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Rahul vs State Of Haryana on 27 August, 2019

CRA-D-1261-DB of 2015 ( OM ) -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

(1) CRA-D-1261-DB of 2015 ( OM )

Rahul
…. Appellant
Versus
State of Haryana
….. Respondent

(2) CRA-D-1480-DB of 2015 ( OM )

Dharambir
…. Appellant
Versus
State of Haryana
….. Respondent

Reserved on : 16.08.2019
Date of decision : 27.08.2019

CORAM :- HON’BLE MR. JUSTICE RAJIV SHARMA
HON’BLE MR. JUSTICE HARINDER SINGH SIDHU

Present: Mr. A.P.S. Deol, Senior Advocate, with
Mr. Vishal R. Lamba, Advocate,
for the appellants.

Mr. Vivek Saini, DAG, Haryana.

***
RAJIV SHARMA, J.

1. Since common questions of law and facts are involved in both

these appeals, i.e. CRA-D-1261-DB of 2015 and CRA-D-1480-DB of 2015,

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therefore, these are taken up together and being disposed of by a common

judgment.

2. These appeals are instituted against judgment dated 29.07.2015

and order dated 30.07.2015, rendered by learned Additional Sessions Judge,

Gurgaon, whereby appellants Rahul and Dharambir, who were charged with

and tried for the offences punishable under Sections 376D, Section365 and Section506

IPC, were convicted and sentenced to undergo rigorous imprisonment for a

period of twenty years and to pay a fine of ` 10,000/- each for the offence

punishable under Section 376D IPC, and in default of payment of fine, to

undergo rigorous imprisonment for a period of two years. They were also

convicted and sentenced to undergo rigorous imprisonment for a period of

one year and to pay a fine of ` 500/- each for the offence punishable under

Section 365 IPC, and in default of payment of fine, to undergo rigorous

imprisonment for a period of one month. They were also convicted and

sentenced to undergo rigorous imprisonment for a period of one year and to

pay a fine of ` 500/- each for the offence punishable under Section 506 IPC,

and in default of payment of fine, to undergo rigorous imprisonment for a

period of one month. All the punishments were ordered to run concurrently.

3. The case of the prosecution, in a nutshell, is that the prosecutrix

(name withheld) addressed a complaint to Station House Officer, Police

Station Civil Lines, Gurgaon, stating therein that she was resident of

Hariahera, Police Station Bhondsi, District Gurgaon. She was married six

months back. She was going to her in-laws house at Jhajjar accompanied by

her husband on 24.11.2014. Dharambir son of Piyare Lal of her village had

seen her in the company of her husband. He used to stalk her prior to her

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marriage. He reached Bus Stand, Gurgaon, accompanied by another boy

Rahul son of Budhi. Her husband had gone to purchase fruits etc. at the gate

of Bus Stand. In the meanwhile, Dharambir and Rahul approached her.

Dharambir stated that he had asked her to marry him prior to her marriage.

He insisted her to accompany him, otherwise her husband Parveen would

come. He would keep her with dignity. In case, she did not obey his

dictates, he would kill her. He made her to sit on the motorcycle. Later on,

she was kept in some vacant room in a valley in Sohna. Dharambir and

Rahul raped her repeatedly. On the next day, she was taken to U.P. She was

taken to Haridwar on 29.11.2014. She was kept in a room for two days.

They continuously raped her. It is in these circumstances that the FIR was

registered. Lady Assistant Sub Inspector Saroj Bala prepared the rough site

plan upon the demarcation of the prosecutrix by reaching Bus Stand. She

also recorded the statement of the prosecutrix under Section 161 Cr.P.C.

The prosecutrix was got medico legally examined on 03.12.2014. Accused

were arrested. The investigation was completed and challan was put up after

completing all the codal formalities.

4. The prosecution examined as many as fourteen witnesses in

support of its case. The accused were also examined under Section 313

Cr.P.C. They denied the case of the prosecution. Appellant Dharambir

examined Dr. Mohit Lathar as DW.1.

5. The appellants were convicted and sentenced, as noticed here-

in-above. Hence, these appeals.

6. Learned counsel appearing on behalf of the appellants has

vehemently argued that the prosecution has failed to prove its case. Learned

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counsel appearing for the State has supported the judgment and order of the

learned Court below.

7. We have heard learned counsel for the parties and gone through

the judgment and record very carefully.

