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Himachal Pradesh High Court · body

2005 DIGILAW 173 (HP)

SHYAM KUMAR v. STATE OF HIMACHAL PRADESH

2005-05-30

M.R.VERMA

body2005
JUDGMENT M.R. Verma, Judge: This appeal has been preferred by the appellant-accused (hereafter referred to as the accused) against the judgment dated 29.11.2003 passed by the learned Sessions Judge, Kinnaur Sessions Division at Rampur whereby the accused has been convicted and sentenced as follows:- Sr. No Penal Provision Sentence imposed. 1. Section 363, IPC Simple imprisonment for 7 years and fine Rs. 6,000/- in default of payment fine further imprisonment for six months. 2. Section 366 IPC. Simple imprisonment for 7 years and fine Rs. 6000/- in default of payment of fine further simple imprisonment for six months. 3. Section 376 IPC. Simple imprisonment for 7 years and fine Rs. 6000/- and in default of payment of fine further simple imprisonment for six months. 4. Section 506 IPC. Simple imprisonment for two years and fine Rs. 2000/- and in default of payment of fine simple imprisonment for two months. 2. Case of the prosecution in brief is that the prosecutrix (PW-1) was studying in 7th standard in Middle School, Urman and was residing in a quarter at Jogni. On 22.11.2002, when was found missing and the matter about her missing was reported by Roshan Lal (PW-2), brother of the prosecutrix, at Police Station, Rampur, vide report Ext.PW-7/A on 27.11.2002. On 9.1.2003, a letter Mark PW-2/A purporting to have been written by DK Lala Chawai, Tehsil Ani, was received by Mohar Singh (PW-4), father of the prosecutrix. As per the contents of the said letter, a girl had been abducted from their area and attempts were being made to sell her. On the basis of a raid conducted by the police accompanied by PW-2, the prosecutrix was recovered from the quarter of the accused in village Chawai vide memo Ext.PW-2/B and on enquiries made by PW-2, PW-1 revealed that on the evening of 21.11.2002, the accused met her at Jogni and asked her to accompany him to Rampur and to return to Jogni on 22.11.2002. Thus, the accused on 22.11.2002 took the prosecutrix from Jogni to Nogli from where she was removed to Chawai. At Chawai, the accused kept her in his quarter, criminally intimidated her that in the event of her attempting to run away she would be done to death and because of the threat the prosecutrix could not return home. Thus, the accused on 22.11.2002 took the prosecutrix from Jogni to Nogli from where she was removed to Chawai. At Chawai, the accused kept her in his quarter, criminally intimidated her that in the event of her attempting to run away she would be done to death and because of the threat the prosecutrix could not return home. One day the prosecutrix narrated about her abduction to Rajinder Sood (PW-3), who wrote a letter to her father. While with the accused, the prosecutrix was subjected to rape by him. PW-2 accordingly reported the matter to the police vide report Ext.PW-2/A on the basis of which FIR Ext.PW-14/A was recorded at Police Station, Rampur. During investigation, shirt and Salwar of the prosecutrix and a Kambal were taken in possession vide memo Ext.PW-3/A from nside the premises from where the prosecutrix was recovered. Letter Mark PW-2/A was taken in possession vide memo Ext.PW-4/A. The prosecutrix was medically examined by Dr. Maninder Kumar (PW-10) and the MLC issued by him about such examination is Ext.PW-10/A. At the time of medical examination of the prosecutrix,l her undergarments containing stands, smear slide and pubic-hair were preserved and handed over to the police. On arrest, the accused was also medically examined by PW-10 vide MLC Ext.PW-10/B and his underwear and pubic-hair were also preserved and handed over to the police by PW-10. The Investigating Agency also collected evidence regarding of the prosecutrix consisting of certificate Ext.PW-6/A, copy of the Pariwar Register ExtPW-6/B and the date of birth of certificate Ext.PW-8/A issued by the Headmaster, Government Middle School, Urman, according to which the date of birth of the prosecutrix is 9.1.1987. The underwear, slide, pubic-hair, shirt and Salwar of the prosecutrix; underwear and pubic-hair of the accused and Kambal were sent for analysis to the State Forensic Science Laboratory, and as per the report Ext.PW-T4/C from the laboratory, no blood or semen was found in the underwear, slide, pubic-hair, shirt of the prosecutrix and the pubic-hair of the accused. On the underwear of the accused and Salwar of the prosecutrix human semen was found and on the Kambal human blood was found. On completion of the investigation, a charge sheet against the accused was filed by SHO, Police Station, Rampur, on the basis of which the accused came to be tried on a charge under Sections 363, 366, 376 and 506, I PC. 3. On completion of the investigation, a charge sheet against the accused was filed by SHO, Police Station, Rampur, on the basis of which the accused came to be tried on a charge under Sections 363, 366, 376 and 506, I PC. 3. To prove the charge against the accused, prosecution examined 15 witnesses. