complainant against the judgment dated 1 6 .08.2007 passed by the learned Additional S e ssions Judge, Sangrur, whereb y the accused/respondent No. 2 herein has b een acquitted in case FIR No. 5 6 dated 10.03.2006 registere d under Sections 363, 366-A and 376 IPC at P o lice Station Malerkotla.

¶18

Learned counsel for t h e petitioner has very ably , thoroughlya n d persuasively argued before this Court that on the date o f incident i.e. 08.03.2006, the victim/minor d aughter of the petitioner wa s only 15 yea r s of age. In this regard, learn e d counsel has referred to th e school certificate of the victim/Ex.PE as pe r which the date of birth of th e victim is depicted to be 15.05.1991. It is acc o rdingly, contended that on th e date of inci d ent i.e. 08.03.2006 the victim w as just about 15 years of age .

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SUNENA Learned cou n sel submits that the school ce r tificate (Ex.PE) was duly prove n 2024.10.19 18:11 I attest to the accuracy and authenticity of this document

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by the Principal (PW5). As such, the age of t he victim was established to b e about 15 ye a rs on the date of incident. However, the learned trial Court ha s erroneously relied upon the ossification te s t report (Ex.D8) in holding th e age of the victim to be 18-20 years on the d ate of incident. It is contended that Learne d trial Court has wrongly relied u pon the ossification test repor t as there ar e plethora of judgments as per which it has been held tha t ossification r eports do not always depict t h e correct age. It is well-know n that it is po s sible that there is an error of about two years either way i n determining the age. In support, learned counsel has relied upo n judgments o f Hon’ble Supreme Court in ‘Mohd. Imran Khan Vs. State (Govt. of NCT of Delhi)’ Law finder doc ID # 278366; and ‘Ram Suresh Singh Vs. Prabhat Singh Alias Chhotu Singh & Another’ Law Finder Doc ID # 200815. It is argued that accordingly, ag e of the victim could have bee n between 16 - 22 years; and assumption ha s to be made in favour of th e victim, ther e fore, taking her age to be abou t 16 years. As such, on the dat e of incident, t he victim was a minor.It is fur t her submitted that even if it i s presumed t h at the prosecutrix was major, still the accused has to b e convicted for offence of rape. The accused has been acquitted merely b y placing reli a nce upon the ossification t e st report and excluding vita l evidence pr o duced by the prosecution w ith regard to the age of th e prosecutrix. As such, the learned trial Co u rt has wrongly held that th e prosecutrix w as major and therefore, her c onsent is there and the entir e evidence pr o duced on record has been br u shed aside by the learned tria l Court.

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SUNENA 2024.10.19 18:11 I attest to the accuracy and authenticity of this document

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It is next contended by learned counsel for th e petitioner that the accused has been acquit t ed also on the ground that th e victim was a consenting party to the relatio n . Learned counsel submits tha t the said rea s oning of the learned trial Court is misplaced in view of the fac t that the vic t im in her testimony as PW2 h as categorically supported th e prosecution case. Moreover, consent of t h e victim is also not made ou t from the ad m itted fact that at the time of occurrence, the accused was a married per s on. Even further, in holding so the learned trial Court ha s ignored and wrongly read the evidence that since there is no mark of an y injury on th e person of the prosecutrix, the r efore, it was a case of consent. However, i n this regard, learned trial Court has ignored the categori c testimony o f the victim as PW2 wherein in h er examination-in-chief she ha s categorically stated that “…During the act of rape no injury came on m y person as h e used to spread cloth on the ground…”. As such, thi s presumptio n raised by the learned trial C o urt is against the evidence o n record as t h e victim in her deposition h a s clarified that no injury wa s sustained o n the person of the victim a s while raping the victim, th e accused use d to spread cloth on the ground . 4. Moreover, the victim wa s recovered from the custody o f the accused o n 12.03.2006. It is contended t hat the very fact that the victi m was recover e d from the custody of the ac c used shows that she had been subjected to rape by the accused. Even as p er thedoctor’s opinion Ex.PJ, i t was opined t hat sexual intercourse had ta k en place. As such, once sexual intercourse h as taken place there is nothin g on record to suggest that th e

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prosecutrix w as the consenting party rathe r it has come on record that sh e was forcibly taken by the accused on the d ate of incident. Therefore, th e learned trial Court has committed grave er r or in law as well as on facts b y misreading t he voluminous evidence pr o duced on record against th e accused and wrongly acquitted the accused.

