1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.189 of 2000 Decided on December 23, 2010 State of H.P. …Appellant. VERSUS Dhanvir Singh ….Respondent Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge Whether approved for reporting?1 For the Appellant: Mr.R.K. Sharma, Sr. Addl. AG with Mr. Rajinder Dogra, Addl. AG For the Respondent: Mr. Vineet Vashishta, Advocate. R.B.Misra, Judge The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure, in reference to judgment dated 27.10.1999 passed by learned Sessions Judge, Sirmaur District at Nahan in Sessions Trial No. 19-ST/7 of 1998, thereby acquitting the respondent/accused for the offences under Sections 363/366/376 of Indian Penal Code. 2. The prosecution case is that victim-prosecutrix, alleged to be minor, had gone to see ‘Bishu Mella’ at Haripur Dhar on 2.5.1997, from where she did not return. When her father, Amar Singh, went to Haripurdhar to locate her, he noticed that the victim- Whether the reporters of the local papers maybe allowed to see the judgment? 2 prosecutrix was found sitting in the barber shop of accused and from 3.5.1999 said shop was closed. In that respect, a case was registered against the accused/respondent on 6.5.1997 and in that sequence, accused was arrested on 13.5.1997 and on disclosure, victim-prosecutrix was recovered from the house of his father’s aunt Smt. Gumanu Devi in village Bali, PO Rajpur the same day. After completion of investigation, accused was charged of the aforesaid offences. 3. In order to prove its case, prosecution has examined as many as 7 prosecution witnesses, whereas through his statement under Section 313 Cr.PC accused denied the same and has stated that the victim-prosecutrix came to him for marriage and lived with him of her own, however, at the instance of police, she was recovered from the house of her father’s aunt Smt. Gumanu on 13.5.1997. 4. Prosecution examined PW 1, Dr (Mrs )Uvi Barwal, PW-2, Dr. G. Narang, PW-3 Smt. Durga Devi, PW-4 Sh.Amar Singh, PW-5 Sh.Narotam Datt, PW-6 ASI Sh. Bansidhar and PW- 7 S.I. Deep Ram. 5. PW-1 Dr. (Mrs).Uvi Barwal has stated that she had medically examined the victim prosecutrix, however, opined that the victim-prosecutrix was habitual of sexual intercourse. PW-2 G. Narang, Chief Medical Officer examined the X-ray and conducted radiological test and indicated that the victim-prosecutrix was above 14 years, but below 17 years. 6. PW-3, victim-prosecutrix stated that she has six brothers and sisters. Three are elders to her and two are younger 3 to her. On 2.5.1997, she was 14 years old when she went along with Saty Devi to see Mella in Haripurdhar. From there Satyadevi came back to village , whereas she stayed in the house of Kaushalya Devi, the sister of the accused at Haripurdhar as she knew her, at that time, accused came but neither told l anything nor did ‘Bura Kaam’ with her. The accused was residing with his sister Kaushalya Devi. On 3.5.1997 accused along with his brother, took PW-3 victim-prosecutrix from Kaushalya Devi’s house to Renuka Devi’s temple and committed sexual intercourse with her against her wishes in a separate room. Accused used to commit the sexual act with her for the last one year against her wishes. The next day, accused took her to his house and also the place of his sister and then to the house of Gumanu, from where PW-3 was recovered . 7. PW-3 further stated in her cross examination that Haripurdhar is at a distance of 13 Kms from her village. The Mella lasted for three days and PW-3 went to see the fair on 3.5.1997 and on the same day she went to the house of Kaushalya Devi from where she accompanied on the same evening with the accused to the quarter of Kaushalya and while being taken, PW-3 did not raise any alarm and came on foot up to Sangrah. Haripurdhar is well populated place and while coming from Haripurdhar she also did not raise any alarm when she went to Renuka temple in a truck, there also she neither raised any alarm nor told the truck driver or the cleaner that the accused was taking her forcibly. PW-3 has very categorically stated that she did not disclose to anybody much less to the Poojari that the accused was taking her forcibly. In both the villages there were so many 4 persons and also the relations of the accused, but she did not tell anybody that if the accused had brought her forcibly. 