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure wherein he denied the case of the prosecution as a whole and claimed to be innocent and having been falsely implicated in the case. The accused, however, did not lead any defence. 4. On consideration of the material on record, the trial Court convicted and sentenced the accused as aforesaid. Hence, this appeal by the accused. 5. I have heard the learned counsel for the accused and the learned Deputy Advocate General for the respondent-State and have also gone through the records. 6. It was contended by the learned counsel for the accused that the statement of the prosecutrix is not corroborated by any cogent and reliable evidence and, on the contrary, is controverted by the evidence led by the prosecution itself. It was further contended that primary evidence about the age of the prosecutrix has been withheld and the evidence produced in this regard is highly unreliable and the prosecutrix, at the relevant time, is not proved to be below 18 years of age nor it is proved that she was kidnapped by the accused or was subjected to sexual intercourse without her consent and against her will. Therefore, contended the learned counsel, the impugned conviction and sentence cannot be sustained. 7. On the other hand, the learned Deputy Advocate General while supporting the reasoning and conclusions of the trial Court as in the impugned judgment contended that in view of the material on record the charge was duly proved against the accused and he has been rightly conviction and sentenced. 8. To prove the heads of charges against the accused under Sections 363 and 366, IPC, one of the essential ingredient to be proved by the prosecution is that the prosecutrix at the time of her alleged kidnapping was below 18 years of age. 8. To prove the heads of charges against the accused under Sections 363 and 366, IPC, one of the essential ingredient to be proved by the prosecution is that the prosecutrix at the time of her alleged kidnapping was below 18 years of age. To prove the age of the prosecutrix, the State relied on the statement of the prosecutrix (PW-1), her brother (PW-2), her father of (PW-4), Assistant Secretary of concerned Panchnayat (PW-6) read with certificate Ext.PW-6/A and copy of Pariwar Register Ext.PW-6/B, and PW-8, Trained Graduate Teacher of the school of which the prosecutrix was a student, read with birth certificate Ext.PW-8/A. 9. According to the prosecutrix she was 15 years of age at the relevant time. So is stated by PW-2. According to PW-4 the prosecutrix at the relevant time was below 16 years of age. The evidence of all these three witnesses about the age of the prosecutrix is not reliable. PW-4, despite being the father of the prosecutrix, had not stated about her exact age and had made a vague statement that at the relevant time she was below 16 years of age. He is admittedly not in a position to state the date of birth of the prosecutrix. PW-1 could not state about her age when she was admitted in the school and her statement about her age cannot be said to be dependable. PW-2 has contradicted himself about the age of the prosecutrix in his cross-examination when he states that the prosecutrix is younger to him by 5 or 6 years. As per the record relied by the prosecution the date of. birth of PW-2 is 1.8.1976. If prosecutrix is younger to him by 5 to 6 years then at the relevant time she must be about 20 or 21 years of age. Thus, PW-2 not only contradicts his own statement about the age of the prosecutrix but also contradicts the statements of PW-1 and PW-4. 