State of H.P. vs Rajak Mohammad

Piar Singh Rana, J.—Present appeal is filed against the judgment passed by learned Additional Sessions Judge Solan HP in Session Trial No. 5-NL/7 of 2007/2004 titled State of HP Vs. Rajak Mohammad decided on 12.3.2008.

BRIEF FACTS OF THE PROSECUTION CASE:

Brief facts of the case as alleged by prosecution are that on dated 13.8.2003 at about 9 PM co-accused Rajak Mohammad along with co-accused Vinod @ Negi kidnapped the prosecutrix in a truck bearing registration No.HP-11-3361 from Baner. It is alleged by prosecution that truck bearing registration No. HP-11-3361 was owned by PW 4 Lok Pal and driven by PW 2 Om Parkash. It is further alleged by prosecution that truck was taken to Kullu and thereafter truck was abandoned at Kullu and co-accused Rajak Mohammad asked cleaner PW 19 Tilak Raj to take truck back. It is further alleged by prosecution that co-accused Rajak Mohammad kidnapped prosecutrix and committed sexual intercourse with her while on way to Kullu. It is further alleged by prosecution that thereafter co-accused Rajak Mohammad kept prosecutrix in a house at Kullu for 3/4 days and thereafter prosecutrix was took to different destinations and finally prosecutrix was recovered from the house of the sister of co-accused Rajak Mohammad at village Anand Ghat post office Jhanduta District Bilaspur and recovery memo Ext. PW 3/A was prepared. It is further alleged by prosecution that age of the prosecutrix was fifteen years as per school certificate placed on record. It is further alleged by prosecution that prosecutrix was medically examined by PW 16 Dr. Sarita Agnihotri and as per MLC Ext. PW 16/B sexual intercourse was committed. It is further alleged by prosecution that as per MLC Ext. PW 15/B co-accused Rajak Mohammad was capable to perform sexual intercourse. It is further alleged by prosecution that FIR Ext. PW 10/A was recorded and thereafter T-shirt and underwear of co-accused Rajak Mohammad took into possession vide seizure memo. It is further alleged by prosecution that spot map Ext. PW 18/A was prepared. It is further alleged by prosecution that as per report of chemical analyst human semen were found upon underwear Ext. P5. It is further alleged by prosecution that disclosure statement of co-accused Rajak Mohammad was recorded and accused located the place of occurrence near Pandoh District Mandi HP where co-accused Rajak Mohammad has committed sexual intercourse with prosecutrix. Charge was framed by learned Additional Sessions Judge Solan HP against co-accused Rajak Mohammad under Sections 363, 366 and 376 I.P.C. Accused Rajak Mohammad did not plead guilty and claimed trial.

Prosecution examined nineteen witnesses in support of its case:

Prosecution also produced following piece of documentary evidence in support of its case:-

Statement of accused Rajak Mohammad was also recorded under Section 313 Cr.P.C. Accused has stated that prosecutrix voluntarily joined him and took accused to Sunder Nagar HP. Accused has stated that he had married prosecutrix. Accused did not examine any defence witness. Learned trial Court acquitted the accused.

Feeling aggrieved against the judgment of acquittal passed by learned Additional Sessions Judge Solan State of HP filed present appeal.

We have heard learned Additional Advocate General appearing on behalf of the appellant and learned Advocate appearing on behalf of respondent and also gone through the entire record carefully.

Point for determination before us is whether learned trial did not properly appreciate oral as well as documentary evidence placed on record Court and whether learned trial Court had committed miscarriage of justice.

ORAL EVIDENCE ADDUCED BY PROSECUTION:

9.1 PW 1 Smt. Raj has stated that she is running a hotel a village Baner. She has stated that her daughter Sushma along with her three daughters are residing with her after the death of her husband. She has stated that on dated 13.8.2003 at 9 PM she along with her grand daughter prosecutrix went to road side to fetch fuel wood. She has stated that in the meanwhile prosecutrix was caught by co-accused Rajak Mohammad and co-accused Vinod Kumar @ Negi and thereafter lifted the prosecutrix and put her in truck No. HP-11-3361 and driven the truck towards Bilaspur (HP) side. She has stated that she raised hue and cry and thereafter reached her home. She has stated that thereafter Ashok Kumar informed at Police Station Bilaspur about kidnapping of prosecutrix. She has stated that police reached at the spot and recorded her statement Ext. PA. She has stated that prosecutrix was traced after about 14/15 days. She has stated that co-accused Rajak Mohammad was also arrested. She has stated that during custody co-accused Rajak Mohammad had made disclosure statement that he could identify the place where he committed sexual intercourse with the prosecutrix. She has stated that prosecutrix also located the site of incident. She has stated that prosecutrix was aged about fifteen years at the time of incident. She has denied suggestion that the age of the prosecutrix was 19/20 years at the time of incident. She denied suggestion that prosecutrix voluntarily joined the company of co-accused Rajak Mohammad.

