IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Appeal No.41 of 2003. Date of decision: 27.10.2011. State of Himachal Pradesh … …Appellant Versus 1. Shri Kashmir Singh son of Sh.Safari Ram, village Kharoh, P.O. Sadhot, Teh. and P.S.Sarkaghat, Distt.Mandi, H.P. 2. Sh.Milkhi Ram, son of Sh.Rup Lal, village Karadi, (Paplog) Teh. and P.S. Sarkaghat, Distt.Mandi, H.P. 3. Sh.Krishan Gopal, son of Sh.Safari Ram, Village Khroh Teh. and P.s. Sarkaghat, Distt.Mandi, H.P. 4. Smt.Vidya Devi W/o Sh.Krishan Gopal, Village Kharoh Teh. and P.S. Sarkaghat, Distt.Mandi, H.P. … …Respondent Criminal Appeal under Section 378 Cr.P.C. Coram The Hon’ble Mr.Justice R.B. Misra,Judge. The Hon’ble Mr.Justice Dev Darshan Sud,Judge. Whether approved for reporting ?1 No. For the Appellant: Mr.R.K. Sharma, Senior Additional Advocate General with Mr.Rajinder Dogra, Additional Advocate General. For the Respondents: Mr.Lovneesh Kanwar, Advocate. Dev Darshan Sud,J. This appeal has been preferred by the State against the judgment of the learned Sessions Judge, Mandi, acquitting the respondent Kashmir Singh for offences under Sections 363, 366, 376 IPC. 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 2. The prosecution case in brief is that Kumari `A’ (original name withheld) was a minor who was kidnapped from the lawful guardianship of her father Budhi Singh with the intent that she be married against her will. In this process she alleged that she was raped between May to August, 2001. Accused Milkhi Ram, , Krishan Gopal and Vidya Devi have been charged for offences under Sections 363, 366-A read with Section 34 IPC. 3. The prosecution case in brief is that the prosecutrix who is the daughter of PW-2 Smt.Luhari was taken by Vidya Devi, one of the co-villagers, to her village without her consent. She stated in her evidence that Vidya Devi was her niece (daughter of her sister). She was married with Kala Ram. In the month of Jeth she met Vidya Devi who asked her to send her daughter with her. At that time, the prosecutrix was about 16 years of age. She then stated that her daughter returned in the month of September, 2001 with Safari, father of accused Kashmir Singh. Thereafter, she received summons which were sent at the instance of Kashmir Singh accused. She asked her daughter as to why the summons were being sent to her and when she did not receive any reply, she beat up her daughter and then the prosecutrix disclosed that her marriage had been performed with accused Kashmir Singh by Vidya Devi, Milkhi Ram and Kala Ram against her will. She thereafter lodged a report Ex.PD with the police. She 3 says that she was alone in the house and could not report the matter earlier. She was cross-examined at length. She states in her cross-examination that there is a custom in the illaqua that girls are married at the age of 15 to 17 years at which age her other daughters were married. She then states:- “It is correct to suggest that Rukmani Devi remained in her in laws house for 5/6 months after her marriage. It is correct to suggest that the father in law of Rukmani, Safaria had visited my house alongwith Rukmani Devi on Sair festival and Safaria remained our guest for ¾ days in our house. … … … … … It is correct to suggest that husband of Rukmani, Kashmir Singh visited our house after 16/17 days when Rukmani Devi came back to the house. … … … … …It is correct to suggest that there is a custom in our illaqa and village that the inlaws of the daughters used to pay money to the parents of the girl after the marriage. It is correct that the parents of Kashmir Singh did not pay any money to us after this alleged marriage. … … … … … It is correct that when the accused sent me the summons, I got annoyed and lodged the report with the police. There was no complaint regarding the marriage in case no summons had been sent by the accused from the court.” 4. We advert to this cross-examination because the story made out by the mother of the prosecutrix seems rather strange that the parties have been interacting with each other and there was no complaint and everybody was happy with the relationship. PW-3 4 prosecutrix also admits visiting her parents house on `Sair’ festival and the fact that no complaint was lodged by her with her mother. She states that she stated all these facts only after she had been beaten up by her mother. She also admits that she had gone to her in-laws house when her mother had sent her in May, 2001 and that she had gone there of her own free will. She says that her marriage was first performed in the temple and then in the Court where she stated her age to be 19 years in the affidavit sworn by her. She says that when she visited her parents house with her father-in-law, she wore those ornaments which are usually worn by a woman after marriage. She states that she never told the police that she was ever threatened by any person. 5. The learned Sessions Judge after consideration of the evidence of 13 witnesses, acquitted the accused. He considers the case on three counts; (a) the direct evidence of the statement of the witnesses; (b) the evidence with respect to age and (c) the corroborative evidence and medical evidence. The learned Court holds that on the evidence on record, no case of rape and kidnapping has been established. Doctor PW-1 Aruna Kumari did not find any signs of rape and found that the prosecutrix was infact habituated to sexual intercourse. On the other aspect, the Court finds that the prosecutrix herself had willingly accompanied the first accused Kashmir Singh, before and after her 5 marriage with him and the attitude of the mother of the prosecutrix being quiet strange where she did not care to find out the whereabouts of her daughter. It also found it bewildering that on one occasion the prosecutrix had come home with her husband respondent No.1 Kashmir Singh and PW-2 Smt.Luhari, mother of the prosecutrix, was quiet happy to receive them as husband and wife. On the question of age, the learned Court holds that Ex.PG certificate given under the signatures of the Headmaster testifying the age of the prosecutrix according to the School Admission Register shows that she was less than 16 years of age, but the original Admission Register was not produced and there is nothing in the statement of PW-4 Shayam Lal, who proved the certificate but not the fact of the basis on which this entry was made. The second entry Ex.PO proved by Amar Singh PW-11 also admitted that the entry was not made in his hand and no signatures of the informant had been taken on the information entered in the Register. The Radiologist opined the age of the prosecutrix to be 13 to 14 years and after giving a margin of 3/4 years it was held that she was not a minor. After going through the evidence in its entirety we do not find any substance in the case of the prosecution and hold that the learned Sessions Judge has been correct in dismissing the case of the prosecution. We, therefore, find no merit in this appeal which is accordingly 6 dismissed. Bail bonds furnished by the respondents shall stand discharged. (R.B. Misra) Judge. October 27, 2011. (Dev Darshan Sud) (aks) Judge.