¶28

It is reiterated that the learned trial court has failed t o appreciate t h e documentary as well as oral evidence produced on recor d with regard to the age of the prosecut r ix. As per school register, a s produced, i t is absolutely clear that on the date of occurrencewhe n respondent No.2-accused raped the pro s ecutrix, she was minor. Th e statement E x .PE coupled with the statemen t of Principal of the School PW. 5 Smt. Seema Sharma leaves no manner of d oubt that the prosecutrix wa s minor. How e ver, the learned trial court w h ile ignoring this vital evidence , relied upon t he ossification test report of t h e prosecutrix wherein the ag e of the pros e cutrix was shown as 18 to 20 y ears. This evidence cannot b e relied upon e specially when the document a ry evidence with regard to th e age of the p rosecutrix was produced by t h e prosecution from the schoo l where the prosecutrix was studying. There f ore, the learned trial court ha s committed g rave error in law a s well a s on facts while ignoring th e documentar y evidence produced on recor d with regard to the age of th e prosecutrix.

¶29

The learned trial Court has further committed grav e error while ignoring the statement of th e prosecutrix having the sam e version as gi v en in the FIR. The Hon’ble Su p reme Court has time and again

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held in vari o us cases that the conviction o f an accused under Section 37 6 IPC can be m ade solely on the statement o f the prosecutrix. This fact ha s totally been ignored by the learned trial Court. 7. It is further submitted th a t even as per the MLR (Ex.PH) ,

¶33

spermatozo a has been detected on the exhibits. The report was sent fo r chemical ex a mination upon which spermatozoa was found. The learne d trial Court h a s committed grave error while ignoring the opinion appearin g in the report of Chemical Examiner which re a ds as under:-

¶34

“In reference to MLR No. M G /2/06 dt. 12.3.06 of Shaban a daughter of Mohd. Salim, resi d ent of Manna Phatak, chemica l examiner report received by N o.833 dt. 5.4.2006 examine r report received by No.833 dt. 5 .4.2006 shows the presence o f Spermatozoa in Exs. I, II and III” .

¶35

Furthermore, as per the opinion (Ex.PJ and Ex.PJ/1) o f the doctor n amely Dr. Meenakshi Goyal ( PW6), “ sexual intercourse ha s taken place ” . The medical report dated 12.03.2006 also suggests tha t prosecutrix w as subjected to rape. It is stat e d that thus the factum of rap e is fully pro v ed. However, the entire evid e nce has been ignored by th e learned trial Court and the accused has b een wrongly and erroneousl y acquitted. 9. Per contra, learned counsel for the accused vehementl y submits that no ground is made out to inte r fere in the impugned judgmen t as first and f oremost the date of incident is 08.03.2016; whereas the FI R has been re g istered after a delay of two da y s on 10.03.2016. It is submitte d that there i s no explanation on record f o r this delay of two days. It i s

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further sub m itted that the statement of the victim under Section 16 4 Cr.P.C. was r ecorded after almost three days on 12.03.2006. Again, there i s no explanat i on for this delay in recording statement of the victim. It i s further sub m itted that in actual fact, the v ictim and the accused used t o like each ot h er. A bare perusal of the testimony of the victim as PW2 show s that she has mentioned therein that there w ere talks of marriage going o n between th e appellant and the accused. Ho w ever, mother of the victim wa s not amenable to the said alliance. It was fo r this reason that the victim had left her pare n tal home and had willingly acc o mpanied the accused. 10. It is further stated that the averments of the learned counsel for t he petitioner regarding the ossification test are misplaced a s the said sch o ol certificate (Ex.PE) is an unr e liable document. The Principal (PW5) has cl e arly stated in her testimony that she does not know Urdu and that therefore, she does not understand t he contents of the said Ex.PE . Moreover, t h e person who has given the inf o rmation contained in Ex.PE i.e. the person w ho has disclosed date of birth of the victim to be 15.05.199 1 has not been examined. Even the person who prepared the said schoo l certificate ( E x.PE) has not been examined. It is merely the Principal wh o had append e d her signatures to Ex.PE, and t hat too without understandin g the contents thereof, who has been examined. It is contended tha t accordingly, no reliance can be placed upon the said document. 11. Learned counsel for the a ccused further submits that th e victim had accompanied the accused on hi s motorcycle unanimously. It i s submitted t h at it is the own case of the victim that she had gone fo r

