1. The challenge herein is to the judgment dated 22.12.2010, passed by learned Additional Sessions Judge, Shimla, in Sessions Trial No.10-S/7 of 2009, convicting thereby the appellant, hereinafter referred to as the accused, under Section 376 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for seven years and to pay Rs.20,000/- as fine.

2. The challenge to the impugned judgment is on the grounds, inter alia, that there is no iota of evidence to show that the prosecutrix was subjected to sexual intercourse by the accused. Again, no legal and acceptable evidence is stated to be on record, suggesting that the prosecutrix was minor below 16 years of age. The medical evidence is not conclusive so as to prove the commission of sexual intercourse with the prosecutrix, as nothing is there to suggest that there were injuries on the private part of the prosecutrix. All the witnesses were interested in the success of the case set up by the prosecution and such evidence should have not been relied upon against the accused. All the incriminating circumstances, appearing against the accused in the prosecution evidence, were not put to him in his statement recorded under Section 313 Cr. P.C. Therefore, such incriminating circumstances should have not been used against him.

3. Now, if coming to the factual matrix, on 20.2.2009 around 10 a.m., when the prosecutrix (name withheld) was spreading cow-dung in the fields with her cousin PW-13 Geeta, a deaf and dumb girl, the accused came there in a vehicle bearing registration No.HP-01A-0765 and parked the same on road side. He signaled the prosecutrix to come down to the road. She came to the road and accused made her sit on the rear seat of the said vehicle. He drove the vehicle to by-pass road and stopped it near a curve on Kutcha portion of the road. He came to the rear seat, opened the string of her Salwar and subjected her to sexual intercourse against her will and without her consent. The accused asked the prosecutrix not to divulge anything to anyone and drove the vehicle towards The side. In the meanwhile, her mother PW-7 Smt. Sarla came to the fields with her nephew PW-8 Sunil and when noticed that the prosecutrix was not there, asked Sunil to go to roadside and enquire about her. PW-8 Sunil came back and informed PW-7 Smt. Sarla that the prosecutrix had gone towards Theog side with the accused in a vehicle bearing registration No.HP-01A-0765. On this, PW-7 Smt. Sarla informed her Devar (younger brother of her husband) Prem Singh through her cell phone and herself left for Theog in a bus along with her Devrani (wife of younger brother of her husband) Smt. Pushpa. She also informed her father-in-law PW-19 Devi Dass about the incident. The said witness tried to stop the vehicle at Premghat Chowk, but the accused did not stop it and drove the same towards Shimla side. Ultimately, the accused had to stop the vehicle near Bus stand, Theog, because of traffic jam. The vehicle was intercepted there by PW-20 Mohan Dogra, a cousin of the father of the prosecutrix. In the meanwhile, PW-19 Devi Dass also came there, guarded the vehicle and took the custody of the prosecutrix. At that very time, PW-7 Sarla, the complainant accompanied by her Devrani Pushpa also reached there. On inquiry by PW-7 Smt. Sarla, the prosecutrix narrated the occurrence to her. Thereafter they all came to Police Station, Theog and on the basis of report lodged by PW-7 Smt. Sarla, the mother of the prosecutrix, FIR Ext.PW7/A under Sections 363 and 376 IPC came to be registered against the accused at 2 p.m.

4. Police swung into action. PW-23 SI Sato Kumar took investigation of the case in his hand. He made application Ext.PW15/A and sent the prosecutrix for medical examination to Civil Hospital, Theog with lady constable Meena. After recording the statement of PW-19 Devi Dass, he accompanied by ASI Het Ram and the said witness went to the spot, just ahead of bus stand, Theog and near old Police Station. There PW-20 Mohan Dogra and accused both were fond present along with Maruti Van bearing registration No.HP-01A-0765. The same, along with its documents, was taken into possession vide recovery memo. Ext.PW19/A. Site plan Ext.PW23/A was prepared and thereafter statement under Section 161 Cr. P.C. of PW-20 Mohan Dogra was recorded. The accused along with vehicle was brought to the Police Station. The vehicle was parked in the courtyard of the Police Station and the same along with keys was entrusted to MHC, P.S. Theog.

5. The accused was interrogated. In the meanwhile, lady constable Meena brought MLC of the prosecutrix. The statement of the prosecutrix was also recorded and on finding a case having been made out under Sections 363 and 376 IPC against the accused, he was arrested and got medically examined. The Investigating Officer thereafter inspected the spot at village Khol Gali and prepared the map of the place from where the prosecutrix boarded the vehicle in question. He also prepared spot map Ext.PW23/C of the place known as Maut Mor, where the prosecutrix was subjected to sexual intercourse.

6. On 21.2.2009, the Maruti Van was got inspected from PW-18 Ajay Sehgal, Scientific Officer, in the presence of PW-19 Devi Dass. One white coloured Dari Ext.P1, two pieces of towel Exts. P2 and P-3 green and white in colour and two packets containing hair and one wrapper of condom Exts. P-5 and P-6, picked up by PW-18 from the vehicle during its inspection, were handed over to the Investigating officer and the same were sealed in a parcel with seal impression `X", which after its use was handed over to PW-19 Devi Dass. These articles were taken into possession vide recovery memo. Ext. PW19/D.

