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2013 DIGILAW 394 (HP)

State of Himachal Pradesh. v. Hans Raj

2013-05-06

SURINDER SINGH, V.K.SHARMA

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JUDGMENT Surinder Singh, J (oral): The respondent was prosecuted and acquitted for the offences punishable under Sections 366 and 376 of the Indian Penal Code. The State felt aggrieved by the impugned judgment of acquittal, as such, filed the instant appeal. 2.Heard and gone through the record. In short, the prosecution case can be stated thus. The prosecutrix (PW3) is the eldest daughter of her parents. In the year 2004, she was studying in Matric. Her date of birth is stated to be 26.4.1989. (ii) On 30.3.2004, the prosecutrix was found missing from her parental house. PW2 Mina Ram, her father made a hunt for her, but in vain. For the last about one month, the accused was working as a Carpenter in the house of Mina Ram. He after completing the work and settlement of accounts had left the place. (iii) PW2, the father of prosecutrix came to know 2/3 days before lodging the report after one month of her leaving the house that the prosecutrix was seen roaming with the accused. (iv) Police alongwith the father of the prosecutrix visited the house of the accused at village Bijni (Mandi) recovered her and handed over to her father vide memo Ext.PW2/B. (v) The accused was arrested and he was got medically examined. His MLC is Ext.PW5/B. As per report, he was found fit to perform sexual intercourse. (vi) The prosecutrix was also got medically examined from PW1 Dr. Gita Kaul. She did not find any external or internal injury on the body of the prosecutrix, but the pregnancy test was found positive. She was also referred for radiological age to PW12 Dr. P.K. Soni. On the basis of the fusion of bone her radiological age was opined to be between 14 to 16 years including the standard variation of plus and minus of two years. The report is Ext.PW12/A. The semen was detected on the vaginal slides of the prosecutrix. The forensic report is Ext.PW1/B. 3. After completing the investigation, challan was presented in the Court for the trial of the accused for the offences aforesaid to which he pleaded not guilty and claimed trial. Prosecution examined its witnesses and the accused was also examined under Section 313 of the Code of Criminal procedure. He denied the circumstances put to him. After completing the investigation, challan was presented in the Court for the trial of the accused for the offences aforesaid to which he pleaded not guilty and claimed trial. Prosecution examined its witnesses and the accused was also examined under Section 313 of the Code of Criminal procedure. He denied the circumstances put to him. According to him, he was falsely implicated by the father of the prosecutrix to deprive him of his balance money to which he owed. To prove his defence, he examined Shri Damodar as DW1 4. Learned trial Court on appreciating the evidence adduced on record did not find any cogent and reliable evidence with respect to the age of the prosecutrix. PW12 Dr. P.K. Soni, the Radiologist in his cross-examination stated that the prosecutrix could be 17 years at the time of her examination. Further the birth certificate issued on the basis of record submitted to the office of Chief Medical Officer, sought to be proved from PW6 Smt. Som Latta, was not inspiring confidence. The statement of the prosecutrix was also dicey as far as her pregnancy is concerned, according to the doctor, prosecutrix was pregnant, but the prosecutrix denied this fact and further that during the period more than a month, she remained at various places roaming with the accused. She had an opportunity to raise hue and cry and complain either to the villagers or the police, but did not do so; these circumstances were held clear indicators of the fact that there is element of consent inherent in the conduct of the prosecutrix for the purpose of going from place to place and indulge in sexual intercourse with the accused, coupled with the fact of undue delay in lodging the FIR. 5. We have reassessed the evidence on record. Legally the delay in lodging the FIR is not itself fatal in a case of the present type, if the prosecution story as alleged is found to be true. In this case, the age of the prosecutrix assumes importance. For that 2 013 (SUP) State of Himachal Pr adesh. Versus Hans Raj 2139 learned Assistant Advocate General has mainly backed up the statements of PW2 Mina Ram father of the prosecutrix who stated that the prosecutrix at the time of occurrence was 14 years 10 months and also on the ossification report proved by PW12 Dr. PK. For that 2 013 (SUP) State of Himachal Pr adesh. Versus Hans Raj 2139 learned Assistant Advocate General has mainly backed up the statements of PW2 Mina Ram father of the prosecutrix who stated that the prosecutrix at the time of occurrence was 14 years 10 months and also on the ossification report proved by PW12 Dr. PK. Soni as well as statement of PW6 Smt. Soma Latta, an official of the office of Chief Medical Officer. These statements are open for criticism. 6. Insofar as the father of the prosecutrix is concerned, he has given the age of the prosecutrix less than 15 years as aforesaid. He did not make any reference that the birth of the prosecutrix was also got registered in the Panchayat records. Further PW2 Dr.P.K. Soni in cross-examination admitted the suggestion given by the accused that the age of the prosecutrix could be between 13 to 17 years. His statement is opinion evidence. 7. Now the most important evidence is that of PW6 Smt. Som Latta by whom the birth certificate Ext.PW6/A is sought to be proved. She prepared the said certificate on the basis of the record made available to her in the office of the Chief Medical Officer, Kullu. She admitted that the Birth and Death Register is maintained by the Secretary of Gram Panchayat concerned, thereafter it is sent to the Chief Medical Officer’s office. The certificate is issued by the CMO of the District as the Registrar birth and Death in every district. According to her, there was no paging in the birth register nor it was verified by any Officer of the Gram Panchayat or the CMO. The state of entry, which is made in the register qua the prosecutrix as stated by this witness is that the name of the prosecutrix has been shown entered at Sl.No.36, whereas, she admitted that Sl.No.35 of the register is struck off by drawing line as having been incorrectly made, whereas, on the next page, serial No.38 has been changed to 40 and Sl.No.91 of the register, which is last entry is also struck off by drawing a line and she could not explain as to who had done it. However, she admitted that about the correctness of the entry made in the register could only be stated by the Secretary concerned. 