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shopping w h en the accused had allegedly f o rcibly taken her away. Learne d counsel con t ends that the shops are abutti n g the way the victim had gon e shopping an d are situated in a very crowde d area abutting the railway line . As such, the victim could not have been for c ibly taken away by the accused. It is also poi n ted out that no hue and cry w a s raised by the victim when sh e was allegedl y abducted by the accused. 12. Learned counsel for the petitioner very vehementl y counters th e above submissions made on behalf of the respondent No. 2 and places r e liance upon judgment of the Hon’ble Supreme Court in “State of U.P. Vs. Chhoteylal” Law Finder Doc ID # 238268, to submit that in th e said case al s o the victim had not raised h u e and cry and no injury mark s external or i nternal were found on the b o dy of the prosecutrix. Yet th e Hon’ble Supreme Court in the said case h ad held that “…Any alarm a t unknown pl a ce might have endangered he r life. The absence of alarm b y her at the public place cannot lead to an i nference that she had willingl y accompanie d A-1 and A-2. The circumstan c es made her submissive victi m and that do e s not mean that she was inc l ined and willing to intercours e with A-1. Sh e had no free act of the mind d uring her stay with A-1 as sh e was under c o nstant fear…”. As regards no i n juries on the body of the victi m therein as i n the present case, the Hon’bl e Supreme Court had opined a s

¶42

follows:-

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“25. Although the lady doctor - PW-5 did not find any injury o n the external or internal part o f body of the prosecutrix an d opined that the prosecutrix wa s habitual to sexual intercourse, we are afraid that does no t make the testimony of th e

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prosecutrix unreliable. The f a ct of the matter is that th e prosecutrix was recovered alm o st after three weeks. Obviousl y the sign of forcible intercourse would not persist for that lon g period. It is wrong to assume that in all cases of intercours e with the women against will or without consent, there woul d be some injury on the externa l or internal part of the victim. The prosecutrix has clearly d e posed that she was not in a position to put up any struggle a s she was taken away from he r village by two adult males. T he absence of injuries on th e person of the prosecutrix is not sufficient to discredit he r evidence; she was a helpless vi c tim. She did not and could no t inform the neighbours where s h e was kept due to fear.”

¶47

It is accordingly praye d by learned Counsel for th e petitioner t h at the present petition be allo w ed, and the wrongful acquittal

¶48

of the accus e d be set aside.

¶49

No other argument is ma d e on behalf of the parties.

¶50

I have heard learned counsel for the partiesand perused

¶51

the case file as also the Lower Court Record (LCR), in great detail.

¶52

Brief facts of the case as discernible from the record ar e

¶53

as follows: -

¶54

The petitioner/ complain a nt namely Mohd. Salim is th e father of th e prosecutrix, who is stated to be minor aged about 15 years a t the date/ti m e of incident i.e. 8.3.2006. The Complainant had employed th e Respondent - Accused Liaqat Ali at his hou s e as a mason/ labour worke r approximat e ly 7-8 months prior to the date of incident. As per th e petitioner/p r osecution, theAccused used to stalk and tease the prosecutri x

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and was w arned by the complainant on multiple occasions. Th e chronologic a l sequence of events is as follo w s: –

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08.03.2006 - On 8.3.2006, the Prosecutrix w ent to the market and did no t return back.

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10.03.2006 - A friend of the Complainant, n amely Mohd. Ashraf informe d the complai n ant that he saw the accused ta k ing away the prosecutrix on hi s motorbike. Whereupon the petitioner r e gistered the present FIR No . 56dated 10.03.2006 under Sections 363, 366-A and 376 IPC at Polic e Station Mal e rkotla, against the accused/res p ondent.

