IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 68 of 1998 Date of decision: 22.04.2010 _________________________________________________________________ State of H.P. ....Appellant. Versus Harinder Pal. .....Respondent. ________________________________________________________________ Coram Hon'ble Mr. Justice Surjit Singh, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. _________________________________________________________________ For the appellant: Mr. Rajinder Dogra, Additional Advocate General. For the respondent: Mr. Karan Singh Kanwar, Advocate. _________________________________________________________________ V.K. Sharma, J (Oral). On acquittal of the respondent for the offences under Sections 363, 366 and 376 I.P.C. by the learned Sessions Judge Sirmour District, at Nahan, H.P., the present appeal under Section 378(3) of the Code of Criminal Procedure, 1973 (the Code) has been preferred by the State. In brief, the prosecution case was that the prosecutrix (PW-10) (name withheld) had appeared in her matriculation examination in the year 1995. On 6th June, 1995, she had gone to the school at Paonta Sahib to know her result. On declaration of the result she found that she was placed in compartment. While she was coming back from the school, the respondent is stated to have met her on the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. :-2-: way. He was known to her earlier. According to the prosecutrix, he had been making advances towards her and was impressing upon her to inculcate a relationship with him. In order to make believe that there was no compulsion for the prosecutrix to accompany the respondent, she stated that he held out that he had some photographs of her with him. Such statement appears to have been made for the reason to suggest that there was an element of black mailing on the part of the respondent to make the prosecutrix agree to accompany him. Be it as it may be, the prosecutrix accompanied the accused. According to her, she was taken to Devi Nagar, Paonta Sahib. There they stayed upto 1 p.m. Thereafter the respondent is stated to have gone out after locking the prosecutrix in the tenanted room hired by him saying that he was going to bring food for her. The respondent returned to the room at 4:00 p.m., but without any food. Thereafter he offered her tea and again left her in the room which was locked from outside. Then he came back at 7:30 p.m. Further narrative is to the effect that she was then sent to the Petrol Pump belonging to one Baweja in a rickshaw driven by one Budh Ram. The respondent also followed him on a bicycle. In the chain of narrative, the prosecutrix stated that thereafter she was taken by the respondent to Kurukshetra. There she was made to stay at the house of his sister, who arranged the services of some advocate, apparently with a view to arrange the marriage of the prosecutrix with the respondent. However, the advocate declined to oblige saying that since the prosecutrix was below the marriageable age, that is, 18 years, legally the marriage could not be performed. The allegations levelled by the prosecutrix against the respondent are also to the effect that he had subjected her to forcible act of sex at Moginand :-3-: and Kurukshetra. It was against the above backdrop that the prosecutrix further stated that the respondent brought her back to Nahan where she was lodged in the house of PW Kewal Singh Saini. However, in the meantime, the father of the prosecutrix PW-3, Shri Shyam Lal accompanied by the police arrived there and she was delivered to his custody. As per school record date of birth of the prosecutrix is stated to be 14th August, 1978. The I.O. has admitted that he did not take any steps to procure her school record of the first instance i.e. the primary school in which she was admitted for the first time. The father of the prosecutrix, Shri Shyam Lal, appeared as PW and has stated in the last lines of chief examination that the prosecutrix was born on 4th June, 1978. However, the fact remain that the prosecution has not made any effort to collect any evidence as to the birth of the prosecutrix either from the local authority or any hospital etc. where she was born. In such circumstances, since even as per his own reckoning, PW-3, Shri Shyam Lal, father of the prosecutrix has stated that she was born on 4th June, 1978, his unequivocal statement in the facts and circumstances of the case be taken on its face value for the reason that though according to him she was born at Paonta Shib which forms part of a Municipal Committee, one of the I.Os, PW-11, S.I. Rahul Sharma, has stated that he could not obtain birth record of the prosecutrix from the local authority, as according to her father, she was stated to have been born at Yamuna Nagar, a town in the State of Haryana, a neighboring state, bordering District Sirmour, where the parties were residing at the relevant time and the occurrence is also stated to have been taken place. :-4-: With the date or birth of the prosecutrix being 04.06.1978, on the date of occurrence, 6th June, 1995, she had already completed the age of 17 years. A combined and harmonious reading of the evidence on record would go to show that there was no active participation on the part of the respondent in making the mind of the prosecutrix to accompany him and thus taking or enticing her away from the legal guardianship of her father, PW-3, Shri Shyam Lal, except the self serving statement of the prosecutrix, which on the face of it appears to be an improvement made by her in relation to her previous statement Ex. DA made to the police under Section 161 of the Code with which she was duly confronted by the defence and she was found to have been contradicting and improving upon her earlier version. Furthermore, the distance between Paonta Sahib and Kurukshetra and then back to Nahan is a quite long and considerable distance. However, there is no evidence to the effect that during all this time she either resisted the advances made by the respondent or took any other cogent step either to raise hue and cry or alarm to get out of the influence of the respondent. On the way to all these places she must have passed many busy places frequented by general public such as bus stops or railway stations etc. There must be other passengers in such means of transport, but there is even no murmur on her part that she ever tried to seek help from anyone. All these acts of her would go to show that all through she was a willing party to go with the respondent and submitted herself to all such alleged acts, the ordeal of which she had to undergo, as stated by her. The outcome of the above discussion is that insofar as the offence under Section 376 is concerned, we have no doubt in our mind :-5-: that the learned trial judge has arrived at absolutely right conclusion that if at all there was physical intimacy between the prosecutrix and the respondent, she was a willing party to the same. It has already been held that she was over the consenting age at the relevant time. Insofar as other offences viz. Sections 363 and 366 are concerned, the learned trial judge has placed reliance upon the law laid down by this court in Trilok Chand vs State of H.P., 1996(1) Shimla Law Cases, 187, whereby it was held that in a case of like nature if the prosecutrix is above the age of consent and slightly below the age of discretion (18 years) and from the attendant facts and circumstances of the case and on an overall view of the matter, if an interference is deducible that minor prosecutrix had left the protective umbrella of her natural guardian out of her free and independent volition and the respondent had not taken any active part in such exercise, it would not be safe to return a guilt of finding under these Sections of the Penal Code. For the reasons enumerated above, we are of the considered view that there is no scope for any interference with the impugned judgment dated 16th July, 1997 at the hands of this court. In the result, the appeal fails and is accordingly dismissed. (Surjit Singh) Judge (V.K. Sharma) Judge 22nd April, 2010 (virender)