8. The prosecutrix appeared as PW.1. She deposed that her date of

birth was 12.03.1998. She had performed marriage with Parveen aged about

20 years on 20.06.2014. On 26.11.2014 at about 11.00 AM, she had

accompanied her husband to her matrimonial home at village Utani, District

Jhajjar. Accused Dharambir and Rahul had seen her in the company of her

husband. They followed her. They reached Bus Stand, Gurgaon. Both the

accused threatened her to accompany them, otherwise they would kill her.

The accused forcibly took her in a vacant room at the back of Sohna hill

area in the absence of her husband. Her husband had gone to take fruits. She

tried to raise alarm. She was beaten up and raped by the accused. On

29.11.2014, she was taken to U.P in a remote area during night. She did not

remember the name of the place. She was raped there. They stayed there for

two days. On the next day, she was taken to Haridwar. They confined her in

a room. They continued to rape her and threatened her. On 02.12.2014,

accused brought her at Bus Stand, Gurgaon. She went to Sohna and reached

her house. She narrated the entire incident to her parents. She moved

application Ex.PA. She was got medico legally examined on 03.12.2014.

Her statement was also recorded by the Illaqa Magistrate on 04.12.2014

vide Ex.PB. In her cross-examination, she deposed that the incident was of

26.11.2014, but by over-writing, it was reduced to 24.11.2014. She did not

know who had made cuttings on the date. She also got recorded before the

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Judicial Magistrate, the date of incident as 26.11.2014. She had disclosed to

the Illaqa Magistrate that her husband had gone to buy fruits. She was

confronted with her statement recorded by the Magistrate under Section 164

Cr.P.C., vide Ex.PB, wherein it was recorded that she was having pain in

her belly and her husband had gone to take medicines for her cure. She had

got recorded before the Magistrate that Dharambir and Rahul had

administered some intoxicant to her and she fell unconscious. She admitted

in her cross-examination that when she was got medico legally examined on

03.12.2014, she did not mention to the lady doctor regarding intoxication

given to her by the accused. She also admitted that the place from where she

was taken away was a populated area. She had not told her husband that she

was being followed by the accused. She did not raise hue and cry when they

approached her.

9. PW.2 Parveen is the husband of the prosecutrix. He deposed

that on 24.11.2014, he had gone to his in-laws house. He was bringing his

wife back to her matrimonial home from her parental house on 26.11.2014

at about 10.00 AM. They reached Bus Stand, Gurgaon, at about 11.00 AM.

He had gone to buy fruits outside Bus Stand. When he came back, he found

his wife missing. He could not find her. He also rang up his parents at

village Kutani. On 02.12.2014, prosecutrix reached at her parental home. In

his cross-examination, he deposed that his wife was aged about 16 years.

His marriage with the prosecutrix was performed on 20.06.2014. He knew

that it is an offence to marry with a minor girl.

10. PW.4 Constable Naresh Kumar got both the accused medico

legally examined.

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11. PW.6 Archana Singh submitted certificate Ex.PD. According to

it, date of birth of the prosecutrix was 12.03.1998. She also proved attested

photo copy of the admission and withdrawal register Ex.PE, attested photo

copy of admission form Ex.PF and attested photo copy of school leaving

certificate Ex.PG. In her cross-examination, she admitted that the

prosecutrix was not admitted in school during her tenure. She was got

admitted in 6th class on 04.04.2011. Shri Yad Ram Yadav was the Principal

of the school at that time. She had never worked with Shri Yad Ram Yadav,

Principal. He retired from the school and she joined the school on

16.01.2014.

12. PW.7 Dr. Najma medico legally examined the prosecutrix. She

proved MLR of the prosecutrix vide Ex.PH. She did not observe any

external mark of injury on any part of the body of the prosecutrix. She led

her evidence by filing affidavit Ex.PW.7/A. As per her affidavit, possibility

of sexual assault could not be ruled out.

13. PW.8 Amar Lal is the father of the prosecutrix. He deposed that

six months back, he had sent his daughter from village Hariahera to her in-

laws house with his son-in-law Parveen at about 11.00/12.00 noon. He

received telephonic message of Parveen from Gurgaon that the prosecutrix

was missing from Bus Stand, Gurgaon. He went to Bus Stand, Gurgaon.

Thereafter, they searched the prosecutrix, but she could not be found. They

proceeded to Police Post, Bus Stand, Gurgaon. They lodged missing report

vide Ex.PK. His daughter came back to his house after one week. She

disclosed that accused Dharambir and Rahul had taken her away from Bus

Stand, Gurgaon to Sohna. She was confined in a room. Thereafter, she was

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taken to Haridwar. The accused had committed rape with her.

14. PW.9 Girish Kumar prepared scaled site plan Ex.PL.

15. PW.13 Dr. Rakesh Chawla medico legally examined accused

Dharambir. He proved the MLR of Dharambir vide Ex.PO.

