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Ravinder Sharma @ Ravi vs State Of Himachal Pradesh on 2 April, 2019

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 532 of 2016
Cr. Appeal No. 516 of 2016.
Reserved on: March 28, 2019.
Decided on: 2nd April, 2019.

.

1. Cr. Appeal No. 532 of 2016.

Ravinder Sharma @ Ravi ……Appellant.
Versus

State of Himachal Pradesh ……Respondent.
1. Cr. Appeal No. 516 of 2016.

Birbal ……Appellant.
Versus

State of Himachal Pradesh ……Respondent.

Coram
The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge.

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

Whether approved for reporting?1 Yes.
For the appellant(s) : Mr. Saurav Rattan, Advocate for
appellant in Cr. Appeal No. 532 of
2016.

Mr. Prashant Sharma Mr. Ajit
Sharma, Advocates for
appellant in Cr. Appeal No. 516 of
2016.

For the respondent : Mr. Narinder Guleria, Addl. AG.

Dharam Chand Chaudhary, J.

Appellants Ravinder Sharma @ Ravi and Birbal herein

are convicts. Learned Special Judge, Kullu, District Kullu has

convicted both of them for the commission of offence punishable

under Sections 363, 366-A, 376-D, 342, 506 of Indian Penal Code

and Section 6 of the Protection of Children from Sexual Offences Act,

2012 (hereinafter referred to as “POCSO Act” in short) and sentenced

them to undergo rigorous imprisonment for a period of 20 years each

for the commission of the offence punishable under Section 376-D of

1
Whether the reporters of the local papers may be allowed to see the Judgment? yes.

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Indian Penal Code, a graver offence and there being the provisions of

the sentence of greater degree as compared to the offence punishable

under Sections 363, 366-A, 342 and 506 of the Code and also under

.

Section 6 of the POCSO Act.

2. They are aggrieved by their conviction and sentence,

hence approached this Court for quashing and setting aside the

same on the grounds inter alia that undue weightage has been given

to the evidence not worthy of credence produced by the prosecution

as compared to most trustworthy and dependable evidence produced

by them in their defence. Learned trial Court is, therefore, stated to

have not appreciated the evidence available on record in its right

perspective. Their conviction in such circumstances is stated to be

unwarranted and unsustainable. The arguments addressed by

learned defence counsel have also not been appreciated and as such

the impugned judgment does not stand for the test of judicial

scrutiny. The impugned judgment rather is stated to be based upon

surmises and conjectures. The contradictions in the statements

made by witnesses examined by the prosecution have been ignored

and not taken into consideration. The prosecution story is stated to

be absolutely false and concocted one.

3. Now, if coming to the factual matrix, FIR Ext. PW-1/A

came to be recorded on the statement made by the prosecutrix (name

withheld) before the police of Police Station Banjar, District Kullu on

10.10.2013. She visited the police station accompanied by her

parents. According to her, in the year 2013, she was studying in

10th class in Government School at Chanoun, Tehsil Banjar. On

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9.10.2013, around 9:30 AM, she was on her way to the school from

house. At a distance of 1 km, behind the school one white coloured

Car arrived there and stopped near to her. In the Car, except driver,

.

one more person was also sitting. They opened the door of the Car

and dragged her inside. Thereafter, the driver started driving the

same at a high speed towards Aut side. The Car was being driven by

appellant-convict Ravinder Sharma @ Ravi and the other occupant

was appellant-convict Birbal. They both are residents of Village

Gharatgar. They were known to her. She asked as to where she was

being taken by them and why? On this they told that she was being

taken by them towards Kullu side on a pleasure trip. She wanted to

cry, however, they threatened that in case she did so, not only she

but they will kill her all family members. They reached near Aut at

about 11:30 AM. At that place, they took out knife from their pocket

and shown the same to her. They also threatened her that in case

she cried or made any effort to inform anyone in her house, they will

not only do away with her life but also all the members of her family.

She allegedly was locked inside the vehicle and they themselves went

to meet someone there. She tried to break open the window screen

of the vehicle, however not succeeded to do so. Therefore, being

helpless and afraid of them, she could not do anything to save her.

It is after about 2 hours, they both came back and she was taken to

an unknown and isolated place. There they both subjected her to

sexual intercourse turn by turn against her will and without her

consent. They made her to remain in that Car throughout the night

and continued subjecting her to sexual intercourse turn by turn

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against her will and without her consent. They told her that they

were dealing in the business of Charas and having handsome money

with them and also that, they will make her happy and comfortable

.

throughout.

4. On 10.10.2013 in the morning, she was taken by them

in the same Car and made to alight at a place nearby the School.

They threatened to kill her and also her entire family in case she

disclosed the incident to anyone. She requested the police of Police

Station Banjar that since both Ravi and Birbal have abducted and

kidnapped her on 9.10.2013 at 9:30 AM while on her way to School

intentionally to subject her to sexual intercourse and they subjected

her to sexual intercourse turn by turn at different places throughout

the night repeatedly against her will and without her consent and

due to which she suffered lot of pain, therefore, she be got medically

examined and the proceedings to prosecute them in accordance with

law be also initiated.

5. On registration of the FIR, the police swung into action.

The investigation was taken in hand by PW-13 SI Chint Ram, SHO

Police Station Banjar. Application Ext. PW-4/A was made to the

Medical Officer with a prayer to conduct the medical examination of

the prosecutrix. The medical was conducted by PW-4 Dr. Kiran and

MLC Ext. PW-4/B collected from the hospital and placed on the file.