9.2 PW 2 Om Parkash has stated that he was driver in truck No. HP-11-3361 owned by Sh. Lekh Raj. He has stated that Tikal Ram was conductor of the truck. He has stated that on dated 13.8.2003 he was driving truck from Roper to Darlaghat and stopped truck at Baner for taking tea. He has stated that after about half an hour he heard noise and came out from the truck and found that his truck was removed from the spot. He has stated that truck was recovered on the next day by police from Bilaspur and was took into possession vide memo Ext. PW 2/A. He has stated that he does not know co-accused Rajak Mohammad present in Court. He has stated that he did not see co-accused Rajak Mohammad on that day. He has denied suggestion that co-accused Rajak Mohammad has kidnapped prosecutrix in a truck. Witness was declared hostile by prosecution. He has denied suggestion that in order to save accused he had deposed falsely.

9.3 PW 3 Dalip Singh has stated that he was President of Gram Panchayat Balgarh in the year 2001. He has stated that on dated 25.8.2003 police officials came to his residence at 4 PM. He has stated that thereafter he went along with police officials to the residence of Taj Din at village Anandghat. He has stated that co-accused Rajak Mohammad and prosecutrix were sleeping in one room. He has stated that he identified co-accused Rajak Mohammad in Court. He has stated that police officials prepared recovery memo Ext. PW 3/A. He has stated that prosecutrix did not disclose to police officials in his presence that prosecutrix had solemnized marriage with co-accused Rajak Mohammad.

9.4 PW 4 Lok Pal has stated that he is owner of truck bearing registration No. HP-11-3361. He has stated that on dated 13.8.2003 the driver of the truck was Om Parkash. He has stated that in the night driver of the truck has informed him on telephone that his truck was stolen from village Baner. He has stated that thereafter he intimated police official at Police Station Bilaspur regarding theft of truck. He has stated that on the next day he received a telephone call from Police Station Bilaspur that truck in question was recovered. He has stated that thereafter he went to Police Station Bilaspur. He has stated that the cleaner of the truck was present there. He has stated that thereafter truck was subsequently released from the Court vide release memo Ext. PW 4/A.

9.5 PW5 Jasdeep Kaur has stated that she is posted JBT Teacher in Government Primary School Dungi since 1998. She has stated that she brought original admission form and admission and withdrawal register. She has stated that date of birth of the prosecutrix as per record is dated 10.8.1988. She has stated that photo copy of the birth certificate is Ext. PW 5/A. She has stated that she issued certificate Ext. PW 5/B. She has stated that she brought original withdrawal register.

9.6 PW 6 prosecutrix has stated that she and her maternal grand mother had gone to bring fuel wood which was kept nearby the road side. She has stated that at about 9 PM accused along with 10/15 boys forcibly dragged her and took her in a truck. She has stated that her grand mother raised hue and cry. She has stated that accused persons gagged her mouth and also kept knife at her neck and threatened her that in case she would raise alarm she would be killed. She has stated that thereafter accused persons took her to Kullu and while on way to Kullu accused Rajak Mohammad raped her. She has stated that she was kept in a house for 3/4 days and thereafter she was took to unknown place by accused persons. She has stated that thereafter accused Rajak Mohamad took her to the house of his sister where she remained for thirteen days. She has stated that co-accused Rajak Mohammad used to administer intoxicated drugs to her. She has stated that thereafter police officials came to the house of co-accused Rajak Mohammad and she was recovered. She has stated that she was medically examined at CHC Nalagarh. She has stated that her salwar and shirt were took into possession by medical officer at the time of her medical examination. She has denied suggestion that accused person had not kidnapped her. She denied suggestion that she was more than eighteen years at the time of incident. She has stated that she has solemnized marriage with one Narinder about one and half years ago.