10. In law the age of a person as recorded in the Matriculation Certificate carries a presumption of correctness. Such certificate is issued by the competent authority that is why its contents including date of birth are presumed to be correct There is, however, no rule or law, nor could be cited for the prosecution, which authorized a principal, headmaster or a teacher of a school or college to issue "age certificate". Such certificate is issued by the competent authority that is why its contents including date of birth are presumed to be correct There is, however, no rule or law, nor could be cited for the prosecution, which authorized a principal, headmaster or a teacher of a school or college to issue "age certificate". It is record of admission of a student containing age of the student or an attested copy thereof which may carry presumption of correctness, if it is proved that the age as recorded in the school or college records came into being at the instance of the person expected to know the correct age of the student. In this case certificate of date of birth Ext.PW-8/A purporting to have been issued by a headmaster of the School of which PW-1 was a student immediately before the occurrence, has been produced. According to Ext.PW-8/A, date of birth of the prosecutrix is 9.1.1987. This certificate is based on admission withdrawal register and in fact has been issued by PW-8 who is admittedly not the Headmaster but a Trained Graduate Teacher of the concerned School. Copies of entries in the relevant register or the age proof on the basis of which entries in the register were made, have not been produced. The application for admission and age-proof attached therewith has also not been produced. Thus, primary evidence has been withheld, and certificate issued by a person not shown competent to issue the same and admittedly not in a position to state as to when the prosecutrix was admitted in the school, has been brought on record which cannot be said to be a primary and reliable piece of evidence. 11. In Nek Ram versus State of H.P. (Latest HLJ 2004 (HP) 400), while dealing with almost similar situation, this Court held as under: "10. The certificate mark PW-3/A purporting to be the School Leaving Certificate of the prosecutrix, is not proved in accordance with law and has been marked and not admitted in evidence as an exhibit. PW-3 who was examined to prove mark PW-3/A, has stated that he did not issue it but it had been issued in his absence by some other person officiating as Headmaster of the concerned school. PW-3 who was examined to prove mark PW-3/A, has stated that he did not issue it but it had been issued in his absence by some other person officiating as Headmaster of the concerned school. He has though stated that the certificate is signed by Shakti Chand who had issued it as per school record, but he has no base of state that this certificate had been issued on the basis of the school record. He has admitted that he had been seen the original record nor the prosecutrix was admitted to the school during his tenure or in his presence nor he is aware as to when she was admitted in the school. He is unaware as to who admitted the prosecutrix in the school and he is not in a position to state that the prosecutrix had failed in the examinations 2 or 3 times. Thus, the certificate mark PW-3/A read with statement of PW-3 is not proved in accordance with law and the contents thereof, are of no help to the prosecution." 12. In view of the above position in law, certificate Ext.PW-8/A cannot be a said to be a reliable piece of evidence. 13. PW-6 has stated that he had "supplied" certificate Ext,PW-6/A and copy of family register Ext.PW-6/B which he claims to have been prepared correctly as per the original record. There is no dispute that under the Panchayati Raj Act, the Panchayat is required to maintain the records of births and deaths within its local limits. To maintain such records the Panchayat is mandated by law to maintain Birth and Death Register in prescribed form wherein all births and deaths within the local limits of the Panchayat have to be recorded alongwith the date of birth or death as the case may be. Thus, the primary evidence of date of birth of death of a person is the entry in the said register. Such entry or a certificate based on such entry will undoubtedly carry the presumption of truth. Any other record which may be maintained by the Panchayat, thus, cannot be primary evidence of the date of birth or death of a person. For similar reasons Ext.PW-6/B, a copy of Pariwar Register is not the primary evidence of the date of birth of a person. 14. Any other record which may be maintained by the Panchayat, thus, cannot be primary evidence of the date of birth or death of a person. For similar reasons Ext.PW-6/B, a copy of Pariwar Register is not the primary evidence of the date of birth of a person. 