1. This appeal is directed against the judgement dated 7.5.1999 passed by the learned Sessions Judge, Solan, in Sessions Trial No. 28-S/7 of 1998 whereby he acquitted the accused of having committed offences punishable under Sections 363, 366, 376, 368 IPC read with Section 34 IPC.
2. Briefly stated the case of the prosecution is that PW-2 Devinder Chopra is a retired Navel Officer. His wife retired as a lieutenant from the Military Nursing Service. After retirement they had settled at Chandigarh. There they adopted the prosecutrix when she was only about two months old. According to them she was born on 11 th September, 1985. Shri Devinder Chopra has two sons. One at the relevant time was an Admiral in the Indian Navy and the younger one was a Major in the Indian Army. Shri Chopra and his family alongwith the prosecutrix shifted to Parwanoo in the year 1990 when the prosecutrix was about 13 years old. It is alleged that on 12.7.1998 she had gone to attend some tuition, which was to take place in the school where she was studying. She did not return home after tuition.
Thereafter PW-2 sent a messenger to the school and came to know that the prosecutrix had left with Bhagwati, one of the accused persons, who earlier used to work as a domestic help in their house. When PW-2 could not find his daughter he and his wife phoned the police who came and recorded the statement Ext.PA. In this statement it was recorded that in 1985 they had adopted one girl at Chandigarh, who was the prosecutrix aged about 13 years. The said girl was studying in National Public School in 7 th Class.
They earlier had one domestic help Bhagwati, who worked with them for 3-4 years earlier and now her mother Vishnoo Devi is working as a domestic help. In this statement it was stated that one boy of Nepalese origin, namely, Nandu (accused) had worked in their house as a labourer. On 12.7.1998 the prosecutrix went to the school to attend tuition. When she did not return home Sh. Chopra rang up the Principal and the Principal’s daughter informed the complainant that one girl, namely Bhagwati had come to the school and the prosecutrix was seen talking to her and the prosecutrix had told her that she is going home. When the prosecutrix did not return home till 8 p.m then the search was made in Parwanoo and Kalka till mid night and thereafter the report was lodged. Next day, when PW-2 alongwith police officials were searching for the prosecutrix they saw her near the Railway Bridge.
Then the prosecutrix told that accused Bhagwati had taken her to Kalka. From there she was told that they would go to Pinjore, but she was taken to Chandigarh. Accused Nandu and Chhutan Kumar (accused No.3) were also accompanying them. At Chandigarh they went to Hallo Majra and from there they went to the Main Bus Stop Chandigarh.
At Chandigarh she was taken to a liquor vend where one of the employees, namely, Pal Singh (accused No.2) was known to the other persons. There she was raped by Nandu accused. The prosecutrix was thereafter got medically examined and after completion of investigation the accused were charged for having committed offences as aforesaid. They pleaded not guilty and claimed trial. The prosecution led evidence and the learned trial Court came to the conclusion that the accused were innocent and acquitted them.
3. As far as offences under Sections 363 and 366 are concerned, according to the learned trial Court there was no enticement or taking away of the prosecutrix since the minor was not kidnapped from her parental home and not influenced by any promise, offer or inducement. As far as the allegation of rape is concerned, the learned trial Court held that the prosecutrix was a consenting party and aged above 16 years and hence acquitted the accused. Hence the present appeal.
4. The main question which arises in this appeal is, what was the age of the prosecutrix at the relevant time?
5. At this stage it would be pertinent to mention that after we had heard the appeal in part we had passed a detailed order on 21.10.2010, which reads as follows:-
“The main question involved in this appeal is with regard to the age of the prosecutrix. The learned trial Court has come to the conclusion that the prosecution has failed to prove that she was below 16 years at the time when she was allegedly kidnapped and raped. The prosecution in addition to the medical evidence has only produced two documents to prove the age of the prosecutrix. These are the transfer certificate Ext.PW-4/A and the abstract of the admission and withdrawal register Ext.PW-4/B. In both these documents the date of birth of the prosecutrix has been shown to be 11.09.1985 which would mean that she was about 13 years old at the time of the incident. The trial Court has acquitted the accused mainly on the ground that the prosecution has failed to prove the date of admission from the earlier school where the prosecutrix was studying. Normally, this Court would not embark upon an exercise to collect evidence but here we are dealing with a case where it is alleged that a 13 year old girl was raped. In such a case, if the police fails to perform its duty and the prosecution also does not perform its duty properly, this Court cannot shut its eyes and turn a blind eye to the errors committed by the police and the prosecution. We are of the considered view that this is a fit case where this Court can exercise its constitutional powers conferred under Section 311 of the Code of Criminal Procedure to summon the witnesses from the school where the prosecutrix had earlier studied. At the present moment from annexure PW-4/A we can only gather that the prosecutrix Amrapali Chopra had studied in Sophia School, Kalka prior to her admission in National Public School, Parwanoo. We, therefore, direct that notice be issued to the Principal, Sophia School, Kalka to produce the admission and withdrawal registers of the school for the period 1990 to 1997 alongwith any other record to show what was the age of Amrapali Chopra daughter of Devender Chander Chopra, who probably left the school some time in March, 1997. We direct the Superintendent of Police, Solan to ensure that such notices are served upon the Principal Sophia School, Kalka and all necessary steps are taken to get the record from the said school. List the matter on 25.11.2010 on which date the respondent No.1 shall remain present in Court.