¶60

12.03.2006 While the police were pa t rolling and looking for th e prosecutrix n ear the bus stand, they saw t h e accused and the prosecutri x on his moto r cycle. As such, the prosecutrix came to be recovered from th e custody of t he accused. Pursuant thereto her medical examination wa s conducted.

¶61

The following Prosecution Witnesses were examined ,

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and their testimonies with page numbering a s per LCR, is as follows: – PW-1 Compl a inant/Father- Pg 17 PW-2 Prose c utrix- supported the version of t he prosecution- Pg 21-22 PW-3 Mohd. Ashraf- saw the accused taking away the victim- Pg. 25 PW-4 Dr. KS Khurana (conducted medical ex a mination of accused) - Pg. 28 PW-5 Princi p al Seema Sharma- Brought the School Certificate of the Victi m which show s the date of birth of the victim a s 15.05.1991- Pg. 29 PW-6 Dr. M e enakshi Goyal (Medical Opinio n )- Sexual Intercourse cannot b e ruled out; fi n ding that 'hymen ruptured'- Pg . 32 PW-10 ASI J a spal Singh- Pg 37

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Exhibits :

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School Certi f icate (DOB- 15/05/1991) - Ex. P E - Pg. 121

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MLR Report ( spermatozoa present) - Ex. PHPg. 126 Report sent f urther for chemical examinatio n - Ex. PH/1 Doctor's Opi n ion - Ex. PJ and Ex. PJ/1- Pg. 128

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It is the first contenti o n of learned counsel for th e petitioner that the victim was minor on the date of incident. In this regard , reliance has been placed upon the school certificate (Ex.PE) (available a t page 121 of the LCR), whichdepicts the d a te of birth of the victim to b e 15.05.1991. It is also the contention on part of the petitioner/complainan t that the sai d document duly bears the sig n atures of the Principal Seem a Sharma (PW 5 ) and has been duly proven b y her. However, a perusal of th e testimony o f PW5 in particular her cross-ex a mination (available at page 2 9 of the LCR) s hows that she has stated ther e in that “….It is correct that al l the entries in the register are in Urdu an d I do not know Urdu. I canno t verify any o f the word in the register in Urdu. I donot know, in whose han d the entries are as these were made before m y joining here. It is correct tha t in certificat e Ex.PE there is no note that I h ave got read from a Clerk an d verified fro m the director. I am not having in my possession in support o f date of birt h issued by the M.C. Malerkotl a . I do not know who had give n the informa t ion regarding date of birth w h ich is written in the register. I have no pe r sonal knowledge regarding date of birth of Sabana. Ex.PE i s filled in by o ur director but is signed by m e ….” Admittedly too, the perso n who supplie d the information that date of b irth of the victim is 15.05.1991 ; as also the p erson who prepared Ex.PE, ha v e not been examined. Clearly ,

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therefore, t h e contents of Ex.PE could not have been relied upon as th e same have not been proven in accordance w ith law. 18. Needless to say, in su c h a situation, the ossificatio n report whic h is on record as Ex.D8 (availabl e at page 145 of the LCR), woul d come to pla y , which reads as follows:-

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“…Radiologically and by appea r ance we are of the opinion tha t she is between the age of 18 to 20 years…”.

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In the above facts, it would be apposite to refer to th e judgment of theHon’ble Supreme Court in “Alamelu & Another Vs. State Rep. by Inspector of Police” Law Finder doc ID # 239055 decided on

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18.1.2011, w herein it has been held as follo w s:-

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“38. We will first take up the issue with regard to the age of th e girl. The High Court has base d its conclusion on the transfe r certificate, Ex. P16 and the c ertificate issued by PW8 Dr. Gunasekaran, Radiologist, Ex. P 4 and Ex. P5. Undoubtedly, th e transfer certificate, Ex. P 16 i n dicates that the girl's date o f birth was 15th June, 1977. Therefore, even according to th e aforesaid certificate, she woul d be above 16 years of age (1 6 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transf e r certificate has been issued b y a Government School and h as been duly signed by th e Headmaster. Therefore, it would be admissible in evidenc e under section 35 of the Indi a n Evidence Act. However, th e admissibility of such a docu m ent would be of not muc h evidentiary value to prove the a ge of the girl in the absence o f the material on the basis of w h ich the age was recorded. Th e date of birth mentioned in the transfer certificate would hav e no evidentiary value unless the person, who made the entry o r who gave the date of birth is e xamined. We may notice her e

