IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 151 of 2001 Date of Decision : 5.1.2011. State of Himachal Pradesh …Appellants. Versus Gulbir and another. . …Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting ? For the appellant : Mr. R, K. Sharma, Senior Addl. Advocate General with Mr. Rajinder Dogra, Addl. A.G. For the Respondents : Mr. Anand Sharma, Amicus Curiae. R.B. Misra, J(Oral) The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment dated 28.10.2000, passed by the learned Additional Sessions Judge, Mandi, H.P. in Sessions Trial No. 29 of 1995, acquitting the alleged accused for the offences under Sections 363, 366 and 376 of the Indian Penal Code. 2. The prosecution case, in brief, is that the victim- prosecutrix was taken on 18.2.1995 by the accused persons to their place by alluring for marriage where the respondents-accused had committed sexual assault on the victim-prosecutrix against her wishes. Victim-prosecutrix was accompanied accused Brij Pal on 2 18.2.1995 and thereafter on 20.2.1995, a complaint regarding her missing was lodged by her father and she was recovered on 24.2.1995. Thereafter she was medically examined. On the basis of the complaint, the accused were charged for the aforesaid offences and the trial was conducted by learned Additional Sessions Judge, Mandi. 3. In order to prove the case of the prosecution, the prosecution examined as many as 12 prosecution witnesses, namely, Dr. M.L. Nadha(PW-1), Kumari Munish (PW-2), Ram Singh(PW-3), Neetu (PW-4), Dr. Fulan Rani(PW-5), Savita Bhatia(PW-6), Dr. Kiran Malhotra(PW-7), Dr. Balbir Singh Verma (PW-8), Iqbal Mohammad(PW-9), Dr. V.K. Pathak (PW-10), Sher Singh (PW0-11) and Mast Ram (PW-12). 4. According to the prosecution victim-prosecutrix was allured by accused-respondents and was taken to different places and was sexually assaulted against her will, as such, the accused- respondents were held guilty of the aforesaid offences. According to the prosecution, the radiological age of the victim-prosecutrix was 13 to 15 years and she was the youngest child of her father and in view of her testimony, she was 13 years of age at the time of incident and was sexually assaulted by the accused- respondents, therefore, they were liable to be held guilty of the offences in question. 5. In order to prove as to whether the victim-prosecutrix was minor at the relevant time and was taken against her wishes and was sexually assaulted without her consent, we have to see 3 the testimony of the prosecution witnesses and materials on record. 6. PW-1 Dr. M.L. Nadha examined accused Brij Pal and opined that the age of Brij Pal was between 17 to 20 years. 7. PW-2 victim-prosecutrix, stated that her father was working as Sweeper in B.B.M.B. at Sundernagar and she was the youngest daughter of her parents. She was 13 years of age in the year 1995. Her mother had died several years back. She was residing in the quarter allotted to her father. Accused No.2 Gulbir had been working as Sweeper in B.B.M.B. at Sundernagar. Accused No.1 is the brother of the wife of accused No.2, who too was allotted residence in B.S.L. colony near the residence of the victim-prosecutrix. Accused No.1 Brij Pal had been visiting the accused Nos. 2 and 3 and all the accused had been visiting the house of the victim-prosecutrix and reciprocately the victim- prosecutrix was also visiting the house of accused No.2 at Sundernagar. As per the testimony of victim-prosecutrix, accused No.1 Brij Pal had gone to drop his sister in village Rajpuragari in District Mujjafarnagar and after dropping his sister in his village in Rajpuragari, accused No.1 Brij Pal had returned to Sundernagar. On 18.2.1995, Brij Pal and accused Gulbir had invited PW-2 to their residence where PW-2 was sexually assaulted. As per the testimony of PW-2, she did not cry as she was afraid of being put to shame. Accused Brij Pal had asked PW-2 to marry, on that PW- 2 suggested that the matter may be taken to her father. The accused persons offered tea to PW-2, whereupon she turned 4 unconscious and regained consciousness at Panipat bus-stand from where PW-2 was taken to Yamuna Nagar by accused Brij Pal and Gulbir to the house of the brother of the accused person Gulbir at Yamuna Nagar. Accused Brij Pal had committed sexual intercourse with PW-2 against her consent at Yamuna Nagar. Thereafter, accused Birj Pal and Gulbir took PW-2 to village Rajpuragari, where police came alongwith her father and incident was narrated to her father. As per the testimony of PW-2, accused Nos. 1 and 2 provided all comforts to PW-2, when she was taken to Yamuna Nagar and Rajpuragari. PW-2 in cross-examination has stated that there were number of quarters in BS.L. colony. She further stated that close to the quarter of accused Gulbir, some quarters were under occupation and some quarters were vacant. As per the testimony of PW-2, the incident took place in the month of February either on 18th or 19th of 1995. PW-2 has categorically indicated in her cross- examination that there were number of persons present at bus- stand Panipat when she regained consciousness. Police was also present at Panipat. However, neither PW-2 informed anyone that she was being kidnapped nor she raised any hue and cry either at Panipat or at Yamuna Nagar, whereas there were number of houses close to the house where PW-2 was kept in village Yamuna Nagar as also in village Rajpuragari. As per the testimony of PW-2 in cross-examination, there were women and children of the brother of the accused Gulbir at his residence but all of them were stated to have gone outside for work when she was sexually 5 assaulted by accused Brij Pal there. As per the testimony of PW-2, she stayed at Yamuna Nagar for one day. Probably on second day she had gone to Rajpuragari. During that time she had not visited the market. However, she had very categorically indicated that there were number of persons present in the bus when she had gone to Yamuna Nagar and Rajpuragari. 