1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 494 of 1999 Decided on July 30, 2010 __________________________________________________________ State of H.P. …Appellant. Versus Prem Singh & Others. ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr.Rajinder Dogra, Additional Advocate General, with Mr. Anil Jaswal, Deputy Advocate General. For the respondents: Mr. K.D. Sood, Advocate with Mr. Sanjeev Sood, Advocate. Justice R.B. Misra,J. (Oral) Heard Mr. Rajinder Dogra, Additional Advocate General and Mr. K.D. Sood, learned counsel for the accused- respondents. 2. 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 26.3.1997, passed by Learned Sessions Judge, Mandi, Kullu and Lahaul-Spiti Districts at Mandi, H.P., in Sessions Trial No. 5 of 1993, under Sections 363, 366, 366-A, 368, 376 and 109 of the Indian Penal Code, acquitting the alleged accused/respondents. 3. The prosecution case is that on 18.7.1991, the victim/prosecutrix (PW.4), being a minor, was forcibly taken by 2 accused Prem Singh from Jungle area, where she was residing alongwith one Seji Devi, in absence of her parents. When victim/prosecutrix was sleeping, she was lifted by accused Devi Singh, Sher Singh, Prem Singh son of Surat Ram and Ghanu Ram alias Mohinder Singh accompanying accused Prem Singh and was kept in the cow-shed of Sher Singh for four days, where she was sexually assaulted against her will. The victim/prosecutrix was taken by bus to Mandi, where she was forced to give an affidavit declaring her age about 19 years, for marrying accused Prem Singh. The affidavit Ex. PW.13/C was prepared before DW.1 Mr. B.N. Malhotra, Advocate, Notary Public. The FIR was lodged by the father of the victim/prosecutrix, on 20.7.1991, by giving an application to Superintendent of Police, Mandi. 4. After investigation, all the accused were charged for the offences, indicated above, and the case was committed to Sessions Court. In order to prove its case, the prosecution has examined as many as 13 prosecution witnesses. Whereas, the accused through their statements under Section 313 of Cr.P.C., have denied the prosecution case. The accused-respondents have also examined DW.1 Mr. B.N. Malhotra, Advocate, in their defence. 5. PW.3 Dr. S.K. Malhotra, Medical Officer Community Health Centre, Ratti, has issued a certificate in respect of the age of the victim/prosecutrix, indicating her age as between 14 ½ to 16 years. Whereas, PW.5 Galu Ram, father of the victim/prosecutrix, has stated that he has six children and the victim/prosecutrix is the 4th child, who was born on 10.11.1978. 3 However, as per Parivar Register Sobhu Ram was shown to be 18 years of age being the eldest child of Galu Ram (PW.5). Admittedly, Sobhu Ram was 20 years of age in 1991, as such, Parivar Register produced by Bhajan Singh (PW.6), Secretary Gram Panchayat, Dhamchan, could not said to be reliable document, as pages 48 and 50 of the Parivar Register are loose and PW.6 did not bring the original Parivar Register, on the basis of which certificate was issued. It was not brought to the notice of learned trial court/Sessions Court that the entries in the register were made in the year 1987 or 1988 when PW.6 was not Secretary of Panchayat. As per Parivar Register Ex. PJ, the victim/ prosecutrix is shown as 13 years of age, however, it is not known that when these entries were made. However, the possibility is there that after lodging of FIR, during the course of investigation, only such entries were made. Surprisingly, it is also noted that in Parivar Registrer date of birth of the victim/prosecutrix was given as Ex.PJ, whereas, exact dates of birth of other children of Galu Ram (PW.5) were not recorded in such register and they were simply recorded to be of 18 years and 12 years respectively. From this point of view, the age of Bhagu could not be 12 years in the year 1991 as he is elder to the victim/prosecutrix. 6. The victim/prosecutrix was taken by bus to Mandi by the accused, where affidavit Ex. PW.13/C was prepared before DW.1 Mr. B.N. Malhotra, Advocate, Notary Public, indicating that the victim/prosecutrix had married accused Prem Singh on 14.7.1991 declaring the age of the victim/prosecutrix as 19 4 years. In these circumstances, definite age of the victim/prosecutrix could not be either ascertained or proved by the prosecution. In case of ambiguity in ascertaining the exact date of birth of the victim/prosecutrix in reference to the Parivar Register or documents produced in support of the age of the victim/prosecutrix and medical certificate issued regarding the age of the victim/prosecutrix, the benefit of doubt be given to the accused. In the facts and circumstances, when prosecution in any case is not able to prove that the victim/prosecutrix was below 18 years of age. 7. In the present case, for the sake of arguments without admitting that the