In the High Court of Himachal Pradesh at Shimla
(Before Chander Bhusan Barowalia, J.)
Aneep Kumar Vs State of Himachal Pradesh
Cr. Appeal No. 99 of 2010
Decided on September 11, 2017,
Citation: 2017 SCC OnLine HP 1528
The Judgment of the Court was delivered by
Chander Bhusan Barowalia, J.:— The present appeal has been preferred by the appellant/accused/convict (hereinafter referred to as “the accused”) laying challenge to judgment, dated 21.04.2010, passed by learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, Camp at Reckong Peo, H.P., in Sessions Trial No. 7 of 2007, whereby he was convicted for the commission of the offence punishable under Sections 363, 366A and 376 of Penal Code, 1860 (hereinafter referred to as “IPC”).
2. Succinctly, the facts giving rise to the present appeal, as per the prosecution, are that on 01.09.2017 complainant, Shri Nek Ram (father of the prosecutrix) alongwith his brother, Gulab Chand and one Vijay Chand reported that he is resident of village Grange and works as Chowkidar in Government Senior Secondary School, Nichar. As per the complainant, his daughter, prosecutrix (name withheld), aged 15 years, who was studying in 7th standard left the school for about a month. On 28.08.2007, all the family members, after taking dinner, slept and the prosecutrix also slept in her separate room. On subsequent morning, the complainant found his daughter missing and despite best efforts she could not be traced. On 01.09.2007 the complainant came to know that friend of one Madan Lal son of Ram Sukh, resident of Rohru area on 28.08.2007 took the prosecutrix with him after alluring her that he will marry her. On the basis of the complaint, so made by the complainant, police machinery was set into motion and during the course of investigation the police found the prosecutrix in the house of the accused at village Batwari (Rohru), thus the accused was arrested on 03.09.2007 and prosecutrix was handed over to the complainant. The prosecutrix refused to get herself medically examined. The accused was medically examined and subsequently the prosecutrix also assented for her medical examination. As per her medical examination, possibility of sexual intercourse was not ruled out by the doctor. On the basis of ossification test, age of the prosecutrix was opined between 15 to 15½ years. After thoroughly investigating the matter, the police found involvement of the accused for the commission of the offence under Sections 363, 366A and 376 IPC, thus challan was prepared and presented in the Court.
3. The prosecution, in order to prove its case, examined as many as seventeen witnesses. Statement of the accused was recorded under Section 313 Cr.P.C., wherein he denied the prosecution case and claimed innocence, however, the accused did not examine any defence witness.
4. The learned Trial Court, vide impugned judgment dated 21.04.2010, convicted the accused for the offence punishable under Sections 363, 366A and 376 IPC and sentenced him under Section 363 IPC to undergo rigorous imprisonment of five years and fine of Rs. 5,000/- and in default to undergo one year’s rigorous imprisonment. The accused was also sentenced under Section 366A to undergo rigorous imprisonment of five years and fine of Rs. 5,000/- and in default to undergo one year’s rigorous imprisonment and under Section 376 IPC he was sentenced to undergo seven years’ rigorous imprisonment and fine of Rs. 10,000/- and in default to undergo one year’s rigorous imprisonment. All the sentences were ordered to run concurrently and the fine amount, if realized, was ordered to be paid to the prosecutrix, feeling aggrieved the accused/convict has preferred the present appeal.
5. The learned counsel for the appellant has argued that the Court below, without appreciating the evidence correctly, has convicted the accused. He has further argued that the learned Court below has also failed to take into consideration the fact that as per the prosecutrix her age was more than 17 years on the date of occurrence and also that when she left for Rohru her cousin brother was accompanying her. As per the prosecution story, the medical examination of the prosecutrix nowhere reflects that she was subjected to sexual assault, further that the medical was conducted after a month, as initially the prosecutrix refused to undergo the medical examination. Even as per the radiological examination the bony age of the prosecutrix was 15½ years so there is possibility of three years’ plus-minus. Thus, the age of the prosecutrix could very well be 18½ at the time of the occurrence. He has argued that the learned Trial Court ignored all the above vital aspects of the case and wrongly convicted the accused, who is a young man and was only 23 years of age at the time of the incidence. He has argued that the judgment may be set aside and the accused may be acquitted. He has placed reliance on the following judicial pronouncements:
