IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.184 of 1997. Decided on: July 30, 2010. State of H.P. …Appellant. VERSUS Brij Lal. ….Respondent. 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. Rajinder Dogra, Addl. A.G. with Mr.Anil Jaswal, Dy.A.G. For respondent: Mr.K. R. Thakur, Advocate. 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 19.12.1996, passed by learned Sessions Judge, Kinnaur Sessions Division, Rampur Bushahr, HP in Sessions Trial No.1-R/7 of 1996, thereby acquitting the respondent / accused person for the offence under Sections 363, 366, 376 of the Indian Penal Code. 2. In order to adjudicate the present appeal, it is necessary to give the brief facts Whether the reporters of the local papers maybe allowed to see the judgment? …2… of the prosecution case. On 14.9.1993, complaint was filed by Dasmi Ram, alleging that accused Brij Lal has forcibly taken her daughter-victim (PW-2).However, Dasmi Ram, father of the victim came to know on 12.9.1993 that the victim-prosecutrix was kept and confined by the accused. The prosecutrix was recovered from the house of accused and her custody was handed over to Dasmi Ram, father of the prosecutrix. Victim-Prosecutrix was got medically examined by PW-1 Dr. Tejbir Singh and thereafter FIR was lodged on 14.9.1993. After investigation, accused was charged for the aforesaid offence and the case was committed to the Sessions Court. 3. In order to prove its case, the prosecution has examined as many as twelve witnesses, whereas, the respondent / accused, through his statement under Section 313 Cr.P.C., has denied the charges and prosecution case and presented one defence witness. 4. PW-1 Dr. Tejbir Singh on examination of the prosecutrix on 16.9.1993 found that the victim was fully grown up girl and found no mark of violence of injury on the external as well as private part of the girl and has opined that victim/prosecutrix has been subjected to …3… sexual assault and the age of the victim was assessed between 13¾ to 16 years. 5. PW-2 Victim-Prosecutrix has stated here age as 13 years. She has further stated that the accused allured her for marriage while she had gone to ‘Mela’ and on such allurement, she was taken by the accused to village Pokhari, where they stayed for 2-3 days. During such stay, she was sexually assaulted. PW-3, Dasmi Ram, father of the prosecutrix has stated that his daughter had gone to Ranikot fair and she was 13 years of age at that time. PW-4, Diwan Chand has stated that the accused and the prosecutrix met him when he was coming from the fair. PW-5, Khyali Ram was associated with the investigation. PW-6 Jhabe Ram, Secretary, Gram Panchayat, had issued certificate Ex PW-6/A regarding the date of birth of the prosecutrix. PW-7 Dhian Singh, Police Constable, PW-8 MHC Khub Ram, PW-9, HC Rishi Raj, PW-10 Tara Chand, constable, PW11 SI Prem Singh and PW-12 Dr. B.K. Bhardwaj, Radiologist were examined by the prosecution. 6. PW-6, Jhabe Ram, Secretary, Grma Panchayat, in reference to the certificate Ex PW-6/A has submitted that there is no mention of month of birth given in the register and he …4… was also not aware who has issued the certificate. On such version, age of the victim-prosecutrix could not be definitely ascertained. 7. PW-12 Dr. B.K. Bhardwaj, on examination of victim/prosecutrix has indicated the age of victim/prosecutrix between 13 ¾ to 16 years. 8. On analysis of the prosecution witnesses and material on record, we notice that the victim/ prosecutrix was taken away by the accused on 6.9.1993 and FIR was lodged on 14.9.193, i.e. by delay of 8 days. Such inordinate delay was not properly explained. The victim-prosecutrix had gone to ‘Mela’ and on allurement for marriage, she accompanied the accused up to his house and during the course of such journey, she admittedly met many people, but did not disclose that the accused was taking her forcibly. In view of the testimony of victim-prosecutix that she had gone to ‘Mela’ and despite meeting many people she did not disclose anything to them that she was forcibly taken by the accused. As such, reference of made by the defence-counsel was taken into consideration by the learned Sessions Judge in Shyam and another Vs. State …5… of Maharashtra AIR 1995 Supreme Court 2169. Relevant para 3 is reproduced s under: “3. In her statement in Court, the prosecutrix has put blame on the appellants. She has deposed that she was threatened right from the beginning when being kidnapped and she was kept under threat till the police ultimately recovered her. Normally, her statement in that regard would be difficult to dislodge, but having regard to her conduct, as also the manner of the so-called "taking", it does not seem that the prosecutrix was truthful in that regard. In the first place, it is too much of a coincidence that the prosecutrix on her visit to a common tap, catering to many, would be found alone, or that her whereabouts would be under check by both the appellants/accused