IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 713 of 1996. Decided on: 13.5.2010. ___________________________________________________________ State of H.P. … Appellant. Versus Baldev Singh and others. … 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. Vivek Thakur, Addl. A.G. with Mr. Rajesh Mandhotra, Deputy Advocate General. For the Respondents : Mr. Anand Sharma, Advocate. ___________________________________________________________ R.B. Misra, J. (Oral). The present criminal appeal has been listed for hearing after leave to appeal has been granted, under Section 378 (3) Cr.P.C., in reference to the impugned judgment, dated 4.5.1996, passed by the Sessions Judge, Sirmaur, District Nahan, acquitting the respondents-accused for the alleged involvement for the offences, under Sections 363, 366 and 376 IPC. 2. In order to adjudicate the present appeal, it is necessary to give the factual background of the case that one Bimla, said to be minor, had gone to jungle to collect grass on 3.3.1994 along with her girl friends, namely, Amra Devi, Kamlesh and Vidya Devi. According to the prosecution, one Baldev Singh and Ashwani Kumar approached her in jungle and allured her that she would be married with one Ashok Kumar, who will provide her 1 Whether reporters of the local papers may be allowed to see the judgment? 2 ornaments, clothes and the house and will be kept comfortably. On such allurement, she was taken to the road, where a jeep was kept standing by co-accused Ashok Kumar, Mohan Lal and Balwant Singh, where the prosecutrix Bimla handed over her sickle and rope to her girl friend Amra Devi and asked her to give those articles to her mother telling her that she had gone to Chandigarh. Thereafter, she boarded the jeep and went to Nohradhar where they went in a hotel and took breakfast and thereafter, she moved to Rajgarh. From Rajgarh, the prosecutrix Bimla accompanied the accused to Chandigarh and she stayed with Ashok Kumar at Mani Majra till she was recovered by the police on 14.3.1994. During her stay with Ashok Kumar, she was allegedly sexually assaulted by Ashok Kumar. However, FIR was lodged on 5.3.1994, that is, by delay of two days. 3. Accused Ashok Kumar along with other co-accused Baldev Singh, Mohan Lal, Ashwani Kumar and Balwant Singh was charged for the alleged offences, under Sections 143, 363, 366 and 376 IPC read with Section 149 IPC. 4. In order to prove the case, prosecution examined as many as ten witnesses and the defence has examined three witnesses. 5. PW-1 Sobha Ram complainant, the father of Bimla, has supported the prosecution version. However, he emphatically denied the said assertion of an event that Sobha Ram himself had got married Bimla, the prosecutrix, with main accused Ashok Kumar in February, 1994, whereas, such event has been denied by the prosecutrix herself in her testimony. PW-1 Sobha Ram, the 3 father of the prosecutrix, however, was not present on the day of the incident as he had gone to the house of his in-laws leaving behind his children including the prosecutrix and his wife, Smt. Tunglo Devi, the mother of the prosecutrix Bimla (PW-4). According to him, when he came back from the home of his in-laws, he was apprised of by his wife about the said incident. Since it took some time in tracing out his daughter, thereafter, FIR was lodged. PW-1 has stated that the age of his daughter Bimla (PW-4) is 16 years and in that reference the horoscope Ext. PD and birth & death register Ext. PW6/A were relied upon. In cross-examination, PW-1 had indicated that his marriage was solemnized when his age was between 20-30 years. However, he could not indicate the year of his marriage. He has also denied his acquaintance with Ashok Kumar and Mohan Lal till his statement was recorded on 16.5.1995. 6. PW-2 Kumari Amra, who allegedly had accompanied the prosecutrix Bimla, has supported the prosecution version to the extent that Bimla (PW-4) was allured by Ashok Kumar and Baldev Singh in jungle where they had gone for collection of grass and subsequently, she had accompanied Bimla (PW-4) to the road side where jeep was standing where she was given Rs. 50/- for sweets and was handed over sickle and rope to hand over the same to the mother of Bimla the prosecutrix. 