IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 453 of 1999 Date of decision: 06.09.2010 _________________________________________________________ The State of H.P. .....Appellant. Versus Om Parkash. .....Respondent. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? __________________________________________________________ For the appellant: Mr. Rajinder Dogra, Additional Advocate General with Mr. Anil Jaswal, Deputy Advocate General. For the respondent: Mr. Naresh Kaul, Advocate, Amicus Curiae. R.B. Misra, J (Oral). Accused-respondent, Om Parkash, produced in custody of ASI Amar Nath, Incharge and HHC Manoj Kumar No. 245, P.P. Nakrod, P.S. Tissa, District Chamba, Himachal Pradesh. 2. Shri Naresh Kaul, Advocate, has been requested to assist this Court as Amicus Curiae and he has agreed to the same. Accordingly, Shri Naresh Kaul, Advocate, has assisted this Court in response to the submissions made on behalf by Shri Rajinder Dogra, Additional Advocate General, for the appellant- State. 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... 3. 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 and order dated 02.07.1999, passed by the learned Sessions Judge, Chamba, District Chamba, in Sessions Case No. 3 of 1997, acquitting the alleged accused under Sections 363, 366 and 376 of the Indian Penal Code in reference to FIR No.70 of 1994. 4. Prosecution case is that 01.10.1994, the victim- prosecutrix (name withheld) had gone to the forest, adjoining village Bharara, to collect fuel wood. When she did not return to her home, search was made by her father, Arjun Kumar, but of no avail. After 4-5 days, i.e., on 05.10.1994, father of the victim- prosecutrix came to know that the accused Om Parkash is also missing since 01.10.1994, as such, a report was lodged and the victim-prosecutrix was recovered from the house of the accused. The accused-respondent was charged for the aforesaid offences and the case was committed to the Sessions Court. 5. In order to prove its case, prosecution examined as many as eighteen witnesses, whereas, accused through his statement under Section 313 Cr.P.C. denied the prosecution case and in defence examined DW-1Khubi Nand, as defence witness. 6. The father of the victim-prosecutrix, Arjun Kumar (PW-1), has endeavoured to support the prosecution case by saying that the recovery of victim-prosecutrix was made by him ...3... and PW-2 Pradhan, Gram Panchayat, Tissa, from the house of the accused-respondent. PW-6 Dr. Mrs. Kamlesh Dogra, examined the victim-prosecutrix for ascertaining her age. PW-7 Dr. Lokender Badotra, Dental Surgeon, also examined the victim-prosecutrix for ascertaining her dental age. School leaving certificate was also produced. PW-8 Narain Singh, JBT and PW-9, Science Teacher were examined and entries in Pariwar register were proved by PW-15 Chatro Ram. PW-15 Chatro Ram, Secretary Gram Panchayat, Bharara, has stated that the date of birth of the victim-prosecutrix was 12.06.1979. However, he admitted in cross-examination that the name of the victim-prosecutrix was not recorded at the time of the birth and at the time of entry of the date of birth, signature of the father was not obtained. 7. According to Dr. R.K. Mahajan (PW-5), the age of the victim-prosecutrix was 15-17 years, however, on analysis of the materials on record and the prosecution witnesses, learned Sessions Judge found that the victim-prosecutrix was major and was not in any case less than 18 years of age. 8. In view of the testimony of PW-1, the victim- prosecutrix was recovered from the house of the accused on his and PW-2's (Shivdayal, Pradhan, Gram Panchayat, Tissa) efforts. PW-3, victim-prosecutrix, in her cross-examination has admitted that the accused had been meeting her since her childhood and Arjun Kumar, father of the victim-prosecutrix, ...4... was in visiting terms with the accused-respondent, whereas, DW-1 Khubi Nand has stated that the victim-prosecutrix was in a habit of roaming here and there and on the date of occurrence, she came at her own sweet will with the accused and remained for 7-8 days with the accused-respondent. 9. As per the testimony of PW-6 Dr. Mrs. Kamlesh Dogra, there was no recent sexual intercourse with the victim- prosecutrix and she has further stated in her cross-examination that within 72 hours there was no sexual assaulted on her, meaning thereby, 3 days prior to recovery there was no sexual assault on her. However, medical report indicates that the victim-prosecutrix was in a habit of sexual interaction. 10. The accused-respondent has been brought in police custody before this Court in compliance to order dated 05.07.2010 and he has also been heard. As per his testimony, he has married the victim-prosecutrix and thereafter the marriage was broken and the victim-prosecutrix (girl) was married by her parents to someone else. 11. On close scrutiny of the prosecution witnesses and the material on record, we notice that the testimony of the victim-prosecutrix does not inspire confidence and she was major. The victim-prosecutrix appears to have stayed with the accused-respondent at her on sweet will. In these facts and circumstances, no case, for offences under Section 363, 366 and 376 of the Indian Penal Code, is made out against the accused- ...5... respondent. In our considered view, the prosecution has failed to prove its case beyond reasonable doubt and also failed to bring home the guilt against the accused-respondent. In these circumstances, criminal appeal being devoid of merit is dismissed. 12. The Court appreciate the efforts made by Mr. Naresh Kaul, Advocate, in assisting the Court on behalf of accused- respondent as Amicus Curiae. (R.B. Misra) Judge (V.K. Sharma) Judge 6th September, 2010 (virender)