IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 214 of 1999 Decided on June 17, 2010 ________________________________________ State of H.P. …Appellant Versus Ghanshyam and Another. …Respondents Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting? Yes/No For the Petitioner: Mr. Rajinder Dogra, Additional Advocate General, Mr. Vikas Rathore, Deputy Advocate General. For respondents : Ms. Jyotsna Rewal Dua, Advocate. No. 1 . For respondent : None. No.2 Justice R.B. Misra,J. The present Criminal Appeal has come for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of criminal Procedure in reference to the judgment dated 4.3.1999 passed by the Learned Additional Sessions Judge, Sirmour District, at Nahan, H.P. in sessions trial No. 25-N/7 of 1998 under Sections 363, 366 read with Section 34 IPC and 376 IPC acquitting the alleged accused/respondents. 2 2. In order to adjudicate the present appeal, it is necessary to give the factual background of the case, as indicated by the prosecution. It appears that on 15.6.1998 PW.1 Raksha Devi, daughter of Bindru alias Mohinder Singh, resident of village Banjan, under Police Station Rajgarh, met accused Hira Singh alongwith his wife and another accused Ghanshyam. Again, on 17.6.1998, around 1.00 P.M. when PW.1 had taken the cattle for grazing in the Jungle, accused Hira Singh and Ghanshyam met her in the Jungle. Accused Hira Singh told her that Ghanshyam, accused is a resident of Brewery Tehsil Solan, he is a bachelor he owns three storeyed building and is ready to give golden and silver ornaments to PW.1 provided PW.1 marries Ghanshyam. PW.1 asked accused Hira Singh that the matter should be initiated through her parents. Same day, at about 6 p.m. when PW.1 was going to fetch grass and as she reached near the orchard of the village, Hira Singh and Ghanshyam again met her on the way, accused Ghanshyam asked her to accompany them to Solan where he promised to marry her. However, PW.1 accompanied Ghanshyam, who took her to Solan and on reaching his house, PW.1 was sexually assaulted. Thereafter, PW.1 accompanied accused Ghanshyam and Hira Singh to various places including Shimla, Theog, Sainj, Shareyan and Rohru. However, when PW.1 did not return, her father PW.2 became suspicious and started searching the victim. The next day PW.2 came to 3 know that both Hira Singh and Ghanshyam had come to the village and he suspected them that they might have taken PW.1 with them. on 18.6.1998, he went in search of his daughter to Solan to village of accused near Brewery. Both the accused, Hira Singh Ghanshyam were found missing from their houses. Thereafter, he came back to his house and lodged the report Ext. PA on 23.6.1998, on the basis of which FIR was registered. PW.1 was recovered from the house of accused Ghanshyam and was handed over to PW.2 vide Memo Ext. PB. PW.1 was medically examined vide MLC Ext. PC. After investigation, a case for the alleged offence as indicated above, was registered and the case was committed to Sessions Trial. 3. In order to prove its case, the prosecution examined as many as nine prosecution witnesses. Whereas, alleged accused/respondents through their statement under section 313 of Cr.P.C. denied the prosecution case. 4. We have gone through the contents of the prosecution witnesses and relevant material on record. We notice that PW.1 was taken by Hira Singh and further PW.1 accompanied accused Ghanshyam in different places and remained with him upto 7.8.1998 and during that period she had been sexually assaulted. However, the FIR was lodged on 23.6.1998 i.e. after six days of the occurrence, for which no proper explanation has been brought, which was taken to be fatal for the case of the prosecution by the Trial Court. 4 5. PW.1 in her statement has stated that she was induced by accused Hira Singh to go with accused Ghanshyam for the purpose of marrying him and at that stage she has informed the accused that the matter could be initiated through her parents. PW.1 had not said anywhere that she has made endeavour to disclose the fact of her being taken by Ghyanshyam at different places against her will. She did not inform any person. She has further stated that she went on foot accompanying Ghanshyam at different places even after knowing that accused Ghanshyam was not having three storeyed building at Brewery and was also not a rich person even then PW.1 also did not report the matter to anybody even during her stay at Shimla and Rohru. 