1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.18 of 2002 Decided on May 31, 2011 State of H.P. …Appellant. VERSUS Ashwani Kumar. ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the Appellant: Mr.R.K. Sharma, Sr. Addl. AG. For the Respondents: Mr. N.S. Chandel, Advocate. R.B.Misra, Judge (Oral): The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure, in reference to judgment dated 30.6.2001, passed by learned Additional Sessions Judge (I), Kangra at Dharamshala, HP, thereby acquitting the accused-respondent for the offences under Sections 363, 366, 376 Indian Penal Code. 2. The prosecution case, in brief, is that the PW-4, victim- prosecutrix (name not given), was acquainted with the accused- respondent, Ashwani Kumar. On the fateful day of 26.8.1999, the accused met the victim-prosecutrix on the road, at some distance Whether the reporters of the local papers maybe allowed to see the judgment? 2 from her house. On his allurement to marry with her, she accompanied the accused-respondent and went to Jammu, where she stayed with the accused in the house of sister of accused for about 15 days. Thereafter, the victim-prosecutrix was brought by the accused to his house at Basantpur, where the prosecutrix lived with him for three months. On the complaint of the victim-prosecutrix, the FIR was lodged and on investigation, the accused-respondent was charged for the aforesaid offences. 2. The victim-prosecutrix had agreed to go with the accused-respondent and stayed with him for three months and during such stay, she had an occasion to interact with the public. She did not make any complaint of sexual assault against her wishes. From analysis of materials on record and statements of prosecution witnesses, it appears that the victim-prosecutrix was a willing party, who has spent good time for about three months with accused-respondent and considerable period with Gagan Singh. The only aspect, which is to be seen to test the involvement of accused-respondent in above mentioned offences is the age of victim-prosecutrix. 3. To prove the age of the prosecutrix, the prosecution had relied upon the statement of prosecutrix (PW-4), her mother Kali Devi (PW-5), statement of Dr. K.K. Mahajan, Radiologist and his report Ext.PW-2/A, entry of birth in the Parivar Register Ext.PW-7/A and birth certificate Ext.PW-15/A. 4. On analysis of materials, statements of prosecution witnesses and the documents on record, learned Additional Sessions Judge has noted in the impugned judgment, as follows:- 3 “17. The prosecutrix as PW-4 has stated her age in the Court on the date of examination as 15 years, and has mentioned her date of birth 25.3.1984. Since the prosecutrix could say about her date of birth only on the basis, what she has come to know from her mother and also from the certificate, therefore, the statement of the prosecutrix about her age in the Court is not of much importance. 18. Statement of Kali Devi, mother of the prosecutrix recorded on 21.8.2000 is that the age of the prosecutrix today (on the date of examination) is 16 years, therefore, the age of the prosexutrix on the date of incident would come to 14 years. The prosecutrix is not born to the PW-5 from her present husband, but from her previous husband Ram Chand. She has married to her present husband 14 years back. She had two children from Ram Chand and in cross examination, she stated that she does not know when her children were born. She stated to have remained with Ram Chand for four years and was not able to state when she left the house of Ram Chand. In her cross examination, she stated that she got date of birth of her son recorded in the Gram Panchayat, but the said date of birth has not been produced. She did not get the date of birth of prosecutrix recorded in the Gram Panchayat. Kali Devi admitted herself to be illiterate lady. Therefore, what she states about the age of the prosecutrix is only by approximation, she does not specifically mentioned the year and month when prosecutrix was born to her. She has not stated what was the age of the prosecutrix, when she left the house of her husband and in which year she left him. In such a case it would be highly unsafe to rely upon the evidence of PW-5 to presume the prosecutrix to be of 14/15 years of age at the time of alleged incident. 19. Coming to the opinion of the doctor K.K. Mahajan, who has been examined as PW-2 and his report is Ext.PW.2/A, the doctor has opined the age of the prosecutrix in between 14 and 17 years on the basis of ossification test conducted by him in determining the age. It is settled principle of law that in cases where the age is determined on the basis of ossification test, a margin of error 4 in age ascertainment varies from 1½ to 2 years, therefore, if this be so, age of the prosexutirx would come to 19 years or above, giving benefit of this error to the accused.” 5. In view of the aforesaid analysis, learned Additional Sessions Judge has rightly come to the finding that in this case the age of victim-prosecutrix was not less than 17 years. We have also seen the aforesaid documents and have also gone through the statements of prosecution witnesses and materials on record. The victim-prosecutirx was born from Kali Devi (PW-5), from the lion of first husband of PW-5. As per the testimony of PW-5, she was married 14 years back and two children were born out from her first husband. However, PW-5, being an illiterate was not aware of the date of her marriage and exact date of birth of her children from her first husband. She was also not aware about the exact date of birth of other children from her second husband. The date of birth, as indicated in Parivar Register Ext.PW-7/A and birth certificate Ext.PW-15/A, is also not reliable. Moreso, when the Radiologist has assessed the age of victim-prosecutirx mainly on the basis of ossification test. The school certificate is also not found to be reliable. In absence of any proof of age, nothing could be said definitely about the age of victim prosecutrix. Keeping in view the conduct and act of the victim-prosecutrix, it cannot be said that the assessment of her age relied upon by learned Additional Sessions Judge is erroneous. As such, we do not have any occasion to interfere with the findings of the learned Additional Sessions Judge and assessment about the age of victim-prosecutirx. Contrary to what has been observed by learned Additional Sessions Judge, in 5 the facts and circumstances of the present case, the victim- prosecutrix was a consented party, as she spent a considerable time with the accused-respondent and learned Additional Sessions Judge has rightly found her age more than 18 years of age. As such, no offence under Sections 363, 366 and 376 Indian Penal Code is made out against the accused-respondent. 6. On the basis of the materials, documents and statements of prosecution witnesses on record, the learned Additional Sessions Judge has rightly arrived at the finding that the prosecution has failed to prove its case beyond reasonable doubt against the accused-respondent. Therefore, we find no scope for interference in the impugned judgment of the learned Additional Sessions Judge. The criminal appeal, being devoid of any merit, is accordingly dismissed. 7. The bail bonds, furnished by the accused/ respondent, are discharged. ( R.B.Misra ), Judge. 31 May 2011 (V.K. Sharma) (rkv) Judge.