6. Pursuant to the aforesaid order, we had recorded the statement of CW-1 Father Michael, Manager of Sophia Convent School, Kalka and CW-2 Satish Chopra, Principal, National Public Senior Secondary School, Parwanoo.
7. PW-2 Devinder Chopra stated on oath that he had adopted the prosecutrix in the year 1985 when she was only two months old. He also stated that her date of birth was 11 th September, 1985.
Though he was crossexamined at length on other aspects but there is no cross-examination directly to the witness regarding the age of the prosecutrix except that he does not possess her birth certificate and had got her admitted in the school on the basis of an affidavit. PW-4 Satish Chopra, who was examined as CW-2 in this Court stated that as per the school record her date of birth was 11 th September, 1985 and on this basis he had issued the certificate Ext.PW-4/A. In cross-examination he admitted that the prosecutrix was admitted in their school on 29.3.1997 in the 7 th standard and her date of birth was entered on the basis of the school leaving certificate issued by the earlier school.
When examined as CW-2 this witness stated that initially the prosecutrix was admitted to the National Public Senior Secondary School, Parwanoo on 18.5.1990 and her date of birth in the admission and withdrawal register was mentioned as 11.9.1985. She studied in the school till Class-5 and left the school on 20.4.1995. The prosecutrix was readmitted to the school on 29.3.1997 in Class-VI. Again her date of birth was shown 11.9.1985. Her father’s name and address was shown as Devender Chander Chopra, MiG 268, Sector-4, Parwanoo on both occasions. Ext.PW-4/A is the true extract of the admission and withdrawal register.
In cross-examination he stated that the date of birth i.e 11.9.1985 was entered on the information supplied by Shri D.C.Chopra. He also admits that there is no certificate on the register to show how many pages are there in the register and page numbers are also not given in the register.
He also admits that there is cutting over the name of Amarpali Chopra but has clarified that her pet name is Rupali Chopra and that name was entered first and thereafter it was scored off and Amarpali was entered. He admitted that entry No. 303 which precedes entry No.304 is dated 28.8.1991 and entry No.305 is dated 1.8.1991 whereas entry in respect of the prosecutrix at Sr. No.304 is dated 18.5.1990. According to him this discrepancy occurred because the entries were made lateron and not at the time of admission in the school. He has also admitted that since the school was new they were not making the entries in a systematic manner. It is thus obvious that not much reliance can be placed on the school register except that the date of birth 11.9.1985 was entered at the instance of PW-2.
8. PW-10 Dr. Richa Bhatia conducted the dental examination of the prosecutrix and has proved her medical opinion Ext.PW-10/A with regard to her examination. She had referred the patient to the District Hospital, Solan for proper X-rays. According to her only two X-rays were taken but these two X-rays did not give total coverage of the root tips of the molars because of deficiency in the depth of film placement in the oral cavity. However, on the basis of the material before her she opined that the dental age ranged between 13 to 14 years. She has also proved the report Ext.PW-10/D issued by Dr. Gurcharan Singh in which he has opined that the age of the prosecutrix was more than 13 years but less than 15 years. She has been cross-examined and has admitted that there can be variation of 3 years on upper side over the dental age given by a dentist.
9. PW-15 Dr. Gurcharan Singh appeared in the witness box and clearly stated that the age of the prosecutrix is between 13 to 15 years. He was not cross-examined at all by any of the accused and his analysis is based on the X-rays of the prosecutrix and he has also proved the X-rays which are Ext.PW-15/1 to Ext.PW-15/4.
10. In this Court in addition to CW-2 we had also examined CW-1 Father Michael, who stated that he is Manager of Sophia Convent School, Kalka. The prosecutrix studied in this school from 11.4.1995 to 26.3.1997 and as per the school record the date of birth of the prosecutrix was 11.9.1985. This date of birth was entered on the basis of the school leaving certificate issued by the National Public School, Parwanoo. He produced the original admission form of the prosecutrix and the extract of the school register which were exhibited as Ext. CW-1/A and Ext.CW-1/B. This is the entire evidence with respect to the age of the prosecutrix.
11. According to the learned trial Court the entries in the record of the National Public School appeared to be forged and fabricated. The main reason was that PW-2 had stated that the prosecutrix was admitted in the school in the year 1990, whereas the school record showed that she was admitted on 29.3.1997. It is clear from the evidence that the prosecutrix was admitted in the National Public School firstly in the year 1990 and she studied there till 1995 and thereafter she went to Sophia Convent School but was again readmitted in National Public School in 1997.
The learned trial Court also held that though PW-15 had stated that the age of the prosecutrix was between 13 to 15 years but the law is well settled that there can be variation of two year on either side. Unfortunately, the learned trial Court did not take into consideration the fact that there was no cross-examination directed to PW-15 Gurcharan Singh in this behalf. As far as dental age is concerned, the opinion of the dentist that the age of the prosecutrix ranges between 13 to 14 years but there can be variation of 3 years on upper side over the dental age given by a dentist.
