1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.600 of 2000 Decided on September 27, 2010 State of H.P. …Appellant. VERSUS Hem Dass ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge Whether approved for reporting?1 For the Appellant: Mr.R.K. Sharma, Sr. Addl. AG with Mr. Rajinder Dogra, Addl. AG For the Respondent: Mr. Inderjeet Singh Narwal, Amicus Curiae. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure, in reference to judgment dated 22.1.2000 passed by learned Addl. Sessions Judge, Shimla in Session Trial No. 28-S/7 of 1996, thereby acquitting the respondent/accused for the offence under sections 365,366 and 376 of IPC. 2. Mr. Inderjeet Singh Narwal, Advocate is requested to assist the court as Amicus Curiae. He has agreed to assist the court. 3. The prosecution case is that in the month of July, 1993, victim-prosecutrix , aged about 18 years, was kidnapped by Whether the reporters of the local papers maybe allowed to see the judgment? 2 the accused and was sexually assaulted. Therefore, in reference to the report, accused was charged for the aforesaid offences and the case was committed to the Session Court. 4. In order to prove its case, prosecution has examined as many as 12 prosecution witnesses, whereas through his statement under section 313 Cr.P.C. accused denied the same. 5. PW-1 Balak Ram Verma, Pradhan Gram Panchayat, Mashobra has stated that the certificates Ex PW-1/A and Ex PW- 1/B were issued by the Secretary. In the cross examination, he stated that he did not brought the record. PW-2 Dr. Rajesh Pathania, examined the accused on 21.10.1995 and found him capable of performing sexual intercourse. PW-3, HC Sita Ram, registered FIR Ex PW-3/A. PW-4 Satish Kumar, the then SHO, Police Station, Dhalli had filed the challan. PW-5 Surinder Kumar, Principal Sr. Secondary School, Totu issued certificate Ext PW- 5/A. In her cross examination PW-5 had stated that it is admitted that she has not entered the date of birth of the victim-prosecutrix in the admission and withdrawal register. She had also not produced the register. PW-6 HC Parkash Chand has investigated the case partly. PW-7 S.I Dev Kumar is not very material for the prosecution case. PW-8 Dr.Suresh Kumar, examined the victim- prosecutrix on 27.9.1993 and found no marks of injury over breast and external genitalia and also did not find any stains on the body of the victim-prosecutrix and in the final opinion, PW-8 has indicated that victim-prosecutrix having undergone to sexual intercourse within 72 hours from the time of her examination . PW- 9 mother of the victim-prosecutrix indicated that the age of the victim-prosecutrix was 13-14 years at the time of incident. PW-10 3 victim-prosecutrix stated that at the relevant time she was studying in Govt. High School Baldian in 6th class. On one day, when she was coming back to the house, accused met her on the way. He asked her to accompany him, she, however refused to do so. On this the accused shown the knife and threatened to done away with her life, in case not accompany to him, was brought to Dhalli and kept in a quarter for a week and during that period, sexually assaulted the victim-prosecutrix. Thereafter, she was taken by him to his house, where her mother reported the matter to the police. She was brought to police station, Dhalli along with the accused and sent with her mother. In the cross examination, PW-10 denied that the accused was known to her even prior to incident. It is denied by the victim-prosecutrix that the age of her younger brother was 22-23 years. PW-10 volunteered that he is 18 years of age. It has been admitted that at present her age is 23-24 years. PW-11 D.W. Negi, PW-12 Punita Bhardwaj are not very material for the prosecution. 6. On analysis of the prosecution witnesses and materials on record we notice that the victim-prosecutrix remained in the company of accused for about two months and at the relevant time, she was more than 18 years and was well aware of the consequences of her elopement with the accused and in tha period, her being subjected to sexual intercourse, cannot be ruled out and there is even an iota of evidence or any indication of any kind that during such a long stay despite getting sufficient opportunity of interaction with the public, victim-prosecutrix did not raise any hue and cry or informed anybody that she has been kept by the accused against her wishes and being subjected to sexual 4 assault. Such long stay of a young girl with someone could not be possible except with the consent of the girl. Therefore, in the facts and circumstances, it cannot be said that the girl was taken by the accused against her wishes. Further, she has not made endeavour to escape herself from the clutches of accused/respondent. More so, she has not made endeavour to make resistance if she was being sexually assaulted against her wishes. 7. In the facts and circumstances, the victim- prosecutrix is above 18 years of age and had accompanied on her own with the accused, spent about two months’ good time with the accused As such, the evidences, indicated above, are not corroborated with each other. In these circumstances, the prosecution has failed to bring home guilt to the accused. Therefore, in our considered view, we find no scope for interference in the impugned judgment of the learned Addl. Sessions Judge. The criminal appeal, being devoid of merit, is accordingly dismissed. 8. We appreciate the assistance rendered by Mr. Inderjeet Singh Narwal as Amicus Curiae. 9. The bail bonds, furnished by the accused/ respondent, are discharged. ( R.B.Misra ), J. 27th September, 2010 ( V.K.Sharma ), J. (sl) 5