IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. 352 of 1997 Decided on: 30.8.2010 State of H.P. ..…Appellant Versus Roshan Lal alias Jatti. ..…Respondent Coram The Hon’ble Mr. Justice Surjit Singh, J. The Hon’ble Mr. Justice V.K. Sharma, J. Whether approved for reporting?1 For the appellant : Mr. Ramesh Thakur, Assistant A.G. For the respondent : None. Surjit Singh,J. (Oral) This appeal by the State is directed against the judgment dated 9th December, 1996 of the learned Sessions Court, whereby respondent Roshan Lal, who was charged with and tried for offence, under Section 376 of the Indian Penal Code, has been acquitted. 2. As per prosecution case, on 25.4.1993, Smt. Sumitra Devi, PW-1 lodged a report with the police that her daughter (PW-2-name withhold) aged about 13 years had been 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 subjected to rape by the respondent about 6-7 months earlier and that as a result of that act of the respondent, her daughter had become pregnant and was carrying about six months pregnancy. The FIR so lodged is Ext.PW1/A. Prosecutrix did not allow her private parts to be examined. However, she was examined for the purpose of determining if she was pregnant or not. Dr. Promod Sharma PW-5 conducted such test and gave the opinion that the prosecutrix was carrying 20-22 weeks pregnancy. Statement of the prosecutrix was also recorded. 3. On the completion of investigation, respondent was challaned. Case was committed to the Sessions Court and it came to be tried by Additional Sessions Judge. Prosecution examined the prosecutrix as PW-2, her mother PW-1 and Dr. Promod Sharma as PW-5 to bring the charge home to the respondent, besides examining some other formal witnesses. 4. Trial Court acquitted the respondent holding that the evidence on record did not prove that the prosecutrix was below 16 years of age at the relevant time or that she had been subjected to sexual intercourse by the respondent. 5. We have heard the learned Assistant Advocate General. Nobody appears for the respondent. From a combined reading of the testimony of PW-1 Sumitra, the mother of the prosecutrix, as also PW-2 Sunita, the prosecutrix it is made out that at the time of the pregnancy the prosecutrix was not in the village, where the respondent allegedly subjected her to sexual intercourse, in an orchard, but had been at Delhi for several months where she had been taken by some Aunti and kept in a house occupied by a family consisting of 5-6 members. 3 Prosecutrix stated that she returned to the village 3-4 months before the lodging of the report with the police. However, she was carrying pregnancy of 5-6 months at that time per her own deposition, the deposition of her mother as also the testimony of PW-5 Dr. Promod Sharma, who opined that duration of pregnancy was 20-22 weeks when he examined her on 27th April, 1993. Prosecutrix stated that she had been at Delhi for eight months before she returned to the village 3-4 months prior to the lodging of the report Ext.PW1/A. 6. The above stated position apart, evidence on record does not prove that the prosecutrix was below 16 years of age, at the relevant time. Prosecutrix remained admitted in a school for 4-5 months, per her own testimony. No record from the school about her age was produced. Prosecution proved a certificate, based on an entry in a Panchayat Register. The same is Ext.PW4/A. As per this certificate, date of birth of prosecutrix is 1.4.1984. That means in the year 1993, when FIR Ext.PW1/A was lodged, her age was supposed to be nine years only, but according to PW-1 Sumitra, the mother of the prosecutrix, she was 13 years old at that time. Thus, the entry Ex.PW4/A does not fit into the prosecution story. 7. Prosecutrix in her cross-examination stated that she had an elder brother named Dhyan Singh, who was 20-22 years of age and that said Dhyan Singh was elder to her by two years. This statement she made in the year 1995. That means her age in the year 1995 was between 18 and 20 years. If that is so, her age at the time of alleged sexual intercourse leading to her pregnancy, was around 16 years. 4 8. In view of the above stated position, we see no merit in the present appeal. The same is, therefore dismissed. (Surjit Singh),Judge. (V.K. Sharma), Judge. August 30, 2010 (vs)