IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No. 209 of 2000. Date of decision: 11.11.2010. State of Himachal Pradesh …Appellant. Versus Ravinder Kumar ..Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice, Kuldip Singh, Judge. Whether approved for reporting ? For the appellant : Mr. R.K.Sharma, Sr.Additional Advocate General. For the Respondent : M/s Anand Sharma and Ashok Tyagi, Advocate. __________________________________________________________ Kuldip Singh, Judge (Oral) The respondent was prosecuted for having committed offence punishable under Sections 363, 376 IPC but the learned Additional Sessions Judge, Mandi in Sessions trial No. 15/1996 has acquitted the respondent on 23.8.1999. 2. The prosecution case, in brief, is that PW-4 prosecutrix was studying in 10th standard, Government Senior Secondary School, Chauntra in March, 1995. She was below 18 years. On 8.3.1995 prosecutrix had left her house to appear in final examination of Sanskrit paper. PW-3 Monica and one Madhu had also accompanied the ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 prosecutrix. At about 8.00 a.m. on 8.3.1995 the respondent was noticed coming from Jogindernagar towards Dak-bagra in a taxi bearing registration No. HP-02-2274. The respondent forcibly took the prosecutrix in the taxi towards Baijnath. He threatened PW-3 Monica and Madhu not to disclose the incident to anyone otherwise they would be similarly treated. The respondent took prosecutrix to various places in Mandi District from 8.3.1995 to 16.3.1995. On 16.3.1995 respondent dropped the prosecutrix at Mandi where she stayed at the house of sister of her father. On 17.3.1995 the prosecutrix returned to her house. She narrated the incident to her father PW-1 Jai Singh. PW-1 reported the matter to police and FIR Ex.PW-1/A was registered. The respondent was arrested on 22.3.1995. 3. The prosecutrix was got medically examined. As per certificate Ex.PW-5/A, the date of birth of the prosecutrix was 24.10.1977. On completion of investigation, report under Section 173 Cr.P.C. was filed in the court. The respondent was charged for having committed offence punishable under Sections 363, 376 IPC. The respondent denied the charge and claimed trial. The prosecution has examined 12 witnesses. The statement of respondent was recorded under Section 313 Cr.P.C. He denied the prosecution case but no evidence in defence was produced. The learned Additional Sessions Judge on conclusion of trial, acquitted the respondent, hence the State has come in appeal. 4. We have heard the learned counsel for the parties and have also gone through the record. The learned Senior Additional Advocate General has submitted that learned Additional Sessions Judge has misconstrued and mis-interpreted the evidence on record. The prosecution has proved the case against the respondent. The inference 3 drawn by the learned Additional Sessions Judge from the evidence while acquitting the respondent is wrong. He has submitted that in these circumstances, the impugned judgment may be set-aside and respondent may be convicted and sentenced in accordance with law. The learned counsel for the respondent has supported the impugned judgment and has submitted that the learned Additional Sessions Judge has rightly acquitted the respondent. There is no mis-reading and misconstruction of evidence in the impugned judgment. 5. In order to appreciate the submissions made by the learned counsel for the parties, it is necessary to refer to the evidence which has come on record. PW-1 Jai Singh, father of the prosecutrix has stated that in March, 1995 the prosecutrix had completed 17 years. On 8.3.1995 he returned to his home in village Bharyara, his wife told him that prosecutrix had gone to appear in final test of 10th standard on 8.3.1995, but had not returned. It was already dark, therefore, he could not search his daughter on 8.3.1995. On the next day, he searched his daughter. Monica had been attending the school along with his daughter. On 9.3.1995, Monica did not tell anything about his daughter. On 14.3.1995 Monica told him that respondent alongwith one driver and one boy were in the taxi. The respondent caught hold of his daughter from hair and forcibly asked her to board the taxi and in this way his daughter had gone with the respondent. He reported the matter to police vide FIR Ex. PW-1/A on 15.3.1995. On 17.3.1995 the prosecutrix returned to his house. The prosecutrix told him that she was kidnapped and raped by respondent at various places. The date of birth of prosecutrix is July, 1977. In cross- examination, he has stated that he has reported the birth of his daughter to the Gram Panchayat. The prosecutrix was born in Military Hospital, Jammu in the year 1977. He had not admitted his daughter in the school. 4 He denied that of her own the prosecutrix had escaped. He was not aware whether his daughter had been carrying friendship with respondent since 1993 onwards. He denied that his daughter was not taken away by respondent. 