` IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 624 of 1996 Date of decision: 22.4.2010. State of H.P. …. Appellant. Vs. Shak Mohd and others ... Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1. No. For the appellant-State: Mr. Vivek Singh Thakur, Addl. Advocate General For the respondents: Ms. Bindiya Sharma, Advocate. Deepak Gupta, J.(oral) This appeal by the State is directed against the judgement dated 30.5.1996 delivered by the learned Sessions Judge, Chamba, in Sessions Case No. 35 of 1994 whereby he acquitted the accused of having committed offences punishable under Sections 363, 366, 368 and 376 of the Indian Penal Code. At the outset, we would like to state that this appeal should not have been filed especially qua respondents No.3 to 8 since in para 20 of the judgement of the learned trial Court it has been recorded that the public prosecutor himself conceded that there was no evidence worth the name to connect the said accused with the commission of said offences. We fail to understand why public money and time is wasted in filing such appeals when before the trial Court it had been conceded that no case was made out against the said accused. 1 Whether the reporters of the local papers may be allowed to see the Judgment. Yes. 2 Having said so, we now take up the matter as far as accused No. 1 and 2 are concerned. The allegations against the said accused are that accused No.2 Dugo Devi on 20.11.1992 enticed the prosecutrix and took her to the house of accused No.1 Shak Mohammad, who in turn repeatedly raped her over a period of 8-9 days. The prosecutrix was recovered in the company of the accused on 29.12.1992 from the chow-shed of Shiv Dayal (PW-8). She was thereafter handed over to her father. The medical examination was conducted and the doctor opined that the prosecutrix was habitual to sexual intercourse. No injury or mark of violence was found on the person of the prosecutrix. After completion of the investigation, report under Section 163 was filed and the case was committed to the Court of Sessions. After trial the accused have been acquitted. Hence the present appeal. According to the prosecutrix, she alongwith her mother was present in her house. Her mother went to milk the cow and the prosecutrix came out of the house to urinate. In the meanwhile accused No.2 Dugo Devi came to the prosecutrix and took her to the house of accused No.1 Shak Mohammad. Accused No.1 told her that he had a lot of money and would take her for a trip all over the country. Thereafter, he took her to the bank of the river and there he forcibly committed sexual intercourse with her. Then he forced her to walk throughout the night through a jungle. Then he took her to the house of his aunt, who is the wife of Feroze Din accused. There they stayed 3 for 2/3 days. Then the accused Shak Mohammad took her to the house of maternal uncle Badar Din. There also they stayed for two or three days. After staying in the house of Badar Din for 2- 3 days they stayed in the cow-shed of Shiv Dayal for three days where she was finally discovered by the police. PW-7 in whose presence the prosecutrix was recovered has clearly stated that when the prosecutrix was recovered she had stated that she had accompanied the accused Shak Mohammad of her own will and wanted to live with him. To the similar effect is the statement of PW-8 Shiv Dayal in whose cow-shed these two persons resided for 2-3 days. The prosecutrix lived with the accused No.1 for 8-9 days. It is not the case of the prosecution that she was forcibly abducted from her house. Even according to the prosecution after she had come out of her house accused No.2 Dugo Devi asked her to accompany her to the house of accused No.1 Shak Mohammad. Thus the prosecutrix voluntarily went to the house of Shak Mohammad. She also voluntarily accompanied Shak Mohammad to the river. The prosecutrix in her cross-examination has admitted that she was writing letters to accused No.1 Shak Mohammad and in these letters she was expressing her love for him. Her explanation is that she was writing these letters on behalf of Dughi. This explanation cannot be accepted since Dughi is a middle aged woman having a number of children and the prosecutrix admits that she was signing these letters in her own name and not as Dughi. Therefore, there is no doubt in our 4 mind that the prosecutrix went with the accused No.1 of her own account. This brings us to the crucial issue as to what is the age of the prosecutrix. If she was aged less than 16 years at the relevant time then the accused would still be guilty of committing the offence of rape whether the prosecutrix was a consenting party or not. To prove the age of the prosecutrix the prosecution has relied upon the statement of the mother PW-5 Jan Bibi who stated that on the date of recording of the statement i.e.18.9.1995 the prosecutrix was 17 years and 2 months old. Since the incident took place on 20th November, 1992 the prosecutrix would be less than 15 years at the time of the incident. PW-6 has produced the school leaving certificate Ext.PC. However, no reliance can be placed on this certificate since even the original school record on the basis of which this certificate is created has not been produced in Court. PW-15 has produced the certificate Ext.PF from the Panchayat record. He did not however produce the original record. He admitted that a register of births and deaths is maintained in the Panchayat but the same was also not produced. He stated that the prosecutrix was born in some other Panchayat and therefore, the entry regarding her birth would be in that Panchayat. In fact, from the perusal of Ext.PF it is not very clear whether the age of the prosecutrix is recorded as 19 or 14. Be that as it may, the mother in her statement has stated that she was married about 40 years ago and the prosecutrix was 5 born about 12 or 13 years after marriage, which would mean that she would be 26-27 years at the time of the recording of her statement and 22-23 years at the time of the incident. The statement of the prosecutrix herself in cross-examination belies her version with regard to her age. She stated that when she was admitted to the school she was 5-6 years old and in the year 1992 she had already been out of school for about four years. She had studied upto fifth standard, that means that she spent atleast six years in school, which would make her about 16 years, even according to her own evidence. She also admitted that she first attended the Government Primary School, Sirisetha where she studied upto second standard then she left the said school and attended Government Primary School, Pukhthala where she studied for about three years. The Radiological age of the prosecutrix has been assessed to be 15 to 17 years by PW-1 Dr. V.K.Pathak. She also admits that development of body depend on many factors such as, dietary habits, climatic factors, etc. The learned trial Court after considering all these materials came to the conclusion that it does not stand conclusively proved that the prosecutrix was below 16 years. The radiological age shows that she can be over 17 years. The mother’s statement indicates that she is more than 20 years. Her own statement with regard to her schooling also indicates that she could be 16- 17 years at the time of occurrence. Therefore, we find no reason to disagree with the findings of the learned trial Court in this regard. 6 In view of the above discussion, we find no merit in the appeal which is accordingly dismissed. The bail bonds furnished by the accused are discharged. (Deepak Gupta) Judge. 22nd April, 2010. (Rajiv Sharma) ™ Judge.