1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 115 of 2002 Decided on June 16, 2011 __________________________________________________________ State of H.P. …Appellant. Versus Gehru Ram & Others ...Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. ¹Whether approved for reporting? For the appellant: Mr.R.K. Sharma,Senior Additional Advocate General. For the respondents: Mr. Chaman Negi, Amicus Curiae Justice R.B. Misra,J. (Oral) Mr. Chaman Negi, has been requested to assist this Court as amicus curiae on behalf of the respondents- accused and he has agreed to assist this Court. 2. The present Criminal Appeal has come up for adjudication after the grant of leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure in reference to judgment dated 26.9.2001, passed by Learned Additional Sessions Judge (I) Kangra at Dharamshala, H.P., in Sessions Case No.6-B/2000, under Sections 363, 366 read with Section 34 and 376 of the Indian Penal Code, acquitting the alleged respondent- accused, in reference to FIR No.21 of 1999. 2 3. As per prosecution case, the victim-prosecutrix was taken out from her house on 8.2.1999 by the accused persons and was kept for about 23 days at Rampur Bushahr and during her stay at Rampur Bushahr, accused Gehru Ram sexually assaulted her time and again, however, she was recovered, after search, from the house of Pradhan, Bodh Raj. FIR was lodged after 19 days i.e. on 27.2.1999. 4. After investigation, respondents-accused were charged for the aforesaid offences. In order to prove its case, the prosecution has examined as many as 16 prosecution witnesses, whereas, the accused through their statements under Section 313 of Cr.P.C., have denied the prosecution case. 5. The FIR was lodged on 27.2.1999 by father of the victim-prosecutrix, namely, Mela Ram (PW.5), stating that he has 7 children. On 8.2.1999, PW.5 had gone out of his house and had come back on 10.2.1999. When Mela Ram (PW.5) apprised of that the victim-prosecutrix is missing from 9.2.1999, as on that day, mother of the victim-prosecutrix, namely, Smt.Ram Piari (PW.6), had gone to the jungle for collecting wood and on return she found victim-prosecutrix missing from the house. As stated in the FIR, parents of the victim-prosecutrix, after 3-4 days of search, reported the matter to the police. 3 Subsequently, they came to know that the victim- prosecutrix was forcibly taken away by the accused persons for the purpose of marriage and other associates of the accused had also helped them for committing the aforesaid offence. 6. PW.5 Sh.Mela Ram has stated that he made search for about 3-4 days, however, when victim- prosecutrix was not traceable, the matter was reported to the police. As per testimony of Mela Ram (PW.5), accused Kishori Lal used to work with him in Batwali Khad and on suspicion that accused Gehru Ram and Daya Ram used to come to his quarter, matter was reported to the police. As per testimony of Mela Ram (PW.5), the victim-prosecutrix was recovered from the house of Pradhan Bodh Raj in presence of accused persons. Sh.Mela Ram (PW.5), in his cross-examination, has stated that though he was married in the year 1970, but he does not remember the year in which his eldest daughter was born. PW.5 Sh.Mela Ram also does not remember the date of birth of his children. PW.5 Mela Ram further does not remember that when victim-prosecutrix was admitted in school. PW.5 has further stated that after 3-4 days of search, matter was reported to the police. Sh.Mela Ram (PW.5) has made a contradictory statement as earlier he has stated that after 3-4 days of 4 search, matter was reported to the police and subsequently, he has stated that after 7-8 days of search, matter was reported to the police. 7. PW.4 the victim-prosecutrix (name not given) has stated that at about 10.00 A.M., she had gone out of her house, however, she did not remember the date. There was one maruti car standing below her quarter. Accused Kishori Lal was standing there, he called her. PW.4 i.e. the victim-prosecutrix, on his call, went to him where two other accused Gehru Ram and Daya Ram, were also sitting in the same car. Accused Kishori Lal asked her to follow them. PW.4 the victim-prosecutrix refused, thereafter, accused Gehru Ram caught her arm and other accused gagged her mouth and she was taken to village Ganerh and was kept in the house of accused Gehru Ram. However, she was assured by accused Kishori Lal by saying that he will perform her marriage with accused Gehru Ram. As per testimony of PW.4 victim-prosecutrix, she remained with accused Gehru Ram at Rampur Bushahr for about 20 days. Thereafter, PW.4 victim-prosecutrix was dropped by accused Kishori Lal and Daya Ram at Rampur Bushahr. During the stay of victim-prosecutrix at Rampur Bushahr, accused Gehru Ram committed sexual intercourse with her. After 20 days, victim-prosecutrix was taken by the accused persons