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Himachal Pradesh High Court · body

2016 DIGILAW 1718 (HP)

State of Himachal Pradesh v. Ram Chander

2016-08-17

SANJAY KAROL, VIVEK SINGH THAKUR

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JUDGMENT : Vivek Singh Thakur, J. In the present case Investigating Agency was set in motion by complainant Raju Ram (father of PW-1 prosecutrix) by lodging FIR Ex. PW-13 in Police Station, Paonta Sahib stating therein that his daughter (prosecutrix) born on 22.07.1995, studying in 8th class, had gone to School on 15.07.2011 at about 8.30 AM with her sister Kiran, studying in 10th class. At about 9.00 AM, Kiran saw respondent-accused taking away prosecutrix forcibly on his bike and respondent did not stop even on raising alarm and prosecutrix was not traceable despite best efforts. 2. On 16.08.2011, PW-9 Suresh Kumar, father of respondent produced prosecutrix and respondent in Police Station Paonta Sahib. Respondent-accused was arrested and was medically examined. Prosecutrix was also medically examined and put in custody of her father. 3. After completion of investigation, challan was presented in the court. Respondent-accused was charge-sheeted under Sections 363, 366 & 376 (I) of India Penal Code. On conclusion of trial, respondent-accused was acquitted. Hence, present appeal by State with prayer to convict respondent-accused. 4. We have heard learned counsel for the State as well as for respondent-accused and have also gone through the record. 5. After medical examination of prosecutrix, PW-10 Dr. Daljeet Kumar issued MLC Ex.PW-10/A opining that prosecutrix was used to sexual intercourse and prosecutrix must have sexual intercourse more than seven times and it was not possible to assess time of first sexual intercourse. There was no external or internal injury on her body. 6. Raju, father of prosecutrix was complainant, but he had neither been examined in Court nor he was cited as witness in challan presented in the Court. Prosecutrix was victim and her elder sister Kiran was witness to forcibly taking away the prosecutrix on 15.7.2011 by respondent-accused and they were examined as PWs-1 and 2. Therefore, before evaluating other evidence on record, veracity of statements of these witnesses is to be assessed. 7. PW-1 prosecutrix stated in the Court that on 15th July 2011 at about 9.00 AM, her sister entered the school but she remained standing outside the school and in the meanwhile, respondent arrived there and asked her to accompany him on his motorcycle by pretending that he was in love with her and wanted to marry. She stated that respondent also threatened to kill her in case of her refusal to accompany him. She stated that respondent also threatened to kill her in case of her refusal to accompany him. According to her, she was taken to Dhaulakuan by respondent on motorcycle under threat and thereafter she was taken to Nahan in car and from Nahan to Amritsar she was taken in bus where she stayed for 25 days in Gurudwara and respondent committed rape upon her in Dhaba in Amritsar where they stayed for 6 days. Thereafter they came back from Amritsar to Paonta Sahib by bus where PW-9 Suresh Kumar (father of respondent) met them who produced them in Police Station, Paonta Sahib. She also stated that respondent had not married her but had forced to put Bindi on her forehead. In her cross-examination she admitted that respondent was working in rest house near to their house who used to love her however she was not in love with him and she used to talk with him on telephone since about two months prior to the date of eloping with him. She had stated that she did not know about date, month or year of her birth. She also admitted that many persons met them at Girinagar, in bus and also at Amritsar but she did not make any complaint to any one. She was confronted with her statement made to police in which she had not stated that respondent-accused had threatened her to force her to sit on motor cycle. 8. PW-2 Kiran, sister of prosecutrix stated that on 15.07.2011, she had entered the school whereas prosecutrix had suddenly stopped outside the school gate and from second floor she noticed respondent, pulling her sister from arm and thereafter both of them sat on motorcycle and respondent had taken prosecutrix away on motorcycle and because of rainy day her effort to raise alarm was futile and then she came back home and narrated the entire incident to her mother and prosecutrix was traced after one month. She stated that prosecutrix had not cried when prosecutrix and respondent had gone on motorcycle. In examination in chief, she stated that she had tried to raise alarm, but due to rain it was in vain. However, in cross examination she stated that she had not cried when respondent and prosecutrix left the place on the motor cycle. 9. She stated that prosecutrix had not cried when prosecutrix and respondent had gone on motorcycle. In examination in chief, she stated that she had tried to raise alarm, but due to rain it was in vain. However, in cross examination she stated that she had not cried when respondent and prosecutrix left the place on the motor cycle. 