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Himachal Pradesh High Court · body

2001 DIGILAW 318 (HP)

SURESH KUMAR v. STATE OF H. P.

2001-11-05

M.R.VERMA

body2001
JUDGMENT M.R. Verma, J. :- The appellant-accused (hereafter referred to as the accused) by this appeal, has assailed the judgement dated 18.8.1999 passed by learned Sessions Judge, Kangra at Dharamsala whereby the accused has been convicted under Sections 363,366 and 376IPC and has been sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5000/-under Section 376 IPC and in default of payment of fine, to undergo further rigorous imprisonment for a period of six months and to rigorous imprisonment for a term of two years and to pay a fine of Rs. 1000/- under Section 366 IPC and in default of payment of fine, to undergo further rigorous imprisonment for a period of one month. 2. The prosecution case, in brief, is that the prosecutrix (PW-2) daughter of Nirmla Devi (PW-1) and Jagar Nath (PW-3) was, on 23.3.1996 present in her house in village Sadwan. The accused and Ishwar Dass alias Sheru (who was a co-accused before the trial court and will be referred to as such hereafter) came to her house. Accused asked her to marry him. On her refusal, the accused and the said co-accused threatened to kill her brother. They made her to accompany them at the point of a knife and was taken to different houses and finally to the house of Ashok Kumar (who was also a co-accused before the trial Court and is referred to as such hereafter). From there, she was brought to Kunalpathri temple for performing marriage with the accused but she refused and the mandir people also refused to perform the marriage. The accused and the co accused then took the prosecutrix to the court premises at Dharainsala where she was forced to sign an affidavit regarding solemnisation of her marriage with the accused and such affidavit along with affidavit of the accused to the same effect were attested by R.S. Rana, Advocate (PW-5). She was then taken back to the house of co-accused Ashok Kumar at Shahpur where she stayed for five years and during this period; the accused subjected her to sexual intercourse. 3. She was then taken back to the house of co-accused Ashok Kumar at Shahpur where she stayed for five years and during this period; the accused subjected her to sexual intercourse. 3. When the mother of the prosecutrix (PW-1) returned home from the fields, she found the prosecutrix missing and started searching for her in the neighbourhood and also at her parents house and finally reported the matter to the police on 26.3.1996 on the basis of which formal FIR Ex.PW-1/A was registered at Police Station, Nurpur by ASI Sharif Mohammad (PW-10). The father of the prosecutrix (PW-3) who was at the material time, working at Kullu was informed about the occurrence whereupon he returned home. On the basis of information received, the police along with PW-2 recovered the prosecutrix from the house of co-accused Ashok Kumar vide memo Ex.PW-3/A and her person was handed over to PW-2 vide memo Ex.PW-3/B. The prosecutrix was got medically examined and Dr. D.R. Riyal (PW-12) who examined her issued theMLCEx.PW-12/B and opined that the possibility of sexual offence qua the prosecutrix could not be ruled out. At the time of medical examination of the prosecutrix, PW-12 took in possession the underwear, the prosecutrix was wearing at the relevant time and also collected vaginal swab, prepared the slides and after sealing, handed them over to the police to get them analysed from the Chemical Examiner. After arrest, accused was also got medically examined and Dr. Parveen Bhardwaj who examined him vide MLC Ex.PW-13/A opined that the accused was capable of performing sexual intercourse. At the time of medical examination, his underwear was also taken in possession by PW-13 and handed over to the police for chemical analysis. As per the report regarding chemical analysis of the aforesaid articles Ex.PX. nothing incriminating was found in the articles so analysed except the underwear of the prosecutrix which was found stained with human blood. During the course of the investigation, the police also took in possession the age certificate Ex.PW-14/A of the prosecutrix and the abstract of the register Ex.PW-14/B. On completion of the investigation, a charge sheet under Sections 363,366,368 and 376 IPC was submitted by the officer in charge. Police Station, Nurpur against the accused and his co-accused. 4. During the course of the investigation, the police also took in possession the age certificate Ex.PW-14/A of the prosecutrix and the abstract of the register Ex.PW-14/B. On completion of the investigation, a charge sheet under Sections 363,366,368 and 376 IPC was submitted by the officer in charge. Police Station, Nurpur against the accused and his co-accused. 4. The accused was tried on a charge under Sections 363,366 and 376 IPC, co-accused Ashok Kumar was tried on a charge under Sections 368 and 109 read with Section 376 IPC and co-accused Ishwar Dass alias Sheru was tried on a charge under Sections 363,376 read with Seciton 34 and under Section 109 read with Section 376 IPC by the learned Sessions Judge, Kangra at Dharamsala. 5. To prove the respective charges against the accused and the co- accused, prosecution examined as many as 15 witnesses. The accused and co-accused were examined under Section 313 Cr.P.C. wherein they denied the prosecution case and claimed to be innocent. They, however, did not lead any defence. 6. On the basis of the material on record, the learned Sessions Judge acquitted the co-accused of the charges against them, but convicted and sentenced the accused as aforesaid. Hence the present appeal by the accused. 7. I have heard the learned counsel for the accused and the learned Assistant Advocate General for the respondent - State and have also gone through the records. 