6. PW-2 Smt. Shakuntla, mother of the prosecutrix has stated that in the year 1995 prosecutrix was 17 years old. On the day of occurrence her daughter had gone to appear in the final examination of 10th standard but had not returned. The prosecutrix had returned to her house after two days. She did not enquire anything from her daughter. In cross-examination, she has stated that till today, she had not enquired from her daughter where she was when she was not in her house. She had denied that her daughter was interested in marriage with respondent. PW-3 Monica has stated that on 8.3.1995 respondent had caught hold of hair of prosecutrix and had lifted the feet and legs of the prosecutrix into the taxi. In cross-examination, she has stated that she was not aware whether respondent and prosecutrix had been carrying on for quite some time prior to 1995. 7. PW-4 prosecutrix has stated that on 8.3.1995 respondent had forcibly taken her inside the taxi and had gone away. The taxi driver had warned Monica and Madhu not to disclose anything to anyone or else they would be treated in the same way. In the taxi the respondent had gagged her mouth. At Baijnath, she and respondent stepped out of the taxi near a temple. She was taken to Lad Bharol. The respondent took her to his relatives and friends at various places in Mandi District for about one week. The respondent had committed rape on her person on number of occasions despite her protest. On one occasion, the respondent had taken her to a hotel at Mandi. In the hotel also, he committed rape on her. On 16.3.1995, she was dropped at Mandi where 5 she stayed with the sister of her father. On 17.3.1995 she returned to her father’s house. She was medically examined. The respondent threatened her not to raise hue and cry. In cross-examination, she has stated that prior to 8.3.1995, she had written some letters to respondent and one of such letter is Ex.DX. She had also sent greeting card Ex.DY to respondent. There were some houses at a distance of 50 yards from the place from where she was taken away by respondent in the van. She and respondent had boarded a private bus which was moderately packed with passengers. She did not inform anyone that respondent had taken away her by force. They visited one shop at Lad Bharol. She did not inform the shopkeeper that respondent had taken her away forcibly. They had reached bazar at Mandi late in the evening. She had not informed in the bazar at Mandi that respondent had forcibly taken her away. She had not informed the hotelier that she had been forcibly taken away by respondent. At bus stand Mandi or in the bus while on way to Aut, she did not tell anybody that respondent had taken her away forcibly. 8. PW-5 Lalji Pandey is the retired Principal, Chauntra and has stated that he issued certificate Ex.PW-5/A showing the date of birth of prosecutrix 24.10.1977. PW-6 Dr. Mohni Kamal, Medical Officer, Civil Hospital, Jogindernagar has stated that on 17.3.1995 she had examined the prosecutrix and has issued MLC Ex.PW-6/B. In the report, she has stated that on examination it appeared that prosecutrix was habitual to intercourse already. In cross-examination, she has stated that there was no sign of scuffle on her body. PW-7 Dr. D.D. Rana, has examined respondent and issued MLC Ex.PW-7/B. PW-8 Santokh Singh has stated that register of visitors of his hotel Koyal had already been seized by the police in another case and therefore, he was not in a position to produce the register. PW-9 Puran Chand, ASI has stated that Jai Singh 6 complainant had visited the Police Station and had lodged FIR Ex. PW-1/A at Police Station, Jogindernagar. 9. PW-10 Prem Lal has stated that on 8.3.1995 he was driving taxi No. HP02-2274 from Jogindernagar to Baijnath. The respondent signaled for stopping of his taxi near Dakbhagra. One girl accompanied the respondent. He had provided lift to respondent and girl in his taxi from Dakbhagra to Baijnath. He was declared hostile and was cross-examined by the prosecutor. He has denied that respondent had threatened the two girls and had asked them not to disclose the matter to anyone. He has also denied that respondent had gagged the mouth of the prosecutrix. In the cross-examination conducted on behalf of the respondent he has stated that he was carrying one passenger from Jogindernagar to Baijnath. The respondent and one girl had sought lift at a distance of 7 KM from Jogindernagar. PW-11 Sanjeev Kumar deals in readymade garments at Lad Bharol. He has stated that respondent and a lady had visited his business premises at Ladbarol about 3 – 4 years back and they purchased one lady suit from him. PW-12 Pritam Singh, S.I. is the investigating officer. He has denied that respondent has been falsely implicated in the case. In the statement under Section 313 Cr.P.C., the respondent has denied the prosecution case. 10. In FIR Ex.PW-1/A it has been stated by PW-1 Jai Singh that after receiving the information that prosecutrix had been missing since 8.3.1995 he reached his home on 9.3.1995. Ex.PW-6/B is