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that PW1 was examined in th e Court on 9th August, 1999. I n his evidence, he made no refe r ence to the transfer certificat e (Ex. P16). He did not mention h e r age or date of birth. PW2 wa s also examined on 9th August, 1999. She had also made n o reference either to her age o r to the transfer certificate. I t appears from the record tha t a petition was filed by th e complainant under Section 3 11 Criminal Procedure Cod e seeking permission to produce the transfer certificate and t o recall PW2. This petition was al l owed. She was actually recalle d and her examination was con t inued on 26th April, 2000. Th e transfer certificate was marke d as Ex. P16 at that stage, i.e., 26th April, 2000. The judgme n t was delivered on 28th April, 2000. In her cross- examination , she had merely stated that sh e had signed on the transfer ce r tificate, Ex. P16 issued by th e School and accordingly her dat e of birth noticed as 15th June, 1977. She also stated that the certificate has been signed b y the father as well as the Head m aster. But the Headmaster ha s not been examined. Therefore , in our opinion, there was n o reliable evidence to vouchsafe f or the truth of the facts state d in the transfer certificate.”

¶79

(Emphasis added )

¶80

Thus, in a situation wher e the certificate in question ha s

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not been p r oven in accordance with law, the same cannot be taken a s reliable pr o of of age. As such, in vi e w of the above categorica l pronounce m ent of law the petitioner can d e rive no benefit from the relied upon judgm e nts. Even otherwise, the same are distinguishable as in case o f Mohd. Imran Khan (supra) , the birth certifi c ate of the victim had been dul y proven on record by the Investigating O fficer.Even reliance upon th e judgment in Ram Suresh Singh (supra) is m i splaced as the same is not onl y

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distinguisha b le on law and facts but is als o based on a misreading of th e said judgme n t wherein it is clearly held tha t “ Each case depends on its ow n facts.” No d o ubt, radiological report may n o t always be accurate, however , the same m u st needs be resorted to in case s such as the present one wher e there is no proper documentary proof of age of the victim available o n record.In view of the above facts and legal p recedent, it cannot be said tha t the victim w a s a minor at the time of commission of alleged offence. 21. It has secondly been argued by learned counsel for th e petitioner t h at the medical evidence on re c ord proves that the victim wa s subjected t o rape, as the MLR (Ex.P H ) confirms the presence o f spermatozo a . Further, as per the doctor’s opinion (Ex.PJ and Ex.PJ/1) (a t page 128 of t he LCR), it has been clearly op i ned that sexual intercourse ha s taken place. However, this argument of the complainant side has been rejected by the learned trial Court by h olding that the victim was a consenting p arty to the said physical inter c ourse. I am in agreement wit h the opinion o f the learned trial court as, a p erusal of the testimony of th e victim as P W 2 shows that she has stated as f ollows (at page 21 of the LCR):-

¶85

“…On 8.3.2006 I had gone to t he shop at about 8-30 P.M. t o bring household articles. When I was returning with househol d articles, accused met me and stated me to drop me at m y house. Instead of dropping m e at my house he took m e towards MannawalaPhatak. I a sked him to drop at my hous e but he threatened to kill me an d my parents. He took me at th e house of his relative at Raikot. H e committed rape on me ther e against my wishes. We sta y ed there for one night an d thereafter he used to take me t o the fields and used to commi t rape on me in the fields but I d o not know to whom the field s

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belonged. On 12.3.06 we had come to bus stand Malerkotla. Police met us there along wit h my father and Nasra. Polic e handed over me to my father a nd accused was arrested. I wa s medically examined in the hosp i tal…”. (Emphasis added)

¶89

In her cross-examination (available at page 23 and 24 o f

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the LCR), th e victim as stated as follows:-

