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2014 DIGILAW 604 (HP)

Ramesh Soni v. State of H. P.

2014-05-20

DHARAM CHAND CHAUDHARY

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JUDGMENT Dharam Chand Chaudhary, J. (Oral): This judgment shall dispose of all the three appeals having arisen out of the judgment dated 6.7.2013 passed by learned Additional Sessions Judge-II, Kangra at Dharamshala, whereby the principal accused namely Manohar Lal alias Pinka (appellant in Cr. Appeal No.4157 of 2013) has been convicted under Sections 363, 366 and 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 7 years and to pay Rs.5000/- as fine under Section 376 IPC; to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.3000/- under Section 366 IPC and to undergo rigorous imprisonment for 3 months and to pay Rs.1000/- as fine under Section 363 IPC. His co-accused Vinod Kumar (appellant in Cr. Appeal No.4108 of 2013) and Ramesh Soni (appellant in Cr. Appeal No.4065 of 2013) have been convicted under Sections 363 and 366 read with Section 120-B IPC and each of them sentenced to undergo rigorous imprisonment for 5 years under Section 366 read with Section 120-B IPC and to pay Rs.2000/- as fine and to undergo rigorous imprisonment for three years and to pay a fine of Rs.1000/- under Section 363 read with Section 120-B IPC. 2. All the accused have assailed the impugned judgment and findings of convictions and sentence recorded against each of them in these appeals being against the law and facts of the case. Also that learned trial Court has ignored and misconstrued the evidence available on record. The conduct of the prosecutrix that she travelled in the bus and visited several places in the company of principal accused, without raising any hue and cry and did not raise any protest against entering her name as Paramjit Kaur with her age as 24 years in the register of hotel DE-Hollywood Deluxe at Delhi at the instance of accused Manohar Lal, has also been highlighted. It has also been claimed that the evidence as has come on record by way of own testimony of the prosecutrix is not of such a nature that no corroboration thereto is required. 3. Adverting to the factual matrix, the prosecutrix PW-11 (name withheld), is daughter of PW-3 Balwant Singh. In the year 2011, she was a student of 10th Class and studying in Govt. High School, Khukhair, Tehsil Nurpur, District Kangra. Her father PW-3 was employed as a teacher and at that time was posted in Govt. 3. Adverting to the factual matrix, the prosecutrix PW-11 (name withheld), is daughter of PW-3 Balwant Singh. In the year 2011, she was a student of 10th Class and studying in Govt. High School, Khukhair, Tehsil Nurpur, District Kangra. Her father PW-3 was employed as a teacher and at that time was posted in Govt. Primary School, Bahi-Ka-Bag in District Chamba. On 2.9.2011, in the evening, she was present with her parents in her house at village Har Gatla, Tehsil Nurpur, District Kangra. Before her elopement, she lastly was noticed sitting and talking with her grand-father PW-8 Dharam Singh, in the verandah of the house around 8.30 p.m. After sometime, said Dharam Singh fell asleep. PW-3 Balwant Singh, father of the prosecutrix gave a call to her, but there was no reply and she was found missing from the house. On inquiry from PW-8 as to where the prosecutrix had gone, the said witness informed PW-3 that before he fell asleep, she was sitting and talking with him. She was searched in the house, however, not found available there. The matter was reported to the police of Police Station, Nurpur by PW-3 Balwant Singh on 3.9.2011 at 11.30 a.m. The involvement of accused Manohar Lal was suspected in enticing away the prosecutrix from her lawful guardianship. On the basis of this information, a case under Section 363 and 366 IPC was registered vide FIR No.326/2011 in Police Station, Nurpur. The prosecutrix was recovered on 5.9.2011 from the house of one Harnam Singh in village Niazpur, Tehsil Nurpur, District Kangra. 4. During the course of investigation, it transpired that on 2.9.2011, accused Manohar Lal came alongwith vehicle Tata-Sumo bearing Registration No. HP-38C-0589 to the house of the prosecutrix at village Har Gattla. The driver of the vehicle was accused Vinod Kumar. They blew horn, on which the prosecutrix came to the vehicle. She was made to board the same and taken to the house of accused Ramesh Soni at village Dhameta, to whom sister of accused Manohar Lal is married. The driver of the vehicle was accused Vinod Kumar. They blew horn, on which the prosecutrix came to the vehicle. She was made to board the same and taken to the house of accused Ramesh Soni at village Dhameta, to whom sister of accused Manohar Lal is married. Further allegations against the accused are that although sister of accused Manohar Lal asked the said accused to take the prosecutrix to the house of her parents and leave her there, as she was minor, however, accused Ramesh Soni asked accused Manohar Lal to take the prosecutrix to Delhi and bring her back as and when she attains the age of 18 years so that their marriage could be solemnized. Accused Manohar Lal alongwith prosecutrix thereafter boarded bus from Dhameta to Talwara. Accused Ramesh Soni was also with them. He alighted at Talwara, but accused Manohar Lal alongwith prosecutrix boarded another bus from Talwara to Delhi, where they stayed in room No.204 of hotel DE-Hollywood Deluxe. There accused Manohar Lal produced his driving licence in proof of his identification. The prosecutrix, however, could produce only the ticket of bus available with her. In the hotel, her name was disclosed as Paramjit Kaur with her age as 24 years. They stayed in that hotel during the night. Accused Manohar Lal allegedly subjected her to sexual intercourse during that night without her consent and against her will. On the next day, i.e. 4.9.2011, accused Manohar Lal brought her back to village Niazpur to the house of his sister Geeta Devi. The prosecutrix was made to stay there. How the prosecutrix happened to land in the house of Harnam Singh in the same village from where she was recovered by the police in the presence of her father, is not known as the investigation conducted in this case is silent qua this aspect of the matter. 