7. PW-3 Deepak Chand an employee in a hotel at Nohradhar has not supported the prosecution case. PW-4 Kumari Bimla prosecutrix has stated that in March 1994, she had gone to jungle area for collection of grass/fodder for their cattle at about 4 9.00 a.m. when accused Baldev and Ashwani approached and allured her that she would be married to Ashok Kumar and on such allurement, she agreed to accompany the accused persons, as indicated above, who had taken her by jeep and she was taken to Nohradhar and thereafter, to Rajgarh. Thereafter, she stayed with Ashok Kumar in Mani Majra up to 14.3.1994. She had also stated that police had seized from her possession the necklace Ext. P1, pair of ear ring Ext. P2, finger ring Ext. P3 and nose ring Ext. P4 and clothes given to her by accused Ashok Kumar. She has shown ignorance about her date of birth. However, she had supported the prosecution version of the incident, however, she never had an occasion to raise any voice or she had never cried, wherever she had been taken by accused Ashok Kumar. She has stated that there were so many houses and she had even gone outside the house also during her stay with Ashok Kumar in Mani Majra. She has emphatically asserted in her testimony that during her stay with Ashok Kumar, she was kept comfortably and she was time and again sexually assaulted by Ashok Kumar. 8. PW-5 Bipta Nand has supported the prosecution version. PW-6 Amar Singh has stated that as per entry in the record of birth register Ext. PW6/A, daughter of Sobha Ram was born on 16.6.1978. PW-6 Amar Singh has denied that the said entry was made later on at the instance of Sobha Ram. PW-7 HC Bheem Singh, PW-8 Constable Rajinder Singh and PW-10 Constable Ram Singh have tendered in evidence their affidavits Ext. PF, Ext. PG and Ext. PD respectively. 5 9. PW-9 HC Ajay Kumar, Investigating Officer, had stated that on the complaint by Sobha Ram Ext.PA on 5.3.1994, a case under the above mentioned offences, was registered against all the accused and a copy of FIR Ext. PA/1 was recorded. 10. DW-1 Partap Singh, Pradhan of Nohradhar Panchayat had stated that he came to know through Sobha Ram, the father of Kumari Bimla that she has been married to Ashok Kumar. However, Ashok Kumar had not paid the agreed money and the articles, as such, he wants to file a complaint against him. DW-2 Yash Pal, Advocate of Rajgarh as a defence witness has stated that alleged accused Ashok Kumar had married Kumari Bimla. In that respect, an affidavit was prepared by him. DW-3 Najro Devi, the Pradhan of Mahila Mandal village Kufer, had asserted that Kumari Bimla, daughter of Sobha Ram, was married with one Ashok Kumar in February, 1994 and Ashok Kumar paid Rs. 2000/- to Sobha Ram and ‘Sindhoor’ ceremony and other ceremonies regarding marriage were solemnized. 11. On the basis of the prosecution witnesses, defence witnesses and material on record, the learned Sessions Court has endeavoured to ascertain the age of the prosecutrix. Learned Sessions Court has taken into consideration the horoscope Ext. PD, where the date of birth of the prosecutrix is recorded as 4.5.1978 and has also taken into consideration birth entry Ext. PW6/A allegedly indicating the birth of the prosecutrix Kumari Bimla as 16.6.1978 and has noted that date of birth emanating from both the records are different. Learned Sessions Court has also noted the version of Sobha Ram (PW-1) that at the time of occurrence on 6 3.3.1994, prosecutrix had crossed 16 years and his first daughter is aged about 20 years and the younger one is still younger and on such analogy the learned Sessions Judge has indicated that the horoscope Ext. PD and birth entry Ext. PW6/A may pertain to the third daughter, that is, prosecutrix Kumari Bimla. However, from medical certificate Ext. PH, the age of prosecutrix on the basis of ossification test has been made in reference for ascertaining the age of prosecutrix Kumari Bimla. Her age was ascertained as 19 years or above at the time of occurrence of the incident in question. 12. In the circumstances, there is contradiction regarding the date of birth and age of prosecutrix and keeping in view the age divulged on the basis of ossification test, the age of the prosecutrix was taken to be about 19 years and she was treated to be as major. 