Criminal Appeal No.1194-SB- of 2003 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.1194-SB- of 2003 Date of decision : 11.8.2008 Sunil alias Sonu .....Appellant Versus State of Haryana ...Respondent **** CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. Neeraj Khanna, Advocate as Amicus Curiae. Mr. S.S. Mor, Senior Deputy Advocate General,Haryana S. D. ANAND, J. The appellant was convicted by the learned Trial Court for the offences under Sections 366/376/506 IPC. The learned Trial court, however, exonerated the appellant of a charge under Section 363 IPC by recording a finding that “in this light of the above- discussion, it has to be held that the prosecution has not been able to bring sufficient positive evidence on the file to prove that the prosecutrix was below 18 years of age at the time of occurrence in question.” 2. The prosecution allegations were as under:- 3. The prosecutrix is an unmarried daughter of a working couple. The first informant/complainant (PW-7) father of the prosecutrix was a Railway employee and posted at Calcutta at the Criminal Appeal No.1194-SB- of 2003 -2- **** relevant point of time; while mother of the prosecutrix was in employment in a Delhi Corporation. The couple had six children i.e. two sons and four daughters. Two daughters and one son were married; while others including the prosecutrix were unmarried and used to stay at home. The first informant had come on home on leave. On 18.11.2000 at about 5.00 P.M., he went out of the house to see his working wife off. When he came home, he found the prosecutrix missing from the house. He further found that the appellant, who was residing in the same locality, was also missing from his house. He entertained an apprehension that the appellant had kidnapped his daughter. He further found that his daughter i.e. prosecutrix had taken along cash amount of Rs.1250/- and indicated gold ornaments (one necklace, two rings, one Tikka) and some silver jewellary articles while leaving the house. The prosecutrix and the appellant were apprehended by a police party on 18.12.2000, on the basis of a secret information. 4. PW-1 Dr. Manju Lata had medico legally examined the prosecutrix on 18.12.2000. She found that there were no injury marks all over her body and her clothes were not torn from anywhere. She further found that her hymen was ruptured and she did not complain of pain during per-vaginal examination. No injury was noticed on thigh, perineum, vulva, vagina and cervix. After perusing the FSL report Ex. PC, Dr. Manju Lata opined that “sexual intercourse with Pooja cannot be ruled out.” For determination of her age, she recommended ossification test by an expert. Criminal Appeal No.1194-SB- of 2003 -3- **** 5. PW-2 Dr. D.S.Rana had medico legally examined the appellant on 18.12.2000. He opined that the appellant was capable of performing sexual intercourse. 6. PW-13 Dr. Jai Kishore conducted the radiological examination of the prosecutrix on 14.3.2001 and opined that “the age of pooja daughter of Om Parkash appears to be 17 to 19 years with an error of six months on either side.” 7. PW-3 HC Ram Bhagat, PW-5 Constable Jai Chand and PW-9 Constable Rajesh Kumar tendered their affidavits Ex. PF, Ex. PH and Ex. PK respectively into evidence. 8. PW-4 SI Chhattar Singh had recorded formal FIR Ex. PG/1 on receipt of statement Ex.PG of Om Parkash (PW-6) bearing endorsement of ASI Chandergupt. He also handed over the special report to Constable Om Parkash (PW-6) for being delivered to Illaqa Magistrate and also Superintendent of Police and D.S.P., Jhajjar. 9. PW-78 Om Parkash is the father of the prosecutrix. 10. PW-8 Pooja is the prosecutrix herself. 11. PW-10 Inspector Ram Chander had filed the report under Section 173 Cr.P.C. in this case. 12. PW-11 is C.B. Sheoran, the then Sub Divisional Judicial Magistrate, Bahadurgarh, had recorded the statement (Ex. PJ) under Section 164 Cr.P.C. of the prosecutrix. 13. PW-12 ASI Chandergupt had investigated this case. 14. Appellant raised a pure and simple plea of innocence. 15. No evidence was adduced in defence. Criminal Appeal No.1194-SB- of 2003 -4- **** 16. It would be apparent from a perusal of the record that the prosecution has not been able to prove that the prosecutrix was below 18 years of age at the time of commission of the offence. However, learned Trial Judge negatived the appellant's plea (raised in the course of cross-examination of PWs) that it was all consensual affairs. Learned Trial Judge also declined to place reliance upon the photographs, affidavit Ex. D1 and love letters Ex. D2 to Ex. D8 by recording a finding that those (Ex.D1 and Ex.D2 to Ex.D8) had been executed/written by the prosecutrix under threat and pressure. It was observed in that context that prosecutrix had no occasion to make an averment in affidavit Ex. D1 that her parents were poor and not in a position to get her married by providing her dowry. In recording that finding, sustenance was drawn from the fact that first informant had made a categorical deposition at the trial that his two daughters and one son were married. 