State Of Jammu & Kashmir vs Rinku @ Gopal Dutt
2023 Latest Caselaw 2247 j&K

                                                                  Sr.No.15

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU

                                                CRAA No.58/2017
                                                CrlM No.1903/2022


State of Jammu & Kashmir                         .... Appellant/Petitioner(s)
Through Senior Superintendent of Police,
Kathua


                   Through :- Mr. Dewakar Sharma, Dy. AG

         V/s


Rinku @ Gopal Dutt,                                       ....Respondent(s)
S/o Mohinder Lal,
R/o Plassi Morha, Samani,
Tehsil Basohli, District Kathua
                   Through :- Mr. Nigam Mehta, Advocate

          HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
Coram:
          HON'BLE MR. JUSTICE MOHAN LAL, JUDGE

                             JUDGMENT

10.10.2023

Sanjeev Kumar J

1. The State of Jammu & Kashmir (now UT of J&K) is in appeal

against the judgment of acquittal dated 13.10.2014 passed by the

Principal Sessions Judge, Kathua [„the trial Court"] in file

No.08/Sessions titled State v. Rinku @ Gopal Dutt, whereby the

trial Court has acquitted the respondent of the charge under

Section 376 RPC.

2. Briefly stated, the prosecution case set up in the Final Report is

that the Police Station, Malhar Tehsil Billawar registered FIR

No.30/2007 for offence under Section 376 RPC against the

respondent on the basis of directions for investigation issued by

the Chief Judicial Magistrate, Kathua under Section 156(3) Cr.P.C

on a complaint made by the maternal-grandfather of the

prosecutrix, namely, PW-Masoo. The complainant, in his

complaint, has alleged that the prosecutirx, his maternal grand

daughter, about 10 years old, is living with him along with her

mother, PW-Indro Devi, who has been divorced by her husband-

Dewan Chand. It is further alleged that the respondent, by

applying deceitful means, induced and lured the prosecutrix to

marry with him. The prosecutrix fell prey to such inducement

without understanding her good or bad and solemnized marriage

with the respondent in the month of June, 2007. He alleges that

the marriage was without the consent and knowledge and in the

absence of her mother as also the complainant. After solemnizing

marriage, respondent took the prosecutrix to fields belonging to

the complainant twice in the month of July and August and had

sexual intercourse with her against her consent. This happened

within the jurisdiction of Police Station, Malhar Tehsil Billawar.

The prosecutrix, who was in pain and suffering, hesitantly

narrated the incident to her mother on 19.08.2007, who in turn

reported the matter to her mother i.e. wife of the complainant. He,

thus, complained that the respondent has committed rape upon the

prosecutrix and, therefore, deserves to be dealt with and punished

accordingly.

3. Upon registration of FIR pursuant to the directions of the Chief

Judicial Magistrate, Kathua, investigation was taken up. The

Investigating Officer, on conclusion of the investigation, came to

the conclusion that there was evidence to, prima facie, prove that

the marriage between the prosecutrix and the respondent had taken

place and that the respondent had sexual intercourse with the

prosecutrix without her consent. The prosecution, accordingly,

laid the charge-sheet before the trial Court.

4. The trial Court after hearing prosecution and the defence framed

charge under Section 376 RPC against the respondent on

02.09.2008. The respondent pleaded not guilty to the charge and

claimed trial.

5. In order to sustain the charge against the respondent, the

prosecution produced and examined PW-Masoo, PW-Rita Devi,

PW-Indro Devi, PW-Kushalya Devi, PW-Tilak Raj, PW-Narayan

Dutt, PW-Chuni Lal, PW-Chaman Lal, PW-Dr. Garima Bajpai,

PW-Vijay Singh Manhas, PW-Dr. Mushtaq Ahmed and PW-

Mohd. Akhtar Lone.

6. The incriminating evidence was put to the respondent and his

statement under Section 342 Cr.P.C. was recorded. The

respondent denied the allegation and the incriminating

circumstances appearing in the evidence by making general

denial. He, however, claimed that prosecutrix was his legally

wedded wife and his marriage with her took place according to

Hindu rites on 27.06.2007. He further claims that the marriage

was solemnized in the presence of mother, maternal-grandmother,

maternal-grandfather of the prosecutrix and others. He claims that

the age of the prosocutrix at the time of marriage was 16 years.

The respondent, however, chose not to lead any evidence in

defence.

