Himachal Pradesh High Court
State Of Himachal Pradesh vs Of on 27 May, 2016
Bench: Dharam Chand Chaudhary, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
Cr. Appeal No. 481 of 2009 Decided on: 27th May, 2016 State of Himachal Pradesh .......Appellant Versus of Negi Ram son of Sh. Lal Chand ...Respondent.
Coram The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
rt The Hon'ble Mr. Justice Chander Bhusan Barowalia,, Judge.
Whether approved for reporting?1 Yes.
For the appellant: Mr. D.S. Nainta and Mr. Virender
Verma, Additional Advocates
General.
For the respondent: Mr. Ramesh Sharma, Advocate.
Dharam Chand Chaudhary, Judge (Oral).
The prosecution, aggrieved by the judgment dated 12.05.2009, passed by learned Sessions Judge, Chamba, District Chamba in Sessions Trial No. 1 of 2009, whereby the respondent (hereinafter referred to as the accused) has been acquitted of the charge under Sections 363, 366 and 376 of the Indian Penal Code, has 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:29:02 :::HCHP 2filed this appeal, with a prayer to quash the impugned judgment and after holding him guilty for the commission .
of the offence, he allegedly committed.
2. The case, as disclosed from the statement of the prosecutrix recorded under Section 161 of the Code of of Criminal Procedure shortly stated is that the accused is resident of village Cheeh Tehsil Churah, District Chamba.
rt The prosecutrix (name withheld) is also resident of the same village. The accused was running a shop in the village. The prosecutrix as and when happens to cross through the path adjoining to his shop he always conduct himself with her in a romantic mood. She fell prey to such romantic attitude of the accused. On 3.08.2008, he allured her and taken to a lonely place in the field. There he subjected her to sexual intercourse without her consent and against her will. Thereafter, she was not allowed to come to her home. Accused told that he will solemnize marriage with her. She was taken to a cave (Kud) and made to sit there. In the evening, he brought apples from the nearby orchard to eat. They stayed in the Kud from 3.8.2008 to 5.8.2008. On 6.8.2008, ::: Downloaded on - 15/04/2017 20:29:02 :::HCHP 3 she was brought out from the Kud to have meal in the canteen of Baira Siul Project. She was asked not to .
disclose anything about the incident to anyone and threatened to do away with her life in case she divulged anything qua the incident to anyone. Around 12.00 of noon, while on the way to canteen, police party comprising her father PW-1 and uncle PW-4 nabbed them.
rt
3. On finding the prosecutrix missing from the house, her mother PW-2 searched her here and there, but of no avail. Her father PW-1 is a carpenter by profession and was away to District Kinnaur in connection with his work. He reached in the house on 4.08.2008 at 10.00 a.m. On coming to know about his daughter, the prosecutrix missing from his wife PW-2, he searched her here and there, in his relations and neighborhood, but of no avail. Since the accused was also found missing from the village, therefore, it is he, who was suspected to have enticed away the prosecutrix, allegedly minor from her guardianship. The report of missing of the prosecutrix was, therefore, ::: Downloaded on - 15/04/2017 20:29:02 :::HCHP 4 lodged in Police Station, Tissa, District Chamba on the next day, i.e. 5.8.2008, at about 4.00 p.m. by PW-1. The .
FIR Ext. PW-1/A was registered under Section 363 and 366 of the Indian Penal Code.
4. The Police accompanied by the of complainant and others searched the prosecutrix, who on the next day was found sitting in the company of rt accused on the bank of the dam of Baira Siul Project.
The accused was arrested there and then. The statement of prosecutrix under Section 161 of the Code of Criminal Procedure mark 'A' was recorded. She disclosed to the police that during the period she remained in the company of the accused, he subjected her to sexual intercourse. On the basis of the statement so made by her, a case under Section 376 of the Indian Penal Code was also registered against the accused.
