IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. : 206 of 1997 Decided on : 16.08.2010. ___________________________________________________________ State of Himachal Pradesh … Appellant. Versus Amar Singh and another … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Rajinder Dogra Addl. Advocate General. For respondent No.1 : Mr. Lovneesh Kanwar, Advocate. _________________________________________________________________ R.B. Misra, Judge (oral). The present appeal has come up for consideration after leave to appeal has been granted under Section 378 (3) Cr. P.C in reference to the impugned judgment dated 9.12.1996, passed by the learned Sessions Judge, Solan, H.P, in Sessions Trial No. 9 NL/7 of 1994, acquitting the accused-respondents for the offences under Sections 363, 366, 376, 202 and 212 IPC. 2. The prosecution case is that on February 2, 1994, the accused being accompanied by one Shri Sham Lal son of Shri Hari Ram resident of village Kafleda visited the house of the mother of the prosecutrix. The prosecutrix was betrothed with accused Amar Singh. On seeing Amar Singh accused and Sham Lal present at her house, Smt. Kamla mother of the prosecutrix went 1 Whether reporters of the local papers may be allowed to see the judgment? 2 to some other village. When she returned she found the prosecutrix missing from her house. The prosecutrix accompanied accused Amar Singh to his house. She stayed at the house of accused Amar Singh at village Kafleda for about 9 days. Accused Amar Singh subjected her to sexual intercourse when she happened to be below 18 years of age. After staying for the period indicated above at the house of Amar Singh, both of them thereafter went to Kalka. They stayed for about 20 days at Kalka at the railway quarter of Ram Karan. Ram Karan happened to be the foster father of accused Amar Singh. When the father of accused Amar Singh died then the mother of accused Amar Singh had married accused Ram Karan. The accused Amar Singh committed sexual intercourse with the prosecutrix at the railway quarter of Shri Ram Karan. Accused Amar Singh had asked the prosecutrix to state to the rest of the people that her parents and other relatives are not existing and that she had married the accused Amar Singh. 3. The case was committed to the Court of Sessions for trial. The accused Amar Singh was charged for the offences punishable under Sections 363, 366 and 376 IPC and accused Ram Karan was charged for offences punishable under Sections 202 and 212 IPC. 3. In order to prove its case the prosecution has examined as many as 12 witnesses. 3 4. To prove the age of the prosecutrix, the prosecution has relied upon the statements of PW-1 Dr. G.D. Khullar, PW-2 Kumari Meena, PW-3 Smt. Kamla, PW-5 Dr. A. K. Tiwari, PW-7 Prithwi Chand Head Constable and PW-12 Shri Paramjeet Singh. PW-1 Dr. G.D. Khullar did not say that the prosecutrix was below 18 years. However, on the basis of X-ray films, PW-1 Dr. Khullar opined that the age of the person to whom X-ray films belong could be 14 ½ to 15 years. X-ray films cannot be said of much credence as PW-1 Dr. G.D. Khullar had stated in his cross examination that possibility cannot be ruled out that the X-ray films might have been taken of different person than the prosecutrix. In view of testimony of PW-2 Kumari Meena, the prosecutrix could be below 20 years. As per the testimony of PW-3 Smt. Kamla, the age of the prosecutrix could be 17 years as on February, 1996. Similarly, in view of testimony of PW-5 Dr.A.K.Tiwari, age of the prosecutrix could be 18 years. In view of conflicting opinions and different views regarding the age of the prosecutrix, it cannot be proved that the prosecutrix was below 18 years. In such circumstances, benefit of doubt goes in favour of the accused. We have carefully examined the prosecution evidence and material on record and find that the victim/prosecutrix being major had enjoyed in the company of accused Amar Singh, without making any hue and cry and protest. It has also been brought to our notice that both the victim/prosecutrix and accused Amar Singh have subsequently 4 been married. There appears no role to have been played by another accused Ram Karan. 4. In our considered view, on the basis of material on record, learned trial Court has rightly arrived at the conclusion that the prosecution has failed to prove its case against the accused persons. 5. On analysis of the prosecution evidence and material on record, we do not find any scope for interference with the impugned judgment of acquittal. Accordingly, the appeal is dismissed being without any merit. (R.B. Misra) Judge. (V.K. Sharma) Judge. August 16, 2010. (lsp)