5. The medical examination of the prosecutrix has been conducted by PW-1 Dr. Mini Sharma, MO, PHC, Ladori, Tehsil Nurpur. She has also been examined by an expert, i.e PW-2 Dr. Amod Kumar Singh, Gynecologist, CHC, Nurpur. During the course of investigation, the prosecutrix was referred for expert opinion qua her radiological age. It is PW-4 Dr. Raman Sharma, who has conducted the x-ray and in his opinion, the radiological age of the prosecutrix was 15 to 16 years at that time. 6. Amod Kumar Singh, Gynecologist, CHC, Nurpur. During the course of investigation, the prosecutrix was referred for expert opinion qua her radiological age. It is PW-4 Dr. Raman Sharma, who has conducted the x-ray and in his opinion, the radiological age of the prosecutrix was 15 to 16 years at that time. 6. Besides the medical evidence, PW-7Mangal Singh, a Trained Graduate Teacher of Govt. of Senior Secondary School, Kukher, has proved certificate Ext. PW7/A and stated that as per the school record, the date of birth of the prosecutrix is 25.5.1996. PW-12 Raju Ram is Secretary of Gram Panchayat, Jantrun, Tehsil Bhatiat, District Chamba. He has proved the date of birth certificate Ext. PW12/B and stated that the same was issued on the basis of Pariwar Register Ext. PW12/C. 7. Besides the evidence qua the age of the prosecutrix, as noticed hereinabove, the Investigating Agency has associated PW-3 Balwant Singh, father of the prosecutrix, his father PW-8 Dharam Singh and also the prosecutrix, who has stepped into the witness box as PW-11. PW-21 ASI Ram Nath is another material witness, who has conducted the investigation in this case. 8. PW-10 Sunil Kumar, Manager of Hotel DE-Hollywood Deluxe has proved the extract of register Exts. PW10/A and PW10/B and also the Bill of the hotel Ext. PW10/C. PW-5 Ashwani Kumar and PW6 Harnam Singh are witnesses to the recovery of the prosecutrix from the house of PW-6 Harnam Singh on 5.9.2011 and her entrustment to her father PW-3 Balwant Singh. They have proved the recovery and Supurdari memo. PW-13 Bidhi Chand is a witness to the recovery of driving licence of accused Manohar Lal vide recovery memo. Ext. PW13/A, whereas PW-14 Tarsem Singh is also a formal witness, as it is he, who had taken into possession the driving licence Ext. P1 of the said accused. PW-15 Constable Vijay Katoch has witnessed the proceedings conducted by the Investigating Officer at Delhi. PW-16 Rajinder Sogha is a photographer, whereas PW-17 HHC Satish Singh is a witness to the disclosure statement Ext. PW15/A, whereby accused Manohar Lal has disclosed the name of places/Hotel where he stayed with the prosecutrix. PW-18 SI Surjit Kumar has registered FIR Ext. PW3/A in this case and PW-19 H.C. Budhi Singh was posted as MHC in Police Station, Nurpur at the relevant time. PW15/A, whereby accused Manohar Lal has disclosed the name of places/Hotel where he stayed with the prosecutrix. PW-18 SI Surjit Kumar has registered FIR Ext. PW3/A in this case and PW-19 H.C. Budhi Singh was posted as MHC in Police Station, Nurpur at the relevant time. PW-20 Inspector Brij Mohan, the then SHO Police Station, Nurpur is also a formal witness, as he has only prepared the challan and presented the same in the Court. 9. Learned trial Court on analyzing the material as well as the documentary evidence on record and also hearing learned Public Prosecutor as well as learned defence counsel, has convicted and sentenced all the three accused, as pointed out at the very outset. 10. Shri Anup Chitkara, learned counsel assisted by S/Shri Vinay Thakur and Virender Singh Rathore, Advocates, has urged that the present is a case where the prosecution has miserably failed to bring the guilt home to the accused. He has pointed out that the prosecutrix was not abducted or kidnapped from her lawful guardianship and rather she voluntarily accompanied accused Manohar Lal and boarded Tata Sumo bearing registration No. HP-38C-0-589. It has also been urged that there is no legal and acceptable evidence, suggesting that the prosecutrix has been sexually assaulted by accused Manohar Lal. It has further been contended that no legal and acceptable evidence suggesting that the prosecutrix was minor below 16 years of age at the time of occurrence, has come on record. In the alternative, it has been urged that even if this Court arrives at a conclusion that the prosecutrix was below 16 years of age, she having attained the age of discretion, in the given facts and circumstances no offence can be said to have been committed by the accused persons. 11. On the other hand, learned Additional Advocate General while taking this Court to the statement of the prosecutrix and also that of her father and grand-father coupled with the documentary evidence qua the age of the prosecutrix having come on record, has contended that learned trial Court has not committed any illegality and irregularity while convicting the accused vide judgment impugned in this appeal. 12. It is seen that the offence allegedly committed by the accused is not only heinous but grievous also being against a minor girl. 12. It is seen that the offence allegedly committed by the accused is not only heinous but grievous also being against a minor girl. Since the women on account of variety of reasons are still in disadvantageous position and being subjected to such like atrocities frequently, therefore, with a view to curb the offences against them, the Apex Court and various High Courts have laid down legal principles in various judicial pronouncements and the legislature in its wisdom has also brought drastic changes in existing laws with the only object that the offender booked for the commission of such like offences may not be set free due to procedural technicalities and other legal implications. Section 114-A has been inserted in the Evidence Act by way of amendment, providing thereby that where there is a question as to