Himachal Pradesh High Court
Ravinder Sharma @ Ravi vs State Of Himachal Pradesh on 2 April, 2019
Bench: Dharam Chand Chaudhary, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 532 of 2016 &
Cr. Appeal No. 516 of 2016.
Reserved on: March 28, 2019.
Decided on: 2nd April, 2019.
.
1. Cr. Appeal No. 532 of 2016.
Ravinder Sharma @ Ravi ......Appellant.
Versus
State of Himachal Pradesh ......Respondent.
1. Cr. Appeal No. 516 of 2016.
Birbal ......Appellant.
Versus
State of Himachal Pradesh ......Respondent.
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 Yes.
For the appellant(s) : Mr. Saurav Rattan, Advocate for
appellant in Cr. Appeal No. 532 of
2016.
Mr. Prashant Sharma & Mr. Ajit
Sharma, Advocates for
appellant in Cr. Appeal No. 516 of
2016.
For the respondent : Mr. Narinder Guleria, Addl. AG.
Dharam Chand Chaudhary, J.
Appellants Ravinder Sharma @ Ravi and Birbal herein are convicts. Learned Special Judge, Kullu, District Kullu has convicted both of them for the commission of offence punishable under Sections 363, 366-A, 376-D, 342, 506 of Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "POCSO Act" in short) and sentenced them to undergo rigorous imprisonment for a period of 20 years each for the commission of the offence punishable under Section 376-D of 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes. ::: Downloaded on - 03/04/2019 21:59:21 :::HCHP 2 Indian Penal Code, a graver offence and there being the provisions of the sentence of greater degree as compared to the offence punishable under Sections 363, 366-A, 342 and 506 of the Code and also under .
Section 6 of the POCSO Act.
2. They are aggrieved by their conviction and sentence, hence approached this Court for quashing and setting aside the same on the grounds inter alia that undue weightage has been given to the evidence not worthy of credence produced by the prosecution as compared to most trustworthy and dependable evidence produced by them in their defence. Learned trial Court is, therefore, stated to have not appreciated the evidence available on record in its right perspective. Their conviction in such circumstances is stated to be unwarranted and unsustainable. The arguments addressed by learned defence counsel have also not been appreciated and as such the impugned judgment does not stand for the test of judicial scrutiny. The impugned judgment rather is stated to be based upon surmises and conjectures. The contradictions in the statements made by witnesses examined by the prosecution have been ignored and not taken into consideration. The prosecution story is stated to be absolutely false and concocted one.
3. Now, if coming to the factual matrix, FIR Ext. PW-1/A came to be recorded on the statement made by the prosecutrix (name withheld) before the police of Police Station Banjar, District Kullu on 10.10.2013. She visited the police station accompanied by her parents. According to her, in the year 2013, she was studying in 10th class in Government School at Chanoun, Tehsil Banjar. On ::: Downloaded on - 03/04/2019 21:59:21 :::HCHP 3 9.10.2013, around 9:30 AM, she was on her way to the school from house. At a distance of 1 km, behind the school one white coloured Car arrived there and stopped near to her. In the Car, except driver, .
one more person was also sitting. They opened the door of the Car and dragged her inside. Thereafter, the driver started driving the same at a high speed towards Aut side. The Car was being driven by appellant-convict Ravinder Sharma @ Ravi and the other occupant was appellant-convict Birbal. They both are residents of Village Gharatgar. They were known to her. She asked as to where she was being taken by them and why? On this they told that she was being taken by them towards Kullu side on a pleasure trip. She wanted to cry, however, they threatened that in case she did so, not only she but they will kill her all family members. They reached near Aut at about 11:30 AM. At that place, they took out knife from their pocket and shown the same to her. They also threatened her that in case she cried or made any effort to inform anyone in her house, they will not only do away with her life but also all the members of her family. She allegedly was locked inside the vehicle and they themselves went to meet someone there. She tried to break open the window screen of the vehicle, however not succeeded to do so. Therefore, being helpless and afraid of them, she could not do anything to save her. It is after about 2 hours, they both came back and she was taken to an unknown and isolated place. There they both subjected her to sexual intercourse turn by turn against her will and without her consent. They made her to remain in that Car throughout the night and continued subjecting her to sexual intercourse turn by turn ::: Downloaded on - 03/04/2019 21:59:21 :::HCHP 4 against her will and without her consent. They told her that they were dealing in the business of Charas and having handsome money with them and also that, they will make her happy and comfortable .
throughout.
4. On 10.10.2013 in the morning, she was taken by them in the same Car and made to alight at a place nearby the School. They threatened to kill her and also her entire family in case she disclosed the incident to anyone. She requested the police of Police Station Banjar that since both Ravi and Birbal have abducted and kidnapped her on 9.10.2013 at 9:30 AM while on her way to School intentionally to subject her to sexual intercourse and they subjected her to sexual intercourse turn by turn at different places throughout the night repeatedly against her will and without her consent and due to which she suffered lot of pain, therefore, she be got medically examined and the proceedings to prosecute them in accordance with law be also initiated.
