IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 123 of 2010 with Cr. Appeal No.386 of 2010. Date of Decision: 09th December, 2010. _______________________________________________________ 1. Cr. Appeal No.123 of 2010. Basheer Mohammad .. Appellant. Versus State of Himachal Pradesh .. Respondent. For the appellant : Mr. M.S. Guleria, Advocate. For the respondent: Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General. 2. Cr. Appeal No.386 of 2010. State of Himachal Pradesh .. Appellant. Versus Basheer Mohammad .. Respondent. For the appellant : Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General. For the respondent: Mr. M.S. Guleria, Advocate. Coram Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting1? Yes. ____________________________________________________ Per SURINDER SINGH, J (Oral). Appellant Basheer Mohammad in Criminal Appeal No.123 of 2010 was convicted for the offences punishable under Sections 363 and 366 of the Indian Penal Whether reporters of the Local papers are allowed to see the judgment? - 2 - Code and sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.50,000/- under Section 366 of the Indian Penal Code and in default of payment of fine to further undergo imprisonment for one year. He was also sentenced under Section 363 of the Indian Penal Code to undergo simple imprisonment for one year and to pay a fine of Rs.25,000/-, in default of payment of fine to further undergo imprisonment for six months. Both the aforesaid sentences were ordered to run concurrently. The benefit of Section 428 of the Code of Criminal Procedure was also given. 2. Feeling aggrieved and dissatisfied with the impugned judgment of conviction and sentence the appellant filed the instant appeal (Cr. Appeal No.123 of 2010). 3. State also filed Criminal Appeal No.386 of 2010 seeking enhancement in the sentence. 4. Both the appeals are arising out of the same judgment of conviction and sentence, passed in Sessions Trial No.4 of 2010, on 2nd/8th June, 2010, hence taken up together for its decision. 5. Heard and gone through the evidence on record. 6. In short, the prosecution story can be stated thus. Both parties, i.e., the complainant party and accused profess Islam. The prosecutrix was learning tailoring and - 3 - stitching-work from the appellant to be referred as ‘the accused’ hereinafter. 7. On 12th April, 2009, he took the prosecutrix with him on the pretext to purchase the sewing machine from Chamba. The machine was not purchased and from Chamba she was taken to Mandi with the promise to marry. They resided together at Narsal Chowk (Mandi). (ii) Finding the prosecutrix missing, her parents searched for her, but she was not traceable. Ultimately, the suspicion fell on the accused. Thus a report was lodged in the Police Station. While moving in the Bazar, at Nalsar- Chowk (Mandi), police apprehended the accused and the prosecutrix. The prosecutrix was handed over to her parents and the accused was arrested. Her statement was recorded. (iii) Police took the prosecutrix for her medical examination alongwith her mother, but she refused for her medical examination. (iv) The medical examination of the accused was also conducted. He was found capable of performing sexual act. (v) Police recorded the statements of the witnesses and on completing the Challan, it - 4 - was presented under the Sections aforesaid for the trial of the accused. 8. At the end of trial, the accused was convicted and sentenced as aforesaid. Hence, this appeal (Criminal Appeal No.123 of 2010) and also the appeal for enhancement of the sentence by the State as stated above. 9. On the scrutiny of the record, we find that the prosecutrix though alleged to be a minor, but she has been proved to be more than 18 years of age and in any case not less than the age of discretion, having left the company of her parents of her own volition and was found strolling all over with the accused and remained with him till, she was apprehended by the police. 10. According to her father PW1 Sukkar Deen, at that time she was 17 years. The prosecutrix stated that she was 16 years. According to PW4 Inspector Brij Mohan Sharma, the father of the prosecutrix stated that she was 15 years and 10 months. Her mother, PW5 Smt. Janko revealed that she was 16 years of age. PW6 Gajinder Singh, Secretary of the Gram Panchayat, although, issued the certificate Ext.PW6/A with respect to the date of birth of the prosecutrix showing her date of birth as 2.6.1992, which was admittedly given by him on the basis of the entries made in the Pariwar register, but neither the - 5 - register of date of births and deaths was produced nor he even produced the Pariwar register, which records the age on estimation and bears no signatures of the informant. 11. Further, the prosecution also sought help from the statement of PW7 Ghungar Ram, Head Teacher, Govt. Primary School, Saloh, wherein the prosecutrix was allegedly admitted in the first standard. He produced the admission slip Ext.PW7/A, showing date of birth as 2nd June, 1992. Although, it is a relevant evidence, but there was no mention of the name who had appended the thumb impression on the said admission slip nor there is any supporting evidence to show that on what basis the said date of birth was recorded. Therefore, in these circumstances no value can be attached to it. 12. In these circumstances, when there is no authenticated record and there is a variation in the statements of the witnesses, she could not be proved to be less than 16 years of age by the prosecution and in all probabilities she comes to be more than the age of discretion. Once this conclusion is arrived at, the statement of the prosecutrix has to be closely and cautiously scrutinized. 