IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 54 of 1999 Reserved on: June 19, 2010 Date of Decision : September 17, 2010 State of H.P. …Appellant. Versus: Shakuntala Devi & Ors. …Respondents. 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. Rajesh Mandhotra, Dy. A. G. For the respondents : Mr. Jagdish Vats, Advocate Sanjay Karol, J. For an offence, which is alleged to have been committed on 3.12.1997, accused were put to trial. In terms of judgment dated 8.10.1998 passed by the learned Sessions Judge, Solan, H.P. in Sessions Trial No. 10-K/7 of 1998 titled as State of H.P. vs. Shakuntala & Ors., accused persons stand acquitted of the charged offence. 2. On the basis of the complaint made by Sh. Ram Swaroop (PW-13), F.I.R. dated 17.3.1998 (Ext.PW- 11/A) was registered with Police Station, Kandaghat under Section 363 IPC. As per the complainant, on 3.12.1997 his daughter (prosecutrix) suddenly left home. He searched for her 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 where his relatives reside. On 16.3.1998 he was informed by one Chanan Singh (PW-3) that prosecutrix had been seen in the house of accused Shakuntala Devi, resident of Kot Ranjha, District Nawa Sahar, Punjab. His minor daughter had been taken away without his permission and was removed from his lawful custody and kept by the accused at some place. With the registration of the F.I.R., ASI Anil Kumar (PW-14) started the investigation by visiting village Kot Ranjha where he was informed by Shakuntala Devi (accused No.1) and Sucha Ram (accused No.2) that they had earlier sold the prosecutrix to Mohna (accused No.4) and then later on to Balwant Singh (accused No.3). House of Balwant Singh at village Jatan Majra, Police Station Kathgarh, Punjab was raided and the girl was recovered from his custody. She was handed over to her parents i.e. father Ram Swaroop (PW-13) and mother Roshni Devi (PW- 2). The accused persons were arrested and the statements of the witnesses were also recorded. The prosecutrix and the accused persons were got medically examined and their medical record was taken by the police. To ascertain the age of the prosecutrix she was got medically examined and the record of the Panchayat was also taken on record. 3. With the completion of the investigation, challan was presented in the Court for trial and accused Shakuntala Devi was charged for having committed offences punishable under Sections 363, 366-A, 372 & 376 read with Section 120-B IPC; accused Mohna was charged for having committed offences 3 punishable under Sections 376, 373, & 368 IPC; accused Sucha Ram was charged for having committed offences punishable under Sections 363, 366-A, 368, 376 & 372 read with Section 120-B IPC and accused Balwant Singh was charged for having committed offences punishable under Sections 376, 373 & 368 IPC. The accused persons did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined 14 witnesses and the statements of the accused under Section 313 Cr.PC were also recorded. Learned Sessions Judge acquitted the accused of all the charged offences, hence the present appeal. 5. In the present case the matter was reported to the police only on 17.3.1998 whereas the offence is alleged to have been committed on 3.12.1997. Smt. Roshni Devi (PW-2) has deposed that three days after the incident she had been informed by an old lady that the prosecutrix had been seen in the company of accused No.1 and that they were going towards Kandaghat. Now when the prosecutrix was last seen with the said accused in December 1997 itself then why no complaint was ever lodged with the police, the members of the biradari, or the local panchayat has yet not been explained. Even PW-13 does not mention this fact while getting the FIR registered. Why so has not been explained. Further, PW-13 admits that in fact he had been advised by the Paradhan Gram Panchayat to report the matter to the police and yet he did not take any action for more than 3½ months. Delay in lodging the FIR in the present case is totally unexplainable. No doubt in the FIR it is so recorded that 4 PW-13 had made inquiries about the whereabouts of the prosecutrix from his relatives but however no evidence has been led to this effect. Who were these relatives, where did they live and what enquiries were made by him has not been explained. All this renders the prosecution case to be extremely doubtful. 6. With regard to the age of the prosecutrix, learned Sessions Judge has held that prosecutrix was more than 18 years of age at the time of the occurrence of the incident. 7. In this regard statements of PW-2, PW-13, Dr. J.P. Kaushik (PW-8) and Ashwani Kumar (PW-5) are relevant. 8. We find that on this point statements of PW-2 & PW-13 are contradictory. According to PW-2, her marriage was solemnized 35 years ago. She was examined on 10.8.1998. She admits that the difference between the birth of each child is between 1 to 1½ years and her first child i.e. daughter was born two years after her marriage. Out of the wedlock, seven children were born and prosecutrix is the 6th child. Now if the marriage was solemnized in the year 1963 then as per her calculation prosecutrix would have born sometimes in the year 1974-1975. 9. However, according to Sh. Ram Swaroop, he was married in the year 1966 and the first child was born after a period of one year of marriage and there is a gap of about 2½ years between the birth of all other children. Even if this statement of his is accepted to be true, even then prosecutrix would have born sometimes in the year 1979 and thus as on the date of alleged offence would have crossed the age of discretion. 