5. On registration of the FIR, the police swung into action. The investigation was taken in hand by PW-13 SI Chint Ram, SHO Police Station Banjar. Application Ext. PW-4/A was made to the Medical Officer with a prayer to conduct the medical examination of the prosecutrix. The medical was conducted by PW-4 Dr. Kiran and MLC Ext. PW-4/B collected from the hospital and placed on the file. On 11.10.2013, the place, namely, Sadri Chanoun from where the prosecutrix was kidnapped by the accused was identified by her to the police. The same was photographed vide photograph Ext. PW- 14/A-1 and the spot map Ext. PW-13/A was prepared. That place ::: Downloaded on - 03/04/2019 21:59:21 :::HCHP 5 was also videographed and CD prepared. The supplementary statement of the prosecutrix was also recorded on 11.10.2013. The demarcation of the place where the prosecutrix was dropped by the .
accused persons on 10.10.2013 was also conducted and the spot map Ext. PW-13/B prepared. That place was photographed vide photographs Ext. PW-13/A-2 and A-3 and videography was also done. The demarcation of unknown and isolated place near temple of Akash Mata, in and around Aut was also identified by the prosecutrix to the police.
to The map thereof Ext. PW-13/C was prepared. The photographs Ext. PW-13/A-4 to A-5 were also taken and the videography done. At Kullu, the prosecutrix identified Hotel New Kailash in Akhara Bazar and took the police to Room No. 27 of the said hotel where both accused raped her turn by turn. It is at that place her school dress was also got changed by them and new dress brought for her from the bazaar. She identified bed sheet which was taken into possession vide memo Ext. PW-1/B. The spot map Ext. PW-13/D was also prepared there. The extract of the Hotel register Ext. PW-11/A was also obtained. It is thereafter the prosecutrix had led the police party to Balaji hotel at Sarwari bazaar in Kullu. She identified Room No. 1 of the said hotel and disclosed that she was sexually assaulted by both the accused. Map of that place Ext. PW-13/F was also prepared. Photographs of Hotel New Kailash Ext. PW-13/A-6 to A-8 and that of Hotel Balaji are Ext. PW- 13/A-9 to A-12. One piece of mattress was taken as sample from room No. 1 of Balaji Hotel vide memo Ext. PW-1/C. ::: Downloaded on - 03/04/2019 21:59:21 :::HCHP 6
6. On 12.10.2013, the prosecutrix produced her clothes in the Police Station which were taken into possession vide memo Ext. PW-1/D. The same were also sealed in a parcel of cloth. On .
18.10.2013, vehicle No. HP-33-A-9265 was produced before the police by Tek Chand, brother of accused Birbal in the Police Station. The same was also taken into possession vide memo Ext. PW-9/A along with its invoice. Its seat covers were also taken into possession vide memo Ext. PW-9/B. Hairs lying in the vehicle were also taken into possession vide memo Ext. PW-9/C. On 19.10.2013, both accused were arrested vide memos Ext. PW-13/M and PW-13/N. Certified copy of Pariwar Register Ext. PW-12/A and that from the School register qua date of birth of the prosecutrix were also obtained by submitting applications Ext. PW-13/O and Ext. PW-3/A to the Secretary, Gram Panchayat Chanoun and Principal of the School, respectively. The case property was sent to the laboratory for analysis. Both the accused were also got medically examined. The MLC of accused Birbal Ext. PW-5/B and that of accused Ravinder Sharma Ext. PW-5/C were also collected. The report submitted by the Chemical Examiner is Ext. PX.
7. On completion of the investigation and finding a case under Sections 363, 366-A, 376-D, 342, 506 of Indian Penal Code and Section 6 of the POCSO Act made out against both the accused, the police has filed the report under Section 173 Cr.P.C. against them.
8. Learned Trial Judge, on appreciation of the report and documents annexed therewith and on being satisfied prima-facie ::: Downloaded on - 03/04/2019 21:59:21 :::HCHP 7 that they have committed the offence punishable under Sections 363, 366-A, 376(2)(i)(n) read with Section 376-D, 342, 506 of Indian Penal Code and Section 6 of the Protection of Children from Sexual .
Offences Act has framed charge against both of them accordingly. They, however, pleaded not guilty to the charge and claimed trial. Therefore, learned trial Court has called upon the prosecution to produce evidence in support of its case against the accused. The prosecution in turn has examined 13 witnesses in all. The material prosecution witnesses are PW-1, the prosecutrix, her father PW-6 Puran Chand, PW-2 Geeta Devi, Secretary of Gram Panchayat Chanoun, PW-3 Chander Prakash, Principal Govt. Sr. Secondary School Chanoun, PW-4 Dr. Kiran, who has examined the prosecutrix and issued MLC Ext. PW-4/B. PW-5 Dr. Satish Rana has examined accused Ravinder and Birbal and issued MLC Ext. PW-5/B and Ext. PW-5/C, PW-7 Naveen Kumar shop keeper Akhara bazaar Kullu from whom clothes were purchased for prosecutrix by the accused and PW-11 Puran Chand, Manager of Hotel Kailash, Akhara Bazar, Kullu.
9. The remaining prosecution witnesses PW-8 LC Anjana, PW-9 HC Brij Bhusan, PW-10 HC Sunil Kumar, PW-12 LHC Tarsem are, however, police officials who remained associated in the investigation of the case in one way or the other. The Investigating Officer is PW-13 SI Chint Ram.
10. The statements of both the accused under Section 313 Cr.P.C. were also recorded. They have denied the entire prosecution case either for want of knowledge or being incorrect. According to ::: Downloaded on - 03/04/2019 21:59:21 :::HCHP 8 them, they are innocent and have been implicated falsely in this case. In their defence, they have examined DW-1 Leela Devi, Post Graduate Teacher, Govt. Sr. Secondary School, Chanoun, DW-2 SI .