7. The trial Court, after considering the rival contentions and having

gone through the entire evidence on record, came to the

conclusion that the prosecution had failed to prove that the

prosecutrix was minor on the day of alleged occurrence and that

there were serious contradictions in the statements of the

witnesses sufficient enough to belie the prosecution case. The trial

Court vide its judgment of acquittal, impugned in this appeal,

dismissed the charge and acquitted the respondent.

8. Having heard learned counsel for the parties and perused the

material on record, we are of the considered view that the

judgment of acquittal passed by the trial Court is well reasoned

and falls within four corners of law and, therefore, does not call

for interference by this Court in appeal.

Place of Occurrence

9. The evidence brought on record by the prosecution suffers from

serious contradictions which put the entire case of the prosecution

in the realm of doubt and suspicion. So far as place of occurrence

is concerned, the complainant in his complaint clearly states that

the prosecutrix was raped twice in the month of July and August,

2007 respectively in the fields belonging to the complainant-

Masoo. While recording his statement before the Court he has

proved the contents of the application and admitted them to be

true and correct. He reiterates in his deposition before the trial

Court that it was prosecutrix who herself told him that the

respondent misbehaved with her in the fields and not in the house.

10. The statement of the prosecutrix made in the trial Court reveals

that the occurrence took place on two dates i.e. 18th and 19th

August, 2007, when the respondent came to her house and raped

her taking the benefit of absence of her mother, who had gone to

„udhar‟ (Dhok). She is, therefore, categoric that she was raped

twice in the house of her maternal-grandfather, the complainant.

11. The other star prosecution witnesses PW-Indro Devi and PW-

Kushalya Devi have not indicated the place of occurrence. There

is no other independent witness examined by the prosecution with

respect to the actual place of occurrence. We are, thus, left with

the version of the prosecutrix and the complainant. Both are

contradictory and, therefore, put the case of the prosecution under

scanner.

Age of the Prosecutrix

12. There are contradictory versions about the exact age of the

prosecutrix at the time of commission of alleged offence of rape

by the respondent. PW-Masoo in his complaint filed before the

Chief Judicial Magistrate, Kathua has indicated the date of birth of

the prosecutrix as 1st March, 1997 that means the prosecutrix was

10 years old in the year 2007, when the occurrence is alleged to

have happened. PW-Masoo, the complainant, in his testimony

before the trial Court states that his daughter, PW-Indro Devi was

married to one Dewan Chand about 18-20 years back and said

Dewan Chand left his daughter about 15-16 years back and at that

point of time the prosecutrix being eldest of the three siblings was

6-8 years old. He, however, states that the age of the prosecutrix

at the time of recording of the statement is 13 years. Going by the

statement of PW-Masoo in its entirety, it clearly comes out that

the prosecutrix at the time of occurrence could possibly be of

around about 20 years old. The mother of the prosecutrix, PW-

Indro Devi in her statement made before the trial Court states that,

though, she does not vividly remember the time of her marriage

but it could be possibly 25 years ago. She further states that the

prosecutrix was born after five years of marriage. This will also

bring the age of the prosecutrix to around about 20 years.

13. However, another evidence brought on record by the prosecution

is the date of birth certificate issued by the Government School,

Dug Baidel. PW-Tilak Raj, a R-e-T Teacher issued the date of

birth certificate of the prosecutrix under his signatures after

comparing it with the original record, which indicates the date of

birth of the prosecutrix as 10.03.1997. In his deposition before the

trial Court, he has proved the certificate and his signatures

appended thereon. He has also admitted the same to be correct

after comparing it with the original record, which was brought by

him to the Court. Going by the entry made in the official record by

an officer in the performance of his official duty, the date of birth

of the prosecutrix is proved to be 10.03.1997 and, therefore, she

was, undoubtedly, of the age of 10 years on the date of

occurrence.

14. In the face of aforesaid evidence on record, pertinent question that

arises for determination is, "whether the date of birth of the

prosecutrix recorded in the admission register as 10.03.1997, as

proved by PW-Tilak Raj, can be taken to be the conclusive proof

of age of the prosecutrix notwithstanding the contrary evidence of

her mother and maternal-grandfather.

15. Section 35 of the Evidence Act, Svt. 1977, which is relevant for

the discussion on the point, reads thus:-

"35. Relevancy of entry in public record made or an electric record in performance of duty

An entry in any public or other official book, register or record, or an electric record stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of duty specially enjoined by the law of the country in which such book, register or record or an electronic record is kept, is itself a relevant fact."