9.7 PW 7 Bimla Devi has stated that Vinod Kumar is his younger brother and he is driver by profession. She has stated that on dated 16.8.2003 Vinod Kumar visited her house and he was accompanied with co-accused Rajak Mohammad and prosecutrix was also with him. She has stated that she inquired from her brother Vinod Kumar about co-accused Rajak Mohammad and prosecutrix. She has stated that thereafter Vinod Kumar told her that co-accused Rajak Mohammad was his friend and prosecutrix was the wife of co-accused Rajak Mohammad. She has stated that on the next morning Vinod Kumar left her house on the pretext that he would go to Kelong. She has stated that thereafter co-accused Rajak Mohammad and prosecutrix stayed in her house for about one and half days. She has stated that prosecutrix was happy and stayed voluntarily in her house. She has stated that she asked the prosecutrix as to why she did not place ''Bindi'' (Sign of married woman on forehead). She has stated that prosecutrix told her that her husband is Mohamadan by caste and due to aforesaid reason she did not place ''Bindi'' (Sign of married woman upon her forehead).

9.8 PW 8 Dr. Neelam Gupta has stated that during August 2003 he was working as Radiologist in Civil Hospital Nalagarh. She has stated that on dated 26.8.2003 prosecutrix was referred to her by Dr. Sarita Agnihotri for X-ray examination. She has stated that thereafter she took X-ray of prosecutrix right shoulder, right elbow, right wrist and right knee. She has stated that on the basis of the report of Radiologist the age of the prosecutrix was between 17 to 18 years. She has stated that Skiagrams are Ext. SK/1 to Ext. SK/4 and report is Ext. PW 8/A.

9.9 PW 9 Nazir Khan has stated that during August 2003 he remained posted SI Incharge Detective Ring Sadar Police Station Bilaspur. He has stated that on dated 14.8.2003 on receipt of telephonic message from Ashok Kumar that prosecutrix was kidnapped from village Baner in a truck having registration No. HP-11-3361 taken towards Darlaghat side. He has stated that he immediately rushed to Darlaghat but he did not find truck and girl. He has stated that thereafter he recorded the statement of complainant Smt. Raj under Section 154 Cr PC Ext. PA. He has stated that thereafter the statement of complainant was sent through HHC Ved Parkash to Police Station Nalagarh for registration of the case.

9.10 PW 10 Anant Ram has stated that during August 2003 he remained posted as SHO Police Station Nalagarh. He has stated that on dated 14.8.2003 on receipt of the statement Ext. PA through HHC Ved Parkash he recorded FIR Ext. PW 10/A. He has stated that place of occurrence was within the jurisdiction of Police Post Joghon as the investigation was entrusted to ASI Harjeet Singh the then Incharge Police Post Joghon.

9.11 PW 11 Kamal Nain has stated that he remained posted as MHC Police Station Nalagarh during the year 2003. He has stated that on dated 25.8.2003 Inspector Vijay Kumar accompanied by ASI Harjeet Singh and Constable Pushpinder Kaur deposited with him two parcels and two bottles of the case which was duly sealed with seal ''CHC Nalagarh. He has stated that he entered the same in the malkhana register at serial No. 666 of 2003. He has stated that on dated 30.5.2003 vide RC No. 82 of 2003 he sent all articles along with relevant documents and sample of seals to FSL Bharari for analysis. He has stated that case property remained intact in his custody. He has stated that he brought original malkhana register, RC register and daily diary register in Court. He has stated that photo copies of the registers are Ext. PW 11/A, Ext. PW 11/B and Ext. PW 11/C which are correct copy as per original record.

9.12 PW 12 Bhagat Ram has stated that he was posted as Constable at Police Post Joghon. He has stated that on dated 30.8.2003 MHC Kamal Nain entrusted to him two parcels and two bottles duly sealed with seal impression CHC Nalagarh along with relevant documents and envelope and sample of seal vide RC No. 82 of 2003 and directed him to deposit the same in FSL Bharari. He has stated that he had deposited articles at FSL Bharari. He has stated that case property remained intact in his custody.

9.13 PW 13 Jagdish Ram has stated that he remained posted as Inspector/SHO Police Station Nalagarh w.e.f. September 2003 to December 2004. He has stated that after completion of investigation of the case and after receipt of report of Chemical Examiner Ext. PX he prepared final report on dated 17.11.2003 and thereafter the same filed in Court.