Vijay Kumar, Reader to S.P. & (SV & ACB), Mandi and DW-3 Smt. Sonam Dolma, Ward Sister, Community Health Centre Banjar, Distt. Kullu.
11. Learned trial Judge, on appreciation of the oral as well as documentary evidence produced by the prosecution and also the accused and after hearing learned Public Prosecutor as well as learned defence counsel has concluded that the prosecution case stands proved beyond all reasonable doubt against the accused. They were convicted for the commission of the offence punishable under Section 376-D as pointed out at the outset.
12. S/Sh. Prashant Sharma and Saurav Rattan, Advocates learned counsel representing the appellants-convicts have vehemently argued that in the nature of the evidence available on record, the prosecution has failed to prove its case against either of the accused beyond all reasonable doubt. It has thus been urged that no findings of conviction could have been recorded against the appellants-convicts.
13. Mr. Prashant Sharma, Advocate learned counsel representing the appellant-convict Birbal has additionally argued that evidence produced in defence suggesting that the prosecutrix and her relations were inimical to said Sh. Birbal has been brushed aside without assigning any cogent and valid reasons. According to Mr. Sharma, the complaint Ext. DW-2/A made by appellant convict ::: Downloaded on - 03/04/2019 21:59:21 :::HCHP 9 Birbal against ASI Narpat Ram and Guddi Devi (wife of Dev Raj, maternal Uncle of the prosecutrix) forwarded vide letter Ext. DW-2/B by the Superintendent of Police, State Vigilance and Anti Corruption .
Bureau, Mandi to Superintendent of Police Mandi for enquiry and appropriate action and the testimony of DW-1 Smt. Leela Devi lead to the only conclusion that accused Birbal was not travelling in the offending Car which as per the version of DW-1 Leela Devi was being driven by appellant-convict Ravinder Sharma @ Ravi. It has also come in the FIR Ext. PW-1/A that the vehicle was being driven by accused Ravinder Sharma @ Ravi. Said Birbal, according to learned counsel as such has been implicated falsely at the instance of the relations of the prosecutrix and ASI Narpat Ram who were inimical to him on account of the complaint Ext. DW-2/A made by him to Superintendent of Police (State Vigilance and Anti Corruption Bureau), Mandi. Both the accused, therefore, have been sought to be acquitted of the charges framed against each of them.
14. On the other hand, Mr. Narinder Guleria, learned Addl. Advocate General has urged that the judgment under challenge is speaking and reasoned one. The same, according to Mr. Guleria has been passed by learned Trial Judge on appreciation of the evidence in its right perspective. It is pointed out that the own testimony of the prosecutrix which remained un-shattered even in her cross- examination also, the charges framed against each of the accused persons stand established. The remaining evidence as has come on record by way of testimony of her father and PW-4 Dr. Kiran as well as report of the chemical examiner Ext. PX, proves beyond ::: Downloaded on - 03/04/2019 21:59:21 :::HCHP 10 reasonable doubt that the appellants-convicts have assaulted the prosecutrix, a minor aged 15 years at different places, including two hotels after abducting her in a planned manner while on her way to .
school. The offence they allegedly committed is not only heinous but also grievous in nature. Therefore, according to Mr. Guleria, they both have been rightly convicted and sentenced vide judgment under challenge in these appeals, which according to him, calls for no interference by this Court.
15. The nature r to of the offence, the accused allegedly committed is not only heinous but grievous also because as per the allegations, they have not only removed the prosecutrix, a minor from lawful guardianship of her parents, but also subjected her to sexual intercourse repeatedly in the Car and also at different isolated places, including the two hotels i.e. Hotel New Kailash, Akhara Bazar, Kullu and Hotel Balaji at Sarwari Bazar, Kullu.
16. 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 & 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 may not be implicated in the commission of 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 ratio thereof cannot be universally and mechanically applied to the facts of every case of ::: Downloaded on - 03/04/2019 21:59:21 :::HCHP 11 sexual assault, as in its opinion in such cases, the possibility of false implication can't also be ruled out. 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.
17. 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 get swayed merely by passion and influenced 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 circumstances of each case as well as proper appreciation of the evidence available on record.
18. Now, if coming to the evidence available on the record of this case, the age of the prosecutrix has been claimed to be 15 years on the date of occurrence i.e. 9.10.2013. The present has also been claimed to be a case of gang rape within the meaning of Section 376- D of the IPC. She allegedly, a minor has been subjected to sexual intercourse repeatedly by both the accused persons. If it is proved to be so, it is only in that situation the appellants-convicts can be said to have committed the offence punishable under Section 376 (2)(n) read with Section 376-D IPC.
19. We propose to decide the question as to whether the date of birth of the prosecutrix is 18.3.1999 as claimed by the prosecution because it is in that eventuality, she could have been said to be ::: Downloaded on - 03/04/2019 21:59:21 :::HCHP 12 about 15 years of age i.e. 14 years 7 months and 9 days. Otherwise also, it is the age of the prosecutrix in a case of this nature which assumes significance. In order to prove the date of birth of the .
