IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 465 of 2000 Date of decision: 22.09.2010 __________________________________________________________________ The State of H.P. .....Appellant. Versus Munnu Ram. .....Respondent. Coram The Hon'ble Mr. Justice R.B. Misra, J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? __________________________________________________________________ For the appellant: Mr. R.K. Sharma, Sr. Addl. Advocate General with Mr. Rajinder Dogra, Addl. Advocate General. For the respondent: Mr. Chaman Negi, Advocate, Amicus Curiae. R.B. Misra, J (Oral). Mr. Chaman Negi, Advocate, has been requested to assist this Court as Amicus Curiae on behalf of accused-respondent and he has kindly agreed to the same. Accordingly, Mr. Chaman Negi, Advocate, has assisted this Court on behalf of accused- respondent in response to the submissions made by Mr. R.K. Sharma, Sr. Additional Advocate General, for the appellant-State. 2. The present criminal appeal has come up for consideration after leave to appeal under Section 378 (3) of the Code of Criminal Procedure has been granted in reference to 1 Whether reporters of Local Papers may be allowed to see the judgment? -: 2 :- the impugned judgment and order dated 17.04.2000, passed by learned Sessions Judge, Shimla, District Shimla, Himachal Pradesh, in Sessions Trial No. 18-S/7 of 1999, acquitting the alleged accused under Sections 366, 366-A and 376 of the Indian Penal Code. 3. Prosecution case in brief is that on 22.11.1998, the victim-prosecutrix (name withheld), daughter of Gulab Singh, resident of village Kua, aged about 16 or 17 years, went to graze her cattle in a forest, named Kanda. The accused-respondent went there and asked the victim-prosecutrix to follow him, but the girl (victim-prosecutrix) refused to obey him, upon which accused- respondent caught hold of her by her arm and took her to his own house in village Sadhana. The accused-respondent kept the victim- prosecutrix at his house for a number of days and sexually assaulted her. When the victim-prosecutrix did not reach home, on suspicion, her father, Gulab Singh, searched for her. On the next day, father of the accused went to the house of the father of the victim-prosecutrix and told him that his daughter had been taken by his son and his son was interested in marrying her. The father of the victim-prosecutrix could not report the matter to the police because he did not have the money to pay bus fare for going to Nerwa. It took him 10-12 days to arrange the money and ultimately on 04.12.1998 he went to Police Post, Nerwa and lodged the report. Police took the victim-prosecutrix into custody and handed over the same to her father. The victim-prosecutrix was medically examined and was found to have suffered sexual intercourse. Her radiological age was assessed between 15 to 16 years. After investigation -: 3 :- accused-respondent was charged for the aforesaid offence and the case was committed to Session Court. 4. In order to prove its case, prosecution examined as many as eight witnesses, whereas, accused through his statement under Section 313 Cr.P.C. denied the prosecution case. 5. Prosecution examined PW-1 victim-prosecutrix, PW-2 Gulab Singh, father of the victim-prosecutrix, PW-3 Dr. S.P. Singh, who medically examined the victim-prosecutrix, PW-4 Dr. Usha Sharma, who assessed the age of the victim-prosecutrix radiologically, PW-5 Head Constable Krishan Nand, PW-6 Parkash Chand, SHO, PW-7 Dr. S.L. Chauhan and PW-8 Partap Chand S.I. 6. On scrutiny of the prosecution witnesses and the material on record, we notice that PW-1 victim-prosecutrix herself stated that her age is 17 years. In her endeavour to support the prosecution case, she has stated that she had seen the accused on the date of incident first time, as the accused-respondent was not known to her. She further stated that during her stay at accused's house for eight days, her father came with two police officials and took her back from the house of the accused. In cross-examination, PW-1 victim-prosecutrix has stated that the bua (father's sister) of accused's father is married to her father's Chacha, Durgu and another bua of accused's father is married to another Chacha of her father, named Kamlu. The above named two Chachas of her father used to live together for the last 15-16 years and accused often used to visit his father's buas, who are married to her father's Chachas. As per testimony of victim-prosecutrix, made in the cross- -: 4 :- examination, she has stated that she was taken by the accused to village Sudana through the path that passes through forest and the kept walking throughout the night and reached village of the accused next day in the morning. She further stated that many girls from her village Kua and adjoining village Kiran are married in village of the accused-respondent, however, nobody met her during her stay at the house of the accused-respondent and she did not disclose to anybody that accused-respondent had brought her by kidnapping her from the forest. For eight days she was kept in the house of the accused-respondent. The house of the accused- respondent consists of three rooms and the victim-prosecutrix used to cook meals at the house of the accused-respondent, though the accused-respondent was already married to another lady and his earlier wife was at her parents' place when the victim-prosecutrix stayed at the house of the accused-respondent for eight days. However, accused-respondent was saying that he would divorce his first wife and would not keep her at his place. PW-1 has further stated in her cross-examination that when she was at the house of the accused-respondent, father of the accused-respondent went to her father in village Kua for settlement of the victim-prosecutrix with the accused-respondent as his wife and the matter was settled for Rs. 10,000/-. The father of the accused-respondent was supposed to pay this amount, however, when such amount was not paid by the father of the accused-respondent, her father registered the case. PW-1 has also stated that when the matter was not settled between the parties, the case was registered and the victim- -: 5 :- prosecutrix was brought to Shimla. 7. PW-2 Gulab Singh, father of the victim-prosecutrix, in support of the prosecution case stated that accused-respondent was already known to him, who took his daughter without his consent or without throwing a hint to him that he was intending to have matrimonial alliance with his daughter. PW-2 has further stated that father of the accused-respondent had been visiting his village. PW-2 has stated that they tried to settle the matter, however, when the father of the accused-respondent did not agree to pay Rs. 10,000/- in lieu of her daughter, the report was lodged. 8. PW-3 Dr. S.P. Singh, Medical Officer, who conducted the medical examination of the victim-prosecutrix, found no injury on any part of the body of the victim-prosecutrix and in his opinion the radiological age of the victim-prosecutrix was between 15-16 years. As per the testimony of PW-2 himself, his daughter, victim- prosecutrix (PW-1) was 16 or 17 years. In any case, the victim- prosecutrix was in a stage of applying her own independent discretion and none of the prosecution witnesses have indicated anywhere that while being taken, the victim-prosecutrix had ever raised any alarm or made hue and cry or informed anyone of the village of the accused-respondent or informed any police official or any of the government authority. The victim-prosecutrix stayed for eight days with the accused-respondent without making any protest, hue and cry and she was staying in the house of the accused - respondent comfortably. Admittedly, in an endeavour to settle out the dispute for getting payment of Rs. 10,000/-, which -: 6 :- went in vain, the case was registered against the accused- respondent. These circumstances reveal that the victim-prosecutrix was a consenting party and willing party to accompany the accused- respondent and stayed comfortably in the house of the accused- respondent and the matter was reported to the police after a long elapse of time. Incident took place on 22.11.1998 and the FIR was lodged on 04.12.1998 that too without any proper explanation or rhyme and reason. In these circumstances, the conduct of the accused-respondent and the victim-prosecutrix indicate that the victim-prosecutrix willingly accompanied the accused-respondent, though on the allurement of marriage with the accused-respondent. 9. On analysis of the prosecution witnesses and the material on record, learned Sessions Judge has rightly arrived at the finding that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt against the accused-respondent and we do not find any scope of interference in the judgment of the trial court. Appeal being devoid of merit is dismissed. (R.B. Misra) Judge (V.K. Sharma) Judge 22nd September, 2010 (virender)