Cr. Appeal No.294 of 2014

24th November, 2016.

Petitioner Counsel: Mr. M.A. KHAN
Respondent Counsel: Mr. SUNNY DHATWALIA

Cases Cited:
State of Punjab Vs. Gurmeet Singh and others, AIR 1996 SC 1393 [Para 13]
Ranjit Hazarika Vs. State of Assam, (1998) 8 SCC 635 [Para 13]
Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. and another, 2003 ALL MR (Cri) 612 (S.C.)=(2003) 3 SCC 175 [Para 13]
State of Himachal Pradesh Vs. Negi Ram, Criminal Appeal No. 481/2009 Dt.27.5.2016 (S.C.) [Para 13]
Trilok Chand Vs. State of H.P., 1996(1) Sim. L.C. 187 [Para 16]

JUDGMENT

Dharam Chand Chaudhary, J. :- Learned Special Judge, Hamirpur has acquitted respondent No. 1 (hereinafter referred to as 'accused No.1') of the charge framed against him under Section 363, 366-A, 376, 506 and 120-B of the Indian Penal Code and under Section 4 of the Protection of Children from Sexual Offences Act, 2012 and his coaccused Chander Parkash, father (hereinafter referred to as 'accused No.2') and Salochna Devi, mother (hereinafter referred to as 'accused No.3') of the charge under Section 366-A read with Section 120-B of the Indian Penal Code vide impugned judgment dated 10.06.2014 passed in Sessions Trial No. 22/2013.

2. Accused Nos. 2 and 3 are parents of accused No. 1 Rajeev Kumar. The allegations against them are that on 01.08.2013 accused No. 1 had made a phone call to PW-1, the prosecutrix (name withheld) and asked her to come to Hamirpur. She went to Hamirpur and received there at bus-stand by Chander Parkash, accused No. 2. She was taken to their residence near Gandhi Chowk, Hamirpur, where accused No. 3 happens to meet her. She lived there in the Company of accused persons for five days. Thereafter, she went with accused No. 1 to Beas. They stayed at Beas for a day and then went to 'Baba Bakala'. They stayed there in a 'Saraye' (inn) for 4-5 days. It is at this place, the prosecutrix allegedly was subjected to sexual intercourse by accused No. 1 without her consent and against her will. After visiting 'Baba Bakala', they went to 'Budha Samadhi'. There also she was subjected to sexual intercourse by the said accused forcibly. They stayed at 'Budha Samadhi' for five days and thereafter went to Amritsar. There, accused Nos. 2 and 3 also joined them. Accused No. 1 had taken her cellphone. She was also threatened by the said accused with dire consequences, if she revealed the incident to anyone else. While at Amritsar, they were traced by the police of Police Station, Hamirpur on 24.08.2013. The prosecutrix was entrusted in superdari to a Lady Constable vide seizure memo Ext. PW-1/A. All the three accused and the prosecutrix were brought by the police to Sujanpur on 25.08.2013. During the course of investigation, the clothes of prosecutrix were taken into possession. She was got medically examined in the hospital. Her statement Ext. PW-1/E was recorded in the Court.

3. On the completion of investigation report under Section 173 of the Code of Criminal Procedure was filed against all the three accused. Learned Special Judge on going through the report and documents annexed thereto and also hearing learned Public Prosecutor and learned defence counsel has found a prima-facie case under Section 363, 366-A, 376, 506, 120- B IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012 having been made out against accused No.1, whereas, under Section 366-A and 120-B IPC against accused No.2 and 3. The charge against them was framed accordingly. The accused, however, pleaded not guilty and claimed trial. The prosecution in order to sustain the charge against the accused persons had examined 25 witnesses in all.

4. On the other hand, accused No. 1 in his statement recorded under Section 313 of the Code of Criminal Procedure has admitted that they were traced by the police at Amritsar on 24.08.2013 and the prosecutrix was handed over to Lady Constable Praveen Kumari (PW-5) vide seizure memo Ext. PW-1/A. They were brought to Police Station, Sujanpur on 25.08.2013 by the I.O. ASI Ashok Kumar (PW-25). The Police got him medically examined and it is Dr. Mohinder Singh Rana (PW-14) who had examined him vide MLC Ext. PW-14/B. The rest of the prosecution case has either been denied by him being wrong or for want of knowledge. Similarly, his co-accused while admitting that they were brought to Police Station, Sujanpur by ASI Ashok Kumar (PW-25) on 25.08.2013, have denied all the incriminating circumstances appearing against them in prosecution evidence being wrong. In their defence, it was pleaded that a false case has been engineered against them and that the witnesses have deposed falsely under the pressure of local M.L.A Shri Rajinder Rana. They, however, opted for not producing any evidence in their defence.

