Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.99 of 2005. Date of Decision: November 18, 2011. ------------------------------------------------------------------------------------------------------------- Ashok Kumar. …… Appellant. Versus State of Himachal Pradesh. ……. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting ? Yes. For the Appellant : Mr. Narender Sharma, Advocate. For the Respondent : Mr. P.M. Negi, Dy. Advocate General. Surinder Singh, J (oral) : The appellant in this appeal, has challenged his conviction passed in Sessions Trial No.6 of 2004, by the learned Sessions Judge, for the offences punishable under Sections 363 and 366 of the Indian Penal Code, whereby he has been sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of ` 2,000/- under Section 366 of the Indian Penal Code and also rigorous imprisonment for a period of one year and a fine of ` 1,000/- under Section 363 of the Indian Penal Code, with default clauses. The aforesaid sentences were ordered to - 2 - run concurrently. The benefit of Section 428 of the Code of Criminal Procedure was also given. 2. Precisely, the case of the prosecution can be stated thus. In the year 2003, the prosecutrix (15 years approx.) was a student of 8th standard, studying in Government Senior Secondary School Pokhdhar (Nirmand). Her date of birth is stated to be 2.4.1989. (ii) On Ist October, 2003, as usual, she went to attend the School alongwith her classmates, but did not return in the evening to her parental house. Her parents were worried and searched for her in the vicinity and also in the houses of their relatives, but did not find any trace of her. (iii) On 3.1.2003, PW2 Baldev Kashyap, father of the prosecutrix received an anonymous telephonic call informing him that the prosecutrix was safe and was in the company of the appellant. The parents and relatives of the prosecutrix went to the house of the appellant and - 3 - contacted his mother. She also assured that the prosecutrix was safe, but then informed that the appellant intended to marry her. But, her father has rejected this proposal as she being minor thus insisted upon her to produce the prosecutrix. Since his request turned deaf ears, as such PW2 Baldev Kashyap lodged the FIR Ext.PW2/A which was registered under Sections 363 and 366 of the Indian Penal Code. (iv) The investigation was taken up by PW13 SI/SHO Brahm Dass. He took into possession the Panchayat and School records with respect to prosecutrix. During the investigation, police came to know that the prosecutrix was taken by the appellant to the house of his brother-in- law Partap Chand, where they stayed for two days. He was also involved in this case and added an offence under Section 368 of the Indian Penal Code. It also came to the notice that the - 4 - prosecutrix was taken by the appellant to various places at Kullu, Shimla and Parwanoo, ultimately, she was recovered during the intervening night of 12th /13th January, 2003 from the custody of the appellant from a room in a hotel at Parwanoo, where they were staying together thus taken into custody vide memo Ext.PW3/A, thereafter prosecutrix was handed over to PW3 Jai Dev, her uncle. (v) Appellant was arrested on the same day and was got medically examined. Doctor found him fit to perform sexual intercourse. Police procured his Medico Legal Certificate Ext.PW4/D. (vi) Prosecutrix was also got medically examined on 13.1.2003. Her Medico Legal Certificate is Ext.PW4/A. Though, she denied having been exposed to the coitus before the doctor and claimed virgin. The Medical Officer took into possession her undergarments and the - 5 - Salwar for forensic examination. The report is Ext.PX only. The trouser of the prosecutrix contained the semen stains. Police had also taken bed-sheet from the hotel where they were staying, this was also sent for the forensic examination, it also contained the human semen. 3. After recording the statements of the witnesses and completing the challan, it was presented in the Court for the trial of the appellant and his co-accused Partap Chand. They were accordingly charge-sheeted, for the offences aforesaid, but at the end of trial, Partap Chand was acquitted, whereas, appellant Ashok Kumar was convicted and sentenced as aforesaid, hence the present appeal. 4. Shri Narender Sharma, learned counsel for the appellant vehemently argued that the prosecutrix did not support the case of the prosecution and further that there is not even an iota of evidence that the appellant had taken away the prosecutrix from the custody of her parents. He further ventilated that the evidence - 6 - on record shows that the prosecutrix had a liking for the appellant and she voluntarily joined his company, which fact according to him is evident firstly from her version made at the time of her medical examination to the doctor, secondly when she was examined as a witness in the Court and also from the fact that she stood married with the appellant and she put in appearance before this Court and made her statement to this effect. Therefore, the findings of the guilt of the appellant by the learned trial Court are contrary to the record, therefore, deserve to be set-aside. 