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“…I was not willing to sit on t h e motorcycle but he insisted t o me to sit on the motorcycle on the plea that there is water o n the way. I had been raising Ra u la while going to Raikot but h e threatened me. I tried to jump f rom the motorcycle but it wa s at fast speed. Two ladies were s een in that house but at night. I had not taken any meal there. I did not speak to the ladies. W e slept in a separate room there. I was wearing the same clothe s f or 3-4 days. On the next day w e woke up at about 7-00 A.M. From there he took me to the fi e lds. During day time he used t o move me in buses but used to take me in the fields at night. I cannot tell the names of the villages to which he took me. O n the first day from Raikot, w e got a bus at 7-30 A.M. an d dropped from the bus at 4-3 0 P.M. We might have covere d distance of 250/200 K.M. an d thereafter we came back a t night. On 3^rd day we stayed in the fields and on that day w e woke up at 7-00 A.M. and we remained in the buses upto 4 - 30/5-00 P.M. …… I had not got recorded to the police that th e accused wanted to marry me. A ttention of the witness is draw n towards her statement Ex.DA, w here it is so recorded. Accuse d stated me that he will marry m e but I told him that I cannot sa y anything without consent of m y parents. I also told him that i f my parents permit, then I wil l marry. I had not even earlie r agreed for marriage as he was forcing me for marriage. I ha d asked my parents in this respe c t but they refused. I had aske d f rom my parents about this fact one and half months befor e

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this occurrence. I had asked m y mother about the proposal o f marriage but she refused to m a rry me with the accused. I tol d the accused that my mother is n ot agreeing from my marriag e with him. Accused had been s a ying that I would prevail upo n my parents perhaps they will agree for marriage. I had als o told to my aunt but I was n o t ready for marriage with th e accused. I had told about this to my aunt about one and hal f months earlier to the occurrenc e .” (Emphasis added)

¶95

From the above, the following facts are patentl y obviousthat: a) the victim had been picke d up on the motorcycle of th e accused fro m the crowded marketplace. H o wever, admittedly, no hue and cry was raised by her; b) Secondly, the vi c tim and accused travelled fo r eight hours c overing 200-250 km in public b uses accompanied by other co - passengers y et no hue and cry was raised b y her; c) Moreover, there wer e other ladies present in the house where t he accused is alleged to hav e taken the vi c tim to his relatives’ house and raped her there. However, ye t again, no al a rm was raised by the victim; d) admittedly, the victim ha d wanted to marrythe accused, however, her mother had refused th e proposal. This gives weight to the argument of ld. counsel for the accused that upon h e r mother’s refusal to the allian c e, the victim had accompanie d the accused o f her own accord.

¶96

Thus, the judgment reli e d upon by learned counsel fo r the petition e r regarding failure of the victi m to raise hue and cry in case o f Chhoteylal (supra), will not be applicable to the facts of the present case a s the same is d istinguishable on facts. In the s aid case, there were two mal e adult accused persons whereas in the prese n t case there is only accused. In

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the said cas e , both the accused persons w e re armed but that is not so in the present case. Thirdly, in the relied u pon case, the victim and th e accused were not known to each other, unl i ke the present case. As such, in the relied u p on case, the Hon’ble Supreme Court had held that the victim

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therein was under constant fear, whereas in the present case, to th e contrary, it i s clear that despite having man y opportunities of raising alarm , the victim h a d failed to do so.The victim ha s admitted (page 21 of the LCR ) that she wa s first taken to a house by th e accused wherein his relative s were present; that she had travelled on bu s es for eight hours or more, ye t no hue and c ry was raised by her (page 23 o f the LCR).From the above, it i s clear that sh e had ample opportunity to rai s e alarm but had failed to do so , ostensibly a s she had no objection to accompanying the accused.

¶101

As per MLR (Ex.PH), “. . .Spermatozoa detected in th e exhibits I, II a nd III.” which are slides, vaginal swabs and salwar respectively . Dr. Meenak s hi Goyal (PW6) had given her o pinion (at page 128 of the LCR ) that “...sexu a l intercourse has taken place… ” . However, PW6 Dr. Meenaksh i Goyal in her cross-examination (at page 32 of the LCR) has stated a s follows:-

¶102

“…I cannot comment whether the prosecutrix was having se x or not but I did not find any laceration or injury on perso n including the private parts…”.

