

In such situation, we think it
not safe to come to the
conclusion that PW-1 was less

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than 18 years of age on the
date when she left the house of
her father. While discussing
this part of the prosecution
case, the Trial Court in its
judgment has not considered
the evidence of PW-6 the father

.

at all. It merely relied upon

evidence of PW-10 accepting the
same on its face value, without
discussing the other material
that was available on record.

Even the High Court in this
regard in its judgment merely
stated Dr. who examined the
prosecutrix found her age to be
17 years. . . . . . .” the High
Court has not independently

given any findings either
accepting this evidence or not.

It has also not discussed the
evidence of PW-6 in regard to
the age of PW-1. In this

background for the reasons
already stated hereinabove we

think that the prosecution has
failed to establish that PW-1
was less than 18 years of age
as on the date of incidence. If
that be so, charge under S. 366-

A of which the appellant was
found guilty by both the Courts
below shall fail. The learned
counsel for the State, however,

contended that if the charge
under S. 366-A should fail then,
the appellant is liable to be

convicted under S. 366 for
kidnapping, abducting or
inducing a woman to compel
her to marry. He has referred to

the evidence of PW-1 in this
regard and contends that even
though there is no specific
charge under S. 366 still on the
material available on record a
conviction under S. 366 could
be based and no prejudice
would be caused to the
appellant. But then, we will
have to notice that even to
establish the charge under S.

366, I.P.C., there should be
acceptable evidence to show
that either PW-1 was compelled

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21

to marry the appellant against
her will and/or was forced to or
induced to intercourse against
her will. This would therefore,
require the prosecution to prove
that there was some such
undue force on the PW-1 wither

.

to marry the appellant or to

have intercourse with him.

Therefore, it becomes necessary
for us to examine the
prosecution case whether there

was a threat or whether there
was consent as contended by
the defence. While we consider
this question of existence of
consent or absence of it we may
also consider the charge under

Section 376, I.P.C. of which the
appellant is found guilty by the
Courts below because one of the
ingredients necessary for
establishing such a charge in
r regard to a girl over the age of
16 is the presence or otherwise

of consent. Therefore, both for
the purpose of Section 366 and
for the purpose of S. 376, I.P.C.,
there should be material to
establish that either the alleged

marriage or the intercourse has
taken place without the consent
of PW-1 if she is above the age
of 18 years or 16 years as the

case may be.”

The judgment (supra) on all fours is applicable to the facts of the

present case.

25. The learned counsel for the appellant has also placed

reliance on another pronouncement of Hon’ble Supreme Court in

Alamelu and another vs. State, (2011) 2 SCC 385. Apposite

paras of the judgment (supra) are extracted hereunder for ready

reference:

“45. In fixing the age of the girl as
below 18 years, the High Court

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22

relied solely on the certificate
issued by PW8 Dr.
Gunasekaran. However, the
High Court failed to notice that
in his evidence before the Court,
PW8, the X-ray Expert had
clearly stated in the cross-

.

examination that on the basis

of the medical evidence,
generally, the age of an
individual could be fixed
approximately. He had also

stated that it is likely that the
age may vary from individual to
individual. The doctor had also
stated that in view of the
possible variations in age, the
certificate mentioned the

possible age between one
specific age to another specific
age. On the basis of the above,
it would not be possible to give
a firm opinion that the girl was
r definitely below 18 years of
age.

46. In addition, the High Court
failed to consider the expert
evidence given by PW13 Dr.
Manimegalaikumar, who had

medically examined the victim.
In his cross-examination, he
had clearly stated that a
medical examination would

only point out the age
approximately with a variation
of two years. He had stated

that in this case, the age of the
girl could be from 17 to 19
years. This margin of error in
age has been judicially

recognized by this Court in the
case of Jaya Mala Vs. Home
Secretary, Government of
Jammu Kashmir Ors.,
1982 2 SCC 538, In the
aforesaid judgment, it is
observed as follows:-

“9. ……However, it is notorious
and one can take judicial
notice that the margin of error
in age ascertained by
radiological examination is two
years on either side.”

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23

47. We are of the opinion, in
the facts of this case, the age of
the girl could not have been
fixed on the basis of the
transfer certificate. There was
no reliable evidence to

.

vouchsafe the correctness of the

date of birth as recorded in the
transfer certificate. The expert
evidence does not rule out the
possibility of the girl being a

major. In our opinion, the
prosecution has failed to prove
that the girl was a minor, at
the relevant date.

48. We may further notice

that even with reference to
Section 35 of the Indian
Evidence Act, a public
document has to be tested by
applying the same standard in
r civil as well as criminal
proceedings. In this context, it

would be appropriate to notice
the observations made by this
Court in the case of Ravinder
Singh Gorkhi Vs. State of U.P.,
2006 5 SCC 584 held as

follows:-

“38. The age of a person as recorded
in the school register or

otherwise may be used for
various purposes, namely, for
obtaining admission; for

obtaining an appointment; for
contesting election; registration
of marriage; obtaining a
separate unit under the ceiling

laws; and even for the purpose
of litigating before a civil forum
e.g. necessity of being
represented in a court of law by
a guardian or where a suit is
filed on the ground that the
plaintiff being a minor he was
not appropriately represented
therein or any transaction
made on his behalf was void as
he was a minor. A court of law
for the purpose of determining
the age of a party to the lis,
having regard to the provisions

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24

of Section 35 of the Evidence
Act will have to apply the same
standard. No different standard
can be applied in case of an
accused as in a case of
abduction or rape, or similar
offence where the victim or the

.

prosecutrix although might

have consented with the
accused, if on the basis of the
entries made in the register
maintained by the school, a

judgment of conviction is
recorded, the accused would be
deprived of his constitutional
right under Article 21 of the
Constitution, as in that case
the accused may unjustly be

convicted.”