1. Jinish Lal Sha v. State of Bihar, (2003) 1 SCC 605 : AiR 2003 Supreme Court 2081;
2. Alamelu v. State, (2011) 2 SCC 385.
6. Conversely, Mr. Rajat Chauhan, Law Officer, has argued that it has come on record that the age of the prosecutrix was 15½ years on the day of the occurrence, so the judgment passed by the learned Trial Court is as per the law. Further argued that the record also reflects that accused had enticed away the prosecutrix to accompany him to Rohru from his native place. He has prayed that the findings of conviction, as recorded by the learned Trial Court, need no interference and the appeal of the appellant be dismissed. He has relied upon judgment of Hon’ble Supreme Court rendered in Mahadeo v. State of Maharashtra, (2013) 14 SCC 637, to support his contentions.
7. In rebuttal, the learned counsel for the appellant has argued that the accused is innocent and he has been falsely implicated in the case and one reason is his poverty, the judgment of conviction which suffers from major lacunae, may be set aside and the accused may be acquitted.
8. In order to appreciate the rival contentions of the parties, this Court has gone through the record carefully and in detail.
9. The complainant, Shri Nek Ram (PW-1), father of the prosecutrix, while appearing in the witness-box deposed that he is working as Chowkidar in Government Senior Secondary School Nichar. He has two children, viz., elder child Pawan and younger is the prosecutrix. As per this witness, the prosecutrix was 15 years of age in August, 2007. On 28.08.2007 when he woke up in the morning, he did not find the prosecutrix in the house and she went missing. He alongwith others searched the prosecutrix, but could not found her and on 01.09.2007 he came to know that a boy of Rohru, who was on visiting terms with nearby house of Madan Lal, enticed away his daughter on the intervening night of 28.08.2007-29.08.2007, so he reported the matter to the police and the police found his daughter and handed over her custody to him. This witness, in his cross-examination, has deposed that he did not search his daughter between 28.08.2007 to 31.08.2007, as he was expecting that she would return on her own. He has further deposed that 2-3 days prior to 28.08.2007, when he took the local deity to his house, he saw the accused there. The accused was working in connection with the visit of the deity and during that time his cousin, Madan, was also present in his house. He has further deposed that he was informed by the children of Madan that accused had enticed the prosecutrix, but it is not so recorded in the FIR, Ex. PW-1/A. He denied the suggestion that he refused for medical examination of the prosecution. However, volunteered that at that time the prosecutrix was under menstrual cycle and on the third day she was taken to MGMSC, Mhaneri for her medical examination and on that day also she was under menstrual cycle. He feigned ignorance whether in his presence the police seized the clothes of the prosecutrix or not. He has further deposed that he had married his son when he was 19 years of age and the prosecutrix is three years younger to his son. This witness did not clearly state the date of birth of the prosecutrix and he deposed that at the time of the incidence the prosecutrix was running in her fifteenth year. He could not state the age of the prosecutrix when she was admitted in the school. As per this witness, the prosecutrix left the school a year prior to 28.08.2007 and he has also informed this fact to the police, however, in FIR, Ex. PW-1/A, it is not so recorded. When inquired from the prosecutrix, she divulged that she is not ready to reside at Rohru and she did not complain against the accused. As per this witness, his wife informed him that the prosecutrix was taken by accused persons in a light vehicle, but he could not tell that the accused was accompanied by whom. Later on, he deposed that son of Madan was accompanying the accused on the day of occurrence.