prosecutrix as 18.3.1999, reliance has been placed on the certificate Ext. PW-3/B issued by PW-3 Chander Prakash, Principal, Govt. Sr. Secondary School, Chanoun, District Kullu, H.P. On the face of this document, she was admitted in the said School on 21.4.2009, meaning thereby that prior to it, she must have studied in Primary certificate qua her School somewhere else and the proof qua her date of birth disclosed either in the admission form by way of making declaration or the date of birth obtained from the Municipality/Gram Panchayat where the register of birth and death used to be maintained. In High/Senior Secondary Schools, a student is admitted on the basis of School Leaving Certificate issued by the concerned Primary School and in said certificate, the particulars as to who had declared the date of birth of a student while taking admission in first standard and the declaration so made was is supported by a certificate issued by Municipality/Gram Panchayat concerned. Therefore, the certificate Ext. PW-3/B cannot be treated as primary evidence so far as the date of birth of the prosecutrix as 18.3.1999 is concerned. It is worth mentioning that under Section 35-A of the Indian Evidence Act, a certificate qua date of birth of a person issued by the authorities from the School record is admissible only in case the person at whose instance the date of birth of the child admitted in the school was disclosed and the proof of declaration of the date of birth. Therefore, the primary evidence ::: Downloaded on - 03/04/2019 21:59:21 :::HCHP 13 qua the date of birth of the prosecutrix would have been the certificate if obtained from the Primary School along with the extract of the admission register and copy of the admission form which .
contains, the declaration qua the date of birth made by the parents/guardians accompanying the child to the School at the time of his/her admission. Additionally, the certificate issued by the Municipality/Gram Panchayat on the basis whereof declaration qua date of birth of a child is made is also required to be produced.
20.
r to Therefore, the certificate Ext. PW-3/B cannot be taken to form an opinion that the prosecutrix is born on 18.3.1994.
The another document relied upon by the prosecution is Ext. PW-2/A, an extract of the Pariwar Register. The alleged date of birth 18.3.1999 of the prosecutrix does not find mention in this document. The column against which her date of birth was entered rather has been scratched. Such a situation on the face of the record makes it highly doubtful that the prosecutrix is born on 18.3.1999. Otherwise also, the entries qua the birth of a person made in ordinary course of business by a competent authority constitute primary evidence qua the age of a person. Their used to be column in birth and death register in which the name of the person at whose instance the entries qua the date of birth are made and his/her relation with the newly born finds mention. Therefore, such entries in the birth and death register if obtained by the prosecution would have given an idea about the correct date of birth of the prosecutrix and her exact age. The investigating agency has, however, not obtained the birth certificate on the basis of the entries ::: Downloaded on - 03/04/2019 21:59:21 :::HCHP 14 made in the birth and death register in the manner as stated hereinabove nor placed on record the abstract of such register for being produced in evidence. As regards the entries in the Pariwar .
Register, the same in our considered opinion, cannot be taken to conclude that prosecutrix was about 15 years of age at the time of occurrence. Therefore, learned defence counsel have rightly pointed out that for want of cogent and reliable evidence, the prosecutrix cannot be said to be of 15 years age or below 18 years.
21. 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 admitted in the school should also be there in the record relating to admission of the child. It is only on the basis of such material on record the date of birth as find mention in the record produced in evidence can be believed as true and correct. In the case in hand, it is the certificate Ext. PW- 3/B issued by the Principal Govt. Sr. Secondary School, Chanoun which has been relied upon. As a matter of fact, the extract from the admission register should have been obtained and produced in evidence. The admission register along with form/declaration made by a person at whose instance the prosecutrix was admitted in the school should have been produced during the course of recording ::: Downloaded on - 03/04/2019 21:59:21 :::HCHP 15 prosecution evidence, in order to prove the exact date of birth of the prosecutrix.
22. The conclusion so drawn by this Court is supported by .
the judgment of the apex Court in Sunil Kumar Vs. State of Haryana, AIR 2010 SC 392 wherein it has been held as under:
"30. The prosecution also failed to produce any Admission Form of the school which would have been primary evidence regarding the age of the prosecutrix."
23. 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 the date of birth of the person concerned, if it is proved that the same has been maintained by the authorities in 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.
24. The birth Certificate Ext. PW-3/B from the record of Government Sr. Secondary School, Chanoun has been produced. The birth certificate from the record of Primary School where she may have studied has neither been obtained nor produced in evidence. In the absence of the admission form/declaration qua her date of birth, Ext. PW-3/B cannot be believed to be true and correct to arrive at a conclusion that the prosecutrix was born on 18.3.1999. If coming to the extract of pariwar register Ext. PW-2/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 18.3.1999. As a matter of fact, it is the entries made in the birth and death register ::: Downloaded on - 03/04/2019 21:59:21 :::HCHP 16 maintained by the Municipalities/Gram Panchayats which 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 evidence as to who has disclosed the date of birth at the time of making birth entries in the register is required 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 also relevant. It is held so by the Apex Court in Ravinder Singh Gorkhi vs. State of U.P. AIR 2006 SC 2157. The 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 Sec. 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 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 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 records. It will be a matter of appreciation of evidence adduced by the parties. Different standards having regard to the provision of Sec. 35 of the Evidence Act cannot be applied in a civil case or a criminal case.::: Downloaded on - 03/04/2019 21:59:21 :::HCHP 17
[26] In Birad Mal Singhvi V/s. Anand Purohit, this Court held:
"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."
25. 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 reads as follows:
"[18] Therefore, a document may be admissible, 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, 1970 AIR(SC) 326; Ram Murti Vs. State of Haryana,1970 AIR(SC) 1020; Dayaram & Ors. Vs. Dawalatshah & Anr., 1971 AIR(SC) 681; Harpal Singh & Anr. Vs. State of Himachal Pradesh, 1981 AIR(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, 2008 AIR(SC) 632; and Ram Suresh Singh Vs. Prabhat Singh @Chhotu Singh & Anr., 2009 6 ::: Downloaded on - 03/04/2019 21:59:21 :::HCHP 18 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 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. ...................
