State of Himachal Pradesh vs Manoj Kumar

Justice Sanjay Karol, J.—For an offence, which is alleged to have been committed on 14.10.2001 accused was put to trial. In terms of judgment dated, 20.8.2004, passed by the Ld. Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, H.P. in Sessions Trial No. 6 of 2003, titled as State versus Manoj Kumar, accused stands acquitted of the charged offences. It is the case of prosecution that prosecutrix (PW-1) was born on 16.6.1987. She used to live with her father Sh. Krishan Dev (PW-2) and mother Smt. Viasmani (PW-5) at Village Kalpa, District Kinnaur, H.P. Accused Manoj Kumar used to work in village Kalpa and was on visiting terms with the family of prosecutrix. On 14.10.2001 accused took the prosecutrix to the forest in village Kalpa. There he forcibly committed sexual intercourse with her and promised to marry her. Thereafter he took her from Kalpa to Rampur, Shimla and finally to Kullu where they lived together for about 4 months. In the morning of 15.10.2001, PW-2 found his daughter to be missing and as such lodged F.I.R. No. 50 of 2001 (Ext. PW 2/A), dated 15.10.2001 under Sections 363, 366 IPC at Police Station R/Peo, against the accused. Police searched for the accused and the prosecutrix but could not find them anywhere. Some time in the month of February, 2002, prosecutrix felt home sick and asked the accused to take her to the house of her parents. As such on 27.2.2002, accused brought her back to Kalpa. There she narrated the incident of kidnapping and rape to her parents and the very same day, police recorded her statement (Mark PW 1/A) u/s 161 Cr. P.C. and arrested the accused. Police got the prosecutrix medically examined from Dr. Anita Negi (PW-11), who gave her opinion that prosecutrix was not virgin and there was evidence of recent sexual intercourse. Skeletal age of the prosecutrix was also got determined and as per medical record (Ext. PW 11/H) and opinion (Ext. PW 12/A) given by Dr. Usha Sharma duly proved by Dr. Suman Gupta (PW-12) prosecutrix was between 15 to 16 years of age. In that regard police also obtained certificate (Ext. PW 3/A) from the school where prosecutrix was studying as also birth certificate (Ext. PW 4/A) issued by Gram Vikas Adhikari. Statements of the material prosecution witnesses were recorded and with the completion of investigation challan was presented in the Court for trial.

Accused was charged for having committed offences punishable under Sections 363, 366-A and 376 IPC to which he did not plead guilty and claimed trial.

In order to prove its case, in all prosecution examined as many as 12 witnesses and statement of the accused u/s 313 Cr. P.C. was also recorded. In defence accused examined one witness.

Court below acquitted the accused of the charged offences, hence the present appeal.

Prosecution has to prove, beyond reasonable doubt, by leading clear, cogent, convincing, material piece of evidence that accused had forcibly taken away the prosecutrix, without her consent, from the lawful guardianship of her parents and also voluntarily, knowingly and intentionally induced her to leave the house of her parents. He also seduced her to have illicit relations with him under promise of marriage. Accused was aware that prosecutrix was a minor and thus by committing sexual intercourse committed an offence of rape.

In this case testimony of the prosecutrix (PW-1), her parents (PW-2 and PW-5) and defence witness Sh. Sadh Ram (DW-1) is material. That the parties had developed intimate physical relationship is not in dispute. There is no medical evidence on record to prove that prosecutrix was subjected to physical assault.

Significantly Sh. Krishan Dev (PW-2) got F.I.R. in relation to missing of his daughter registered on 15.10.2001 itself. Through the testimonies of PW-2 and the Investigating Officers, HC-Mohan Joshi (PW-7) and ASI-Brij Lal (PW-8) prosecution has not been able to sufficiently explain, what steps were actually taken by the police or her parents in tracing the prosecutrix prior to 27.2.2002, the date on which undisputedly accused himself brought her back for meeting her parents.

Noticeably accused does not belong to the community or the area to which prosecutrix belongs. Prosecutrix hails from a tribal area where it is common for girls to get married quite early in age and accused belongs to a totally different area, i.e. Sunder Nagar. Normally girls from tribal areas are married with boys of the same area.

