IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 204 of 1998. Decided on: 21.4.2010. ___________________________________________________________ State of H.P. … Appellant. Versus Bansi Lal … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice Surjit Singh, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Rajinder Dogra, Addl. Advocate General and Mr. Ramesh Thakur, Assistant Advocate General. For the Respondent : Mr. Anand Sharma & Mr. Sunil Chaudhary, Advocates. ___________________________________________________________ Surjit Singh, J. (Oral). The State has appealed against the judgment dated 15.11.1997 of learned Sessions Judge, Kinnaur, whereby respondent Bansi Lal, who was charged with and tried for offences under Sections 328, 376 and 307 of the Indian Penal Code, has been acquitted. The case against the respondent was registered on the basis of statement Ext. PW-2/A made by Daulat Ram (PW-2), the father of the prosecutrix. As per this statement, the prosecutrix examined as PW-1, was 13 years old, when she was admitted in 6th Standard in Government School, where the respondent was employed as a Teacher. The respondent fell in love and intimacy with the prosecutrix as a result of which she conceived, but the 1 Whether reporters of the local papers may be allowed to see the judgment? 2 pregnancy was got terminated by the respondent. A compensation of Rs. 20,000/- was paid by the respondent to the prosecutrix for his aforesaid criminal and immoral act. Thereafter, the respondent again developed physical relations with the prosecutrix. She again conceived. When she was carrying eight months’ pregnancy, she was administered some medicine as a result of which miscarriage took place and foetus was buried. Stray dogs, however, dug out the foetus and brought it to the village. All the girls of the village were medically examined. Medical examination showed that Kala Devi had delivered the child. This happened on 19.12.1994. On 20.12.1994, Daulat Ram (PW-2), father of the prosecutrix, received a letter through PW-11 Surjeet Singh, a lad of 15 or 16 years. The letter was delivered to the boy by the prosecutrix. Letter is Ext. PW-1/A. In this letter addressed to her parents, the prosecutrix wrote that she had consumed poison and the respondent was responsible for taking this step because when she went to his house, he did not allow her to stay there and wanted her to leave on the pretext that he was sick. The prosecutrix was rushed to the hospital at Rampur where she was given first aid. Thereafter, she was treated and was detoxicated. Trial Court has acquitted the respondent holding that the prosecutrix had crossed the age of 16 when the alleged miscarriage took place and that the evidence indicated that she was a consenting party to the act of sexual intercourse. We have heard the learned Additional Advocate General as also the learned counsel representing the accused and perused the record. 3 Though the prosecutrix and her father stated that the prosecutrix was subjected to sexual intercourse for the first time when she was a student of 6th standard, yet from a combined reading of the statements of the prosecutrix and her brother PW4, Mohar Singh, it appears that she was at least 17 years of age when she got her first pregnancy terminated. Prosecutrix stated that she became pregnant as a result of the first act of coitus with the respondent. She stated that she did not remember the year of termination of pregnancy or year of such pregnancy. However, Mohar Singh (PW-4) stated that the first pregnancy of the prosecutrix was terminated sometimes in the year 1992 or 1993. Date of birth of the prosecutrix is 2.4.1974 per testimony of DW-1, Kewal Krishan, a Teacher from the School in which the prosecutrix had been studying. Father of the prosecutrix also stated that in the year 1987, age of the prosecutrix was around 13 years. This statement corroborates the testimony of DW-1, Kewal Krishan. Now, if the prosecutrix had become pregnant as a result of the very first coitus and the pregnancy was terminated in the year 1992 or 1993, as per statement of PW-4, Mohar singh, when the prosecutrix was allegedly compensated by the respondent, by making a payment of a sum of Rs. 20,000/-, it can legitimately be presumed that the first coitus took place when the prosecutrix was more than 16 years of age and hence, capable of consenting for the sexual intercourse. It has come in evidence, per statement of the prosecutrix, who was examined as PW-1 that the respondent lives in the neighbourhood of the prosecutrix. The prosecutrix has admitted that the respondent is a married man. 4 Now, when the prosecutrix knew that the respondent is a married man and therefore, he was not in a position to take her as his wife, she ought not to have submitted herself to him for sexual intercourse on the alleged promise of marriage. Her statement suggests that she was a willing partner in the act. Prosecution’s allegation regarding miscarriage also does not stand proved. The prosecutrix has stated that she has been administered some medicine by the respondent for termination of pregnancy. At the same time, she has stated that it was a case of pre-mature delivery which fact negates the facts of miscarriage. Also, there is no medical evidence suggesting that this was a case of miscarriage. As regards the charge under Section 307 of the Indian Penal Code, prosecutrix herself, in her letter Ext. PW-1/A, which she sent to her parents through PW11 Surjeet Singh, stated that she had consumed poison and that she was lying helpless behind the house of the respondent. This mention in the letter negates the charge that the respondent had administered poison to the prosecutrix. In view of the above stated position, we see no merit in the present appeal. Therefore, the same is dismissed. (Surjit Singh) Judge. (V.K. Sharma) Judge. April 21, 2010. (cr) 5