IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 401 of 2001 Judgment reserved on : 1.7.2011 Date of Decision : July 15th, 2011 State of Himachal Pradesh Appellant Versus Jia Lal Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Mr. Vivek Thakur, Additional Advocate General. Justice Sanjay Karol, J. For an offence, which is alleged to have been committed on 10.7.1996, accused was put to trial. In terms of judgment dated 24.4.2001, passed by the learned Sessions Judge, Chamba Division, Chamba, H.P., in Sessions Trial No. 16 of 1999, titled as State versus Jia Lal the accused stands acquitted of the charged offence. Whether reports of Local Papers may be allowed to see the judgment? 2 2. It is the case of the prosecution that prosecutrix (PW- 11), daughter of Sh. Kanhya was residing with her parents in village Runukothi. Accused used to visit the house of the uncle of the prosecutrix and was thus known to her. In the month of July, 1996, when prosecutrix was playing with her cousin sisters in her house, accused came and asked her to accompany him. Both the accused and the prosecutrix boarded the bus at Luna from where they went to the house of Sh. Rangila Ram (PW-4) in village Gangath where Smt. Suro Devi, who had some connection with the area where prosecutrix was living, made inquiry about her welfare. The accused and the prosecutrix remained in the house of PW-4 for about 25 – 26 days. Thereafter accused left the prosecutrix alone at the bus stand and boarded a bus for some unknown place. Finding the prosecutrix alone on the road, Sh. Kihru Ram (PW-1) made inquiries and was informed that prosecutrix had been brought from Bharmaur, kept in village Gangath for some time and now left alone by one boy. PW-1 handed over custody of the prosecutrix to Sh. Vasudev (PW-2) in whose house she spent the night and the following morning handed over to the police at police station, Nurpur where report (Ext. PA) was lodged on 29.7.1996. On the basis of the statement of the prosecutrix, F.I.R. No. 184 (Ext. PE), dated 31.7.1996 was registered at Police Station, Nurpur. Prosecutrix was got medically examined through Dr. Indu Mahajan (PW-10) who issued MLC (Ext. PH). To determine the radiological age, prosecutrix was examined by Dr. J. R. Azad (PW-15) who in 3 terms of his report (Ext. PO) opined her to be between 15 to 17 years. To prove her age police also took into possession the extract of the birth and death register (Ext. PJ) issued by Sh. Uttam Chand (PW-13), Secretary of the Gram Panchayat. Abstract of the pariwar register (Ext. PK) was also taken into possession by the police. Prosecutrix was taken to her parents and her custody handed over to them. After completion of investigation challan was presented in the Court for trial. 3. The accused was charged for having committed an offence punishable under Section 366 of the Indian Penal Code to which he pleaded not guilty and claimed trial. 4. In order to prove its case prosecution examined sixteen witnesses and the statement of the accused under Section 313 Cr. P.C. was also recorded. 5. The Court below acquitted the accused of the charged offence. Hence the present appeal. 6. Prosecution has to prove, beyond reasonable doubt, by leading clear, cogent, consistent and reliable evidence that the accused had kidnapped the prosecutrix with an intent of compelling her to marry him. 7. It is not the case of the prosecution that prosecutrix was raped by the accused. 8. On the question of age, prosecutrix has deposed that at the time of the alleged offence she was fifteen years of age. However, her mother Smt. Sumitra (PW-12) has stated that 4 prosecutrix was 16 years of age. Prosecution has tried to prove certificates Ext. PJ and PK issued by Sh. Uttam Chand (PW-13), Secretary of the Gram Panchayat. These documents are not legal evidence and cannot be taken into account. Even according to this witness, in the original record there is overwriting with respect to the date of birth of member of the family of the prosecutrix. The overwriting is not initialed. That apart entries in the register are not made by him. Who made the entries and at whose instance has not come on record. The abstract of pariwar register (Ext. PK) also cannot be looked into for the very same reason. 9. After determining her radiological age, Dr. J. R. Azad (PW-15) found the prosecutrix to be between 15 to 17 years. However, this witness has also testified that the margin of error can be of three years. Thus the benefit of doubt is to be given to the accused. Prosecution has thus not been able to prove the exact age of the prosecutrix and for that matter that she was below 18 years of age as on the alleged date of offence. 10. It is the case of the prosecution that prosecutrix was missing from her house for quite some time and yet Smt. Sumitra (PW-12) admits that she did not report the matter to the police. After all her daughter, alleged to be minor, had been missing from her house for quite some time. Yet the matter was not reported to the police or any authority. Why so? No reasonable explanation is forthcoming. 5 11. Most importantly the case of the prosecution stands demolished by prosecutrix herself who in no uncertain terms has deposed that “It is correct that the accused had not seduced me and I had accompanied him of my own” and “It is correct that the accused had not forcibly taken me but I walked myself”. In examination-in-chief prosecutrix has contradicted her version by stating that the accused had threatened of killing her. Now this version is an improvement and an after thought for the reason that it does not find mention in her statement (Ext. PE) recorded by the police under Section 161 Cr.PC with which she was confronted and also she did not disclose this fact either to Sh. Kihru Ram (PW-1) or Sh. Vasudev (PW-2). Same also does not find mention in report (Ext. PA) lodged by Sh. Kihru Ram. However, Sh. Rangila Ram (PW- 4) has deposed that the accused and the prosecutrix had been staying in his house for more than 25 – 26 days. Even to him prosecutrix had not narrated the fact that the accused had threatened, induced, seduced or promised her of getting married to her. Thus, we find no error in the judgment passed by the Court below and see no reason to interfere with the same. 12. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the person has resulted 6 into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Justice Deepak Gupta), Judge. (Justice Sanjay Karol), Judge. July 15, 2011 (PK)