whether a woman was ravished without her consent or not and in case she states in her statement before the Court that she was not the consenting party to the sexual intercourse with her, the Court can presume that she was not a consenting party thereto. Hon’ble Apex Court in a catena of judgment including State of Punjab Vs. Gurmeet Singh and others, AIR 1996 SC 1393 has held that if the statement of he prosecutrix otherwise inspires confidence is sufficient to bring guilt home to the accused and no other and further corroboration thereto is required. Hon’ble Apex Court in Rajoo and others Vs. State of M.P., 2009 AIR (SC) 858, while taking note of the judgments in Gurmeet Singh’s case supra & Ranjit Hazarika Vs. State of Assam, (1998) 8 SCC 635 and concurring with the ratio of law laid down therein, has, however, observed that the statement of the prosecutrix cannot be universally and mechanically applied to the facts of each and every case of sexual assault, which comes before the Court. Para 9 of this judgment reads as follows: “9. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Para 9 of this judgment reads as follows: “9. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the Court. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration. Reference has been made in Gurmit Singh's case to the amendments in 1983 to Sections 375 and 376 of the India Penal Code making the penal provisions relating to rape more stringent, and also to Section 114A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113A and 113B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two Sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualized as the presumption under Section 114A is extremely restricted in its applicability. These two Sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualized as the presumption under Section 114A is extremely restricted in its applicability. This clearly shows that in so far as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined. 13. Similar view of the matter has again been taken by the Hon’ble Apex Court in Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. and another, (2003) 3 SCC 175 . 14. Therefore, irrespective of the offence the accused allegedly committed being not only grievous in nature but heinous also, the Courts should not get swayed merely by passion and influence only because of the reason that the alleged offence is against a woman, and rather keep in mind that as per the cardinal principle of criminal administration of justice, an offender has to be considered 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 evidence available on record. As a matter of fact, every care and caution is required to be taken by the Court so that an innocent person may not be convicted and at the same time a culprit should also not escape from conviction. 15. The re-appraisal of the given facts and circumstances and also the evidence produced by the prosecution shows that the prosecutrix definitely was taken by accused Manohar Lal in Tata Sumo vehicle being driven by accused Vinod Kumar on 2.9.2011 from her house situated in village Har Gattla, Tehsil Nurpur, District Kangra. As per the statement of prosecutrix, she was taken to the house of accused Ramesh Soni in village Dhameta. Her statement further reveals that then she was taken to Talwara in a bus which they boarded at Dhameta. As per the statement of prosecutrix, she was taken to the house of accused Ramesh Soni in village Dhameta. Her statement further reveals that then she was taken to Talwara in a bus which they boarded at Dhameta. Accused Ramesh Soni accompanied them upto Talwara, whereas the prosecutrix boarded another bus alongwith accused Manohar Lal for Delhi. Her statement further goes to show that she alighted from the bus at Chandigarh also. When reached at Delhi, they boarded an auto-rickshaw and went to Hotel DE-Hollywood Deluxe. There is, therefore, no need to discuss the remaining prosecution evidence qua this aspect of the matter, including the testimony of PW-10 Sunil Kumar, Manager of Hotel DE-Hollywood Deluxe. It is, however, her silence throughout that she did not raise any hue and cry, which has been mainly emphasized by Mr. Chitkara, learned defence counsel, to strengthen the argument that the prosecutrix was a consenting party to her elopement with accused Manohar Lal and that no case against any of the accused is made out. 16. In a case of this nature, it is the age of the prosecutrix, which assumes considerable significance. In case she is proved to be minor below 16 years of age, the argument addressed on behalf of the accused persons, loses its significance. The same would only be relevant if the prosecution is found to have failed to prove her age below 16 years. It, however, stands satisfactorily proved on record that no force whatsoever was used by any of the accused in enticing her away and rather she seems to be a consenting party to her elopement with accused Manohar Lal, as on hearing the horn, she seems to have voluntarily come to the road to board Tata Sumo vehicle. 17. Whether the prosecutrix was minor below 16 years of age at the time of occurrence, has to be determined in the light of the law laid down by the Apex Court and also this Court in various judicial pronouncements and also the evidence produced by the prosecution in this case. This Court in Ramesh Sharma Vs. State of Himachal Pradesh, 2013 (3) Shim. LC 1386, after having taken note of the law laid down by the Apex Court in the matter of determination of the age of the prosecutrix has held as under: “22. This Court in Ramesh Sharma Vs. State of Himachal Pradesh, 2013 (3) Shim. LC 1386, after having taken note of the law laid down by the Apex Court in the matter of determination of the age of the prosecutrix has held as under: “22. Since the prosecution case is that the prosecutrix was minor below 16 years of age at the time of occurrence and had been subjected to sexual intercourse, it is her age, which assumes considerable significance. Her age has been claimed to be 14.5.1994 in the prosecution case. The evidence in support thereof relied upon by the prosecution is middle standard certificate Ext.PW9/B and certificate Ext.PW10/A, produced by PW-10 Sanjeev Kumar, Jr. Assistant in Govt. Senior Secondary School, Bagain and certificate Ext.PW11/A produced in evidence by Smt. Shakuntla Verma, Clerk in the office of Municipal Council, Theog. No doubt in all these documents, the date of birth of the prosecutrix has been recorded as 14.5.1994. The evidence so produced on record by way of these documents, however, is secondary and not primary. As a matter of fact, in order to determine the age of a person with the assistance of school record, it is the admission register and admission form filled up at the time of admission of a child in the earliest class, an authentic proof thereto. 