HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A.No.: 48 of 1995 Decided on: 31.10.2008 State of Himachal Pradesh ………Appellant. Versus Bhag and others ………Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For appellant: Mr.Rajesh Mandhotra, Deputy Advocate General. For the respondents: Mr.Dharamvir Sharma, Advocate. Per V.K. Ahuja, J: This is an appeal filed by the State of Himachal Pradesh against the judgment of the court of learned Sessions Judge, Mandi, dated 8.4.1994, vide which the respondents were acquitted of the charge framed against them under Sections 363, 366, 366-A, 376 and 380 of the Indian Penal Code. Briefly stated the facts of the case are that on 10.3.1990, at about 6.30 p.m., a report was lodged with the police by one Roop Lal as against the respondents that on 17.3.1990 at about 6.00 p.m., the respondents came to his house. The complainant and his wife were not present there, but his son-in-law Manohar Lal and his two daughters Omi Devi and the prosecutrix ‘K’ (name not mentioned) were present in the house. The respondents had meals at his house and left the place but again came back at about 7.00 p.m. and enticed his ______________________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - younger daughter ‘K’ and took her from the house and also committed theft of Rs.600/- from his house. On this report, a case was registered. The complainant also made efforts to search for his daughter, who was recovered on 23.3.1990 from Dhalli, Shimla in a house taken on rent by one of the accused and when she was recovered, respondents Tara and Bhag were also present in the room. The prosecutrix ‘K’ was brought to her place, was subjected to medical examination and on completion of the investigation, the challan was filed before the learned Judicial Magistrate, who committed the case to the court of the learned Sessions Judge, who tried the respondents leading to their acquittal. We have heard the learned counsel for the parties and have gone through the record of the case. On appraisal of the record of the case, it is clear that the prosecution had examined 17 witnesses in all to substantiate their case. The most material witnesses can be said to be the prosecutrix ‘K’ who appeared as PW-2 and her father PW-5 Roop Lal. Coming to the testimony of the prosecutrix as PW-2, she has stated that her father and mother had gone to village Kapahi. She was present in the house alongwith her sister and the husband of her sister. During day time, the respondents came to her parents’ house and took meals there and returned. She stated that in the evening the respondent Mast Ram came to the house again and told her that her father was seriously ill at Kapahi and she should immediately accompany him. Therefore, she became ready and Mast Ram took some money from a box kept in the room and thereafter she accompanied him. She further stated that Mast Ram took her to the house of Gian Chand, where other respondents were present. Mast Ram asked her to accompany them to - 3 - Kapahi. Thereafter, she accompanied Tara and Bhag Singh to Kapahi and they took her to a place near Slappar. She asked them as to where she had been brought and she was told that she had been brought to Slappar. The respondents Tara and Bhag Singh told her that she should marry Bhag Singh otherwise she would be done to death and she obeyed their orders under fear. PW-2 ‘K’ further stated that she was taken to the village on foot and kept her in a vacant house, but nothing was done. On the next day, the respondents took her to a house at Mangal and Bhag Singh also slept there, but respondent Tara left the place and she was sexually assaulted by Bhag Singh. She stated that she was under fear and she did not raise any alarm. On the next day, Tara left for Shimla. She spent the night in the house of Tara alongwith Bhag Singh, who had sexual intercourse with her against her wish. On the third day, Mast Ram and Tara Chand came there and they were asked to go to Shimla, where Bhag Singh and Tara Chand, respondents, took her to some Hotel at Shimla. They all three slept in a room and on the next day, she was taken by Bhag Singh and Tara Chand to a room which was hired by them and in the evening her father accompanied by other persons came and took her back to Sunder Nagar. Her cross examination shows that she was a grown up woman, was already married to one Ses Ram prior to the incident and she denied that she was engaged to accused Bhag Singh prior to her marriage with Ses Ram. In her cross examination, she has admitted that there are many houses in their village at some distance and her uncle, aunt and brothers also live in the same village, but separately. Her statement shows that she did not tell anybody at the time of leaving her