On 11.10.2013, the place, namely, Sadri Chanoun from where the

prosecutrix was kidnapped by the accused was identified by her to

the police. The same was photographed vide photograph Ext. PW-

14/A-1 and the spot map Ext. PW-13/A was prepared. That place

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was also videographed and CD prepared. The supplementary

statement of the prosecutrix was also recorded on 11.10.2013. The

demarcation of the place where the prosecutrix was dropped by the

.

accused persons on 10.10.2013 was also conducted and the spot

map Ext. PW-13/B prepared. That place was photographed vide

photographs Ext. PW-13/A-2 and A-3 and videography was also

done. The demarcation of unknown and isolated place near temple

of Akash Mata, in and around Aut was also identified by the

prosecutrix to the police.

to The map thereof Ext. PW-13/C was

prepared. The photographs Ext. PW-13/A-4 to A-5 were also taken

and the videography done. At Kullu, the prosecutrix identified Hotel

New Kailash in Akhara Bazar and took the police to Room No. 27 of

the said hotel where both accused raped her turn by turn. It is at

that place her school dress was also got changed by them and new

dress brought for her from the bazaar. She identified bed sheet

which was taken into possession vide memo Ext. PW-1/B. The spot

map Ext. PW-13/D was also prepared there. The extract of the Hotel

register Ext. PW-11/A was also obtained. It is thereafter the

prosecutrix had led the police party to Balaji hotel at Sarwari bazaar

in Kullu. She identified Room No. 1 of the said hotel and disclosed

that she was sexually assaulted by both the accused. Map of that

place Ext. PW-13/F was also prepared. Photographs of Hotel New

Kailash Ext. PW-13/A-6 to A-8 and that of Hotel Balaji are Ext. PW-

13/A-9 to A-12. One piece of mattress was taken as sample from

room No. 1 of Balaji Hotel vide memo Ext. PW-1/C.

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6. On 12.10.2013, the prosecutrix produced her clothes in

the Police Station which were taken into possession vide memo Ext.

PW-1/D. The same were also sealed in a parcel of cloth. On

.

18.10.2013, vehicle No. HP-33-A-9265 was produced before the

police by Tek Chand, brother of accused Birbal in the Police Station.

The same was also taken into possession vide memo Ext. PW-9/A

along with its invoice. Its seat covers were also taken into possession

vide memo Ext. PW-9/B. Hairs lying in the vehicle were also taken

into possession vide memo Ext. PW-9/C. On 19.10.2013, both

accused were arrested vide memos Ext. PW-13/M and PW-13/N.

Certified copy of Pariwar Register Ext. PW-12/A and that from the

School register qua date of birth of the prosecutrix were also

obtained by submitting applications Ext. PW-13/O and Ext. PW-3/A

to the Secretary, Gram Panchayat Chanoun and Principal of the

School, respectively. The case property was sent to the laboratory for

analysis. Both the accused were also got medically examined. The

MLC of accused Birbal Ext. PW-5/B and that of accused Ravinder

Sharma Ext. PW-5/C were also collected. The report submitted by

the Chemical Examiner is Ext. PX.

7. On completion of the investigation and finding a case

under Sections 363, 366-A, 376-D, 342, 506 of Indian Penal Code

and Section 6 of the POCSO Act made out against both the accused,

the police has filed the report under Section 173 Cr.P.C. against

them.

8. Learned Trial Judge, on appreciation of the report and

documents annexed therewith and on being satisfied prima-facie

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that they have committed the offence punishable under Sections

363, 366-A, 376(2)(i)(n) read with Section 376-D, 342, 506 of Indian

Penal Code and Section 6 of the Protection of Children from Sexual

.

Offences Act has framed charge against both of them accordingly.

They, however, pleaded not guilty to the charge and claimed trial.

Therefore, learned trial Court has called upon the prosecution to

produce evidence in support of its case against the accused. The

prosecution in turn has examined 13 witnesses in all. The material

prosecution witnesses are PW-1, the prosecutrix, her father PW-6

Puran Chand, PW-2 Geeta Devi, Secretary of Gram Panchayat

Chanoun, PW-3 Chander Prakash, Principal Govt. Sr. Secondary

School Chanoun, PW-4 Dr. Kiran, who has examined the prosecutrix

and issued MLC Ext. PW-4/B. PW-5 Dr. Satish Rana has examined

accused Ravinder and Birbal and issued MLC Ext. PW-5/B and Ext.

PW-5/C, PW-7 Naveen Kumar shop keeper Akhara bazaar Kullu

from whom clothes were purchased for prosecutrix by the accused

and PW-11 Puran Chand, Manager of Hotel Kailash, Akhara Bazar,

Kullu.

9. The remaining prosecution witnesses PW-8 LC Anjana,

PW-9 HC Brij Bhusan, PW-10 HC Sunil Kumar, PW-12 LHC Tarsem

are, however, police officials who remained associated in the

investigation of the case in one way or the other. The Investigating

Officer is PW-13 SI Chint Ram.

10. The statements of both the accused under Section 313

Cr.P.C. were also recorded. They have denied the entire prosecution

case either for want of knowledge or being incorrect. According to

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them, they are innocent and have been implicated falsely in this

case. In their defence, they have examined DW-1 Leela Devi, Post

Graduate Teacher, Govt. Sr. Secondary School, Chanoun, DW-2 SI

.

Vijay Kumar, Reader to S.P. (SV ACB), Mandi and DW-3 Smt.

Sonam Dolma, Ward Sister, Community Health Centre Banjar, Distt.

Kullu.

11. Learned trial Judge, on appreciation of the oral as well

as documentary evidence produced by the prosecution and also the

accused and after hearing learned Public Prosecutor as well as

learned defence counsel has concluded that the prosecution case

stands proved beyond all reasonable doubt against the accused.

They were convicted for the commission of the offence punishable

under Section 376-D as pointed out at the outset.

12. S/Sh. Prashant Sharma and Saurav Rattan, Advocates

learned counsel representing the appellants-convicts have

vehemently argued that in the nature of the evidence available on

record, the prosecution has failed to prove its case against either of

the accused beyond all reasonable doubt. It has thus been urged

that no findings of conviction could have been recorded against the

appellants-convicts.

