IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. 389 of 1997 Decided on: 17.9.2010 State of H.P. ..…Appellant Versus Anil Kumar and another. ..…Respondent Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice V.K. Sharma, J. Whether approved for reporting?1 For the appellant : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. For the respondents : Ms. Shwata Julka, Advocate, as legal aid counsel. R.B. Misra,J. (Oral) Mr. Malay Kaushal, Advocate has pleaded no instruction, therefore, Miss Shwata Julka, Advocate is appointed as legal aid counsel at state expenses to assist this Court for which she has been supplied brief of the case. 2. 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 dated 1.5.1997, passed by learned Sessions 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 Judge, Solan, H.P. in Sessions Trial No. 11-S/7 of 1996, acquitting the respondents-accused for the offence, under Sections 366/354 of the Indian Penal Code, in reference to FIR No. 6/96, Police Station, Parwanu. 3. The prosecution case in brief is that the victim/prosecutrix (name not given), daughter of Shri Nek Ram, aged about 16 years on 7.1.1996 at about 3.00 P.M. had come to Sector-5, Parwanu for purchasing sweets and one Anil Kumar(respondent-accused) happened to drive the jeep in a nearby village Dhaggar dragged the victim/prosecutrix inside the Maruti Van, which was being driven by respondent-accused Dinesh Kumar. Both the respondents/accused drove the Maruti van towards Parwanu which was stopped near village Khera. Victim/prosecutrix raised alarm. On hearing the alarm, Dr. Santosh and Hari Mohan reached there and saved the victim/prosecutrix from the clutches of the respondents-accused and respondents-accused drove the van towards Kalka. The entire story was narrated by the victim/prosecutrix to her mother Smt. Sheela Devi. Dr. Santosh took the victim/prosecutrix to Police Station, Parwanu. Accordingly, FIR No. 6/96 was registered. During the course of investigation, it was revealed that respondent-accused Dinesh Kumar asked the victim/prosecutrix to sit on the rear seat of the van and thereafter she was molested and respondent-accused Anil Kumar also tried to do the same thing. After completion of investigation, both the respondents-accused were charged for the aforesaid offences and case was committed to the Sessions Court. 3 4. In order to prove its case, the prosecution examined as many as twelve witnesses, whereas the respondents-accused through their statement under Section 313 Cr.P.C. denied the prosecution case. 5. PW-4, victim/prosecutrix stepped into the witness box and deposed that she had gone to Sector-5, Parwanu on the fateful day where she was pulled by respondent-accused Anil Kumar into his Maruti van, being driven by respondent-accused Dinesh Kumar. On scrutiny of prosecution witnesses and materials on record, we notice that the testimony of PW-4 (victim/prosecutrix) is not in consonance with the final report. As per final report, victim/prosecutrix was dragged inside the Maruti Van, Dinesh Kumar respondent-accused caught her by arm and she was asked to sit on the rear seat and respondent- accused Anil Kumar molested her with intention of having sexual pleasure and same process was repeated by respondent- accused Dinesh Kumar but victim/prosecutrix did not state like so. Evidence adduced by the prosecution is different to the allegation ascertained in the final report. PW-4 victim/prosecutrix has half-heartedly deposed regarding the allegation against the respondent-accused. As per testimony of PW-4 when she was dragged inside the van, the same was witnesses by Santosh (PW-6) and Hari Mohan (PW-7). However, both of them have not stated about this. PW-6 Dr. Santosh has stated that he does not know anything about the incident. Similar is the testimony of Hari Mohan PW-7. The testimony of PW-6 and PW-7 did not divulge that victim/prosecutrix PW-4 was abducted or kidnapped. 4 6. PW-8 Devinder Sahni is said to have also seen the occurrence but he did not support the prosecution case. PW-10 Gurnam Singh is the recovery witness of Ext.PW10/A, Ext.PW10/B and Ext.PW10/C. PW-11 Chain Singh, Assistant Sub Inspector has recorded the statements of two lady doctors. 7. PW-1 Dr. Mrs. Anita Sood through radiological test has assessed the age of victim/prosecutrix between 15 to 17 years vide opinion Ext.PA. She has very categorically stated that she had not taken into account the variation of age by three years on either side. Specifically, PW-1 has stated that the victim/prosecutrix was not less than 18 years of age. No other material has been brought by the prosecution to indicate that the victim/prosecutrix was less than 18 years as no certificate from the Panchayat could have been obtained and certificate of school could also not be collected. Therefore, the definite age on the basis of any material could not be ascertained except the opinion of PW-1 Dr. Anita Sood. As per her testimony the victim/prosecutrix was not less than 18 years. 8. PW-2 Dr. Sudha Sood conducted the medical examination of the victim/prosecutrix and placed on record medico legal certificate Ext.PW2/C. PW-3 Dr. Rita Naiyar examined the victim/prosecutrix and gave opinion Ext.PE. During medical examination abrasion about 1” long on dorsal aspect of right hand below little finger and another abrasion about ½” x ½” on dorsolateral aspect of right thumb has been noticed. 9. PW-5 Smt. Sheela, mother of the victim/prosecutrix, has not stated against the respondents-accused except repeating 5 the statement of victim/prosecutrix (PW-4). PW-12 Mohinder Pratap during investigation has not indicated that the victim/prosecutrix was abducted or kidnapped and molested by the respondents-accused. 10. On analysis of the prosecution witnesses, we also notice that from the final report it appears that victim/prosecutrix was dragged on the rear seat of Maruti Van and the respondents-accused tried to molest her by coming on the rear seat of the van by one by one but unfortunately victim/prosecutrix did not deposed regarding this aspect. The prosecution, as such, could not prove that the victim/prosecutrix was dragged inside the Van by the respondents-accused and when dragging of victim/prosecutrix inside the Van was not proved consequent upon the molesting or any type of sexual assault cannot be said to have been proved. The victim/prosecutrix was about 18 years, if an alternative view is also taken that she was dragged inside the van by the respondents-accused then medical report is not supported by the testimony of PW-6, PW-7 and PW-4 victim/prosecutrix herself. 11. In the facts and circumstances, in our considered view prosecution has said to have not proved its case beyond reasonable doubt and has also failed to bring home the guilt of the respondents-accused. Accordingly, the appeal being devoid of any merit is, therefore, dismissed. 12. Bail bonds, furnished by the respondents-accused, are hereby discharged. 6 13. Ms. Shweta Julka, Advocate, who is appointed as legal-aid counsel is entitled to fee of Rs. 2000/-. (R.B. Misra), Judge. September 17, 2010 (V.K. Sharma), Judge. (vs)