1. The present appeal is directed against the judgment dated 27.08.2021 and order dated 28.08.2021, vide which the appellant (accused before learned Trial Court) was convicted and sentenced as under:-

(Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present appeal are that the victim (name being withheld to protect her identity) was called by the accused in December 2014 to his home. The accused took her into a room and raped her. When she tried to shout, he gagged her mouth. He threatened her not to narrate the incident to any person or else he would kill her. He also asked the victim to visit his home whenever he would call her. This continued for 4-5 months. The victim told the accused that she had stopped mensurating. The accused assured her to bring some medicine. The accused did not bring any medicine and asked the victim to marry someone. The victim started talking to a third person and married him in May 2015. She started residing in her matrimonial home. She went to her parental home during the rainy season, where, she delivered a boy on 20.08.2015. Two persons came to the victim, who adopted her child. They also gave her 5,000/- for taking some nutritious food to improve her health. An anonymous complaint (Ext. PW16/B) was made to the police post Padhar regarding the delivery of the child and giving it in adoption in lieu of Rs.5,000/-. This complaint was forwarded by Child Development Project Officer vide his letter (Ext. PW16/A) to the police. The police went to the spot for verification of the complaint. The statement of the victim (Ext. PW3/A) was reduced into writing and sent to the Police Station, where, FIR (Ext. PW 9/A) was registered. SI-Joginder Singh (PW14) conducted the investigation. He filed an application (Ext. PW14/C) for conducting the medical examination of the victim. Dr. Anjali Minhas (PW1) conducted her medical examination and found that there was evidence of fresh vaginal delivery. She issued the MLC (Ext. PW1/A). An application (Ext. PW14/D) was filed for the recording of the statement of the victim. Learned Judicial Magistrate, First Class-III, Mandi recorded her statement (Ext. PW3/B). SI-Joginder Singh visited the spot and prepared the site plan (Ext. PW14/E). He also prepared the spot inspection memo (Ext. PW3/C). He filed an application (Ext. PW6/A) to obtain a copy of the Pariwar Register. Bahadur Singh (PW6) issued the date of birth certificate (Ext. PW6/B) showing that the date of birth of the victim was 03.02.1998. He also issued a copy of the Pariwar Register (Ext. PW6/C). Police arrested the accused and filed an application for his medical examination. Dr Vijay Kumar Yadav (PW13) conducted the medical examination and found that there was nothing to suggest that the accused was incapable of performing sexual intercourse. He preserved the blood samples of the baby and the accused and handed them over to the police official accompanying the accused. Dr. Riti (PW12) obtained the blood samples of the victim on the FTA card. These blood samples were sent to FSL, Junga for analysis. A result of analysis (Ext. ‘PX’) was issued showing that the victim was the biological mother and the accused was the biological father of the baby. The statements of the witnesses were recorded as per their version and after the completion of the investigation, the challan was prepared and presented before the Court.

3. The accused were charged with the commission of offences punishable under Sections 376 and 506 of the Indian Penal Code (in short ‘IPC’) and Section 6 of the Protection of Children from Sexual Offences Act (in short ‘POCSO Act’).