13. Mr. Prashant Sharma, Advocate learned counsel

representing the appellant-convict Birbal has additionally argued

that evidence produced in defence suggesting that the prosecutrix

and her relations were inimical to said Sh. Birbal has been brushed

aside without assigning any cogent and valid reasons. According to

Mr. Sharma, the complaint Ext. DW-2/A made by appellant convict

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Birbal against ASI Narpat Ram and Guddi Devi (wife of Dev Raj,

maternal Uncle of the prosecutrix) forwarded vide letter Ext. DW-2/B

by the Superintendent of Police, State Vigilance and Anti Corruption

.

Bureau, Mandi to Superintendent of Police Mandi for enquiry and

appropriate action and the testimony of DW-1 Smt. Leela Devi lead to

the only conclusion that accused Birbal was not travelling in the

offending Car which as per the version of DW-1 Leela Devi was being

driven by appellant-convict Ravinder Sharma @ Ravi. It has also

come in the FIR Ext. PW-1/A that the vehicle was being driven by

accused Ravinder Sharma @ Ravi. Said Birbal, according to learned

counsel as such has been implicated falsely at the instance of the

relations of the prosecutrix and ASI Narpat Ram who were inimical to

him on account of the complaint Ext. DW-2/A made by him to

Superintendent of Police (State Vigilance and Anti Corruption

Bureau), Mandi. Both the accused, therefore, have been sought to

be acquitted of the charges framed against each of them.

14. On the other hand, Mr. Narinder Guleria, learned Addl.

Advocate General has urged that the judgment under challenge is

speaking and reasoned one. The same, according to Mr. Guleria has

been passed by learned Trial Judge on appreciation of the evidence

in its right perspective. It is pointed out that the own testimony of

the prosecutrix which remained un-shattered even in her cross-

examination also, the charges framed against each of the accused

persons stand established. The remaining evidence as has come on

record by way of testimony of her father and PW-4 Dr. Kiran as well

as report of the chemical examiner Ext. PX, proves beyond

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reasonable doubt that the appellants-convicts have assaulted the

prosecutrix, a minor aged 15 years at different places, including two

hotels after abducting her in a planned manner while on her way to

.

school. The offence they allegedly committed is not only heinous but

also grievous in nature. Therefore, according to Mr. Guleria, they

both have been rightly convicted and sentenced vide judgment under

challenge in these appeals, which according to him, calls for no

interference by this Court.

15. The nature
r to of the offence, the accused allegedly

committed is not only heinous but grievous also because as per the

allegations, they have not only removed the prosecutrix, a minor

from lawful guardianship of her parents, but also subjected her to

sexual intercourse repeatedly in the Car and also at different isolated

places, including the two hotels i.e. Hotel New Kailash, Akhara

Bazar, Kullu and Hotel Balaji at Sarwari Bazar, Kullu.

16. The apex Court while taking into consideration the

gravity and seriousness of the offence, in a catena of judgments,

including State of Punjab Vs. Gurmeet Singh others, AIR 1996

SC 1393, has held that the own statement of the prosecutrix if

inspires confidence is sufficient to bring the guilt home to the

accused. The apex Court in order to ensure that an innocent person

may not be implicated in the commission of an offence of this nature,

while taking note of the judgment in Gurmeet Singh’s case supra

has however diluted the ratio thereof in Ranjit Hazarika Vs. State

of Assam, (1998) 8 SCC 635 and held that the ratio thereof cannot

be universally and mechanically applied to the facts of every case of

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sexual assault, as in its opinion in such cases, the possibility of false

implication can’t also be ruled out. Similar was the view of the

matter taken again by the apex Court in Vimal Suresh Kamble Vs.

.

Chaluverapinake Apal S.P. and another, 2003) 3 SCC 175.

17. Therefore, the legal position as discussed supra makes it

crystal clear that irrespective of an offence of this nature not only

grievous but heinous also, the Court should not get swayed merely

by passion and influenced only on account of the offence has been

committed against a woman and rather keep in mind the cardinal

principle of criminal administration of justice, that an offender has to

be believed to be innocent unless and until held guilty by the Court

after satisfying its judicial conscience on the basis of given facts and

circumstances of each case as well as proper appreciation of the

evidence available on record.

18. Now, if coming to the evidence available on the record of

this case, the age of the prosecutrix has been claimed to be 15 years

on the date of occurrence i.e. 9.10.2013. The present has also been

claimed to be a case of gang rape within the meaning of Section 376-

D of the IPC. She allegedly, a minor has been subjected to sexual

intercourse repeatedly by both the accused persons. If it is proved to

be so, it is only in that situation the appellants-convicts can be said

to have committed the offence punishable under Section 376 (2)(n)

read with Section 376-D IPC.

19. We propose to decide the question as to whether the date

of birth of the prosecutrix is 18.3.1999 as claimed by the prosecution

because it is in that eventuality, she could have been said to be

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about 15 years of age i.e. 14 years 7 months and 9 days. Otherwise

also, it is the age of the prosecutrix in a case of this nature which

assumes significance. In order to prove the date of birth of the

.

prosecutrix as 18.3.1999, reliance has been placed on the certificate

Ext. PW-3/B issued by PW-3 Chander Prakash, Principal, Govt. Sr.