¶103

Needless to say, if the victim had been raped over fou r days from 0 8 .03.20016 to 12.03.2006, ther e would have been some injur y

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on her person, i.e. if, she would have p r offered any resistance to th e accused.

¶107

It has also come on record that on 10.03.2006, a frien d of the com p lainant namely Mohd. Ashraf had informed the complainan t that he ha d seen the accused taking t he prosecutrix away on hi s motorcycle. It is only then that the present F IR came to be registered by th e petitioner, e v en though the victim had been missing since 8.3.2006.

¶108

Relevant findings of the l d . trial Court are as follows:-

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“13. The main point in this cas e is the age of the prosecutrix t o thrash the other points wh e ther due to the age of th e prosecutrix, it is to be treated to be a consenting case o f otherwise. The prosecution h as tried to assert that th e prosecutrix was aged about 15 years at the time of he r elopement or to say her a b duction by the accused. Th e prosecution has brought on rec o rd the documents Ex. PE, whic h is the Certificate issued by the Principal, Muslim Senio r Secondary School, MohallaBh u msi, Malerkotla, as per whic h the prosecutrix is alleged to ha v e joined in Primary Class in th e said School and her date of bir t h has been noted as 15.5.1991, but whether this Certificate could be made the basis t o determine the age of the prosecutrix is the main question. Th e said document has been broug h t on record by the prosecutio n in the statement of PW-5 S eems Sharma and the sai d document has been issued on t he basis of some writing in th e Register of the School, which is in Urdu script and PW-5 Seem a Sharma has stated that she h a d got read the entry from som e one else and then made t h at document. In her cross - examination, she admitted th a t all the entries in the Registe r

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are in Urdu script and she doe s not know Urdu script and sh e cannot verify any of the word i n the Register in Urdu and sh e also stated that she does not k now in whose hand the entrie s are made as the same were m a de before her joining there an d she also admitted that in the C e rtificate Ex. PE there is no not e that she had got read the entr y from the Clerk and got verifie d f rom the Director of the Instit u te nor there is any supportin g regarding date of birth issued b y the Municipal Council or an y thing else in the School record regarding the basis of the sai d entry. So, if that is the posit i on, then what was the othe r evidence on that point.

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14. When the present case w a s still under investigation, th e prosecution got the ossification test of the prosecutrix don e and the report of the Medical B oard is Ex.D7 on the file. In th e report, the Medical Board has stated the age of the prosecutri x between 18 to 20 years and fo r the basis of that the ski-gram s are Exs. D-2 to D-6 and the C e rtificate of the Board of thre e Doctors is Ex.D-8. The Board w as constituted on the basis o f police application dated 07.5.2 0 06 Ex. D-1 and the Board wa s constituted as per the order Ex. D1/A. This evidence wa s collected by the prosecution, b u t the same was left over by th e prosecution knowingly, for t h e reasons best known to it. Thereafter, Dr. Jasbir Kaur Sod h i, who was one of the Membe r of the Medical Board, was exa m ined by the accused in defenc e as DW-1 and she specifically s tated in her evidence that th e Board asserted the age of th e prosecutrix not less than 1 8 years and not more than 20 y ears. The evidence, which th e prosecution has collected, has b een tried to be concealed fro m the Court by not examining a ny Doctor of the Board. Th e evidence which the prosecutio n had collected, was required t o be led, so the said eviden c e leaves no doubt that th e

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prosecutrix was not less tha n 18 years at the time of th e incident.