7. During the course of investigation, the accused made a disclosure statement Ext.PW19/E. After recording the same, the Investigating Officer accompanied by accused, PW-19 Devi Dass, PW-21 Constable Rakesh Kumar and Expert Ajay Sehgal, went to the spot at Khol Gali. On the identification of the spot by the accused, memo. Ext.PW19/B was prepared. He got recovered the used condom Ext.P7 from the spot. The condom so recovered was inspected by the Expert. It was wrapped in a parcel and sealed with three seals of impression `M' and taken into possession vide recovery memo. Ext. PW19/C. The spot map Ext.PW23/D of the recovery of condom was also prepared. The case property was handed over to MHC, Police Station, Theog.

8. One photocopy of the middle standard certificate of the prosecutrix was produced by her father PW-9 Suresh Kumar, which was taken in possession vide recovery memo. Ext.PW9/A. Date of Birth certificates Exts. PW10/A and PW11/A were also collected from Govt. High School, Bagain and Municipal Council, Theog and taken into possession vide recovery memo.Ext.PW23/E and PW23/F respectively. On receipt of the opinion of Radiologist, the Investigating Officer moved application Ext.PW23/G for seeking opinion of the doctor, however, the doctor as per report Ext.PW23/H, left it open to be given on receipt of the report from the Forensic Science Laboratory. On receipt of the report of Chemical Examiner, MLC was produced before PW-16 Dr. Seema Rani, who opined that there was nothing suggesting that penetration has occurred. In view of the opinion so given by PW-17 Dr. Seema Rani, SHO, Police Station, Theog, made application Ext.PW17/A to Medical Superintendent, DDU Hospital, Shimla for obtaining the expert opinion. The Medical Board comprising PW- 17 Dr. Rita Mittal and Dr. Rama Thakur, in its opinion Ext.PW17/B, opined that from the clinical examination of the prosecutrix there was possibility of sexual intercourse. On the completion of investigation; report under Section 173 Cr. P.C. was filed in the Court, claiming therein the commission of offence, punishable under Sections 363 and 376 IPC, by the accused.

9. Learned trial Judge on going through the police report and the documents annexed therewith has, however, concluded that prima-facie a case under Section 376 IPC is made out against the accused and he has been charge-sheeted accordingly. The accused, however, not pleaded guilty to the charge and rather claimed trial. This has led in producing the evidence to sustain the charge against the accused by the prosecution.

10. The material prosecution witnesses are the prosecutrix herself, who has stepped in the witness box as PW-6, her mother Smt. Sarla PW-7, cousin Sunil PW-8, father Suresh Kumar PW-9, cousin sister Geeta PW-13, grand-father Devi Dass PW-19 and uncle Sh. Mohan Dogra PW-20. The link evidence material in this case has come on record by way of the testimony of PW-14 Dr. Neeti Aggarwal, PW-16 Dr. Seema Rani, PW-17 Dr. Rita Mittal, PW-18 Ajay Sehgal, Scientific Officer and the Investigating Officer SI Sato Kumar PW-23.

11. The remaining witnesses are formal in nature, as PW-1 Inspector Khazana Ram, on the completion of investigation had filed Police Report in the Court, PW-2 Constable Bhupinder Singh took the sample parcels from PHC to Police Station, Theog, PW-3 Lady Constable Meena escorted the prosecutrix to hospital for medical examination and collected MLC therefrom, PW-4 Constable Rajinder Kumar took the sample parcels to FSL for analysis, PW-5 HC Het Ram, the then MHC, forwarded the sample parcels to the laboratory, PW-10 Sanjeev Kumar, Jr. Assistant in Senior Secondary School, Bagain, produced the date of birth certificate Ext.PW10/A, PW-11 Ms. Shakuntla Verma, Clerk in the Municipal Council, Theog, produced the date of birth certificate Ext.PW11/A, PW-12 Sh. Maya Ram Sharma, Interpreter associated at the time of recording of statement of PW-13 Geeta, a deaf and dumb girl, PW-15 Dr. Dali Tegta, medically examined the accused and found him capable of performing sexual intercourse, PW-21 Constable Rakesh Kumar is a witness to disclosure statement Ext.PW19/A and PW-22 Dr. Kuldeep Kanwar, being male, declined to conduct the medical examination of the prosecutrix.

12. The accused has also been examined under Section 313 Cr. P.C. and in his defence, he has examined DW-1 Shri Suman Prakash, Secretary of Gram Panchayat, Kamah, Tehsil Theog, who has proved entries Ext.DW1/A, an abstract of Parivar Register, pertaining to the family of the father of prosecutrix Suresh Kumar.

