IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 660 of 1996 Date of decision: 25.8.2010 State of H.P .....Appellant. Versus Chuni Lal. .....Respondent. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. Whether approved for reporting? ___________________________________________________________ For the appellant : Mr. Anil Jaswal, Deputy Advocate General. For the respondent : Mr. Ajay Chandel, 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 dated 30.3.1996, passed by the learned Additional Sessions Judge, Kullu, in Sessions Trial No. 7/1995, acquitting the accused-respondent for the offences, under Sections 363, 366 and 376 of the Indian Penal Code. 2. The prosecution case is that Ravinder Kumar has three children. The eldest daughter being the victim about 16 years and another daughter ten years and son about nine years were alone on 13.7.1994 at home and he had gone somewhere out side along with his wife. At that time, the accused came to his house and allured his daughter victim- prosecutrix (name not given) and took her outside of the house and victim-prosecutrix did not returned home. On information given by another daughter, the complainant being father lodged FIR Ext.PW2/B. 1. Whether reporters of Local Papers may be allowed to see the judgment? 2 2. In order to prove its case, prosecution examined as many as 15 witnesses, whereas accused through his statement under Section 313 Cr.P.C. denied the prosecution case. 3. PW-4 Dr. Mrs. Neena Lal examined the victim and gave opinion as bellow:- “Opinion:- In my opinion, the prosecutrix was habitual of sexual intercourse. I have issued the MLC Ext.PW4/B, which is prepared in my hand and signed by me. I have seen the prosecutrix present in the court, who is same girl whom I examined. It is incorrect to suggest that there is no medical terminology to give the opinion that a female is habitual of sexual intercourse. If a girl is subjected to sexual intercourse for he first time, and she is medically examined within 7 days, then there will be bleeding pain, tenderness coupled with tears of hymen. Once the above injuries are healed within 5 to 6 days, then only old tags will be found at any subsequent medical examination. I have mentioned in Ex,OW4/B in the column of probable duration of injuries as 24 hours to 48 hours, which means that the prosecutrix had been brought to me within the above period from the period of her elopement.” 4. PW-1 Ravinder Kumar, the father of victim-prosecutrix in support of prosecution case has stated that on 13.7.1994, his daughter informed him about the missing of victim-prosecutrix and to that effect a missing report was lodged on 13.7.1994 at Police, Station, Kullu. Three letters and one photograph of accused-respondent was found from the bag of the victim-prosecutrix left at home. On 13.7.1994 two boys named Biru and Joju Mian brought victim-prosecutrix to the house and according to them victim-prosecutrix was in an orchard and she informed PW-1 that on 12.7.1994 accused had come on the road side near her house and had called victim asking her to come with him. Despite declining by his daughter, she was insisted to accompany the accused and the victim- prosecutrix was taken to village Hirni by seducing her for marriage and victim-prosecutrix and accused stayed in some hotel at Hirni on the 3 assurance that accused did not believe in castism and in case he could not succeed in marrying the victim-prosecutrix, the accused would remain bachelor throughout. PW-1 was also informed by his daughter victim- prosecutrix that she was sexually assaulted by the accused. PW-1 has further stated in cross-examination that when victim-prosecutrix was admitted in first class in the school at Shimla, he had produced a copy of her date of birth certificate before the School Authorities obtained from Municipal Corporation, Shimla and accordingly her date of birth was entered in the school register. 5. PW-2, victim-prosecutrix has stated that she was studying in 9th class in Govt. High School, Seubag. The accused-respondent is her class-fellow who had been telling her to marry her. However, PW-1 used to tell him that she being harijan by caste and accused being Rajput by caste could not marry. However, assurance was given by accused- respondent that he does not believe in castism. PW-2 has also stated that she has been sexually assaulted one or twice prior to July, 1994 and on 12.7.1994 when her parents were away she along with three other were at home, accused-respondent came at road side near her house at 12 O’clock and pointing her to come with him. Accordingly, PW-2 victim- prosecutrix went to him who took her with an assurance that she will be returned back and she was taken to village Hirni and stayed there for a night in a hotel where she was sexually assaulted and on 13.7.1994 PW-2 was brought in an orchard and left there with an assurance that he will come back. In the meanwhile, Biru and Joju Mian came there and took her to her home. According to PW-2 letters Ext.P1 to Ext.P3 and photograph Ext.P4 of the accused were left in the bag. On her own testimony of PW-2, her date of birth is 16.2.1979. In her cross- examination, PW-2 has stated that she left home on 12.7.1994 without informing her sister and brother and she did not inform any friend of the 4 village also about her going away and she went to village Hirni by bus from Seubag and reached Hirni during night. In the midway, she stayed for a short time at Seubag before boarding a bus to village Hirni. According to her, accused-respondent had not taken any additional clothes and he was wearing a shirt and a half pent and were staying at a Dhaba at village Hirni to which she referred a hotel. According to her, accused-respondent had some talks with owner about staying at Dhaba for a night and they slept on a cot in Dhaba. As per testimony of PW-2, she was in love affair with accused-respondent for the about one year and accused had written letters Ext.P1 to Ext.P3 to her which was passed to her through his friend Bala Ram. Nothing is incriminating from the testimonies of PWs-1 and 2 that she had made any resistance, raised any hue and cry or informed anyone at bus stop or in the bus that she was being taken against her wishes. 