16. PW.14 Lady Assistant Sub Inspector Saroj Bala deposed that

the prosecutrix had moved application Ex.PA. She made endorsement

Ex.PQ on the application, on the basis of which FIR was registered.

Accused Dharambir made a disclosure statement Ex.PV. He got the place

demarcated from where the prosecutrix was kidnapped. He also got

recovered the motorcycle. Accused Rahul suffered disclosure statement

Ex.PZ. He also got demarcated the place from where the prosecutrix was

kidnapped. She also got recorded statement of the prosecutrix under Section

164 Cr.P.C. before the Area Magistrate. She admitted in her cross-

examination that the prosecutrix was shown as 19 years of age and a

married woman in the missing report. She also admitted that the prosecutrix

disclosed the date of incident as 24.11.2014 before learned JMIC, Gurgaon,

and also disclosed herself to be 19 years of age.

17. DW.1 Dr. Mohit Lathar proved the OPD slip of accused

Dharambir vide Ex.DA. According to him, the patient was diagnosed as

case of syncopal attacks.

18. The FSL report is Ex.PDD. According to this report, human

semen was detected on exhibit-1 (underwear of accused Dharambir),

exhibit-2 (underwear of accused Rahul) and exhibit-3 (underwear of the

prosecutrix). However, semen could not be detected on exhibit-4 (vaginal

swabs).

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19. In the complaint Ex.PA, the prosecutrix had stated that on

24.11.2014, she was going to her matrimonial home with her husband to

Jhajjar. Dharamvir and Rahul followed her on motorcycle. They reached

Bus Stand, Gurgaon. Her husband Parveen had gone at the gate of bus stand

for bringing eatables/fruits. In the meantime, both the accused had taken her

forcibly. In her statement recorded under Section 164 Cr.P.C., she deposed

that she was suffering from stomach ache. Her husband had gone to bring

medicine. In the meantime, accused threw something on her and she became

unconscious. In her statement while appearing as PW.1 before the trial

court, she deposed that the accused followed her. They threatened her to

accompany them. Her husband had gone to buy fruits. She tried to raise hue

and cry, but she was stunned and could not speak. According to the

prosecutrix, she was forcibly taken away from the Bus Stand, Gurgaon, on

26.11.2014. She was kept in a room in Sohna valley. Thereafter, she was

taken to U.P. on 29.11.2014. She was kept there in a remote area. She was

raped. There she stayed for two days. Thereafter, she was taken to Haridwar.

She was dropped at Gurgaon Bus Stand on 02.12.2014. In her cross-

examination, she admitted that the place from where she was taken away

was populated area. She had not raised alarm, when the accused followed

her. She did not raise hue and cry when the accused came close to her. It is

not believable that a young girl could be taken away forcibly by two persons

from a thickly populated area. According to her one version, she was given

some intoxicants by the accused and she became unconscious. However, in

her cross-examination, she categorically admitted that she had not disclosed

to the doctor when she was medico legally examined on 03.12.2014 that she

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was given some intoxicated material. She could raise alarm when she was

forcibly taken away from the populated area at Gurgaon; when she was

removed to U.P., and thereafter when she was taken to Haridwar and

thereafter brought back to Gurgaon. PW.2 Parveen, her husband, deposed

that he had gone to purchase fruits and not medicines.

20. In the missing report Ex.PK, the age of the prosecutrix has been

mentioned as 19 years on 20.06.2014. In the statement under Section 164

Cr.P.C. recorded by the Judicial Magistrate Ist Class on 04.12.2014, age of

the prosecutrix is mentioned as 19 years. PW.14 Lady Assistant Sub

Inspector Saroj Bala also deposed that the prosecutrix gave her age as 19

years, when she appeared before Judicial Magistrate Ist Class. The Principal

of the school who had issued the Transfer Certificate of the prosecutrix has

not been examined. The primary school certificate disclosing her date of

birth has not been proved. The certificate Ex.PD mentioning her date of

birth was issued by PW.6 Archana Singh. However, in cross-examination,

she admitted that the prosecutrix was not admitted in the school during her

tenure. She was admitted in 6th class on 04.04.2011, when Principal of the

school was Shri Yad Ram Yadav. The date of birth of the prosecutrix has

not been duly proved in accordance with law.