and that they would emerge at the scene abruptly to commit the offence of kidnapping by "taking" her out of the lawful guardianship of her mother. Secondly, it is difficult to believe that to the strata of society to which the parties belong, they would have gone unnoticed while proceeding to the house of that other. The prosecutrix cannot be said to have been tied to the bicycle as if a load while sitting on the carrier thereof. She could have easily jumped off. She was a fully grown up girl may be one who had yet not touched 18 years of age, but still she was in the age of discretion, sensible and aware of the intention of the accused-Shyam, that he was taking her away for a purpose. It was not unknown to her with whom she was going in view of his earlier proposal. It was expected of her then to jump down from the bicycle, or put up a struggle and, in any case, raise an alarm to protect herself. No. such steps were taken by her. It seems she was a willing party to go with Shyam-the appellant on her own and in …6… that sense there was no 'taking' out of the guardianship of her mother. The culpability of neither Shyam, A-1 nor that of Suresh, A-2, in these circumstances, appears to us established. The charge against the appellants/accused under Section 366. I. P. C. would thus fail. Accordingly, the appellants deserve acquittal. The appeal is, therefore, allowed acquitting the appellants.” 9. On the basis of the prosecution witnesses and material on record, learned Sessions Judge, in paragraph 30 of his judgment, has made observations which are reproduced as under: “30. From the perusal of the law laid down as discussed above, it is clear that when there s conflict regarding the age of the prosecutrix the benefit of margin of error should be given to the accused. Moreover, there is no controversy to the proposition that the accused is entitled to the benefit of any doubt occurring in the prosecution case. In the present case, the prosecution has failed to prove that the prosecutrix was 13 years of age at the time of incident and she has been forcibly abducted from the lawful guardianship of PW-3 Dasmi Ram by the accused. The prosecution has failed to prove the ingredients of Section 363 of Indian Penal Code and once the case under Section 363 of Indian Penal Code is not proved the offence under Section 366 of Indian Penal Code automatically becomes non existent. The prosecution has also failed to prove that the accused has committed sexual intercourse forcibly with the prosecutrix without her consent as PW-1 Dr. Tejbir Singh who has examined the prosecutrix has specifically …7… mentioned that the prosecutrix was the consenting party. Moreover, she was habitual to sexual intercourse. The prosecution has also failed to explain the delay in First Information Report. The prosecutrix had gone to the village fair on 6.9.1993 whereas the FIR has been lodged on 14.9.193. Even her father PW-3 has stated that he came to know about the incident after 6 days and thereafter he started searching the prosecutrix. It is not clear why the matter was not reported immediately after the disappearance of the prosecutrix. Further PW-5 Khyali Ram who was President of Gram Panchayat, Karar has stated that he had seen the prosecutrix in the house of the accused even after the registration of the case and she was frequently visiting the house of the accused and he had seen her in the house of the accused for the last 1 ½ year. The prosecution herself has admitted her marriage with the accused in the ‘Mela’ and on the basis of the entire evidence, the inevitable result is that the prosecution has failed to prove its case against the accused beyond all reasonable doubt.” 10. We have carefully gone through the judgment, prosecution witnesses and material on record. We are of the considered view that the prosecution has failed to bring home guilt to the accused and the age of the victim- prosecutrix was doubtful and as per the testimony of PW-12 also, the victim prosecutrix was 13 ¼ to 16 years of age the benefit of approximation of 2 to 3 years could be given. As such, the victim prosecturix was above 18 …8… years of age and being major, she had also married with the accused and was residing with him as his wife. In these circumstances, we are of the considered view that the prosecution has failed to prove that the victim prosecutrix was below 18 years of age and it has also not been proved that she was sexually assaulted by the accused against her will as the victim spent good time with accused without making any hue and cry and subsequently married the accused. In these circumstances, the prosecution has certainly failed to prove its case beyond any reasonable doubt. We find no scope for interference in the impugned judgment and the appeal, being devoid of any merit, is accordingly dismissed. 11. Bail bonds, furnished by the respondent/accused are hereby discharged. ( R.B.Misra ), J. July 30, 2010. ( V.K.Sharma ), J. (sl) …9…