4. The accused pleaded not guilty and claimed to be tried.

5. The prosecution examined 16 witnesses to prove its case. Dr. Anjali Minhas (PW1) conducted the medical examination of the victim. Sarita Devi (PW2) is the witness to the identification of the house and cowshed. PW3 is the victim. Halku Ram (PW4) was informed by the victim about the delivery of the child and he and his wife adopted the victim’s child. Reena Devi (PW5) is the witness to the recovery but she did not support the prosecution case. Bahadur Singh (PW6) issued the birth certificate and copy of the Pariwar Register. HC-Rup Lal (PW7) was posted as MHC with whom the case property was deposited. LC-Savita Rana (PW8) accompanied the police party to the spot and brought the statement of the victim to the Police Station for the registration of the FIR. She also accompanied the victim to the hospital. Constable-Davinder Kumar (PW9) was driving the vehicle, in which the police party went to the spot. HC-Kuldeep Singh (PW10) carried the case property to the FSL, Junga and brought the result of the analysis from the FSL. Rakesh Sharma (PW11) went through the baby’s X-ray and determined his radiological age. Dr. Riti (PW12) obtained the blood sample of the victim. Dr Vijay Kumar Yadav (Pw13) conducted the medical examination of the accused and also obtained the blood sample of the baby and the accused on an FTA Card. SI Joginder Singh (PW14) conducted the investigation. HC-Tilak Raj (PW15) registered the FIR at the Police Station. SI-Prittam Singh (PW16) prepared the challan.

6. The accused in his statement recorded under Section 313 of Cr.P.C. denied the prosecution case in its entirety. He stated that witnesses deposed against him falsely under the pressure of the Police. No defence was sought to be adduced by the accused.

7. Learned trial Court held that the victim was proved to be 16 years and 10 months on the date of the incident and fell within the definition of a child under the POCSO Act. The testimonies of the witnesses were duly corroborated by the report of Analysis, showing that victim was the biological mother and the accused was the biological father of the baby. It was suggested to the victim that she had a long-standing love affair with the accused and she had contracted marriage with the accused, which shows that the relationship between the accused and the victim was not disputed. Hence, the accused was convicted and sentenced as aforesaid.

8. Being aggrieved from the judgment and order passed by the learned Trial Court, the accused has filed the present appeal asserting that the learned Trial Court erred in convicting and sentencing the accused. An anonymous complaint was made to CDPO, Drang, District Mandi, who sent it to the SHO, Police Station, Drang and no complaint was ever made by the victim. Some of the witnesses turned hostile, which was sufficient to discard the prosecution case; however, learned Trial Court failed to appreciate this fact. There were major contradictions in the testimonies of the eyewitnesses, which would make them highly improbable. The investigation was not fair and there was no cogent and reliable evidence to connect the accused with the commission of crime. Hence, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.

9. We have heard Mr. Hemant Kumar Thakur, learned counsel for the appellant/accused and Mr. Pawan K. Nadda, learned Additional Advocate General for the respondent/State.

10. Mr. Hemant Kumar Thakur, learned counsel for the appellant/accused submitted that the learned Trial Court erred in convicting and sentencing the accused. No complaint was made by the victim, which shows her consent. The independent witnesses had turned hostile, which made the prosecution case highly doubtful. Therefore, he prayed that the present appeal be allowed and the judgment and order passed by the learned trial Court be set aside.

11. Mr. Pawan Kumar Nadda, learned Additional Advocate General for the respondent/State supported the judgment and order passed by the learned Trial Court and submitted that no interference is required with the same.

12. We have given considerable thought to the submissions at the bar and have gone through the records carefully.

13. The victim stated in her cross-examination that she was aged 17 years on the date of the incident. This is duly corroborated by the copy of the Birth Register (Ex.PW6/B) wherein her date of birth was shown as 03.02.1998. Bahadur Singh (PW6) admitted in his cross-examination that he had not prepared the original record. However, that will not affect the credibility of the birth register, as it is prepared by a public official in the discharge of his official duties and is admissible under Section 35 of the Indian Evidence Act. It was laid down by the Punjab and Haryana High Court in Surender v. State of Haryana, 2011 SCC OnLine P&H 4464: ILR (2011) 2 P&H 862 : (2011) 2 RCR (Cri) 903 that an entry in the birth register is per se admissible without examining the person, who had recorded such an entry. It was observed:

"(13) In the present case, the said certificate was ignored on the ground that the Chowkidar along with the register has not been examined to prove the date of birth recorded in the Chowkidar register nor any person has been examined from the Registrar. Births and Deaths to prove as to on what basis the aforesaid date of birth of the accused has been recorded in their record. This view is contrary to the law laid down in various judicial pronouncements by Hon'ble the Apex Court. This question has been well settled by the Hon'ble Apex Court in the case of Harpal Singh v. State of Himachal Pradesh [1981 Crl. L.J. 1.], by holding that a certified copy of an entry of date of birth in the register of Births and Deaths is clearly admissible under Section 35 of the Evidence Act and, therefore the examination of the official, where the certificated copy of the Birth Certificate is produced, was not necessary. Para 3 of the said judgment is relevant and is reproduced as under: —

“3. In the instant case, the prosecution has proved the age of the girl by overwhelming evidence. To begin with, there is evidence of Dr. Jagdish Rai (PW 14) who is a radiologist and who after an X-ray examination of the girl found that she was about 15 years of age. This is corroborated by Ex. PF, which is an entry in the admission register maintained at the Government Girls High School, Samnoli (wherein the girl was a student) and which is proved by the Head Master. That entry states the date of birth of the girl as 13th October 1957. There is yet another document, viz., Ex. PD, a certified copy of the relevant entry in the birth register which shows that Saroj Kumari who according to her evidence was known as Ramesh during her childhood, was born to Lajwanti wife of Daulat Ram on 11th November 1957. Mr Hardy submitted that in the absence of the examination of the officer/chowkidar concerned who recorded the entry, it was inadmissible in evidence. We cannot agree with him for the simple reason that the entry was made by the concerned official in the discharge of his official duties, that it is therefore clearly admissible under Section 35 of the Evidence Act and that it is not necessary for the prosecution to examine its author. From whatever angle we view the evidence, the conclusion is inescapable that Saroj Kumari was below 16 years of age at the time of the occurrence. Accordingly, we agree with judgments of the courts below and see no merit in this appeal which is dismissed.”

(14) It is not disputed in the present case that the petitioner had produced the original/certified copy of the Birth Certificate. As such, the same is admissible in evidence as per Section 35 of the Indian Evidence Act, 1872 and accordingly it was not required to prove the same by producing the Chowkidar or the official who entered the same."

14. Therefore, the entry cannot be rejected because its author was not examined and learned Trial Court had rightly held that the victim was born on 03.02.1998 and she was aged 16 and a half year in December 2014.

15. The victim stated on oath that she was studying in 8th Class in the year 2014. The accused called her in December 2014 to his home. The accused is related to her. She went to his home in good faith. When she went to the home of the accused, the accused bolted the door of the house and raped her. She tried to raise noise but the accused gagged her mouth. He threatened her not to disclose the incident to any person or else he would kill her. The accused told the victim to visit him whenever he would call her. The accused used to call her when no family member was present at home. She stopped mensurating after three to four months and told the accused about the same. The accused assured to bring some medicine for her but failed to do so. Subsequently, he asked her to marry someone else. She married some person and delivered a child in her parental home. She handed over the child to Halku Ram and his wife in adoption. She stated in her cross-examination that the accused had three children. She had two brothers, and two sisters, who were younger than her. She denied that there was a custom regarding the marriages between the relatives. She denied that she had long-standing love affair with the accused and had contracted marriage with him. She admitted that she had intimacy with the person, to whom she got married. She denied that she had filed a false case against the accused.

16. It was suggested to the victim that she had long standing love affair with the accused and that she had contracted marriage with him. These suggestions show that the relationship between the accused and the victim is not disputed. It was laid down by the Hon’ble Supreme Court in Balu Sudam Khalde v. State of Maharashtra, 2023 SCC OnLine SC 355 that the suggestion put to the witness can be taken into consideration while determining the innocence or guilt of the accused. It was observed: -

“34. According to the learned counsel, such suggestions could be a part of the defence strategy to impeach the credibility of the witness. The proof of guilt required of the prosecution does not depend on the suggestion made to a witness.

