State of Himachal Pradesh vs Joginder Singh

V.K. Ahuja, J.—This is an appeal filed by the State of H.P. u/s 378 Cr.P.C. against the judgment of the Court of learned Sessions Judge, Kullu, dated 28.5.2003, vide which he acquitted respondent No. 1 of the charge framed against him under Sections 363, 366 (A) and 376 I.P.C. and respondent No. 2 of the charge framed against her u/s 363 I.P.C. Briefly stated, the facts of the case are that on 7.4.2002 a telephonic message was received by Bhuntar Police by S.I. Tameshwar that daughter of Smt. Sharda Devi, aged about 12 years was missing. S.I. proceeded to the spot, recorded the statement of Smt. Sharda Devi u/s 154 Cr.P.C., in which it was alleged that one Basakhu Ram had died. In their village, according to rituals in the society, she had sent daughter ''X'' (name not mentioned) to the house of said Basakhu Ram in order to help the family in domestic work on the death in family. Her daughter did not return and when she enquired, she was informed by one Ruhni Devi that they had not seen their daughter. The complainant searched for her daughter and on the evening of 6.4.2002, the complainant was informed by one Shiv Ram, Pradhan, of the area that he had seen the accused persons Krishna Devi and her husband taking her daughter in a bus. The case was registered under Sections 363, 366 and thereafter u/s 376 I.P.C.

On completion of the investigation, the challan was filed before the Court of learned Chief Judicial Magistrate, Kullu, who committed the case to the Court of learned Sessions Judge, who tried the respondents as detailed above, leading to their acquittal.

We have heard the learned counsel for the parties and have gone through the record of the case.

The first question which arises for consideration is in regard to the age of the prosecutrix at the time of the offence by the accused persons. The prosecution has examined PW-6 Shiv Ram, Pradhan of Gram Panchayat Talwara, who has stated that on 16.4.2002, Secretary Bhagat Ram of Gram Panchayat had given birth certificate of ''X'' to the police vide Memo Ext. PW6/A, which bears his signatures. The certificate had been prepared by the Secretary. The witness does not state that this was issued by the Secretary after seeing the birth register. He does not state that the birth register was produced in the Court and he compared the same and proved the some according to law. The date of birth mentioned or proved as per this certificate is 25.3.1989, which suggests that the date of birth of the prosecutrix on 7.4.2002 was less than 13 years. PW-7 Bhagat Ram is the Secretary of the Gram Panchayat, who had issued the certificate and proved his signatures. He prepared the certificate from the birth register. He had not made entry in the birth register nor the same was produced. However, this evidence cannot be taken as primary evidence to conclude that the age of the girl was around 13 years when the original birth register was not produced by the witness during the trial of the case and there is no evidence to show that this was based upon the copy of the birth entry attached in Panchayat record, which was required to be produced to prove the age of the prosecutrix.

Apart from the above, the prosecution has examined PW-14 Dr. Yash Pal, who has stated that x-rays were conducted under his supervision. He proved skigrams Ext. PW14/A to Ext. PW14/E and gave his report Ext. PW14/F in this regard. The radiological age was in between 13 to 16 years. According to law, two years can be added or deducted and as such, the age can be either 11 or 18 years.

The above evidence is not sufficient to prove that the age of the girl on the date of the occurrence was below 16 or 18 years, which has to be proved by primary evidence before the accused can be held guilty. In case, he age was more than 16, she was capable of giving consent for sex and in case, the age was about 18 or so, until and unless there was evidence to show that she was forcibly taken under a threat, the guilt of the respondents cannot be said to have been proved.

Coming to the evidence, the prosecutrix has been examined as PW-5, who states that her mother had sent her to the house of Basakhu. She remained in his house for three days. Accused No. 2 told that since the son of her maternal uncle is a rich person, she should marry him. She refused to marry him. Then she was taken forcibly firstly to Aut in District Kullu and then to Kangra. She remained for the night in the house of accused. She stated that on 7th accused No. 1 committed the act of rape upon her and then she was told to return to her house alone. She stated that when she was recovered, she and both the accused were lying on the same bed. The other accused is the wife of the main accused Joginder Singh. She simply stated that she was raped by accused No. 1 on 7th. She did not state at all or explain the term used by her, since she is a village girl. She did not state that sexual intercourse was done with her against her will or that she was made to remove her Salwar or the accused also removed his pant and committed sexual intercourse with her against her wish.

Coming to the testimony of other material witness PW-2 Sharda Devi, mother of the prosecutrix, who simply stated that she had sent her daughter to the house of Basakhu Ram and accused No. 1 had raped her. She never stated as to when this was told to her by the prosecutrix in whose presence or the details of the occurrence except using the word that the prosecutrix was raped by accused No. 1.

Coming to the medical evidence, Medical Officer PW-1 Dr. Mrs. Gita Kaul, who examined the prosecutrix, observed as under:-

In my opinion the victim was exposed to coitus within 4 to 5 days. The radiological age of the victim was 13 to 16 years. The MLC is Ex. PW-1/A and bears my signatures. I obtained the thumb impression of the mother of the victim on the MLC Ex.PW-1/A and also noted down the mark of identification of the victim on the MLC. Victim Rami Devi present today in the court is the same. The slides were handed over by me to lady Const. Ram Kali. The request by the police is Ex.PW-1/B for the examination of victim. I have seen the reports of chemical examiner which are Mark A and B.

A perusal of the MLC Ext. PW1/A shows that the girl was examined after the consent of her mother was taken, but in the history, the only observations made by the Medical Officer are as under:-

Alleged H/O being abducted by Krishna and Joginder Singh on 6/4/02. The victim was taken to Kangra and was brought back to Kullu by Chatri and Prema on 8/4/2002.

There is no mention that the prosecutrix or her mother had told the Medical Officer in regard to rape by any person, who was not named also.

Apart from the above, it is in the statement of the prosecutrix as PW-5 and her mother PW-2 that they were not having good relation with Basakhu Ram and it looks surprising that still the girl was sent to their house at the time of death of Basakhu to help in the domestic work. This part of the evidence makes the prosecution story doubtful. The statements of the prosecutrix herself or that of her mother are not such on which implicit reliance could be placed to hold that they had abducted or kidnapped the prosecutrix or she was subjected to rape by accused No. 1. Therefore, the final conclusion drawn by the learned trial Court holding that the guilt of the respondents was not established, cannot be said to be perverse, calling for an interference by this Court. In view of the above discussion, we accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged forthwith.