IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.140 of 1994 Date of decision: February 29, 2008 State of H.P. …Appellant. Versus Roshan Lal and another …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. P.K. Sharma, Addl. Advocate General with Mr. P.M. Negi, Dy. Advocate General. For the Respondents : None. Surjit Singh, Judge( Oral ) Respondents were tired for offences of kidnapping and rape, on police report, by the Sessions Court and were finally acquitted. 2. Allegations against the respondents were that in the months of August/September, 1989, mother of the prosecutrix PW-3 Simro Devi was approached by respondent Sauni Devi to send her daughter to her (Sauni Devi’s) house to sleep with her in the night as her husband had gone away. PW-3 Simro Devi agreed to the proposal of respondent Sauni Devi and the prosecutrix then started sleeping at the house of Sauni Devi in the same village and continued to do so for 1 ½ month. During this period, respondent Roshan Lal once entered the bed of the prosecutrix and tried to have sexual intercourse with her. When the prosecutrix, who was examined as PW1 in the trial Court, raised noise, respondent Sauni Devi allegedly told her to keep quite as Whether reporters of the local papers may be allowed to see the judgment? …2… the respondent Roshan Lal, her grand son, would marry her. Thereafter respondent Roshan Lal had had sexual intercourse with the prosecutrix not only on that night, but also on a few subsequent nights. Prosecutrix conceived as a result of sexual intimacy with the respondent. When her belly bulged out and her mother enquired, the prosecutrix narrated the chain of events to her. Father of the prosecutrix had not been at home those days, as he had gone to remote area in Kinnaur District. When he returned and was apprised of the situation, he convened a meeting of the respectables of the community. The respectables, on ascertaining that respondent Roshan Lal was responsible for the pregnancy of the prosecutrix, asked him to take the prosecutrix to his house and keep her as his wife. Respondent Roshan Lal agreed to it. On reaching home he started pressurising the prosecutrix to abort. When the pressure was mounted, the prosecutrix left the respondent’s place and went to her father’s house. 3. Matter was reported to the police. Police filed cancellation report. When notice of cancellation report was sent to the father of the prosecutrix, he objected to the cancellation. Court then made an inquiry and took cognizance of the matter. During the course of trial, prosecution examined the prosecutrix, her father Shonki Ram (PW2), her mother Simro Devi (PW3), besides formal witnesses. 4. Prosecutrix in her testimony as PW1 even though testified that respondent Sauni Devi asked her not to raise any noise when respondent Roshan Lal entered her bed and started molesting her, this part of her testimony appears to be an afterthought and an improvement, because in the statement made by her to the police, with which she was duly confronted, she did not state this fact. She also …3… admitted that she had been engaged to one Ramesh about five-six years earlier and if it is so, the question of her having not made noise on account of the alleged assurance by respondent Sauni Devi that she would be married to respondent Roshan Lal, would not arise. She further admitted in her cross-examination that she had been in love with respondent Roshan Lal. All this shows that the prosecutrix was a consenting party to the sexual intercourse. 5. Next question is whether the prosecutrix was past consenting age. Prosecution proved on record a school leaving certificate, per which date of birth of the prosecutrix is 4.8.1974. Father of the prosecutrix testified that birth of the prosecutrix is not entered in any Panchayat record because she was born in a jungle in Rajgarh area where he was working as a wood cutter during that period. He stated that he got his daughter admitted to the school in the year 1980 and got date of her birth recorded in the school record. In the statement under Section 161 Cr. P.C, father of the prosecutrix got her age recorded 18-19 years. He was duly confronted with the said statement under Section 161 Cr. P.C. The skeletal age of the prosecutrix was opined to be 17 to19 years by the Radiologist, per report Ext.P-19. The report is dated 26.3.1990, meaning thereby that at the time of the occurrence, the prosecutrix was 16 ½ years to 18 ½ years old, per opinion of the Radiologist. 6. Mother of the prosecutrix PW-3 Simro Devi was examined in the Court on 8.9.l993. She stated that she was married for more than 25 years prior to her making statement in the Court and that she gave birth to the first issue (a male) three years after the marriage and the prosecutrix was her second issue, who was born 1 ½ year after the birth of the first issue. Now even if we assume that the mother of the …4… prosecutrix was married only 25 years prior to making the statement in the Court (even though she says that she was married more than 25 years back), the age of the prosecutrix at the relevant time comes to more than 16 years. Thus, from the prosecution’s own evidence, it appears that the prosecutrix had crossed the consenting age of 16 years at the time of the alleged occurrence. 7. It has been conceded on behalf of the State that this is not a case of kidnapping. 8. As a result of above discussion, we hold that the appeal is without merit. The same is, therefore, dismissed. ( Surjit Singh ), J February 29, 2008 (ss) ( Surinder Singh ), J