16. Undoubtedly, under Section 35 of the Evidence Act, a public

document, if prepared by a government official in the exercise of

his official duty, is admissible in evidence. However, a question

may arise as to the authenticity of such entry in the public record,

particularly, in the face of availability of contrary evidence on

record. A distinction needs to be drawn in respect of the

admissibility of a document and its probative value. A document

which is admissible in evidence may not have probative value of

such degree as could be relied upon to convict an accused. The

admissibility of a document and its probity are two different

things. Entries made in public document like school register, voter

list or family register prepared under Rules and Regulations in

force may be admissible under Section 35 of the Evidence Act but

their probative value is still required to be examined in facts and

circumstances of a particular case. Legal position on the subject is

summed up by the Hon‟ble Supreme Court in paragraph No.27 of

Satpal Singh v. State of Haryana, (2010) 8 SCC 714. For

facility of reference paragraph No.27 of the judgment is

reproduced hereunder:-

"27. Thus, the law on the issue can be summarized that the entry made in the official record by an official or person authorized in performance of an official duty is admissible under Section 35 of the Evidence Act but the party may still ask the Court/Authority to examine its probative value. The authenticity of the entry would depend as on whose instruction/information such entry stood recorded and what was his source of information. Thus, entry in school register/certificate requires to be proved in accordance with law. Standard of proof for the same remains as in any other civil and criminal case."

17. In the instant case, we find that, though, there is entry made in the

admission register with regard to the date of birth of the

prosecutrix, which makes her minor on the date of occurrence, yet

there is nothing on record to corroborate the aforesaid entry. The

persons on whose instructions such entry is supposed to be made

in the admission register have not corroborated the entry. The

mother of the prosecutrix, as we have discussed herein above,

states that the prosecutrix was about 20 years old when the

occurrence took place. The maternal-grandfather, with whom the

prosecutrix along with her mother is staying after they were turned

out by Dewan Chand, also puts the age of the prosecutrix at

around about 20 years. In these circumstances, it is difficult to

attach too much probative value to the entry in the school register

in respect of the age of the prosecutrix. We are, therefore, in

agreement with the trial Court that the prosecution has not been

able to prove that the prosecutrix, at the time of occurrence, was

less than 15 years of age.

Factum of Marriage

18. There is enough evidence brought on record by the prosecution to

prove that the prosecutrix and the respondent had entered into

marriage wedlock and were husband and wife at the time of

occurrence. PW-Masoo in his complaint filed before the Chief

Judicial Magistrate, Kathua, which has been made basis for

registration of FIR and in his testimony recorded before the trial

Court has stated and admitted that the prosecutrix and the

respondent contracted marriage in the month of June, 2007. He,

however, states that this marriage was without his consent as well

as consent of the prosecutrix‟s mother. In essence, he does not

dispute that the marriage between the prosecutrix and the

respondent had taken place and that same was subsisting on the

date occurrence took place.

19. The mother of the prosecutrix, in her statement recorded before

the trial Court, while identifying the photographs of her daughter

A-15 stated that only ceremony of „chuni‟ had taken place and not

marriage with the respondent. PW-Narayan Dutt, PW-Chuni Lal

and PW-Chaman Lal were other witnesses, who, in their

statements recorded under Section 161 Cr.P.C., had supported the

prosecution version that the two i.e. prosecutrix and the

respondent were married, took a u-turn before the Court and stated

that they did not know the prosecutrix and the respondent. They

resiled from their statements and declined to stick to the

prosecution story.

20. The trial Court has examined their statements made in the Court

and their statements recorded under Section 161 Cr.P.C in light of

the statements of other prosecution witnesses like PW-Koushalya

Devi and PW-Indro Devi and concluded that there was sufficient

evidence regarding marriage between the parties.

21. The evidence on record is, thus, not sufficient to prove the

allegation of rape with which the respondent has been charged.

Even if we were to presume that the respondent had committed

sexual intercourse with the prosecutrix, yet in view of Exception 2

of Section 375 RPC, sexual intercourse with wife not below the

age of 15 years is not rape and, therefore, not punishable.

21. For the foregoing reasons, we do not find any merit in this appeal,

the same is, accordingly, dismissed.

22. Record be sent back to the trial Court.

                                        (Mohan Lal)        (Sanjeev Kumar)
                                          Judge                 Judge
Jammu:
10.10.2023
Vinod, PS

                    Whether the order is speaking: Yes
                    Whether the order is reportable: Yes