The custody of the prosecutrix was entrusted to her father PW-1 vide Ext. PW-1/B. On the next day, application, Ext. PW-5/A was made to the Chief Medical Officer, Regional Hospital, Chamba for conducting medical examination of the prosecutrix. PW-5 has ::: Downloaded on - 15/04/2017 20:29:02 :::HCHP 5 conducted her medical examination and issued Medico Legal Certificate Ext. PW-5/B. In the opinion recorded on .
the reverse side of the Medico Legal Certificate and on perusal of the report of chemical analyst, PW-5 did not rule-out the possibility of the commission of rape with the of prosecutrix. The date of birth certificate Ext. PW-6/A and the extract of parivar register Ext. PW-7/A were collected rt from Government Primary School and Gram Panchayat, Cheeh, District Chamba. During the investigation, the accused was also got medically examined vide Ext. P-A. The clothes/under garments of the accused were recovered and taken into possession vide seizure memo Ext. PW1/B. The clothes and under garments of the prosecutrix were sealed in the hospital and handed over to the police. The same were got chemically analyzed and the chemical report is Ext. P-X.
5. On the completion of the investigation, report under Section 173 of the Code of Criminal Procedure was filed against the accused in the trial Court.
::: Downloaded on - 15/04/2017 20:29:02 :::HCHP 66. Learned trial Judge on going through the report and the documents annexed therewith and .
finding a case under Sections 363, 366 and 376 of the Indian Penal Code prima-facie made out against the accused framed charge accordingly. He, however, of pleaded not guilty to the charge. Therefore, the prosecution in order to sustain the charge against the rt accused has produced the evidence.
7. PW-1 is the father of the prosecutrix. It is at his instance FIR Ext. PW-1/A was registered by the police.
According to him, the custody of the prosecutrix was entrusted to him vide memo Ext. PW-1/B. PW-2 Shanto Devi is the mother of the prosecutrix, whereas Tej Singh, PW-4 is her uncle. The prosecutrix has stepped into the witness box as PW-3. PW-5 Dr. Arti is the Medical Officer, who has medically examined the prosecutrix in Regional Hospital, Chamba, whereas, PW-6 Saleem, Assistant Teacher in Government Primary School, Cheeh has proved the certificate Ext. PW-6/A and PW-7 Tek Chand, Secretary, Gram Panchayat, Cheeh copy of parivar register Ext. PW-7/A. The remaining witnesses are police ::: Downloaded on - 15/04/2017 20:29:02 :::HCHP 7 officials who any how or other remained associated with the investigation of the case. The Investigating Officer is .
PW-12 ASI Maan Singh.
8. The accused, on the other hand, in his statement recorded under Section 313 Cr.P.C., has of denied each and every incriminating circumstance appeared in prosecution evidence against him either rt being wrong or for want of knowledge. In his defence, while answering second last question in his statement it has been submitted that due to business rivalry, family of prosecutrix was inimical with him and her family members allegedly quarreled with his family members over a land dispute. Therefore, her parents and uncle Tej Singh have fabricated the case against him falsely.
9. Learned trial Judge on appreciation of the evidence comprising oral as well as documentary has arrived at a conclusion that the present is not a case of commission of sexual intercourse with the prosecutrix forcibly or against her will and without her consent and that she rather was a consenting party to the commission of such act with her by the accused. She ::: Downloaded on - 15/04/2017 20:29:02 :::HCHP 8 was also not found to be minor below 16 years of age and as such, the accused was acquitted of the charge .
framed against him under Sections 363, 366 and 376 of the Indian Penal Code.
10. The judgment under challenge has been of assailed on the grounds inter-alia that the Court below has erroneously discarded the cogent and reliable rt evidence as has come on record by way of the testimony of prosecution witnesses. There being no evidence of enmity of the parents of the prosecutrix with the accused, the prosecution evidence should have not been ignored. The prosecution evidence as has come on record by way of her own testimony and also that of her father PW-1 and mother PW-2 duly corroborated by the medical evidence should have not been ignored.