5. Learned Special Judge on appreciation of the evidence comprising oral as well documentary has concluded that the prosecution failed to prove its case against the accused beyond all reasonable doubt. Also that, as per evidence available on record, the prosecutrix was above 18 years of age and as such, a consenting party, even if was subjected to sexual intercourse by accused No. 1. No evidence was found to be there on record showing the involvement of accused Nos. 2 and 3 in the commission of offence punishable under Section 366-A and 120-B IPC and the accused, as such, were acquitted of the charge framed against each of them.

6. The respondent-State aggrieved by the findings of acquittal recorded by learned Special Judge has questioned the legality and validity of the impugned judgment on the grounds inter-alia that the evidence available on record has been considered in a slip-shod and perfunctory manner. The impugned judgment has been passed on hypothesis, conjectures and surmises. The evidence as has come on record by way of testimony of the prosecution witnesses has been brushed aside for untenable reasons. The date of birth of the prosecutrix as 12.09.1997 though stands established from the certificate Ext. PW-11/B issued by the Secretary, Gram Panchayat, Chamyana and copy of parivar register Ext. PW-10/B, however, the same has erroneously been ignored and to the contrary learned Special Judge has erroneously concluded that her age was not less than 18 years. The testimony of the mother of the prosecutrix PW-2 and her brother PW-3 in this regard is stated to be misconstrued, misunderstood and mis-appreciated. Learned Special Judge is stated to have gone wrong while calculating the age of prosecutrix at his own in utter disregard to the cogent and reliable evidence produced by the prosecution. The Court has erroneously swayed by the admission made by PW-2 and PW-3 that the prosecutrix failed twice/thrice while pursuing her studies in the school. Learned Special Judge was also wrong while holding that in view of there was no mark of injuries and symptoms of rape, the present was a case of consent. The prosecutrix has supported the prosecution case that she was called by accused No. 1 by making call to her over cellphone and while in his company, he subjected her to sexual intercourse without her consent and against her will. Such evidence is stated to be erroneously ignored. There is ample evidence to prove that accused Nos. 2 and 3 took active part in ensuring the kidnapping of the prosecutrix by accused No. 1 and thereafter to accompany accused No. 1 to different places under the threat that there is apprehension of they both were likely to be nabbed by the police, however, learned Special Judge has erroneously concluded that cogent and reliable evidence to show the involvement of accused Nos. 2 and 3 was not available on record.

7. Mr. M.A. Khan, learned Additional Advocate General has forcefully contended that the present is a case where a minor below 16 years of age has been sexually assaulted by accused no. 1 and thereby he has committed a heinous offence, however, acquitted by learned Special Judge below while mis-appreciating, mis-construing and misreading cogent and over whelming evidence having come on record.

8. On the other hand, learned defence counsel has urged that the prosecutrix being more than 18 years of age had voluntarily accompanied accused No. 1 and visited several places with him. Although, cogent and reliable evidence except for her own testimony to show that she was subjected to sexual intercourse forcibly by accused No. 1, however, even if ultimately it is held that she was subjected to sexual intercourse such an act was not without her consent and against her will and rather consensual. So far as accused Nos. 2 and 3 are concerned, according to learned defence counsel, the present is a case of no evidence against the said accused. It has, therefore, been urged that all the accused have rightly been acquitted by learned Special Judge and as such the impugned judgment calls for no interference.

9. The nature of the offence, the accused persons allegedly committed is not only heinous but also grievous in nature because as per the allegations, accused No. 1 has not only removed the prosecutrix, allegedly a minor from her lawful guardianship in connivance with his parents, accused Nos. 2 and 3, but also subjected her to sexual intercourse against her will and without her consent.