12. We are not at all in agreement with the learned trial Court that the prosecution has not proved the age of the prosecutrix. The best person to prove the age was the father. He has clearly stated that the date of birth of the prosecutrix was 11.9.1985. He also stated that the prosecutrix was adopted when she was only a few months old. At that stage when the prosecutrix was adopted even if she was not two months she could have been 5 to 6 months at the most. At that age, when a child is a few months old, the structure changes every month and the foster parents would know the approximate age even if they do not know the exact date.
Assuming that PW-2 Devender Chopra did not know the exact date of birth of the prosecutrix the fact is that he adopted her when she was only a few months old and even she had not been born in the year 1985 at best she would have been born in the year 1984 then in the year 1998 she would have been at the most 14 years old but not above 16 years. This Court cannot loose sight of the fact that sometime specially in cases of adoption it may not be possible to prove the exact age of the child but if the evidence shows that the prosecutrix could not have been 16 years or more it is not necessary to prove the exact age.
13. Here we are dealing with a case where the foster parents are both retired from Army. In the year 1990 when they got the prosecutrix admitted in National Public School, Parwanoo in the Nursery class they did not know what is going to happen eight years later. They had no reason to give a wrong age for the purpose of admission. It is not denied that at that time date of birth was shown to be 11.9.1985. Even though this may not be the exact date of birth the variation at most could be of a few months on either side.
14. In Alamelu and another vs. State Represented by Inspector of Police, (2011) 2 SCC 385, the Apex Court held as follows:-
“In fixing the age of the girl as below 18 years, the High Court relied solely on the certificate issued by PW-8 Dr.Gunasekaran. However, the High Court failed to notice that in his evidence before the Court, PW-8, the x-ray expert had clearly stated in the crossexamination that on the basis of the medical evidence, generally, the age of an individual could be fixed approximately. He had also stated that it is likely that the age may vary from individual to individual. The doctor had also stated that in view of the possible variations in age, the certificate mentioned the possible age between one specific age to another specific age. On the basis of the above, it would not be possible to give a firm opinion that the girl was definitely below 18 years of age.”
15. In our view this judgement is not applicable because in the present case PW-15 has not been crossexamined at all. The Apex Court in State of Uttar Pradesh vs. Chhotey Lal, (2011) 2 SCC 550, has clearly held that there is no rule, much less an absolute one that two years have to be added to the age as determined by a doctor.
16. Learned counsel for the accused argued that best evidence in the present case was the birth certificate of the hospital where the prosecutrix was born and in this behalf the accused relied upon document Mark-A which shows that one Hansho Devi had delivered a child at District Hospital, Azamgarh on 11.09.1985. Mark-B is an agreement allegedly executed between Hanso Devi and PW-2 D.C.Chopra & his wife, whereby the child was adopted by the aforesaid persons. These two documents have not been proved on record and therefore, no reliance can be placed on them. In case, reliance was placed on them then it would go against the accused and not against the prosecution.
17. Be that as it may, it is apparent that the child was adopted when she was a few months old and even if there was some discrepancy with regard to the age, the variation will be of few months on either side and in any eventuality the prosecutrix would be less than 16 years at the time of the incident.
18. Coming to the merits of the case, the statement of the prosecutrix is very clear that when she had gone to attend tuition in the school, accused Bhagwati had come to the school and asked her to accompany for a walk. On the way they met accused Chutan and they all went to Kalka Bazar. Accused Nandu met them in the Bazar and they all decided to go to Pinjore. Till this place the prosecutrix willingly accompanied them. According to her instead of taking her to Pinjore they took her to Chandigarh but the prosecutrix did not raise any alarm, etc. She was taken to a liquor vend where accused Pal Singh was also present. According to the prosecutrix at the liquor vend Bhagwati forced her to drink one glass of beer and thereafter Nandu raped her. Next morning she started crying and then Nandu and Bhagwati brought her to Kalka and left her there. It is obvious that the prosecutrix went of her own accord with the accused persons. There was no enticement. Though the prosecutrix was less than 18 years it cannot be said that she was enticed by the accused. There is no allegation in this behalf. Therefore, offences under Sections 363, 366 and 368 are not made out. It is also not proved that other than accused Nandu any of the other accused had sex with the prosecutrix or in any manner abetted Nandu. As held by the learned trial Court it appears that the prosecutrix had willingly gone with Nandu. However, since she was less than 16 years old even if the accused Nandu had sex with her with her consent he is liable to be convicted under Section 376 IPC. As far as the other accused are concerned there is no evidence directly linking them with the commission of any offence.
19. In view of the above discussion the appeal of the State is partly allowed. Accused Nandu is convicted of having committed an offence punishable under Section 376 IPC whereas the acquittal of the other accused is upheld. 20. The matter may now be listed on 27 th May, 2011 for hearing the accused on the issue of sentence.
20. The accused is directed to be present and on the said date.