5. Contra, Shri P.M. Negi, learned Deputy Advocate General for the State forcefully argued that it stands established from the record that the prosecutrix was less than 16 years of age, therefore whether she consented to the aforesaid act or not is absolutely immaterial. Further it is evident from the record that she was recovered from the custody of the appellant, therefore, the offences charged stand proved. - 7 - 6. I have given my thoughtful consideration to the rival contentions of the parties and have carefully reappraised the evidence on record. 7. To ascertain the age of the prosecution the statement of her father PW2 Baldev Kashyap, PW5 Naresh Chand Joshi, Officiating Principal and PW6 Ashwani Kumar are enough to hold that the prosecutrix was less than 16 years on the day of her missing. 8. Significantly, prosecutrix denied that she was taken away by the appellant from the guardianship of her parents. She also denied, about the recovery and sexual intercourse by the appellant as alleged, during the trial and also before the doctor at the time of her medical examination and asserted that she was virgin. This fact finds mentioned in her MLC Ext.PW4/A. Doctor also did not find any rape syndrome on her physical examination. Though he opined that she was habituated to intercourse. 9. PW2 Baldev Kashyap, father of the prosecutrix stated that the maternal uncle of the appellant as well as his mother had asked him to - 8 - marry the prosecutrix with the appellant, but he rejected the proposal. In cross-examination, he made a revealing statement that the prosecutrix was still putting up with the appellant w.e.f. 21.6.2004 even after registration of the case and on 22.6.2004 appellant had produced her in the Police Station. Prosecutrix also admitted this fact. PW2 also admitted that he was not carrying well with the prosecutrix because she was living with the appellant against his will. 10. PW3 Jai Dev, Uncle of the prosecutrix also stated when the appellant was enlarged on bail, prosecutrix again left their house and started living with the appellant. 11. On the last date of hearing, learned counsel for the appellant submitted that the prosecutrix had married to the appellant and she had two children from the wedlock and sought time to produce her in the Court 12. Today, the prosecutrix had put in appearance in the Court alongwith the appellant and one of their minor child. Her statement was recorded and is placed on record. She stated - 9 - before the Court that for the last about 4/5 years, she stood married to the appellant and from this wedlock, she gave birth to a daughter and a son, now she is living happily with the appellant. 13. On the critical examination of the evidence aforesaid. It transpires that it is not the appellant who forcibly took the prosecutrix from the lawful guardianship of her parents, but there are sound circumstances to come to the conclusion that she voluntarily left the house of her parents and joined the company of the appellant. During this time, she remained at various places including Parwanoo from where she was recovered. Even when she was produced before the Medical Officer, PW4 R.D. Goel, she denied rape/ sexual intercourse with her either by force or consent, rather claimed herself to be virgin. Further when the appellant was granted bail, she again joined his company, thereafter she married against the wishes of her father, with the appellant on attaining the age of 18 years. Since then she is living with the appellant and from this marriage she gave birth to two children, are the circumstances indicative of the fact that the - 10 - appellant did not take away the prosecutrix from the lawful guardianship of her parents. 14. In S.Varadarajan v. State of Madras [AIR 1965 SC 942], the apex Court made a distinction between “taking” and allowing a minor to accompany a person. The two expressions are held not to be synonymous though the Supreme Court in a guarded language observed that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. Their Lordships’ of the Supreme Court to a case like the present one where a minor alleged to have been taken away by the accused person left her father’s protection knowing and having capacity to know the full import of what she is doing, voluntarily joined the accused person also observed that it cannot be held that the accused could be said to have taken her away from keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him - 11 - in the formation of the intention of the minor to leave the house of the guardian. 15. Further in Paramjit Singh v. State of Himachal Pradesh [1987 Cri.L.J.1266] while relying upon S.Varadarajan’s case supra held that the evidence of the prosecution fell short of an inducement to the minor to slip out of the keeping of her lawful guardian and therefore, not tantamount to ‘taking’. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father’s custody/ protection, no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so but in the present case, this evidence is lacking. 16. Therefore, for the reasons aforesaid, the appeal is allowed and the judgment of conviction and sentence passed by the learned trial Court is set- aside, consequently, the appellant is acquitted of the offences aforesaid. The bail bonds are discharged. The fine amount, if any deposited, be refunded to the appellant. 17. Send down the records. November 18, 2011. (Surinder Singh) (Pds) Judge.