IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 582 of 2000 Date of decision: 28.09.2010 ________________________________________________________________ The State of H.P. .....Appellant. Versus Sansar Chand & 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. R.K. Sharma, Sr. Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General. For the respondents: Mr. Dharamvir Sharma, Advocate. R.B. Misra, J (Oral). 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 01.01.2000, passed by the learned Additional Sessions Judge, Mandi, District Mandi, in Sessions Trial No. 19 of 1997, acquitting the alleged accused- respondents under Sections 363, 366, 368, 376 and 506 of the Indian Penal Code. 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... 2. The prosecution case is that in 1996, the accused- respondent Gulab Singh had been doing masonry work at the house of PW-1 Narain Singh, complainant in village Naroli, Tehsil Jogindernagar. The accused-respondent Sansar Chand had been helping his elder brother, co-accused Gulab Singh in masonry work. PW-1 Narain Singh (complainant) had been working in HPSEB at Rajgarh. On account of job requirement, PW-1 had been putting up at Rajgarh. The family, comprising wife, three daughters and one son of PW-1 had been putting up in his ancestral in village Naroli in 1996. Allegedly in the year 1996 PW-2, victim-prosecutrix (name withheld) was about 16 years of age, whose date of birth was 29.04.1981. PW-2 was the eldest daughter of PW-1. The accused- respondent Sansar Chand used to make indecent remarks towards PW-2 (victim) in absence of her family members. On 07.11.1996, in the evening, PW-1 reached his house and after taking food, PW-1 and his wife had slept in one room of the house. PW-2 and her two sisters had slept in other room of the house. On 08.11.1996, PW-1 found his daughter, victim-prosecutrix (PW-2), missing from the house. On suspicion that accused-respondent No. 1 had taken the victim-prosecutrix, FIR Ex. PW-1/A was registered against accused- respondent No. 1. It was revealed that on the intervening night of 07.11.1996 and 08.11.1996, accused-respondent Sansar Chand had visited the house of PW-2 and took PW-2 (victim-prosecutrix) to the nearby school where accused-respondents No. 2, 3, 5 and 6 had been waiting. The accused-respondent No. 1 was given shelter by accused-respondent No. 4. The victim-prosecutrix (PW-2) stayed ...3... with the accused-respondent No. 1 for one day and during that time she was also sexually assaulted. After completion of investigation the accused-respondents were charged for the aforesaid offences and the case was committed to the Session Court. 3. In order to prove its case, prosecution examined as many as eleven witnesses, whereas, accused-respondents through their statements under Section 313 Cr.P.C. denied the prosecution case. 4. The victim-prosecutrix (PW-2) in her testimony has changed her version and has resiled from her earlier statement and ultimately has not supported the prosecution case. 5. In medical examination no mark of violence or injury was noticed on the body of the victim-prosecutrix. The radiological age, assessed by PW-4 Dr. Malushree Lata, of the victim-prosecutrix was between 16½ to 17 years, which could be by approximation theory, which indicates that the victim-prosecutrix was not less than 16 years of age. There is no iota of evidence that the victim- prosecutrix was taken forcibly by the accused-respondent Sansar Chand and nobody has seen him taking the victim-prosecutrix forcibly. 6. The victim-prosecutrix has also not supported the prosecution case by saying that she was not forcibly taken by the accused-respondent Sansar Chand. The victim-prosecutrix also did not raise any alarm or hue and cry when she was taken forcibly by the accused-respondent Sansar Chand. 7. The prosecution witnesses and the material on record ...4... reveal that the victim-prosecutrix was not at all less than 16 years of age. In these circumstances, she was at the stage of applying her own discretion in her acts and conducts. In such circumstances, the victim-prosecutrix was never enticed by the accused- respondents and she was not taken forcibly from the lawful guardianship of her parents. On the fateful night, the victim- prosecutrix accompanied the accused-respondents without making any hue and cry and she did not try to escape from the clutches of the accused-respondents. In these circumstances, the alleged offences have not been made out against the accused-respondents. 8. On analysis of the prosecution witnesses and the materials on record, learned Additional Sessions Judge has rightly found that the prosecution has not been able to prove its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt against the accused- respondents and there is no scope of interference in the impugned judgment. In these circumstances, criminal appeal being devoid of any merit is dismissed. (R.B. Misra) Judge (V.K. Sharma) Judge 28th September, 2010 (virender)