IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.380 of 1998 Decided on : May 15, 2010 State of H.P. …Appellant. Versus Raghubir Singh and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. Rajinder Dogra, Additional Advocate General, and Mr. Ramesh Thakur, Assistant Advocate General. For the Respondents: Mr. Virender S. Rathore, Advocate. Surjit Singh, J (Oral) Acquittal of respondents Raghubir Singh, Sudesh Kumar and Pratap Chand, ordered by the trial Court vide judgment dated 19th May, 1998, has been challenged, in the present appeal, by the State. Respondents were charged with and tried for offences, under Sections 363, 376, read with Sections 109 and 34 of the Indian Penal Code, by the Sessions Court. 2. Accusation against the three respondents was that they kidnapped the prosecutrix, then aged about 16 years, with intent to force her to have sexual intercourse with one of them, namely respondent Raghubir Singh, and after the act of kidnapping she was subjected to sexual intercourse by said Raghubir Singh. Charge against Whether reporters of the local papers may be allowed to see the judgment? …2… respondent Raghubir Singh was under Section 363 and 376 of the Indian Penal Code, while against respondent Sudesh Kumar under Section 363, read with Section 34 of the Indian Penal Code, and against respondent Pratap Chand, under Sections 109 and 376 of the Indian Penal Code. 3. Prosecutrix lived with her mother and three siblings in a village, falling under the jurisdiction of Police Station Shahpur. Her father Ashok Kumar (PW-5) was employed at Jallandhar. On 19th April, 1996, when the prosecutrix and her two sisters and brother Ajay Singh (PW-7) were present at their house and their mother had gone to enquire after the health of some close relative in a different village, respondent Raghubir Singh went there and told PW-7 Ajay Singh, brother of the prosecutrix that his (respondent’s) mother Gita Devi, who is the sister of prosecutrix’ mother’s mother, was sick and the prosecutrix be sent with him, as his mother was remembering her. Believing the respondent, prosecutrix went with him. When she reached respondent Raghubir Singh’s house, Gita Devi was found alright. When the prosecutrix asked her why she had been called, Gita Devi told her that she had not called her. Prosecutrix spent the night at Gita Devi’s place and next day she told Gita Devi that she wanted to go to Dharamshala to enquire about her result. Respondents Raghubir Singh and Sudesh Kumar told her that they also …3… wanted to go to Dharamshala and she could accompany them. They started by a Jeep, which respondent Raghubir Singh used to ply, as taxi, those days. When the vehicle reached a place called Gaggal, from where there is a diversion for Dharamshala, the vehicle was turned not towards Dharamshala, but in the direction of Kangra Town. Prosecutrix asked, as to where she was being taken. She was threatened, by show of a knife, that she will be done to death, in case she made any enquiries or objected to her being taken in a different direction. When the vehicle reached a place called Ranital, beyond Kangra, respondent Raghubir Singh alighted from it. Prosecutrix was also made to deboard it. Vehicle was taken back by respondent Sudesh Kumar. Prosecutrix was taken by a Bus by respondent Raghubir Singh to Mohali Town, where she was kept in a room, at a considerable distance from the cluster of Abadi, for 15-16 days and was repeatedly subjected to sexual intercourse, without her consent and against her will. 4. When the prosecutrix was at Mohali, for 15-16 days, respondent Pratap Chand, who is the father of respondents Raghubir Singh and Sudesh Kumar, went there and told respondent Raghubir Singh to leave Mohali Town and to go to some other place, as the police had obtained a warrant of arrest against him. Respondent Raghubir Singh …4… then took the prosecutrix to Ludhiana and kept her in a room for another 15-16 days and raped her there also. 5. When the prosecutrix did not return home for 2-3 days, her mother Kamlesh Kumari (PW-6) went to her mother’s sister Gita Devi’s place to enquire as to why the prosecutrix had not returned. Gita Devi told PW-6 Kamlesh Kumari that the prosecutrix had eloped with her son Raghubir Singh (respondent). Kamlesh Kumari then searched for the prosecutrix for 3-4 days and ultimately sent a telegram to her husband at Jallandhar. Finally, report was lodged with the police by the father of the prosecutrix, PW-5 Ashok Kumar, on 23rd May, 1996. 6. After the registration of the case, PW-5 Ashok Kumar, the father of the prosecutrix, got a clue that the prosecutrix had been kept by respondent Raghubir Singh in Ludhiana. So, he went to Ludhiana and found the prosecutrix in a house. Respondent Raghubir Singh, on seeing Ashok Kumar, the father of the prosecutrix, slipped away. Prosecutrix was brought back to his place by her father PW-5 Ashok Kumar. 