IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. 420 of 1997 Decided on: 16.9.2010 State of H.P. ..…Appellant Versus Sher Singh. ..…Respondent Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice V.K. Sharma, J. Whether approved for reporting?1 For the appellant : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. For the respondent : Mr. Malay Kaushal, Advocate as Amicus- Curiea. R.B. Misra, J. (Oral) Mr. Malay Kaushal, Advocate, is requested to assist the Court as amicus–curiea and he has kindly agreed for the same. 2. The present criminal appeal has come-up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted, in reference to the impugned judgment dated 15.11.1996, passed by Chief Judicial Magistrate, Mandi, H.P., in Police Challan No. (65-II/94) 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 148-I/95, acquitting the respondent-accused for the offence ,under Section 363 of the Indian Penal Code. 3. The prosecution case is that Roshan Lal complainant, resident of village Ropa-Thathar, Tehsil Sarkaghat, District Mandi, H.P. was having three sons and two daughters. His daughter victim/prosecutrix, aged about 17 years, was student of 10th class. On 28.3.1994 victim/prosecutrix went to the school and did not return in the evening and despite search nothing was known about her. Accordingly, FIR Ext.PW2/A was lodged on 1.4.1994. During investigation, police recovered victim/prosecutrix on 14.4.1994 from the house of Shri Khajana Ram, resident of Ghamanu vide memo Ext.PA. During investigation, it was noticed that sometimes in October 1993 the victim/prosecutrix was sexually assaulted by the respondent- accused and during that process victim/prosecutrix became pregnant and respondent/accused told the victim/prosecutrix on 26.3.1994 to go to Bilaspur for termination of pregnancy. Accordingly, respondent/accused met her at Bilaspur but the pregnancy could not be terminated, therefore, they went to Ghamanu so that the termination of pregnancy could be made. After reaching the house of the Khajana Ram, respondent/accused also sexually assaulted the victim/prosecutrix. Police got the victim/prosecutrix medically examined and found that the victim/prosecutrix was pregnant which was got terminated by her and victim/prosecutrix was between 17 to 19 years However, on investigation the respondent/accused was charged for the offence under Section 363 of the Indian Penal Code. 3 4. Prosecution in support of its case has examined as many as nine prosecution witnesses, whereas the respondent- accused through his statement under Section 313 Cr.P.C. denied the prosecution case. 5. On the analysis of the prosecution witnesses and materials on record, we notice that the victim/prosecutrix was below 18 years. PW-2 Roshan Lal complainant deposed that victim/prosecutrix was at that time 19 years of age but victim/prosecutrix was silent about her age. PW-6 Dr. Jai Vaidya, Radiologist reveals that the age of victim/prosecutrix was between 17 to 19 years and on the basis of different documents and prosecutions witnesses, the age of the victim/prosecutrix was not less than 18 years. The pregnancy of victim/prosecutrix was also terminated and victim/prosecutrix also did not disclose to any person that respondent/accused has sexually assaulted her during the intervening period and termination of pregnancy was made in the natural course and her going to Bilaspur for getting pregnancy terminated reveals that it was voluntary act and was not result of any allurement or inducement given by the respondent/accused. Therefore, in the facts and circumstances, the victim/prosecutrix being more than 18 years if had accompanied the respondent-accused for medical help and for termination of pregnancy, in such circumstances, the offence under Section 363 IPC cannot be made out against the respondent-accused. 6. In the facts and circumstances, learned Chief Judicial Magistrate, Mandi is said to have rightly given the 4 benefit of doubt to the respondent-accused. We find no scope of interference with the judgment of the acquittal. Accordingly, the appeal being devoid of any merit is, therefore, dismissed. 7. Bail bonds, furnished by the respondent-accused are hereby discharged. 8. Word of appreciation is placed on record for Mr. Malay Kaushal, Advocate, who has assisted this Court as amicus-curiea. (R.B. Misra), Judge. September 16, 2010 (V.K. Sharma), Judge. (vs)