1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 541 of 1999 Decided on September 21, 2010 __________________________________________________________ State of H.P. …Appellant. Versus Tulsi Ram & others ...Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr.R.K. Sharma, Senior Additional Advocate General, with Mr.Rajinder Dogra, Additional Advocate General For respondents No.3,4 & 5: Mr. Ajay Chandel, Advocate. Respondents No. 1, 2 and 6 are proclaimed offenders. __________________________________________________________ Justice R.B. Misra,J. ( Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of criminal Procedure in reference to judgment dated 17.8.1999, passed by Learned Sessions Judge, Kullu, District Kullu, H.P., in Sessions Trial No. 33 of 1998, for the offence under Sections 363, 366 and 376 and 120-B of the Indian Penal Code, acquitting the alleged accused / respondents, in reference to FIR No. 294 of 1997 dated 28.12.1997 of Police Station, Manali, District Kullu. 2. The prosecution case is that on 28.12.1997 at about 8.00 P.M., Shri Dhani Ram has lodged the report alleging that his 2 sister (name not given) had gone at the house of his father-in-law Shri Sahi Ram on 27.12.1997, where both the girls victim / prosecutrix X-1 and X-2, were found absent from the house and on search when they were not traced, the complainant has shown his suspicion that both the girls were taken by Tulsi Ram and Dhan Raj, Gorkhas, residing as tenants at their houses. However, both the Gorkhas were not traceable, in that respect a report was lodged and victim / prosecutrix as well as the accused persons were searched and the victim / prosecutrix X-1 and X-2 were handed over to their respective guardians. 3. After investigation, the accused-respondents were charged for the above offences and the case was committed for trial to the Sessions Court. In order to prove its case, the prosecution has examined as many as 18 prosecution witnesses, whereas, the accused / respondents through their statement under Section 313 of Cr.P.C., have denied the prosecution case. 4. Accused Tulsi Ram and Dhan Raj have very specifically stated that they were having love affairs with the victim / prosecutrix and their family members were also knowing about their affairs. Both the girls are major and they have married with them without any pressure and other accused have denied the case of the prosecution, as such, no offence is made out. 5. PW.1 Dhani Ram, brother of the victim / prosecutrix X-1, in his endeavour to support the prosecution case, has stated that the family members of both the victims / prosecutrix were 3 aware that they were having love affairs with the accused persons, however, PW.1 did not indicate about the date of birth of the victim / prosecutrix X-1. 6. PW.2 Dr.Neeru Pandit, has examined victim / prosecutrix X-2 and during the examination PW.2 has admitted that the victim / prosecutrix X-2 has told her that she had accompanied accused Tulsi of her own sweet will. PW.2 further did not indicate about the exact age and has only stated that she was major. PW.3 Dr. Geeta Kaul examined the victim / prosecutrix X-1 and has also admitted that the victim / prosecutrix X-1 told her that she had gone with accused Dhan Raj of her own sweet will. 7. PW.4 the victim / prosecutrix X-2 has stated that accused Tulsi and Dhan Raj were residing in their village at the house of Joginder and both were asked to marry and on their allurement she had accompanied on her own sweet will and stayed there with the accused for two days at Ghumarwin and thereafter they went to Hamirpur and stayed at the Dera. PW.5 victim / prosecutrix X-1 has made a statement that she alongwith another victim / prosecutrix X-2 had gone with the accused persons. According to her they remained at Hamirpur for three months. 8. PW.7 Dr.Chetan Singh has examined the accused persons. PW.8 Dr.Rakesh Kumar, Radiologist examined the victim / prosecutrix X-1 and X-2 and found their age within 16 to 17. PW.9 Sahi Ram, President, Gram Panchayat, who went to 4 Hamirpur in a van, where both the accused persons as well as victim / prosecutrix X-1 and X-2 met them. Both the victim / prosecutrix X-1 and X-2 were handed over to their respective parents on sapurdari. However, according to the testimony of PW.9 both the victim / prosecutrix X-1 and X-2 had gone with the accused persons at their own sweet will. 9. PW.14 ASI Kanwar Singh has only stated that both the girls were taken by the accused persons. PW.15 Yoginder Singh, Secretary, Gram Panchayat, Malana, could not produce any record regarding exact date of birth of the victim / prosecutrix X-1 and X-2. 10. On analysis of the prosecution witnesses and materials on record, learned Sessions Judge has rightly analyzed that both the victim / prosecutrix X-1 and X-2 were major and have physically interacted with the accused persons and on their own sweet will accompanied the accused persons, as they were having love affairs with those persons and stayed with them without making any hue and cry without putting any resistance in the company of the accused persons. As such, no case of offences under Sections 363, 366, 376 and 120-B of the Indian Penal Code, is made out against the accused, as definite age of the victim / prosecutrix X-1 and X-2 cannot be indicated that they were in any case below 18 years of age. In our considered view the prosecution has failed to prove its case beyond reasonable doubt and there is no scope of interference in the findings given by learned Sessions Judge. In view of the aforesaid facts and 5 circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 11. The bail bonds furnished by the accused-respondent are hereby discharged. (R.B. Misra) Judge September 21, 2010 (V.K. Sharma) (Purohit) Judge