35. In Tarun Bora alias Alok Hazarika v. State of Assam reported in 2002 Cri. LJ 4076, a three-judge Bench of this Court was dealing with an appeal against the order passed by the Designated Court, Guwahati, in the TADA Sessions case wherein the appellant was convicted under Section 365 of the IPC read with Section 3(1) and 3(5) of the Terrorists and Disruptive Activities (Prevention) Act, 1987.

36. In the aforesaid case, this Court, while considering the evidence on record took note of a suggestion that was put to one of the witnesses and considering the reply given by the witness to the suggestion put by the accused, arrived at the conclusion that the presence of the accused was admitted. We quote with profit the following observations made by this Court in paragraphs 15, 16 and 17 as under:

“15. The witness further stated that during the assault, the assailant accused him of giving information to the army about the United Liberation Front of Assam (ULFA). He further stated that on the third night, he was carried away blindfolded on a bicycle to a different place and when his eyes were unfolded, he could see his younger brother Kumud Kakati (P.W.-2) and his wife Smt. Prema Kakati (P.W.- 3). The place was Duliapather, which is about 6-7 km. away from his village Sakrahi. The witness identified the appellant-Tarun Bora and stated that it was he who took him in an ambassador car from the residence of Nandeswar Bora on the date of the incident.

16. In cross-examination the witness stated as under: "Accused-Tarun Bora did not blind my eyes nor he assaulted me."

17. This part of the cross-examination is suggestive of the presence of accused Tarun Bora in the whole episode. This will clearly suggest the presence of the accused-Tarun Bora as admitted. The only denial is the accused did not participate in blind-folding the eyes of the witness nor assaulted him.”

37. In Rakesh Kumar alias Babli v. State of Haryana reported in (1987) 2 SCC 34, this Court was dealing with an appeal against the judgment of the High Court affirming the order of the Sessions Judge whereby the appellant and three other persons were convicted under Section 302 read with Section 34 of the IPC. While re-appreciating the evidence on record, this Court noticed that in the cross-examination of PW 4, Sube Singh, a suggestion was made with regard to the colour of the shirt worn by one of the accused persons at the time of the incident. This Court taking into consideration the nature of the suggestion put by the defence and the reply arrived at the conclusion that the presence of the accused namely Dharam Vir was established on the spot at the time of occurrence. We quote the following observations made by this Court in paragraphs 8 and 9 as under:

“8. PW 3, Bhagat Singh, stated in his examination-in- chief that he had identified the accused at the time of occurrence. But curiously enough, he was not cross examined as to how and in what manner he could identify the accused, as pointed out by the learned Sessions Judge. No suggestion was also given to him that the place was dark and that it was not possible to identify the assailants of the deceased.

9. In his cross-examination, PW 4, Sube Singh, stated that the accused Dharam Vir was wearing a shirt of white colour. It was suggested to him on behalf of the accused that Dharam Vir was wearing a shirt of cream colour. In answer to that suggestion, PW 4 said: “It is not correct that Dharam Vir accused was wearing a shirt of a cream colour and not a white colour at that time.” The learned Sessions Judge has rightly observed that the above suggestion at least proves the presence of accused Dharam Vir, on the spot at the time of occurrence.”

38. Thus, from the above, it is evident that the suggestion made by the defence counsel to a witness in the cross- examination if found to be incriminating in nature in any manner would definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.

39. Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. As a legal proposition, we cannot agree with the submission canvassed on behalf of the appellants that an answer by a witness to a suggestion made by the defence counsel in the cross-examination does not deserve any value or utility if it incriminates the accused in any manner.”