Having closely gone through the testimonies of the material prosecution witnesses, we find that it is a case where the prosecutrix and the accused had developed intimate relationship and prosecutrix of her own volition left the house of her parents to live with the accused at Kullu. She travelled from her native place i.e. Kalpa to Rampur, then to Shimla and finally to Kullu. She travelled in vehicles both public and private. She neither protested nor objected to accompanying the accused though she had occasion to either slip away or inform/report about the incident to public authorities/private persons on various occasions and at various places. Not only that, accused and prosecutrix, lived together as husband and wife in the same accommodation rented out by Sh. Sadh Ram (DW-1), who in his uncontroverted testimony has categorically deposed that prosecutrix and accused were living as husband and wife in the house let out by him at Kullu. Prosecutrix used to freely visit the markets and had access to everyone in the neighbourhood.

In Court prosecutrix simply deposes that accused had enticed her to get married and after taking her into forest raped her. She admits to have left her parent''s house in the company of accused. Though she states that the accused took her forcibly but we find this testimony of hers not to inspire confidence. Significantly she was confronted with her statement recorded u/s 161 Cr. P.C. wherein it is specifically recorded that prior to the incident she had developed close intimacy with the accused. She admits not to have raised alarm at any one of the places where she travelled with the accused. She admits that in Kinnaur (where Kalpa falls) normally girls are married at the age of 13 - 14 years. Significantly she contradicts her earlier version by stating that only after accused raped her he did promise to marry her. This shakes the genesis of the prosecution case. In Kullu she admits to have lived freely as wife of the accused. Thus to us it appears to be a case where prosecutrix herself left her parents in the company of the accused and started living with him as husband and wife. We also find that there are several improvements in her statement. She has also resiled with her earlier statement with which she was confronted with.

However the crucial question which still needs to be examined is as to whether prosecutrix was below 16/18 years of age as on the date of commission of the alleged crime. In this regard we find that prosecution has not been able to prove the exact date of birth or the age of the prosecutrix.

Prosecutrix (PW-1) states that as on the date of alleged crime she was 14 years of age. She does not disclose her exact date of birth. Her father (PW-2) also states that prosecutrix was 14 years of age. However, he states that "I do not know the name of Secretary when I entered the date of birth of the prosecutrix. I cannot state the date, month and year of the birth of the prosecutrix. I have five children. I cannot state the date, month and year of each children. The prosecutrix did not fail in the school. I do not remember the year in which prosecutrix was admitted in the school. I have 4 brothers and each brothers have separate wife. My marriage was solemnized above 20 years ago. My first daughter was born after 2 years of my marriage. My elder daughter is prosecutrix".

Now mother of the prosecutrix (PW-5) states that prosecutrix was 15 years of age when she was kidnapped. She further states that "I was aged 17 years when I was married. My marriage was solemnized about 22 years ago. The prosecutrix was born after one year of my marriage. Manoj Kumar was not known by the prosecutrix. Prosecutrix did not reside with the accused when she came back from Kullu".

Here we feel it necessary to reproduce the question put by the Court to this witness and the answer given by her. It reads as under:-

C.Q. After what period of your marriage, the prosecutrix was born?

Sir, The prosecutrix was born after one year of my marriage.

Thus we find that there are inherent contradictions in the testimonies of the parents. None has disclosed the date of birth. According to the mother, prosecutrix was fifteen years of age, whereas, according to the father she was of fourteen years. There is material contradiction with regard to the year of marriage and the time when prosecutrix was born. If the statement of the mother is to be believed then prosecutrix was more than eighteen years of age, as she was born within one year of the marriage which was solemnized 22 years prior to recording of her statement in Court on 18.9.2003.

According to the medical evidence, age of the prosecutrix is 15 - 16 years but definitely she has achieved the age of discretion and knows worldly ways and the difference between right and wrong.