victim/prosecutrix was not less then 16 years of age but could be above 18 years of age in view of document Ex. PW.13/C i.e. affidavit sworn by the victim/prosecutrix herself. In view of testimony of PW.4 victim/ prosecutrix, at the relevant time when she was sleeping, accused came to her Dera, lifted her, gagged her mouth and took her away. At that time she could not resist raise any hue and cry or could not raise alarm when she was forcibly taken by accused Prem Singh. She has also stated that “I did not raise hue and cry nor resisted because I did not know anything at that time, but after covering some distance, I came to know that I was lifted”. According to the testimony of PW.4 the victim/prosecutrix, she was kept for four days in the cow-shed of Sher Singh and every night she was sexually assaulted. In her statement, PW.4 has admitted that there were 30-35 houses were located near the house of Sher Singh. In fact, she has stated that 5 she never raised any alarm, at the place, where she was even lodged. She has further stated that there were a lot of passengers in the bus when she was taken to Mandi, but she did not raise any alarm and chose to keep quite, as the passengers were strangers. According to the testimony of the victim/prosecutrix, after the incident in question she started living with Balbir Singh and now married him. 8. In view of aforesaid circumstances, it cannot be believed that accused could have entered her place and lifted her without the consent of the victim/prosecutrix. Further, if accused Prem Singh had forcibly taken the victim/prosecutrix, who as per testimony of PW.12 was sleeping with the victim/prosecutrix, would have known and have raised hue and cry. In view of testimony of PW.4, it cannot be believed that she was unaware of being lifted or being taken away even after covering some distance, victim realized that she was being lifted by some person. Such narration cannot be believed as it is not probable that young major girl despite getting opportunities or chances of escaping or making hue and cry to the persons of nearby locality, where the victim/prosecutrix was kept in the cow-shed of Sher Singh, she will not give any alarm nor apprise any body and such victim/prosecutrix shall allow her being sexually assaulted without her consent. 9. PW.1 Dr. Arun Kumari, who medically examined the victim/prosecutrix, did not find any sign of injury on the person of the victim/prosecutrix, however, noticed that the victim/prosecutrix has been sexually assaulted. Had she been 6 sexually assaulted without her consent, definitely there would have been marks on the body of the victim/prosecutrix. 10. In the present facts and circumstances, the father of the victim/prosecutrix was not present at home at the relevant time. The victim/prosecutrix was residing independently from where she was taken by accused Prem Singh on 18.7.1991. Despite her staying with accused Prem Singh for four days and despite having been sexually assaulted by the accused, she did not raise any hue and cry. All these aspects are indicative that the victim/prosecutrix was at the age of applying her discretion independently as she accompanied the accused at her own sweet will without any protest and had enjoyed his company comfortably without any endeavour to escape from the company of such accused. Therefore, the victim/prosecutrix cannot be said that she had been lifted forcibly and was sexually assaulted by accused Prem Singh against her consent. In such situation, the act and conduct of accused cannot be regarded an overt act of nducement in reference to the offence under Section 376 of the Indian Penal Code. 11. In view of the observation made by this Division Bench, on 23rd June, 2010, in Criminal Appeal No. 712 of 1996, State of H.P. Versus Rajesh Kumar & Anr., the act and conduct of the accused also cannot be brought under the offence under Sections 363, 366, 366-A, 368 and 109 of the Indian Penal Code. For convenience, the observation made by this Court, in Rajesh Kumar (supra), is extracted as below:- “30. We are of the considered view that the victim/prosecutrix even 7 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 any endeavour to escape from the company of 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 the 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.” 12. In our considered view, the prosecution has failed to bring home the guilt to the accused and the learned Trial Court has carefully analyzed the prosecution witnesses and has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubts. In our considered view, there is no scope of interference in the findings given by learned Sessions Judge. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 13. The bail bonds furnished by the accused/respondents are hereby discharged. (R.B. Misra) Judge July 30, 2010 (V.K. Sharma) (Purohit) Judge