8. In view of the material on record it can be safely concluded that the prosecutrix, along with the accused and his co-accused Ishwar Dass, left the house of her parents on 23.3.1996. However, her version that she was made by the accused and the said co-accused to smell something whereby she was rendered unconscious is a sheer after thought, as she has made such a statement for the first time in the Court whereas her initial version vide Ex.DB is that the accused and the said co-accused caught hold of her from the arm and when she was going to raise hue and cry, her mouth was gagged and she was threatened that in case she raised hue and cry, she would be done to death. Because of this threat, she accompanied them. However, she has not supported this version in her statement in the Court. Because of this threat, she accompanied them. However, she has not supported this version in her statement in the Court. In these circumstances, her version that she was made to smell something which rendered her unconscious, being an after thought, is unreliable. There is no other evidence to show that the accused used any force to remove the prosecutrix from the house of her parents. 9. On the basis of the material on record, it is also indisputably established that the accused and the prosecutrix before finally reaching the house of co-accused Ashok Kumar, stayed in different houses for short durations and finally stayed in the house of co- accused Ashok Kumar. It is also estbalished on record that affidavits of the prosecutrix and the accused were attested by PW-5 in the Court premises at Dharamsala. In view of the statement of the prosecutrix read with the contents on the MLC Ex.PW-12/B regarding medical examination of the prosecutrix, the opinion Ex.PW-12/C, the statement of PW-12 and the statement of PW-13 read with MLC Ex.PW-13/A, there remains no doubt whatsoever that at the house of Ashok Kumar, accused committed sexual intercourse repeatedly with the prosecutrix. However, such sexual intercourse cannot be said to be without the consent or against the will of the prosecutrix for the reason that no signs of struggle or resistance were found on the person of the prosecutrix and the accused at the time of there medical examination. Even otherwise, had it been a case of forcible sexual intercourse without the consent of the piosecutrix or against her will the prosecutrix had more than enough opportunities to complain about such commission of offence against her. At the house of co-accused Ashok Kumar, she was not under confinement or restraint or threat and admittedly was at liberty to more anywhere se liked and the accused during their five days stay in the said house, used to remain outside the house to do manual jobs. The prosecutrix, however, did not chose to leave that house and to return to the house of her parents. When the accompanied the accused and co-accused to Kunalpathar, again she was not under any restraint or fear. The prosecutrix, however, did not chose to leave that house and to return to the house of her parents. When the accompanied the accused and co-accused to Kunalpathar, again she was not under any restraint or fear. Lastly, when she came to the court premises at Dharamsala, she was not under any threat or fear which could have prevented her to disclose about the alleged forcible acts of the accused to the persons and the authorities available within the Court premises. In these circumstances by came safely inferred that the prosecutrix willingly accompanied the accused to and stayed with him at various places and was a consenting and willing partner to the acts and sex complained against. 10. In view of the above discussion, the deciding factor in the case is as to whether at the material time, the prosecutrix was below the age of consent/discretion or she had attained such age. 11. To prove that at the material time the prosecutrix was below to years of age, the prosecution relied on the statements of PW-I, PW-2, PW-3 and PW-14 and the documents, namely, certificate Ex.PW-14/A and the abstract of register Ex.PW-14/B issued by PW-14. Relying on this evidence, the learned Sessions Judge concluded that -X the relevant time the prosecutrix was aged 14 years three months. 12. PW-1 who lodged the FIR has stated that the prosecutrix was born in December 1981. He ever, she had not given the month and year of the birth of the prosecutrix while lodging the Fir but mentioned the age of the prosecutrix as 14 years. If simply suggests that while lodging the Fir, she was not in a position to state that the prosecutrix was born in December 1981. She has not stated even the date month and year of the occurrence and simply stated that the occurrence took place about three years before. Had she the ability to remember and state the days, months and years even of important event, she ought to have stated the day, month and year of the occurrence. At the time of making statement on 5.4.1999, she claimed to be 35 years of age. Thus, she herself might have been born sometimes in the year 1964. she bad stated that she was married at the age of 15 years in 1973. If so, she was born in the year 1958. At the time of making statement on 5.4.1999, she claimed to be 35 years of age. Thus, she herself might have been born sometimes in the year 1964. she bad stated that she was married at the age of 15 years in 1973. If so, she was born in the year 1958. Thus, the different dates given by her are unreliable. 13. PW-3 has stated that the prosecutrix was born on 16.12.1981. He had also not given the precise date of the occurrence and his coming to know about it. It is doubtful that he could remember the exact distant date of birth of prosecutrix but not the recent dates which are of equal importance. 