IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 116 of 1999 Date of Decision: 27.7.2010 State of H.P. …Appellant. Versus. Churamani and another …Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for Reporting? No. For the Appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the Respondent No.1: Mr. Sanjeev Kuthiala with Ms. Ambika Kotwal, Advocate. For the Respondent No.2: Mr. Sunil Mohan Goel, Advocate. Per Deepak Gupta, J.(Oral). 1. This appeal by the State is directed against the judgement dated 24/28.11.1998 delivered by the learned Sessions Judge, Kullu in Sessions Trial No. 12/1998 whereby he convicted the accused Churamani of having committed an offence punishable under Sections 376 IPC but acquitted both the accused Churamani and Ashok Kumar of having committed offences punishable under Sections 363 and 366 IPC. 2. The prosecution case, in brief, is that the prosecutrix at the relevant time was aged about 17 years. She was 2 studying in Jalugran High School in 10th Class. On 23.9.1997 at 9.30 a.m when she was going to school she was accosted by both the accused who at the point of a knife kidnapped her and took her in a van to Bhunter, then to Kullu, then to Ramshila and finally to the residence of accused No.1 at Devdhar. It was further alleged by the prosecution that at the residence of accused No.1 Churamani, she was raped by him and at that time Ashok Kumar was not present and he had gone to village. Babeli. 3. The accused Churamani has already undergone his sentence under Section 376 IPC and therefore, we are only considering the appeal in so far as the offences under Sections 363 and 366 IPC are concerned. Though the prosecution alleged that the prosecutrix was only 17 years old, the evidence led by the prosecution was not sufficient to hold that the prosecutrix was below 18 years. The prosecution failed to get the age of the prosecutrix proved by summoning any record relating to births and deaths register. As per the radiological report Ext. PA the age of the prosecutrix was about 17 years. It is well known that radiological age can vary upto 2 to 3 years on either side. The documents produced by the prosecution to support its version are school leaving certificate 3 (Ext.PN) and copy of the Pariwar Register (Ext.PT), according to which, the date of birth of the prosecutrix was 23.09.1980. However, nobody has come to prove who had got the age of the prosecutrix entered either in the school register or in the Pariwar Register. The learned trial Court was, therefore, justified in holding that the prosecution had failed to prove this fact. 4. Even otherwise, as far as the offence of kidnapping/ abduction is concerned, the occular evidence does not support the prosecution. Even according to the prosecutrix the only other person who was present at the time when she was abducted was Neema Devi, a classmate and friend of the prosecutrix. Neema Devi was examined in Court as PW-17. Her statement is that it was the prosecutrix who gave the signal to the accused and on the signal of the prosecutrix the accused came in a van and the prosecutrix accompanied them in the van. Though this witness has been declared hostile and subjected to detailed cross-examination, nothing material in favour of the prosecution has been extracted. As such, the version of the prosecutrix that she was abducted/kidnapped at the point of a knife cannot be accepted as a gospel truth. 4 5. Not only, has Neema Devi not supported the prosecution but the other material on record also indicates that the prosecutrix had accompanied the accused of her own choice. Admittedly, the path on which she was allegedly abducted was a public path. From there the prosecutrix was taken to Bhunter, which was about five kilometers away. From Bhunter she went to Akhara Bazar in Kullu. At Akhara Bazar they crossed the bridge and went to Ramshila, which is on the other side of the river Bias. At Ramshila they got a three- wheeler and went to village Devdhar. The prosecutrix had a number of opportunities to raise an alarm. No doubt, according to her, she was threatened and scared but here we are dealing with a case where the prosecutrix was taken through crowded public areas including bus stand and if she had not been willingly accompanying the accused she would have tried to run away or raised an alarm in the crowded area. 6. The driver of the van in which the prosecutrix was allegedly abducted was PW-5 Ramesh Kumar. His evidence also does not support the prosecution. According to him, the prosecutrix had willingly come with the accused and she was not abducted. 5 7. In view of the above discussion, we find that the learned trial Court rightly held that the prosecution had failed to prove that the prosecutrix had been kidnapped or abducted by the accused. The appeal is therefore, without any merit and the same is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. 27th July, 2010 ( Sanjay Karol ) ™ Judge.