23. PW-10 Sanjeev Kumar no doubt has said that the prosecutrix was admitted in Govt. Senior Secondary School, Bagain in 6th standard. But, what to speak of primary evidence which should have come on record by examining someone from the primary school where the prosecutrix was initially admitted in the earliest class, even the admission register pertaining to her admission in Govt. Senior Secondary School, Bagain in 6th standard has also not been produced. Therefore, middle standard certificate Ext.PW9/B and certificate Ext.PW10/A produced by PW-10 Sanjeev Kumar, can at the most be taken as secondary evidence and not primary. In this behalf, Hon’ble the Apex Court in Sunil Kumar Vs. State of Haryana, AIR 2010 SC 392 , has 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.” 24. Hon’ble Apex Court in State of Chhatisgarh Vs. In this behalf, Hon’ble the Apex Court in Sunil Kumar Vs. State of Haryana, AIR 2010 SC 392 , has 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.” 24. 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 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. 25. In the case in hand, the admission and withdrawal register maintained in primary school, where the prosecutrix studied upto 5th standard and the admission form, which contains a declaration qua the authenticity of the correctness of all the facts mentioned therein, would have been primary evidence, which has not been produced. No doubt the register produced by PW-10 can be stated to have been maintained by the public authorities in the discharge of their duties, however, there is no evidence as to who got the prosecutrix admitted in 6th standard and how her date of birth came to be recorded as 14.5.1994 in the said register, as her mother PW-7 Smt. Sarla and father PW-9 Suresh Kumar have not stated so while in the witness box. Therefore, the school record produced to prove the date of birth of the prosecutrix as 14.5.1994 cannot be relied upon being not legally admissible. 26. If coming to another certificate Ext.PW11/A produced by Smt. Shakuntla Verma, a Clerk in the office of Municipal Council, Theog, her testimony only reveals that this certificate has been issued on the basis of entries made in the Birth and Death Register, maintained in the Municipal Council. It has come in her statement that Smt. Shoda Devi came to Municipal Council on 1.9.1994 and got recorded the date of birth of the prosecutrix as 14.5.1994. Who is that Shoda Devi, no evidence is forthcoming. It has come in her statement that Smt. Shoda Devi came to Municipal Council on 1.9.1994 and got recorded the date of birth of the prosecutrix as 14.5.1994. Who is that Shoda Devi, no evidence is forthcoming. Even if statement of PW-19 Devi Dass is believed that such entries were got made by his wife, i.e. the grand-mother of the prosecutrix, who is she, it also remained unexplained, as the grand-mother of the prosecutrix is neither associated in the investigation of the case nor examined as a witness to establish this part of the prosecution case. As a matter of fact, mere production of a register or abstract thereof in evidence is not sufficient to prove the date of birth of a person. In order to prove the same in accordance with law, the person at whose instance the entries were made in the register is relevant and material witness. It is held so by Hon’ble Apex Court in Ravinder Singh Gorkhi Vs. State of U.P. AIR 2006 SC 2157 , 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 Section 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 Section 35 of the Evidence Act cannot be applied in a civil case or a criminal case. 25. ………… 26. In Birad Mal Singhvi v. Anand Purohit [(1988 Supp. It will be a matter of appreciation of evidence adduced by the parties. Different standards having regard to the provision of Section 35 of the Evidence Act cannot be applied in a civil case or a criminal case. 25. ………… 26. In Birad Mal Singhvi v. Anand Purohit [(1988 Supp. SCC 604], this Court held: "To render a document admissible under Section 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 under Section 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." ` 27. 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 AIR 1970 SC 326 ; Ram Murti Vs. State of Haryana AIR 1970 SC 1029 ; Dayaram & Ors. Vs. Dawalatshah & Anr. AIR 1971 SC 681 ; Harpal Singh & Anr. Vs. State of Himachal Pradesh AIR 1981 SC 361 ; Ravinder Singh Gorkhi Vs. State of U.P. (2006) 5 SCC 584 ; Babloo Pasi Vs. State of Jharkhand & Anr. (2008) 13 SCC 133 ; Desh Raj Vs. Bodh Raj AIR 2008 SC 632 ; and Ram Suresh Singh Vs. Prabhat Singh @ Chhotu Singh & Anr. (2009) 6 SCC 681 . State of U.P. (2006) 5 SCC 584 ; Babloo Pasi Vs. State of Jharkhand & Anr. (2008) 13 SCC 133 ; Desh Raj Vs. Bodh Raj AIR 2008 SC 632 ; and Ram Suresh Singh Vs. Prabhat Singh @ Chhotu Singh & Anr. (2009) 6 SCC 681 . In these cases, it has been held that even if the entry was made in an official record by the concerned official in the discharge of his official duty, it may have weight but still may require corroboration by the person on whose information the entry has been made and as to whether the entry so made has been exhibited and proved. The standard of proof required herein is the same as in other civil and criminal cases. 19.