10. PW-2, Shri Madan Lal, deposed that he has flock of sheep and goats and his son had been taking the flock to Rohru area. As per this witness, accused was friend of his son and he visited his house about fifteen days prior to 28.08.2007, but he was not there, as he had gone with his flock to higher hills. Later on, he came to know that accused enticed away the prosecutrix. The complainant (PW-1) is his first cousin. He also accompanied the police while searching the prosecutrix. He denied that the prosecutrix was recovered in his presence by the police. This witness was declared hostile, as he has resiled from his previous statement and was subjected to exhaustive cross-examination. He, in his cross-examination, deposed that the accused had been on visiting terms to his house and he used to provide him food, boarding and lodging, whenever he use to stay in his house. He signed document, Ex. PW-2/A (recovery memo) at Nichar. He did not state before the police that accused enticed away the prosecutrix. He has further deposed that in his presence no one signed Ex. PW-2/A.
11. PW-3, Shri Krishan Gopal, Secretary, Gram Panchayat Nichar, deposed that birth certificate, Ex. PW-3/A, is correct, as per the original record. As per this witness, the record shows that the prosecutrix was born on 21.02.1992. This witness, in his cross-examination, has deposed that initially the name of the prosecutrix was recorded as ‘Guddi’ and he had incorporated her name (name withheld) when he issued the birth certificate, Ex.PW-3/A. As per this witness, on the asking of the police he traced the name of the prosecutrix from column of parentage of the child born and also with the help of pariwar register.
12. The prosecutrix was examined as PW-4 and she has deposed that her date of birth is 21.02.1992. House of her uncle, Shri Madan, is close to their house in village Grange. She has further deposed that she is well acquainted with the son of Madan and accused used to come to the house of Madan. On 28.04.2007, she was sleeping in the upper storey and during the night when she came out to attend call of nature, she found the accused hiding near to their house. The accused caught hold of her and asked not to raise alarm otherwise he would kill her. The accused took her to the nearby place where a vehicle was parked and he took her to his house in Tehsil Rohru. As per the prosecutrix, she was recovered by the police from the house of the accused after four-five days. The accused also sexually assaulted her two-three times against her will. The prosecutrix has further stated that initially, she refused for her medical examination at CHC Nichar. The prosecutrix, in her cross-examination, deposed that when her elder brother was married his age was eighteen years and he was married two-three years back. She further deposed that at that time, she was seventeen years of age. She left the school a month prior to the incident and she met the accused once before the incidence. As per the prosecutrix, they have toilet in their house. She did not raise any hue and cry when she was being taken by the accused, as she was threatened by the accused. She has deposed that she informed the police that the accused had threatened to kill her, however, in her statement recorded under Section 161 Cr.P.C., it is not so recorded. She refused for her medical examination, as she was afraid of it. Later on, she agreed for her medical examination. She further deposed that there were four-five persons in the vehicle, viz., accused, his brother and son of Madan, however, again, it is not so recorded in her statement under Section 161 Cr.P.C. In Rohru, she did not complain about the accused to anyone.
13. PW-5, Shri Milap Chand (uncle of the prosecutrix), deposed that when the prosecutrix went missing, the complainant (PW-1) reported the matter to police and he accompanied the police to Rohru. In his presence, the prosecutrix was recovered from the house of the accused and the police arrested the accused. The accused made disclosure statement, Ex. PW-5/A, and he had also signed the same. Demarcation report is Ex. PW-5/B. This witness, in his cross-examination, deposed that he did not visit the house of the accused and also not enquired from the prosecutrix on their return journey. The prosecutrix did not complain to him against the accused. This witness could not tell, even by guess, the date of birth or the age of the prosecutrix and her brother. As per this witness, the accused pointed out the location of the house of the complainant (PW-1). Lastly, this witness unequivocally deposed that he could not tell whether the prosecutrix accompanied the accused on her own.
14. PW-6, Shri Ravinder Kumar, was associated in the investigation by the police. As per this witness, the accused disclosed and identified the place from where he took the prosecutrix and one Nehar Singh was also present at that time. In his presence, disclosure statement of the accused, Ex. PW-6/A, was recorded, which bears his signatures encircled “A” and Nehar Singh also signed the same. This witness was declared hostile and subjected to exhaustive cross-examination. He deposed that disclosure statement, Ex. PW-6/A, was made on 05.09.2007 and as per this witness, it is correct that he stated the date to be 29.08.2007, as the same was disclosed to him by the accused.