8. However, she admitted that about the correctness of the entry made in the register could only be stated by the Secretary concerned. 8. Confronted with the above situation, learned Assistant Advocate General submitted that the certificate Ext.PW6/A prepared by PW6 Smt. Som Latta and issued by the Chief Medical Officer under his signature is a relevant piece of evidence and the author thereof is not required to be examined in view of the judgment passed by the Supreme Court in Shail Mehboob Ali v. The Commissioner of Police, Hyderabad and Secunderabad and others [1991 Cri.L.J. 1], therefore, the prosecution is not obliged to examine the author of this entry and the prosecutrix has been proved to be less than 15 years of age at the time of occurrence. 9.We have examined the above submissions of the learned Assistant Advocate General, but we are not in agreement with such a submission in the above factual backdrop. 10. It is true that when the entry is made in the birth and death register by the Secretary of the Gram Panchayat in official discharge of his duty, it is relevant evidence under Section 35 of the Indian Evidence Act to prove such an entry and it is definitely not necessary that the author thereof should be examined in the Court. But, in the instant case, PW6 Smt. Som Latta aforesaid has failed to show that the said register was being maintained in the Panchayat in the official discharge of duty. There are lot of cuttings in the said register, it was not paged nor signed by either any Panchayat Officer or by the Officer-in-charge when received in the CMO’s office. Even the serial numbers of the entries are also tampered with as aforesaid. Thus, the relevancy of evidence would not determine its value. Though the said certificate is a relevant evidence, but in the above circumstances, what value should be attached to it, is a different question connected with the facts adduced. 11. Even the serial numbers of the entries are also tampered with as aforesaid. Thus, the relevancy of evidence would not determine its value. Though the said certificate is a relevant evidence, but in the above circumstances, what value should be attached to it, is a different question connected with the facts adduced. 11. Therefore, in our opinion, when the entries are dicey, the register is not paged and verified, either the informant or author of the said entry should have been examined by the prosecution to remove all doubts and render plausible explanation with respect to the entry connected it with the prosecutrix, therefore, we are unable to place any reliance with respect to the correctness of the date of birth of the prosecutrix as mentioned in the said certificate. Further PW12 Dr. P.K. Soni as already stated above has clearly admitted the suggestion in defence that the prosecutrix at the relevant time could of 17 years of age i.e. which is above the age of discretion. 12. Further the prosecutrix stated in the Court that the accused was doing the carpenter work in their house for the last two months and she used to take the meals for him and the accused had committed sexual intercourse with her 2-3 times and after about 3-4 days her menstruation stopped. Thereafter, the accused told her to accompany him to solemnize marriage and in that pursuit on 30th May, 2004 they visited the sister’s house of the accused at Ropar where she remained for three days, thereafter stayed in the house of the accused till she was recovered by the police. She admitted that the accused was of the same caste and had acquaintance from the day when he was working with her uncle Chunni Lal before he did carpentering in her house. Further while leaving her house, she undertook one hour journey on foot to the road head at Sarsari. From there, they took lift in a light vehicle to Ropar without any stoppage in between. She also stated that the place at Ropar, where she lived with the accused was thickly populated and she did not disclose to anyone about her kidnapping by the accused. Even while living in the house of the accused, she did not disclose anything to the family members of the accused regarding incident nor they enquired about it. She also stated that the place at Ropar, where she lived with the accused was thickly populated and she did not disclose to anyone about her kidnapping by the accused. Even while living in the house of the accused, she did not disclose anything to the family members of the accused regarding incident nor they enquired about it. She categorically denied that she was carrying any pregnancy. She was also confronted to this effect with her earlier statement made to the police, to which she flatly denied, which fact goes contrary to the Doctor’s opinion based upon pregnancy test. 13.The prosecutrix is a solitary witness but the prosecution story as narrated by her is most- improbable and unnatural, in the circumstances stated above, which cannot be used to base the conviction of the accused. In this behalf reference can be made to a recent judgment of Supreme Court rendered in Rajesh Patel v. State of Jharkhand [JT 2013 (4) SC 110]. 14.After going through the statement of the prosecutrix with due care and caution, we do agree with the learned trial Court that the circumstances on record are the clear indicator of the fact that there is an element of tacit consent inherent in the conduct of the prosecutrix to allow the accused to have sex with her. Even her father did not lodge report with due promptness despite the fact that even prior to 4 days of lodging the FIR, she was stated to have been seen in the company of the accused. The prosecutrix as well as her father had given a coloured version to the prosecution story to conceal their fault for obvious reasons. As such, the prosecution has failed to prove the charges against the accused in accordance with law. Thus, the accused was rightly given the benefit of doubt and the findings of acquittal are reasonable and borne out from the record. As such, the acquittal of the accused cannot be interfered with, hence the appeal filed by the state is dismissed. 15.The respondent is discharged of his bail bonds entered upon by him at any time during the proceedings of this case. Send down the records.