13. The learned Sessions Court has heavily relied upon the verdict of a case Paramjit Singh vs. State of Himachal Pradesh (1986 Sim. L.C. 216). Accordingly, in para 27 of the judgment it is held that the determination of age on the basis of ossification test is considered in law to be proper evidence. The learned Sessions Court on the basis of material on record and keeping in view the testimony of PW-2 Kumari Amro has acknowledged in so many words and has admitted that Kumari Bimla had not raised any alarm while sitting in the bus or had not asked any passenger to help her. It has also been noted that conduct of the prosecutrix Kumari Bimla that she had accompanied accused Baldev Singh to the road head, sat in the jeep, went up to Rajgarh and then boarded a bus with alleged accused Ashok 7 Kumar upto Chandigarh on her own sweet will and she had never made any hue and cry and she remained with alleged accused Ashok Kumar up to 14.3.1994. As such, she is a consenting party and relying upon the decision of Shyam and another vs. State of Maharashtra (1995 Cr.L.J. 3974) in which Hon’ble Supreme Court has observed that when the prosecutrix is willing party goes with the accused at her own, no offence under Section 366 IPC could be made out. 14. The learned Sessions Court has also noted that during the stay of the prosecutrix Kumari Bimla (PW-4) with Ashok Kumar, the alleged accused, upto 14.3.1994, she had availed the occasion of meeting with so many persons in the locality and had even gone out of the house in day time, however, she had never raised any alarm to inform any person during such period. On the basis of her own testimony, when she was fed and was taken care of properly during her stay with Ashok Kumar and when she was sitting on the cot out of the house, at that time, police recovered her from Mani Majra. In those prevailing circumstances, it has rightly been derived that the offence under Section 376 IPC cannot be made out against the alleged accused Ashok Kumar, even if he had sexually assaulted to the prosecutrix Kumari Bimla (PW-4), a major, about 19 years of age. 15. In view of the decisions in Paramjit Singh vs. State of Himachal Pradesh (1986 Sim. L.C. 216) and Shyam and another vs. State of Maharashtra (1995 Cr.L.J. 3974), when the prosecutrix accompanies with the accused on her own sweet will, stays with the accused in his house, with his relatives and indulges 8 in sexual intercourse with the accused during such stay period and has never tried to escape or had ever made grievance, her conduct shall reveal that she was a consenting party and the victim could not be said to have been kidnapped or cannot be said to have been sexually assaulted against her will. 16. Delay in lodging FIR in the facts and circumstances has not been taken to be fatal or serious. The learned Sessions Court has given due weightage to the version of the defence, who have categorically, consistently and coherently stated that the prosecutrix Kumari Bimla (PW-4) was married in the year 1994 with Ashok Kumar for consideration and when Ashok Kumar alleged accused did not fulfil the commitment regarding payment of money and articles, then the concocted story and such allegations were made against the alleged accused Ashok Kumar. Be that it may, even if the prosecutrix was married with Ashok Kumar, the alleged accused, in the year 1994 unknowingly or against her will or for some consideration that shall not make any difference when the material on record specifically the ossification test, divulges that the prosecutix was major and was aged about 19 years at the time of said incident on 3.3.1994, when she was major and has acted as above and had been staying without any hue and cry with Ashok Kumar, the alleged accused, as such, she was a consenting party as she had gone at her own sweet will with alleged accused Ashok Kumar. As such, Ashok Kumar along with other alleged co- accused, who helped Ashok Kumar to take PW-4 Kumari Bimla from 3.3.1994 to 14.3.1994 could not be alleged for the offences under Sections 363, 366 and 376 IPC. 9 17. We have carefully perused the judgment, prosecution witnesses, defence witnesses and other material on record and we are of the considered view that the prosecution has failed to establish the charges against accused beyond any reasonable doubt. On the material on record, learned Sessions Judge has rightly acquitted all the accused persons from the offences, under Sections 143, 363, 366, 376 IPC read with Section 149 IPC. There is no scope of any interference in the judgment of the trial Court, therefore, the appeal being devoid of any merit, is dismissed. (R.B. Misra) Judge. (V.K. Sharma) Judge. May 13, 2010. (cr)