10. It is, however, yet to be determined by us with the help of evidence available on record that the prosecutrix at the relevant time was a minor or that removed from her lawful guardianship by the accused persons in connivance with each other and also that the sexual assault made on her by accused No. 1 was without her consent and against her will, however, it is desirable to take note as to under what circumstances the commission of offence allegedly committed by the accused can be inferred. A bare perusal of Section 361 IPC reveals that if a female under 18 years of age is enticed away by a person from her lawful guardianship without the consent of her guardian, such person can be said to have committed the offence of kidnapping. The essential ingredients to constitute an offence of kidnapping, therefore, is enticing away a minor from her lawful guardianship without the consent of her guardian or any other person legally authorized to consent on behalf of such guardian of minor. Such person can be said to have committed an offence of kidnapping punishable under Section 363 of the Indian Penal Code. Section 366-A IPC takes care of a situation where a girl below 18 years of age is induced to leave a place so that she can be forced to have illicit intercourse with another person and such person can be said to have committed offence punishable under Section 366-A of the Indian Penal Code.

11. Now if coming to Section 120-B of the Act, it is required to be pleaded and proved that a criminal conspiracy was hatched and the culprit was a party to such conspiracy.

12. Now if coming to the commission of offence punishable under Section 376 of the Indian Penal Code in a case of minor, the commission of offence can be said to have committed if it is established that the prosecutrix has been subjected to sexual intercourse by the accused or in a case where the prosecutrix is not minor, the prosecution is additionally required to plead and prove beyond all reasonable doubt that such an act with her was against her will and without her consent.

13. Now if coming to the legal principles attracted in a case of this nature, in State of Punjab Vs. Gurmeet Singh and others, AIR 1996 SC 1393, the Apex Court 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 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 statement of prosecutrix cannot be universally and mechanically applied to the facts of every case of 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 : [2003 ALL MR (Cri) 612 (S.C.)]. While placing reliance on this judgment and the law laid down by the Apex Court in the judgment supra, this Court in Criminal Appeal No. 481 of 2009 titled State of Himachal Pradesh V. Negi Ram, decided on 27th May, 2016 has held as under:

"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 circumstances of each case as well as proper appreciation of the evidence available on record."

14. Now if coming to the merits of the case, in a case of this nature, it is the age aspect, which assumes considerable force. As noticed supra, the age of the prosecutrix, in the case in hand, has been claimed below 16 years. It is the extract of parivar register Ext. PW-10/B and the date of birth certificate Ext. PW-11/B have been relied upon by the prosecution to prove this part of the prosecution case. The extract of parivar register Ext. PW-10/B cannot be treated to be a legal and acceptable piece of evidence in order to determine the age of a person because it is the entries in the birth and death register, that too, when the person at whose instance the same were entered at the time of birth of that person, if examined qua authenticity and genuineness thereof can be treated as cogent and convincing evidence qua the exact age of the said person. Therefore, the evidence as has come on record by way of the testimony of Smt. Reeta Chandel (PW-10) who has proved the extract of parivar register Ext. PW- 10/B is hardly of any help to the case of the prosecution.

15. Now if coming to the date of birth certificate Ext. PW-11/B issued by Pawan Kumar, Secretary Gram Panchayat, Chamyana, he has not said as to from which record this document was issued by him. Though, he has deposed while in the witness box that the certificate is true and correct as per original record brought by him to the Court and that as per such record, the date of birth of the prosecutrix is 12.09.1997, however, nothing has come on record that the record he had produced was original birth and death register. Even if it is believed that such record was original birth register, nothing has come on record as to at whose instance, the entries qua the birth of prosecutrix were recorded in the said register. On the other hand, he has admitted cutting in this register against the alleged entries qua the birth of the prosecutrix made. Therefore, Ext. PW-11/B cannot also be said to be legal and acceptable evidence in order to inter that the prosecutrix was born on 12.09.1997. In case Ext. PW-11/B is excluded, there hardly remains any other cogent and reliable evidence accept for oral evidence as has come on record by way of testimony of her mother Smt. Sunita Devi (PW-2) and Anil Kumar (PW-3).