21. Their Lordships of the Supreme Court in SectionJabar Singh vs.

Dinesh and another, (2010) 3 Supreme Court Cases 757 have held that

since the entry was not in any public or official register and was not made

either by a public servant in the discharge of his official duty or by any

person in performance of a duty specially enjoined by the law of the

country, the entry was not relevant under Section 35 of the Evidence Act for

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the purpose of determination of age. Their Lordships have held as under:-

“27. We are of the considered opinion that the
High Court was not at all right in reversing the
findings of the trial court in exercise of its
revisional jurisdiction. The entry of date of birth
of Respondent 1 in the admission form, the school
records and transfer certificates did not satisfy
the conditions laid down in Section 35 of the
Evidence Act inasmuch as the entry was not in
any public or official register and was not made
either by a public servant in the discharge of his
official duty or by any person in performance of a
duty specially enjoined by the law of the country
and, therefore, the entry was not relevant under
Section 35 of the Evidence Act for the purpose of
determining the age of Respondent 1 at the time
of commission of the alleged offence.”

22. Their Lordships of the Supreme Court in SectionSatpal Singh vs. State

of Haryana (2010) 8 Supreme Court Cases 714 have held that the entry

made in the official record by an official or person authorised in

performance of an official duty is admissible under Section 35 of the

Evidence Act but the party may still ask the court/authority to examine its

probative value. Their Lordships have held as under:-

“28. Thus, the law on the issue can be
summerised that the entry made in the official
record by an official or person authorised in
performance of an official duty is admissible
under Section 35 of the Evidence Act but the party
may still ask the Court/Authority to examine its
probative value. The authenticity of the entry
would depend as to on whose

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instruction/information such entry stood recorded
and what was his source of information. Thus,
entry in school register/certificate requires to be
proved in accordance with law. Standard of proof
for the same remains as in any other civil and
criminal case.

29. In case, the issue is examined in the light of
the aforesaid settled legal proposition, there is
nothing on record to corroborate the date of birth
of the prosecutrix recorded in the school register.
It is not possible to ascertain as to who was the
person who had given her date of birth as
13.02.1975 at the time of initial admission in the
primary school. More so, it cannot be ascertained
as who was the person who had recorded her
date of birth in the primary school register. More
so, the entry in respect of the date of birth of the
prosecutrix in the primary school register has not
been produced and proved before the trial court.
Thus, in view of the above, it cannot be held with
certainty that the prosecutrix was a major. Be
that as it may, the issue of majority becomes
irrelevant if the prosecution successfully
establishes that it was not a consent case.”

23. Their Lordships of the Supreme Court in SectionMadan Mohan Singh

and others vs. Rajni Kant and another, (2010) 9 Supreme Court Cases

209 have held that best evidence qua age is of parents. Their Lordships

further held that the entries in school register/school leaving certificate are

required to be proved in accordance with law and the standard of proof

required in such cases remained the same as in any other civil or criminal

cases. If a person wants to rely on a particular date of birth and wants to

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press a document in service, he has to prove its authenticity in terms of

Section 32 (5) of Sections 50, Section51, Section59, Section60 and Section61 etc. of the SectionEvidence Act by

examining the person having special means of knowledge, authenticity of

date time, etc. mentioned therein. Their Lordships have held as under:-

“17. In State of Bihar Ors. Vs. Radha
Krishna Singh Ors. AIR 1983 SC 684, this
Court dealt with a similar contention and held as
under:-

“40…..Admissibility of a document is one
thing and its probative value quite another

– these two aspects cannot be combined. A
document may be admissible and yet may
not carry any conviction and weight of its
probative value may be nil.

***

53…….where a report is given by a
responsible officer, which is based on
evidence of witnesses and documents and
has “a statutory flavour in that it is given
not merely by an administrative officer but
under the authority of a Statute, its
probative value would indeed be very high
so as to be entitled to great weight.

***

145.(4) The probative value of documents
which, however ancient they may be, do not
disclose sources of their information or
have not achieved sufficient notoriety is
precious little.”

18. Therefore, a document may be admissible,
but as to whether the entry contained therein has
any probative value may still be required to be

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examined in the facts and circumstances of a
particular case. The aforesaid legal proposition
stands fortified by the judgments of this Court in
Ram Prasad Sharma Vs. State of Bihar AIR
1970 SC 326; Ram Murti Vs. State of Haryana
AIR 1970 SC 1029; Dayaram Ors. Vs.
Dawalatshah Anr. AIR 1971 SC 681; Harpal
Singh Anr. Vs. State of Himachal Pradesh
AIR 1981 SC 361; Ravinder Singh Gorkhi Vs.
State of U.P. (2006) 5 SCC 584; Babloo Pasi Vs.
State of Jharkhand Anr. (2008) 13 SCC 133;
Desh Raj Vs. Bodh Raj AIR 2008 SC 632; and
Ram Suresh Singh Vs. Prabhat Singh @Chhotu
Singh Anr. (2009) 6 SCC 681. In these cases,
it has been held that even if the entry was made in
an official record by the concerned official in the
discharge of his official duty, it may have weight
but still may require corroboration by the person
on whose information the entry has been made
and as to whether the entry so made has been
exhibited and proved. The standard of proof
required herein is the same as in other civil and
criminal cases.