(emphasis supplied)

49. In such circumstances,
we are constrained to hold that
r the High Court without
examining the factual and legal

issues has unnecessarily
rushed to the conclusion that
the girl was a minor at the time
of the alleged abduction. There
is no satisfactory evidence to

indicate that she was a minor.”

Again, the judgment (supra), as relied upon by the learned counsel

for the appellant, is fully applicable to the facts of the present case

and the benefit of the same can safely be extended to the appellant.

26. On the other hand, the Law Officer has placed reliance

on a judgment of Hon’ble Supreme Court rendered in Mahadeo vs.

State of Maharashtra and another, (2013) 14 SCC 637, wherein it

has been held as under:

“13. In the light of our above
reasoning, in the case on hand,
there were certificates issued
by the school in which the
prosecutrix did her Vth
standard and in the school

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25

leaving certificate issued by the
said school under Exhibit 54,
the date of birth of the
prosecutrix has been clearly
noted as 20-5-1990, and this
document was also proved by
PW 11. Apart from that the

.

transfer certificate as well as

the admission form maintained
by the Primacy School, Latur,
where the prosecutrix had her
initial education, also

confirmed the date of birth as
20-5-1990. The reliance placed
upon the said evidence by the
courts below to arrive at the
age of the prosecutrix to hold
that the prosecutrix was below

18 years of age at the time of
the occurrence was perfectly
justified and we do not find any
good grounds to interfere with
the same.”

However, the judgment (supra) is not applicable to the facts of the

present case, as in the case in hand the only available proof qua the

date of birth of the prosecutrix is Ex. PW-3/A, but even as per PW-3,

Shri Krishan Gopal, Panchayat Secretary, Gram Panchayat, Nichar,

the certificate had not been prepared as per the law and more over

there is nothing on record which unambiguously establishes that the

same relates to the prosecutrix. On the other hand, the prosecutrix

herself, in her cross-examination, has deposed, while appearing in

the Court as PW-4, that she was more than 16 years of age at the

time of the alleged incidence. Further, the ossification test shows

that the age of the prosecutrix was 15½ years at the time of the

incidence, so applying the principle of plus three it can safely be

taken as 18 years, especially when Modi’s Medical Jurisprudence

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26

and Toxicology says that plus three can be given in normal

circumstances, considering extreme climatic conditions, viz., place of

living and other circumstances. In the case in hand, the prosecutrix

.

has grown up in extreme climatic conditions and the available record

shows that she was more than 15½ years of age at the time of the

incidence, thus applying the well accepted method of Modi’s Medical

Jurisprudence and Toxicology her age can be more than 18 years.

Thus, the prosecution has failed to establish that at the time of the

incidence the prosecutrix was below 18 years of age. Even otherwise

also, the prosecution has failed to prove that the prosecutrix was

enticed away by the accused, as the best witness to this effect would

have been the cousin brother of the prosecutrix, who as per the story

of the prosecution, accompanied the prosecutrix to Rohru, but for

the reasons best known to the prosecution, he was not examined.

27. PW-2, Shri Madan Lal, who is one of the material

witness, has not supported the prosecution story and nothing

favourable to the prosecution has come despite his exhaustive cross-

examination. This, coupled with the fact that the prosecutrix while

appearing as PW-4, has deposed that she has gone outside during

the night to answer the call of nature and the accused took her

away, but it has come on record that there is a toilet in the house of

the prosecutrix. Thus, it can be safely held that statements of

prosecutrix (PW-4) and her father (PW-1) are full of suspicions, as

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27

they later on made major improvements in their statements, when

they were examined in the Court and on such shabby and slippery

evidence the accused cannot be held guilty. Likewise, PW-5, Shri

.

Milap Chand, did not at all support the prosecution story, as he, in

his cross-examination, has stated that he could not tell whether the

prosecutrix accompanied the accused on her own or not. In fact, as

per the prosecution story, he is the person who has brought the

prosecutrix from Rohru.

28. In ratiocination, it is more than safe to hold that the

prosecution has failed to prove the guilt of the accused and the

findings of conviction against the accused/convict, as recorded by

the learned Trial Court, are wrong and needs interference, as the

same are without appreciating the evidence correctly and to its true

perspective. Accordingly, the appeal is allowed and the judgment of

conviction, passed by the learned Trial Court, is set aside.

Resultantly, the accused is acquitted for the commission of the

offence, as alleged by the prosecution.

29. In view of the above, the appeal, so also pending

application(s), if any, stand(s) disposed of.

(Chander Bhusan Barowalia)
Judge
11th September, 2017
(virender)

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