house except the daughter of her sister named Anju that she was - 4 - accompanying Mast Ram since her father was ill. It is surprising that her uncle, aunt and others also live in the village and her sister and brother-in-law were only at some distance in the jungle, but she made no efforts to contact them or tell them that her father was serious and she had been asked to accompany Mast Ram, but she willingly went with the accused without telling any of the persons or asking them to accompany her to Kapahi where her father was serious. The accused had come back again to her house after some time and a grown up lady already married believing them goes with them without telling any other person or confirming how they had got the information about the illness of her father. It is also in evidence that she had gone to a place named Village Mangal where they were served meals and then had gone to Slappar, Shimla and had stayed in a Hotel/Guest House also, but nowhere she made any efforts to raise an alarm or seek the assistance of any person that she had been forcibly kept or brought by the respondents on a wrong pretext. The learned trial Court had discussed the evidence and had come to the right conclusion that inspite of several opportunities to seek help of any person, the prosecutrix ‘K’ made no efforts to escape or seek assistance. There is also the statement of PW-16 Bahadur Singh, owner of the Guest House where the prosecutrix had stayed, that all three of them including the prosecutrix had come voluntarily to his Guest House in a gay mood and the Police Station was at a distance of only 2 kms. from his Guest House. There is nothing to show that the prosecutrix made any attempts to tell this witness or any other person staying in the Guest House that she had been brought forcibly by the respondents or was subjected to rape by one of the respondents against her wish. - 5 - Coming to the question of the age of the prosecutrix, PW-2 ‘K’ the prosecutrix had herself given her age as 20 years when her statement was recorded on 3.3.1992 i.e. after about 2 years of the occurrence meaning thereby that she was of the age of 18 years when she was allegedly abducted by the respondents. Her father Roop Lal as PW-5 has not stated anything in regard to the age of the prosecutrix. The only document proved in evidence in regard to the age of the prosecutrix is the certificate Ext.PW-9/A, but this document is of no help since it only shows that according to the register, the prosecutrix was born in 1973, but no date of birth, month have been mentioned therein. Moreover, the entries of the register were required to be proved before they could be read in evidence but this is only a certificate issued by the Secretary, Gram Panchayat, which does not prove the age and is of no help to the prosecution. Apart from this, there is medical evidence consisting of the statement of Dr.G.D. Gaur, Radiologist, who appeared in the witness box as PW-1 and stated that he conducted the X-ray examination of the prosecutrix and gave the age as in between 16-1/2 to 17 years. According to law, the age, as determined by the Radiologist, can be taken into consideration but two years can be added or deducted from the said date and, therefore, the age can be said to be even 15 years or 19 years. Thus, there is no evidence on record to show that the prosecutrix was of the age of less than 18 years when she was abducted or forcibly taken by the respondents and rather the evidence led clearly proves that she was of the age of more than 18 years and the manner in which she accompanied the respondents, raised no alarm or sought no help shows that she was a willing party in accompanying the respondents. - 6 - Moreover, since she was of the age of more than 16 years, she could give her consent to the sexual intercourse allegedly performed by respondent Bhag Singh. According to the opinion of the Medical Officer PW-3 Dr.Jaya Vaidya, there was no laceration of the vagina, no bleeding and the prosecutrix was habitual of sexual intercourse. There is no corroborative evidence to show that she was subjected to sexual intercourse forcibly since no injuries were found on her person by the Medical Officer. The evidence in regard to theft was also not sufficient to prove the charge under Section 380 of the I.P.C. Keeping in view the above discussion, we accordingly hold that the findings recorded by the learned trial Court holding that the prosecution had miserably failed to prove their case beyond any reasonable doubt calls for no interference by this Court. Therefore, there is no merit in the appeal filed by the State of H.P., which is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged. (Deepak Gupta), Judge. October 31, 2008. (V.K. Ahuja), (TILAK) Judge.