IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 357 of 1996 Judgment Reserved on : March 15, 2010 Date of Decision : March 23_ , 2010 State of Himachal Pradesh Appellant Versus Bhag Singh alias Banka Ram Respondent Coram: Hon’ble Mr. Justice Deepak Gupta, Judge Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Vivek Thakur, Addl. Advocate General with Mr. R. M. Bisht, Deputy Advocate General for the appellant. For the respondent : Ms. Vidhush Sharma, Advocate, for the respondent. Sanjay Karol, J. This appeal by the State is directed against the judgment dated 24.7.1995 passed by the learned Sessions Judge, Hamirpur, H.P., in Sessions Case No. 6 of 1994 whereby he acquitted the accused of having committed offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. It is the case of the prosecution that the prosecutrix was residing with her father Sh. Pritam Singh at village Chamnerh, tehsil Hamirpur. The accused is her next door neighbour. In the month of Whether reports of Local Papers may be allowed to see the judgment? 2 January, 1994 the accused was employed as a labourer with Sh. Pritam Singh. The accused and the prosecutrix developed intimacy. As per birth certificate (Ext. PE) the prosecutrix was below sixteen years of age as she was born on 23.7.1978. Some time before January, 1994 the accused had sexual intercourse with the prosecutrix. On 6.1.1994 at about 9 – 10 p.m., the prosecutrix was sleeping in the upper storey of her house along with her younger brothers and sisters and her parents and grand-father on the ground floor. The accused called for her at night. When she came down the accused caught hold of her from the arm and dragged her. She was threatened not to raise any alarm. Thereafter the accused took her to Gasota Pull (bridge) from where she was taken to Hamirpur in a taxi. There the accused and the prosecutrix boarded a bus for Hoshiarpur for their onward journey to Ludhiana from where they went to village Letar. There both of them resided in the house of Smt. Sumna Devi for fourteen days. Even there the accused continued to have sexual intercourse without her consent. Finding her daughter missing from home, on 18.1.1994 Sh. Pritam Singh (PW-2) lodged F.I.R. (Ext. PB) No. 6/94 dated 18.1.1994 with Police Station, Hamirpur under Sections 363, 366 of the Indian Penal Code. The investigating agency recovered the prosecutrix from the custody of the accused at village Letar on 20.1.1994. She was handed over to her father in the presence of Sh. Sanga Singh (PW-4). On 21.1.1994 she was medically examined by Dr. Abha Gautam (PW-6) who as per Medico Legal Certificate (Ext. PJ) opined that the 3 prosecutrix was subjected to sexual intercourse. The accused was also medically examined by Dr. R. K. Kanwar (PW-7) who issued Medico Legal Certificate (Ext. PK). The clothes of the prosecutrix and the accused were taken into possession and sent for chemical examination to the forensic laboratory. As per the report (Ext. PP) it was opined that the clothes contained semen and blood stains. To prove the age of the prosecutrix, her birth certificate (Ext. PE) and the birth certificates (Ext. PG and Ext. PH) of her elder twin sisters was taken into possession vide memo Ext. PF and Ext. PF/1 respectively. With the completion of the investigation challan was presented in the Court for trial. The accused was charged for an offence punishable under Section 363, 366 of the Indian Penal Code as also committed an offence punishable under Section 376 of the Indian Penal Code at village Chamnerh, prior to January, 1994 and at village Letar between 7.1.1994 and 20.1.1994. In support of its case prosecution examined twelve witnesses. The statement of the accused was recorded under Section 313 Cr. P.C. The Court below acquitted the accused hence the present appeal. From the deposition of Dr. Abha Gautam (PW-6) it is clear that the prosecutrix was used to sexual intercourse. In our considered view it is a clear cut case of consent of the prosecutrix. The parties had sexual intercourse voluntarily. In her deposition prosecutrix (PW-1) has clearly deposed that “I was in 4 love with the accused”. According to her the accused is her next door neighbour and they had developed intimacy as during the visits of the accused to her house he used to pinch her. Once he called her near the bamboo plant below their house where they had sexual intercourse during the night. She admitted to have washed her clothes thereafter and also not disclosed the said act to anyone. This was done 2 – 3 times. She further admitted that when the accused called her she was sleeping on the first floor of her house with her brothers and sisters and came down on her own. Her version that she did not raise alarm due to the threats meted out by the accused, is in fact an improvement of her earlier statement recorded by the police (Ext. DJ and Mark-DA) on 20.1.1994. She was confronted with the same. In her earlier statement it is nowhere stated that the accused threatened her when she came down from her house. She has stated that she came of her own and the accused simply “dragged” her towards the Gasota Pull. Further as per the prosecutrix the accused had taken her to Gasota bridge, Hamirpur, Hoshiarpur, Ludhiana and finally to village Letar. They also travelled in public transport. Importantly the prosecutrix passed through public places and never raised any alarm. It is also not her case that for fourteen days she was kept in confinement at Letar or that she had been induced to have sex with the accused under inducement. Importantly she admits that her grand-father (PW-5) and father (PW-2) had come to village Letar to take her back but however the accused refused to leave her. She does not state that 5 she was willing to go with them. It is evident that she voluntarily