Secondary School, Chanoun, District Kullu, H.P. On the face of this

document, she was admitted in the said School on 21.4.2009,

meaning thereby that prior to it, she must have studied in Primary

certificate qua

her

School somewhere else and the proof qua her date of birth disclosed

either in the admission form by way of making declaration or the

date of birth obtained from the

Municipality/Gram Panchayat where the register of birth and death

used to be maintained. In High/Senior Secondary Schools, a

student is admitted on the basis of School Leaving Certificate issued

by the concerned Primary School and in said certificate, the

particulars as to who had declared the date of birth of a student

while taking admission in first standard and the declaration so made

was is supported by a certificate issued by Municipality/Gram

Panchayat concerned. Therefore, the certificate Ext. PW-3/B cannot

be treated as primary evidence so far as the date of birth of the

prosecutrix as 18.3.1999 is concerned. It is worth mentioning that

under Section 35-A of the Indian Evidence Act, a certificate qua date

of birth of a person issued by the authorities from the School record

is admissible only in case the person at whose instance the date of

birth of the child admitted in the school was disclosed and the proof

of declaration of the date of birth. Therefore, the primary evidence

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qua the date of birth of the prosecutrix would have been the

certificate if obtained from the Primary School along with the extract

of the admission register and copy of the admission form which

.

contains, the declaration qua the date of birth made by the

parents/guardians accompanying the child to the School at the time

of his/her admission. Additionally, the certificate issued by the

Municipality/Gram Panchayat on the basis whereof declaration qua

date of birth of a child is made is also required to be produced.

20.

r to
Therefore, the certificate Ext. PW-3/B cannot be taken to form an

opinion that the prosecutrix is born on 18.3.1994.

The another document relied upon by the prosecution is

Ext. PW-2/A, an extract of the Pariwar Register. The alleged date of

birth 18.3.1999 of the prosecutrix does not find mention in this

document. The column against which her date of birth was entered

rather has been scratched. Such a situation on the face of the

record makes it highly doubtful that the prosecutrix is born on

18.3.1999. Otherwise also, the entries qua the birth of a person

made in ordinary course of business by a competent authority

constitute primary evidence qua the age of a person. Their used to

be column in birth and death register in which the name of the

person at whose instance the entries qua the date of birth are made

and his/her relation with the newly born finds mention. Therefore,

such entries in the birth and death register if obtained by the

prosecution would have given an idea about the correct date of birth

of the prosecutrix and her exact age. The investigating agency has,

however, not obtained the birth certificate on the basis of the entries

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made in the birth and death register in the manner as stated

hereinabove nor placed on record the abstract of such register for

being produced in evidence. As regards the entries in the Pariwar

.

Register, the same in our considered opinion, cannot be taken to

conclude that prosecutrix was about 15 years of age at the time of

occurrence. Therefore, learned defence counsel have rightly pointed

out that for want of cogent and reliable evidence, the prosecutrix

cannot be said to be of 15 years age or below 18 years.

21.

It is well settled at this stage that primary evidence to

prove the date of birth of a person is the entries in the register at the

time of his/her admission in the primary school. The record qua

declaration of date of birth of the child made by his/her parents or

guardian at the time of admission in primary school should also be

there to substantiate the entries in the register. The name of

parent/guardian at whose instance the child admitted in the school

should also be there in the record relating to admission of the child.

It is only on the basis of such material on record the date of birth as

find mention in the record produced in evidence can be believed as

true and correct. In the case in hand, it is the certificate Ext. PW-

3/B issued by the Principal Govt. Sr. Secondary School, Chanoun

which has been relied upon. As a matter of fact, the extract from the

admission register should have been obtained and produced in

evidence. The admission register along with form/declaration made

by a person at whose instance the prosecutrix was admitted in the

school should have been produced during the course of recording

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prosecution evidence, in order to prove the exact date of birth of the

prosecutrix.

22. The conclusion so drawn by this Court is supported by

.

the judgment of the apex Court in Sunil Kumar Vs. State of

Haryana, AIR 2010 SC 392 wherein it has been held as under:

“30. The prosecution also failed to produce any
Admission Form of the school which would have been
primary evidence regarding the age of the prosecutrix.”

23. Hon’ble Apex Court in State of Chhatisgarh Vs.

Lekhram, AIR 2006 SC 1746, has held that the register

maintained in a school is admissible in evidence to prove the date of

birth of the person concerned, if it is proved that the same has been

maintained by the authorities in the discharge of their public duty

and there is evidence to show as to who had disclosed the date of

birth of such person at the time of his/her admission in the school.

24. The birth Certificate Ext. PW-3/B from the record of

Government Sr. Secondary School, Chanoun has been produced.

The birth certificate from the record of Primary School where she

may have studied has neither been obtained nor produced in

evidence. In the absence of the admission form/declaration qua her

date of birth, Ext. PW-3/B cannot be believed to be true and correct

to arrive at a conclusion that the prosecutrix was born on

18.3.1999. If coming to the extract of pariwar register Ext. PW-2/A,

the same has no evidentiary value nor on the basis thereof, it can be

said that the date of birth of the prosecutrix is 18.3.1999. As a

matter of fact, it is the entries made in the birth and death register

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maintained by the Municipalities/Gram Panchayats which can be

treated to be primary evidence qua the date of birth of a person,

however, in a case of this nature, the extract of such register with

.

supporting evidence as to who has disclosed the date of birth at the

time of making birth entries in the register is required to be produced

in evidence. Mere production of the register and abstract is not

sufficient and rather the examination of such person at whose

instance the entries were made in the register is also relevant. It is

held so by the Apex Court in Ravinder Singh Gorkhi vs. State of

U.P. AIR 2006 SC 2157. The judgment reads as follows:

“17. …………The said school leaving certificate was not

issued in ordinary course of business of the school There
is nothing on record to show that the said date of birth
was recorded in a register maintained by the school in

terms of the requirements of law as contained in Sec. 35
of the Indian Evidence Act. No statement has further

been made by the said Head Master that either of the
parents of the appellant who accompanied him to the

school at the time of his admission therein made any
statement or submitted any proof in regard thereto.

………………

[21] Determination of the date of birth of a person before
a court of law, whether in a civil proceeding or a criminal
proceeding, would depend upon the facts and
circumstances of each case. Such a date of birth has to
be determined on the basis of the materials on records.
It will be a matter of appreciation of evidence adduced by
the parties. Different standards having regard to the
provision of Sec. 35 of the Evidence Act cannot be
applied in a civil case or a criminal case.

