IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 684 of 1996 Date of decision: 6.5.2010 State of H.P. Appellant. Versus Nand Kumar Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondent: Mr. Anup Chitkara, Advocate. Per Deepak Gupta, J, (oral) 1. This appeal by the State is directed against the judgement dated 29.4.1996 delivered by the learned Sessions Judge, Kinnaur Sessions Division, Rampur Bushahr, in Case No. 52-R/7 of 1995 whereby he acquitted the accused of having committed offences punishable under Sections 366 and 376 of the Indian Penal Code. 2. The brief facts of the case are that on 22.7.1994 PW-3, Vimla Devi, mother of the prosecutrix, lodged a complaint with the Superintendent of Police, Kinnaur at Reckong Peo to the effect that her daughter (the 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 prosecutrix) was aged about 14 years. The prosecutrix alongwith her brother’s wife Saroj Devi had gone to attend a wedding function in the house of her close relatives. On 11.7.1994 accused Nand Kumar enticed the prosecutrix and took her outside the house and then raped her outside the house. He also promised her that he will marry her. Then he took her to Rutrang Pull and left her there. The prosecutrix came home on 12.7.1994 in the evening. She did not disclose this fact to anybody as she was ashamed. On 20th July, 1994, Saroj Devi, daughter-in-law of the complainant, came back to the village and then the prosecutrix told Saroj Devi about this incident, who in turn informed the complainant and thereafter the complaint Ext.PW-3/A was lodged. On the basis of this complaint F.I.R. No. 22 of 1994 was lodged with the Police Station Sangla. The prosecutrix was got medically examined. Other investigation was carried out and after completion of the investigation the accused was challaned with having committed the offences aforesaid. After trial the accused was acquitted. Hence, the present appeal by the State. 3. The prosecutrix stated that she had gone to attend the marriage of her brother Jitender. She and her sister-in- law Saroj Devi (not examined) were sleeping in one room. One Lakhpatti was also there. Her sister-in-law was not present at about 9.00 p.m when the accused entered her room and forcibly committed sexual intercourse with her. He 3 then took her to Rutrang Pull, left her there and ran away. The story of the prosecutrix on the face of it does not appear to be true. In the first sentence she stated that her ‘Bhabi’ Saroj Devi as well as one Lakhpatti were with her. Later she stated that Saroj Devi was not present at the time when the accused came into her room. She is totally silent as to whether Lakhpatti was in the room or not when the occurrence took place. Neither Saroj Devi nor Lakhpatti have been examined by the prosecution and therefore, an inference can be drawn that if they had been examined in Court they would not have supported the version of the prosecutrix. 4. The version of the prosecutrix given in Court is also contrary to the complaint Ext.PW-3/A in which it was stated that the prosecutrix was taken outside the room and raped. In her testimony in Court the prosecutrix stated that she was raped in the room. The prosecutrix also stated that she and the accused remained sleeping in the room for the whole night on the same bed. This clearly shows that the prosecutrix was a consenting party. 5. PW-1 Dr. R.K.Gupta has opined that there was no positive sign of sexual intercourse. He was declared hostile since in the original opinion it was stated that there is nothing to suggest that sexual intercourse had not taken place but while appearing in Court he stated that the word not was wrongly mentioned and he changed his opinion by 4 stating that there was no positive sign of sexual intercourse. Even if we discard the statement of this witness, from the evidence of the prosecutrix it is more than apparent that the sexual intercourse, if any, was consensual in nature. 6. We now come to the crucial aspect of the matter as to the age of the prosecutrix. The prosecution itself has placed on record two certificates Ext.PW-7/A and Ext.PW-7/B. As per Ext.PW-7/A, the date of birth of the prosecutrix is 16.5.1976, which would mean that on the date of occurrence she was more than 18 years of age. As per Ext.PW-7/B, the age of the prosecutrix was 19 years and 5 months. It is thus obvious that no case of kidnapping or abduction is made out against the accused since the prosecutrix willingly had sex with the accused and then went with him. 7. In view of the above discussion, we are of the considered opinion that the learned trial Court was justified in acquitting the accused. We find no merit in the appeal, which is accordingly dismissed. The bail bonds furnished by the accused are discharged. ( Deepak Gupta ) Judge 6th May, 2010. ( Rajiv Sharma) ™ Judge.