15. PW-7, HC Mohinder Singh, deposed that on 03.09.2007, LHC Daulat Ram deposited with him five sealed samples with specimen impression of the seal. On 08.09.2007, HC Anil Kumar deposited three more sealed parcels with specimen impression of seal. On 25.09.2007 LC Santosh Kumar deposited a sealed parcel alongwith specimen impression of seal. On 17.09.2007, through RC No. 186/2007, he handed over three sealed parcels to Constable Ashwani Kumar, which were to be deposited in SFSL. Receipt qua deposit of the same was handed over to him. On 24.09.2007, five sealed parcels alongwith specimen impression of seal vide RC No. 193/2007 were handed over to Constable Ashwani Kumar and on 02.10.2007, a sealed parcel, vide RC No. 198/2007, was handed over to Constable Kunga Palzor. Receipts after deposit of the same were handed over to him. As per this witness, the case property remained intact, under his custody.
16. PW-8, Constable Kunga Palzor, and PW-9, Constable Ashwani Kumar, deposed qua the deposit of the samples in SFSL and stated that under their custody, the parcels remained intact. As the role of these witnesses is limited qua deposit of the case property in the SFSL, so, no more comprehensive discussion of their testimonies is required.
17. PW-10, Dr. Bharti Azad, medically examined the prosecutrix on application, Ex. PW-10/B, moved by the police. As per this witness, the prosecutrix was unwilling for her medical examination and she obtained the signatures of the prosecutrix to this effect. This witness, in her cross-examination, has denied that she thoroughly examined the prosecutrix and did not notice any injury on her person. She deposed that she prepared medico legal certificate, Ex. PW-10/C, stating that the prosecutrix is unwilling for her medical examination. PW-11, Dr. Anupam Gupta, deposed that on 24.09.2007 police moved application, Ex. PW-11/A, requesting for medical examination of the prosecutrix with the alleged history of sexual assault on 29.08.2007. As per this witness, he did not notice any struggle marks on the person of the prosecutrix. Slide of vaginal smear could not be done, as the prosecutrix, at the time of her medical examination, was menstruating. He handed over sealed sample of pubic hair, sealed letter to Chemical Examiner with seal sample, i.e., having sample seal inside, X-ray forms of the prosecutrix and original copy of medico legal certificate. This witness, after receipt of the report from the Chemical Examiner, gave final opinion. PW-11 issued medico legal certificate, Ex. PW-11/C, and gave final opinion is Ex. PW-11/D. This witness, in his cross-examination, has denied that secondary sexual characters, as observed by him, are suggestive of the fact that the prosecutrix was 18 years of age.
18. PW-12, Dr. Ashwani Kumar, deposed that the prosecutrix was referred to him for determining her bony age. As per this witness, under his supervision X-ray examination of the prosecutrix was conducted. He has further deposed that acromion of the prosecutrix was found fused and generally it fuses at the age of 15-16 years. Distal tibia of the prosecutrix was found unfused and generally it fuses at the age of 13¾-15½. He opined that as per the skigrams the age of the prosecutrix was between 15-15½ years. X-ray forms are Ex. PW-12/A and Ex.PW-12/B, which bears his signatures encircled in portion ‘A’. This witness, in his cross-examination, has deposed that the age of fusion of spiphysis is hereditary, due to climatic conditions and diet. He admitted that fusion of spiphysis may vary from person to person and depends upon living. He further admitted that as per Modi the fusion of acromion takes place at the age of seventeen years. He denied that his opinion qua the age differs between 2-3 years.