14. According to the prosecutrix, at the relevant time she had appeared in 7th standard examination. She has further admitted that she had once failed in 5th Standard examination. Her mother (PW-1) claims that the prosecutrix never failed in any examination. Father of the prosecutrix (PW-3) has stated that at the relevant time, she had appeared in 6th class. These contradictions in their statements show that they have not truthfully stated that facts which are material to appreciate the evidence regarding age of the prosecutrix. Thus, their statements regarding age of the prosecutrix are highly doubtful and unreliable. Even the learned Sessions Judge had not placed absolute reliance on their statements and had relied on entry in the register Ex.PW-14/B to conclude that the prosecutrix at the relevant time, was 14 years three months of age, PW-14 had issued the abstract of the register Ex PW-4/B and the age certificate Ex.PW-14/A. The basic document being ex.PW-4/B. 15. It was contended by the learned counsel for the accused that entries in Ex.PW-14/B are not proved to be relating to the prosecutrix and this record is not properly maintained, therefore, no reliance could be placed on the contents of Ex.PW-14/B and certificate Ex,/PW-14/A issued on its basis, more so, when the prosecution had withheld the school certificate of the prosecutrix though admittedly obtained and due to its failure to get expert opinion about the denial, clinical and skeleton age of the prosecutrix. On the other hand, the learned Assistant Advocate General had argued that the entries in the register extract whereof is Ex.PW-14/B are maintained by the public officials in the discharge of their official duties, therefore, entries therein carry presumption of truth. On the other hand, the learned Assistant Advocate General had argued that the entries in the register extract whereof is Ex.PW-14/B are maintained by the public officials in the discharge of their official duties, therefore, entries therein carry presumption of truth. Therefore, if had rightly been relied by the trial court to conclude that the prosecutrix was born on 16.12.1981 and thus, was below the age of consent/discretion at the material time. 16. It is true that the public records maintained by the public officials in the discharge of their official functions in accordance with law, shall be presumed to be correct. However, such presumption is not conclusive but is rebuttable. In case it is not shown that such records is a public record, required to be maintained and has been maintained as per the direction of law and is devoid of any illegality or irregularity in maintaining the same, it cannot be presumed to be correct. In the case in hand, PW-14 has not stated as to what is the nomenclature of the register of which Ex.PW-14/B is an extract. The entries in the register admittedly had not been made by him. It does not contain any page. It has admittedly some addition made in the relevant entry. Ex.PW-14/B shows that a female child Guddi Kumari, daughter of Jagan Nath, Caste Lohar was born in Sadwan on 16.12.1981. Abstract Ex./PW-I4/B had admittedly been issued on the basis of a police application requesting for issue of birth certificate of Sonu Devi daughter of Jagan Nath, Caste Dhiman resident of Sadwan. Evidently, there is difference in the names and caste of the female child regarding whom entry in Ex.PW-14/B has been made and the prosecutrix. There is no explanation by PW-14 as to how he was satisfied that the entries vide Ex.PW-14/B and certificate Ex.PW-14/A contain the particulars of the prosecutrix and not of any other girl. These documents are further rendered suspicious because of the register having not been maintained in the prescribed manner inasmuch as it does not contain leaf- certificate and pages but contain unexplained additions. Therefore, these documents could not be relied to ascertain the correct date of birth of the prosecutrix. 17. There are circumstances which strengthen the above conclusions. There is no dispute that the prosecutrix was a student at the material time. Therefore, these documents could not be relied to ascertain the correct date of birth of the prosecutrix. 17. There are circumstances which strengthen the above conclusions. There is no dispute that the prosecutrix was a student at the material time. Raghuvir Singh, Inspector (PW-15), the investigating officer in the case, at one stage of his cross examination, denied the fact that he had gone to the concerned school to get the age certificate of the prosecutrix. However, on further cross examination, he had admitted that he had gone to get such a certificate but there was difference in the entries regarding the age of the prosecutrix in the school record and the panchayat record. Thus, the school certificate does not appear to have been obtained and produced in evidence. In the absence of any explanation to show that for any reason the school certificate was not material and relevant to prove the age of the prosecutrix an inference adverse to the prosecution has to be drawn to the effect that had such certificate been produced, that would have demolished the prosecution version regarding age of the prosecutrix. In the given circumstances of the case, similar inference deserves to be drawn for failure of the prosecution to get clinical dental radiological opinion about the age of the prosecutrix. 18. On medical examination of the prosecutrix PW-12 found that her secondary sex characters were developed. PW-5 has also stated that when the prosecutrix got the affidavit attested, she appeared to be about 20 years of age. Prima facie these facts also suggest that at the relevant time, prosecutrix was not of the age claimed by the prosecution. 19. In view of the above discussion, it can be safely concluded that there is no cogent, reliable and trustworthy evidence on the record to prove that at the relevant time the prosecutrix was below the age of consent/discretion. In the absence of such evidence, the accused could not be convicted under Sections 363,366 and 376 IPC. Therefore, the impugned conviction and sentence are liable to be set aside. 20. As a result, this appeal is allowed. The impugned conviction and sentence are set aside and the accused is acquitted of the offences under Sections 363,366 and 376 IPC. 21. The accused is in jail undergoing the sentence. He be set at liberty forthwith unless required to be detained under any other process of law. 20. As a result, this appeal is allowed. The impugned conviction and sentence are set aside and the accused is acquitted of the offences under Sections 363,366 and 376 IPC. 21. The accused is in jail undergoing the sentence. He be set at liberty forthwith unless required to be detained under any other process of law. Fine, if recovered, be refunded.