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[26] In Birad Mal Singhvi V/s. Anand Purohit, this Court
held:

“To render a document admissible u/s. 35, three

.

conditions must be satisfied, firstly, entry that is relied

on must be one in a public or other official book, register
or record; secondly, it must be an entry stating a fact in
issue or relevant fact; and thirdly, it must be made by a

public servant in discharge of his official duty, or any
other person in performance of a duty specially enjoined
by law. An entry relating to date of birth made in the

school register is relevant and admissible u/s. 35 of the
Act but the entry regarding the age of a person in a
school register is of not much evidentiary value to prove

the age of the person in the absence of the material on

which the age was recorded.”

25. Similar is the ratio of the judgment again that of Hon’ble

Apex Court Madan Mohan Singh and others Vs. Rajni Kant and

another, AIR 2010 SC 2933, which reads as follows:

“[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 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, 1970
AIR(SC) 326; Ram Murti Vs. State of Haryana,1970
AIR(SC) 1020; Dayaram Ors. Vs. Dawalatshah Anr.,
1971 AIR(SC) 681; Harpal Singh Anr. Vs. State of
Himachal Pradesh, 1981 AIR(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, 2008 AIR(SC) 632; and Ram Suresh
Singh Vs. Prabhat Singh @Chhotu Singh Anr., 2009 6

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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.
……………….

[16] 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 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.”

26. Therefore, in the light of the law laid down by the Apex

Court in the judgments cited supra and also the evidence discussed,

it is difficult to form an opinion that the prosecutrix was below 18

years of age on 9.10.2013, the date when she was kidnapped and

subjected to sexual intercourse.

27. As per the radiological age of the prosecutrix, the same

as per the opinion of the Radiologist Ext. PW-4/C is 15-17 years.

The margin of error while determining the radiological age is 2-3

years on either side, however, it has been held by the apex Court in

State of H.P. vs. Phurva others, Latest HLJ 2011 (HP) 490,

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19

that the benefit of such error should be given to the accused as

compared to the prosecution. The opinion Ext. PW-4/C has been

produced in evidence by the prosecution itself. Therefore, this

.

document also supports the defence version that the prosecution has

failed to prove beyond all reasonable doubt that the prosecutrix on

the day of occurrence was about 15 years of age, hence below 18

years. It, therefore, takes out the present case from the rigor of 6th

situation below Section 375 of the IPC. The prosecutrix in such a

situation has to be treated as major and not minor below 18 years of

age. Moreover, in the record of CHC Banjar, District Kullu produced

by DW-3 Sonam Dolma, Ward Sister, the age of the prosecutrix on

15.1.2016 when admitted in the said hospital, being pregnant for

delivery, is recorded as 21 years. In her cross-examination, she has

admitted that her age as 21 years in hospital record was recorded at

her instance.

28. Now comes the question as to whether the present is a

case of gang rape defined within the meaning of Section 376-D of the

Indian Penal Code or not.

29. As per the prosecution case, the prosecutrix was

kidnapped/abducted by both the convicts while on the way to school

and by dragging her forcibly inside the Car firstly subjected her to

sexual intercourse at an isolated place near and around Aut, District

Mandi and thereafter on the side of kutcha road where she was

taken in the vehicle. She thereafter allegedly was subjected to sexual

intercourse in Hotel New Kailash, Akhara Bazar, Kullu in room No.

27, however, only by the principal accused Ravinder Sharma @ Ravi

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20

and the allegations are that accused Birbal remained outside the

Hotel. Then she allegedly was taken to Hotel Balaji at Sarwari, Kullu

and in the said Hotel subjected to sexual intercourse by both the

.

convicts turn by turn. She was taken from Hotel Balaji at Sarwari to

different unknown places and subjected to sexual intercourse

throughout the night by both the accused turn by turn. The

prosecutrix though has disclosed the names of both the accused in

the FIR Ext. PW-1/A, however, while in the witness box denied any

such statement having been made by her to the police. According to

her, rather she came to know the names of the convicts lateron from

her maternal Uncle Dev Raj, meaning thereby that in the FIR, the

names of the convicts would have been entered may be at the

instance of her parents accompanying her. In such a situation, it is

doubtful that accused Birbal was also in the vehicle and abducted

her. On the other hand, DW-1 Leela Devi, who was Post Graduate

Teacher in Govt. Sr. Secondary School, Chanoun and taken lift in the

offending car on that day tells us that only accused Ravinder Sharma

@ Ravi was in the Car and driving the same. She has denied that

convict Birbal was also in the car. The dent caused by this witness

casts clouds on the prosecution story qua accused Birbal was also

the occupant of the vehicle and subjected the prosecutrix to sexual

intercourse. As per the prosecution case itself in Hotel New Kailash,

Akhara Bazar, Kullu, he did not subject the prosecutrix to sexual

intercourse and was rather standing outside. The extract of visitors’

register Ext. PW-11/A reveals that Room No. 27 was occupied by

accused Ravinder Sharma @ Ravi, the principal accused in this case

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21

and by one female accompanying him. Therefore, in this Hotel,

accused Birbal has not subjected the prosecutrix to sexual

intercourse as per the own case of the prosecution. As per the

.

testimony of prosecutrix, from Hotel New Kailash, Akhara Bazar,

Kullu she was brought to Hotel Balaji at Sarwari and subjected there

by both the accused to sexual intercourse turn by turn. The record

of this hotel regarding visit of the accused and the prosecutrix has,

however, not been obtained though the prosecutrix identified the

said hotel and also room No. 1 thereof. The entry showing that the

accused booked room No. 1 in the said hotel, however, has not been

produced in evidence. Therefore, it is difficult to believe that at Hotel

Balaji at Sarwari, the prosecutrix was subjected to sexual

intercourse by the accused persons.

