1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 266/1997 Decided on: August 18, 2010 State of HP …Appellant. VERSUS Ram Singh & others ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge Whether approved for reporting?1 For the Appellant: Mr. Rajinder Dogra, Addl. AG For the respondents: Mr. Romesh Verma, Advocate. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under section 378(3) of Code of Criminal procedure in reference to the judgment dated 29.10.1996 passed by learned Sessions Judge, Kinnaur Sessions Division, Rampur Bushahr, in Sessions Trial No. 2-R/7 of 1996/95 thereby acquitting the respondents / accused for the offences under Sections 363, 366 of IPC. 2. In order to adjudicate the present criminal appeal, it is necessary to give the factual background of the case. On 9.9.1993 Sh. Shetu Ram, father of the prosecutrix has reported the matter to the police that he is having four children and the age of Kumari Balmo is 14 years. On 7.9.1993, the prosecutrix Whether the reporters of the local papers maybe allowed to see the judgment? 2 was called by accused Indira to her house at 7.30 PM. The prosecutrix was ill at that time and had gone to take the medicine. She has not returned in the evening. On the next morning when he went to call back his daughter accused Indra told that she has already gone back to her house. The complainant had started searching the prosecutrix at the house of his relation. One Raja Ram had informed him that his daughter Kumari Balmo had been taken by one Ram Singh and one Kinnaura. He had also informed that Rampur police is making enquiry from them. The prosecutrix is minor and she has been taken away by the accused persons without his consent by alluring her to marry with one man from Kinnaur side. The prosecutrix had gone for medicine on 7.9.1993 and thereafter she was allured by Indra and Ram Singh to marry with Bhasu Dev of village Sangla. She was also given allurement that she would be provided clothes and other necessity of life. On the basis of the complaint, the present case has been registered under section 363, 366 of IPC. The prosecutrix was also got medically examined from Government Hospital, Nirmand and her X-rays were also taken to ascertain her age and as per ossification report the doctor has opined that the prosecutrix appears to be 13 ¾ to 16 ½ years of age. 3. In order to prove its case, prosecution has examined as many as 11 witnesses witnesses, whereas the respondents/accused to their statements under section 313 of Cr.P.C denied the prosecution case. 3 4. PW-1 Dr. S.N. Sharma examined the victim- prosecutrix on 11.9.1993. The victim-prosecutrix refused to give her consent for conducting her medical examination and no medical examination was conducted and only X-ray was conducted which is Ext PW-1/A. As per the report, the age of the victim-prosecutrix was between 13 ¾ to 16 ½ year. 5. PW-2,Shethu Ram, father of the victim-prosecutrix has stated that victim-prosecutrix was 14 years of age at the time of the incident. However, his testimony about the age of victim-prosecutrix is not very material as he has not given any background of disclosure of the age. 6. PW-3 Kumari Balmo, victim-prosecutrix, has stated that at the instance of Indra, she met with the accused Bhasu Dev in the house of Indira to whom she did not know earlier and on the date of incident, Indra came to her house and asked PW-3 victim-prosecutrix to prepare her to marry with Bhasu Dev and, as such, PW-3 refused to marry with Bhasu Devi and she was offered one suit of cloth along with shoes. Accused Ram Singh and Bhasu Dev were also with Indira. Accused Indra and Ram Singh were insisting her to go with the accused. The victim-prosecutrix had gone with Bhasu Devi and Ram Singh on foot upto Bazar Bawari and from there they had boarded bus to Rampur. However, they were apprehended by the police. In cross examination , PW-3, victim-prosecutrix has stated that many villages come in between her village upto Bazar Bawari. However, she has not disclosed about her kidnapping to any person who met her in the way. When she boarded the bus, 4 none was there in the bus except herself and the accused persons. However, she did not tell the driver that the accused persons are taking her forcibly. PW-3, victim-prosecutrix remained sitting at Rampur bus stand throughout the night. Other persons were also there, but she did not tell any person that the accused persons were taking her forcibly. PW-3 has very categorically stated in her cross examination that she had accompanied the accused persons with her free will and without any allurement. 7. PW-4 Sunehru Devi, mother of the victim- prosecutrix has made endeavour to support the prosecution case. PW-5, H.C. Khub Ram, PW-6, H.C. Dhansukh, PW-8 Karam Chand, SHO Police Station, Nirmand, PW-9, H.C. Baldev Singh, have supported the prosecution case in the discharge of their duty to the extent assigned to them. PW-7, Secretary GramPanchayat brought the birth register of the victim-prosecutrix which is Ext PW-7/A.. 9. PW-10 Dr. B.K.Bhardwaj has assessed the age of victim-prosecutrix between 13 ¾ to 16 ½ years. PW-11, Raja Ram, has stated that he was working as Forest Contractor and was knowing the prosecutrix. On 7.9.1993 he had seen the accused Ram Singh and Bhasu Dev along with prosecutrix at 11 PM at Rampur and the police had taken the accused persons and the victim-prosecutrix to the police station. Thereafter, they came to PW-11 and PW-11 also accompanied them to the police station and PW-11 informed the parents of the victim prosecutrix. Surprisingly, the FIR was lodged on 5 9.9.1993 and nothing is revealed that what happened in between 7.9.1993 to 9.9.1993. The testimony of PW-11 is also creating doubt in the prosecution case. PW-10 Dr. B.K. Bhardwaj, has given the radiological age of the prosecutrix between 13 ¾ to 16 ½ years. PW-7, Secretary of Gram Panchayat had not supported the case of the prosecution. According to him , as per the certificate the date of birth of the prosecutrix was mentioned as 1976 and the victim-prosecutrix was more than 17 yeas of age and about 18 years of age on 17.9. 1993. 10. On scrutiny of the prosecution witnesses and the material on record, we notice that PW-11 Raja Ram met the victim-prosecutrix and the accused persons at 11 PM at Rampur and they were taken to the police station at 11.30 PM on 7.9.1993 and the FIR was lodged on 9.9.1993, then what prevented the complainant PW-2 to lodge the report immediately when the victim-prosecutrix and the accused persons were taken in custody by the police on 7.9.1993. PW-3 declined to undergo medical examination and the medical certificate Ext PW-1/C indicates that it not only the victim- prosecutrix who refused to do medical examination in the presence of her parents, but her parents also refused to allow her to go for medial examination. 11. On the analysis of the prosecution witnesses and the facts and circumstances, learned Sessions Judge has rightly arrived at finding that she was not less than 18 years of age as the testimony of victim-prosecutrix is indicative of the 6 fact that she accompanied the accused persons with her free will and without making any hue and cry and remained in the company of accused and surprisingly if allurement for marriage was made by the accused persons, spending so much time with accused persons, there is not an iota of evidence that she was sexually assaulted. In the absence of medical examination also, nothing could be divulged about sexual assault on the victim-prosecutrix. 12. In our considered view, prosecution has failed to prove its case beyond reasonable doubt and also failed to bring home the guilt. We find no scope for interference in the impugned judgment. The criminal appeal, being devoid of merit, is accordingly dismissed. 13. Bail bonds, furnished by the respondent/accused, are hereby discharged. ( R.B.Misra ), J. 18th August, 2010 ( V.K.Sharma ), J. (sl) 7