14. In Nek Rams case (supra) while dealing with the similar situation, this court held as under: - "11..PW-5 Secretary of Gram Panchayat Taklech has stated that he had issued the certificate Ext.PW-5/A which is correct as per the original record. As per certificate Ext.PW-5/A, the date of birth of the prosecutrix is certified as 3.5.1986 on the basis of the entries in the Pariwar Register. Thus, the certificate Ext.PW-5/A in itself is not the basic document regarding date of birth of the prosecutrix but is based on the entries made in the Pariwar Register allegedly maintained by the Panchayat. Admittedly, such register had not been produced in the Court. As per the provisions of the H.P. Panchayati Raj Act, the Panchayat is required to maintain a Death and Birth Register wherein the dates of Birth and death of a person in the Panchayat are required to be entered. The purpose of the Pariwar Register is to contain details of the members belonging to one family, therefore, Pariwar Register is not the basic document regarding date of birth of a person within that Panchayat. In fact, the basic record of the dates of death and birth in the Panchayat is admittedly Death and Birth Register which is required to be officially maintained by virtue of the provisions of the Panchayati Raj Act. It is admitted case of PW-5 that Dharkali Panchayat maintains Death and Birth Register which is available with the Panchayat. No reason, however, is forthcoming as to why PW-5 did not issue the age certificate of the prosecutrix on the basis of such Death and Birth Register. In these circumstances, even certificate Ext.PW-5/A is not a reliable piece of evidence." 15. in view of the above position in law, certificate Ext.PW-6/A and Ext.PW-6/B cannot be said to be reliable. 16. It may be pointed out here that Ext.PW-6/A is admittedly issued on the basis of the entries in Ext.PW-6/B. PW-6 has stated that the Pariwar Register containing entries Ext.PW-6/B was started in the year 1988. in view of the above position in law, certificate Ext.PW-6/A and Ext.PW-6/B cannot be said to be reliable. 16. It may be pointed out here that Ext.PW-6/A is admittedly issued on the basis of the entries in Ext.PW-6/B. PW-6 has stated that the Pariwar Register containing entries Ext.PW-6/B was started in the year 1988. Though at one stage PW-6 has stated that entries in the Pariwar Register were made from the previous register but finally admitted that he is not aware as to on what basis the entries in the Pariwar Register had been made. Further he is not aware as to who had made such entries. Admittedly, there is nothing to show the basis of these entries or at whose instances these entries have been made. It is admittedly by PW-6 that the Birth and Death Register is not available with the concerned Panchayat. Thus, entries in Ext.PW-6/B, besides not being the primary evidence, are not proved to have been made on some authentic basis. 17. It may also be noticed here that entries in Ext.PW-6/B about dates of birth of the members of the family members of PW-1 are of highly suspicious nature. In Ext.PW-6/B date of birth of PW-4 is given as 20.12.1960 whereas year of birth of the mother of the prosecutrix is mentioned as 1957. Thus, she is shown elder to her husband by about 3 years. The date of birth of Saroj their first living issue is mentioned as 12.4.1975 which means PW-4 was married when he has hardly 14 years of age. This appears to be improbable and renders Ext.PW-6/B unreliable and as a consequence Ext.PW-6/A issued on the basis of Ext.PW-6/B is also rendered equally unreliable. 18. The above discussion leads to the conclusion that there is cogent and reliable evidence to prove that the prosecutrix at the relevant time was below 18 or 16 years of age. 19. The version contained in Ext.PW-2/A is that the accused removed the prosecutrix from jogni on the pretext to roam about in Rampur and return to jogni in the evening. However, he took her from jogni to Nogli and then to Chawai where she was kept in the quarter, criminally intimidated and raped. This report Ext.PW-2/A was made by PW-2 claiming that the facts stated therein were disclosed to him by the prosecutrix at the time of her recovery. However, he took her from jogni to Nogli and then to Chawai where she was kept in the quarter, criminally intimidated and raped. This report Ext.PW-2/A was made by PW-2 claiming that the facts stated therein were disclosed to him by the prosecutrix at the time of her recovery. This version about the manner of removal of the prosecutrix by the accused is not supported by the prosecutrix as such. According to her, she alone came from jogni to Rampur where accused met and took her to Gugra where she resided for one month and was subjected to rape: It is further in her evidence that from Gugra she was brought to Chawai where she resided for about one month before her recovery and was continuously subjected to rape by the accused and was also asked not to disclose the incident to any one failing which she would be killed. Thus, the prosecutrix does not support the prosecution version that she was removed by the accused from Jogni where she used to reside