IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 84 of 1997 Decided on July 20, 2010 _______________________________________________________ State of H.P. …Appellant Versus Roshan Lal …Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting? Yes/No For the Petitioner: Mr. Rajinder Dogra, Additional Advocate General, with Mr.Anil Jaswal, Deputy Advocate General. For respondent: Mr. Ashok Sharma, Advocate. Justice R.B. Misra,J.(Oral.) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of criminal Procedure in reference to judgment dated 18.11.1996, passed by the Learned Sessions Judge, Kinnaur, H.P. in Criminal Trial No.8-R/7 of 1996, under Sections 376 of the Indian Penal Code, acquitting the sole respondent. 2. The prosecution case, in nutshell, is that on 02.04.1995, Smt. Madi Devi has lodged report with the police wherein she had alleged that she is living in her village with her children and Kumari Reena, who is aged about 16 years, was under treatment for throat ailment. On 20.03.1995, her daughter alongwith Asha and Amar Dassi came to see Fag Mela at Rampur. On 23.03.1995 Amar Dassi told her that the victim has been taken away by accused Roshan Lal on 23.03.1995 for marriage, as the victim was hard of hearing. On the 2 date of incident accused respondent followed the victim and told her that he wants to marry her for which victim gave him slap. However, accused respondent promised her that he will marry her and will not leave her and thereafter victim prosecutrix was taken by the accused. On the basis of complaint, a case under Sections 363, 366 of the Indian Penal Code was registered. The accused disappeared and the victim was recovered from the house of one Kamla Negi of Village Racholi and was handed over to her mother and her statement was also recorded. The prosecutrix was got medically examined from the Referral Hospital Rampur and the doctor has opined that the victim has been sexually assaulted. The clothes of the victim were also taken in possession which were sent for chemical examination. Victim prosecutrix was sent for Radiological test to ascertain the age and according to the Radiologist, the age of the prosecutrix was between 13 to 15 ½ years at the time of incident. As per Panchayat certificate the age of the prosecutrix at the time of incident has been mentioned 28.08.1988. However, the accused was charged for offence punishable under section 376, 366 of the Indian Penal Code. The prosecution in support of its case has examined 13 witnesses in all, whereas the accused has been examined under section 313 of the Code of Criminal Procedure and denied the same. 3. PW-1 Dr. Sudha Prakash, Radiologist had examined the prosecutrix on 06.04.1995 and given the following observations:- “7 films were taken. It was found that epiphyses of head, femur, greater trochanter and medial epicondyle were fused. Epiphyses of head humerus, echromion distal radius, distal ulna, distal femur, 3 proximal tibia, fibula and distal tibia fibula were not fused. The skeletal age of Reena was 13 to 15 ½ years. I have issued my report which is Ex.PW-1/A which is in my hand and bears my signatures. I have seen X-ray films 7 in number which are Ex.PW-1/B-1 to PW-1/B-7.” 4. PW-2, victim, has stated that she was working at the house of one Tara at Rampur and came to Rampur, for her treatment. She was in Fag Mela with her sisters Amar Dassi and Asha. Her brother-in-law was also with her sister. They had taken the victim for a cup of tea. After taking tea, they had gone in the palace ground for Fag Mela where the accused also met her and he told the prosecutrix for marriage, upon which she slapped him. The accused again promised the prosecutrix that he will maintain her properly and he is having houses at four places. As such PW-2 victim was taken by the accused during night hours in Kohridhar jungle where she was taken in one cave and the accused committed sexual intercourse with her in the cave. PW-2 victim had raised hue and cry but none had come at the spot. The accused took the prosecutrix and kept her in the house of some of her relations (grand-mother). The accused told her that he is unmarried and the victim stayed in the house of her relations for 2 days and thereafter, she had stayed at Dugi Riuni in the house of her uncle and the victim had not disclosed about the sexual assault committed by the accused to any person due to fear. At that time, PW- 2 was employed in the house of one Padma Driver at Racholi. 4 5. In cross examination PW-2 has stated that I had told the police that the accused had threatened me that if I will not allow him to commit sexual intercourse, he will throw me from the Dhank. PW-2 has very categorically stated in her cross examination that there were many people in the Palace ground but the accused followed her when she was coming towards school side with her sister. She was sitting with Amari when accused Roshan Lal came there. The accused took the victim out of the palace ground towards the building where they remained sit alongwith Amari, her sister and from where Amari was sent back thereafter, the accused took the prosecutrix with him through National High Way road Rampur. The victim reached in the house of her relations (grand mother) during night time and she had not disclosed anything to the owner of the house in the morning about the incident. 