to Joginder Nagar, thereafter, victim- 5 prosecutrix was taken to Ganerh in the house of accused Gehru Ram. PW.4 victim-prosecutrix, in cross-examination, has stated that she remained with accused Gehru Ram for about 23 days. Thereafter, police also kept PW.4 victim- prosecutrix with them for about 4 days, after that she was taken to the hospital by the police. As per testimony of PW.4 (victim-prosecutrix), she was taken from Ganerh to Rampur in a bus by all the three accused persons and was kept in a quarter rented by accused Gehru Ram at Rampur. The other houses were at a distance from that quarter. PW.4 also used to go to work, infact all the three accused persons used to take the work. Accused Daya Ram and Kishori Lal remained at Rampur for 3-4 days only. Accused Gehru Ram used to do stone crushing work, whereas, the victim-prosecutrix was also doing the stone crushing work. PW.4 the victim-prosecutrix has categorically indicated in cross-examination that while she was in bus from Generh to Rampur, she did not make any noise because she was threatened by the accused persons that in case she makes any noise they would beat her. However, victim-prosecutrix reached Rampur from Ganerh in one day. It was winter season, when victim-prosecutrix was taken to Rampur. PW.4 has further stated in cross-examination that during her stay at Rampur with accused Gehru Ram, he 6 committed sexual intercourse with her about 100 times. PW.4 has stated in cross-examination that she does not know her date of birth or her age. PW.4 victim-prosecutrix has also stated that she knew only Kishori Lal and did not know accused Gehru Ram and Daya Ram and had also stated that she had sworn an affidavit showing her date of birth as 20 years at the instance of accused persons. Further stated that accused Gehru Ram used to come to her house and there was a talk of her marriage to him, but her father did not agree. PW.4 has very categorically admitted that on 1st and 2nd January of that year, she had gone with accused Gehru Ram. 8. From scrutiny of the testimony of PW.4 (victim- prosecutrix), it appears that she was not aware about her age and she was acquainted with accused Gehru Ram and Daya Ram as they used to come to her house, it also appears from the statement of the victim-prosecutrix herself, who admitted in her cross-examination that on 1st or 2nd January of that year, she had gone with accused Gehru Ram. As per testimony of PW.4, she remained with accused Gehru Ram for about 23 days and thereafter kept by police for about 4 days and while she was being taken by bus from Guneher to Rampur she did not make any hue and cry despite having ample opportunity or she did not inform to any of the passengers of the bus or any public 7 because accused persons have threatened her that they will beat her. On her own testimony, PW.4 victim- prosecutrix, has disclosed her age about 23 years. On scrutiny of the statement of the victim-prosecutrix, the same is inconsistent and contradicted to each other. 9. PW.6 Smt.Ram Piari, mother of the victim- prosecutrix, in support of the prosecution case has stated that in the winter season, she had gone to collect wood from the forest and when she came back at about 6.00P.M., victim-prosecutrix was found missing, she was about 17 years age. As per testimony of PW.6, she made search and after 8 days of incident, Sh.Mela Ram (PW.5), father of the victim-prosecutrix, returned and he also made search, but she was not traceable. PW.6 Smt.Ram Piari has further stated that accused Kishori Lal used to work as labourer with her husband and was familiar to them and PW.5 Sh.Mela Ram came to know that one girl is in the house of accused Gehru Ram, as such, her husband reported the matter to the police. Accordingly, her daughter was recovered after one month. PW.6 Smt.Ram Piari has stated that police called her to the Police Station and she recognized her daughter. At that time, the victim- prosecutrix was wearing red colour suit which was given to her by accused Gehru Ram. PW.6 has very categorically stated that she does not remember the date of birth of her 8 children and during the days of missing victim-prosecutrix, PW.6 did not inform the Pradhan of the area. Scrutiny of the testimony of PW.6 Smt.Ram Piari is also not helpful to the prosecution case, as she was not able to indicate the Court the exact date of birth of her daughter i.e. victim-prosecutrix and she has not supported the prosecution case regarding taking away of victim- prosecutrix forcibly by the accused persons. 10. PW.1 Dr.Nirdosh Gupta has examined accused Gehru Ram and found him capable for performing sexual intercourse. PW.2 Dr.O.P. Ramdev has examined the victim-prosecutrix on 23.3.1999, who assessed the age of the victim-prosecutrix below 19 years and has also indicated by his statement made in cross-examination that girl could be more than 18 years of age and has affirmed the assessment of age of the victim-prosecutrix as given by Dr.Nirdosh Gupta. 