19. PW-13, Head Constable Anil Katoch, deposed that on 03.09.2007 he accompanied SHO Ravinder Nath Sood for tracing the accused. They found the accused and the prosecutrix in the house of the accused at Chirgaon in village Pekha. Shri Milap Chand (uncle of the prosecutrix) identified the prosecutrix and she was entrusted in the custody of said Milap Chand. He prepared spot map, Ex.PW-13/A. On 08.09.2007 the accused identified the room where he had kept the prosecutrix. A jean pant, a bed sheet, a salwar and a shirt were given by the accused, which were taken into possession, vide seizure memo, Ex. PW-13/B. He prepared the spot map, Ex. PW-13/C, with regard to the recovery of the clothes. This witness, in his cross-examination, has deposed that the house of the accused was identified by one Madan. He did not associate any local persons to identify the house of the accused, as no one assented. As per this witness, there are approximately fifty houses in the village of the accused, but the house of the accused is at a solitary place.
20. PW-14, Dr. Atal Sood, deposed that on 03.09.2007 on application, Ex. PW-14/A, of the police, he medically examined the accused and on examination he found no external injury on his person. He issued medico legal certificate, Ex. PW-14/B, which bears his signatures. As per this witness, there was nothing suggestive that the accused is impotent. PW-15, ASI Chita Ram, deposed that after completion of the investigation, he prepared the final report. Report of SFSL is Ex. PW-15/A. PW-16, Shri Pramod Kumar, deposed that he was associated by the police in the investigation and in his presence police took into possession a bed sheet, jean pant, salwar and a shirt, which are Ex. P-1 to Ex. P-4, vide seizure memo, Ex. PW-13/B, which bears his signatures, encircled in portion ‘A’. This witness, in his cross-examination, has deposed that police had come to Panchayat Bhawan, Gram Panchayat, Deuri Maila, and he was also present there at that time. In his presence no one had delivered anything to the police.
21. PW-17, S.I. Ravinder Nath (Investigating Officer), deposed that on 01.09.2007 FIR, Ex. PW-1/A, was registered and he started investigation. He prepared spot maps, Ex. PW-17/A and Ex. PW-17/B. He, vide memorandum, Ex. PW-17/C, arrested the accused. He also obtained date of birth certificate of the prosecutrix, Ex. PW-3/A, by moving application, Ex. PW-17/D. The accused divulged to him that he took the prosecutrix and he also got identified his house vide memorandum, Ex. PW-5/B. The accused, vide memorandum, Ex. PW-6/A, got identified the place wherefrom he took the prosecutrix. The prosecutrix was medically examined through application, Ex. PW-10/B. Likewise, by moving application, Ex. PW-14/A, the accused was medically examined and his medico legal certificate, Ex. PW-14/B was procured. He recorded the statements of the witnesses under Section 161 Cr.P.C. Statements of witnesses, Shri Madan and Shri Ravinder Kumar, are Ex. PW-17/E and Ex. PW-17/F, respectively. This witness, in his cross-examination, has deposed that he did not obtain copy of pariwar register. As per this witness, the prosecutrix did not disclose to him that accused was accompanied with five more persons.
22. Complainant, Shri Nek Ram (PW-1) has categorically stated that the age of his daughter was 15 years at the time of the incidence, but he has admitted that he had married his son, who was 19 years of age at the time of his marriage, a year before the occurrence. He has further deposed that accused had come to their house with the local deity. He has admitted that the prosecutrix had gone to Rohru alongwith her cousin brother Nand Lal, who is son of his maternal brother. It has also come on record that 5-6 persons were sitting in the vehicle with the prosecutrix, who was accompanied by her cousin brother, Shri Nand Lal, and they went to Rohru. It has also come on record that though the prosecutrix had left her home on 28.08.2007, but no report qua her missing was made for three days, as the family of the prosecutrix was expecting her return on her own. Thus, it can be safely held that the prosecutrix had gone from her house on her own and not because of the fact that she was enticed away by the accused. This fact is further fortified by the statement of the prosecutrix (PW-4). The prosecutrix, in her cross-examination, has stated that at the time of marriage of her brother, she was 17 years of age and if it is taken into consideration, then in any case, she was more than 16 years of age at the time of the occurrence.