30. Now, if coming to the evidence produced in defence, it is

proved that accused Birbal had made the complaint Ext. DW-2/A to

Superintendent of Police (SV ACB) Mandi apprehending therein

that ASI Narpat Singh of Police Post Bahli Chowki and Guddi Devi

(wife of Dev Raj, the maternal uncle of the prosecutrix) may have

implicated him in a false case as the ASI at the behest of Guddi Devi

had searched his vehicle without any rhyme or reason on several

occasions. The complaint is dated 7.5.2013. The Superintendent of

Police (SV ACB), Central Range Mandi had forwarded the same

vide letter dated 13.5.2013 Ext. DW-2/B to Superintendent of Police,

Mandi for holding enquiry into the allegations therein. ASI Narpat

Singh, as per these documents, was In-charge Police Post Bahli

Chowki at that time. Guddi Devi is admittedly the wife of Dev Raj,

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22

maternal uncle of the prosecutrix. Said Sh. Dev Raj after his

conviction in a case under the ND PS Act was convicted by a Court

at Panipat in Haryana. It has also come in evidence that he had

.

absconded though ultimately arrested consequent upon his

conviction and presently serving out the sentence in the jail at

Panipat. As per the own case of the prosecution, the prosecutrix on

10.10.2013 was taken by her parents to the house of Proju Devi,

none else but her real maternal grandmother. Dev Raj is son of said

Proju Devi, therefore, real maternal Uncle of the prosecutrix.

Likewise, Guddi Devi is the wife of Dev Raj. In such a situation, the

contents of the complaint Ext. DW-2/A seems to be genuine and as

accused Birbal had made the complaint against aforesaid Guddi,

who was inimical to the said accused because of under the

impression that it is at his instance her husband Dev Raj was

booked by the police for the commission of the offence punishable

under the provisions of the ND PS Act, therefore, the version of

accused Birbal in his defence that he neither abducted the

prosecutrix nor subjected her to sexual intercourse is nearer to the

factual position. Interestingly enough, the report of chemical

examiner Ext. PX is silent about the availability of blood or semen on

his underwear (Ext. 12) which was analyzed in the laboratory

whereas the underwear (Ext. 13) of accused Ravinder Sharma @ Ravi

was found to be having the semen stains thereon. Therefore, the

scientific investigation conducted in this case also does not

substantiate the change against him. In this view of the matter, the

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23

possibility of accused Birbal having been implicated in this case

falsely due to enmity cannot be ruled out.

31. True it is that the offending vehicle Indigo white coloured

.

Car registration No. HP 33-A-9265, belongs to accused Birbal. The

same has been produced before the police by his brother Tek Singh

on 18.10.2013 and taken into possession by the police along with its

documents vide seizure memo Ext. PW-9/A and Ext. PW-9/B,

respectively. The circumstances as to how it was being driven by

accused Ravinder Sharma @ Ravi has remained un-explained.

32. As noticed hereinabove, accused Ravinder Sharma @

Ravi was driving the Car. It is stated so by DW-1 Leela Devi and

even find mention in the FIR Ext. PW-1/A recorded at the instance of

the prosecutrix. The vehicle on the other hand was of accused

Birbal. How accused Ravinder Sharma @ Ravi was driving the same

should have been explained by the prosecution. Though accused

Birbal has also not said anything in his defence qua this aspect of

the matter, however, as per the settled legal position, the prosecution

should have stood on its own legs and lacunae if any, in its case,

benefit must go to the accused. It is, however, proved that the

vehicle was being driven by accused Ravinder Sharma @ Ravi and it

is doubtful that accused Birbal was also occupying the same. In this

view of the matter, the only inescapable conclusion would be that

accused Birbal was not in the vehicle hence neither had any hand in

the abduction of the prosecutrix nor he had subjected her to sexual

intercourse. The present, as such, is not a case of gang rape within

the meaning of Section 376-D of the Indian Penal Code. Learned

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24

trial Judge has failed to appreciate the evidence available on record

qua this aspect of the matter in its right perspective and wrongly

convicted accused Birbal for the commission of the offence

.

punishable under Section 376-D IPC. As a matter of fact, charge

framed against the said accused is not proved beyond all reasonable

doubt. He, therefore, deserves acquittal.

33. Otherwise also, in view of such type of evidence which is

inconsistent and contradictory also, two possible views qua

involvement of the accused Birbal in the commission of the offence

emerge on record. As is well settled at this stage, in a case where

two possible views emerge on record, the view favourable to the

accused should be preferred as compared to the view favouring the

prosecution and the benefit of doubt given to the accused and not to

the prosecution. We are drawing support in this regard from the

judgments of the apex Court in T. Subramanian versus State of T. N.,

(2006) 1 Supreme Court Cases 401 and State of Rajsathan versus Islam

Others, (2011) 6 Supreme Court Cases, 343.

34. The evidence as has come on record by way of sole

testimony of the prosecutrix, however, implicate accused Ravinder

Sharma @ Ravi in the commission of the offence with which he has

been charged. As already held, the age of the prosecutrix has not

been proved below 18 years. She, therefore, has to be believed to be

major. The evidence to be discussed hereinafter amply demonstrate

that accused Ravinder Sharma @ Ravi had kidnapped her by

dragging inside the car. Though DW-1 Leela Devi while in the

witness-box has stated that the prosecutrix alighted from the Car

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25

with her near the school and went inside. She, however, failed to

point out that the prosecutrix actually attended the classes on that

day. On the other hand, the prosecutrix has categorically stated that

.