17. The victim delivered a child subsequently. Dr Vijay Kumar Yadav (PW13) obtained the blood sample of the child on 29.04.2016. He also obtained the blood samples of the accused and handed them over to the Police Official accompanying the baby and the accused. He denied in his cross-examination that he had not taken any blood sample on FTA Card. A denied suggestion does not amount to any proof and will not make his testimony suspect. Dr Riti (PW12) obtained the blood sample of the victim on 30.04.2016 and handed it over to the Police Official accompanying the victim after sealing it. She denied that she had not obtained the blood sample on the FTA Card or had not handed over the FTA Card to the police official. A denied suggestion does not amount to any proof and will not make her statement doubtful. The blood samples were sent to FSL Junga and the report (Ext. ‘PX’) was issued. It was specifically mentioned in the report that the seals on the parcel were intact and were tallied with the specimen of the seals sent along with the docket. This entry corroborates the prosecution's version that the blood sample remained intact till its analysis in the laboratory.

18. The result of the analysis shows that the victim was the biological mother and the accused is the biological father of the baby. It corroborates the version of the victim that the accused had raped her due to which, she delivered a child. Thus, the learned Trial Court had rightly relied upon the statement of the victim.

19. It was submitted that the victim had not made any complaint to the police, which shows her consent. It has already been found out above that the victim was a minor on the date of the incident and therefore, she was incapable of giving her consent.

20. The legislature enacted the POCSO Act to protect the children from themselves as well as from others, who are minded to prey upon them. (please see R v Corran [2005] EWCA Crim 192, para 6). The children are deemed to be incapable of consent and consent is no defence to the offences punishable under POCSO Act. Dealing with the plea of consent under the Sexual Offences Act 2003 (which is almost similar to the POCSO Act but for the age, which is 13 under the Sexual Offences Act, 2003 and 18 under the POCSO Act), Baroness Hale of Richmond held in R vs G [2008] UKHL 37 as under:

“44. Section 5 of the 2003 Act has three main features. First, it singles out penetration by the male penis as one of the most serious sorts of sexual behaviour towards a child under 13; second, it applies to such penetration of a child under 13 of either sex; and thirdly it calls this “rape". This is its novel feature but it is scarcely a new idea. The offences of unlawful sexual intercourse under sections 5 and 6 of the 1956 Act were often colloquially known as “statutory rape". This is because the law regards the attitude of the victim of this behaviour as irrelevant to the commission of the offence (although it may, of course, be relevant to the appropriate sentence). Even if a child is fully capable of understanding and freely agreeing to such sexual activity, which may often be doubted, especially with a child under 13, the law says that it makes no difference. He or she is legally disabled from consenting.

45. There are a great many good reasons for this: see, eg, R v Hess; R v Nguyen [1990] 2 SCR 906, per McLachlin J. It is important to stress that the object is not only to protect such children from predatory adult paedophiles but also to protect them from premature sexual activity of all kinds. They are protected in two ways: first, by the fact that it is irrelevant whether or not they want or appear to want it; and secondly, by the fact that in the case of children under 13, it is irrelevant whether or not the possessor of the penis in question knows the age of the child he is penetrating.

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54. In effect, therefore, the real complaint is that the appellant has been convicted of an offence bearing the label “rape". Parliament has very recently decided that this is the correct label to apply to this activity. In my view, this does not engage the Article 8 rights of the appellant at all, but if it does, it is entirely justified. The concept of private life “covers the physical and moral integrity of the person, including his or her sexual life” (X and Y v The Netherlands, para 22). This does not mean that every sexual relationship, however brief or unsymmetrical, is worthy of respect, nor is every sexual act which a person wishes to perform. It does mean that the physical and moral integrity of the complainant, vulnerable by reason of her age if nothing else, was worthy of respect. The state would have been open to criticism if it did not provide her with adequate protection. This attempts to do by a clear rule that children under 13 are incapable of giving any sort of consent to sexual activity and treating penile penetration as a most serious form of such activity. This does not in my view amount to a lack of respect for the private life of the penetrating male.

