IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 496 of 1999 Date of decision: 30.07.2010 _________________________________________________________________ The State of H.P. .....Appellant. Versus Rajesh Kumar. .....Respondent. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? _________________________________________________________________ For the appellant: Mr. Rajinder Dogra, Additional Advocate General with Mr. Anil Jaswal, Deputy Advocate General. For the respondent: Mr. Sanjeev Sood, Advocate. R.B. Misra, J (Oral). The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment and order dated 17.07.1999, passed by the learned Sessions Judge, Solan, District Solan, in Sessions Trial No. 12-S/7 of 1999, acquitting the accused-respondent for the offences under Sections 363, 366 and 376 of the Indian Penal Code in reference to FIR No. 22 of 1997, Police Station Dharampur, Solan, H.P. 2. The victim/prosecutrix was student of Senior Secondary School, Dharampur, had gone to school on 21.12.1998, but did not return to her home. In that respect, on 22.12.1998, a complaint was 1 Whether reporters of Local Papers may be allowed to see the judgment? lodged by Shri Gurcharan Singh, father of the victim/prosecutrix. The victim/prosecutrix was recovered on 31.12.1998 from the custody of the accused. She was medically examined and in that respect aforesaid case was lodged against the accused. 3. Prosecution in order to prove its case, examined as many as eleven witnesses, whereas, the accused through his statement under Section 313 Cr.P.C. denied the prosecution case and adduced two defence witnesses. 4. Prosecution examined the victim/prosecutrix as PW-1, PW-2 Shri Gurcharan Singh, PW-3 Dr. B.K. Bhardwaj, PW-4 Dr. (Mrs.) Anita Sood, PW-5 Dr. Mahinder Lal, PW-6 Smt. Satyawati, PW-7 Shri Vishesh Kumar, PW-8 Shri Trilochan Sharma, PW-9 Shri Ram Swaroop, PW-10 Shri Vikram Singh, PW-11 Shri Bishmbher Singh. In defence, Smt. Veena Devi and Shri Sihnu Ram were examined as DW-1 and DW-2, respectively. 5. In view of the testimony of PW-4, Dr. (Mrs.) Anita Sood, no mark of injury on the body of the victim/prosecutrix was noticed and the victim/prosecutrix was found habitual to sexual intercourse. 6. On examination of prosecution witnesses and the material on record, it appears that the victim/prosecutrix remained in the company of accused from 21.12.1998 to 31.12.1998 and during that time she was sexually assaulted by the accused, however, in order to bring home the guilt to the accused, following three aspects are to be proved by the prosecution: 1. The age of the victim/prosecutrix on the date of incident was below 18 years, 2. Sexual assault was made without her consent and 3. She was taken forcibly from the legal guardianship of her parents by way of inducement, kidnapping, abduction or enticement. 7. On the basis of material on record and prosecution witnesses, an analysis has been made by the learned Sessions Judge. For convenience relevant paragraph is quoted, as below: “31. The prosecution has lastly placed reliance on panchayat certificate and panchayat record. Again, the entry in the panchayat record has been made on the basis of information of one Chet Ram, who is not either family member or relative of the prosecutrix. It is not clear as to on what basis the date of birth was mentioned by him in the panchayat register. Moreover, the entry of Parivar register otherwise becomes suspicious as the name of Harvinder Kaur has been mentioned in this register, though there is no column of mentioning the name of the child and this entry of the name is in different ink and pen. So, this parivar register cannot be relief upon for conclusively proving that the age of the prosecutrix was less than 18 years.” 8. According to prosecution, the date of birth of the victim/ prosecutrix was 26.03.1982. Therefore, admittedly, the victim/prosecutrix was more than 16 years of age at the time of alleged incidence. 9. The crucial point, however, is whether the victim/prosecutrix was consenting party in leaving her house and subjecting herself to sexual intercourse by the accused. On the basis of the prosecution witnesses and material on record, following observations have been made by the learned Sessions Judge in judgment dated 17.07.1999. For convenience, relevant paragraphs are extracted below: “27. In this regard the careful perusal of the statement of prosecutrix reveals that she has tried to explain her conduct on the pretext that she was administered some drugs by the accused which made her feel giddy and she was not capable of understanding her own good or bad. Her statement, however, does not inspire confidence. She was moving about with the accused to different places, had occasion of telling the people around her that she is being forcibly raped or she has been forcibly kidnapped from her house. However, she kept mum throughout and did not disclose about this incident to anybody. Even she had the opportunity at the bus stand at Hoshiarpur or at kumarhatti where according to her, she was made to sit in a taxi. She also introduced