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15. Now coming to the point whether it is a case of consent o r f orcible inter-course. In this res p ect, when the entire case of th e prosecution is considered, taki n g into consideration the age o f the prosecutrix and her cross- e xamination, it appears to be a case of consent, as the prose c utrix was willing for marriag e with the accused provided he r parents agree, but she state s that she has also spoken to h e r parents regarding marriage. The non-consent for marriage a t her own level was as she di d not like to marry with the accu s ed without the proper consen t of her parents, otherwise she w as willing for marriage with th e accused and in the background of this, it is to be seen whethe r the prosecutrix went with the a ccused of her own or she wa s f orcibly taken by the accus e d. As per the story of th e prosecution and the evidenc e adduced on the file by th e prosecution, the prosecutrix wa s made to sit on the motor cycl e by the accused as he offered her to drop her at her house whe n she was allegedly returning back to house after purchasin g some household articles, but s he states that. she was take n away by the accused. Then is alleged to be seen by one Mohd. Ashraf while going with the a c cused on his motor cycle an d PW-3 Mohd. Ashraf has stated t hat he had seen her going wit h the accused on motor cycle. B ut if PW-3 Mohd. Ashraf wa s known to the prosecutrix, then she could have raised hue an d cry that she was being taken away by the accused forcibly. Otherwise also, if it had been a case of putting the prosecutri x in a case by some miscreants a nd then to take her away, the n in that event even the age of the majority was not the point, a s in that event an inference coul d be raised that the prosecutri x was forcibly bundled in a vehi c le and taken to some unknow n place for rape but the prosecut r ix while appearing in the Cour t

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says that she went with the a c cused to his relative at Raiko t and where she is alleged to ha v e forcibly raped by the accuse d and then says that during day t ime they used to move in Buse s and at night the accused used t o have inter-course with her i n the ploughed fields. But the me d ical evidence placed on the fil e suggests that there is not eve n a single scratch or any injur y either on her back if she was ra p ed in the ploughed fields or o n her any private part, rather h er age which is proved to b e major and her conduct not to raise any 'raula' when she wa s allegedly forcibly raped by th e accused in the house of hi s relative, where women folk we r e present and she also says tha t she did not say anything to t hose ladies regarding forcibl y inter-course nor she raised a n y hue and cry when she wa s allegedly being taken by the a c cused in Buses, rather her tota l conduct leads to the inferenc e that she was the consentin g party to the rape, being majo r . According to the prosecutrix, she had gone with currency note of Rs.50/- to purchas e household article, but her fat h er says that his daughter ha d gone to purchase the househol d articles on credit. Against th e prosecutrix was recovered on 12.3.2006, but her statemen t under Section 161 Cr. P.C. E x. DA has been recorded o n 06.6.2006. PW-10 ASI Jaspal Si n gh could not explain the reaso n f or not recording her state m ent when she was allegedl y recovered from the possession o f the accused and stated that i f she wanted to get her stateme n t recorded, then he would hav e recorded her statement. He a lso admitted that so long th e investigation remained with him, he did not record th e statement of the prosecutrix a n d in that event the inference i s that the prosecutrix who wa s recovered on 12.3.2006, th e recording of her statement on 6.6.2006 i.e. after about thre e months leads to the inference that she was forced to mak e statement under pressure nor t h e IO recorded the statement o f

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the shopkeeper where the pr o secutrix had allegedly gone t o purchase household articles. In this event, when the prosecutri x and her father are contradict o ry themselves on the point o f amount with the prosecutrix o r not with her, it appears tha t only this story has been invent e d later on regarding her visit t o the shop, rather due to her ma j or age, the inference is that sh e had gone with the accused with her own fee will. Th e prosecution tried to conceal the evidence which it ha d collected, according to which t he prosecutrix was major, bu t that evidence has come in defence and therefore, th e irresistible conclusion is that t he prosecutrix had gone wit h accused with her consent out o f her free will and accordingl y both the above points are hel d against the prosecution and i n f avour of the accused.”

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I am in complete concur r ence with the above said well - reasoned an d cogent judgment of the ld. tri a l Court. No ground is made ou t to interfere in the above findings and reasoning, which are based on th e correct read i ng of the oral and documentar y evidence on record. In view o f the above di s cussion, the present petition s t ands dismissed.

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Pending application(s) if a ny also stand(s) disposed of.

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19.10.2024 (Nidhi Gupta) Sunena Judge Whether speaking/reasoned Yes/No Whether reportable Yes/No

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Mohd. Salim v. State of Punjab and Anr.

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Mohd. Salim v. State of Punjab and Anr.

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