IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 327 of 1996 Date of Decision : March 11, 2010 State of Himachal Pradesh Appellant Versus Sant Ram Respondent Coram: Hon’ble Mr. Justice Deepak Gupta, Judge Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Vivek Thakur, Addl. Advocate General with Mr. Ram Murti Bisht, Dy. Advocate General for the appellant. For the respondent : Mr. Vinay Thakur, Advocate, for the respondent. Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgment dated 23.5.1995 passed by the learned Sessions Judge Shimla, H.P. in Sessions Trial No. 37-S/7 of 1994 whereby he acquitted the accused Sant Ram of having committed an offence punishable under Section 376 of the Indian Penal Code. 1 Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 The prosecutrix is an unfortunate blind girl. Since she was blind, her parents decided to admit her in the Educational-cum- Vocational Training Centre, Kamlanagar which is meant to impart training to disabled persons including the blind. The prosecutrix was admitted in this institution on 21.6.1993 and her date of birth as mentioned in her record in this institution is 1.7.1977. Even as per Dr. Neelam Jaswal (PW-6) who conducted dental examination of the prosecutrix, her dental age has been opined to be between 12 to 17 years. The ossification test was conducted on the prosecutrix by Dr. Neena Shandil (PW-7) and as per her report the age of the prosecutrix is between 14 ½ to 16 years. Sh. Gopal Singh (PW-12), Secretary, Gram Panchayat Delath has placed on record the certificate Ext. PW-12/A which shows that the date of birth of the prosecutrix is 1.7.1977. Therefore, on the date she was admitted to the institution she was few days short of attaining 16 years of age. The prosecution story is that the daughter of the accused was the first wife of the father of the prosecutrix. She died and the father of the prosecutrix Sh. Punu Ram (PW-10) remarried. Smt. Vidya Devi (PW-9) is his second wife. From this wed-lock the prosecutrix was born. Statement of these parents is that they had sought the help of the accused in getting their daughter admitted to the Educational-cum-Vocational Centre, Kamlanagar, Shimla and he got her admitted therein. Thereafter when the prosecutrix came home, the mother of the prosecutrix became suspicious that she 3 was pregnant. She asked the prosecutrix as to what had happened and the prosecutrix informed her mother that the accused had been raping her and had threatened her that if she informed any person he would kill her. PW-10 states that he had met the accused in Shimla who assured him that he would get her admitted in the training centre and after preparing all the admission papers he left Shimla and the accused was appointed the guardian of the prosecutrix. The evidence of Sh. K. D. Tiwari (PW-1) who was the Principal of the centre at the relevant time, Smt. Indira Gautam (PW-2) who was employed as a Craft Teacher in the said centre, Smt. Leela Thakur (PW-3) who was the Warden of the hostel is that whenever there were vacations the accused used to come and being the guardian of the prosecutrix was permitted to take the prosecutrix to his home. PW-1 has proved application Ext. PW-1/C submitted by the accused in this regard. It is thus obvious that the accused being the guardian of the prosecutrix used to take her from the centre. Statement of the prosecutrix (PW-8) is also to the similar effect. She states that whenever there were holidays the accused used to take her to his quarter at Lalpani and there he used to subject her to sexual intercourse. According to the prosecutrix he told her that he had had an operation and therefore she could not become pregnant. According to her she objected to the act of the accused but he forcibly committed sexual act. She states that the 4 sexual act was committed on many occasions. She identified the accused from his voice. There is no doubt in our mind that the accused did have sex with the prosecutrix. But whether this was forcible sex or consensual sex is the issue to be decided. The statement of the Principal, Warden and Teacher is that the prosecutrix never complained to any person about the activities of the accused. If the prosecutrix was not a consenting party and even if she had not complained against the accused for the sake of saving her honour she would have refused to go with him on the next occasion. The fact remains that she went with the accused time and again. Therefore her statement that she was subjected to forcible sexual intercourse does not appear to be correct. Furthermore the story set up by the prosecution as to how the prosecutrix told the facts to the mother does not appear to be correct. According to her mother (PW-9), after the prosecutrix came home, while taking her bath she noticed that her stomach had enlarged. This aroused her suspicion and she questioned her daughter who told that she was subjected to forcible sexual intercourse. However PW-8 does not give any such explanation. In fact from her statement it is apparent that during the Dussehra holidays she had gone with the accused to her village and had not disclosed the incident to her parents. She states that she had stopped menstruating and then her mother asked her what had happened. The version of the prosecutrix and her mother appears 5 to be incorrect because Dr. Renu Sharma (PW-14) who examined the prosecutrix in her examination has clearly stated that the menstrual periods were regular and she did not find the prosecutrix to be pregnant. The prosecutrix turned sixteen on 1.7.1993. All the acts of sex are alleged thereafter. As we have already held above the prosecutrix was a consenting party, therefore, the accused cannot be held guilty of rape. The appeal is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. However, before parting with the case we must note that even if the sex was consensual the behavior of the accused was reprehensible. He in fact was a grand-father in relation to the prosecutrix since his daughter was the first wife of the father of the prosecutrix. The parents had made him the guardian of their child. The guardian turned demon and took advantage of the young age of the girl and her physical disability and abused her. We have also found from record that the accused was employed as a Peon in the Intelligence Bureau. His act of using his position as guardian to have sex with a child who though was sixteen years of age but was virtually the age of his grand-daughter is in our opinion an act totally unbecoming of a government servant. We, therefore, direct the Registry to send a copy of this judgment to Joint Deputy Director, Intelligence Bureau, Dormer’s, Shimla – 3 to take appropriate action in accordance with law against the accused. The said official shall 6 file his affidavit indicating what action has been taken within three months from the receipt of the order. (Deepak Gupta), Judge. (Sanjay Karol), Judge. March 11, 2010 (PK)