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 Court14/09/2017 12:35:57 :::HCHP
22relied 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 alsostated 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 thepossible 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 hadmedically examined the victim.
In his cross-examination, he
had clearly stated that a
medical examination wouldonly point out the age
approximately with a variation
of two years. He had statedthat in this case, the age of the
girl could be from 17 to 19
years. This margin of error in
age has been judiciallyrecognized 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.”
14/09/2017 12:35:57 :::HCHP
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 amajor. 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, itwould 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 asfollows:-
“38. The age of a person as recorded
in the school register orotherwise may be used for
various purposes, namely, for
obtaining admission; forobtaining an appointment; for
contesting election; registration
of marriage; obtaining a
separate unit under the ceilinglaws; 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 provisions14/09/2017 12:35:57 :::HCHP
24of 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, ajudgment 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 beconvicted.”
(emphasis supplied)
49. In such circumstances,
we are constrained to hold that
r the High Court without
examining the factual and legalissues has unnecessarily
rushed to the conclusion that
the girl was a minor at the time
of the alleged abduction. There
is no satisfactory evidence toindicate 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 school14/09/2017 12:35:57 :::HCHP
25leaving 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, alsoconfirmed 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 below18 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
14/09/2017 12:35:57 :::HCHP
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
14/09/2017 12:35:57 :::HCHP
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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