IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.61 of 1995 Decided on: 5th March, 2009 State of H.P …..Appellant. VERSUS Sh.Mindar alias Migmar Lama & others …..Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K.Ahuja, Judge. Whether approved for reporting?1No For the Appellant: Mr. Rajesh Mandhotra, Dy.A.G for the appellant For the Respondents: Shri Adarsh K.Vashisht, vice counsel for respondents Deepak Gupta,Judge (Oral) This appeal is directed against the judgement of the Learned Additional Sessions Judge (1), Shimla in Sessions Trial No.16-S/7 of 1992, decided on 23.3.1994, whereby she has acquitted the accused of having committed offences punishable under Sections 342/109/363/366 and 376 of the Indian Penal Code. 2. At the outset, we may mention that respondent No.3 was declared Proclaimed Offender. Respondent No.1 could 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes not be served despite repeated reminders since he is a permanent resident of Nepal. Respondent No.2 is represented in Court. 3. Briefly stated the facts of the case are that the prosecutrix was a student of Class-VIII and was residing with his family in a rented house. In the same house, accused No.2 was residing with one Vinod ailas Migmar Lama-respondent No.1. Respondent No.1 wanted to take the prosecutrix to Bombay and used to follow her and tried to entice and allure her. One day, the mother of the prosecutrix saw her with respondent No.1 and she warned both of them. 4. It is alleged that on 19.1.1992, the prosecutrix was going towards a shop. Respondent No.1 followed her and thereafter, took her to the quarter of Ramesh. Ramesh’s wife Devi, i.e., respondent No.3 was in the quarter. Both the accused hid the prosecutrix in a wooden box under the roof for a period of two days and during these two days, respondent No.1 had sexual intercourse with the prosecutrix against her consent. Thereafter, her father and one Dawa Lama-respondent No.2 came to the house of Ramesh. When the prosecutrix heard their voice, she came down and the father took her to the quarter. Then she narrated the entire story to her parents and report Ext.PC was made to the police. 5. On the basis of this report, FIR was lodged by the police. Thereafter, the police investigated the matter. After investigation, the Challan was filed in Court. The accused was summoned and charged with committed offence of rape. The petitioner not guilty and claimed trial. The learned Sessions Judge held that the prosecutrix was a major and was a consenting party to the sexual intercourse and, therefore, acquitted the accused. Hence the present appeal. 6. Two questions arise for consideration of this case. First what is the age of the prosecutrix and second whether she was a consenting party to the sexual intercourse? 7. As far as the age of the prosecutrix is concerned, there is more than ample evidence on the record to show that she was more than 16 years of age at the time of alleged occurrence. Neither the prosecutrix nor her parents have made any statement regarding her age nor they made any mention about the date of birth of the prosecutrix. However, PW/3 Ganesh Bahadur, father of the prosecutrix had stated that he got the date of birth entered in the school admission record. This school record was produced by PW/5 Shri Prabhu Lal who is a teacher in Government Middle School, Badal where the prosecutrix was studying at the time of alleged occurrence. In this record, the date of birth has been mentioned as 15.7.1975. The occurrence allegedly took place on 12.1.1992. The prosecutrix even as per this record was more than 16 years old. Not much reliance can be placed on this record since Shri Prabhu Lal has stated that this date of birth has been entered on the basis of school certificate issued from the Government School, Jeori where the prosecutrix was previously studying. No effort has been made to prove this certificate. Dr.B.K.Bhardwaj who had examined the prosecutrix has clearly admitted that as per his medical examination, the age of the prosecutrix could be over 18 years. In his opinion, he has stated that the skeletal age of the prosecutrix is between 17 to 19 years. He has further added that there can be variation of three years in the determination of this age. It is thus obvious that the prosecutrix was more than 18 years of age at the time of the alleged incident. 8. As far as consent is concerned, the occurrence took place on 19.1.1992. According to the prosecutrix, she was kept in the house of PW/3 for two days. She has not whispered a word that she was locked up or anybody threatened her from leaving this house. She has admitted that there are a large number of houses surrounding the house of respondent No.3. She admits that she used to go to answer the call of the nature escorted by respondent No.3 but she states that she could not raise an alarm during this period. It is apparent that the prosecutrix did not raise any alarm for more than two days. She herself states that on the day when her father reached the house of respondent No.3, on hearing his voice, she came down. This also belies the prosecution version that she was forcibly kept in a wooden box under the roof. If that had been true, how could she have come down? The version of the prosecutrix is that she was forcibly abducted from the market to the house of Ramesh also cannot also be believed. Admittedly, the distance of the quarter of Ramesh from the market is 200 feet. The prosecutrix admitted that there are 150 houses and a number of shops in the vicinity. All the shops were open and people were present. In such eventuality, the prosecutrix could not have been abducted against her wishes. 9. There is unexplained delay of more than 20 days in lodging the FIR. The prosecution has given no cogent explanation for this delay. Even as per the prosecutrix, she was taken by her father from the house of respondent No.3 on 21.1.1992 but the FIR was not lodged till 9.2.1992. All these factors were duly considered by the learned Trial Court who acquitted the accused. 10. In view of above discussion, we find no merit in the appeal which is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. (V.K.Ahuja) 5th March, 2009 Judge (m)