13. Learned trial Judge, after appreciating the evidence available on record and hearing learned defence counsel as also the Public Prosecutor has concluded in para 20 of the impugned judgment as follows:

"20. When the prosecutrix has categorically and clearly stated that the accused had committed sexual intercourse with her without her consent. It has come in the evidence that the accused was known to the prosecutrix and she used to talk her on mobile phone etc. All this shows that she might have friendly relation with the accused but she never consented to have sexual intercourse with him. On this aspect, there is nothing in her statement to disbelieve her. As stated above, her evidence in this regard has been duly corroborated by medical evidence. If the evidence of the prosecutrix is taken into consideration as a whole, it is cogent, convincing and inspire confidence and there is nothing in it to show that she has made false allegations of rape against the accused. The defence that the accused has been falsely implicated at the instance of Devi Dass, the grand father of prosecutrix, who is allegedly having enmity or professional rivalry against the accused, does not seem to be probable because no parent or grandfather in Indian society take such a risk at the cost of character of their minor daughter/grand-daughter. So far as other witnesses examined by the prosecution are concerned, their evidence is almost formal in nature and some of them have been examined to link the prosecution case and they have corroborated the case to the extent of their part. The defence has also pointed a finger on the role of investigating officer. But it is a settled proposition of law that faulty investigation or wrong investigation does not affect the prosecution case. Similarly the fact that the FIR was recorded by the mother of prosecutrix though prosecutrix was also present in the police station and showing the recovery of vehicle of accused in the manner as shown concerned recovery memo., are not sufficient to disbelieve the prosecution story. The defence cannot take any help from the case law relied upon by it because, so far as legal position mention in the aforesaid rulings is concerned, there is no dispute about the same, but it is a settled proposition of law that each and e very case has to be decided by the facts and circumstances of its own and in the circumstance of this case, these rulings are of no help to the defence."

14. Consequently, the accused has been convicted and sentenced, as aforesaid.

15. Shri Anup Chitkara, learned counsel, assisted by Ms. Divya Sood, Advocate, has very forcefully and ably argued that the present is a case where the prosecution has miserably failed to prove its case beyond all reasonable doubt against the accused and as such he is entitled to benefit of doubt and ultimately acquittal. Learned defence counsel has fairly conceded the factum of boarding Maruti Van bearing registration No.HP-01A-0765 by the prosecutrix on the day of occurrence at village Khol Gali and having accompanied the accused, who admittedly was on its wheel. The accused, however, did not assault the prosecutrix sexually on the way, as is the story propounded against him by the prosecution. It has been further pointed out by learned defence counsel that neither any legal and acceptable evidence suggesting that the prosecutrix was minor below 16 years of age at the time of occurrence has come on record nor is there any legal and acceptable evidence suggesting that she was subjected to sexual intercourse. In the alternative, it has been argued that even if this Court arrives at a conclusion that she was below 16 years of age and subjected to sexual intercourse, in that event in the given facts and circumstance, being a case of consensual sexual intercourse, the sentence may be reduced to the period already undergone by the accused.

16. On the other hand, learned Additional Advocate General while making a reference to the statement of the prosecutrix, has contended that the same inspires confidence and as such the accused has been rightly convicted and sentenced. Learned Additional Advocate General has also pointed out that the evidence as has come on record with respect to the age of the prosecutrix and the commission of sexual intercourse, is cogent and reliable and was sufficient to record the findings of conviction against the accused.

17. The offence allegedly committed by the accused is not only a heinous but also grievous being against a minor girl. At this stage, it is well settled that the women on account of variety of reasons are in disadvantageous position and being subjected to such like offences. In order to curb the offences against them, in various judicial pronouncements, a serious view of the cases against the women has been taken. The legislature in its wisdom has also brought drastic changes in existing laws with the only object to curb the offences against women and to ensure that the offender booked for the commission of such like offences may not be set free due to procedural technicalities and other legal complications. Section 114-A has been inserted in the Evidence Act by way of amendment, providing thereby that where there is a question as to whether a woman was ravished without her consent or not and in case she states in her statement before the Court that she was not the consenting party to the sexual intercourse with her, the Court can presume that she was not a consenting party thereto. Hon'ble Apex Court in a catena of judgment including State of Punjab v. Gurmeet Singh and others, AIR 1996 SC 1393 has held that if the statement of he prosecutrix otherwise inspires confidence is sufficient to bring guilt home to the accused and no other and further corroboration thereto is required. Hon'ble Apex Court in Rajoo and others v. State of M.P., 2009 AIR (SC) 858, while taking note of the judgments in Gurmeet Singh's case supra & Ranjit Hazarika v. State Of Assam., (1998) 8 SCC 635 and concurring with the ratio of law laid down therein, has further held that the statement of the prosecutrix cannot be universally and mechanically applied to the facts of every case of sexual assault, which comes before the Court. Para 9 of this judgment reads as follows:

"9. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspect and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the Court. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration. Reference has been made in Gurmit Singh's case to the amendments in 1983 to Sections 375 and 376 of the India Penal Code making the penal provisions relating to rape more stringent, and also to section 114a of the evidence act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113A and 113B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two Sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualized as the presumption under Section 114A is extremely restricted in its applicability. This clearly shows that in so far as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined.

18. Similar view is of the matter again taken by the Hon'ble Apex Court in Vimal Suresh Kamble v. Chaluverapinake Apal S.P. and another, (20003) 3 SCC 175.

19. Therefore, the Courts should not get swayed merely by passion and influence only because of the reason that the alleged offence is against a woman, and rather keep in mind that as per the cardinal principle of criminal administration of justice, an offender has to be considered innocent unless and until held guilty by the Court after satisfying its judicial conscience on the basis of given facts and circumstances of each case as well as proper appreciation of evidence available on record. As a matter of fact, every care and caution is required to be taken by the Court so that an innocent person may not be convicted and at the same time a culprit should also not escape from conviction.