8. PW-3 has also stated in cross examination that when accused took her from the house of his sister Kaushalya Devi at Haripurdhar to his room and thereafter to his house to Rajpur and then to the house of his father’s aunt Gumanu Devi, she neither raise any alarm nor told any person about the accused taking her forcibly. She has also admitted that the accused had not given her any allurement, much less about the marriage. She has also admitted that at Renuka Ji, the house of the accused at Rajpur and in the house of Gumanu in village Bali their families along with male members had been residing, but she had not disclosed the fact that the accused has brought her forcibly or that he committed sexual acts on her. 9. Amar Singh (PW-4), father of the victim prosecutrix has stated in the cross examination that the accused had been visiting his house since two years but had denied if he wanted to marry with the victim prosecutrix or the accused had been bringing the articles in their house. PW-4 has admitted that the date of birth of the victim prosecutrix was recorded in the Panchayat at village Jarwa. 10. On analysis of the prosecution witnesses and materials on record, we notice that the victim prosecutrix had accompanied the accused on 3.5.1997 from Haripurdhar firstly to Renuka, then to village Rajpur, thereafter to the house of Gumanu in village Bali from where she was traced and recovered on 13.5.1997 and in cross examination, PW-3 has stated that she 5 accompanied the accused and accused had not given any allurement to her and during all this period, she has not raised any alarm. We also notice that during the period the victim prosecutrix accompanied the accused, she appeared to be happy and she also made to travel at several places and had occasion to meet several persons. However, she neither raised any alarm nor disclosed to anybody that she has been sexually assaulated or has been brought against her wishes. Facts and circumstances reveal that the victim prosecutrix was a consenting party throughout. 11. Dr. G Narang (PW-2) has assessed the age of prosecutrix between 14 to 17, whereas in the school leaving certificate Ex P-7, her date of birth is mentioned as 13.6.1981 and as per the testimony of PW-4, Amar Singh, father of the victim prosecutrix , her date of birth was duly got registered in Panchayat register, however, the same was not placed on record. Even ASI Bansidhar (PW-6) and SI Deep Ram (PW-7) have stated that they did not try to take the birth entry of the victim prosecutrix from the Panchayt Register. However it cannot be said that the victim prosecutrix was minor when occurrence took place on 3.5.1997 in view of the observations made by the Division Bench of this Court in State of HP Vs. Rajesh Kumar & anr (Criminal Appeal No. 712 of 1996) decided on 23rd June, 2010, para-30. “30 We are of the considered view that the victim / prosecutrix even if not completed 18 years of age, but is capable of applying her wisdom, discretion and mind independently and is understanding the consequences of accompanying a person with whom she became friendly and had fallen in love with him and if has voluntarily accompanied such accused 6 person at her own sweet will without any protest and without making hue and cry and took active part in going with the accused, even if was sexually assaulted by such accused person then if scrutiny of facts and circumstances indicate that the victim / prosecutrix had enjoyed good time with accused without showing resistance and without any endeavour to escape from the company of such accused and victim / prosecutrix was a willing and consenting party of the company of accused at the relevant time, then the victim / prosecutrix cannot be said that she had been enticed and kidnapped from her lawful guardian and cannot also be said to be abducted or induced for marriage. In such situation, the act and conduct of accused cannot be regarded an overt act for inducement in reference to the offence under Sections 361, 363 and 366 of the Indian Penal Code. 12. On appraisal of the prosecution witnesses and materials on record, learned Sessions Judge, has rightly arrived at the finding that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view, prosecution has not been able to bring home guilt to the accused successfully. Therefore, we find no scope for interference in the impugned judgment of the learned Sessions Judge. The criminal appeal, being devoid of any merit, is accordingly dismissed. 13. The bail bonds, furnished by the accused/ respondents, are discharged. ( R.B.Misra ), J. 23rd December, 2010 (Surinder Singh), J. (sl) 7