55. Even supposing that it did, it cannot be an unjustified interference with that right to label the offence which he has committed “rape". The word “rape” does indeed connote a lack of consent. But the law has disabled children under 13 from giving their consent. So there was no consent. In view of all the dangers resulting from underage sexual activity, it cannot be wrong for the law to apply that label even if it cannot be proved that the child was in fact unwilling. The fact that the appellant was under 16 is obviously relevant to his relative blameworthiness and has been reflected in the second most lenient disposal available to a criminal court. But it does not alter the fact of what he did or the fact that he should not have done it. In my view, the prosecution, conviction and sentence were both rational and proportionate in the pursuit of the legitimate aims of the protection of health and morals and the rights and freedoms of others.”

21. The argument that the minor had misrepresented her age and the accused was not liable was repelled as under:

“He also commits an offence if he behaves in the same way towards a child of 13 but under 16, albeit only if he does not reasonably believe that the child is 16 or over. So in principle, sex with a child under 16 is not allowed. When the child is under 13, three years younger than that, he takes the risk that she may be younger than he thinks she is. The object is to make him take responsibility for what he chooses to do”

22. Dealing with the dangers of premature sexual activities, the Court held that:

“Penetrative sex is the most serious form of sexual activity, from which children under 13 (who may well not yet have reached puberty) deserve to be protected whether they like it or not. There are still some people for whom the loss of virginity is an important step, not to be lightly undertaken, or for whom its premature loss may eventually prove more harmful than they understand at the time. More importantly, anyone who has practised in the family courts is only too well aware of the long-term and serious harm, both physical and psychological, which premature sexual activity can do. And the harm which may be done by premature sexual penetration is not necessarily lessened by the age of the person penetrating. That will depend upon all the circumstances of the case, of which his age is only one.”

23. Therefore, no advantage can be derived from the plea of consent.

24. Reena Devi (PW5) did not support the prosecution case.

However, she is the only witness to the identification made by the accused and the victim, which are otherwise inadmissible being hit by Section 162 of Cr.P.C. and will not affect the prosecution case adversely. Therefore, no advantage can be derived from the fact that this witness has not supported the prosecution case.

25. The testimony of the victim is creditworthy and is corroborated by the report of the DNA analysis. She was a minor, who was repeatedly raped by the accused. The incident came to light when she delivered a child, which was proved to be the child of the victim and the accused. Thus, the learned trial Court had rightly accepted her testimony and convicted the accused.

26. Learned trial Court had convicted and sentenced the accused for the commission of the offences punishable under Sections 5 & 6 of the POCSO Act and Sections 376 & 506 of IPC. Section 42 of the POCSO Act provides that where an act or omission constitutes an offence punishable under this Act and Section 376, inter alia, the offender found guilty of such an offence shall be liable to punishment only under this Act or under IPC as provides for punishment, which is greater in degree, therefore, the accused could not have been convicted and sentenced for the commission of offences punishable under Section 376 of IPC and Section 6 of the POCSO Act. Both these Sections provide for the imprisonment for life. Therefore, the accused could have been convicted under either of these provisions and the learned Trial Court erred in convicting and sentencing the accused of the commission of offences punishable under Section 376 of IPC and Section 6 of the POCSO Act. Accordingly, sentence imposed by the learned Trial Court under Section 376 deserves to be set aside.

27. Learned trial Court had sentenced the accused to undergo imprisonment for life for the commission of the offence punishable under Section 6 of the POCSO Act. The accused is related to the victim and has taken her advantage. Hence, the imprisonment for life is not excessive and no interference is required with the same.

28. The accused had threatened the victim to do away with her life. The victim could not narrate the incident to any other person due to the threat advanced by the accused. Hence, the sentence of 2 years imposed by the learned Trial Court is justified.

29. In view of the above, the present appeal is partly allowed and the sentence imposed by the learned Trial Court for the commission of an offence punishable under Section 376 of IPC is ordered to be set aside, whereas the conviction and sentence imposed by learned Trial Court for the commission of an offence punishable under Section 6 of the POCSO Act and Section 506 of IPC are upheld.