20. Whether the present is a case where on the basis of sole testimony of the prosecutrix or for that matter other and further evidence available on record, findings of conviction could have been recorded against the accused or not, is a poser, which needs re-appraisal of the entire evidence for its answer.

21. There is no need to discuss the prosecution evidence with respect to the prosecutrix boarding Maruti Van bearing registration No. HP-01A-0765 at Khol Gali and having joined the company of accused, who admittedly was on its wheel. It stands satisfactorily proved on record that the accused did not use any force nor enticed away her and rather on being signalled by him to come down, she voluntarily came to the road and occupied the rear seat of the vehicle. It is for this reason that no case under Section 363 IPC was found to have been made out against the accused nor any charge to this effect framed. The non-framing of charge under Section 363 IPC may not be of any help to the accused in view of the charge having been framed for the commission of graver offence, punishable under Section 376 IPC, which provides for more severe punishment as compared to the commission of offence, punishable under Section 363 IPC. The fact, however, remains that the accused neither used any force nor allured the prosecutrix nor any case to this effect is made out from the record.

22. Since the prosecution case is that the prosecutrix was minor below 16 years of age at the time of occurrence and had been subjected to sexual intercourse, it is her age, which assumes considerable significance. Her age has been claimed to be 14.5.1994 in the prosecution case. The evidence in support thereof relied upon by the prosecution is middle standard certificate Ext.PW9/B and certificate Ext.PW10/A, produced by PW-10 Sanjeev Kumar, Jr. Assistant in Govt. Senior Secondary School, Bagain and certificate Ext.PW11/A produced in evidence by Smt. Shakuntla Verma, Clerk in the office of Municipal Council, Theog. No doubt in all these documents, the date of birth of the prosecutrix has been recorded as 14.5.1994. The evidence so produced on record by way of these documents, however, is secondary and not primary. As a matter of fact, in order to determine the age of a person with the assistance of school record, it is the admission register and admission form filled up at the time of admission of a child in the earliest class, an authentic proof thereto.

23. PW-10 Sanjeev Kumar no doubt has said that the prosecutrix was admitted in Govt. Senior Secondary School, Bagain in 6th standard. But, what to speak of primary evidence which should have come on record by examining someone from the primary school where the prosecutrix was initially admitted in the earliest class, even the admission register pertaining to her admission in Govt. Senior Secondary School, Bagain in 6th standard has also not been produced. Therefore, middle standard certificate Ext.PW9/B and certificate Ext.PW10/A produced by PW-10 Sanjeev Kumar, can at the most be taken as secondary evidence and not primary. In this behalf, Hon'ble the Apex Court in Sunil Kumar v. State of Haryana, AIR 2010 SC 392, has held as under:

"30. The prosecution also failed to produce any Admission Form of the school which would have been primary evidence regarding the age of the prosecutrix."

24. Hon'ble Apex Court in State of Chhatisgarh v. Lekhram, AIR 2006 SC 1746, has held that the register maintained in a school is admissible evidence to prove the date of birth of the person concerned, if it is proved that the same has been maintained by the authorities in the discharge of their public duty and there is evidence to show as to who had disclosed the date of birth of such person at the time of his/her admission in the school.

25. In the case in hand, the admission and withdrawal register maintained in primary school, where the prosecutrix studied up to 5th standard and the admission form, which contains a declaration qua the authenticity of the correctness of all the facts mentioned therein, would have been primary evidence, which has not been produced. No doubt the register produced by PW-10 can be stated to have been maintained by the public authorities in the discharge of their duties, however, there is no evidence as to who got the prosecutrix admitted in 6th standard and how her date of birth came to be recorded as 14.5.1994 in the said register, as her mother PW-7 Smt. Sarla and father PW-9 Suresh Kumar have not stated so while in the witness box. Therefore, the school record produced to prove the date of birth of the prosecutrix as 14.5.1994 cannot be relied upon being not legally admissible.

26. If coming to another certificate Ext.PW11/A produced by Smt. Shakuntla Verma, a Clerk in the office of Municipal Council, Theog, her testimony only reveals that this certificate has been issued on the basis of entries made in the Birth and Death Register, maintained in the Municipal Council. It has come in her statement that Smt. Shoda Devi came to Municipal Council on 1.9.1994 and got recorded the date of birth of the prosecutrix as 14.5.1994. Who is that Shoda Devi, no evidence is forthcoming. Even if statement of PW-19 Devi Dass is believed that such entries were got made by his wife, i.e. the grand-mother of the prosecutrix, who is she, it also remained unexplained, as the grand-mother of the prosecutrix is neither associated in the investigation of the case nor examined as a witness to establish this part of the prosecution case. As a matter of fact, mere production of a register or abstract thereof in evidence is not sufficient to prove the date of birth of a person. In order to prove the same in accordance with law, the person at whose instance the entries were made in the register is relevant and material witness. It is held so by Hon'ble Apex Court in Ravinder Singh Gorkhi v. State of U.P. AIR 2006 SC 2157, as follows:

"17. The said school leaving certificate was not issued in ordinary course of business of the school There is nothing on record to show that the said date of birth was recorded in a register maintained by the school in terms of the requirements of law as contained in Section 35 of the Indian Evidence Act. No statement has further been made by the said Head Master that either of the parents of the appellant who accompanied him to the school at the time of his admission therein made any statement or submitted any proof in regard thereto. .