6. PW-3, Smt. Madi Devi, mother of the victim stated in her statement that the prosecutrix was only 16 years of age at the time of incident. She further stated that she had also come to Rampur to meet the father of the accused and to enquire about the prosecutrix but the father of the accused instead of helping her told that the accused is already married and he cannot do anything and told her that she may do anything whatever, she likes. Thereafter, she reported the matter to the police, copy of FIR is Ex. PW-3/A and started searching the prosecutrix alongwith the police. Prosecutrix met me on 3rd April, 1995 in the house of Kamla Negi. The prosecutrix told PW-3 that the accused committed sexual intercourse with her but she could not return to her house due to fear. PW-3 had made report to the police about 5-6 days after the incident. 5 7. PW-4, Kumari Amar Dassi, who accompanied the prosecutrix, has stated that the accused had gone with the prosecutrix at about 3.00 p.m and she told her maternal uncle that the accused had taken the prosecutrix with him as she was knowing the accused prior to the incident. PW-4 has further not indicated that victim prosecutrix was taken forcibly by the accused. Therefore, the version of PW-4 is also of no help to the prosecution case. PW-5, Basant Lal, has not supported the case of prosecution. The version of PW-6, Kanta Devi, has also not supported the case of prosecution. 8. PW-7, Bhagwan Dass, Secretary, Gram Panchayat, Dansa, who had issued the birth certificate stated that as per Panchayat record the date of birth of prosecutrix is 28.03.1978. PW- 9, Ram Singh had recorded FIR and PW-9 HC Gopal Dass whose affidavit has been placed on record as Ex.PW-9/A, in discharge of their official duties, have done the work assigned to them. PW-10, is Dr. Narender Kumar, Medical Officer, had examined accused Roshan Lal on 9.4.1995. PW-11, Kamla Devi stated that she employed the prosecutrix on 25.3.1995 as domestic servant as the girl was starving without food, but the prosecutrix had not disclosed to her anything about the incident. 9. PW-12, Dr. Sarita Sharma, has assessed the age of prosecutrix 13 to 15 ½ years. She has stated that she cannot say about the duration of the incident. PW-12, has admitted that if forcible intercourse is committed, there could be injuries on the private part of the victim. PW-13, ASI Sangat Ram who made investigation and visited the spot prepared site-plan. The prosecutrix was recovered from the house of Smt. Kamla and handed over to her mother vide 6 Ex.PW-3/B, however, PW-13 has not supported the prosecution case. 10. DW-1, Meena Ram stated that he was present with the accused on 20.03.1995 in Fag Mela. They remained there till 2.30 p.m. and one girl of about 17-18 years of age came there alongwith her sister who asked for sweet from accused Roshan Lal. The accused also gave them the tickets of the bus and thereafter, both the girls left at about 3.00 p.m. to their village. In cross examination DW 1 has stated that both men and women used dance together in Fag Mela. Rena etc. were dancing with the wife of accused Roshan Lal. 11. PW-2 accompanied and allowed the accused from the Mela ground, hence, there was no question of threatening the prosecutrix for sexual intercourse. It has also come in the evidence that she was kept in the house of her relations (maternal grand mother) but PW-2 has stated that she was not knowing the lady in whose house she was kept, whereas PW-3 mother of the prosecutrix has stated that the lady, in whose house the prosecutrix was kept, is related to her and the prosecutrix was knowing the lady. Accused and PW-2 have stayed at several stations for several days and came back to the house of one Kamla Negi for employment and she was employed by her at her house. But PW-2 had not disclosed anything about the alleged offence to Kamla when she came to her house. She did not try to inform any one near the locality that she was kept there against her wishes. In view of the prosecution witnesses and the material on record, the learned Sessions Judge, Kinnaur, has rightly arrived at the conclusion that the prosecution has not been able to prove its case 7 beyond reasonable doubt against the accused-respondent. In the facts and circumstances, there is no scope of any interference in the impugned judgment dated 28.02.1996. The appeal being devoid of any merit is dismissed. (Justice R.B. Misra), Judge. July 20, 2010 (Justice V.K. Sharma) (Pritam) Judge