……………………………………… 20. So far as the entries made in the official record by an official or person authorized 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 entries 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.” 28. The non-examination of Smt. Shoda Devi, who allegedly got entered the date of birth of the prosecutrix in the Municipal Council record or the grand-mother of the prosecutrix, is, therefore, fatal to the prosecution case. 29. The testimony of PW-11 Smt. Shakuntla Verma and the certificate Ext.PW11/A as well as the record she produced, cannot also be taken as legal and acceptable evidence to conclude authoritatively and judicially that the prosecutrix was born on 14.5.1994 and as such was minor at the relevant time. 30. True it is that determination of age of a person on the basis of bone ossification test is another approved method. Normally, this method is resorted to in those cases where any direct evidence, qua the age of a person, is not available or in order to remove the doubt with respect to the evidence, if any, available on record. The prosecutrix was referred to PW-14 Dr. Neeti Aggarwal, a Radiologist. After examining the prosecutrix and conducting bone ossification test vide skiagrams Exts. The prosecutrix was referred to PW-14 Dr. Neeti Aggarwal, a Radiologist. After examining the prosecutrix and conducting bone ossification test vide skiagrams Exts. PW14/C to Ext.PW14/H, she found the age of the prosecutrix between 12½ years and 15½ years. Her report to this effect is Ext.PW14/B. While in the witness box, PW-14 Dr. Neeti Aggarwal, has admitted the error of two years on either side while determining the skeletal age of a person. Such error, however, is being taken three years. It is held so by a Division Bench of our own High court in State of H.P. Vs. Narender Kumar alias Hira and others, 2010 Cri. Law Journal 3545. Relevant portion of this judgment reads as follows: “8. The skiagram and the ossification test was carried out on the prosecutrix by Dr. J. P. Kaushik (P.W. 2) and as per his report (Ext. P.W. 2/A), her age was determined to be 15 to 16 years. He clarified that the development of the bones of a person depends upon various factors like dietary, climatic and hereditary conditions. He opined that as compared to a good nutrient diet a person taking less proteins and less energy diet is likely to have slow development of bones and while determining the age of the prosecutrix he has not taken these factors into consideration. Therefore, the report by itself cannot be said to be of conclusive or binding nature. He has admitted that the bony age of a person can vary two-three years on positive or negative side. Undisputedly, prosecution does not from higher strata of society and her development of bones not being complete cannot be ruled out. Importantly the report is dated 10-1-1992 and the alleged offence is stated to have taken place on 31-12-1991. Keeping in view the negative and positive variations while determining the age of the prosecutrix it cannot be said that the age of the prosecutrix would definitely be not more than eighteen years. We are fortified to take his view, keeping in view of the decision taken by the Apex Court in Jaya Mala v. Home Secretary, Govt. Keeping in view the negative and positive variations while determining the age of the prosecutrix it cannot be said that the age of the prosecutrix would definitely be not more than eighteen years. We are fortified to take his view, keeping in view of the decision taken by the Apex Court in Jaya Mala v. Home Secretary, Govt. of J. & K. (1982) 2 SCC 538 : ( AIR 1982 SC 1297 : 1982 Cri LJ 1777); Daya Singh v. Sahib Singh, (1991) 2 SCC 379 : ( AIR 1991 SC 930 : 1991 Cri LJ 1370); State of Rajasthan v. Ram Narain, (1996) 8 SCC 64 : ( AIR 1996 SC 2987 : 1996 Cri LJ 1882) and by a Division Bench of this Court in State of Himachal Pradesh v. Om Parkash, Latest HLJ 2005 (HP) (DB) 179.” 31. In the above case, the skeletal age of the prosecutrix determined to be 15-16 years, was taken to be above 18 years, by giving the benefit of margin of error to the accused. In State of H.P. Vs. Phurva and others, Latest HLJ 2011 (HP) 490, again a Division Bench of this Court has held as under: “19. In present like cases, age of the Prosecutrix is of utmost importance. Prosecutrix though at the time of her examination has stated that she was 17 years of age, yet there is no document with respect to the date of birth obtained by the police during investigation of the case, from the concerned Panchayat or from any School or Institution where she was admitted and studied. However, the prosecution has put its reliance only on the ossification report Ext. PW10/C showing her between 16-17 years on the basis of the epiphysis of bones. To prove this report PW10 Dr. G. D. Gaur was examined. His opinion is based upon the study of Dr. M.L. Aggarwal and I.C. Pathak in Punjab Region which has no hilly terrace. He also admitted that the development of bone depends on hereditary, dietary, harmonious factors, climatic condition and it varies from place to place. He also admitted that assessment of the age on the basis of fusion of bones is not a perfect science. It is also equally fallacious to apply the study of Dr. M.L. Aggarwal and I.C. Pathak to hilly terrace with respect to their studies which they have conducted in Punjab region. He also admitted that assessment of the age on the basis of fusion of bones is not a perfect science. It is also equally fallacious to apply the study of Dr. M.L. Aggarwal and I.C. Pathak to hilly terrace with respect to their studies which they have conducted in Punjab region. Admittedly, both the parties, in this case belong to tribal area of Lahaul where development of the bones differs considerably from the subject which is in the plain and warmer areas. The pubic signs appear early in warmer and lower parts of India whereas physical development, fusion of bones and also puberty is always delayed in the hilly areas. Thus giving the benefit of +2 years on both sides, as per the Modi’s Jurisprudence, the age of the prosecutrix