1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 188 of 2000 Decided on December 6, 2010 ________________________________________________________________ State of H.P. …Appellant. Versus Nanak Chand & Anr. ...Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. ¹Whether approved for reporting? No. For the appellant: Mr. R.K.Sharma, Senior Addl. Advocate General, with Mr.Rajinder Dogra, Addl. Advocate General. For the respondents: Mr. Sanjeev Mankotia, Amicus Curiae. Justice Sanjay Karol,J. For an offence, which is alleged to have been committed on 17.8.1996, accused were put to trial. In terms of judgment dated 17.11.1999 passed by Sessions Judge, Mandi, in Sessions Trial No. 27 of 1997, titled as State of H.P. vs. Nanak Chand and Another, accused stands acquitted of the charged offence. 2. It is the case of the prosecution that prosecutrix (PW.2) and accused Nanak Chand are residents of village Manglah. On 17.8.1996, accused Dhuni Chand accompanied accused Nanak Chand and the prosecutrix upto 'Sheetla Maata Mandir'. There accused Nanak Chand put Sindur (vermilion) on the head of the prosecutrix as token of having married her. 2 He threatened her that if she raise alarm he would kill her. Both the accused made the prosecutrix came to the bus-stand at Sundernagar. There they sat for some time and accused Dhuni Chand left for his house. Thereafter, accused Ninak Chand took the prosecutrix to Bilaspur, where she was subjected to sexual intercourse without her wishes and consent. From Bilaspur, she was taken to Chandigarh, Mehatpur and other places where also she was subjected to rape under persistent fear of death. Dumnu Ram (PW.1) father of the prosecutrix, lodged report with the police, on the basis of which FIR No. 21/1996 dated 19.8.1996 (Ex.PW.1/A) was registered with Police Station, Sundernagar, under Sections 363 and 366 IPC. Police commenced with investigation. Prosecutrix was recovered and handed over to her parents. She was got medically examined by Doctor Rafia Bano (PW.4), who issued MLC (Ex.PW.4/B). Investigation revealed that prosecutrix was born on 7.8.1980 and birth certificate (Ex.PW.13/A) taken on record. With the completion of investigation, challan was presented in the Court for trial. 4. Accused were charged for having committed offence punishable under Sections 363, 366 and 376 IPC, to which they did not plead guilty and claimed trial. 5. In order to prove its case, prosecution examined 13 witnesses and the statements of accused under Section 313 Cr.P.C. were also recorded. 3 6. Court below acquitted the accused of the charged offence, hence the present appeal. 7. There is not much challenge on the question of age of the prosecutrix. Undoubtedly, she is more than 16 years of age. In August, 1996,The prosecutrix admits her age to be more than 16 years. Testimonies of her father and mother Kanta Devi (PW.3) are also to this effect. Certificate issued from the record i.e. Births and Deaths Register (Ex.PW.13/A) also reveals that prosecutrix was born on 7.8.1980. But the authenticity of this register itself is in doubt. Sh. Rajinder Singh (PW.13) admits not being aware of the person who made the entries in question and also on whose instance and behalf they were so recorded. He also admits that register is not serially numbered. It is not properly maintained. 8. According to Dr.S.K. Mahlotra (PW.5) radiological age of the prosecutrix was 15 to 17 years. It is a settled position of law that margin of error by two years is acceptable in medical jurisprudence and benefit of doubt ought to be given to the accused. Thus, it cannot be said that prosecution has been able to prove the exact age of the prosecutrix. 9. According to the doctor, no marks of injury were found on the body of the prosecutrix. Two fingers could easily be inserted in the vagina. There was no injury on her private parts either and prosecutrix was exposed to sexual intercourse. 4 10. It is a settled position of law that version of the prosecutrix needs no corroboration and if it otherwise inspires confidence, the same can be relied upon to prove the guilt of accused. 11. No doubt, parents of the prosecutrix have supported the prosecution, but after careful scrutiny of the statement of the prosecutrix we feel that it is not a case of rape. Sex, if any, is consensual in nature. 12. The prosecutrix admits to have got photographs clicked with the accused. She also exchanged letters. She states that Photograph Ex.D.1 is mine alongwith the accused. This photograph was taken at Shimla at Mall road. The letters Ex.D-2 to Ex.D-11 are in my hand. These letters were written by me to the accused, Nanak Chand. I handed over the letters personally to the accused. These letters were written by me in the school. These letters were written prior to 17.8.1996. Nanak Chand had also written some letters to me. It is correct that I had relations with accused and I have been writing letters during one year prior to the date when I left in the company of accused. 13. She further admits that at the place where they stayed at Bilaspur, several persons were present and yet did not inform anyone of them about the fact that she was being forcibly taken away by the accused. She admits that accused informed everyone that both of them were husband and wife. She also admits that in Shimla they stayed with someone for 5 4-5 days and during day time, accused used to leave her alongwith the other ladies present in the house. She could not give any reason as to why she did not complain to the ladies of the house about the conduct of the accused. In fact, she admits that “It is correct that I have been roaming at Shimla and Chandigarh of our own accord”. Hence, her version that accused kidnapped her or forcibly married and committed sexual intercourse with her does not inspire confidence. Statement of the parents thus gets materially contradicted. 14. Correspondences exchanged between the parties only reveal long standing intimacy which the parties have developed over a considerable period of time. 15. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (R.B. Misra) Judge December 6, 2010 (Sanjay Karol) (Purohit) Judge