23. This Court needs to delve into the statement of Dr. Bharti Azad (PW-10), which is very vital, for ascertaining whether the prosecutrix was subjected to sexual intercourse or not. This witness has deposed that on 04.09.2007 the prosecutrix has refused to undergo medical/physical examination, when she was brought for medical examination. She has further deposed that such statement of the prosecutrix was recorded in presence of Lady Constable, Santosh Kumari, and Ward Sister, Vidya Devi. This demonstrates that the prosecutrix was not sexually assaulted, as had it been so, she would have definitely opted for her medical examination. At the same point of time, PW-11, Dr. Anupam Gupta, on 24.09.2007 medically examined the prosecutrix, i.e., after a month of the occurrence. Medico legal certificate, Ex.PW-11/C, issued by this witness, reflects that vagina admitted one finger with difficulty and hymen was torn with tear present on 3 O’clock and 9 O’clock position. Thus, the statement of this witness also castes a serious doubt with regard to veracity of the prosecution story that the accused has committed sexual intercourse with the prosecutrix. On the other hand, Shri Nand Lal, cousin brother of the prosecutrix, who accompanied the prosecutrix upto Rohru, was not examined by the prosecution and the reason for his non-examination goes unexplained. There is nothing on record whether for such a long distance, viz., from the house of the prosecutrix to Rohru, they stopped at any place. Likewise, there is nothing on record which demonstrates that en route the prosecutrix raised any hue and cry, especially when she was allegedly enticed away by the accused. As far as the age of the prosecutrix is concerned, there is no conclusive evidence to hold that she was less than 18 years of age and further there is no evidence on record to demonstrate that the prosecutrix was enticed away by the accused.
24. The date of birth certificate of the prosecutrix, Ex. PW-3/A, has been issued by Shri Krishan Gopal (PW-3), Secretary, Gram Panchayat, Nichar, and as per his statement he prepared the said certificate on the basis of pariwar register, which is not as per the procedure. The learned Court below has failed to take into consideration the fact that date of birth certificate, so produced by the prosecution is inadmissible. Further PW-3, has unequivocally deposed that name of the prosecutrix was earlier recorded as Guddi. Thus, the date of birth certificate, Ex. PW-3/A, which is engulfed with suspicions, cannot be made a ground for convicting the accused.
25. The learned counsel for the appellant has placed reliance on a judgment of Hon’ble Supreme Court rendered in Jnish Lal Sha v. State of Bihar, (2003) 1 SCC 605 : AIR 2003 Supreme Court 2081, wherein the Hon’ble Supreme Court observed that physique of girl, as explained by the doctor, indicated probability of girl being above 18 years of age. Evidence of the girl in such a backdrop appeared wholly unreliable, when she deposed that she was only 14 years of age. The Hon’ble Supreme Court held that charge under Section 366-A has failed against the accused on the premise that the prosecution has not been able to establish that the girl was less than 18 years of age on the date of occurrence. Apt para of the judgment (supra) is extracted hereunder for ready reference:
“5. PW-10 the doctor in his evidence has stated that PW-1’s X-ray photograph showed partial epiphy seal fusion of iliac crest. In her opinion, PW-1 appeared to be 17 years old which opinion of the Dr. is from the very language used by her shows it to be approximate. The physique of PW-1 as explained by PW-10 also indicates the probability of PW-1 being above the age of 18 years. In this background if we examine the evidence of PWs. 6 and 10 it is clear that evidence of PW-1 is wholly unreliable when she states that she was only about 14 years old. Even though PW-10 Dr. stated that PW-1 appeared to be 17 years old cannot be held that this evidence is conclusive enough to come to the conclusion that PW-1 was really below 18 years on the date of incidence, in view of positive statements made by PW-6 the father. We have already referred to the evidence of the father, according to whose evidence PW-1 was 19 years of age when she left the house of the father. In such situation, we think it not safe to come to the conclusion that PW-1 was less than 18 years of age on the date when she left the house of her father. While discussing this part of the prosecution case, the Trial Court in its judgment has not considered the evidence of PW-6 the father at all. It merely relied upon evidence of PW-10 accepting the same on its face value, without discussing the other material that was available on record. Even the High Court in this regard in its judgment merely stated Dr. who examined the prosecutrix found her age to be 