of the relevant time. 20. The prosecutrix in her cross-examination has stated that while travelling in the bus to Gugra, she did not raise any alarm in the bus. She admittedly did not disclose to the occupants of the house at Gugra where she stayed for about one month that she was forcibly removed by the accused from Jogni or any other place. It is also her admitted case that while staying at Gugram the accused used to go outside for work and she used to remain in the quarter. If so, had she been removed by the caused by force, threat of inducement, she had the ample opportunity and time to make good her escape which she never attempted. As per her own admission, there were two other houses at Gugra, however, she did not make any complaint to the local persons residing in those houses. Similarly, while at Chawai, the accused admittedly had been going out for work during the day time. The prosecutrix, however, did not avail of the opportunity to escape. It is also admitted case of the prosecutrix that the accused used to meet her at Jogni but she did not complain to any one about such meetings. Similarly, while at Chawai, the accused admittedly had been going out for work during the day time. The prosecutrix, however, did not avail of the opportunity to escape. It is also admitted case of the prosecutrix that the accused used to meet her at Jogni but she did not complain to any one about such meetings. It is also admitted by her that she left Jogni at the request of the accused all alone and it is not her case that the accused forcibly removed her from Jogni. 21. The prosecutrix, not doubt, states that she has narrated about her kidnapping and commission of rape on her by the accused to Rajinder Sood (PW-3) in whose house the accused and the prosecutrix resided at Chawai and that it was PW-3 who wrote the letter Mark PW-2/A to her father. However, PW-3 has not supported the version of the prosecutrix on this count but, on the contrary, has stated that the prosecutrix did not disclose anything to him nor he is author of the letter Mark PW-2/A. 22. In view of the above, the heads of charge against the accused under Sections 362 and 366, IPC cannot be held to have been proved. 23. To constitute an offence of rape with a woman other than wife of the accused either the victim must be below 16 years of age or sexual intercourse with her by the accused must be against her will or without her consent Thus, it is essential for the prosecution to prove either of the aforesaid ingredients of the offence of rape before a person could be conviction under Section 376 IPG, which is one of the head of the charge against the accused. It may also be pointed out that it is well settled that the prosecutrix is not an accomplice but an injured/victim of the crime, therefore, her statement has great probative value and her evidence cannot be disbelieved. If otherwise confidence inspiring, merely because there is no corroboration of such statement. At the most, the Court may look for other evidence, which may lend assurance, short of corroboration, to the statement of the prosecutrix in case, however, the statement of the prosecutrix is not confidence inspiring, no implicit reliance can be laid and no conviction can be based on such a statement. 24. At the most, the Court may look for other evidence, which may lend assurance, short of corroboration, to the statement of the prosecutrix in case, however, the statement of the prosecutrix is not confidence inspiring, no implicit reliance can be laid and no conviction can be based on such a statement. 24. In Dilip and another versus State of Madhya Pradesh (2001 Cri.L.J. 4721), the Apex Court held as follows:- "12. The law is well-settled that the prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon and made the basis of conviction unless corroborated in material particulars. However, the rule about the admissibility of corroboration should be present to the mind of the judge. In State of H.P. V. Gian Chand , (2001 Cri LJ 2548), on a review of decisions of this Court, it was held that that conviction for an offence of rape case based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc., if the same is found to be natural, trustworthy and worth being relied on." It was further held: "14.............The court is finding it difficult to accept the truthfulness of the version of the prosecutrix that any sexual assault as alleged was committed on her in view of the fact that her narration of the incident becomes basically infirm on account of being contradicted by the statement of her own aunt and medical evidence and the report of the forensic science laboratory. The defence has given the suggestion in cross-examination for false implication of the accused persons which, however, have not gone beyond being suggestions merely. It is not necessary for us to dwell upon further to find out the probability of truth contained in the suggestions because we are not satisfied generally of the correctness of the story as told by the prosecutrix. We find it difficult to hold the prosecutrix in the case as one on whose testimony an implicit reliance can be placed." 