11. PW.3 Dr.Meenakshi Gupta had also examined the victim-prosecutrix and has opined that she cannot say that rape has not been committed. During examination of the victim-prosecutrix, PW.3 Dr.Meenakshi Gupta did not notice any internal or external injury on the person of the victim-prosecutrix. 12. PW.7 Sh.Madan Lal Sharma has stated that at the instance of police he prepared the birth certificate 9 (Ex.PW.7/A) indicating the date of birth of the victim- prosecutrix as 3.2.1982. 13. PW.8 Sh.Om Prakash was posted as Central Head Teacher, Government Primary School, Dadh, since April, 1998, has stated that as per Ex.PW.8/A, date of birth of the victim-prosecutrix is 20.9.1981. 14. PW.9 Constable Kishori Lal, PW.10 Head Constable Bhoop Singh, PW.11 Head Constable Piare Lal, PW.12 ASI Joginder Singh, PW.13 S.I. Sanjay Kumar, PW.14 L.C. Prita Kumari and PW.15 Sh.Milap Chand in due discharge of their official duty have endeavoured to support the prosecution, however, their testimonies are not very material to prove the prosecution case. 15. PW.16 ASI Pratap Chand, Investigating Officer had visited the spot on 28.2.1999 and on 16.3.1999 procured birth certificate (Ex.PW.16/A) from Secretary, Gram Panchayat, Dadh. On 20.3.1999, ASI Pratap Chand (PW.16) had taken into possession school leaving certificate of the victim-prosecutrix vide seizure memo Ex.PW.5/B. PW.16 ASI Pratap Singh has categorically stated in cross-examination that house of accused Gehru Ram comprised of two rooms from where victim-prosecutrix was recovered from one of the rooms of accused Gehru Ram. PW.16 has also stated that the victim-prosecutrix 10 had handed over to him an affidavit regarding her marriage with accused Gehru Ram. As per this affidavit, age of the victim-prosecutrix shown as 20 years, whereas from the school leaving certificate it was less than 18 years. PW.16 however, was not aware about any report lodged by the father of the victim-prosecutrix, on 17.2.199, in reference to missing of her daughter i.e. victim-prosecutrix. Contrary to the testimony of PW.16 ASI Pratap Chand, the recovery of victim-prosecutrix is doubtful. As per statement of PW.16, victim-prosecutrix was recovered from the house of accused Gehru Ram, whereas, as per testimony of PW.5 Sh.Mela Ram, the victim-prosecutrix was recovered from the house of Pradhan, Bodh Raj. 16. On analysis of the prosecution witnesses and materials on record, age of the victim-prosecutrix is doubtful. From perusal of affidavit sworn by the victim- prosecutrix, her age was 20 years and two certificates also reveal her age differently, whereas, as per medical report, her age was assessed as 18 years. PW.5 Sh.Mela Ram and PW.6 Smt. Ram Piari, father and mother respectively, did not remember the date of birth of the victim-prosecutrix, in these circumstances, we are not in a position to indicate that the age of the victim-prosecutrix was below 18 years at the time of incident. Conduct of PW.4 victim-prosecutrix 11 shows that she was happy in the company of accused Gehru Ram. On her own testimony, victim-prosecutrix has admitted that on 1st or 2nd January, 1999 she had gone with accused Gehru Ram. However, her testimony is not inspiring confidence, as despite getting opportunities, she did not raise any hue and cry or inform anyone. Further she had not endeavoured to escape from the company of accused Gehru Ram, during her stay with him. In these facts and circumstances, we cannot indicate with affirmation that accused-respondents were responsible for taking away the victim-prosecutrix forcibly from the lawful guardianship of her parents. In our considered view, the offence punishable under Sections 363 and 366 IPC is not attracted as the victim-prosecutrix was not below 18 years of age, as has rightly been assessed by the learned Additional Sessions Judge also. Further the sexual assault for about 100 times as per testimony of victim-prosecutrix, cannot be said to have been proved, as such, accused-respondent cannot be held responsible for the offence punishable under Section 376 IPC also. Accordingly, all the three accused are entitled for benefit of doubt. 17. In view of the aforesaid facts and circumstances, the learned trial court has rightly arrived at a conclusion that the prosecution has failed to prove its 12 case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt to the accused and there is no scope of interference in the findings given by learned trial court. Accordingly, the present criminal appeal, being devoid of any merit, is dismissed. 18. The bail bonds furnished by the accused/respondents are hereby discharged. 19. We place on record our words of appreciation to Mr.Chaman Negi, for his assistance to the Court as an amicus curiae. (R.B. Misra) Judge June 16, 2011 (Sanjay Karol) (Purohit) Judge