17. I do not find myself in agreement with the line of reasoning adopted by the learned Trial Judge. 18. Letters Ex. D2 to Ex. D8 are clearly indicative of extreme love which the prosecutrix had in her mind for the appellant. These letters were presented before the police by the appellant. The affidavit (Ex. D1) had been attested by a Notary Public. It is in evidence that the prosecutrix had been to the Court i.e. the seat of Notary Public where this affidavit was attested. The mere fact that the deponent of Ex. D1 (prosecutrix) made a factually incorrect averment in the course of affidavit Ex.D1 would not prove that she Criminal Appeal No.1194-SB- of 2003 -5- **** had not sworn that affidavit. By and large, people of the present generation are intelligent. They do exhibit ingenunity in coining facts which, they feel, would justify the step they have taken in the context. The view obtained by the learned Trial Judge in the context is not appropriate and is negatived. There is plethora of evidence on the file to prove that the prosecutrix had been to a number of towns in the company of the appellant. She is proved to have visited the Courts for the purpose of attestation of affidavit Ex. D1. She never ever made a grievance of the fact that she was being detained by the appellant under threat or pressure. Interestingly enough, she denied having appeared before the Notary Public but she is in the know of the fact that the stamp paper had been purchased by an Advocate (at Tikamgarh) who had been engaged by the appellant “for the purpose”. She also knows that the affidavit had been typed by a typist “in a Kiosk on the dictation of the lawyer engaged by Sunil.” It was, thus, a pure and simple case where the entire episode was a consensual affair. Once the prosecutrix has not been proved to be a minor and no appeal has been filed by the State against the acquittal of the appellant for the offence under Section 363 IPC, there is no way the appellant could have been convicted for the offences under Sections 366/376/506 IPC, particularly when it has been found that she was a consenting party to the whole affair. In that context, it may be noticed that it is in the First Information Report itself, which had been lodged by none else or other than the own father of the prosecutrix, that she had taken along a number of jewellary articles Criminal Appeal No.1194-SB- of 2003 -6- **** and indicated cash amount while eloping with the appellant. 19. Insofar as the statement made by the prosecutrix under Section 164 Cr.P.C. is concerned, it does not have the probative value adequate enough to outweigh the substantive evidence ( in affidavit Ex. D1 and love letters Ex. D2 to Ex. D8) to the effect that it was all a consensual affair between two adult individuals. The law may not be able to validate it as a recognised alliance but it cannot punish the male partner either as the female participant was a major girl and a willing partner in the entire episode. 20. The following facts can safely be culled out from the material obtaining on the file:- (1) The prosecution has not been able to prove that the prosecutrix was below the age of 18 years. (2) The prosecutrix had taken along cash amount and gold and silver jewellery articles which eloping. (3) She had addressed love letters Ex.D2 to Ex.D8 which indicate the love/deep infatuation she had in her heart/mind for the appellant. (4) She travelled through and to various towers in the company of the appellant but did not make a grievance of any act on the part of the latter. (5) She swore affidavit Ex.P1 before a Notary Public in the Courts premises but did not complain of being under threat at the hands of the appellant. 21. In the light of the foregoing discussion and facts noticed Criminal Appeal No.1194-SB- of 2003 -7- **** above, the impugned finding of conviction is found to be unsustainable. The appeal shall stand allowed. The impugned judgment of conviction is set aside. The appellant shall stand acquitted of the charge. August 11, 2008 (S. D. ANAND) Pka JUDGE