she was dragged by the accused inside the car. There is no reason to

dis-believe her testimony in this regard. She has identified the place

(Sadri Chanoun) from where she was kidnapped by the accused. The

spot map is Ext. PW-13/A and photograph is Ext. PW-13/A-1. She

has also identified the isolated place hillock (Dhank) where she was

subjected to sexual intercourse for the first time. The spot map is

Ext. PW-13/C. Similarly, the photographs of this place are Ext. PW-

13/A-4 and A-5. She has also identified room No. 27 of Hotel New

Kailash, Akhara Bazar, Kullu. The extract of Visitors’ register and the

statement of PW-11 Puran Chand, the Manager of the Hotel, reveals

that room No. 27 was booked in the name of accused Ravinder

Sharma @ Ravi. He was accompanied by one female. She was

subjected to sexual intercourse in room No. 27 of the Hotel also

stands proved from her own testimony and also the extract of the

visitors register Ext.PW-11/A. The prosecutrix has identified room

No. 27 and spot map Ext.PW-13/D was prepared. Not only this, but

it is in Akhara Bazar, Kullu the accused purchased a shirt and

caprie for her and made her to wear the same because she was in

school dress and he may have apprehension of being caught with her

on suspicion by someone, including the police. PW-7 Parveen has

identified the shirt Ext.P-6 and caprie Ext.P-7 having been

purchased from his shop. As regards her ravishment in Hotel Kailash,

Sarwari Bazar, Kullu for want of the entries in the Guests’ register of

03/04/2019 21:59:21 :::HCHP
26

the hotel and the evidence of someone, including the Manager,

though it cannot be said that she was taken there, however, she is

justified in stating that the said accused took her to various places

.

and subjected to sexual intercourse throughout the night. She could

not identify those places and rightly so because of the odd hours.

35. Now, if coming to the scientific investigation conducted

in this matter, her underwear Ext. 2(a) and underwear of accused

Ravinder Sharma @ Ravi Ext. 13 were found to be having semen

stains.

The hair recovered from the rear seat of the car on

comparison with her hair were found consistent and comparable

with each other. The piece of cloth recovered from the Car was found

having blood which reveals that the same oozed out when subjected

to sexual intercourse and the said piece of cloth used for cleaning

purposes. The defence though has tried to persuade us that as per

the evidence available on record, the prosecutrix had menstruation

which she also admits, however, according to her that was last day.

Anyhow, the recovery of piece of cloth from the Car reveals that the

same may have been used either on account of she was in

menstruation period or for cleaning her private parts after she was

subjected to sexual intercourse. In view of the sexual assault

committed upon her repeatedly, the possibility of bleeding due to

that was also obvious.

36. Therefore, irrespective of the prosecution has failed to

prove that the prosecutrix was minor below 18 years of age, she has

to be taken as major. The present, however, is not a case of

consensual sexual intercourse with her and rather accused Ravinder

03/04/2019 21:59:21 :::HCHP
27

Sharma @ Ravi has subjected her to sexual intercourse repeatedly

against her will and without her consent. The offence he committed,

therefore, falls under Section 376(2)(n) IPC. It is also proved beyond

.

all reasonable doubt that the accused threatened her to do away with

her life and also the life of other members in her family had she

disclosed the incident to anyone. The evidence further reveals that

she was subjected to sexual intercourse under threat. Otherwise

also, she being a helpless girl of tender age had no option but to have

r to
succumbed to the pressure and threat of the accused because he did

not release her on 9.10.2013 throughout the day and throughout the

night intervening 9/10.10.2013. True it is that she was taken to

Akhara Bazar, Kullu, a thickly populated area and she did not raise

any hue and cry, it may be because of the threatening given by the

accused and by that time she was subjected repeatedly to sexual

intercourse by him at isolated place(s). It is not the case of the

accused in defence that she was consenting party to the act of sexual

intercourse committed by him with her. He rather has denied all the

incriminating circumstances appearing against him either being

wrong or for want of knowledge. The accused, in such

circumstances acted smart.

37. True it is that no benefit can be taken from the lacunae,

if any, in the case of the defence, however, when the prosecution has

proved its case qua abduction of the prosecutrix and subjecting her

to sexual intercourse against her will and without her consent, the

silence of the accused speaks in plenty qua his act, conduct and

behavior. The present, as such, is a case where the accused has

03/04/2019 21:59:21 :::HCHP
28

repeatedly subjected the prosecutrix to sexual intercourse against

her will and without her consent and has therefore, not only

committed the offence punishable under Section 376(2)(n) IPC but

.

also 506 IPC. For want of proof of the age of the prosecutrix that she

was below 18 years of age, no case for the commission of offence

punishable under Sections 363 and 366A IPC is, however, made out.

Similarly, the charge framed against the accused under Section 6 of

the POCSO Act also fails.

38.

In view of what has been said hereinabove, convict

Ravinder Sharma @ Ravi has committed the offence punishable

under Sections 342, 376 (2)(n) and 506 IPC. He, therefore, is

convicted for the commission of the offence punishable under

Sections 342, 376 (2)(n) and 506 IPC and acquitted of the charge

framed against him under Sections 363 and 366A IPC.

39. In the matter of sentence, the offence i.e. under Section

376 (2)(n) is graver in nature as compared to the offence punishable

under Sections 342 506 IPC. The offence under Section 376(2)(n)

is punishable with rigorous imprisonment for a term which shall not

be less than 10 years but may extend to imprisonment for life i.e. the

imprisonment for the remainder of natural life and also with

imposition of fine. Learned trial Judge while holding him guilty for

the commission of the offence punishable under Section 376-D IPC

has convicted him to undergo rigorous imprisonment for a period of

20 years and also to pay Rs. 10,000/- as fine. In view of the findings

hereinabove, the sentence so passed against him has to be altered

keeping in view the offence he has been found to have committed as

03/04/2019 21:59:21 :::HCHP
29

per this judgment. The minimum sentence for the commission of

such offence is 10 years. Although, the abduction and ravishment of

the prosecutrix repeatedly is a gruesome act on his part, yet keeping

.

in view his young age as he was 25 years of age at the time of

commission of the alleged offence, we feel that the punishment to

undergo rigorous imprisonment for 10 years with payment of Rs.

