IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 300 of 1996 Date of decision: 26.08.2010 ____________________________________________________________ The State of H.P. .....Appellant. Versus Dharmu & Ors. .....Respondents. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? ____________________________________________________________ For the appellant: Mr. Rajinder Dogra, Additional Advocate General with Mr. Anil Jaswal, Deputy Advocate, General. For the respondents: Mr. Rakesh Jaswal, Advocate. R.B. Misra, J (Oral). 1. 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 and order dated 24.05.1995, passed by the learned Additional Sessions Judge, Mandi, District Mandi, in Sessions Trial No. 19 of 1992, acquitting the alleged accused- respondents under Section 120-B, 363, 366-A, 368 and 376 of the Indian Penal Code in reference to FIR No. 86 of 1991. 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... 2. Prosecution case in brief is that complainant, Maghu Ram, resident of village Jughar, made statement in police station, Gohar, on 05.07.1991, that on 28.06.1991, while he was sitting in the house of his uncle, Ratku Ram, his daughter Sarla Devi told him at about 8 p.m., that her sister, who had gone to answer the call of nature, did not return. She was then searched but was not traceable. Alongwith the complainant Roshan Lal, Bed Ram and wife of Bed Ram started searching for victim/prosecutrix (name withheld) but she could not be traced out. Later on, it came to the notice of complainant that accused Dharmu resident of Bhadechi had come to the house of Dhundu in village Jughar, on the day of occurrence, and was hiding himself thereafter. Suspicion arose in the mind of the complainant, who enquired from Dhundu about the matter. On 29.06.1991, Dhundu left for his in-laws alongwith his family members and cattle heads. On this, Maghu Ram accompanied by Chobe Ram, Ratku Ram, Budh Ram and Jublu Ram etc. went to the house of Dharmu in village Bhadechi, but prosecutrix could not be traced. Maghu Ram also suspected hands of Khima Ram and Kala Ram in kidnapping the victim/prosecutrix. On the statement of Maghu Ram, case FIR No. 86 of 1991 dated 05.07.1991, under Sections 363 and 366 I.P.C. was registered at Police Station, Gohar, and investigation started. The prosecutrix was later on recovered from the house of accused Dharmu on 27.08.1991. ...3... 3. In order to prove its case, prosecution examined as many as fourteen witnesses, whereas, accused- respondents through their statements under Section 313 Cr.P.C. denied the prosecution case. 4. Prosecution examined complainant (PW-1) Ram Saran, Secretary Gram Panchayat Kalhni PW-2, Bisu Ram PW-3, Uttam PW-4, victim/prosecutrix PW-5, Sarla Devi PW-6, Ratku Ram PW-7, Mohar Singh PW-8, Budh Ram PW-9, LHC Sher Singh PW-10, Rup Singh ASI PW-11, ASI Raghunath PW-12, Dr. Mrs. Usha Vaidya PW-13 and Dr. Arun Mishra PW-14. 5. In the FIR, Ex. PC, the complainant has stated that the victim/prosecutrix at the time of occurrence was 17 years of age. Dr. Usha Vaidya (PW-13) deposed that the clinical age of the prosecutrix was 17-19 years. The victim/prosecutrix, who appeared as prosecution witness, stated that she was 21 years of age. If the statement of the prosecutrix is admitted to be correct, then, certainly she was 18 years of age at the time of occurrence. There is another document, Ex. PW-2/A, according to which, the date of birth of the prosecutrix is 04.02.1974, i.e., to be 17 years five months at the time of occurrence. Thus, there is different versions regarding the age of the victim/prosecutrix, as such, the learned Additional Sessions Judge has rightly held that the age of the prosecutrix is not below 18 years. 6. From the testimony of the complainant, it does not appear that other accused-respondents are also involved under ...4... Section 120-B of the Indian Penal Code. As per the testimony of the victim/prosecutrix, she resided with accused-respondent Dharmu till 27.08.1991, when she was recovered from the house of one Bhadru. The statement of the victim/prosecutrix shows that she had consented and accompanied the accused persons voluntarily. In her cross-examination she admitted that there are 10-12 houses near the house of accused and Dharmu had met her two-three times, when she used to be alone, even prior to the occurrence. According to her, when Dharmu asked her to accompany him, she went with him straightaway, without any resistance. There is no evidence on record against other accused Khima and Dhundu to infer that they had conspired to kidnap the victim/prosecutrix, specifically when she did not raise any alarm when she was being taken by the accused- respondents. 7. The scrutiny of the prosecution witnesses reveal otherwise that the victim/prosecutrix was a consenting party, who herself accompanied with the accused persons, as such, the offence under Section 363 IPC is not made out. 8. In view of the testimony of the victim/prosecutrix, Dharmu has promised to marry her, as such, she on her own sweet will accompanied the accused-respondents. The victim/prosecutrix has stated that after abduction she was kept in the house of Khima and cow-shed of Dharmu in village Pattan and she was kept in the house of Bala in village Bhadechi. ...5... In her cross-examination, she stated that there are 10-12 houses near the house of Dharmu in village Bhadechi. She also admitted that she had been going out for answering call of nature, off and on. As such, her statement that she was kept confined in one room by accused Dharmu cannot be believed, as when the victim/prosecutrix spent about two months and after getting chances, she could not endeavoured to escape. The victim/prosecutrix has also stated that during her stay with accused Dharmu for two months, she was shifted to the houses of Khima and Bala. From this point of view also, the offence under Section 368 IPC is not made out. 9. PW-13 Dr. Usha Vaidya has stated that the victim/prosecutrix was carrying pregnancy of 2 to 2½ months at the time of her medical examination. Thus, it is revealed that the victim/prosecutrix was a consenting party and the accused Dharmu had not committed sexual assault on her forcibly and the victim/prosecutrix had herself took active part and consented the accused-respondent Dharmu. 10. In these circumstances also, it cannot be inferred that the sexual assault was made against the wishes of the victim/prosecutrix. As such, the offence of 376 IPC is also not made out. 11. On the basis of the prosecution witnesses and the material on record, the learned Additional Sessions Judge has rightly arrived at the finding that the prosecution has failed to ...6... prove its case beyond reasonable doubt. In our considered view the prosecution has failed to bring home the guilt against the accused-respondents. There is no scope of interference in the judgment of the trial court, as such, appeal being devoid of merit is dismissed. (R.B. Misra) Judge (V.K. Sharma) Judge 26th August, 2010 (virender)