IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 745 of 1996. Decided on: 18.5.2010. ___________________________________________________________ State of H.P. … Appellant. Versus Pawan Kumar and others. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Rajinder Dogra, Addl. Advocate General. For respondents No. 1 & 3 : Mr. Ravinder Thakur, Advocate. For respondents No. 2 & 4 : Mr. Tarlok Chauhan, Advocate. ___________________________________________________________ R.B. Misra, J. (Oral). The present criminal appeal has arisen after leave to appeal has been granted, under Section 378 (3) Cr.P.C., in reference to the impugned judgment, dated 13.8.1996, passed by the Sessions Judge, Solan, HP in Sessions Trial Nok. 7-NL/7 of 1995, acquitting the respondents-accused for the alleged offences, under Sections 363, 366, 376 and 120-B IPC. 2. In order to appreciate and to deal with the criminal appeal, it is necessary to give the factual background of the case that alleged accused Pawan Kumar has faced trial for the offences under Sections 363, 366 and 376 IPC for alleged kidnapping and sexually assaulting the prosecutrix. Smt. Mamta wife of Shri Rakesh Kumar, i.e. sister of Shri Pawan Kumar was charged for the alleged offence under Section 366 IPC read with Section 120-B 1 Whether reporters of the local papers may be allowed to see the judgment? 2 IPC. Rakesh Kumar husband of Smt. Mamta and brother-in-law of Pawan Kumar has faced trial for the offences under Sections 366 and 120-B IPC. Sham Sunder alleged accused was charged for the offences under Sections 366 and 363 IPC. 3. According to the prosecution, Sunder Lal is resident of village Dolowal and the prosecutrix is his daughter, who has studied up to 4th standard, thereafter, she gave up her studies. In the month of September, 1994, she was stated to be below 18 years of age. 4. According to the prosecution, on September 1, 1994, the prosecutrix was staying at the house of her father. The accused Shri Pawan Kumar is resident of an adjoining village called Hardonmo. Kumari Suman and accused Pawan Kumar wanted to marry each other. But they suspected that the parents of Kumari Suman the prosecutrix will not agree to their marriage. Therefore, on September 1, 1994 accused Mamta went to the house of Kumari Suman. The parents of Kumari Suman were not present at the house. Kumari Suman accompanied Mamta from the house of her father on the pretext that she was going to egest. When Kumari Suman and accused Mamta reached at a distance of about 30 meters away from the house of the parents of Kumari Suman then she met accused Pawan Kumar who was being accompanied by accused Sham Sunder. Alleged accused Smt. Mamta returned from that place. The prosecutrix Kumari Suman accompanied Pawan Kumar and Sham Sunder to Nalagarh. From village Dolowal, all the three above named persons came to Nalagarh. They stayed for a while at Nalagarh Bazar. At Nalagarh alleged accused Rakesh Kumar met them. Thereafter, alleged accused 3 Pawan Kumar, Sham Sunder, prosecutrix Kumari Suman and Rakesh Kumar went to Saharanpur. Shri Sham Sunder was doing some job at Saharanpur. He had hired a room there. The accused being accompanied by the prosecutrix Kumari Suman reached at Saharanpur on September 2, 1994. They were followed by Smt. Mamta and Sham Sunder. The wife of Shri Sham Sunder, Smt. Deepa was already residing at Saharanpur. On September 3, 1994, they contacted a lawyer for getting married. The accused and the prosecutrix paid Rs. 500/- to the lawyer as his fees for getting them married. The lawyer at Saharanpur gave them a paper and told that they have been married. 5. After performance of marriage, as indicated above, it appears that Shri Sham Sunder, his wife Smt. Deepa, Shri Rakesh Kumar and his wife Smt. Mamta went to sleep on the roof of the house in which Shri Sham Sunder had hired a room. The alleged accused and the prosecutrix slept inside the room as such, during the stay in night, the prosecutrix was sexually assaulted by Pawan Kumar. On September 4, 1994, room of Shri Sham Sunder was raided by the police party accompanied by the father of the prosecutrix, Shri Rattan Lal, President of Gram Panchayat, Dolowal and Sanjay Kumar. The prosecutrix was recovered and was handed over to her father Sunder Lal. The mother of the prosecutrix Smt. Nirmala Devi had lodged report at the Police Station,Nalagarh on 2.9.1994. Accordingly, FIR No. 120/1994 was registered. 6. During investigation, it was noticed that the prosecutrix was below 18 years, as such, on investigation, the charges as indicated above were framed against the alleged accused and on completion of investigation, final report was 4 presented on 4.3.1995 to the Court of Sub Divisional Judicial Magistrate, Nalagarh. As the case was triable by the Sessions Court, therefore, the same was relegated to the trial Court. 7. In order to prove the case, the prosecution examined as many as 13 witnesses, whereas, the alleged accused shown their innocence and have denied the charges. 8. On analysis of material on record and prosecution witnesses, we noticed that endeavour has been made on the part of the prosecution to prove that the age of the prosecutrix was below 18 years. Relying on the prosecution witnesses, Dr. B.K. Bhardwaj (PW-1), who conducted radiological test on the prosecutrix, stated that the prosecutrix was in between 15 to 17 years, whereas, Dr. Punam Jain (PW-3) on the analysis of dental test has indicated that the age of the prosecutrix to be below 18 years. Dr. Punam Jain (PW-3) ascertained the age of the prosecutrix on February 3, 1995 by examining her teeth and opined, vide certificate Ext. PE/1 that the prosecutrix was between 17-21 years, whereas the prosecutrix in her affidavit sworn in at District Saharanpur has stated her age to be 20 years. The radiological age, dental age and the age divulged by the prosecutrix at the first instance show that she was above 20 years on September 1, 1994. 9. On analysis of prosecution witnesses and material on record, the learned Sessions Court has arrived at a finding that the prosecution has not been able to prove the age of the prosecutrix to be below 18 years as the findings arrived at by the learned Sessions Court that the age of the prosecutix was about 20 years on September 1, 1994 and she had gone with Pawan Kumar the 5 alleged accused at her own sweet will. On analysis of prosecution witnesses and material on record, we also notice that though the controversial version has come to write about exact age of the prosecutrix, yet we cannot say that the findings that the prosecutrix was about and above 21 years of age, cannot be disbelieved keeping in view the facts and circumstances and conduct of the prosecutrix. Prosecutrix was taken to different places along with the main alleged accused and she did not make hue and cry. Medical report has also indicated that though she had been sexually assaulted, however, not against her will. 10. After careful scrutiny of the impugned judgment passed by the learned Sessions Judge, we also infer that there is no scope of any interference as the prosecution has failed to prove the case beyond reasonable doubt, the prosecutrix being above 18 years of age had accompanied the main alleged accused and were married and thereafter, spent good time with the main accused, as such, the alleged accused cannot be said to be guilty of the offences under Sections 363, 366, 376 and 120-B IPC. We find no merit in the present appeal and the same is dismissed. (R.B. Misra) Judge. (V.K. Sharma) Judge. May 18, 2010. (cr)