6. As per testimony of PW.1 she worked as a labourer alongwith accused Ghanshyam. PW.3 Het Ram, who is Central Head Teacher, has stated that both the accused alongwith prosecutrix (PW.1) were engaged by him as labourer during the period of 19.6.998 to 23.6.1998 at village Shareyan and he paid Rs. 650/- each to PW.1 and accused Ghanshyam. As per testimony of PW.3 during that period both stayed in one room, and also PW.1 did not complain to PW.3 that accused Ghanshyam brought her forcibly. 7. PW.4 Dr. Anita Sood medically examined PW.1 wherein she was found to have been sexually assaulted. However, in the opinion of PW.4, nothing could be said that 5 such sexual intercourse was against her will as there was no mark of injury on her body noticed by PW.4. 8. PW.2 Shri Bhindru @ Mohinder Singh father of PW.1, has stated that he was initially married 30-35 years back, thereafter, he solemnized second marriage with Kamla after 10-15 years of his first marriage. PW.1 was born after one year of his marriage with Kamla. On analyzing such testimony, learned Trial Court has rightly inferred that the age of the prosecutrix at the time of incident was about 19 years and in no case she was below 18 years of age, which could be a essential ingredient for bringing the accused under the purview of the provisions of section 363 of IPC. On analyzing of Admission Register Ex. PE, which is said to have been testified by PW.5 Sunita Devi, a Head Teacher in Government Primary School Dhaipitali, may indicate that at the time of incident, victim was below 18 years, but in sequence to the ossification test, the age of the prosecutrix was between 14 ½ to 17 years. However, such testimony has also been not relied by learned Trial Court. Learned Trial Court has not even given the credibility to the entry made in the admission register, as generally the parents in the interest of future and career of a child want to show less age and get different date of birth recorded in the school register at the admission stage. Since no authentic document was produced regarding the age of the prosecutrix, as such, father of the prosecutrix himself gave different and doubtful 6 version as regards the age of the prosecutrix, who assessed her age about 14 years and 5 months. 9. On the basis of the radiological examination, in view of different decisions of High Courts and Supreme Court as indicated in Jaya Mala V. Home Secretary, Government of Jammu and Kashmir and others, AIR 1982, Supreme Court 1297, which was relied by our own High Court, in Chintu alias Chint Ram V. State of H.P. 1997(2), Chandigarh Law Reporter, 449. Rather, in Mohammad Imtasz Khan alias Sannu vs. The State of Hryana, Recent Criminal Reports (P&H) 456, as per ossification test, the doctor gave the age of the prosecutrix as 14/15 years, the High Court while holding that the error can be up to three years based upon the opinion as per Dr. Modi’s Medical Jurisprudence and Toxicology, Twentieth Edition, at page 31, wherein it was opined as under: “In ascertaining the age of young person radiograms of any of the main points of the upper or the lower extremity of both sides of the body should be taken, and an opinion should be given according to the following table, but it must be remembered that too much reliance should not be placed on this table as it merely indicates an 7 average and is likely to vary in individual cases even of the same province owing to the eccentricities of development of development. Recent work has shown that the range of error may be up 3 years.” 10. Relying on the observations made in the different decisions as indicated above, opinion of PW.4 if taken into consideration, the age of PW.1, cannot be below 18 years. 11. In view of the facts and circumstances and after analyzing the witnesses of the prosecution, we are of the considered view that PW.1 at the time of incident was above the 18 years of age and she was accompanied and interacted with accused Ghanshyam on her own sweet will. Therefore, the question, that the prosecutrix has been sexually assaulted by accused Ghanshyam, does not arise and prosecution cannot be said to have proved its case beyond all reasonable doubts. In our considered view, there is no scope of interference in the findings given by learned Additional Sessions Judge. In view of the aforesaid facts and circumstances, the present 8 criminal appeal being devoid of any merit is dismissed. (Justice R.B. Misra), Judge. June 17, 2010 (Justice V.K. Sharma) (Purohit) Judge