13. Prosecutrix stated that the accused was proposing her to marry and took her to Chamba for purchasing a - 6 - stitching machine. Both of them in pick-up vehicle went to Chamba, but machine was not purchased. Instead, he took her to Mandi and she was kept in a rented room and later she was recovered from the custody of the accused vide memo Ext.PW1/C. She also stated that she refused to undergo the medical examination as she was threatened to life by the accused. She also stated that in the room at Mandi she was sexually assaulted. In cross- examination, she stated that from Chamba to Mandi, they boarded the bus which was full of passengers and she did not ask from the accused to which place she was being taken. Both of them stayed for six days at Mandi and she did not disclose to anyone that the accused had taken her forcibly even to the owner of the room where they were staying. She also admitted that she did not tell anyone that the accused intended to marry her and she was his student for the last one year. She was confronted with her statement under Section 161 of the Code of Criminal Procedure recorded by the police wherein she did not make any allegation of sexual assault with her and also with respect to the threatening alleged to have been given to her. She did not state in the said statement that the accused had been proposing her to marry. She denied that she voluntarily left the company of her parents of her own - 7 - will and had accompanied the accused. Her mother (PW5) stated that the accused had taken her daughter with him to perform Nikaha with her. She did not tell the police that her daughter informed that she was sexually assaulted by the accused and she specifically disowned the statement to this effect made in her statement under Section 161 of the Code of Criminal Procedure proved to have been jotted down by the Investigating Officer. She flatly refused having made such a statement to the police. 14. PW10 ASI Shyam Parshad had investigated the case. He stated that the accused and the prosecutrix were apprehended at Ner Chowk, Balh (Mandi). He did not record the statement of any person to this effect. This fact has been sharply contradicted by her father PW1 by saying that when the police took him to Nalsar-Chowk, at that time prosecutrix was cutting wheat crop in the fields, but he did not know who was the owner of those fields. He categorically denied that his daughter was in the company of the accused at the Nalsar-Chowk, at the relevant time. Thus the document of recovery Ext.PW1/C and the statement of the Investigating Officer, with respect to the recovery of the prosecutrix both are contradictory and do not inspire confidence. - 8 - 15. On the critical examination of the evidence aforesaid, we find that the prosecutrix had visited different places and she was not kept confined by the accused at any place. She had been going through many busy places and frequented general public, on the bus-stops and even in the Bazars and village when she traveled by means of transport. There was no murmur on her part that she ever tried to seek any help from anyone and she also categorically stated that she did not raise any hue and cry or make any complaint against the misconduct of the accused to anyone. Though she stated to have told everything to her mother, but even her mother did not lend any support to her version, rather contradicted her on material particulars and on the top of it, no alleged threat to her life was proved to have been given by the accused. All these acts of her would go to show that all through and through she was a willing party to go with the accused and submitted herself to all such acts. Further, the alleged rape by the accused also stands not proved. 16. In our considered opinion, the learned trial Judge got swayed only by the statement of the prosecutrix which is open to criticism and her conduct exhibited that she was willing party and over the consenting age at the relevant time. - 9 - 17. Thus, for the reasons stated above, the prosecution case in our view stands not proved, as the statement of the prosecutrix did not inspire confidence to sustain the conviction of the accused. The accused deserves to be given the benefit of doubt. Consequently, the criminal appeal filed by the accused is allowed and his conviction and sentence passed in Sessions Trial No.4 of 2010, decided on 2nd/8th June, 2010 are hereby set aside. Accused Basheer Mohammad stands acquitted, whereas the State appeal (Criminal Appeal No.386 of 2010) is dismissed. Fine amount, if deposited, be refunded to the accused. Now, we direct accused Basheer Mohammad be set at liberty forthwith, in case, not required in any other case. Registry to take follow up action. Both the appeals are accordingly disposed of. (R.B. Misra), Judge. December 09, 2010. (Surinder Singh), (rc) Judge.