travelled and stayed with the accused at different places. She herself admitted not to have disclosed to anyone about the sexual intercourse which she had had with the accused earlier. In any event her statement of having sex with the accused prior to 6.1.1994 is vague. There is no reference of any date. Her version is not reflective of the natural course of events. She passed through various crowded and public places during day time and could have easily raised hue and cry to attract public attention. She could have contacted people in the village or made a phone call to her parents. She could have conveniently slipped out of the house and returned to her house or at least contacted the police station for help. Even as per the version of the prosecutrix the accused had taken her to the house of Smt. Sumna Devi in village Letar who admittedly is from her village. She could have at least informed her about the said fact. Her version that she was forcibly subjected to sexual intercourse is obviously false. It does not inspire confidence at all. Her version that the accused was brandishing the knife throughout the journey up to Letar does not appear to be correct. It also does not find mention in her earlier statement. It is a material improvement. It is also not the prosecution case that the accused had threatened the prosecutrix with a knife. There is also no recovery of knife. The next question to be considered is as to what is the age of the prosecutrix. In Court the prosecutrix has deposed her date of 6 birth to be 23.7.1978. She studied up to class seventh. Birth certificate (Ext. PE) showing name of prosecutrix as Rajo Devi and recording her date of birth to be 23.7.1978 is on record. According to Sh. Pritam Singh (PW-2) the date of birth of the prosecutrix is 23.7.1978. She allegedly was less than 16 years of age at that time. Importantly Pritam Singh (PW-2) admits that in his statement under Section 154 Cr. P.C. (Ext. PB) the age of the prosecutrix mentioned by him was seventeen years. He only remembers the date of birth of the prosecutrix but does not remember the dates of birth of his other children. He admits to have remembered the date of birth of the prosecutrix only for the reason that it is so mentioned in the certificate. His deposition does not inspire confidence. Sh. Parshotam Lal, Secretary, Gram Panchayat, Lambloo (PW- 3) appeared to prove certificate Ext. PE. He admits that the date on which the entry was made does not find mention in the register. The same also does not bear signatures of any person. Even the register is not paginated. He also does not know the procedure followed at the time of making the entry. He does not know whether the Chowkidar who allegedly reported the entry is alive or not. According to him the name of the newly born child is not immediately recorded in the register and is left blank. The birth certificates (Ext. PG and Ext. PH) of the elder twin sisters of the prosecutrix disclose their names to be only “Guddi”. Before the prosecutrix was born they were given proper/permanent names. There is no explanation as to why only the name of the prosecutrix 7 was got recorded and not that of the elder sisters. Importantly Sh. Mansha Ram (PW-5) grand-father of the prosecutrix has admitted that the name of the prosecutrix was got recorded by him for the first time when she was to be admitted in the school. The manner of preparation of the register raises doubt about its authenticity and genuineness. It does not disclose the name of the person who disclosed the information on the basis of which the said entry of date of birth was made therein. Even the school record has not been produced by the prosecution. No ossification test was got conducted by the investigating authorities. Hence the evidence placed on record (ocular and documentary) does not inspire confidence and the exact age of the prosecutrix cannot be said to have been proven on record. It cannot be said that the accused committed the alleged crime of having taken away the prosecutrix out of her lawful guardianship without the consent of the guardian. That apart it is evident from the statements of the prosecutrix (PW-1), Sh. Sanga Singh (PW-4) and Sh. Mansha Ram (PW-5) that Sh. Pritam Singh (PW-2) and Sh. Mansha Ram (PW-5) had visited village Letar on 11.1.1994 to take the prosecutrix back. But since the accused refused to hand her over they returned. No complaint whatsoever was lodged by PW-2 with the authorities at Letar (Punjab). Importantly Sh. Sanga Singh (PW-4) deposed that prosecutrix had revealed that she had joined the company of the accused of her own accord as her parents were getting her married 8 somewhere else. He is an independent witness and is the Pradhan of the area. He has no reason to depose falsely. What transpired between 11.1.1994 and 18.1.1994 has also not been explained by the prosecution. The report was finally lodged with the police on 18.1.1994. Importantly PW-4 concealed this fact while lodging the report with the police. He also did not reveal this fact in the Court. Why such an important fact was not disclosed has not been explained at all. Hence his statement cannot be relied upon to hold the accused guilty. Assuming hypothetically that the age of the prosecutrix is below eighteen years still there is no material on record to prove that the accused is guilty of having committed an offence punishable under Section 363 I.P.C. Here is a case where the prosecutrix is a willing party who played an active role in going away with the accused from her house. We find no reason to interfere with the well reasoned judgment of the learned trial Court. The appeal is accordingly dismissed. Bail bonds furnished by the accused are ordered to be discharged. (Deepak Gupta), Judge. (Sanjay Karol), Judge. March 23 , 2010 (PK)