21. Determination of the date of birth of a person before a court of law, whether in a civil proceeding or a criminal proceeding, would depend upon the facts and circumstances of each case. Such a date of birth has to be determined on the basis of the materials on records. It will be a matter of appreciation of evidence adduced by the parties. Different standards having regard to the provision of Section 35 of the Evidence Act cannot be applied in a civil case or a criminal case.

25. ..

26. In Birad Mal Singhvi v. Anand Purohit, 1988 Supp. SCC 604, this Court held:

"To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded."

`

27. Similar is the ratio of the judgment again that of Hon'ble Apex Court Madan Mohan Singh and others v. Rajni Kant and another, AIR 2010 SC 2933, which reads as follows:

"18. Therefore, a document may be admissible, but as to whether the entry contained therein has any probative value may still be required to be examined in the facts and circumstances of a particular case. The aforesaid legal proposition stands fortified by the judgments of this Court in Ram Prasad Sharma† v. State Of Bihar., AIR 1970 SC 326; Ram Murti v. State Of Haryana., AIR 1970 SC 1029; Dayaram & Ors. v. Dawalatshah & Anr., AIR 1971 SC 681; Harpal Singh & Anr. v. State of Himachal Pradesh, AIR 1981 SC 361; Ravinder Singh Gorkhi v. State of U.P., (2006) 5 SCC 584; Babloo Pasi v. State of Jharkhand & Anr., (2008) 13 SCC 133; Desh Raj v. Bodh Raj., AIR 2008 SC 632; and Ram Suresh Singh v. Prabhat Singh @Chhotu Singh & Anr., (2009) 6 SCC 681. In these cases, it has been held that even if the entry was made in an official record by the concerned official in the discharge of his official duty, it may have weight but still may require corroboration by the person on whose information the entry has been made and as to whether the entry so made has been exhibited and proved. The standard of proof required herein is the same as in other civil and criminal cases.

19. .

20. So far as the entries made in the official record by an official or person authorized in performance of official duties are concerned, they may be admissible under Section 35 of the Evidence Act but the court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entries in School Register/ School Leaving Certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases."

28. The non-examination of Smt. Shoda Devi, who allegedly got entered the date of birth of the prosecutrix in the Municipal Council record or the grand-mother of the prosecutrix, is, therefore, fatal to the prosecution case.

29. The testimony of PW-11 Smt. Shakuntla Verma and the certificate Ext.PW11/A as well as the record she produced, cannot also be taken as legal and acceptable evidence to conclude authoritatively and judicially that the prosecutrix was born on 14.5.1994 and as such was minor at the relevant time.

30. True it is that determination of age of a person on the basis of bone ossification test is another approved method. Normally, this method is resorted to in those cases where any direct evidence, qua the age of a person, is not available or in order to remove the doubt with respect to the evidence, if any, available on record. The prosecutrix was referred to PW-14 Dr. Neeti Aggarwal, a Radiologist. After examining the prosecutrix and conducting bone ossification test vide skiagram Exts. PW14/C to Ext.PW14/H, she found the age of the prosecutrix between 12= years and 15= years. Her report to this effect is Ext.PW14/B. While in the witness box, PW-14 Dr. Neeti Aggarwal, has admitted the error of two years on either side while determining the skeletal age of a person. Such error, however, is being taken three years. It is held so by a Division Bench of our own High court in State of H.P. v. Narender Kumar alias Hira and others, 2010 Cri. Law Journal 3545. Relevant portion of this judgment reads as follows:

"8. The skiagram and the ossification test was carried out on the prosecutrix by Dr. J. P. Kaushik (P.W. 2) and as per his report (Ext. P.W. 2/A), her age was determined to be 15 to 16 years. He clarified that the development of the bones of a person depends upon various factors like dietary, climatic and hereditary conditions. He opined that as compared to a good nutrient diet a person taking less proteins and less energy diet is likely to have slow development of bones and while determining the age of the prosecutrix he has not taken these factors into consideration. Therefore, the report by itself cannot be said to be of conclusive or binding nature. He has admitted that the bony age of a person can vary two-three years on positive or negative side. Undisputedly, prosecution does not from higher strata of society and her development of bones not being complete cannot be ruled out. Importantly the report is dated 10-1-1992 and the alleged offence is stated to have taken place on 31-12-1991. Keeping in view the negative and positive variations while determining the age of the prosecutrix it cannot be said that the age of the prosecutrix would definitely be not more than eighteen years. We are fortified to take his view, keeping in view of the decision taken by the Apex Court in Jaya Mala v. Home Secretary, Govt. of J. & K. ( 1982) 2 SCC 538 : AIR 1982 SC 1297 : 1982 Cri LJ 1777; Daya Singh v. Sahib Singh, ( 1991) 2 SCC 379 : AIR 1991 SC 930 : 1991 Cri LJ 1370; State of Rajasthan v. Ram Narain, (1996) 8 SCC 64 : AIR 1996 SC 2987 : 1996 Cri LJ 1882 and by a Division Bench of this Court in State of Himachal Pradesh v. Om Parkash, Latest HLJ 2005 (HP) (DB) 179."