The other evidence on record is the certificate (Ext. PW 3/A) issued by the school where prosecutrix was studying. This was proved by Smt. Chhiang Dolma (PW-3). But then this is no evidence in law. PW-3 admits that entry in the school register was made on the basis of record maintained by the primary wing of the school which also was not produced in Court. Thus initial entry made in the school record has neither been produced nor proved.

Next is the certificates (Ext. PW 4/A - Ext. PW 4/B) issued by Secretary Gram Panchayat and proved by Sh. Basant Kumar (PW-4). Now this witness categorically states that certificates were issued on the basis of family register maintained in the Panchayat and there is no entry of birth of the prosecutrix in the Birth and Death Register maintained by the Panchayat. Certificates (Ext. PW 4/A and Ext. PW 4/B) were issued on the basis of pariwar register and not Birth and Death Register. Even entry in the pariwar register was not recorded by him. In fact family register was not produced in Court. Significantly PW-2 does not remember the name of the Secretary who made entries in the family register. The same were not in any event recorded by PW-4.

In almost similar circumstances, this Court in State of Himachal Pradesh Vs. Narender Kumar alias Hira and Others, , has held as under:

The other evidence on this issue itself is the Family Register (Ext. PW-8/A) maintained by the Gram Panchayat Officer, Nayaye Panchayat Kendra, Titota, U.P., which records the date of birth of the prosecutrix to be 3.3.1977. The same has been proved by Sh. Ram Dutt Sharma (PW-8), Gram Panchayat Adhikari, Gram Panchayat Titota, Tehsil Anup Shahar, Distt. Bulland Shahar, U.P. The document as prepared and maintained raises doubt about its genuineness. The Pariwar Register is not shown to be maintained under any statute. It does not bear the signature of either the Pradhan or any other officer of the Panchayat. Even according to PW-8 the register is neither printed in a government press nor issued by any panchayat officer and is easily available in the open market. In fact the same was purchased and prepared by him in June, 1992 i.e. after the date of the alleged incident. He also did not verify the entries made in the register though previous registers were available with him. The prosecution has chosen neither to produce nor prove the entries made in the said registers. This witness has admitted to be in touch with PW-4. He admitted to have deleted the names of two persons entered as family members of PW-4. This he did even though they had died in the year 1987 and 1969. If the register was prepared in June, 1992 then obviously the names of the persons having died prior thereto could not have been entered into therein. The manner of preparation of the Pariwar Register raises doubt about its authenticity and genuineness. Importantly the Pariwar Register does not disclose the name of the person who had disclosed the information on the basis of which the said entry of date of birth of the prosecutrix was made there. PW-8 was not in service at the time of making the entry in the earlier registers and the Pariwar Register is also not shown to be maintained under any statute. It is also not the case of PW-4 that he had got the particulars entered in the Pariwar Register at the time of the birth of the prosecutrix. In fact it is not the case of the prosecution that the prosecutrix was not born in Kasauli and was in fact born at the native place of her parents in the State of Uttar Pradesh. In any event Pariwar Registers cannot be held to be of conclusive and binding evidentiary value.

The Apex Court in Birad Mal Singhvi v. Anand Purohit, (1988) Supp. 1 SCC 604 has held as under:

To render a document admissible u/s 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 u/s 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.

(emphasis supplied)

The same has been reiterated in Ravinder Singh Gorkhi Vs. State of U.P., and Ram Suresh Singh vs. Prabhat Singh (2009) 6 SCC 681.

Consequently certificates (Ext. PW 4/A and Ext. PW 4/B) cannot be accepted to be legal evidence, proving the factum of date of birth of the prosecutrix.

Thus it cannot be said that prosecution has been able to prove the fact that prosecutrix was below 18/16 years of age on the date of the alleged offence or that accused induced her to have sexual intercourse with him on the pretext of marrying her or that she had been forcibly kidnapped by the accused or that she was threatened or intimidated by him. It also cannot be said that accused forcibly committed sexual intercourse with her. The accused has had advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., it cannot be said that Court below has incorrectly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. Present appeal is thus dismissed. Bail bonds, if any, furnished by the accused are discharged.