certain new facts in her statement in the court like that accused threatened that he will kill her brother if she did not take the tablet given by him. Her statement is not at-all convincing and it appears that she of her own went with the accused from her house and contracted marriage with him. This conclusion finds support from letter Ex. DA which admittedly is written by the prosecutrix and in this letter she has mentioned that she is in love with the accused. However, the prosecutrix has again tried to explain that this letter might have been got written from her under the influence of the drug which was given to her by the accused. But this explanation seems to be without any substance. So, the statement of the prosecutrix does not inspire confidence that she was kidnapped from the lawful guardianship of her parents and was subjected to forcible sexual intercourse and then was forcibly married to Rajesh accused. Since the prosecutrix was more than 16 years of age as is apparent from the discussion above, she was a consenting party to the sexual intercourse, therefore, prosecution has not been able to prove the ingredients of Section 376 IPC. 34. In the present case also conduct of the prosecutrix is doubtful, notwithstanding her plea that she was administered same drugs and so, could not raise noise against her kidnapping and rape. She appears to be a consenting party not only to rape, but also in leaving her house. She has also admitted that she boarded the bus, sat with the accused in the bus and got down at Kumarhatti at his instance, accepted his offer of boarding the taxi. Though she states that she did not know the accused earlier and had never met him in the past. Moreover, despite the fact that she felt giddiness and headache after taking the first tablet, she again took tablet from the accused and accompanied him in the van.” 10. In view of medical examination of the victim/prosecutrix, made by PW-4, Dr. (Mrs.) Anita Sood, the victim/ prosecutrix was in a normal mental condition. As such, the medical report belied the testimony of the victim/prosecutrix (PW-1) that under the effect of drug, administered by the accused, she was not aware of her movements and treatment given to her. 11. After perusal of the impugned judgment, prosecution witnesses and the material on record, we are of the considered view that the prosecution has not been able to prove that the victim/prosecutrix was less than 18 years of age and as such the accused can not be held guilty for the offences under Sections 363, 366 and 376 of the Indian Penal Code. In our considered view, the victim/prosecutrix has taken an active part in accompanying the accused. She without raising any hue and cry spent good and considerable period with accused and despite the fact that she was sexually assaulted and despite getting opportunity she did not try to escape from the control of the accused. She was in the age of applying her discretion. Taking her age as more than 18 years, the acts of the accused with the victim/prosecutrix cannot be brought under the aforesaid offences. 12. In our considered view, prosecution has failed to prove its case beyond reasonable doubt against the accused. The accused is given protection in view of our observations, made in judgment dated 23.06.2010, passed in Criminal Appeal No. 712 of 1996, State of H.P. vs. Rajesh Kumar & another. For convenience, relevant paragraph is extracted below: “30. We are of the considered view that the victim / prosecutrix even if not completed 18 years of age, but is capable of applying her wisdom, discretion and mind independently and is understanding the consequences of accompanying a person with whom she became friendly and had fallen in love with him and if has voluntarily accompanied such accused person at her own sweet will without any protest and without making hue and cry and took active part in going with the accused, even if was sexually assaulted by such accused person then if scrutiny of facts and circumstances indicate that the victim / prosecutrix had enjoyed good time with accused without showing resistance and without any endeavour to escape from the company of such accused and victim / prosecutrix was a willing and consenting party of the company of accused at the relevant time, then the victim / prosecutrix cannot be said that she had been enticed and kidnapped from her lawful guardian and cannot also be said to be abducted or induced for marriage. In such situation, the act and conduct of accused cannot be regarded an overt act for inducement in reference to the offence under Sections 361, 363 and 366 of the Indian Penal Code.” 13. In view of the above observation and keeping in view the facts and circumstances, the prosecution has failed to bring home the guilt against the accused-respondent and the prosecution has failed to prove its case beyond reasonable doubt against the accused- respondent. There is no scope of interference in the judgment of the trial court and appeal being devoid of merit is dismissed. (R.B. Misra) Judge (V.K. Sharma) Judge 30th July, 2010 (virender)