31. In the above case, the skeletal age of the prosecutrix determined to be 15-16 years, was taken to be above 18 years, by giving the benefit of margin of error to the accused. In State of H.P. v. Phurva and others, Latest HLJ 2011 (HP) 490, again a Division Bench of this Court has held as under:

"19. In present like cases, age of the Prosecutrix is of utmost importance. Prosecutrix though at the time of her examination has stated that she was 17 years of age, yet there is no document with respect to the date of birth obtained by the police during investigation of the case, from the concerned Panchayat or from any School or Institution where she was admitted and studied. However, the prosecution has put its reliance only on the ossification report Ext. PW10/C showing her between 16-17 years on the basis of the epiphysis of bones. To prove this report PW10 Dr. G. D. Gaur was examined. His opinion is based upon the study of Dr. M.L. Aggarwal and I.C. Pathak in Punjab Region which has no hilly terrace. He also admitted that the development of bone depends on hereditary, dietary, harmonious factors, climatic condition and it varies from place to place. He also admitted that assessment of the age on the basis of fusion of bones is not a perfect science. It is also equally fallacious to apply the study of Dr. M.L. Aggarwal and I.C. Pathak to hilly terrace with respect to their studies which they have conducted in Punjab region. Admittedly, both the parties, in this case belong to tribal area of Lahaul where development of the bones differs considerably from the subject which is in the plain and warmer areas. The pubic signs appear early in warmer and lower parts of India whereas physical development, fusion of bones and also puberty is always delayed in the hilly areas. Thus giving the benefit of +2 years on both sides, as per the Modi's Jurisprudence, the age of the prosecutrix comes to 18-19 years at the relevant time and in any case above the age of discretion, she cannot be said to be a girl of immature understanding but a girl who could use her discretion."

32. In the case in hand, keeping in view the skeletal age of the prosecutrix between 12-1/2 and 15= years, the same can be taken as 14-1/2 years to 17-1/2 years. The prosecutrix at least was not 12-1/2 years of age at the time of occurrence for the reason that she was studying in 10th standard. If her date of birth is 14.5.1994, in that event also, she was 15 plus. If coming to the evidence qua this aspect of the matter, as has come on record, by way of the testimony of her mother Smt. Sarla PW-7, she tells us that her marriage was solemnized in 1986. After three years of her marriage , a male issue was born and it is after 1-1/2 - 2 years of his birth, the prosecutrix was born to them. Meaning thereby that the male issue was born to PW-7 Smt. Sarla somewhere in 1989. The prosecutrix seems to be born after 1-1/2 - 2 years, i.e. somewhere in 1991. Statement of PW-7 Smt. Sarla to this effect finds corroboration from the testimony of PW-19 Devi Dass, her father in-law, as he has categorically stated that the prosecutrix was born to PW-7 Smt. Sarla after 1= years of the birth of male issue. Such ocular evidence assumes significance in the given facts and circumstances of this case. Therefore, the possibility of the prosecutrix having born in the year 1991 cannot be ruled out. If it is so, in February, 2009, she was 17 plus.

33. In Jinish Lal Sah v. State Of Bihar., AIR 2003 SC 2081, a case having more or less similar facts, the Hon'ble Apex Court has held as under:

4. PW-6 the father of the girl in his evidence has stated that he was married in the year 1952 and he had two daughters. The first daughter Reeta was born 12 years after his marriage which would be in the year 1964. He states that his second daughter was born six years after Reeta was born that would be 18 years after his marriage which will be 1970. If that be the year of birth of PW-1 then the incidence in question being in the year 1989, PW-1 ought to be 19 years on that day. This witness further says that PW-1 had appeared for her Board examination in the year 1988 and had failed. This also gives an indication that it is likely that the age of PW-1 on the date of incidence was around 19 years.

34. Significantly, no question was put to the accused during the course of his examination under Section 313 Cr. P.C. with respect to the age of the prosecutrix. Therefore, such incriminating circumstances appearing in the prosecution evidence cannot be used against him. It has been held so by the Hon'ble Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, as under:

"142. Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz., circumstances Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement under Section 313 of the Criminal Procedure Code they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat Singh v. State of Madhya Bharat, AIR 1953 SC 468 this Court held that any circumstance in respect of which an accused was not examined under Section 342 of the Criminal Procedure Code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 or Section 313 of the Criminal Procedure Code, the same cannot be used against him. In Shamu Balu Chaugule v. State Of Maharashtra ., (1976) 1 SCC 438 this Court held thus :

"The fact that the appellant was said to be absconding, not having been put to him under Section 342, Criminal Procedure Code, could not be used against him.

144. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code have to be completely excluded from consideration."

35. On critical analysis of the age aspect of the prosecutrix vis-`-vis the evidence available on record and also the legal position attracted thereto, it would not be improper to conclude that the prosecution has miserably failed to prove that the prosecutrix being born on 14.5.1994 was below 16 years of age on the day of occurrence and rather the evidence as has come on record by way of skiagrams and the report of Radiologist as well as mother and grand-father of the prosecutrix, she seems to have born somewhere in the year 1991 and as such being more than 17 years of age, had attained the age of discretion and was not minor so far as her capacity to give consent for sexual intercourse with her is concerned.

