HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.52 of 2000. Decided on: September 21, 2010. State of H.P. …Appellant. VERSUS Naresh Kumar & Anr. ….Respondents. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the Appellant: Mr.R.K.Sharma, Sr.Addl.A.G. For the respondents: Mr.Vikrant Chandel vice counsel. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to judgment dated 4th October, 1999, passed by learned Sessions Judge, Sirmaur District at Nahan, H.P., in Sessions Trial No.14-St/7 of 1999, acquitting the respondents / accused persons under Sections 363, 366 and 376 of the Indian Penal Code in reference to F.I.R. No.14 of 1999 dated 9th February, 1999 registered at Police Station, Rajgarh. Whether the reporters of the local papers maybe allowed to see the judgment? …2… 2. The prosecution case, in brief, was that the victim / prosecutrix (name not given being a minor) was learning tailoring from respondent / accused Naresh Kumar in his shop and was going in the morning and coming in the evening and on 5.2.1999 she did not return back home in the evening. She was not even traceable, therefore, her brother Sanjay Kumar lodged a report with the police at Rajgarh on 6.2.1999. However, on 9.2.1999 it was informed by Shiv Lal and Surat Ram that they had seen the victim / prosecutrix going with the respondent / accused at Rajgarh. In that respect, F.I.R. was lodged. However, the victim / prosecutrix was recovered on 12.2.1999 in the presence of Naresh Kumar from the house of his aunt at Mansa and her custody was given to her father Kalyan Singh. 3. After investigation, the respondents / accused persons were charged for the aforesaid offence and the case was committed to the Sessions Court. In order to prove its case, the prosecution has examined as many as twelve witnesses, whereas, the respondents / accused persons, through their testimony under Section 313 Cr.P.C., have denied the prosecution case. 4. On analysis of the prosecution witnesses and materials on record, we notice that PW-2, …3… Kalyan Singh, father of the victim / prosecutrix, in his endeavour to support the prosecution case, has stated that the victim was aged about 15 years but in his cross examination he has admitted that his son Sanjay Kumar is aged 23 - 24 years and a son was born after 2 - 3 years but died after two years and later-on the victim / prosecutrix was born. Therefore, calculating the age of the victim / prosecutrix, as per the testimony of Kalyan Singh (PW-2), the victim / prosecutrix was 17 years old at the time of occurrence. PW-2 has also admitted that previously Kirpi Devi, the mother of the prosecutrix, was married with some other person and thereafter she was married with PW-2, whereas, the prosecutrix was earlier married to one Hari Bhagat, the brother-in-law (sala) of Sanjay Kumar but the prosecutrix came back after some time and then started learning the tailoring from respondent Naresh Kumar. PW-3, Dr.Sanjay Aggarwal, had medically examined Naresh Kumar (respondent) and found him capable of performing sexual intercourse. PW-4, Inder Singh, had produced the school leaving certificate of the prosecutrix Ext.P-2, according to which, the date of birth of the prosecutrix is 20.9.1984. 5. (PW-10), Dr.(Mrs.) Nirmal Vaish, had medically examined the victim / prosecutrix on …4… 14.2.1999 and had not noticed any injury on any part of the body of prosecutrix, whereas, found her to be habitual of intercourse. Sushil Kumar (PW-11) had produced the Parivar Register and proved its copies Ext.PE and Ext.PE/1 showing the prosecutrix was born on 20.9.1984. In cross examination, PW-11 has admitted that the entries in the Parivar Register were made in 1992 and he did not know the basis of these entries, whereas, HC Phul Singh (PW-12) was the Investigating Officer. 6. PW-1, the victim / prosecutrix (name not given) has stated that on 5.2.1999 she went from village Sanora to Rajgarh with Vijay Kumar co- accused where accused Naresh Kumar met her and she accompanied both the accused persons from Rajgarh to Solan in a bus and from Solan to Mansa she accompanied respondent /accused Naresh Kumar. PW-1 has further stated that she stayed in the house of the aunt of respondent Naresh Kumar at Mansa for 4 / 5 days where he sexually assaulted her and on 12.2.1999 her father with the police came there and recovered her. During her such stay with the accused persons, she also made some purchases at her own and when she boarded the buses from Rajgarh to Solan and then Solan to Mansa, so many persons met her in the buses and the buses were full of the passengers but she had not complained to anybody if …5… the accused was taking her against her wishes. The prosecutrix / victim has also admitted that respondent Naresh Kumar was a good tailor master and was earning Rs.200 to Rs.300 per day though she has stated that respondent Naresh Kumar had committed sexual assault upon her in the house of his aunt but she has admitted that she had neither brought this fact to the notice of anybody nor had made any complaint as she was already sharing with a common room with respondent Naresh Kumar throughout her stay. PW-1, victim / prosecutrix and PW-2, Kalyan Singh, father of the victim, though have stated that the age of the prosecutrix as 15 years at time of occurrence, however, PW-2 has given a version, according to which, the age of the victim / prosecutrix was less than 17 to 18 years. In any case, in the present case, the conduct of the victim / prosecutrix shows that she had accompanied the respondent / accused at her own sweet will and spent good time with him and has also neither made any hue and cry nor had resisted the respondent / accused any way and during all along her travel with him despite having occasion to meet and interact with large number of persons in the buses as passengers but she did not divulged to anybody that she was forcibly being taken against her will by the respondent / accused. In …6… the facts and circumstances, therefore, it could be inferred that she was in the age of applying her discretion and at her sweet will had accompanied the respondent / accused, as such, the offence alleged against the respondent / accused is not said to be proved and the learned Sessions Judge has rightly come to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt to the respondents / accused and there is no scope for interference in the impugned judgment and the criminal appeal, being devoid of any merit, is accordingly dismissed. 7. Bail bonds, furnished by the respondents, are hereby discharged. (R.B.Misra), J. September 21, 2010. (V.K.Sharma), J. (soni)