IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 582 of 1996 Date of decision: 20.4.2010. State of H.P. …. Appellant. Vs. Basher Khan ... Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1. No. For the appellant-State: Mr. Vivek Singh Thakur, Addl. Advocate General For the respondent: Mr. Ravinder Thakur, Advocate. Deepak Gupta, J.(oral) This appeal by the State is directed against the judgement dated 15th May, 1996 of the learned Sessions Judge, Solan in Sessions Trial No. 2-NL/7 of 1995 whereby he acquitted the accused of having committed offences punishable under Sections 366 and 376 of the Indian Penal Code. The prosecution story in brief is that the prosecutrix was about 16 years old on 17th September, 1994. She had come to Nalagarh in connection with some work. When she reached there, she met the accused who is married to her cousin (uncle’s daughter). The accused told the prosecutrix that his wife i.e. cousin of the prosecutrix is unwell and she should accompany him to his house. With a view to inquire about the health of her cousin, the prosecutrix went to the house of the accused where she stayed for the night intervening September 17 - 18, 1994. 1 Whether the reporters of the local papers may be allowed to see the Judgment. Yes. 2 During the night accused started treating the prosecutrix like his sister-in-law (Sali). The next night the accused had forcible sexual intercourse with her. On the next day i.e 19th September, the accused took the prosecutrix to Shimla where he was working. He kept her in a room which he had rented at Shimla. The accused and the prosecutrix stayed for one night at Shimla where again they both had sexual intercourse. Then on the 20th September, they returned to their village where the prosecutrix stayed in the house of the accused for two days and one night. Thereafter they stayed for one night at the house of the aunt of the accused. On this complaint the F.I.R was lodged and the accused was arraigned and made to face trial for the offences detailed here-in-above. The prosecutrix in her statement has virtually repeated what has been stated by her in the complaint. A bare perusal of the facts stated above clearly shows that the prosecutrix stayed with the accused for at least 7 or 8 nights. She first stayed at his house at Nalagarh where the wife of the accused was also present. She then travelled with him from Nalagarh to Shimla. She stayed in Shimla for one or two nights. Then she stayed in the house of the aunt of the accused and finally again in the house of the accused. During this entire period of one week she never raised any alarm. She did not complain that the accused was having sexual intercourse with her against her wishes. She in her statement has not even made a murmur that she was 3 threatened by the accused. Therefore, it is apparent that this is a case of consensual sex. Even if the sex is consensual, the accused may still be guilty of having committing an offence punishable under Section 376 IPC, if the age of the prosecutrix is below 16 years. He would also be guilty of an offence under Section 366, if the prosecution proves that she was below 18 years of age. As far as the age of the prosecutrix is concerned, the prosecution relied upon the school leaving certificate Ext.PC, in which the date of birth of the prosecutrix is shown to be 15th September, 1978. The incident in question occurred on 17.9.1994. Thus the prosecutrix was more than 16 years of age and therefore, no case under Section 376 is made out. As far as Section 366 is concerned, no doubt this certificate Ext.PC shows that the prosecutrix was below 18 years. However, much reliance cannot be placed on this certificate since PW-6 Sh. Shambhu Ram, the teacher who proved the said certificate stated that the certificate had been issued on the basis of the entries made in the admission register. According to him this entry in the admission register is based on the certificate issued by the Panchayat under the registration of births and deaths act. This certificate has not seen light of the day and has not been produced in Court. The primary evidence was that of the births and deaths register which has been withheld from the Court. 4 PW-2 Atta Deen, father of the prosecutrix, stated that when his children were born he had got the entries regarding their date(s) of birth entered in the registers of the Panchayat. If this be correct then it was the duty of the prosecution to have produced the said registers. Since these registers have not been produced and admittedly according to the father entries were got made in the registers, adverse inference will have to be drawn against the prosecution. PW-2 Atta Deen in his statement also stated that he has one daughter Smt. Bhago, who is elder to the prosecutrix by about two years. Younger to the prosecutrix is Satya, who according to him was aged 16 years at the time of the recording of his statement. The statement was recorded on 16.4.1996. In cross-examination the witness stated that Bhago was married four years prior to the recording of the statement i.e. in the year 1992 and at the relevant time she was 20 or 22 years. Even if we take the lower age into consideration and this would mean that Smt. Bhago was 20 years in the year 1992 which would mean that the prosecutrix was 18 years of age in the year 1992 and therefore in 1994 when the occurrence is alleged to have taken place she would be approximately 20 years of age. Therefore, it is more than apparent that the prosecutrix was a major and had accompanied the accused of her own will. Therefore, no case of abduction is made out against the accused. 5 Keeping in view the aforesaid discussion, we find no merit in the appeal and the same is accordingly dismissed. The bail bonds furnished by the accused are discharged. (Deepak Gupta) Judge. 20th April, 2010. (Rajiv Sharma) ™ Judge.