16. Now if coming to the statement made by her mother PW-2, the prosecutrix was admitted in school at the age of six years. At the relevant time, she was a student of 10th class. According to this witness prosecutrix failed twice, whereas, as per testimony of PW-3 her brother, she failed twice or thrice. Learned Special Judge, therefore, has not committed any illegality or irregularity while arriving at a conclusion that the prosecutrix on the day of occurrence was above 18- 19 years of age for the reason that had she failed before her admission in 10th class twice or thrice, she being admitted in the school at the age of six years was aged (10+6+2/3)=18-19 years. Learned Additional Advocate General, as such, is not right while arguing that evidence qua age aspect of the prosecutrix has not been considered by learned Special Judge in its right perspective. The present rather is a case where the prosecution has miserably failed to prove that on the date of occurrence, the prosecutrix was below 18 years of age. Except for the testimony of the prosecutrix that accused No. 2 met her at Hamirpur in the bus stand and that she was taken by the said accused to his quarter at Gandhi Chowk, Hamirpur, where accused No. 3 happened to meet her and that it is the said accused managed her elopement with accused No. 1 at the pretext that there was every likelihood of they being nabbed by the Hamirpur police, there is no corroboration thereto from any independent source. On the other hand, conduct and behaviour of the prosecutrix to be discussed hereinafter amply demonstrates that she accompanied the accused voluntarily and visited several places without lodging any protest at any stage of her stay with accused No. 1 lead to the only conclusion that she was not a minor below 18 years of age nor enticed away by accused No. 1 himself or at the behest of his parents, accused Nos. 2 and 3, after having hatched conspiracy, with a view to force her to sexual intercourse. The prosecutrix rather had attained the age of discretion and she was at the verge of reaching at the age of majority, hence left the house of her parents without any persuasion or deceitful means and rather voluntarily accompanied accused No. 1 and permitted him to take her away from one place to another. Merely a passing reference in her statement that her cellphone was taken from her by accused No. 1 and that she was threatened with dire consequences cannot be believed to infer that she was threatened to do away with her life by accused No. 1 had hue and cry been raised by her or protest lodged. Therefore, no case either under Section 363 or 366-A and for that matter under Section 506 and 120-B of the Indian Penal Code is made out against accused No. 1. Similarly, no case for the commission of an offence under Section 366-A or 120-B of the Indian Penal Code is made out against his co-accused also. Thus, the prosecution has failed to bring guilt home to any of the accused from the evidence available on record and as such, they have rightly been acquitted of the charge framed against each of them. We are drawing support in this regard from the judgment of this Court in Trilok Chand versus State of H.P. 1996(1) Sim. L.C. 187, which read as follows:

"9. After scrutinizing the available evidence carefully, I am of the considered opinion that no offence under Section 366, Indian Penal Code is made out. It may be that the prosecutrix was below eighteen years on the day of occurrence, however, it is absolutely clear from her conduct and the evidence that she had reached the stage of discretion. She was in complete love with the accused for along time. She had written number of letters to him disclosing her close intimacy and friendship with the accused. It is not possible to believe that the prosecutrix was in any way influenced or coerced by the accused either for friendship, or for marriage and providing her ornaments and clothes. It appears that she had already settled to elope with the accused that is why the accused came at that hour of night entering into the room where the prosecutrix was sleeping with her sister and two brothers and parents in the adjoining room. The fact that the prosecutrix had not bolted the door from inside also reinforces the conclusion that she had invited the accused to take her at that time of the night. She changed her clothes and left this place so secretly that the elopement was not noticed by any one of the inmates. There could be no reason for the prosecutrix to be under any kind of pressure from the accused. Voluntarily, she left the place and moved with the accused from place to place for days together without raising hue and cry. The facts rather disclose that it was the prosecutrix who played the dominant role in leaving the house. When the elopement was settled, it can be legitimately inferred that the accused may not have at all entered the room of the prosecutrix and coerced her to leave the place as alleged. Rather, she must be waiting for his appearance. At one time, she had gone out during the night looking for the accused, though, she had stated that she had done so for urination, yet the fact remains that when she returned to the room, she did not bolt the door from inside. Consequently, it is plainly clear that the prosecutrix left her father's guardianship voluntarily and the accused was not responsible for the same. The trial Judge has not appreciated the evidence correctly with the result that wrong conclusion has been drawn on this aspect of the case."