9.14 PW 14 Ashok Kumar has stated that he is transporter and complainant Smt. Raj is known to him. He has stated that on dated 13.8.2003 he was on his way to his home in Maruti Car No. HP-24-A-2631. He has stated that at about 9.30 PM when he reached near restaurant of complainant he stopped his vehicle to take tea. He has stated that he washed his hand and sat on the table. He has stated that in the meanwhile he heard noise that prosecutrix was kidnapped by co-accused Rajak Mohamad and Vinod @ Negi in truck No. HP-11-3361. He has stated that thereafter Sushma and her mother Raj requested him to intercept the said truck. He has stated that he followed the truck in his car accompanied by Smt. Raj and Sushma. He has stated that when he reached near Jamli he tried to over take the truck but truck driver did not give him pass. He has stated that as he took the pass truck driver struck his car and his car was damaged. He has stated that thereafter accused Rajak Mohammad and Vinod @ Negi fled away in the truck. He has stated that thereafter he informed Police Station Bilaspur. He has stated that occupants of the truck were known to him. He has stated that co-accused Rajak Mohammad present in Court is one of them. He has denied suggestion that he has relationship with prosecutrix, complainant Smt. Raj and Sushma.

9.15 PW 15 Dr. Suneel Gupta has stated that he remained posted as Medical Officer Civil Hospital Nalagarh during the year 2003. He has stated that on dated 25.8.2003 at about 4.25 PM he examined co-accused Rajak Mohamad. He has stated that on examination he found that co-accused Rajak Mohammad was capable to perform sexual intercourse. He has issued MLC Ext. PW 15/B which bears his signature. He has stated that T-shirt Ext. P3, pant Ext. P4 and underwear Ext. P5 were sealed by him and handed over to the police.

9.16 PW16 Dr. Sarita Agnihotri has stated that she remained posted as Medical Officer in CHC Nalagarh during August 2003. She has stated that on dated 25.8.2003 she examined prosecutrix. She has stated that prosecutrix was un-married. She has stated that prosecutrix at the time of examination was conscious, cooperative and well oriented. She has stated that there were no marks of external injury over the face, lips, around mouth, cheeks, neck, shoulder, back, upper limbs, chest abdomen, lower limbs and breast of the prosecutrix. She has stated that hymen was torn. She has stated that vaginal was easily admitting two fingers. She has stated that there were no injuries over vaginal walls. She has stated that as per report of Radiologist the age of the prosecutrix was between 17 to 18 years. She has stated that there was nothing to suggest that sexual intercourse did not take place. She has stated that she issued MLC Ext. PW16/B. She has stated that Shirt Ext. P1 and salwar Ext. P2 are the same. She has stated that duration of sexual intercourse could not be mentioned in MLC as there was no internal and external injury upon genitalia.

9.17 PW17 Balbir Singh has stated that he remained posted as Sub Inspector Police Station Nalagarh during the year 2003. He has stated that during the investigation of the case he recorded statements of the witnesses Tajdeen, Constable Bhagat Ram, MHC Kamal Nain and Ashok Kumar. He has denied suggestion that statement of witness Ashok Kumar Ext. DX was written by him according to his own version. He denied suggestion that statement of Taj Deen, Constable Bhagat Ram and MHC Kamal Nain were written in Police Station.

9.18 PW18 Harjit Singh has stated that he remained posted as Incharge Police Post Joghon from 2003 to 2004. He has stated that FIR No. 124 of 2003 was registered at Police Station Nalagarh. He has stated that he conducted the investigation and on dated 15.8.2003 he visited the place of incident and prepared site map Ext. PW18/A. He has stated that on dated 17.8.2003 Om Parkash driver of truck No. HP-11-3361 produced truck along with its documents and driving license which were took into possession vide seizure memo Ext. PW18/B. He has stated that truck was released. He has stated that on dated 25.8.2003 prosecutrix was recovered along with co-accused Rajak Mohammad from the house of Tajdeen and thereafter prosecutrix was handed over to her mother vide memo Ext. PW3/A. He has stated that he prepared spot map Ext. PW18/C. He has stated that prosecutrix was also medically examined vide application Ext. PW16/A. He has stated that that MLC Ext. PW16/B of the prosecutrix was obtained. He has stated that thereafter co-accused Rajak Mohammad was also medically examined and his MLC Ext. PW15/B was also obtained. He has stated that during the investigation he recorded statement of the witnesses as per their versions. He has stated that thereafter he handed over case file to ASI Balbir Singh for further investigation. He has denied suggestion that prosecutrix and co-accused Rajak Mohammad were living as husband and wife in the house of Tajdin. He has admitted that prosecutrix has implicated her brother-in-law in the case of rape which was tried by learned Sessions Judge camp at Nalagarh.