6. PW-6 Smt. Rukmani, wife of Ravinder Kumar and mother of victim-prosecutrix has endeavour to support the prosecution case. 7. PW-3 Dr. G.D. Gaur examined the victim-prosecutrix and as per his estimate the radiological age of victim-prosecutrix was found between sixteen and half to seventeen years. 8. PW-5 Dr. Suresh Kaul examined the accused-respondent and found that he is capable of having sexual assault. 9. PW-7 is Amar Nath, who has assisted the police during investigation. 10. PW-8 Gautam Ram, PW-10 Dola Ram, PW-11 HC Hem Raj, PW-12 Ex. Constable Basanta Ram, PW-13 Inspector Amar Singh, PW- 14 Bala Ram and PW-15 SI Sham Lal through their statements have endeavour to support the prosecution case. However, nothing substantial could be derive from their testimonies about the exact date of age of victim-prosecutrix and also nothing could be derive from their testimonies 5 that the victim-prosecutrix was kidnapped or abducted or was enticed or was taken away by the accused from her house against her will and she had made hue and cry or resistance in going with accused. PW-9, however, has not supported the prosecution case. 11. From the evidence on record, we notice that PW-2 herself has stated that she was in love affair with accused for the last one year and on 12.7.1994 she had gone with accused on the assurance that she would return back and without making any hue and cry and any resistance she spent night with accused and has not informed any person on way or at bus stop or in the bus or in the Dhaba where she stayed. It appears that victim-prosecutrix was an agreeing party and was comfortable in the company of accused. As per version of PWs-1 and 5, the parents of the victim-prosecutrix, she was born on 16.2.1979 and if the testimony of PWs-1 and 5 is believed, the age of the victim-prosecutrix was fifteen years four months and twenty six days. In order to substantiate the age of victim-prosecutrix, the prosecution has brought on record the certificate Ext.PW10/A issued by the Head Master of Govt. High School Kais (Seubag), District Kullu. In the light of another certificate Ext.PW15/B, the middle standard examination certificate issued by the H.P. Board of School Education, the age of victim-prosecutrix was recorded as 16.2.1979. 12. PW-10 Shri Dola Ram, Teacher, Govt. High School, Kais also brought the original record pertaining to the admission and school leaving maintained in the school and as per entries at serial No. 1551 in that Register, date of birth of victim-prosecutrix was 16.2.1979 and she was shown to be studying in 9th standard. PW-10 has further stated that entry in the school Register is made initially when the child is admitted in the first class and the certificate regarding date of birth of child issued by Gram Panchayat or Municipal Committee or Municipal Corporation is 6 required to be produced by the parents before the school Authorities and on the basis of such certificates entry qua the date of birth is made in the school register. However, such entry made in the school register has not been entered on the basis of any certificate having been issued by Gram Panchayat or Municipal Committee or Municipal Corporation. As such, the authenticity of such entry in the school register cannot be said to be reliable. 13. The radiological age of the victim-prosecutrix, as has been assessed by PW-3 is sixteen and half years and in view of the testimony of PWs-1 and 5 parents, the radiological age assessed by PW-3 , learned Additional Sessions Judge has analysis that the date of birth of victim- prosecutrix is not definite and as such, it could not more than 18 years of age at the time of incident. Such finding about the age of victim- prosecutrix however, cannot be said to be proved by analysis. However, we also notice that the different age emanating from different records and in our considered view, the behaviour, conduct and understanding of the victim-prosecutrix is appearing that she had reached the age of discretion and was capable of applying mind independently. On the analysis of prosecution witnesses and record and the medical report, we find that any sexual assault made to PW-2 victim-prosecutrix could not be against her will in the prevailing facts and circumstances at the relevant time as she was capable of understanding the consequences of accompanying the accused and she was at the age of applying her discretion independently and had gone from her home in the absence of her parents without informing her sister and brother and without informing anybody on way or without making any hue and cry spent good time with accused. As such, her conduct and act is such that accused-respondent could not be said to be committing offences under Sections 366 and 376 IPC and it cannot said that the victim-prosecutrix was taken from the lawful guardianship of 7 the parents. In similar facts and circumstances, this court vide its decision dated 23.6.2010 in Criminal Appeal No. 712 of 1996 (State of H.P. versus Rajesh Kumar & Anr.) has observed as under:- “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 part 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.” 14. In view of the aforesaid analysis, we find that the prosecution has failed to prove its case beyond reasonable doubt and has failed to bring home the guilt of the accused. The appeal being devoid of merits is, therefore, dismissed. 15. Bail bonds, furnished by the accused-respondent, are hereby discharged. (R.B. Misra), Judge. (V.K. Sharma), Judge. 25th August, 2010. (vs)