comes to 18-19 years at the relevant time and in any case above the age of discretion, she cannot be said to be a girl of immature understanding but a girl who could use her discretion. “32. In the case in hand, keeping in view the skeletal age of the prosecutrix between 12½ and 15½ years, the same can be taken as 14½ years to 17½ years. The prosecutrix at least was not 12½ years of age at the time of occurrence for the reason that she was studying in 10th standard. If her date of birth is 14.5.1994, in that event also, she was 15 plus. If coming to the evidence qua this aspect of the matter, as has come on record, by way of the testimony of her mother Smt. Sarla PW-7, she tells us that her marriage was solemnized in 1986. After three years of her marriage, a male issue was born and it is after 1½ - 2 years of his birth, the prosecutrix was born to them. Meaning thereby that the male issue was born to PW-7 Smt. Sarla somewhere in 1989. The prosecutrix seems to be born after 1½ - 2 years, i.e. somewhere in 1991. Statement of PW-7 Smt. Sarla to this effect finds corroboration from the testimony of PW-19 Devi Dass, her father-in-law, as he has categorically stated that the prosecutrix was born to PW-7 Smt. Sarla after 1½ years of the birth of male issue. Such ocular evidence assumes significance in the given facts and circumstances of this case. Statement of PW-7 Smt. Sarla to this effect finds corroboration from the testimony of PW-19 Devi Dass, her father-in-law, as he has categorically stated that the prosecutrix was born to PW-7 Smt. Sarla after 1½ years of the birth of male issue. Such ocular evidence assumes significance in the given facts and circumstances of this case. Therefore, the possibility of the prosecutrix having born in the year 1991 cannot be ruled out. If it is so, in February, 2009, she was 17 plus. 33. In Jinish Lal Sah Vs. State of Bihar, AIR 2003 SC 2081 , a case having more or less similar facts, the Hon’ble Apex Court has held as under: 4. PW-6 the father of the girl in his evidence has stated that he was married in the year 1952 and he had two daughters. The first daughter Reeta was born 12 years after his marriage which would be in the year 1964. He states that his second daughter was born six years after Reeta was born that would be 18 years after his marriage which will be 1970. If that be the year of birth of PW-1 then the incidence in question being in the year 1989, PW-1 ought to be 19 years on that day. This witness further says that PW-1 had appeared for her Board examination in the year 1988 and had failed. This also gives an indication that it is likely that the age of PW-1 on the date of incidence was around 19 years.” 19. Adverting to the documentary evidence produced in this case, the same is in the form of certificate Ext. PW7/A. According to this certificate, the date of birth of the prosecutrix, as per entries in the admission/withdrawal register, is 25.5.1996. Statement of PW-7 Mangal Singh, however, is silent qua production of admission and withdrawal register. He has only stated that certificate Ext. PW7/A was prepared by him as per the date of birth entered in the school record and the certificate is correct as per the original record, he produced. Though in the cross-examination he tells us about the admission of the prosecutrix in the school on the basis of an application of her parents, however, in which class, has not disclosed anything in that behalf nor is there anything in his statement as to which of the parents (mother and father) had submitted the application. 20. Though in the cross-examination he tells us about the admission of the prosecutrix in the school on the basis of an application of her parents, however, in which class, has not disclosed anything in that behalf nor is there anything in his statement as to which of the parents (mother and father) had submitted the application. 20. In view of the law laid down in Ramesh Sharma’s case supra, if the age of a person is to be determined on the basis of school record, it is the admission register and the application form filled in either by the parents or the guardian accompanying the person to be admitted in the school, has to be considered as primary evidence. PW-7 Mangal Singh, who is a TGT in Govt. Senior Secondary School, Khukhair, seems to have produced the record of Middle School, Khuwara and not that of primary school where the prosecutrix was initially admitted. As a matter of fact in middle/high school, admission is granted on the basis of school leaving certificate issued by the primary school. Therefore, it is the entries in the admission register maintained in the primary school qua the date of birth and the date of birth entered in the admission form by the parents/guardian, can be treated as primary evidence qua the age of a particular person. Therefore, the record produced by this witness is not sufficient to arrive at a conclusion that the prosecutrix was born on 25.5.1996. 21. Similarly, certificate Ext. PW12/B issued by PW-12 Raju Ram, Secretary of Gram Panchayat, Jatrun, having been prepared from the Pariwar Register, cannot also be believed to be primary evidence in respect of the age of the prosecutrix for the reason that Pariwar Register is maintained in the Gram Panchayat for census purposes and the age of a person mentioned therein is not exact but approximate. It is not a primary record and prepared on the basis of entries in the birth and death register. However, so far as this case is concerned, nothing has come on record in the statement of PW-12 that Pariwar Register has been prepared by him on the basis of entries in the Birth and Death Register. He rather in his cross-examination has stated that he could not bring the Birth and Death Register being not available in the Panchayat. However, so far as this case is concerned, nothing has come on record in the statement of PW-12 that Pariwar Register has been prepared by him on the basis of entries in the Birth and Death Register. He rather in his cross-examination has stated that he could not bring the Birth and Death Register being not available in the Panchayat. On the one hand, he has stated that Birth and Death Register is not available; whereas on the other, said that the entries in the Birth and Death Register were also made by him. He, therefore, has blown hot and cold in the same breath. Hence, the documentary evidence so produced by this witness is neither satisfactory nor cogent and reliable to arrive at a conclusion that the prosecutrix is born on 25.5.1996. 