9.19 PW 19 Tilak Raj has stated that he was working as cleaner in truck No. HP-11-3361. He has stated that truck was owned by Inder Kumar. He has stated that the driver of the truck was Om Parkash. He has stated that while he was returning back after unloading the clinker at Ropar he had slept in the cabin from Kiratpur. He has stated that truck had hit some vehicle near Gamberpool and thereafter he woken up. He has stated that driver of the vehicle was not in the truck. He has stated that he saw two boys and a girl inside the truck. He has stated that one boy was driving the truck. He has stated that thereafter he inquired about the driver of the truck and he was informed that driver would come after short time. He has stated that thereafter the truck was driven towards Mandi. He has stated that truck was abandoned at Kullu and he was asked to take back the vehicle. He has stated that one of the boy was Rajak Mohamad and he identified accused Rajak Mohammad in Court. He has stated that another accused was Vinod @ Negi. He has stated that truck was driven by Vinod @ Negi and co-accused Rajak Mohammad and prosecutrix were sitting in the back seat in the cabin of truck. He has stated that he was sitting in the conductor seat. He has stated that accused persons had threatened him that in case he would disclose the incident to anybody they would kill him. He has stated that thereafter he brought back the truck from Kullu.

Submission of learned Additional Advocate General appearing on behalf of the State that offence under Section 376 I.P.C. is proved against co-accused Rajak Mohammad beyond reasonable doubt in the present case is accepted for the reason hereinafter mentioned. We have carefully perused the testimony of prosecutrix. Prosecutrix has stated in positive manner that at about 9 PM co-accused Rajak Mohammad forcibly lifted the prosecutrix in a truck along with other co-accused Vinod @ Negi who could not be traced and thereafter co-accused Rajak Mohammad gagged the mouth of prosecutrix and kept knife on her neck and threatened her with death in case she would raise alarm. Prosecutrix has stated in positive, cogent and reliable manner that thereafter co-accused Rajak Mohammad took her to Kullu and on way to Kullu he committed rape upon prosecutrix. Prosecutrix has specifically stated in positive, cogent and reliable manner that thereafter the prosecutrix was kept for 3/4 days in the house and thereafter the prosecutrix was took to the house of the sister of the accused Rajak Mohammad and was kept for thirteen days. Prosecutrix has stated in positive manner that accused used to administer intoxicated drugs to her. Testimony of the prosecutrix is trust worthy, reliable and inspires confidence of Court. There is no reason to disbelieve the testimony of the prosecutrix. There is no evidence on record that prosecutrix has hostile animus against accused Rajak Mohammad at any point of time. Testimony of prosecutrix is corroborated by PW1 Smt. Raj who has specifically stated in positive manner that on dated 13.8.2003 at 9 PM accused Rajak Mohamad lifted prosecutrix in truck No. HP-11-3361 and thereafter took truck towards Bilaspur side. Testimony of the prosecutrix is further corroborated by PW14 Ashok Kumar. PW14 has stated in positive manner that on dated 13.8.2003 at 9 PM he stopped his car at the restaurant of complainant Smt. Raj to take tea and he heard noise that prosecutrix was kidnapped by co-accused Rajak Mohammad and co-accused Vinod @ Negi in truck No. HP-11-3361. PW14 has specifically stated in positive manner that thereafter Sushma and her mother Raj requested PW14 Ashok Kumar to intercept the truck and thereafter he followed the truck on his car accompanied by Smt. Raj and Sushma and when he reached near Jamli he tried to over take the said truck but the driver of the truck did not give him pass and when he tried to take the pass the driver struck his truck with his car and his car was damaged. PW14 has specifically stated in positive manner that thereafter co-accused Rajak Mohammad and co-accused Vinod @ Negi fled away in the truck along with prosecutrix. Testimony of PW14 is trust worthy, reliable and inspires confidence of Court. There is no reason to disbelieve the testimony of PW14. There is no evidence on record that PW14 has hostile animus against the accused at any point of time. Even PW16 Dr. Sarita Agnihotri Medical Officer has also given opinion that sexual intercourse could not be ruled out. Even PW15 Dr.Suneel Gupta has stated in positive manner that co-accused Rajak Mohammad was capable of performing sexual intercourse.