17. It is now to be seen that in the given facts and circumstances, the prosecution has been able to prove beyond all reasonable doubt that the prosecutrix has been subjected to sexual intercourse by accused No. 1 without her consent and against her will. As is held in para supra, the prosecutrix has not been proved to be below 16 years of age. She was major above 18 years of age. She, as per the prosecution case itself had received a call over her cellphone from accused No. 1 who asked her to come to Hamirpur. She boarded a bus from village Chhail(Patlandar) to Hamirpur. His mother, who is accused No. 3 also talked with her and told her that marriage will be solemnized with accused No. 1. She, therefore, boarded bus for Hamirpur and received there at bus stand by accused No.2. She was brought by the said accused to Gandhi Chowk to his quarter. There, she met with accused No. 3. She lived in that quarter for 4-5 days. Gandhi Chowk area of Hamirpur town is thickly populated. As a matter of fact, it is headquarter of Hamirpur district. There exists the Collectorate, Police Headquarter and also Judicial Court Complex nearby Gandhi Chowk. Though, no such evidence has come on record, however, judicial notice thereof can be taken. She, however, not raised any hue and cry during her stay in the quarter of accused at Gandhi Chowk. She went to Beas with accsued No. 1. They may have travelled by road from Hamirpur to Beas. There is no evidence that she lodged any protest against her being taken away by the said accused to that place. They stayed at Beas, a religious place, which place is visited by hundreds of devotees everyday. There is no evidence that she raised any hue and cry and lodged protest at Beas. On the other hand, she went along with accused No. 1 to Baba Bakala, where she allegedly was subjected to sexual intercourse for the first time. They stayed there for 4-5 days in a 'Saraye', however, she never lodged any protest at that place also. Then they went to Budha Samadhi and there also they lived for five days. She was subjected to sexual intercourse by accused at this place also. After staying at Budha Samadhi for five days, they came to Amritsar. It is at that place, she was apprehended by the police of Police Station, Sujanpur on 24.08.2013 in the company of accused. According to her, accused No. 1 was known to her one month prior to the occurrence. He used to call her over cellphone, however, she did not disclose the same to her mother and brother. Her brother Anil Kumar (PW-3) was working at the residence of Shri Rajinder Rana, a local M.L.A. No doubt, while in the witness box, it is stated that her cellphone was taken by accused No. 1 and she was threatened by him with dire consequences, in case disclosed anything to anyone. It is denied that accused No. 1 did not entice her away from her lawful guardianship and that she accompanied him voluntarily. It is also denied that the said accused did not subject her to forcible sexual intercourse. She, however, admitted that while she belongs to general category the accused belongs to reserve category.

18. Such evidence having come on record lead to the only conclusion that the accused never subjected the prosecutrix to sexual intercourse without her consent and against her will. Even if it is believed that she was subjected to sexual intercourse by accused No. 1, such an act cannot be said to be without her consent and rather consensual. The present is also not a case where her consent has been obtained by putting her or any person in whom she was interested in fear of death or of hurt. It is also not the prosecution case that she was of unsound mind and as such unable to understand the nature of the act allegedly committed by accused No. 1 with her. As a matter of fact, the present was a case based by the prosecution on 6th situation below Section 375 of the Indian Penal code, however, failed to prove beyond all reasonable doubt that the prosecutrix was below 18 years of age on the date of occurrence. On the other hand, her conduct, as is apparent from her own testimony itself demonstrates that she was a consenting party to her elopement with accused No. 1. The scientific investigation conducted rule-out the possibility of commission of sexual intercourse with her as blood and semen could not be detected on either of the exhibits, which were sent for chemical analysis, however, the clinical examination conducted by PW-12 Dr. Rajneesh Thakur reveals that she was exposed to quietus. However, there being no evidence qua the mark of violence on her body, it cannot be believed that she was assaulted sexually against her will and without her consent. The evidence as has come on record by way of testimony of PW-2 and PW-3 being hearsay is not of much help to the prosecution case. Similarly, the remaining prosecution witnesses who remained associated during the course of investigation of the case in one way or the other are formal and their testimony would have only been termed as link evidence had the prosecution been otherwise able to bring guilt home to the accused persons beyond all reasonable doubt. The charge under Section 376 of the Indian Penal Code framed against the accused thus also bound to fall to the ground.

19. The reappraisal of the evidence on record leads to the only conclusion that the prosecution has failed to prove its case against the accused persons beyond all reasonable doubt and as such, they have rightly been acquitted of the charge framed against each of them by learned trial Court. Consequently, the findings recorded by learned trial Court calls for no interference. We, therefore, find no illegality, irregularity or infirmity in the impugned judgment. The same, as such, is ordered to be affirmed.

20. For all the reasons discussed hereinabove, this appeal fails and the same is accordingly dismissed. Personal bonds furnished by the accused persons shall stand cancelled and sureties discharged.

Appeal dismissed.