50,000/- as fine by him would serve the ends of justice. On his

failure to deposit the fine amount, he shall further undergo rigorous

imprisonment for a period of one year. The fine, if deposited by him,

shall be paid to the prosecutrix to compensate her towards pains,

mental agony and torture she suffered on account of sexual assault

made by the convict upon her. The impugned judgment stands

modified accordingly.

40. Consequently, Cr. Appeal No. 532 of 2016 filed by

convict Ravinder Sharma @ Ravi partly succeeds and the same is

partly allowed. He is acquitted of the charge framed against him

under Sections 363 366-A IPC whereas convicted for the

commission of the offence punishable under Sections 342, 376 (2)(n)

and 506 IPC and sentenced to undergo rigorous imprisonment for a

period of 10 years and to pay fine of Rs. 50,000/- as fine for the

commission of the offence punishable under Section 376 (2)(n) IPC.

In default to deposit the fine so imposed upon him, he shall further

undergo rigorous imprisonment for a period of one year. The fine, if

deposited shall be paid to the prosecutrix as compensation.

However, Cr. Appeal No. 516 of 2016 filed by convict Birbal is

allowed and he is acquitted of the charge framed under Sections 363,

03/04/2019 21:59:21 :::HCHP
30

366-A, 376(2)(i)(n) read with Section 376-D, 342, 506 of Indian Penal

Code and Section 6 of the Protection of Children from Sexual

Offences Act. Consequent upon his conviction, he is serving out the

.

sentence in jail. He, therefore is ordered to be released from custody

forthwith, if not required in any other case, however, subject to

furnishing personal bond in the sum of Rs. 25,000/- with one surety

in the like amount to the satisfaction of learned trial Court so that in

the event of any appeal agaisnst this judgment is preferred, his

presence in the appellate Court can be secured. The bail bonds to be

so furnished shall, however, remain in force only for a period of six

months from today. Release warrant be prepared accordingly.

41. Before parting, we would like to reproduce here the order

passed in these appeals on 23.3.2018:

“Heard in part. It transpires from the records that copy of birth
certificate of prosecutrix has not been annexed along with the

challan, although copies of Parivar Register and some
certificate of school, that have been exhibited as Ext.PW2/A

and Ext.PW3/B, are on record. Even the Investigating Officer
PW13 SI/SHO Chint Ram in examination-in-chief has

categorically stated that he has obtained the birth certificate of
prosecutrix.

Therefore, let the Investigating Officer explain as to why
the copy of birth certificate which is stated to have been
obtained from Gram Panchayat, Chahari, Tehsil Banjar, District
Kullu has not been annexed with the challan. Let the needful
be done within three weeks.

List on 13.4.2018.”

42. Order dated 20.4.2018 which is also relevant reads as

follows:

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31

“An affidavit in compliance to the order passed by this Court on
23.3.2018 has been filed by Mr. Chint Ram, Investigating
Officer. The same is taken on record, which shall form part and
parcel of the record and contents thereof shall be considered

.

at the time of final hearing of the appeal(s). His personal
appearance for the time being is dispensed with.

List for hearing on 4.5.2018.”

43. The I.O. PW-13 SI Chint Ram, in the affidavit he filed

consequent upon the orders ibid, has stated as follows:

“2. That in the above titled case the deponent has not
obtained the birth certificate on the basis of death and
birth register of the prosecutrix reason being that same

was not available in the panchayat record and only copy

of pariwar register of prosecutrix family was available
which was obtained from the Panchayat Secretary of
Gram Panchayat, Chanaun, Tehsil Banjar, District

Kullu, H.P. The copy of the statement of Panchayat
Secretary to this effect under Section 161 Cr.P.C. was
recorded and the same is enclosed as Annexure A/1.

3. That the deponent has also categorically stated
this fact of pariwar register (birth certificate) of

prosecutrix in the case diary (jivni) No. 9 dated
20.10.2013. Copy of case diary is also enclosed as

Annexure A/2.

4. That due to bonafide mistake while the deponent
was examined in the Court on oath it has been written in
examination-in-chief that the deponent obtained birth
and school certificate of the prosecutrix, whereas it
ought to have been “copy of pariwar register and school
certificate of the prosecutrix” and only the copy of
pariwar register is exhibited as PW-2/A.

5. That since there is no birth entry of the
prosecutrix in the birth and death register in the Gram

03/04/2019 21:59:21 :::HCHP
32

Panchayat, Chanaun as the deponent tried his level best
to obtain the copy of birth certificate but same could not
be obtained as it is not existing in panchayat record.”

.

44. In support of his version reproduced hereinabove, the

statement of Bhim Ram, Secretary, Gram Panchayat Kothi Chaihni

recorded on 20.10.2013 has also been placed on record as Annexure

A-1. Annexure A-2 is rapat No. 6 in the jimni that entries qua date

of birth of the prosecutrix is not made in the birth register.

45. In view of the explanation so forthcoming, we are

satisfied that the entries qua birth of the prosecutrix may have not

been made by the parents of the prosecutrix in birth register

maintained by the Gram Panchayat. The present, as such, is not a

case of dereliction of any duty by the I.O. PW-13 the then SI/SHO

Chint Ram, Police Station Banjar who has not only recorded the

statement Annexure A-1 to the affidavit in this regard but also made

entries in the jimni that the Secretary Gram Panchayat has informed

about no entry having been made qua the birth of the prosecutrix in

the birth register. Therefore, no other and further action against PW-

13 SI/SHO Chint Ram, is required. Consequently, show-cause

notice issued against him is discharged and the proceedings

dropped.

(Dharam Chand Chaudhary),
Judge.

April 2, 2019. (Chander Bhusan Barowalia),
(karan-) Judge.

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