The testimony of oral evidence is also corroborated by documentary evidence i.e. disclosure statement of co-accused Rajak Mohammad placed on record. Even as per chemical analyst report Ext. PX human semen was found upon the underwear of co-accused Rajak Mohamad. Even as per MLC report Ext. PW15/B placed on record co-accused Rajak Mohammad was capable of performing sexual intercourse. It is well settled law that sole testimony of prosecutrix is enough to convict a person accused of rape if testimony of the prosecutrix is free from blemish. It is well settled law testimony of prosecutrix does not require corroboration if same is trust worthy and reliable. See Mohd. Alam through the Superintendent Vs. The State (NCT of Delhi), . Also see Gurcharan Singh Vs. State of Haryana, . Also see Sheikh Zakir Vs. State of Bihar, . It was held in case reported in Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, that refusal to act on the testimony of a victim of sexual assault is adding insult to the prosecutrix unless the evidence of the prosecutrix suffer from any basic infirmity or improbability. It is well settled law that testimony of prosecutrix must be appreciated in the background of the entire case and trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestation. See AIR 1996 (2) SCC 384 titled State of Punjab Vs. Gurmit Singh and others. Also see State of Rajasthan Vs. N.K.-The Accused, . Also see State of Himachal Pradesh Vs. Lekh Raj and Another, . Also see Madan Gopal Kakkad Vs. Naval Dubey and Another, .

Another submission of learned Additional Advocate General appearing on behalf of the State that prosecution proved its case against the accused beyond reasonable doubt under Section 363 I.P.C. is also accepted for the reason hereinafter mentioned. It is proved on record that the age of the prosecutrix at the time of incident was fifteen years. PW5 Jasdeep Kaur posted as JBT Teacher in the school has specifically stated in positive manner that as per original school register date of birth of the prosecutrix was dated 10.8.1988. The incident took place on 13.8.2003 at 9 PM. Kidnapping from lawful guardianship is defined under Section 361 I.P.C. and the age of male for the purpose of kidnapping has been mentioned as sixteen years and age of female for the purpose of kidnapping has been mentioned as eighteen years. As per school certificate placed on record it is prove on record that at the time of incident the prosecutrix was fifteen years of age. Accused Rajak Mohamad has lifted the prosecutrix during night period at 9 PM without consent of lawful guardianship and thereafter co-accused Rajak Mohammad took prosecutrix in a truck during the night period to Kullu and thereafter kept prosecutrix at several places. It is well settled law that consent of minor is immaterial in criminal offence under Section 363 I.P.C. It is well settled law that it is only the guardian consent which is necessary to take the case out of the purview of Section 363 I.P.C. See Parkash Vs. State of Haryana, .

Another submission of learned Additional advocate General appearing on behalf of the State that prosecutrix was kidnapped by accused Rajak Mohamad in a truck during night period without consent of lawful guardian with the intention to compel the prosecutrix to marry is also accepted for the reason hereinafter mentioned. It is proved on record that co-accused Rajak Mohammad had kidnapped the prosecutrix during the night period in a truck towards Kullu side and thereafter compelled the prosecutrix for her marriage. It was held in case reported in 1999 Cr.L.J. 345 titled Mohan Lal Suryavansi Vs. State of M.P. that consent of minor prosecutrix does not matter if the prosecutrix was taken to separate places for making sexual intercourse away from her lawful guardian. In the present case prosecutrix was taken by co-accused Rajak Mohammad for the purpose of sexual intercourse without consent of lawful guardian.

