2010 2 Crimes(HC) 734
2010(2) Crimes 734 (H.P.)
HIMACHAL PRADESH HIGH COURT
Deepak Gupta and Surinder Singh, JJ.
State of H.P. —Petitioner
versus
Jarnail Singh —Respondent
Crl. Appeal No. 211 of 1995
Decided on 7-7-2009
IMPORTANT POINT
Record of admission of a student containing the age of the student or an attested copy thereof which may carry presumption to its correctness, if it is proved that the age as recorded in the school records came into being at the instance of the person expected to know the correct age of the student.
Indian Pena Code, 1860—Section 363, 366 and 376—Kidnapping and rape—Respondent took prosecutrix by force and threat with him and raped her in field and then in house of her relative where she was kept for two days—Acquittal by trial Court—State appeal—Prosecution was to prove that prosecutrix was below 18 years of age for offence of kidnapping—School Leaving Certificate and register of birth and death of Gram Panchayat were produced and proved—Contradictions on statement of witness with respect to dates of birth—Witness failed to state if Register was maintained in discharge of official duty in Panchayat—No presumption could be attached to entries made therein—Entry in school record on basis of panchayat register entry could not be attached importance—Parents of prosecutrix were not examined—Her age by bony examination was not got asserted—Prosecution could not be said to have proved prosecutrix to be below 18 years—Her testimony regarding offence of rape was by improvement, inconsistent and contradictory—When recovered, she had desired to go with respondent—There was no corroboration by medical evidence—Acquittal could not be interfered with. (Paras 18 to 28)
Act Referred :INDIAN PENAL CODE : S.376, S.363, S.366
Counsel for the Parties:For the Appellant: R.K. Bawa, Advocate General with R.M. Bisht and Rajesh Mandhotra, Dy. Advocate-General.For the Respondent: Ajay Sharma, Advocate.
JUDGMENT Surinder Singh, J.:— The challenge has been made in this appeal against the judgment of acquittal passed in Sessions Case No. 6/94 (93), on 17.6.1994 by the learned Sessions Judge under Sections 363, 366 and 376 of the Indian Penal Code.
2. Sh. Rajesh Mandhotra, learned Deputy Advocate General vehemently argued that the findings of the learned trial court are based on conjecture and surmises, as the same are contradictory to the material on record, particularly with respect to the age of the prosecutrix which otherwise stood proved by leading a cogent evidence by the prosecution and also that. the learned trial court also wrongly concluded that the prosecutrix is a consenting party. It is further argued that if the case of the prosecution is seen and examined in the right perspective. there are reasons and grounds to convert the acquittal into conviction..
3. Shri Ajay Sharma learned counsel for the respondent while supporting the impugned judgment strenuously argued that the version given by the prosecutrix does not inspire confidence. She has materially improved and deviated from the main case thereby causing a dent in the prosecution case and the prosecutrix in all probability has been proved to be more than 18 years and a consenting party.
4. We have considered the rival contentions of the parties in the light of the evidence produced. At the very out set, on the reappraisal of the evidence on records we would like to say that the judgment of the learned trial court cannot be faulted on any of the grounds put forth by the learned Deputy Advocate General.
5. In short the case of the prosecution, which emerges from the prosecution evidence is that the father of the prosecutrix was working at Chandigarh. She along with her brother and other sisters was residing with her grand father PW1 Harbans Singh.
6. On 15.8.1992 there was a “jagrata” in the house of Yog Raj, a co-villager of the complainant. During the night at about 9 p.m, the prosecutrix went to attend the “jagrata” but did not return till next morning when the persons assembled for “jagrata” had dispersed.
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