17 years …….” the High Court has not independently given any findings either accepting this evidence or not. It has also not discussed the evidence of PW-6 in regard to the age of PW-1. In this background for the reasons already stated hereinabove we think that the prosecution has failed to establish that PW-1 was less than 18 years of age as on the date of incidence. If that be so, charge under S. 366-A of which the appellant was found guilty by both the Courts below shall fail. The learned counsel for the State, however, contended that if the charge under S. 366-A should fail then, the appellant is liable to be convicted under S. 366 for kidnapping, abducting or inducing a woman to compel her to marry. He has referred to the evidence of PW-1 in this regard and contends that even though there is no specific charge under S. 366 still on the material available on record a conviction under S. 366 could be based and no prejudice would be caused to the appellant. But then, we will have to notice that even to establish the charge under S. 366, I.P.C., there should be acceptable evidence to show that either PW-1 was compelled to marry the appellant against her will and/or was forced to or induced to intercourse against her will. This would therefore, require the prosecution to prove that there was some such undue force on the PW-1 wither to marry the appellant or to have intercourse with him. Therefore, it becomes necessary for us to examine the prosecution case whether there was a threat or whether there was consent as contended by the defence. While we consider this question of existence of consent or absence of it we may also consider the charge under Section 376, I.P.C. of which the appellant is found guilty by the Courts below because one of the ingredients necessary for establishing such a charge in regard to a girl over the age of 16 is the presence or otherwise of consent. Therefore, both for the purpose of Section 366 and for the purpose of S. 376, I.P.C., there should be material to establish that either the alleged marriage or the intercourse has taken place without the consent of PW-1 if she is above the age of 18 years or 16 years as the case may be.”
26. The judgment (supra) on all fours is applicable to the facts of the present case.
27. The learned counsel for the appellant has also placed reliance on another pronouncement of Hon’ble Supreme Court in Alamelu v. State, (2011) 2 SCC 385. Apposite paras of the judgment (supra) are extracted hereunder for ready reference:
“45. In fixing the age of the girl as below 18 years, the High Court relied solely on the certificate issued by PW8 Dr. Gunasekaran. However, the High Court failed to notice that in his evidence before the Court, PW8, the X-ray Expert had clearly stated in the cross-examination that on the basis of the medical evidence, generally, the age of an individual could be fixed approximately. He had also stated that it is likely that the age may vary from individual to individual. The doctor had also stated that in view of the possible variations in age, the certificate mentioned the possible age between one specific age to another specific age. On the basis of the above, it would not be possible to give a firm opinion that the girl was definitely below 18 years of age.
46. In addition, the High Court failed to consider the expert evidence given by PW13 Dr. Manimegalaikumar, who had medically examined the victim. In his cross-examination, he had clearly stated that a medical examination would only point out the age approximately with a variation of two years. He had stated that in this case, the age of the girl could be from 17 to 19 years. This margin of error in age has been judicially recognized by this Court in the case of Jaya Mala v. Home Secretary, Government of Jammu Kashmir, (1982) 2 SCC 538, In the aforesaid judgment, it is observed as follows:—
“9. .….. However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side.”
47. We are of the opinion, in the facts of this case, the age of the girl could not have been fixed on the basis of the transfer certificate. There was no reliable evidence to vouchsafe the correctness of the date of birth as recorded in the transfer certificate. The expert evidence does not rule out the possibility of the girl being a major. In our opinion, the prosecution has failed to prove that the girl was a minor, at the relevant date.
48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi v. State of U.P., (2006) 5 SCC 584 held as follows:—
“38. The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted.”
49. In such circumstances, we are constrained to hold that the High Court without examining the factual and legal issues has unnecessarily rushed to the conclusion that the girl was a minor at the time of the alleged abduction. There is no satisfactory evidence to indicate that she was a minor.”