5 10. Further, prosecution has tried to prove the age of the prosecutrix through the statement of Sh. Ashwani Kumar (PW-5), Secretary Gram Panchayat, Bisha-Basha who proved the certificate (Ext.PW-5/A) which is in abstract of the birth register maintained by the Panchayat. As per this certificate the date of birth of the prosecutrix is 28.10.1983. PW-5 admits that name of the Chowkidar who reported the matter has not been recorded in the birth register. He further admits that except for the entry pertaining to the birth of the prosecutrix there is no other entry recording the birth of any of the other children of PW-13 and PW-2. That apart, he admits that the register was not maintained in a chronological manner as entries pertaining to the year 1984 were entered prior to the entries of birth pertaining to the year 1983. Similarly, entries of birth pertaining to the year 1979 were recorded prior to the entries of birth pertaining to the year 1973. The year of birth as recorded in the register also does not match with the statements of PW-2 & PW-13. All this raises the authenticity of the register to be doubtful and not much credence can be lent to it. 11. The ossification test of the prosecutrix was got done by Dr. J.P. Kaushik (PW-8), according to whom as on the date of examination the age of the prosecutrix was between 14½ to 17 years. Now this witness admits that in the case of the prosecutrix there was complete fusion of Epiphysis. He further admits that this fusion is delayed in colder regions and also due to poor diet. These factors are extremely relevant insofar as the 6 prosecutrix is concerned. He further admits that he did not carry out the X-ray himself and the ossification test is not 100% correct proof of the age of the person. Now the person who carried out the X-ray has not been examined by the prosecution. Therefore, not much reliance can be placed on the report. Hence it cannot be said with certainty that prosecutrix is proved to be less than 18 years of age as on the date of the incident. 12. It is the case of the prosecution that initially the girl was sold by accused Sucha Ram and accused Shakuntala Devi to accused Mohna and then thereafter to accused Balwant for a sum of Rs.13,500/- and Rs.18,000/- respectively. Now in this regard there is no iota of evidence as to in whose presence, when and where the money was paid. Except for the prosecutrix to this effect none has deposed. On this point her statement does not inspire confidence. Except for her bald statement there is nothing on record to corroborate the same. She admits that while remaining in the house of the accused persons she did not tell any one that she was brought under allurement and was subsequently sold. She explains that she did not do so as Shakuntala Devi had threatened her of cutting her into pieces but however when confronted with her earlier statement Ext.DA, admits this fact not to be recorded therein. Such improvements, in the absence of any corroboration cannot be relied upon to hold the accused guilty of the charged offence. 13. With regard to the offence of rape, prosecutrix was examined by Dr. (Mrs.) Sarla Chand (PW-6) who opined that 7 prosecutrix was habitual to sexual intercourse and there is no evidence of forcible sexual assault. Now according to the prosecutrix she remained in the house of accused Balwant for about 20 to 22 days and in the house of accused Mohna for one month. She was taken by accused Shakuntala Devi from her village to Kandaghat. From Kandaghat she was taken by accused Shakuntala Devi and accused Sucha Ram to village Kot Ranjha and from there to village Jatan Majra. Both accused Balwant and Mohna forcibly committed sexual intercourse with her at the time when she was made to stay with them. Now except for the bald statement of the prosecutrix, which also is unspecific with reference to exact place, time and date, there is no other material on record to prove this fact. 14. Her statement, in our view, does not inspire confidence. In her statement she admits that on way to Kandaghat she had met an old woman from village Birni with whom she had conversation. Before reaching the house of accused Shakuntala Devi they had passed through various crowded places including Bus Stand. They had travelled by bus and yet she did not raise any hue and cry or inform any one about the fact that she had been kidnapped/abducted. She admits that in the house of the accused persons there were other persons including women and that she neither raised any hue and cry nor did she make any grievance about the alleged acts with anyone. It could not be proved that she was under any threat or intimidation in the house of either accused Mohna or Shakuntala Devi. Thus it could 8 not be proved that the accused persons had forcibly committed sexual intercourse with the prosecutrix. She freely moved from one place to another without any promise or enticement. Sexual intercourse, if any, appears to be with her consent. She willfully left her parental house and accompanied the accused. She neither resisted any of the acts nor raised any alarm. Thus it cannot be said that the prosecution has been able to prove its case against the accused persons. 14. The accused have 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. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. September 17, 2010. (rana)