Submission of learned Advocate appearing on behalf of the accused that prosecution has not been able to establish that prosecutrix was minor at the time of incident and on this ground appeal filed by State be dismissed is rejected being devoid of any force for the reason hereinafter mentioned. Prosecution has placed on record admission form Ext. PW5/A and in admission form the date of birth of the prosecutrix has been shown as 10.8.1988. Even the then Head Master of the school has also given certificate Ext. PW5/B that age of the prosecutrix as per admission register is dated 10.8.1988. Even PW5 Jasdeep kaur has specifically stated on oath when she appeared in witness box that as per school record the prosecutrix was born on 10.8.1988. PW5 Jasdeep Kaur has produced original register in the trial Court. Birth certificate Ext. PW5/B and Ext. PW5/A has been given by public servant in discharge of his official duty and is a relevant factor under Section 35 of the Indian Evidence Act. See Harpal Singh and Another Vs. State of Himachal Pradesh, Hence it is held that prosecutrix was minor at the time of incident as per school certificate placed on record. It was held in case reported in Murugan @ Settu Vs. State of Tamil Nadu, that if the document was prepared ante litem motam the same could be relied safely when such document is admissible under Section 35 of the Indian Evidence Act. Similarly in the present case entry in the school register was recorded ante litem motam and same could be safely relied by the Court. Possibility of fabrication of document is ruled out.

Another submission of learned Advocate appearing on behalf of the accused that as per ossification test the age of the prosecutrix was 17 to 18 years and the prosecutrix was major at the time of incident and on this ground appeal filed by State be dismissed is also rejected being devoid of any force for the reason hereinafter mentioned. It is well settled law that exact age of the prosecutrix is not determinable through ossification test and variation of two years is possible on either side. In the present case the prosecutrix is minor and court exercised discretion in favour of minor prosecutrix because as per law Court is the guardian of the minor prosecutrix. The ossification report is contradicted by birth entry certificate issued by competent authority of law in discharge of his official duty wherein it has been specifically mentioned that prosecutrix was born on dated 10.8.1988.

Another submission of learned Advocate appearing on behalf of the accused that prosecutrix roamed freely in the company of accused from one place to another and present case is a case of sexual consent and on this ground appeal filed by State be dismissed is also rejected being devoid of any force for the reason hereinafter mentioned. As per school certificate placed on record prosecutrix was born on 10.8.1988 and incident took place on dated 13.8.2003. School certificate has been issued by public official in discharge of his official duty and is a relevant factor under Section 35 of the Indian Evidence Act 1872. It is well settled law that consent of minor in sexual cases is immaterial. Hence it is held that in the present case the prosecutrix was minor at the time of incident and it is held that consent of prosecutrix is immaterial in the present case. Even the case of co-accused Rajak Mohammad is not covered in the concept of consent theory because prosecutrix has specifically stated in positive manner when she appeared in witness box that accused used to give her intoxicated drugs. It is well settled law that any consent obtained after giving intoxicated drugs is no valid consent as per law. Even accused did not cross examined prosecutrix when she appeared in the witness box that no intoxicated drugs was given to her by accused. Even as per section 114-A of Indian Evidence Act 1872 where sexual intercourse is proved and prosecutrix states in her evidence before Court that she did not consent then Court shall presume that prosecutrix did not consent.

Another submission of learned Advocate appearing on behalf of the accused that there was no external or internal injury upon the vagina of prosecutrix and on this ground appeal filed by State be dismissed is also rejected being devoid of any force for the reason hereinafter mentioned. Prosecutrix has specifically stated in positive manner that sexual intercourse was committed by the accused after placing knife upon her neck and after threatened the prosecutrix that she would be killed in case she cry or narrate the incident to anybody. It is held that consent of the prosecutrix in the present case was not voluntarily but was obtained after giving her intoxicated drugs and after threatening the prosecutrix that she would be killed in case she narrate the incident to anybody.

Another submission of learned Advocate appearing on behalf of the accused that there are material contradiction in the evidence of the prosecution and on this ground appeal filed by State be dismissed is also rejected being devoid of any force for the reason hereinafter mentioned. Learned defence Advocate did not point out any material contradiction which goes to the root of the case. In the present case incident took place on 13.8.2003 at 9 PM and the statements of the prosecution witnesses were recorded on 12.4.2005, 13.4.2005, 6.12.2005, 7.12.2005, 11.9.2007, 14.9.2007, 6.12.2007 and 8.2.2008. It is well settled law that when the statements of the prosecution witnesses are recorded after a gap of sufficient time then minor contradictions are bound to come in criminal case.

In view of the above stated facts it is held that learned trial court did not properly appreciate oral as well as documentary evidence adduced by the prosecution and the learned trial Court had committed miscarriage of justice. Hence appeal filed by the State is allowed and judgment passed by learned trial Court is set aside. Accused is convicted under Sections 363, 366 and 376 I.P.C. Now accused be heard on the quantum of sentence on 29.4.2015.