[16] So far as the entries made in the official record by an official or person authorised in performance of official duties are concerned, they may be admissible under Section 35 of the 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 entry 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."
26. Therefore, in the light of the law laid down by the Apex Court in the judgments cited supra and also the evidence discussed, it is difficult to form an opinion that the prosecutrix was below 18 years of age on 9.10.2013, the date when she was kidnapped and subjected to sexual intercourse.
27. As per the radiological age of the prosecutrix, the same as per the opinion of the Radiologist Ext. PW-4/C is 15-17 years. The margin of error while determining the radiological age is 2-3 years on either side, however, it has been held by the apex Court in State of H.P. vs. Phurva & others, Latest HLJ 2011 (HP) 490, ::: Downloaded on - 03/04/2019 21:59:21 :::HCHP 19 that the benefit of such error should be given to the accused as compared to the prosecution. The opinion Ext. PW-4/C has been produced in evidence by the prosecution itself. Therefore, this .
document also supports the defence version that the prosecution has failed to prove beyond all reasonable doubt that the prosecutrix on the day of occurrence was about 15 years of age, hence below 18 years. It, therefore, takes out the present case from the rigor of 6th situation below Section 375 of the IPC. The prosecutrix in such a situation has to be treated as major and not minor below 18 years of age. Moreover, in the record of CHC Banjar, District Kullu produced by DW-3 Sonam Dolma, Ward Sister, the age of the prosecutrix on 15.1.2016 when admitted in the said hospital, being pregnant for delivery, is recorded as 21 years. In her cross-examination, she has admitted that her age as 21 years in hospital record was recorded at her instance.
28. Now comes the question as to whether the present is a case of gang rape defined within the meaning of Section 376-D of the Indian Penal Code or not.
29. As per the prosecution case, the prosecutrix was kidnapped/abducted by both the convicts while on the way to school and by dragging her forcibly inside the Car firstly subjected her to sexual intercourse at an isolated place near and around Aut, District Mandi and thereafter on the side of kutcha road where she was taken in the vehicle. She thereafter allegedly was subjected to sexual intercourse in Hotel New Kailash, Akhara Bazar, Kullu in room No. 27, however, only by the principal accused Ravinder Sharma @ Ravi ::: Downloaded on - 03/04/2019 21:59:21 :::HCHP 20 and the allegations are that accused Birbal remained outside the Hotel. Then she allegedly was taken to Hotel Balaji at Sarwari, Kullu and in the said Hotel subjected to sexual intercourse by both the .
convicts turn by turn. She was taken from Hotel Balaji at Sarwari to different unknown places and subjected to sexual intercourse throughout the night by both the accused turn by turn. The prosecutrix though has disclosed the names of both the accused in the FIR Ext. PW-1/A, however, while in the witness box denied any such statement having been made by her to the police. According to her, rather she came to know the names of the convicts lateron from her maternal Uncle Dev Raj, meaning thereby that in the FIR, the names of the convicts would have been entered may be at the instance of her parents accompanying her. In such a situation, it is doubtful that accused Birbal was also in the vehicle and abducted her. On the other hand, DW-1 Leela Devi, who was Post Graduate Teacher in Govt. Sr. Secondary School, Chanoun and taken lift in the offending car on that day tells us that only accused Ravinder Sharma @ Ravi was in the Car and driving the same. She has denied that convict Birbal was also in the car. The dent caused by this witness casts clouds on the prosecution story qua accused Birbal was also the occupant of the vehicle and subjected the prosecutrix to sexual intercourse. As per the prosecution case itself in Hotel New Kailash, Akhara Bazar, Kullu, he did not subject the prosecutrix to sexual intercourse and was rather standing outside. The extract of visitors' register Ext. PW-11/A reveals that Room No. 27 was occupied by accused Ravinder Sharma @ Ravi, the principal accused in this case ::: Downloaded on - 03/04/2019 21:59:21 :::HCHP 21 and by one female accompanying him. Therefore, in this Hotel, accused Birbal has not subjected the prosecutrix to sexual intercourse as per the own case of the prosecution. As per the .
testimony of prosecutrix, from Hotel New Kailash, Akhara Bazar, Kullu she was brought to Hotel Balaji at Sarwari and subjected there by both the accused to sexual intercourse turn by turn. The record of this hotel regarding visit of the accused and the prosecutrix has, however, not been obtained though the prosecutrix identified the said hotel and also room No. 1 thereof. The entry showing that the accused booked room No. 1 in the said hotel, however, has not been produced in evidence. Therefore, it is difficult to believe that at Hotel Balaji at Sarwari, the prosecutrix was subjected to sexual intercourse by the accused persons.
