IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 217 of 2000 Date of Decision : November 16, 2010 State of H.P. …Appellant. Versus: Surat Singh …Respondent. Coram: The Hon’ble Mr.Justice R. B. Misra, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. R. K. Sharma, Sr. Addl. A. G. For the respondent: Mr. Dharamveer Sharma, Advocate Sanjay Karol, J. For an offence, which is alleged to have been committed on 8.2.1993, accused was put to trial. In terms of judgment dated 6.11.1999 passed by learned Addl. Sessions Judge, Mandi, in Sessions Trial No. 15 of 1995 titled as State vs. Surat Singh, accused stands acquitted of the charged offence. 2. It is the case of the prosecution that prosecutrix (PW-14) was born on 7.9.1976. Her mother Smt. Barfi Devi (PW-10) had desired the prosecutrix not to pursue her studies and get married early in life. Prosecutrix had passed 8th standard but had 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 failed in the 10th class and left the school. Smt. Seema Devi, eldest daughter of PW-10, who was married to Sh. Pritam Singh (PW-15) and residing at New Delhi was opposed to this idea. On 8.2.1993 at about 10 P.M. accused approached the prosecutrix and told her that her sister Smt. Seema Devi had desired that prosecutrix should come to Delhi. He volunteered to take her. Prosecutrix immediately accompanied the accused and left her house at village Bhambla to a place called Jahu in a taxi owned by Sh. Kali Dass (PW-8). They were accompanied by Sh. Shyam Kumar (PW- 9). From Jahu they went to Bilaspur and stopped for the night at village Panjara where they stayed in the house belonging to the aunt of the accused. On 9.2.1993 accused took the prosecutrix to Chandigarh where he stayed in the house of his relatives. There accused forcibly committed sexual intercourse with the prosecutrix. On 11.2.1993 accused took the prosecutrix to Manimajra where they spent two nights in the house of his another relative. On 10.2.1993, PW-10 learnt that prosecutrix had been taken away by the accused. Consequently she sent her son to Delhi to inquire about their whereabouts. She was informed by her son that prosecutrix had not reached Delhi. Consequently on 12.2.1993 Smt. Barfi Devi (PW-10) got lodged FIR No. 30/93 (Ext.PE) dated 12.2.1993 under Sections 363, 366 & 376 IPC at Police Station Sarkaghat. ASI Rup Lal 3 (PW-16) commenced investigation and recovered the prosecutrix from Manimajra on 13.2.1993. Recovery memo (Ext.PB) was prepared in the presence of PW-15. Custody of the prosecutrix was handed over to her elder brother Tasvir Singh. She was also got medically examined through Dr. Rampal Singh (PW-3) who issued certificate (Ext.PC). Radiological examination was conducted by Dr. Jaya Vaidya, (PW-2) Radiologist, Zonal Hospital, Mandi who determined the age of the prosecutrix to be between 15½ to 16 years. With the completion of investigation challan was presented in the Court for trial. 3. Accused was charged for having committed an offence punishable under Sections 363, 366 & 376 IPC to which he did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined 16 witnesses and the statement of the accused under Section 313 Cr.PC was also recorded. 5. Court below acquitted the accused of the charged offence, hence the presence appeal. 6. As per the version of Dr. Jaya Vaidya (PW-2) upon medical examination she found the radiological age of the prosecutrix to be between 15½ to 16 years. She admits that margin of error of one to two years on either side can be taken into account for determining the exact age. Prosecution has also relied upon certificate (Ext.P6) issued by the school authorities. 4 As per this certificate date of birth of the prosecutrix is 7.9.1976, which also is the date recorded with the Gram Panchayat. As such on 8.2.1993 prosecutrix was above 16½ years of age and if the benefit of two years is to be given to the accused age of the prosecutrix would be more than 18 years. 7. Dr. Rampal Singh (PW-3) medically examined the prosecutrix and issued MLC (Ext.PC). She found that there were no injury marks on the body of the prosecutrix. Her hymen was torn and she had been subjected to sexual intercourse for more than a week. Prosecutrix was examined on 15.2.1993 which means that she was subjected to sexual intercourse even prior to 8.2.1993. It is the case of the prosecutrix herself that accused forcibly sexual intercourse with her for the first time on 9.2.1993. This renders the entire prosecution version to be doubtful if not false. 8. According to the prosecutrix she had left her house in the odd hours of the night without even informing her mother. She admits that she was not even aware of the address of her sister or place where she was residing at Delhi. She also admits that there were some dispute between her sister and mother yet she chose to leave her house in the company of the accused without even informing her mother. 9. Importantly she further admits that accused had asked her to dress-up like a bride so as to camouflage 5 their identities and show as though they were husband and wife. She further admits that at the place where they stayed, accused had informed his relatives that they were married. She also admits that at Mansa Devi temple at Chandigarh accused had put ‘Bindi’ on her forehead and told her that they had become husband and wife. Now she never even objected to all this. 10. Close scrutiny of the entire testimony of PW-14 further reveals that in fact she was party to the entire incident. She voluntarily left her house in the odd hours and travelled by different modes from place to place. She travelled by public transport and at different crowded places. Importantly it is not her case that at any point in time accused had either threatened or intimidated her. She voluntarily travelled by herself. Had it not been so then she would have definitely raised hue and cry and sought help either from the public or from close relatives of the accused where she had stayed for more than four nights. 11. Importantly prosecution has examined neither the brother nor the sister of the prosecutrix. Under what circumstances she was recovered from the accused on 13.2.1993 could have been elucidated by the brother. According to the prosecution accused had received a letter written by her sister. This fact could have been proved on record. 6 12. Medical evidence further belies the version of the prosecutrix that accused had committed sexual intercourse without her consent and by force. Prosecutrix did not resist the advances of the accused. For the aforesaid reasons version of the prosecutrix does not inspire confidence. It is not a case where prosecutrix was subjected to rape in an isolated place, as according to her she was subjected to rape every night from 9.2.1993 upto 12.2.1993 in the house where people were there. Even neighbours were present. 13. To us it appears to be a case of consensual sex. Parties appeared to have got married after running away from the house. Their marriage was not acceptable to the mother, hence false case was registered against the accused. 14. We further find that the mother found her daughter to be missing from the house on 8.2.1993 itself. Son has not been examined in the Court to show that he had actually gone to Delhi to inquire about the whereabouts of the prosecutrix. This version, therefore is unacceptable. Complaint was lodged by the mother only on 12.2.1993. This unexplainable delay definitely renders the prosecution case to be doubtful if not false. The version of the relevant prosecution witnesses cannot be said to inspire confidence and trustworthy and reliable. 7 15. 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 vs. 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 persons has resulted 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. (R. B. Misra) Judge. (Sanjay Karol), Judge. November 16, 2010. (rana)