36. There is again no iota of evidence, which can be termed as legal and acceptable that the prosecutrix was subjected to sexual intercourse. True it is that while in the witness box as PW-6, she states that the accused parked the vehicle on a curve, came to the rear seat and started doing obscene acts with her and then opened the string of her Salwar and thereafter subjected her to sexual intercourse against her will and without her consent. According to her, the accused had used condom while assaulting her sexually.

37. On the basis of clinical examination of the prosecutrix and perusal of the report of Chemical Examiner, the opinion given by PW-16 Dr. Seema Rani in Ext. PW17/B, produced in evidence by PW-17 Dr. Rita Mittal, is as follows:

"my opinion from the examination of the patient and report of chemical examiner is, there is nothing to suggest that penetration has occurred"

38. If coming to the clinical examination of the prosecutrix, as disclosed from the statement of Dr. Seema Rani PW-16, no abnormalities were detected after the alleged sexual assault. The prosecutrix was not found to have passed urine/stool nor changed her clothes. No external mark of injury was detected in and around the perineal area nor any tenderness could be noticed on separation of labia majoras. Cervix was found to be admitting tip of finger with difficulty. However, white coloured discharge was noticed on posterior fornix.

39. On finding that no case is made out under Section 376 IPC against the accused pursuant to opinion Ext. PW17/B, the SHO made an application Ext. PW17/A to the Medical Superintendent, DDU Hospital, Shimla for constitution of Medical Board for reexamination of the prosecutrix to find out whether the sexual intercourse was committed with her or not. The Medical Board was constituted comprising PW-17 Dr. Rita Mittal and Dr. Rama Thakur. The said Board had examined the prosecutrix on 12.5.2009, i.e. after about three months of the occurrence. The Board after examining the prosecutrix clinically found the hymen torn with old healed tears at 4, 5 and 8 O'clock position and laxity in vagina i.e. admitting two fingers easily. On the basis of examination so conducted, the Medical Board opined that "there is possibility of sexual intercourse."

40. As per version of PW-17 Dr. Rita Mittal, there was alleged history of sexual intercourse twice, however, when examined as PW-6, the prosecutrix has stated that she was subjected to sexual intercourse only for once.

41. It is interesting to note that PW-17 Dr. Rita Mittal, when examined the prosecutrix on 22.2.2009, did not find any fault either with the clinical examination of the prosecutrix conducted by PW-16 Dr. Seema Rani or the opinion that vagina could admit a tip of finger, that too with difficulty. From the initial examination of the prosecutrix till 12.5.2009, when laxity in vagina was noticed and the same was found to have admitted two fingers easily, the accused had been in custody. Therefore, he cannot be blamed and held responsible to any subsequent sexual act nor are there any such allegations against him.

42. Therefore, the opinion of the Medical Board is hardly of any help to the prosecution case nor the same can be relied upon against the accused. The possibility of such opinion having been given either in connivance with the prosecution or being the result of subsequent insertion in vagina cannot be ruled out.

43. The story of condom also seems to be propounded with due deliberation and consultation, as in the initial statement of the prosecutrix recorded under Section 161 Cr. P.C., there is no mention in this behalf. The inspection of the Van by PW-18 Shri Ajay Sehgal, Scientific Officer is an idle formality for the reason that at the time of inspection of the vehicle, the same was parked in open and was not sealed. Its keys were also not in safe custody. Even if it is admitted that the same were handed over to MHC of Police Station, the possibility of tampering with the vehicle and plantation of wrapper of condom cannot be ruled out. Above all, the vehicle was taken into possession on 20.2.2009 itself, whereas its inspection was conducted by PW-18 on the next day, i.e. 21.2.2009. Recovery of condom at the instance of the accused is also not proved beyond all reasonable doubt for the reason that PW-19 Devi Dass has resiled from his statement and did not support the disclosure statement Ext.PW19/A, having been made by the accused in the manner as stated by the prosecution. Had the disclosure statement been made in the manner as claimed by the prosecution, PW-19 Devi Dass, one of the attesting witnesses thereto, being grand-father of the prosecutrix, would have definitely supported this aspect of the prosecution case.

44. True it is that another witness of recovery memo. Constable Rakesh Kumar PW-21 has supported the prosecution case, but it is not safe to place reliance on his testimony being police official and interested in the success of prosecution case for the reason that when the statement was made at Theog in the Police Station, a thickly populated area, some independent person could have been easily available had an effort been made in this behalf.

45. PW-18 Ajay Sehgal states that one condom was lifted by him from the spot and handed over to the Investigating Officer. PW-23 SI Sato Kumar, I.O., has, however, different story to narrate as according to him, that condom was recovered at the instance of accused and handed over by him to PW-18 Ajay Sehgal. The disclosure statement, which otherwise is a weak type of evidence, if not proved beyond all reasonable doubt, is nothing else, but a memo. prepared by the I.O. in respect of the recovery of condom. Therefore, if disclosure statement Ext. PW19/A is excluded from the oral evidence, there hardly remains any legal and acceptable evidence, suggesting that it is the accused at whose instance the condom was recovered and he had used the same at the time of commission of sexual intercourse with the prosecutrix.

