IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 475 of 2003 Decided on 15th December, 2011 ________________________________________ State of Himachal Pradesh …Appellant Versus Avdesh Sahani son of Shri Ramdarash, caste Kewat R/o Kusfra, P.S. Bhandata, District Santkabir Nagar Basti, U.P. …Respondent Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? For the Petitioner: Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General. For the respondent: Mr. Vinay Thakur, Advocate. Justice R.B. Misra, J (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 against the judgment dated 8.4.203 passed in Sessions Trial No. 29 of 2002 by Sessions Judge, Mandi, H.P. 2. The prosecution case is that the victim/prosecutrix below the age of 18 years was taken up from the lawful guardianship of her brother to some other place by the accused, who was working as labourer in the family of brother of the victim/prosecutrix. The victim was taken at different places and they stayed in the house of relatives of the accused. The victim/prosecutrix was recovered by the police from 2 the custody of the accused at Sonepat. After investigation, the accused/respondent was charged for the offences under Sections 363, 366 and 376 of the Indian Penal Code. 3. In order to prove its case, prosecution examined as many as 12 witnesses. Accused was also examined under Section 313 of the Code of Criminal Procedure, wherein he denied the prosecution case. 4. On analysis of the prosecution witnesses and material on record, PW-4, victim/prosecutrix has very categorically stated that while she was studying in 10th class in Government High School, Urla, was of the age of 17 years and was knowing the accused who was working with her brother as a labourer for laying chips flooring and the accused used to visit their house. She stated that she was enticed by accused to marry him by saying that he was having a good house and was having plenty of money. The accused after finishing the work left the house in February, 2002 and thereafter came again in March, 2002 and stayed for a night to the place of victim and allured the victim and took her in jeep up to Narla and then from there they boarded a bus to Mandi. Thereafter both of them boarded another bus from Mandi to Sonepat and stayed there in the night of 4.3.2002 in the house of relative of the accused. During such stay, the victim was allegedly sexually assaulted by the accused. On 5.3.2002 the accused took a room on rent and they started living there and the accused committed rape upon victim, on the promise of marrying with her, up to 9.3.2002. However, victim came to know from the relative of the accused that he was not having a house and not having sufficient money. The police 3 apprehended and rescued the victim/prosecturix on 10.3.2002. In cross- examination, PW-4 has very categorically stated that she did not disclose about the enticing and proposal for marriage made by the accused to her family members. She also did not disclose to the police about this fact. While she was being taken in the jeep, she also did not disclose such facts to the persons traveling in the jeep. PW-4 has stated in cross-examination that she had accompanied the accused, since the accused told her that he was having a house, comprising of several rooms and a lot of money. 5. Other prosecution witnesses have not indicated that the victim/prosecutrix (PW-4) was taken against her wishes. It is also not animating from the testimony of PW-4 that who are the relatives of the accused, who came across her and how she came to know about the status position and financial position of the accused. She also did not disclose the place of stay with the accused. 6. Despite as animating from the prosecution witnesses that victim had availed opportunity of disclosing the incident to the persons traveling in jeep and despite getting opportunities at bus stand and in bus too, she deliberately did not disclose the fact that she was being taken by the accused against her wishes. She deliberately did not disclose the police about her stay with the police at Sonepat. In these circumstances, it cannot be said that the accused had taken the victim/prosecutrix against her wishes. In similar facts and circumstances, this Court (Division Bench) has taken the view in judgment dated 23rd June, 2010 in Cr. Appeal No. 712 of 1996 (State of 4 H.P. Vs. Rajesh Kumar & Anr.). According to which, in present facts and circumstances, 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. The relevant paragraph 30 of the judgment Rajesh Kumar (supra) is extracted herein below:- “30. We are of the considered view that the victim/prosecturix 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 persons with whom she become 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 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 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.” 5 7. In view of the above observations, we are of the considered view that the prosecution has failed to bring home the guilt of the accused. Accordingly, the appeal fails and is dismissed. 8. Bail bonds, furnished by the respondent, are hereby discharged. (R.B Misra) Judge December 15, 2011 (Sanjay Karol) (KRS) Judge