8. PW-3 Ram Singh in his endeavour to support the prosecution case, has stated that the matter was reported by him to the police and accordingly the FIR Ext.PW-3/A was lodged on 20.2.1995. PW-3, being the father of the victim-prosecutrix had accompanied the police party to the village of the accused persons, where PW-2 was recovered from the house of accused Nos. 1 and 2 in village Rajpuragari in District Mujjafarnagar. PW-3 Ram Singh has stated in cross-examination that there were about 250 persons of his community in B.S.L. colony at Sundernagar and his daughter (victim-prosecutrix) had left the house on 18.2.1995 at about 8.00 p.m. when he was not at home. The victim-prosecutrix left the house without informing her brother and sister. However, Rajesh had informed PW-3 that he had seen the victim-prosecutrix boarding a bus at Bhojpur in the company of two boys. On comparing the testimonies of PW-2 (victim- prosecutrix) and PW-3 Ram Singh/father of the victim-prosecutrix, we notice that the victim-prosecutrix had gone to the place of accused Brij Pal on his invitation and thereafter she was offered tea and became unconscious and regained consciousness at Panipat bus-stand, whereas as per the testimony of PW-3 when he 6 was informed by Rajesh that his daughter was boarding the bus at Bhojpur in the company of two boys. It is very surprising how the victim-prosecutrix could be taken in an unconscious condition by the accused persons in bus and the people will not take notice of such fact. In view of the testimony of PW-3, the victim-prosecutrix had left her home on 18.2.1995 at about 8.00 pm without informing her own brother and sister. 9. PW-4, Neetu another sister of the victim-prosecutrix in her endeavour to support the prosecution case, has stated that the victim-prosecutrix on 18.2.1995 was about 13 years of age and the victim-prosecutrix had gone out from her home on 18.2.1995 and was traced after 3-4 days and was brought by her father from the village of accused Gulbir. PW-4 also does not say that the victim- prosecutrix was forcibly taken by the accused persons. 10. PW-5 Dr. Fulan Rani had issued School Leaving Certificate Ext.PW-5/A. As per the certificate, the date of birth of the victim-prosecutrix was 1.2.1982. In cross-examination PW-5 has stated that the name of guardian who got PW-2 admitted in school was recorded as Ram Dass. PW-5 further indicated that the name of the person admitting the victim-prosecutrix was not mentioned whereas some signatures were obtained. However, the birth entry from the Municipal Corporation had not been produced at the time of admission of the victim-prosecutrix in the school. 11. PW-6 Savita Bhatia, Head Mistress, Corporation Primary School, has stated that the police had not sought school leaving certificate from her school of such a student who had left 7 Delhi. Therefore, as per the testimonies of PW-5 and PW-6, nothing positive could be proved regarding the age of the victim- prosecutrix. 12. PW-7 Dr. Kiran Malhotra conducted the medical examination of the victim-prosecutrix and found no mark of violence on the face, wrist, breast, lower of the abdomen, including thigh and back. No mark of any kind of injury and no mark of violence on her private part. PW-7 further stated that the radiological age of the victim-prosecutrix was 13 to 15 years. PW-7 in cross-examination has stated that there can be variation of 2-3 years in age estimation. 13. PW-8 Dr. Balbir Singh Verma conducted the medical examination of accused Brij Pal and found him capable of sexual intercourse. 14. PW-9 Iqbal Mohammad MHC has stated that he had sent two sealed packets and two sealed envelope to F.S.L. through constable Sher Singh. Constable had produced the receipt after having deposited the sealed packets in F.S.L. He has brought the original R.C. 15. PW-10, Dr. V.K. Pathak, examined the victim- prosecutrix and assessed her radiological age between 13-15 years. 16. PW-11 Sher Singh, deposited two sealed parcels vide R.C. No. 188/94 in F.S.L. Bharari. 17. PW-12, Mast Ram, who conducted the investigation and in his endeavour to support the prosecution case has stated 8 that the victim-prosecutrix was recovered on 24.2.1995 when he had gone alongwith the father of the victim-prosecutrix and the girl was handed over to her father and he had got the victim- prosecutrix and the accused persons medically examined. During investigation, school leaving certificate Ext. PW-5/A of the victim- prosecutrix was taken into possession from the School of Delhi where she had studied upto 4th class. 18. On analysis of the materials on record, we find that the victim-prosecutrix remained in the company of accused- respondents from 18.2.1995 to 24.2.1995 at Yamuna Nagar and Rajpuragari at her own wishes, and during bus journey and during her stay at Yamuna Nagar and Rajpuragari she neither raised any hue and cry nor reported the incident to anyone when she was being forcibly taken or was kidnapped by the accused persons and was sexually assaulted against her wishes. Despite getting sufficient opportunities of place, time and circumstances to make hue and cry and to convey to public, she remained silent. In view of radiological age she was estimated between 13 to 15 years and giving benefit of two years certainly she was more than 16 years of age at the time of incident. There is no iota of evidence in the prosecution case that she was forcibly taken by accused from her house from her lawful guardianship contrary to it victim PW-2 accompanied accused No.2 on her own. 19. In view of the facts and circumstances of the case and on appraisal of the prosecution evidences and materials on record, we are of the considered view that the victim-prosecutrix had gone 9 at her sweet will to the place of the accused-respondents and had stayed with the accused and spent a good time. Even if she was sexually assaulted, it could be inferred that the victim-prosecutrix was a consenting party. As such, the accused–respondents are entitled to be given benefit of doubt. In our considered view, learned Additional Sessions Judge has rightly arrived at its conclusion that the prosecution has not been able to prove its case beyond reasonable doubt. In our considered view, the prosecution has also failed to bring home the guilt to the accused. Criminal appeal being devoid of merit is, therefore, dismissed. Bail bonds furnished by the accused are discharged. (R.B. Misra) Judge January 5, 2011 (Sanjay Karol) (vt) Judge