11. On behalf of the appellant-State, it is strenuously contended that irrespective of overwhelming cogent and reliable evidence available on record suggesting that the prosecutrix, a minor has been subjected to sexual intercourse by the accused, he has erroneously been acquitted of the charge.
::: Downloaded on - 15/04/2017 20:29:02 :::HCHP 912. On the other hand, Mr. Ramesh Sharma, learned defence counsel has vehemently argued that .
there being no iota of evidence that the prosecutrix was below 16 years of age on the day of occurrence, her conduct that she voluntarily accompanied the accused of and did not make any effort to return to her house, amply demonstrate that she was a consenting party to rt her elopement with the accused.
13. The nature of the offence, the accused allegedly committed is not only heinous but grievous also because as per the allegations, he has not only removed the prosecutrix, a minor from her lawful guardianship, but also subjected her to sexual intercourse.
14. The apex Court while taking into consideration the gravity and seriousness of the offence, in a catena of judgments including State of Punjab Vs. Gurmeet Singh and others, AIR 1996 SC 1393 has held that the own statement of the prosecutrix if inspires confidence is sufficient to bring the guilt home to the accused. The apex Court in order to ensure that an innocent person is not implicated in the commission of ::: Downloaded on - 15/04/2017 20:29:02 :::HCHP 10 an offence of this nature, while taking note of the judgment in Gurmeet Singh's case supra has however .
diluted the ratio thereof in Ranjit Hazarika Vs. State of Assam, (1998) 8 SCC 635 and held that the prosecutrix cannot be universally and mechanically applied to the of facts of every case of sexual assault, as in its opinion, the possibility of false implication can't also be ruled-out.
rt Similar was the view of the matter taken again by the apex Court in Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. and another, (2003) 3 SCC 175.
15. Therefore, the legal position as discussed supra makes it crystal clear that irrespective of an offence of this nature not only grievous but heinous also, the Court should not got swayed merely by passion and influence only on account of the offence has been committed against a woman and rather keep in mind the cardinal principle of criminal administration of justice, that an offender has to be believed to be innocent unless and until held guilty by the Court after satisfying its judicial conscience on the basis of given facts and ::: Downloaded on - 15/04/2017 20:29:02 :::HCHP 11 circumstances of each case as well as proper appreciation of the evidence available on record.
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16. The prosecutrix has been claimed to be a minor below 16 years of age on the date of occurrence i.e. 3.8.2008. In case as per evidence available on of record, she proves to be below 16 years of age on the date of occurrence, the findings of conviction can be rt recoded against the accused in that eventuality alone, because otherwise the present seems to be not a case of commission of sexual intercourse against her will or without her consent and she rather was a consenting party to such act committed with her by the accused.
Therefore, it is that aspect of this case, which deals with her age assume significance. Her date of birth has been claimed to be 1.5.1994. Since the occurrence pertains to 3.8.2008, therefore, if 1.5.1994 establishes to be her date of birth as per evidence available on record, she was minor on the day of occurrence. The evidence in support of her date of birth relied upon by the prosecution is her Primary School certificate Ext. PW-6/A and extract of parivar register Ext. PW-7/A. PW-6 is the ::: Downloaded on - 15/04/2017 20:29:02 :::HCHP 12 Primary Assistant Teacher in Government Primary School, Cheeh. He has issued the certificate Ext. PW-6/A, which .
according to him is true and correct as per original record produced by him in the Court on the date of his examination. In his cross-examination at one stage, he of expressed his ignorance as to who had got the prosecutrix admitted in the school, however, voluntarily rt stated that she was admitted in the school by her uncle Bansi Lal. He was neither employed as a Teacher in the school at the time of admission of the prosecutrix nor entries in the record are in his hand. The other piece of evidence relied upon by the prosecution to substantiate this part of its case is the extract of parivar register Ext.
PW-7/A. This document has been proved by PW-7 Tek Chand, Secretary, Gram Panchayat, Cheeh. He has also said that Ext. PW-7/A is true and correct as per original record he produced. He, however, had not produced the birth and death register in the Court.
