IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No.339 of 1999 Date of Decision : June 16, 2010 State of H.P. …Appellant Versus: Paramjit Singh ……Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Mr. Rajesh Mandhotra, Dy. A.G. For the respondent : Mr. Ashwani Kumar Sharma, Advocate. Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgment dated 1.4.1999 delivered by the learned Sessions Judge, Una, H.P. in Sessions Trial No. 23/1998, whereby he acquitted the accused of having committed offences punishable under Sections 366-A and 376 of the Indian Penal Code. 2. On 5.8.1997 the mother of the prosecutrix lodged a complaint with the Police Station, Amb to the effect that her daughter (the prosecutrix) who is aged about 17 years is missing from 30.7.1997. On the said date the mother had gone to village Samnoli to meet her parents at 6.00 a.m. in the morning. She returned at 3.00 p.m. and did not find her daughter at 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 home. She and her husband searched for their daughter in the house of the relatives but to no avail. On 4.8.1997 Pawan Kumar s/o Sh. Desh Raj and Parwati Devi w/o Sh. Amarjeet Singh told the mother of the prosecutrix that they had seen the prosecutrix in the company of the accused and Sh. Vishesh Kumar. Sh. Paramjit Singh runs a tailoring shop near the house of the prosecutrix and the complainant alleged that the prosecutrix had been abducted by him against her will. On the basis of this complaint FIR No. 118/97 under Sections 363, 366- A IPC was lodged against accused Paramjit Singh. 3. Investigation in the case was done by PW-12 Khoob Ram. According to him on 5.8.1997 he could do nothing since no witnesses were available. On 6.8.1997 he wrote a letter to the residents of village Panchayat to supply him the certificate of date of birth of the prosecutrix. On 9.8.1997 he scribed the statement of complainant Kaushalya Devi again. He recorded the statement of the father of the prosecutrix on 10.8.1997. Thereafter on 11.8.1997, 6 days after the complaint had been lodged he went to village Chanour to the house of the accused. The prosecutrix was found residing in the house of the accused. Her custody was handed over to her mother. Further investigation was got done and the statement of the prosecutrix was recorded and thereafter the charge under Section 376 IPC incorporated in the FIR. 3 4. On completion of the investigation the accused was charged with having committed the aforesaid offences. He has been acquitted. Hence the present appeal. 5. The prosecutrix states that on the day in question the accused came to her house. She was at home along with her brothers and sister. The accused told the prosecutrix that her maternal aunt was seriously ill and, therefore, she had been called to village Chanour. On this pretext he took her to his village Chanour where she resided for 10 days. According to her the accused did not stay at his house on 30.7.1997 and she (the prosecutrix) stayed in the house of the accused along with his father, mother and sister. She further told that every night during the period she stayed in the house of the accused she was subjected to forcible sexual intercourse. The story set-up by the prosecutrix is totally unbelievable. According to her, her brothers and sister were present in the house when the accused came to her parental home at 8.00 a.m. and asked her to accompany him to village Chanour on the pretext that her maternal aunt was seriously ill. If this had been true the brothers and sister would have been told about this aspect by the prosecutrix and they in turn would have told their parents that the prosecutrix had gone with the accused to village Chanour. The parents however have a totally different story and according to them till 4.8.1997 they had no intimation as to what had happened. 4 6. Even the conduct of the parents casts a doubt on the prosecution case. It cannot be believed that the parents of a young girl aged 17 years or 18 years would not report the matter to the police or to the Panchayat for one week such a long time. Their daughter was missing for about one week. The report was lodged on the 7th day. The only explanation given is that the parents were searching for the prosecutrix in the houses of the relatives. No such relatives have been produced and other than the statement of the parents there is no other material on record to show that any search was made. Even after the report was lodged and it was known that the prosecutrix had gone with the accused, the police went to Chanour village after 6 days. 7. It is more apparent that the prosecutrix went with the accused of her own. She stayed in his parents home for 10 days. She admits that one day she was alone at the house of the accused with his parents and sister. In her statement she does not say that she was forcibly kept in the house. Her maternal aunt lived in the same village. She does not give any explanation as to why she did not make any attempt to meet her maternal aunt since even according to her she had been taken by the accused on the pretext that her material aunt was seriously ill. Therefore, the consent of the prosecutrix is writ large. It is apparent that she went with the accused of her own free will and the sexual intercourse, if any, was committed with her consent. 5 8. That brings us as to the question regarding the age of the prosecutrix. Even according to the prosecution, the prosecutrix was born on 4.2.1980 meaning thereby that she was about 17 years 6 months when the incident took place. Thus, no offence under Section 376 IPC is made out. 9. As far as offence under Section 366-A is concerned, to prove such an offence, the prosecution had to prove that the prosecutrix was below 18 years. The certificates (Ext.PL & Ext.PM) relied upon by the prosecution to prove the age of the prosecutrix had been issued by the Gram Panchayat. According to these certificates one female child Nirmala Devi was born to Kaushalya Devi w/o Sh. Kashmir Chand on 4.2.1980. Name of the prosecutrix is Sulochana Devi and not Nirmala Devi. No doubt the parents of the prosecutrix have stated that at the time of the birth the prosecutrix was named Nirmala Devi but at the time of admission in the school she was named Sulochana Devi. However, other than this bare assertion there is no other material to show that Nirmala Devi and Sulochana Devi are one and the same person. 10. The learned trial Court has also noted that in the original register the words ‘alias Sulochana Devi’ appear to have been interpolated at a later stage. According to the parents of the prosecutrix, she was admitted in the school but her school certificate has not been proved on record. 6 11. In view of the aforesaid evidence, the learned trial Court was justified in holding that the prosecution has miserably failed to prove that the prosecutrix was below 18 years of age at the time of commission of the offence. We find no reason to disagree with the findings of the learned trial Court. The appeal is accordingly dismissed. The bail bonds furnished by the accused are discharged. ( Deepak Gupta ), Judge. ( Sanjay Karol ), Judge. June 16, 2010. (rana)