the MLC of the prosecutrix wherein it has been stated that it appears that she is habitual to intercourse already. Ex.PW-5/A is the certificate issued by the Principal, Govt. Sr. Secondary School, Chauntra wherein date of birth of the prosecutrix has been shown 24.10.1977. The respondent was prosecuted for offence punishable under Section 363 and Section 376 7 IPC. The learned Senior Additional Advocate General has relied on certificate Ex.PW-5/A and has submitted that in such certificate the date of birth of the prosecutrix is written 24.10.1977, therefore, on 8.3.1995 the prosecutrix was less than 18 years of age. There is substance in the submission of the learned counsel for the respondent that on 8.3.1995 the prosecutrix was above 18 years of age. The certificate Ex.PW-5/A is not primary evidence. This certificate has been given by PW-5 from the other record but that record has not been placed on the file. 11. PW-1 Jai Singh father of the prosecutrix has stated that the prosecutrix was born in July, 1977. He has also stated that he had reported the birth of his daughter to the Gram Panchayat and the prosecutrix was born in military hospital, Jammu. The date of birth of the prosecutrix from Gram Panchayat or military hospital, Jammu have not been placed on record. PW-1 has also stated that he had not got admitted the prosecutrix in the school. Therefore, who got recorded the date of birth 24.10.1977 in the school record on the basis of which certificate Ex.PW-5/A has been issued that has not been made clear. The date of birth of the prosecutrix 24.10.1977 shown in certificate Ex.PW-5/A is in contradiction to the statement of PW-1 that date of birth of prosecutrix is July, 1977. The learned Additional Sessions Judge on the basis of material on record including medical evidence has recorded a finding that on 8.3.1995 the prosecutrix was above 18 years in age. The prosecutrix herself in the court has given her age 23 years (running) on 23.3.1999. The occurrence took place in March, 1995. This means that prosecutrix had completed 23 years atleast on 23.3.2000. But according to certificate Ex.PW-5/A, the prosecutrix would complete 23 years on 24.10.2000. The benefit of confusion regarding the age of prosecutrix 8 when it has not been cleared by the prosecution would certainly go to the respondent. In these circumstances, no fault can be found with the finding recorded by the learned Additional Sessions Judge that prosecutrix was above 18 years of age on 8.3.1995. The prosecutrix remained with the respondent from 8.3.1995 to 16.3.1995 and visited various places including bazars, shops. She travelled in the buses, stayed in the hotel but without any resistance. This indicates that the prosecutrix of her own without any coercion or pressure from respondent voluntarily accompanied him from place to place. Hence, the learned Additional Sessions Judge is right in acquitting the respondent under Section 363 IPC. 12. In so far offence under Section 376 IPC is concerned against the respondent that is on very weak footing. Ex.DX is the letter dated 22.2.1995 written by prosecutrix to respondent and it shows that the prosecutrix was in deep love with the respondent and she wanted to marry him. Ex.DY is the greeting card of prosecutrix to respondent. The prosecutrix went with the respondent on 8.3.1995 of her own. She has stated that respondent had sexual intercourse with her on several occasions from 8.3.1995 to 16.3.1995, during this period she visited many places such as bazars, shops but she never raised any grievance against respondent. She even stayed in a hotel, but never disclosed to anyone that respondent had been sexually assaulting her against her wish. The statement of the prosecutrix that respondent has committed sexual intercourse against her wish is not believable. The MLC Ex. PW-6/B of the prosecutrix indicates that she was habitual to sexual intercourse. The prosecutrix was medically examined on 17.3.1995 and no injuries were found on her person. This also negatives the case of the prosecution that respondent had been forcibly assaulting the 9 prosecutrix sexually against her wish. The consent of the prosecutrix for sexual intercourse has been established from her long conduct when she remained with the respondent but not raised any grievance to anyone against the sexual intercourse performed by the respondent. The learned Additional Sessions Judge after due appreciation of evidence on record has rightly recorded the finding against the prosecution under Section 376 IPC. 13. The prosecution has miserably failed to point out that learned Additional Sessions Judge has misconstrued, mis-interpreted the evidence on record in acquitting the respondent for offence punishable under Sections 363, 376 IPC. The inference drawn by the learned Additional Sessions Judge cannot be said to be wrong. There is no merit in the appeal, which is accordingly dismissed. The bail bonds of the respondent are discharged. (R.B.Misra), Judge. (Kuldip Singh), Judge. November 11, 2010(GR).