30. Now, if coming to the evidence produced in defence, it is proved that accused Birbal had made the complaint Ext. DW-2/A to Superintendent of Police (SV & ACB) Mandi apprehending therein that ASI Narpat Singh of Police Post Bahli Chowki and Guddi Devi (wife of Dev Raj, the maternal uncle of the prosecutrix) may have implicated him in a false case as the ASI at the behest of Guddi Devi had searched his vehicle without any rhyme or reason on several occasions. The complaint is dated 7.5.2013. The Superintendent of Police (SV & ACB), Central Range Mandi had forwarded the same vide letter dated 13.5.2013 Ext. DW-2/B to Superintendent of Police, Mandi for holding enquiry into the allegations therein. ASI Narpat Singh, as per these documents, was In-charge Police Post Bahli Chowki at that time. Guddi Devi is admittedly the wife of Dev Raj, ::: Downloaded on - 03/04/2019 21:59:21 :::HCHP 22 maternal uncle of the prosecutrix. Said Sh. Dev Raj after his conviction in a case under the ND & PS Act was convicted by a Court at Panipat in Haryana. It has also come in evidence that he had .
absconded though ultimately arrested consequent upon his conviction and presently serving out the sentence in the jail at Panipat. As per the own case of the prosecution, the prosecutrix on 10.10.2013 was taken by her parents to the house of Proju Devi, none else but her real maternal grandmother. Dev Raj is son of said Proju Devi, therefore, real maternal Uncle of the prosecutrix. Likewise, Guddi Devi is the wife of Dev Raj. In such a situation, the contents of the complaint Ext. DW-2/A seems to be genuine and as accused Birbal had made the complaint against aforesaid Guddi, who was inimical to the said accused because of under the impression that it is at his instance her husband Dev Raj was booked by the police for the commission of the offence punishable under the provisions of the ND & PS Act, therefore, the version of accused Birbal in his defence that he neither abducted the prosecutrix nor subjected her to sexual intercourse is nearer to the factual position. Interestingly enough, the report of chemical examiner Ext. PX is silent about the availability of blood or semen on his underwear (Ext. 12) which was analyzed in the laboratory whereas the underwear (Ext. 13) of accused Ravinder Sharma @ Ravi was found to be having the semen stains thereon. Therefore, the scientific investigation conducted in this case also does not substantiate the change against him. In this view of the matter, the ::: Downloaded on - 03/04/2019 21:59:21 :::HCHP 23 possibility of accused Birbal having been implicated in this case falsely due to enmity cannot be ruled out.
31. True it is that the offending vehicle Indigo white coloured .
Car registration No. HP 33-A-9265, belongs to accused Birbal. The same has been produced before the police by his brother Tek Singh on 18.10.2013 and taken into possession by the police along with its documents vide seizure memo Ext. PW-9/A and Ext. PW-9/B, respectively. The circumstances as to how it was being driven by accused Ravinder Sharma @ Ravi has remained un-explained.
32. As noticed hereinabove, accused Ravinder Sharma @ Ravi was driving the Car. It is stated so by DW-1 Leela Devi and even find mention in the FIR Ext. PW-1/A recorded at the instance of the prosecutrix. The vehicle on the other hand was of accused Birbal. How accused Ravinder Sharma @ Ravi was driving the same should have been explained by the prosecution. Though accused Birbal has also not said anything in his defence qua this aspect of the matter, however, as per the settled legal position, the prosecution should have stood on its own legs and lacunae if any, in its case, benefit must go to the accused. It is, however, proved that the vehicle was being driven by accused Ravinder Sharma @ Ravi and it is doubtful that accused Birbal was also occupying the same. In this view of the matter, the only inescapable conclusion would be that accused Birbal was not in the vehicle hence neither had any hand in the abduction of the prosecutrix nor he had subjected her to sexual intercourse. The present, as such, is not a case of gang rape within the meaning of Section 376-D of the Indian Penal Code. Learned ::: Downloaded on - 03/04/2019 21:59:21 :::HCHP 24 trial Judge has failed to appreciate the evidence available on record qua this aspect of the matter in its right perspective and wrongly convicted accused Birbal for the commission of the offence .
punishable under Section 376-D IPC. As a matter of fact, charge framed against the said accused is not proved beyond all reasonable doubt. He, therefore, deserves acquittal.
33. Otherwise also, in view of such type of evidence which is inconsistent and contradictory also, two possible views qua involvement of the accused Birbal in the commission of the offence emerge on record. As is well settled at this stage, in a case where two possible views emerge on record, the view favourable to the accused should be preferred as compared to the view favouring the prosecution and the benefit of doubt given to the accused and not to the prosecution. We are drawing support in this regard from the judgments of the apex Court in T. Subramanian versus State of T. N., (2006) 1 Supreme Court Cases 401 and State of Rajsathan versus Islam & Others, (2011) 6 Supreme Court Cases, 343.
34. The evidence as has come on record by way of sole testimony of the prosecutrix, however, implicate accused Ravinder Sharma @ Ravi in the commission of the offence with which he has been charged. As already held, the age of the prosecutrix has not been proved below 18 years. She, therefore, has to be believed to be major. The evidence to be discussed hereinafter amply demonstrate that accused Ravinder Sharma @ Ravi had kidnapped her by dragging inside the car. Though DW-1 Leela Devi while in the witness-box has stated that the prosecutrix alighted from the Car ::: Downloaded on - 03/04/2019 21:59:21 :::HCHP 25 with her near the school and went inside. She, however, failed to point out that the prosecutrix actually attended the classes on that day. On the other hand, the prosecutrix has categorically stated that .