17. If coming to the testimony of her father PW-1, he in his cross-examination, tells us that he was married about 16 years back with Shanto and that it is not known ::: Downloaded on - 15/04/2017 20:29:02 :::HCHP 13 as to when the prosecutrix was born to them. He, however, stated voluntarily that she was born to them .
after 1½ years of their marriage. The prosecutrix was admitted by him in the school. Shanto Devi while in the witness box as PW-2 tells us that at the time of her of marriage, she was 18 years of age and the prosecutrix was born to her when she was 19 years old. This alone is rt the evidence produced by the prosecution in order to substantiate its case that the prosecutrix was minor below 16 years of age at the time of occurrence.
18. It is well settled at this stage that primary evidence to prove the date of birth of a person is the entries in the register at the time of his/her admission in the primary school. The record qua declaration of date of birth of the child made by his/her parents or guardian at the time of admission in primary school should also be there to substantiate the entries in the register. The name of parent/guardian at whose instance the child was admitted in the school should also be disclosed. It is only on the basis of such material on record, the date of birth as find mentioned in the record produced in ::: Downloaded on - 15/04/2017 20:29:02 :::HCHP 14 evidence can be believed as true and correct. In the case in hand, it is the certificate Ext. PW-6/A issued by .
the Headmaster, Primary School, Cheeh has been relied upon. As a matter of fact, the extract from the admission register should have been obtained and of produced in evidence. The admission register along with form/declaration made by a person at whose instance rt the prosecutrix was admitted in the school should have been produced during the course of recording prosecution evidence, in order to prove the extract of parivar register. The certificate Ext. PW-6/A no doubt is stated to be issued on the basis of entries in the admission register, however, for want of declaration and also as to who has disclosed the date of birth of the prosecutrix as 1.5.1994 at the time of her admission in the school, the certificate Ext. PW-6/A cannot be termed to be primary evidence and rather secondary. 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 ::: Downloaded on - 15/04/2017 20:29:02 :::HCHP 15 school which would have been primary evidence regarding the age of the .
prosecutrix."
19. 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 in evidence to prove of the date of birth of the person concerned, if it is proved that the same has been maintained by the authorities in rt 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.
20. Mr. Bansi Lal, the uncle of prosecutrix, who allegedly admitted her in the school, has not been examined. In the absence of the admission form/ declaration qua her date of birth, Ext. PW-6/A cannot be believed to be true and correct to arrive at a conclusion that the prosecutrix was born on 1.5.1994. If coming to the extract of parivar register Ext. PW-7/A, the same has no evidentiary value nor on the basis thereof, it can be said that the date of birth of the prosecutrix is 1.5.1994.
::: Downloaded on - 15/04/2017 20:29:02 :::HCHP 16As a matter of fact, it is the entries made in the birth and death register maintained by the Municipalities /Gram .
Panchayats can be treated to be primary evidence qua the date of birth of a person, however, in a case of this nature, the extract of such register with supporting of evidence as to who has disclosed the date of birth at the time of making birth entries in the register is required rt to be produced in evidence. Mere production of the register and abstract is not sufficient and rather the examination of such person at whose instance the entries were made in the register is relevant. It is held so by the Apex Court in Ravinder Singh Gorkhi Vs. State of U.P. AIR 2006 SC 2157. This judgment reads 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 ::: Downloaded on - 15/04/2017 20:29:02 :::HCHP 17 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 of 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 rt 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. 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 21 Act but the entry regarding the age of a person in a school ::: Downloaded on - 15/04/2017 20:29:02 :::HCHP 18 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."
21. 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 of reads as follows:
"18. Therefore, a document may be admissible, rt 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. 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 ::: Downloaded on - 15/04/2017 20:29:02 :::HCHP 19 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 of record by an official or person authorized in performance of official duties are concerned, they may be admissible under Section 35 of the rt 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."
