1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 379 of 1997 Decided on October 7, 2010 ____________________________________________________ State of H.P. …Appellant. Versus Hasam and Another ...Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr. R.K.Sharma, Senior Additional Advocate General, with Mr. Rajinder Dogra, Additional Advocate General. For the respondents: Mr. Ashwani Sharma, Advocate. Justice R.B. Misra,J. (Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure has been granted in reference to judgment dated 27.6.1996, passed by Learned Additional Sessions Judge-I, Kangra at Dharamshala, H.P., in Sessions Case No. 13-N/95, under Sections 376 and 366 of the Indian Penal Code, acquitting the alleged accused/respondents. 2. The prosecution case, in brief, is that on 6.5.1994 the victim / prosecutrix (name not given) on her way to Bhudhukar for selling the milk, in absence of her parents, reached near the 'Dera' of Baji, she came across, both the accused-respondents met her, out of whom, accused No.2 proposed the victim / prosecutrix to marry her, to which she refused. Accordingly, the accused-respondent No.2 followed her 2 and assurance was given to the victim / prosecutrix that her milk would be sold by accused-respondent and she should attend to his domestic work at his 'Dera'. The accused followed the victim / prosecutrix to the 'Dera' of Baji. The victim / prosecutrix alongwith Smt. Kako wife of Baji, went to the river site for washing rags (Khind) and returned at about 6-7.00 P.M. They took the meals and slept in the house of above Kako. In the night, both the accused-respondents lifted the victim / prosecutrix (PW.5), while she was sleeping and forcibly took her in a Taxi, parked near the house of Baji. The mouth of the victim / prosecutrix was gagged with a 'Chunni' and she was taken and was kept for three days in the house of accused, where she was sexually assaulted and on the fourth day accused took the victim / prosecutrix to the house of Hasam, accusedNo.1, and kept her there for some time. Thereafter, the victim / prosecutrix was taken to Hazipur, where, she was kept for about 7-8 days and about 20 days the victim / prosecutrix was kept with accused No.2, however, she was recovered on 29.5.1994 i.e. after 23 days. On complaint, the accused-respondents were charged for the aforesaid offences and the case was committed to the Sessions Court. 3. In order to prove its case, the prosecution has examined as many as 15 prosecution witnesses, whereas, the accused through their statements under Section 313 of Cr.P.C., have shown their innocence and denied the prosecution case. 4. The prosecution has examined PW.1 Dr. T.K. Roy, who attended upon accused Bikha and issued MLC Ex.PW.1/A, 3 PW.2 Dr.B.B.Sharma, who had conducted the ossification test of the victim / prosecutrix and issued the report Ex.PW.2/C. PW.3 Dr. B.M. Gupta, who attended upon accused Hasam and issued MLC Ex.PW.3/A. PW.4 Dr.Niti Agarwal, who attended upon the victim / prosecutrix and issued report Ex.PW.4/A. PW.5 Salima Bibi, the victim / prosecutrix, PW.6 Abdul Rehman, the father of the victim and PW.7 Fatto Bibi is the mother of the victim / prosecutrix. PW.8 Jagjivan Singh, PW.9 Arun Mittra, PW.10 H.C. Shakti Chand, PW.11 LHC Birbal, PW.12 LHC Mast Ram and PW.14 Inspector Harbans Singh are the formal witnesses and PW.13 Kanshi Ram is ithe Investigating Officer. PW.5 Bishan Dass has proved the documents Ex.PW.15/A and Ex.PW.15/B. 5. On analysis of the prosecution witnesses and materials on record, the victim / prosecutrix (PW.5) has admitted that she was recovered by the police from the house of Gulam Ali, but PW.13 the Investigating Officer, has admitted that he saw the victim / prosecutrix at Dharamshala on 3.6.1994 and recorded her statement on 7.6.1994. In view of statement of PW.13, when the victim / prosecutrix was recovered both the accused-respondents were also accompanying the victim / prosecutrix, whereas, statements of PW.5 and PW.13 are contrary to each other, which further gives rise to the suspicion in the prosecution case. The case of the prosecution is that the victim / prosecutrix was abducted from the house of Baji, but vide Ex.D-1, father of the victim / prosecutrix has deposed that when the victim / prosecutrix went to the house of his elder daughter, the victim / prosecutrix was abducted. Father of the 4 victim / prosecutrix has disclosed the age of the victim / prosecutrix at the relevant time was about 19 years. 6. PW.7 Fatto Bibi, the mother of the victim / prosecutrix has stated that she got married at the age of 21 years and delivered first issue i.e. victim / prosecutrix, after one year of the marriage. According to PW.7 the age of the victim / prosecutrix is about 20 years. PW.4 Doctor Neeti Aggarwal had attended upon the victim / prosecutrix and has stated the age of the victim / prosecutrix to be 16 ½ years. PW.4 has further stated that there was no mark of injury on any part of her body, however, possibility of sexual intercourse during the last two months was not ruled out. 7. On analysis of the testimony of PW.4, we find that medical report is not reliable. The more important aspects, which are necessary to be noticed, are that when victim / prosecutrix was taken on 6.5.1994, in the night, while sleeping she did not raise any hue and cry and during stay of more than 23 days, she had happened to travel to different places and despite getting opportunity to escape, she did not endeavour to escape. The victim / prosecutrix during the travel and stay with the accused-respondents also did not put any resistance and even she did not raise any alarm while she was got sexually assaulted. Furthermore, the victim / prosecutrix did not endeavour to make report to the police or any person in the locality, it appears that the victim / prosecutrix was the consenting party and was feeling comfortable in the company of the accused-respondents and she being major, as such, cannot 5 be said to have been abducted from the lawful custody of her parents and being above 16 years of age, no case is made out, under Sections 376 and 366 of the Indian Penal Code, against the accused-respondents. 8. In the facts and circumstances, learned Additional Sessions Judge, has carefully analyzed the prosecution witnesses and has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond 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 criminal appeal, being devoid of any merit, is dismissed. 9. The bail bonds furnished by the accused/respondents are hereby discharged. (R.B. Misra) Judge October 7, 2010 (V.K. Sharma) (Purohit) Judge