46. Another piece of evidence is the report of Chemical Examiner Ext. PW18/B. The exhibits sent to the laboratory for analysis were analyzed by conducting various tests. The result reveals that the blood and semen was not detected on the Salwar, shirt, underwear, sweater, pubic hair, combed pubic hair and scalp hair of the prosecutrix, nor on the sweater, shirt, T-shirt, pants, inners and socks of the accused. The blood and semen was not detected even in urine sample, penile wash, swab taken from coronal urethral orifice, nail scrapping of left hand, scalp hair, pubic hair of the accused and also on carpet, piece of cloth, towel, wrapper of condom and the samples collected from the rear seat of the vehicle at the time of the inspection of the vehicle. However, blood was detected in traces on vaginal slides and vaginal swab. But the same was not sufficient for further examination. No semen was detected either on vaginal slides or vaginal swab. Blood was not detected either on underwear and scraping from underwear of the accused, however, semen was found available on these exhibits. Blood in traces was detected on condom, however, the same was also not found sufficient for further examination, though human semen was found available thereon.

47. The report Ext. PW18/A is thus not inculpatory but exculpatory in nature as no evidence has come on record suggesting that on the wearing apparels of the prosecutrix more particularly, Salwar or underwear, human blood and semen was present. Even if the accused had used condom while assaulting the prosecutrix sexually, in that event also in a case of sexual intercourse that too with a girl of her age forcibly, the vagina should have bleeded and she would have ejaculated. The semen of accused connecting him with the commission of offence would have been there in the condom. No such evidence, however, has come on record.

48. True it is that as per report Ext. PW18/A, blood in traces was detected on the condom, however, in the absence of any other legal and acceptable evidence that the blood was of the scrap of the prosecutrix and the semen was ejaculated by the accused, DNA profile was required and in the absence thereof, the accused cannot be connected with the commission of the offence. Hon'ble Apex Court in a case having more or less similar facts titled Krishan Kumar Malik v. State Of Haryana., (2011) 3 SCC 130 has held as follows:

"44. Now, after the incorporation of Section 53(A) in the Criminal Procedure Code, w.e.f. 23.06.2006, brought to our notice by learned counsel for the Respondent-State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in the Cr. P.C. prosecution could have still resorted to this procedure of getting the DNA test or analysis and matching of semen of the Appellant with that found on the undergarments of the prosecutrix to make it a fool proof case, but they did not do so, thus they must face the consequences."

49. Therefore, on this score also, the prosecution case is bound to fall to the ground.

50. It is significant to note that there was intimacy between the accused and the prosecutrix. They were known to each other. They used to have conversation over cell phone every week and some time the duration thereof even goes upto = hour. The prosecutrix, therefore, had developed intimacy with the accused. No doubt at that time the accused was married and being so, his intimacy with the prosecutrix might have not been liked by others, particularly her parents and relations. It is, therefore, not a case where it can be said that the accused had duped the prosecutrix or cheated her, that too when in the opinion of this Court, she had attained the age of senses.

51. True it is that normally no one would like to put the honour and reputation of one's own daughter at stake, however, it cannot be taken as straight jacket formulae as in exceptional circumstances, owing to illiteracy and social background, sometime, possibility of false implication of the accused cannot also be ruled out. It is held so by our own High Court in State of H.P. v. Narender Kumar, 2010 Cri. LJ 3545, as under:

"23. The sole testimony of the prosecutrix cannot be said to be natural, trustworthy and worth being relied upon. No implicit reliance can be placed thereupon. It is true that no person would risk her reputation putting her honour and prestige at stake to falsely implicate a person and that too in a case of sexual offence but as noticed herein-earlier, prosecutrix and the accused were known to each other since long and may have developed intimacy during the course of their interaction and under pressure from the family deposed falsely."

52. The evidence as has come on record by way of the testimony of the Investigating Officer and other formal witnesses referred to above, could have at the most been used as a link evidence, had the prosecution otherwise been able to prove its case beyond all reasonable doubt.

53. Therefore, looking the present case from any angle, the involvement of the accused in the commission of alleged offence is not established beyond all reasonable doubt. Learned trial Judge has failed to appreciate the evidence available on record in its right perspective and got swayed by passion and also for the reason that the offence is against a woman, while arriving at a conclusion that the accused had subjected the prosecutrix, a minor girl below 16 years of age, to sexual intercourse. The findings so recorded being based on surmises and conjectures are neither legal nor factually sustainable. The above poser, therefore, is answered accordingly.

54. The upshot of the discussion here in above would be that the prosecution has failed to prove its case beyond all reasonable doubt. The accused, therefore, is entitled to benefit of doubt and ultimately acquittal.

55. In view of what has been stated here in above, the present appeal is accepted and the impugned judgment set aside. Consequently, the conviction of the accused is also quashed and set aside. He is in custody right from the day of the registration of the case i.e. 20.2.2009. During the pendency of the appeal, he was in judicial custody and after his conviction and sentence by learned trial Court, serving out the sentence for the last more than 4-1/2 years. Therefore, he is ordered to be set free forthwith, if not required in any other case.

The appeal stands disposed of.

Appeal allowed.