22. If coming to the ocular version, PW-3 Balwant Singh, father of the prosecutrix, has not stated that she is born on 25.5.1996. As per his version, date of birth of his daughter, the prosecutrix, as per her certificate of 8th class, is 25.5.1996. The prosecutrix, while in the witness box, has also not deposed on oath anything about her age and date of birth. However, in her statement without oath she has disclosed her age as 16 years on 5.4.2013, which is contrary to her age being claimed by the prosecution in its case for the reason that if she is born on 25.5.1996, then on the date of occurrence she would have been 15 years, 3 months and 7 days old. Her statement was recorded on 5.4.2013. Therefore, her age on that day should have been more than 17 years. Nothing has come in the statement of PW-3 Balwant Singh, as to who admitted the prosecutrix in the school and disclosed her date of birth as 25.5.1996. PW-8 Dharam Singh, grand father of the prosecutrix, has also not uttered even a single word with respect to the date of birth of the prosecutrix and her age on the date of occurrence. 23. PW-8 Dharam Singh, grand father of the prosecutrix, has also not uttered even a single word with respect to the date of birth of the prosecutrix and her age on the date of occurrence. 23. Therefore, on critical analysis of the age aspect of the prosecutrix vis-à-vis the evidence available on record and also the legal position discussed in this judgment in paras supra, it would not be improper to conclude that the prosecution has miserably failed to prove that 25.5.1996 is the date of birth of the prosecutrix and that on the day of occurrence, she was below 16 years of age. 24. On the other hand, as per the medical evidence, as has come on record by way of skiagrams Exts. P4 to P4 and the Statement of PW-4 Dr. Raman Sharma, the radiological age of the prosecutrix at the relevant time was 15 to 16 years. In the matter of determination of skeletal age, the margin of error of 2 years on both sides is always there. As per the settled legal principles, the benefit of margin of error is always given to the accused. Therefore, giving the benefit of plus two years, the skeletal age of the prosecutrix can be said to be 17-18 years. The prosecutrix admittedly was studying in 10th class. Therefore, on this score also, she can reasonably be believed to be more than 15 years of age. The prosecution, therefore, has miserably failed to prove that the prosecutrix was below 16 yeas of age on the day of the commission of the alleged offence. 25. Now, if coming to the commission of offence, punishable under Section 376 IPC, undisputedly, the prosecutrix left her parental house voluntarily to join the company of accused Manohar Lal. It is significant to note that there was intimacy between the accused and the prosecutrix as has come in the statement of her father PW-3 Balwant Singh and also in the statement of the prosecutrix, as they both have said that the accused had been visiting to her earlier even in the school also and asking her to marry him. If her conduct in totality is seen, after leaving the house of her parents, she went to village Dhameta. There she stayed for some time in the house of accused Ramesh Soni, who happens to be the brother-in-law of accused Manohar Lal. If her conduct in totality is seen, after leaving the house of her parents, she went to village Dhameta. There she stayed for some time in the house of accused Ramesh Soni, who happens to be the brother-in-law of accused Manohar Lal. Though the prosecutrix while in the witness box has stated that sister of accused Manohar Lal asked him to take her back to the house of her parents and leave her there, however, she has nowhere stated that she raised any protest against the said accused or brought to the notice of accused Ramesh Soni and his wife, the sister of accused Manohar Lal that she has been brought forcibly. Not only this, but she boarded a bus from Dhameta to Talwara. She boarded another bus at Talwara for Delhi, where she stayed in Hotel DEHollywood Deluxe. There also, she never raised any protest against entering her name as Paramjit Kaur with her age as 24 years by accused Manohar Lal. Although there is an explanation set forth by her that she failed to retaliate or raise protest on account of having been put under fear, however, has not disclosed anything with regard to the nature of such fear or threat. There is even no charge also qua criminal intimidation against the principal accused or his co-accused. She, therefore, at her own free will and voluntarily accompanied accused Manohar Lal and visited several places without raising any hue and cry. Her conduct of this nature, therefore, leads to the only conclusion that she was a consenting party to her elopement with accused Manohar Lal. 26. No doubt, the prosecutrix states that during the night intervening 3rd and 4th September, 2011, when they stayed in room No.204 of Hotel DE-Hollywood Deluxe, she was subjected to sexual intercourse against her will and without her consent by accused Manohar Lal. As per the legal position qua this aspect of the matter, as already taken note of, the statement of the prosecutrix if inspires confidence, is sufficient to bring the guilt home to the accused and no other and further corroboration thereto is required. There is no quarrel about such settled proposition of law. However, the Apex Court in Rajoo’s case supra, has also held that the said principle cannot be universally and mechanically applied to the facts of each and every case of sexual assault, which comes before the Court. There is no quarrel about such settled proposition of law. However, the Apex Court in Rajoo’s case supra, has also held that the said principle cannot be universally and mechanically applied to the facts of each and every case of sexual assault, which comes before the Court. It has further been held in this judgment that while the rape causes the greatest distress and humiliation to the victim, at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. Therefore, the accused is also required to be protected against the possibility of false implication. 