IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 20 of 1993 Date of decision: 24.03.2008 State of Himachal Pradesh ... Appellant Versus Prem Singh & Ors. … Respondents Coram : The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. P.M. Negi, Deputy Advocate General. For the respondents: Mr. Neeraj Sharma vice Mr. Jagdish Vats, Advocate. Per V.K. Ahuja , J.: This is an appeal filed by the State of H.P. against the judgment of the Court of learned Additional Sessions Judge, Kullu, dated 2.7.1992, vide which the respondents were acquitted of the charge framed against them under Sections 363, 366, 376 read with Section 109 of Indian Penal Code. Briefly stated the facts of the case are that on 29.3.1990, at about 9.30AM, the prosecutrix ‘P’ went to attend her school where she was a student of +1 Class in her school at Bhunter. It was alleged that when the prosecutrix was coming out of the school, she was forcibly made to 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 sit in a Maruti Van by the respondents. When the prosecutrix did not return to her house, a report was lodged with the police and the girl was recovered in the company of respondent No.1 on 31.3.1990 where they were found sleeping together. The challan was filed as against the respondents who were tried by the learned trial Court leading to the acquittal of the respondents. We have heard the learned counsel for the parties and have gone through the record. The submissions made by the learned Deputy Advocate General were that the findings recorded by the learned trial Court are perverse since it was proved that the girl was below the age of 17 and the statement of the prosecutrix proved the case and as such, those findings can be termed as perverse. On a perusal of the evidence led by the prosecution, it is clear that the first part of the evidence led by the prosecutrix in regard to her age is the statement made by PW-6 Biri Singh, Clerk, in Government Senior Secondary School, who has proved the birth entries in the school admission register, which proves her date of birth as 5.5.1972. He has stated that certificate Ext. PF is signed by the then Principal which is in consonance with the entry maintained in the admission register, which shows her date of birth as 5.5.1972. The prosecution has not produced the original record maintained by the school from which these entries were proved and only the signatures of the Principal on the certificate issued were proved from the statement of this witness. The learned trial Court has disbelieved the evidence holding that the date of birth in the school 3 record does not supply correct and authenticated date. In regard to the other part of the evidence i.e. the report of the Radiologist PW-12 Dr. B.K. Bhardwaj is concerned, it shows that the age of the prosecutrix was between 17 and 19 years which admitted of an error of 2-3 years on either side. This part of the evidence clearly shows that the prosecution has clearly failed to prove by cogent and reliable evidence that the age of the prosecutrix was below 16 years. The learned trial Court had referred to Medico Legal Certificate Ext.PM proved from the statement of PW-12 Dr. B.K. Bhardwaj which shows that the prosecutrix was habitual to intercourse. There was no evidence of internal injuries to valva and vagina. The learned trial Court had also referred to two letters proved in evidence. The first letter is Ext.P-3 which shows that she had invited the accused on the next day at Bhunter, failing which, she would commit suicide. The second letter is written by her to her parents vide which she begged apology for joining the company of the accused voluntarily. The explanation given by her as PW-15 was that she was compelled to write these two letters when the police came and gossiped with the respondents which explanation does not appear to be convincing. Her supplementary statement Ext. DA recorded under Section 161 Cr.P.C. was also proved in evidence in which she had alleged that she was in love with the accused and she had written a letter to him to meet her at Bhunter in the school dress. The prosecutrix had admitted the authorship of letters Ext. P-3 and P-4, though denied having made the statement Ext. DA to the police. 4 Coming to the statement of the prosecutrix in regard to the sexual act committed with her, a perusal of her statement shows that under pressure the marriage was performed and on the same night respondent committed sexual intercourse with her. She never stated anything more that the act was committed against her consent or she raised an alarm or resisted the attempt to have sexual intercourse as made by the respondent. The learned trial Court had referred to the two letters Exts. P-3 and P-4 and Ext. DA statement, referred to above and had concluded that the statement of the prosecutrix suggests that she was a consenting party to the sexual act. There is no reason to disagree with the findings recorded by the learned trial Court in this regard. She has made considerable improvements on material facts in her statement and her statement cannot be said to be such which can be relied upon to hold that the prosecution case stood proved beyond any reasonable doubt keeping in view in sufficient evidence regarding the age and on other material points. The learned trial Court has also referred to the photographs showing the photo of the prosecutrix putting the garland around the neck of respondent No. 1 and the explanation given by her that she was made forcibly to do the same by a lady does not appear to be convincing. We have gone through the judgment of the learned trial Court and the findings recorded on the basis of the evidence cannot be said to be perverse calling for an interference by this Court and as such, there is no merit in the appeal filed by the appellant, which is liable to be 5 dismissed and the same is dismissed accordingly. The bail bonds furnished by the respondents are discharged. ( Surjit Singh ) Judge ( V.K. Ahuja ) March 24, 2008 Judge (BSS) 6