9. On 15.07.2011, prosecutrix and respondent had travelled from Dhaulakuan to bus-stand Nahan in Taxi No. UA-07-3881 owned and driven by PW-6 Ajay Gupta. In his crossexamination, he stated that during their journey in taxi both of them were happy and were talking to each other in joyful mood and on inquiry prosecutrix had stated that they were going just for enjoyment. As per him, prosecutrix had not complained that respondent-accused had brought her forcibly. 10. PW-9 Suresh Kumar is father of respondent who had produced respondent and prosecutrix in Police Station. He stated that prosecutrix had told him that she had voluntarily accompanied respondent to marry with him and that being above 18 years of age, she was free to marry a person of her choice. 11. Prosecutrix and her sister PW-2 Kiran had gone to school, prosecutrix remained outside gate of the school and on arrival of respondent, she accompanied him on his motorcycle to Dhaulakuan. As per PW-2 Kiran, respondent was pulling prosecutrix from her arm and thereafter prosecutrix sat over motor cycle. It is not possible for a person riding on a motorcycle to pull a grown up girl from arm and to make her to sit on motorcycle as a pillion rider against her wishes and consent that too at 9.00 AM in the morning. It is also not believable that person who was being forced to ride motorcycle made no efforts to resist or to raise alarm despite knowing that number of students including her sister were present in the school. Prosecutrix travelled with respondent to Dhaulakuan on motor cycle and thereafter accompanied him in a car from Dhaulakuan to Nahan and in bus from Nahan to Amritsar, stayed at Amritsar for 25 days and in Dhaba for 6 days and thereafter came back with him by bus to Paonta Sahib. 12. Prosecutrix travelled with respondent to Dhaulakuan on motor cycle and thereafter accompanied him in a car from Dhaulakuan to Nahan and in bus from Nahan to Amritsar, stayed at Amritsar for 25 days and in Dhaba for 6 days and thereafter came back with him by bus to Paonta Sahib. 12. Though, prosecutrix had stated that respondent used to love her and she was not in love with him, however, she admitted that she was in talking term with respondent on mobile since about two months prior to eloping with him. At the time of making statement to police she had not stated that respondent had forcibly made her to sit on motor cycle by threatening to kill her. This fact was stated by her for the first time in the Court only. Prosecutrix admitted that number of persons had met them, but she had not complained to any person. Rather her statement made to PWs-6 and 9 indicate that she was accompanying respondent-accused on her own desire. Scrutiny of statements of PW-2, PW-6 and PW-9 and the prosecutrix indicated that prosecutrix was accompanying respondent-accused with her own will and free consent. From the conduct of the prosecutrix her consent was writ large. 13. The father of prosecutrix was neither cited as witness nor was examined in Court. PW-3 Suresh Kumar uncle of prosecutrix is witness to the identification of Dhaba in Roshnabad in U.P. and taking into possession of motorcycle used by respondent on 15th July 2011. He had accompanied father of prosecutrix for tracing her and thereafter lodging FIR in Police Station. Only witness to the alleged incident of forcibly taking away prosecutrix is PW-2 Kiran. There is nothing in her statement from which it can be elucidated that PW-1 was forcibly taken away by respondent on 15th July 2011. 14. There is ample evidence on record to infer that prosecutrix eloped with respondent with her will and consent. Despite consent of prosecutrix, respondent would be liable to be punished under Sections 363, 366 and 376 (1) IPC if she was below 16 years on 15.07.2011 and may face conviction under Sections 363 and 366 IPC only in case she was below 18 years but above 16 years of age on 15.07.2011. 15. For proving age of prosecutrix, her date of birth certificate issued from School Ex. PW-5/A, copies of Pariwar Register of Gram Panchayat Ex. 15. For proving age of prosecutrix, her date of birth certificate issued from School Ex. PW-5/A, copies of Pariwar Register of Gram Panchayat Ex. PW-12/A and Ex. PW-12/B and report of Radiologist Ex. PW-11/A were relied upon by prosecution. 16. PW-5 Sudarshan Kaur, Head Mistress of School had issued copy of date of certificate of birth of prosecutrix Ex.PW-5/A. She stated that as per that certificate date of birth of prosecutrix was 15th July 1997. In cross-examination she admitted that entry of date of birth of prosecutrix in original register brought by her was not in her hand and the said original register did not contain opening date, certification of pages, total number of pages and authority by whom it was opened. 