xxx xxx xxx

20. So far as the entries made in the official
record by an official or person authorised in
performance of official duties are concerned, they
may be admissible under Section 35 of the
Evidence Act but the court has a right to examine
their probative value. The authenticity of the
entries would depend on whose information such
entries stood recorded and what was his source of
information. The entry in School Register/School

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Leaving Certificate require to be proved in
accordance with law and the standard of proof
required in such cases remained the same as in
any other civil or criminal cases.

xxx xxx xxx

22. If a person wants to rely on a particular
date of birth and wants to press a document in
service, he has to prove its authenticity in terms
of Section 32 (5) or Sections 50, Section51, Section59, Section60 Section61
etc. of the SectionEvidence Act by examining the person
having special means of knowledge, authenticity
of date, time etc. mentioned therein. (Vide:
Updesh Kumar Ors. Vs. Prithvi Singh Ors.,
(2001) 2 SCC 524; and State of Punjab Vs.
Mohinder Singh, AIR 2005 SC 1868).”

24. Their Lordships of the Supreme Court in SectionAlamelu and another

vs. State represented by Inspector of Police, (2011) 2 Supreme Court

Cases 385 have held that the date of birth mentioned in the transfer

certificate would have no evidentiary value unless the person, who made the

entry or who gave the date of birth is examined. The Headmaster has not

been examined at all. Their Lordships have held as under:-

“40. Undoubtedly, the transfer certificate, Ex.P16
indicates that the girl’s date of birth was
15.6.1977. Therefore, even according to the
aforesaid certificate, she would be above 16 years
of age (16 years 1 month and 16 days) on the date
of the alleged incident, i.e., 31-7-1993. The
transfer certificate has been issued by a
Government School and has been duly signed by
the Headmaster. Therefore, it would be
admissible in evidence under Section 35 of the

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SectionIndian Evidence Act, 1872. However, the
admissibility of such a document would be of not
much evidentiary value to prove the age of the
girl in the absence of the material on the basis of
which the age was recorded. The date of birth
mentioned in the transfer certificate would have
no evidentiary value unless the person, who made
the entry or who gave the date of birth is
examined.

xxx xxx xxx

44. In our opinion, the aforesaid burden of proof
has not been discharged by the prosecution. The
father says nothing about the transfer certificate
in his evidence. The Headmaster has not been
examined at all. Therefore, the entry in the
transfer certificate can not be relied upon to
definitely fix the age of the girl.

xxx xxx xxx

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.”

25. The prosecutrix had gone voluntarily with the appellants from

Gurgaon to Sohna, from Sohna to U.P., thereafter to Haridwar and back to

Gurgaon. She did not raise any alarm from 26.11.2014 till her coming back

to Gurgaon on 02.12.2014. There is confusion whether the prosecutrix had

gone with the appellants on 24.11.2014 or on 26.11.2014. There is variance

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in the statement of the prosecutrix recorded under Section 164 Cr.P.C.,

complaint Ex.PA as well as in her deposition as PW.1. In complaint Ex.PA,

the prosecution stated that her husband had gone to buy fruits. Thereafter,

she was forcibly taken by the appellants. In her statement recorded under

Section 164 Cr.P.C., she deposed that she had stomach ache and her

husband had gone to buy medicines. However, in her cross-examination

while appearing as PW.1, she admitted that she did not mention to the lady

doctor on 03.12.2014 that she was administered some intoxication by the

appellants. The date of birth has not been proved in accordance with law.

26. Accordingly, the prosecution has failed to prove its case against

the appellants beyond reasonable doubt. Both the appeals are allowed. The

judgment dated 29.07.2015 and order dated 30.07.2015 are set aside.

Appellants Rahul and Dharambir are acquitted of the charges framed against

them by giving them benefit of doubt. Both the appellants are in custody.

They be released forthwith, if not required in any other case. Their release

warrants be issued.

( RAJIV SHARMA )
JUDGE

August 27, 2019 ( HARINDER SINGH SIDHU )
ndj JUDGE

Whether speaking/reasoned Yes/No
Whether Reportable Yes/No

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