IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 555 of 1999 Reserved on: 27.7.2010 Date of Decision: 17.12.2010 State of H.P. …Appellant. Versus. Gopal Singh and others …Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol,, Judge. Whether approved for Reporting? No. For the appellant: Mr. Vikas Rathore, Dy. A.G. For the respondents: Mr. Jagdish Vats, Advocate. Per Deepak Gupta, J. 1. This appeal by the State is directed against the judgement of the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr in Sessions trial No. 3 of 1997 decided on 16.09.1999 whereby accused Gopal Singh was acquitted of having committed offences punishable under Sections 363, 366-A, 376 and read with Section 34 IPC and other two accused Kesru Ram and Prem Singh were acquitted of having committed offences punishable under Sections 363, 366-A and read with Section 34 IPC. 2 2. The prosecution story, in brief, is that the prosecutrix was a minor girl. On 11.3.1996 her mother PW-3 lodged F.I.R. Ext.PF in which she alleged that her husband had died 8-9 years earlier. The prosecutrix was one of her five children aged about 15 years and was studying in 8th class. On 1.3.1996 the complainant came to Rampur. When she returned home in the evening she found that her daughter, the prosecutrix, was not at home. She searched for the prosecutrix in the house of her relatives. On 11.3.1996 she came to know that accused Gopal Singh had kidnapped the prosecutrix with a view to compell her to enter into matrimonial bond with him. 3. On 12.3.1996 the prosecutrix was recovered from the house of the accused of Kesru Ram, father of Gopal Singh and was restored to the custody of complainant vide memo Ext.PG. She was got medically examined from PW-1 Dr.Mudita Gupta, who opined that the prosecutrix had been subjected to sexual intercourse. Ossification test was conducted to determine the skeletal age of the prosecutrix and according to PW-10 Dr. Sudha Prakash the bony age of the prosecutrix was 13 to 15 years. On this basis challan was filed against the accused and they were charged with having committed the aforesaid offences. The learned trial Court acquitted the accused holding that she had left the house of 3 her own free will and that the prosecution had failed to show that she was below 16 years of age. 4. We have heard learned counsel for the parties and gone through the record. 5. From the evidence on record, it is more than apparent that the prosecutrix left her house of her own accord. Even the mother lodged the complaint after 10 days and there is unexplained delay in lodging the F.I.R. Even according to the mother of the prosecutrix when the prosecutrix was recovered from the house of accused Kesru Ram, she did not initially complain about anything and only when she was asked as to why she had left the house that she stated that accused Prem Singh had asked her to marry Gopal Singh and when she refused he threatened that she would be forcibly taken away. Later at night when the prosecutrix went to answer the call of nature she was forcibly taken away by accused Prem Singh and Gopal Singh and thereafter subjected to forcible sexual intercourse by accused Gopal Singh. This witness has been cross-examined with regard to the age of the prosecutrix. She states that she is illiterate and does not remember her date of marriage and the date of birth of her children including the prosecutrix. In fact, when cross-examined in detail she could not give any details with regard to ages of her children. The prosecutrix was examined as PW-4. She alleged that Gopal Singh and Prem 4 Singh came to her house at about 4.00 p.m and threatened to take her away. At night when she went to answer the call of nature Gopal Singh and Prem Chand who were hiding there forcibly took her away to village Dobi. Then accused Prem Chand left and the prosecutrix was kept in the house of Gopal Singh throughout the night. She alleged that she was detained for 11 days without her consent, firstly at the house of Gopal Singh at Dobi and later in the Dogari (shed) of Padi Ram in village Dobi. In cross-examination, she admitted that she knew both the accused and she stated that she was about seven years old when she was admitted in school. She also admitted that she had failed once in 8th standard and therefore, her age at the time of the incident would be more than 16 years. According to her, arrangement for her food was made by the parents of Gopal Singh but she had not stated this fact to the police when her statement was recorded. She was kept in a village for 11 days and there is no evidence to show that she struggled when she was taken from her house or she raised an alarm when she was in the village of the accused. She admitted that there are 10-12 houses around her own house within a distance of 10 to 15 meters. She also admitted that a cry would be audible in any of the houses. Most importantly, she admitted that when she was taken by Gopal Singh she had taken her clothes in a bag. This shows clearly that she had gone with the accused of her 5 own volition. She admitted that there are 30-35 houses in village Dobi. She also admitted that she did not raise any hue and cry at village Dobi. The statement of this witness does not inspire confidence and it is apparent that she went with the accused willingly. 6. That brings us to the most important question with regard to the age of the prosecutrix. As pointed out above, the mother has not thrown any light on this aspect. The prosecutrix also does not state how old she was at the time of the incident but if her version is accepted then also she was more than 16 years old at the time when the incident took place. The school leaving certificate Ext.PK shows that the prosecutrix was admitted in the middle school on 15.3.1993 and left school on 23.12.1995. In this certificate her date of birth is mentioned as 4.4.1982 but there is no material to show that on what basis this age has been entered. PW-6, who has proved this certificate, stated that the entry in this certificate was based on the school leaving certificate issued by the school where she was earlier studying but that certificate has not been produced on record. Therefore, no reliance can be placed on this certificate. PW-10 has opined that the skeletal age of the prosecutrix is about 13 to 15 years. It is well known that this is only an opinion and the age can very by as much as three years on either side. 6 Therefore, the prosecution has miserably failed to prove that the prosecutrix was below 18 years. 7. In view of the above discussion, we are of the considered opinion that the learned Sessions Judge was fully justified in acquitting the accused. We find no merit in the appeal and the same is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. 17th December, 2010 (Sanjay Karol ) ™ Judge.