17. PW-12 Mohan Singh, Panchayat Secretary, Gram Panchayat, Sainwala proved photocopy of extract of pariwar register Ex. PW-12/A and copy of the same issued by him Ex. PW-12/B indicating date of birth of prosecutrix as 15th July 1997. This witness admitted that mother of prosecutrix was resident of District Kinnaur before her marriage and because of posting in Kinnaur, Raja Ram father of prosecutrix used to reside with his family in Kinnaur and prosecutrix was born in Kinnaur and therefore her date of birth was not entered in Death and Birth register maintained by Gram Panchayat, Sainiwal. He expressed his ignorance about the time when names of prosecutrix, her sister and mother were entered in the pariwar register. He did not know about the person who had entered their names in pariwar register. He was also having no knowledge that on whose instance those entries were made. He was unable to deny that date of birth of prosecutrix was wrongly entered in pariwar register for want of documentary proof which was basis for entry of date of birth of prosecutrix in pariwar register. He stated that Death and Birth register was separately maintained in his Panchayat and in that register entry of birth of prosecutrix was not there. It is settled Law that entries of pariwar register are not conclusive proof of date of birth of a person. 18. PW-11 Dr. D.D. Sharma, Radiologist at Regional Hospital, Nahan had examined prosecutrix for determination of age on reference made by PW-10 Dr. Daljeet Kaur. As per his opinion rendered vide Ex.PW-11/A, age of prosecutrix as on 17th August 2011 was between 15½ to 19 years. 18. PW-11 Dr. D.D. Sharma, Radiologist at Regional Hospital, Nahan had examined prosecutrix for determination of age on reference made by PW-10 Dr. Daljeet Kaur. As per his opinion rendered vide Ex.PW-11/A, age of prosecutrix as on 17th August 2011 was between 15½ to 19 years. In cross-examination he admitted that margin of two years could be given to the age assessed by him on the basis of report Ex. PW-11/A. PW-10 Dr. Daljeet Kaur on basis of report Ex. PW-11/A had again opined that the age of prosecutrix in August 2011 was between 15½ to 19 years. 19. In case of availability of valid, reliable and admissible documentary proof of date of birth, determination of age by medical expert may be ignored. But in present case documents relied upon by prosecution Ex.PW-5/A and Ex.12/A and Ex.12/B cannot be treated conclusive proof of age of prosecutrix for the reason that basis of entries made in school record, in pariwar register is not known. In view of admissions of PW-5 Sudarshan Kaur and PW-12 Mohan Singh, these documents cannot be said to be valid, admissible and reliable proof of date of birth of the prosecutrix particularly when father of prosecutrix, in FIR has stated date of birth of prosecutrix as 22.07.1995 which again renders date of birth mentioned in Ex. PW-5/A, Ex. PW-22/A and Ex. PW-12/B doubtful. In such eventuality opinion of medical expert became relevant. On the basis of evidence on a record exact date of birth of prosecutrix has not been proved nor there is any document on record conclusively proving that prosecutrix at the time of incident was below 18 years of age, rather, there is a opinion of medical expert indicating that prosecutrix may be more than 18 years in August 2011. As per medical evidence age of prosecutrix in August 2011 has been determined between 15½ to 19 years with further clarification that there may be variation of two years. Therefore, prosecution has failed to prove by leading admissible and convincing evidence that prosecutrix at the time of incident, was below 18 years of age. As per medical evidence there is possibility of her age above 18 years on the day of incident and when there two views are possible, view beneficial to accused is to be given preference. Therefore, prosecution has failed to prove by leading admissible and convincing evidence that prosecutrix at the time of incident, was below 18 years of age. As per medical evidence there is possibility of her age above 18 years on the day of incident and when there two views are possible, view beneficial to accused is to be given preference. Therefore, prosecutrix is to be considered more than 18 years on the day of incident on the basis of material available on record. 20. Once prosecutrix is found to be above 18 years at the time of incident, then for her consents, respondent cannot be said to be guilty under Sections 363, 366 & 376 of the Indian Penal Code. 21. Respondent was examined under Section 313 of the Code of Criminal Procedure. He admitted his love affairs with PW-1 prosecutrix. In answer to question No. 22, he stated that he still wanted to marry with prosecutrix but she had deposed against him under pressure of parents and her relatives In totality of circumstances defence propounded by respondent appears to be convincing and based on truth. 22. Prosecution has failed to prove guilt of the accused beyond all reasonable doubts and there is no merit in the appeal. There is no illegality or perversity in impugned judgment. Learned trial Court has appreciated evidence on record completely and correctly on record. 23. Allegations of prosecutrix are not trustworthy, believable and convincing and therefore, her statement cannot be treated as cogent, reliable and convincing to convict the respondent under Sections 363, 366 and 376 of the Indian Penal Code. 24. The present appeal, devoid of any merit, is dismissed, so also the pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of the Court below be sent back forthwith.