7. On 19th May, 1996, prosecutrix was produced before SHO Shahpur, where FIR had been lodged earlier. Police got her medically examined. PW-1 Dr. (Mrs.) Vipin Sharma conducted medical examination. She opined that there was nothing on record, suggesting that the …5… prosecutrix had not been raped. Respondent Raghubir Singh was also got medically examined and it was found that he was capable of performing sexual intercourse. 8. On completion of investigation, report, under Section 173 of the Code of Criminal Procedure, was filed. Case was committed by the concerned Judicial Magistrate to the Sessions Court and the Sessions Court charged the respondents, as aforesaid. 9. Respondent Sudesh Kumar has died during the pendency of the appeal. So, the appeal as against him abates. 10. We have heard the learned Additional Advocate General as also the learned counsel representing the respondents and gone through the record. 11. Date of birth of the prosecutrix is alleged to be 5th February, 1980. This date is recorded in School Leaving Certificate Ex. PW-16/A, which has been proved by PW-16 Kamla Sharma, Head Teacher of the School, last attended by the prosecutrix. Birth entry of the prosecutrix in the Register of Births and Deaths has not been proved and no explanation for not proving the said entry has been put forward, even though according to the testimony of PW-5 Ashok Kumar, the father of the prosecutrix, birth of the prosecutrix had been got entered in the Register maintained by the Panchayat. …6… 12. Skeletal age of the prosecutrix was got determined during investigation. PW-11 Dr. J.R. Azad, who X-rayed the epiphysis of the prosecutrix and gave the opinion, testified that the age of the prosecutrix was between 17 and 19 years. His written opinion to this effect is Ex. PW-11/A, which is based on the reading of skiagrams Ex. P-4 to Ex. P-9. 13. Now, when the primary evidence, with respect to the age of the prosecutrix, i.e. the entry in the Births and Deaths Register, has been withheld and the entry in the School record about the date of birth of the prosecutrix cannot be taken to be authentic, in the absence of any corroborative evidence, there is no escape from the conclusion that the age of the prosecutrix was what PW-11 Dr. J.R. Azad has determined, on the basis of epiphysis test, which is between 17 and 19 years. Court has to presume it to be 19 years, because when two views are possible, the one favourable to the accused is required to be taken. 14. Now, if the age of the prosecutrix was 19 years, charge of kidnapping cannot stand. Otherwise also, it appears from an overall reading of the testimony of the prosecutrix and her conduct that this is not a case of kidnapping or abduction, but one of elopement of a young major girl with a man of her liking. …7… 15. Prosecutrix, per her own testimony, travelled with respondent Raghubir Singh, by a Bus, on 20th April, 1996, from Ranital to Mohali. Several passengers are supposed to have travelled by that Bus. She could have very easily raised alarm. After alighting from the Bus, the prosecutrix and respondent Raghubir Singh went to a house in Mohali, by a Rickshaw. Mohali is a big township. Several persons were supposed to have been going along the road, by which the prosecutrix went with respondent Raghubir Singh, by a Rickshaw, to a house at Mohali. She did not raise any alarm nor did she inform anybody on the way. She remained with him for 15-16 days at Mohali, where, according to her own testimony, respondent Raghubir Singh had been having sexual intercourse with her almost daily. It cannot be believed that she remained with the respondent for such a long period, under some threat, pressure or fear. 16. When stay at Mohali became unsafe, respondent Raghubir Singh took the prosecutrix to Ludhiana. Prosecutrix herself says that she was taken to Ludhiana only after respondent Pratap Chand, father of respondent Raghubir Singh, came to Mohali and told respondent Raghubir Singh that police was after him. Again, while going to Ludhiana from Mohali, prosecutrix did not inform anybody on the way. She stayed with respondent Raghubir …8… Singh for another 15-16 days at Ludhiana, in a locality where 3-4 houses adjoined the house where they lived. She, per her own statement, did not inform any of the occupants of those 3-4 houses or anybody else. 17. Prosecutrix returned to the native place only when her father went to Ludhiana and saw her with respondent Raghubir Singh and that too when respondent Raghubir Singh ran away, which amounted to deserting or abandoning the prosecutrix. In view of the abovestated position, we do not think this to be a fit case for interfering with the judgment of acquittal. Hence, the appeal is dismissed. ( Surjit Singh ), J May 15, 2010(sd) ( Rajiv Sharma ), J