she was dragged by the accused inside the car. There is no reason to dis-believe her testimony in this regard. She has identified the place (Sadri Chanoun) from where she was kidnapped by the accused. The spot map is Ext. PW-13/A and photograph is Ext. PW-13/A-1. She has also identified the isolated place hillock (Dhank) where she was subjected to sexual intercourse for the first time. The spot map is Ext. PW-13/C. Similarly, the photographs of this place are Ext. PW- 13/A-4 and A-5. She has also identified room No. 27 of Hotel New Kailash, Akhara Bazar, Kullu. The extract of Visitors' register and the statement of PW-11 Puran Chand, the Manager of the Hotel, reveals that room No. 27 was booked in the name of accused Ravinder Sharma @ Ravi. He was accompanied by one female. She was subjected to sexual intercourse in room No. 27 of the Hotel also stands proved from her own testimony and also the extract of the visitors register Ext.PW-11/A. The prosecutrix has identified room No. 27 and spot map Ext.PW-13/D was prepared. Not only this, but it is in Akhara Bazar, Kullu the accused purchased a shirt and caprie for her and made her to wear the same because she was in school dress and he may have apprehension of being caught with her on suspicion by someone, including the police. PW-7 Parveen has identified the shirt Ext.P-6 and caprie Ext.P-7 having been purchased from his shop. As regards her ravishment in Hotel Kailash, Sarwari Bazar, Kullu for want of the entries in the Guests' register of ::: Downloaded on - 03/04/2019 21:59:21 :::HCHP 26 the hotel and the evidence of someone, including the Manager, though it cannot be said that she was taken there, however, she is justified in stating that the said accused took her to various places .
and subjected to sexual intercourse throughout the night. She could not identify those places and rightly so because of the odd hours.
35. Now, if coming to the scientific investigation conducted in this matter, her underwear Ext. 2(a) and underwear of accused Ravinder Sharma @ Ravi Ext. 13 were found to be having semen stains.
The hair recovered from the rear seat of the car on comparison with her hair were found consistent and comparable with each other. The piece of cloth recovered from the Car was found having blood which reveals that the same oozed out when subjected to sexual intercourse and the said piece of cloth used for cleaning purposes. The defence though has tried to persuade us that as per the evidence available on record, the prosecutrix had menstruation which she also admits, however, according to her that was last day. Anyhow, the recovery of piece of cloth from the Car reveals that the same may have been used either on account of she was in menstruation period or for cleaning her private parts after she was subjected to sexual intercourse. In view of the sexual assault committed upon her repeatedly, the possibility of bleeding due to that was also obvious.
36. Therefore, irrespective of the prosecution has failed to prove that the prosecutrix was minor below 18 years of age, she has to be taken as major. The present, however, is not a case of consensual sexual intercourse with her and rather accused Ravinder ::: Downloaded on - 03/04/2019 21:59:21 :::HCHP 27 Sharma @ Ravi has subjected her to sexual intercourse repeatedly against her will and without her consent. The offence he committed, therefore, falls under Section 376(2)(n) IPC. It is also proved beyond .
all reasonable doubt that the accused threatened her to do away with her life and also the life of other members in her family had she disclosed the incident to anyone. The evidence further reveals that she was subjected to sexual intercourse under threat. Otherwise also, she being a helpless girl of tender age had no option but to have r to succumbed to the pressure and threat of the accused because he did not release her on 9.10.2013 throughout the day and throughout the night intervening 9/10.10.2013. True it is that she was taken to Akhara Bazar, Kullu, a thickly populated area and she did not raise any hue and cry, it may be because of the threatening given by the accused and by that time she was subjected repeatedly to sexual intercourse by him at isolated place(s). It is not the case of the accused in defence that she was consenting party to the act of sexual intercourse committed by him with her. He rather has denied all the incriminating circumstances appearing against him either being wrong or for want of knowledge. The accused, in such circumstances acted smart.
37. True it is that no benefit can be taken from the lacunae, if any, in the case of the defence, however, when the prosecution has proved its case qua abduction of the prosecutrix and subjecting her to sexual intercourse against her will and without her consent, the silence of the accused speaks in plenty qua his act, conduct and behavior. The present, as such, is a case where the accused has ::: Downloaded on - 03/04/2019 21:59:21 :::HCHP 28 repeatedly subjected the prosecutrix to sexual intercourse against her will and without her consent and has therefore, not only committed the offence punishable under Section 376(2)(n) IPC but .
also 506 IPC. For want of proof of the age of the prosecutrix that she was below 18 years of age, no case for the commission of offence punishable under Sections 363 and 366A IPC is, however, made out. Similarly, the charge framed against the accused under Section 6 of the POCSO Act also fails.
38. In view of what has been said hereinabove, convict Ravinder Sharma @ Ravi has committed the offence punishable under Sections 342, 376 (2)(n) and 506 IPC. He, therefore, is convicted for the commission of the offence punishable under Sections 342, 376 (2)(n) and 506 IPC and acquitted of the charge framed against him under Sections 363 and 366A IPC.
39. In the matter of sentence, the offence i.e. under Section 376 (2)(n) is graver in nature as compared to the offence punishable under Sections 342 & 506 IPC. The offence under Section 376(2)(n) is punishable with rigorous imprisonment for a term which shall not be less than 10 years but may extend to imprisonment for life i.e. the imprisonment for the remainder of natural life and also with imposition of fine. Learned trial Judge while holding him guilty for the commission of the offence punishable under Section 376-D IPC has convicted him to undergo rigorous imprisonment for a period of 20 years and also to pay Rs. 10,000/- as fine. In view of the findings hereinabove, the sentence so passed against him has to be altered keeping in view the offence he has been found to have committed as ::: Downloaded on - 03/04/2019 21:59:21 :::HCHP 29 per this judgment. The minimum sentence for the commission of such offence is 10 years. Although, the abduction and ravishment of the prosecutrix repeatedly is a gruesome act on his part, yet keeping .
in view his young age as he was 25 years of age at the time of commission of the alleged offence, we feel that the punishment to undergo rigorous imprisonment for 10 years with payment of Rs. 50,000/- as fine by him would serve the ends of justice. On his failure to deposit the fine amount, he shall further undergo rigorous imprisonment for a period of one year. The fine, if deposited by him, shall be paid to the prosecutrix to compensate her towards pains, mental agony and torture she suffered on account of sexual assault made by the convict upon her. The impugned judgment stands modified accordingly.