27. Having regard to the given facts and circumstances of this case and over all conduct of the prosecutrix, as highlighted hereinabove, it is not safe to place reliance on her statement that she has been subjected to sexual intercourse against her will and without her consent. Even if any such act has been committed by accused Manohar Lal, the same at the most can be said to be consensual one, because the prosecutrix was a consenting party to her elopement with the said accused. 28. Admittedly, the medical evidence is also not suggestive and indicative that the prosecutrix was subjected to sexual intercourse, because PW-1 Dr. Mini Sharma while in the witness box has stated that at the time of medical examination, no injury marks were seen on the face, neck, breast, abdomen, back, thighs and back side of the perineum of the prosecutrix. Though it was observed by this witness that possibility of sexual intercourse could not be ruled out, however, final opinion was left to be given after receipt of the Forensic Science Laboratory. Prosecutrix was also examined by PW-2 Dr. Amod Kumar Singh on 10.9.2011 and in his opinion given on the basis of clinical examination, the possibility of sexual intercourse could have not been ruled out. This witness states that the report of Chemical Examiner was not produced before him, meaning thereby that conclusive and clinching opinion qua commission of sexual intercourse with the prosecutrix could have not been formed by this witness. PW-1 Dr. Mini Sharma seems to have perused the report of Chemical Examiner on 7.12.2011 and noticed that only human blood could be detected on the exhibits sent for analysis but no semen was detected thereon. PW-1 Dr. Mini Sharma seems to have perused the report of Chemical Examiner on 7.12.2011 and noticed that only human blood could be detected on the exhibits sent for analysis but no semen was detected thereon. She has admitted in her cross-examination that as no semen was detected on Exts. 1 to 5, therefore, it was not possible to say definitely that it was a case of sexual intercourse. She also admits that no definite opinion qua the forcible sexual intercourse with the prosecutrix could have been given by her. Therefore, the medical evidence is also not clinching and convincing so as to form an opinion that the prosecutrix was subjected to sexual intercourse. 29. True it is that for the purpose of commission of offence, punishable under Section 363 and 366 IPC, kidnapping means taking or enticing away a minor under 16 years of age, if a male or under 18 years of age, if a female or any person of unsound mind, out of the lawful guardianship of such minor or person of unsound mind, without the consent of such guardian. As already pointed out, the evidence is not suggestive that any of the accused had any role in taking or enticing away the prosecutrix from the lawful guardianship of her parents. It would not be improper to conclude that she being well known to accused Manohar Lal, voluntarily joined the company of the said accused. As a matter of fact, there seems to be an agreement between accused Manohar Lal and the prosecutrix with regard to her elopement. It is for this reason, she first made her grand-father to sleep and the moment accused Manohar Lal came there and blew horn, she slipped away from the house and boarded the vehicle. Above all, what is her exact age is also not proved on record beyond all reasonable doubt. 30. The evidence, as discussed hereinabove, therefore, is not sufficient to arrive at a conclusion that the prosecution has been able to prove its case against any of the accused persons beyond all reasonable doubt. 31. The evidence, as has come on record by way of remaining prosecution witnesses, including the I.O., is formal and could have at the most been used as link evidence, had the prosecution been otherwise able to bring the guilt home to the accused with the help of cogent and reliable evidence. 32. 31. The evidence, as has come on record by way of remaining prosecution witnesses, including the I.O., is formal and could have at the most been used as link evidence, had the prosecution been otherwise able to bring the guilt home to the accused with the help of cogent and reliable evidence. 32. Therefore, looking the present case from any angle, the involvement of the accused persons in the commission of alleged offence is not established beyond all reasonable doubt. Learned trial Judge has failed to appreciate the evidence available on record in its right perspective and seems to have been swayed by passion and also for the reason that the offence is against a woman, while holding the accused persons guilty for the commission of the alleged offence. The findings so recorded being based on surmises and conjectures are neither legally nor factually sustainable. 33. The upshot of the discussion hereinabove, therefore, would be that the accused persons are entitled to the benefit of doubt and ultimately acquittal. 34. In view of what has been stated hereinabove, the present appeal succeeds and the same is accordingly allowed. Consequently, impugned judgment is set aside and the findings of conviction and sentence recorded against each of the accused are also quashed and set aside. Accused Manohar Lal is in custody right from his arrest in this case, whereas accused Vinod Kumar and Ramesh Soni have been undergoing sentence since the pronouncement of judgment by the trial Court. They all, therefore, be set free forthwith, if not required in any other case. All the three appeals stand accordingly disposed of.