28. Again, the judgment (supra), as relied upon by the learned counsel for the appellant, is fully applicable to the facts of the present case and the benefit of the same can safely be extended to the appellant.
29. On the other hand, the Law Officer has placed reliance on a judgment of Hon’ble Supreme Court rendered in Mahadeo v. State of Maharashtra, (2013) 14 SCC 637, wherein it has been held as under:
“13. In the light of our above reasoning, in the case on hand, there were certificates issued by the school in which the prosecutrix did her Vth standard and in the school leaving certificate issued by the said school under Exhibit 54, the date of birth of the prosecutrix has been clearly noted as 20-5-1990, and this document was also proved by PW 11. Apart from that the transfer certificate as well as the admission form maintained by the Primacy School, Latur, where the prosecutrix had her initial education, also confirmed the date of birth as 20-5-1990. The reliance placed upon the said evidence by the courts below to arrive at the age of the prosecutrix to hold that the prosecutrix was below 18 years of age at the time of the occurrence was perfectly justified and we do not find any good grounds to interfere with the same.”
30. However, the judgment (supra) is not applicable to the facts of the present case, as in the case in hand the only available proof qua the date of birth of the prosecutrix is Ex. PW-3/A, but even as per PW-3, Shri Krishan Gopal, Panchayat Secretary, Gram Panchayat, Nichar, the certificate had not been prepared as per the law and more over there is nothing on record which unambiguously establishes that the same relates to the prosecutrix. On the other hand, the prosecutrix herself, in her cross-examination, has deposed, while appearing in the Court as PW-4, that she was more than 16 years of age at the time of the alleged incidence. Further, the ossification test shows that the age of the prosecutrix was 15½ years at the time of the incidence, so applying the principle of plus three it can safely be taken as 18 years, especially when Modi’s Medical Jurisprudence and Toxicology says that plus three can be given in normal circumstances, considering extreme climatic conditions, viz., place of living and other circumstances. In the case in hand, the prosecutrix has grown up in extreme climatic conditions and the available record shows that she was more than 15½ years of age at the time of the incidence, thus applying the well accepted method of Modi’s Medical Jurisprudence and Toxicology her age can be more than 18 years. Thus, the prosecution has failed to establish that at the time of the incidence the prosecutrix was below 18 years of age. Even otherwise also, the prosecution has failed to prove that the prosecutrix was enticed away by the accused, as the best witness to this effect would have been the cousin brother of the prosecutrix, who as per the story of the prosecution, accompanied the prosecutrix to Rohru, but for the reasons best known to the prosecution, he was not examined.
31. PW-2, Shri Madan Lal, who is one of the material witness, has not supported the prosecution story and nothing favourable to the prosecution has come despite his exhaustive cross-examination. This, coupled with the fact that the prosecutrix while appearing as PW-4, has deposed that she has gone outside during the night to answer the call of nature and the accused took her away, but it has come on record that there is a toilet in the house of the prosecutrix. Thus, it can be safely held that statements of prosecutrix (PW-4) and her father (PW-1) are full of suspicions, as they later on made major improvements in their statements, when they were examined in the Court and on such shabby and slippery evidence the accused cannot be held guilty. Likewise, PW-5, Shri Milap Chand, did not at all support the prosecution story, as he, in his cross-examination, has stated that he could not tell whether the prosecutrix accompanied the accused on her own or not. In fact, as per the prosecution story, he is the person who has brought the prosecutrix from Rohru.
32. In ratiocination, it is more than safe to hold that the prosecution has failed to prove the guilt of the accused and the findings of conviction against the accused/convict, as recorded by the learned Trial Court, are wrong and needs interference, as the same are without appreciating the evidence correctly and to its true perspective. Accordingly, the appeal is allowed and the judgment of conviction, passed by the learned Trial Court, is set aside. Resultantly, the accused is acquitted for the commission of the offence, as alleged by the prosecution.
33. In view of the above, the appeal, so also pending application(s), if any, stand(s) disposed of.