IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 157 of 2001 Date of Decision : January 05, 2011 State of H.P. Appellant Versus Ramesh Kumar and another Respondents Coram: The Hon’ble Mr. Justice R. B. Misra, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. R. K. Sharma, Senior Addl. Advocate General with Mr. Rajinder Dogra, Addl. Advocate General for the appellant. For the respondents : Mr. Y. P. S. Dhaulta, Amicus Curiae for the respondents. Sanjay Karol, J. (Oral) For an offence, which is alleged to have been committed on 10.6.1999, accused were put to trial. In terms of judgment dated 22.11.2000 passed by the learned Sessions Judge, Sirmaur District at Nahan, H.P. in Sessions Trial No. 23-ST/7 of 2000, titled as State of H.P. versus Ramesh Kumar and another, the accused stand acquitted of the charged offences. 2. It is the case of the prosecution that accused No. 2 Sampati Devi was married in village Mubarakpur, Tehsil Derabassi. Prior to Whether reports of Local Papers may be allowed to see the judgment? 2 that she was married with the cousin of the prosecutrix (PW-5). Accused Sampati Devi proposed that prosecutrix be married with accused No. 1 Ramesh Kumar. She made representation that the said accused was a rich man and well settled in life. Prosecutrix was not averse to the idea but however asked accused Sampati Devi to contact her parents. The proposal made by her sometime in the month of June, 1999 was however not acceptable to the parents. On 10.6.1999 at about 3.00 p.m., accused Sampati Devi brought the prosecutrix to the local bus stand at Rajgarh. There accused No. 1 forcibly dragged the prosecutrix in a car and took her to a place known as Giripul. At Giripul both the accused made the prosecutrix board a bus up to Solan. From there she was taken to village Mubarakpur. On 15.6.1999 marriage between the prosecutrix and accused No. 1 was solemnized in a temple. This however was against the consent and will of the prosecutrix. Thereafter accused No. 1 forcibly committed sexual intercourse without the consent of the prosecution. After the marriage, prosecutrix was taken from Mubarakpur to Kurukshetra and other places. Realizing that his daughter was missing from home Sh. Rattan Singh (PW-3) father of the prosecutrix filed a complaint with the police. On the basis of the said complaint F.I.R. No. 69/99 (Ext. PB) dated 27.6.1999 was lodged with the police station at Rajgarh under Sections 363 and 366 I.P.C. Investigation was commenced by ASI Chura Mani (PW- 7). Prosecutrix was recovered from the custody of accused No. 1 on 30.6.1999. At that time she was residing with the accused at his 3 house in Mubarakpur. Police got the prosecutrix medically examined from Dr. Savita Aggarwal (PW-4) who issued M.L.C. (Ext. PD). The Doctor opined that prosecutrix was more than 19 years of age and was subjected to sexual intercourse. Accused No. 1 was also got medically examined. Clothes of the prosecutrix recovered by the police were sent for chemical analysis and report (Ext. PH) obtained. According to the father, prosecutrix was minor and in order to prove her age police collected her school leaving certificate (Ext. P2). With the completion of investigation challan was presented in the Court for trial. 3. Accused No. 1 was charged for having committed offences punishable under Sections 363, 366 & 376 IPC and accused No. 2 was charged for having committed offences punishable under sections 363 & 366 IPC. Accused did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined seven witnesses and the statements of the accused under Section 313 Cr.P.C. were also recorded. 5. Court below acquitted the accused of the charged offences. Hence the present appeal. 6. On the question of the age of the prosecutrix, we feel that no case, as alleged is made out. Even according to the father (PW-3), prosecutrix was more than 17½ years of age as on the date of the alleged crime. That apart the Doctor (PW-4) found her to be of 19 years. There is also evidence that on the basis of the radiological 4 test, MLC (Ext. PD) disclosed the age of the prosecutrix to be above 19 years. 7. The other evidence on record i.e. testimony of Smt. Anjita Chauhan (PW-2) who proved certificate (Ext. P2) issued by the school does not advance the case of the prosecution. This witness admits not to have brought the form filled up by the guardian at the time of admission of the child in the school. She also could not state the basis of the entry made in the school register. As per the register brought by her, date of birth of the prosecutrix is 20.6.1982. But however there is no other evidence to corroborate this date recorded in the register. 8. Sh. Bansi Ram (PW-6) Secretary Panchayat Nohradhar has proved certificate (Ext. P 13) which is an extract of the pariwar register. Now even this evidence cannot be looked into. The witness admits that there is over writing in the year and the date of birth of Sunita Devi. Authenticity of this document is in doubt. Consequently it cannot be said that the prosecutrix was less than 18 years of age as on the date of the alleged offence. 9. Coming to the statement of the prosecutrix (PW-5) we find the same not to be convincing and reliable. No doubt she states that on 10.6.1999 she had walked up to the bus stand along with accused Sampati Devi and from there was taken away by accused Ramesh Kumar. However she admits that she was taken through various crowded and public places by means of private and public transport. She admits that she remained in the company of the 5 accused between 11th June, 1999 up till 30th June, 1999. She admits to have solemnized marriage with the accused and slept with him in the houses of the relations at different places. She also admits to have spoken with women folk present in the houses. She also admits that in and around the places where she was staying there were neighbours and that that she had free access to their houses and market places. She also admits not to have protested against the advances of the accused or reported the matter to anyone about the alleged illegal acts of the accused. Significantly it is not her version that she was subjected to intimidation or threats of any nature by any of the accused persons. She admits that at times she was alone at home and she could freely come out of the house. Why is it so that prosecutrix did not report the matter to the neighbours, passers-by or her relatives? She could have conveniently slipped out of the house and come back to her house. To us it appears that she had voluntarily left the house of her father and gone with the accused. It was only when the father objected to the marriage that there was change of heart and mind. 10. We may also add that testimony of the father of the prosecutrix is also not convincing. He admits that talks of marriage were going on between the parties. 11. Consequently it cannot be said that prosecution has been able to prove its case against the accused persons. It cannot be said that accused had forcibly kidnapped the prosecutrix and taken her 6 away from her lawful guardianship and subjected her to marry accused No. 1 and was also subjected to rape by the said accused. 12. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (R. B. Misra), Judge. (Sanjay Karol), Judge. January 05, 2011 (PK)