22. Therefore, when in the case in hand, neither Bansi Lal, the so called uncle of the prosecutrix at whose instance she was admitted in the school has been examined nor the birth and death register produced and also the person who has disclosed the date of birth of the prosecutrix at the time of recording entries qua ::: Downloaded on - 15/04/2017 20:29:02 :::HCHP 20 date of birth in the said register has also not been examined, it cannot be believed by any stretch of .
imagination that she was born on 1.5.1994. The prosecution has also not made an effort to find out the radiological age of the prosecutrix. Therefore, it cannot of be believed by any stretch of imagination that she was minor below 16 years of age on the day of occurrence.
23. rtSignificantly, no question was put to the accused in his statement recorded under Section 313 of the Code of Criminal Procedure that he has subjected the prosecutrix, a minor below 16 years of age to sexual intercourse. Therefore, the age aspect a vital incriminating circumstance against the accused having not been put to him in his statement recorded under Section 313 of the Code of Criminal Procedure, the same cannot be used against him. It is held so by the Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622. The text of this judgment reads as follows:
"142. Apart from the aforesaid comments there is one vital defect in some of the circumstances ::: Downloaded on - 15/04/2017 20:29:02 :::HCHP 21 mentioned above and relied upon by the High Court, viz., circumstances Nos. 4, 5, 6, 8, 9, 11, 12, .
13, 16 and 17. As these circumstances were not put to the appellant in his statement under Section 313 of the Criminal Procedure Code they must be completely excluded from consideration because the appellant did not have any chance of to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat Singh v. State of rt Madhya Bharat AIR 1953 SC 468 this Court held that any circumstance in respect of which an accused was not examined under Section 342 of the Criminal Procedure Code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 or Section 313 of the Criminal Procedure Code, the same cannot be used against him. In Shamu Balu Chaugule v.
State of Maharashtra, (1976) 1 SCC 438 this Court held thus:
"The fact that the appellant was said to be absconding, not having been put to him under Section 342, Criminal Procedure Code, could not be used against him.
144. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In ::: Downloaded on - 15/04/2017 20:29:02 :::HCHP 22 this view of the matter, the circumstances which were not put to the appellant in his examination .
under Section 313 of the Criminal Procedure Code have to be completely excluded from consideration."
24. If coming to the ocular version, the complainant of who is the father of the prosecutrix has failed to disclose her date of birth while in the witness box as PW-1. His testimony rt that the prosecutrix was born to him after 1½ years of his marriage is vague and absurd, hence cannot be taken to conclude that she was born on 1.5.1994. Similarly, the mother of the prosecutrix tells us that she was married at the age of 18 years and the prosecutrix was born when she was 19 years of age. Her testimony is also not specific nor on the basis of same, it can be said that the prosecutrix is born on 1.5.1994.
25. On critical analysis of the age aspect of the prosecutrix, it is not at all proved that she is born on 1.5.1994 and as such was below 16 years of age on the day of occurrence i.e. 3.8.2008. It is not the prosecution case that she was allured or enticed away by the accused and rather as per her version on asking by the accused, she went with him to nearby field where she was subjected to sexual intercourse. However, while in the witness box she has not ::: Downloaded on - 15/04/2017 20:29:02 :::HCHP 23 stated that she was taken to nearby field and subjected there to sexual intercourse and rather to the Kud, where she .
lived with him during the period 3.8.2008 to 6.8.2008 and she was subjected to sexual intercourse there on four occasions.
She, therefore, was not enticed away by the accused or removed from her lawful custody and rather she had of voluntarily accompanied the accused and was a consenting party to the sexual act he committed with her. Therefore, no rt case under Sections 363 and 366 and for that matter under Section 376 of the Indian Penal Code is made out against the accused. He, therefore, has rightly been acquitted from the charge so framed against him.
26. In view of the reappraisal of the evidence and also the law applicable, we find no illegality or irregularity with the judgment under challenge in this appeal. The same, as such, is affirmed and the appeal dismissed. Personal bonds furnished by the accused shall stand cancelled and surety bonds discharged.
(Dharam Chand Chaudhary)
Judge
(Chander Bhusan Barowalia)
May 27, 2016 Judge
(naveen)
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