40. Consequently, Cr. Appeal No. 532 of 2016 filed by convict Ravinder Sharma @ Ravi partly succeeds and the same is partly allowed. He is acquitted of the charge framed against him under Sections 363 & 366-A IPC whereas convicted for the commission of the offence punishable under Sections 342, 376 (2)(n) and 506 IPC and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs. 50,000/- as fine for the commission of the offence punishable under Section 376 (2)(n) IPC. In default to deposit the fine so imposed upon him, he shall further undergo rigorous imprisonment for a period of one year. The fine, if deposited shall be paid to the prosecutrix as compensation. However, Cr. Appeal No. 516 of 2016 filed by convict Birbal is allowed and he is acquitted of the charge framed under Sections 363, ::: Downloaded on - 03/04/2019 21:59:21 :::HCHP 30 366-A, 376(2)(i)(n) read with Section 376-D, 342, 506 of Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act. Consequent upon his conviction, he is serving out the .
sentence in jail. He, therefore is ordered to be released from custody forthwith, if not required in any other case, however, subject to furnishing personal bond in the sum of Rs. 25,000/- with one surety in the like amount to the satisfaction of learned trial Court so that in the event of any appeal agaisnst this judgment is preferred, his presence in the appellate Court can be secured. The bail bonds to be so furnished shall, however, remain in force only for a period of six months from today. Release warrant be prepared accordingly.
41. Before parting, we would like to reproduce here the order passed in these appeals on 23.3.2018:
"Heard in part. It transpires from the records that copy of birth certificate of prosecutrix has not been annexed along with the challan, although copies of Parivar Register and some certificate of school, that have been exhibited as Ext.PW2/A and Ext.PW3/B, are on record. Even the Investigating Officer PW13 SI/SHO Chint Ram in examination-in-chief has categorically stated that he has obtained the birth certificate of prosecutrix.
Therefore, let the Investigating Officer explain as to why the copy of birth certificate which is stated to have been obtained from Gram Panchayat, Chahari, Tehsil Banjar, District Kullu has not been annexed with the challan. Let the needful be done within three weeks.
List on 13.4.2018."
42. Order dated 20.4.2018 which is also relevant reads as follows:
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"An affidavit in compliance to the order passed by this Court on 23.3.2018 has been filed by Mr. Chint Ram, Investigating Officer. The same is taken on record, which shall form part and parcel of the record and contents thereof shall be considered .
at the time of final hearing of the appeal(s). His personal appearance for the time being is dispensed with.
List for hearing on 4.5.2018."
43. The I.O. PW-13 SI Chint Ram, in the affidavit he filed consequent upon the orders ibid, has stated as follows:
"2. That in the above titled case the deponent has not obtained the birth certificate on the basis of death and birth register of the prosecutrix reason being that same was not available in the panchayat record and only copy of pariwar register of prosecutrix family was available which was obtained from the Panchayat Secretary of Gram Panchayat, Chanaun, Tehsil Banjar, District Kullu, H.P. The copy of the statement of Panchayat Secretary to this effect under Section 161 Cr.P.C. was recorded and the same is enclosed as Annexure A/1.
3. That the deponent has also categorically stated this fact of pariwar register (birth certificate) of prosecutrix in the case diary (jivni) No. 9 dated 20.10.2013. Copy of case diary is also enclosed as Annexure A/2.
4. That due to bonafide mistake while the deponent was examined in the Court on oath it has been written in examination-in-chief that the deponent obtained birth and school certificate of the prosecutrix, whereas it ought to have been "copy of pariwar register and school certificate of the prosecutrix" and only the copy of pariwar register is exhibited as PW-2/A.
5. That since there is no birth entry of the prosecutrix in the birth and death register in the Gram ::: Downloaded on - 03/04/2019 21:59:21 :::HCHP 32 Panchayat, Chanaun as the deponent tried his level best to obtain the copy of birth certificate but same could not be obtained as it is not existing in panchayat record."
.
44. In support of his version reproduced hereinabove, the statement of Bhim Ram, Secretary, Gram Panchayat Kothi Chaihni recorded on 20.10.2013 has also been placed on record as Annexure A-1. Annexure A-2 is rapat No. 6 in the jimni that entries qua date of birth of the prosecutrix is not made in the birth register.
45. In view of the explanation so forthcoming, we are satisfied that the entries qua birth of the prosecutrix may have not been made by the parents of the prosecutrix in birth register maintained by the Gram Panchayat. The present, as such, is not a case of dereliction of any duty by the I.O. PW-13 the then SI/SHO Chint Ram, Police Station Banjar who has not only recorded the statement Annexure A-1 to the affidavit in this regard but also made entries in the jimni that the Secretary Gram Panchayat has informed about no entry having been made qua the birth of the prosecutrix in the birth register. Therefore, no other and further action against PW- 13 SI/SHO Chint Ram, is required. Consequently, show-cause notice issued against him is discharged and the proceedings dropped.
(Dharam Chand Chaudhary), Judge.
April 2, 2019. (Chander Bhusan Barowalia),
(karan-) Judge.
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