25. It is in view of the above settled position in law that the evidence led by the prosecution to prove the head of charge against the accused under Section 376 IPC, has to be considered. 26. We find it difficult to hold the prosecutrix in the case as one on whose testimony an implicit reliance can be placed." 25. It is in view of the above settled position in law that the evidence led by the prosecution to prove the head of charge against the accused under Section 376 IPC, has to be considered. 26. The prosecutrix in her statement has nowhere specifically stated that the accused used force to compel her to have sexual intercourse with her. However, in her statement she was referred to the act of sexual intercourse with her by the accused as rape. Since she has not been proved below 16 years of age, therefore, the accused can be said to have committed rape on her only if he subjected her to sexual intercourse against her will or without her consent. However, it is also not specifically stated by her that the accused had repeated sexual intercourse with her without her consent or against her will. It is, however, implicit in the expression "rape" as used by the prosecutrix in her statement that she want to impute that she was subjected to sexual intercourse against her will or without her consent and has stated that once she resisted the commission of sexual act with her by the accused and that she sustained an injury on her chest. However, medical evidence does not lend any corroboration or assurance to this otherwise non-confidence inspiring version of the prosecutrix which is otherwise not supported by anything on record but, on the contrary, is contradiction by her version about the occurrence as given to the Medical Officer, who conducted her Medical Examiner, i.e. PW-10. According to PW-10 when he asked the prosecutrix about the event she stated as follows:- “That she was class VII student and was having affairs with a Nepali boy Shyam residing near her house. He proposed to marry her and she herself was willing to marry him. Therefore they ran away about 11/2 month back and have been residing at Chawai since then. Since they had been regularly indulging in sexual activities with mutual consent and had last sexual intercourse on previous night also. She had not changed under garments since then or has she taken both. No contraceptive has been used." 27. Therefore they ran away about 11/2 month back and have been residing at Chawai since then. Since they had been regularly indulging in sexual activities with mutual consent and had last sexual intercourse on previous night also. She had not changed under garments since then or has she taken both. No contraceptive has been used." 27. The aforesaid statement of PW-10, containing the disclosure made to him about the event by the prosecutrix, clearly and unambiguously disclose that the prosecutrix had been a consenting party to the acts of sex with her by the accused in which they had been indulging even before she left jogni. This evidence PW-10 Allas nowhere been called in question and disputed by the prosecution had, thus, has to be accepted as it is being a version as narrated by the prosecutrix to PW-10. 28. In view of the above, it cannot be held that the accused committed sexual intercourse with the prosecutrix without her consent or against her will. Thus, the head of charge under Section 376, IPC is also not proved. 29. In view of the above, it can also not be said that the accused ever criminally intimated the prosecutrix to kill her if she disclosed the incident to any one. Therefore, head of charge under Section 506, IPC cannot also held to have been proved. 30. In view of the above discussion and conclusions, the charge against the accused is not proved, therefore, the impugned conviction and sentence cannot be sustained. 31. As a result, this appeal is allowed and the impugned conviction and sentence are set aside and the accused is acquitted of the charge against him. 32. The accused, who is presently in jail undergoing the imprisonment awarded to him by the trial Court, be sent at liberty forthwith, if not required to be detained under any other process of law. Fine, if recovered, be refunded to the accused.