1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 265/2002 Decided on July 7, 2011 State of H.P. …Appellant. VERSUS Arshid Hussain ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge Whether approved for reporting?1 For the Appellant: Mr.R.K. Sharma, Sr. Addl. AG For the respondent: Mr. M.S. Guleria, Advocate. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure, in reference to judgment dated 8.11.2001 passed by learned Sessions Judge, Mandi, HP in Sessions Trial No. 5 of 2001, thereby acquitting the respondent / accused for the offence under Sections 363, 366 and 376 of Indian Penal Code. 2. The prosecution case is that (PW-2) victim- prosecutrix (name not given), daughter of (PW-1) Bhag Singh was residing along with four sisters and one brother in their house. In the month of September, 2000, when her mother had gone to Delhi, some labourers deployed in doing digging telephone cables lines near her house. On 9.9.200 at about 6 or Whether the reporters of the local papers maybe allowed to see the judgment? 2 6.30 PM, when victim-prosecutrix had gone out, she came across the accused respondent and other person. The accused told her that he wants to marry her and promised to provide her jewellery and clothes. PW-2 was taken to Pahari and was sexually assaulted. Both the accused/respondent and victim- prosecutrix stayed there in the night and on the next day, victim-prosecutrix was taken by the accused/respondent to his quarter where she was also sexually assaulted. 3. Accused/respondent kept PW-2 inside the room till the evening of next day when her relatives, namely (PW-4) Ramesh, (PW-5) Daulat Ram and others came there and took her out, when she became unconscious. She was taken to the hospital, where she was medically examined. After investigation, accused was charged for the aforesaid offences. 4. In order to prove its case, prosecution has examined as many as 18 prosecution witnesses, whereas, through his statement under Section 313 Cr.P.C, accused/ respondent denied the prosecution case. 5. (PW-2)/ victim-prosecutrix, while reiterating the prosecution case has stated that on 9.9.2000 at about 6/6.30 PM, when she had gone out without any specific reason, she came across the accused/respondent along with some other person. PW-2 did not know those persons, however, she was offered and allured by the accused/respondent for marriage with the assurance that she would be provided jewellery and good clothes and would be taken to Jammu and Kashmir. Accordingly, PW-2 was taken by the respondent/accused to the 3 Pahari (hilly area) about 100 or 125 meters from her house, where she was sexually assaulted despite her resistance. PW-2 told the accused/respondent that sexual intercourse should be made after marriage. However, PW-2 remained in Pahari in that night and next day also. On the next night at about 12-1 AM, accused/respondent took her to his quarter at Matin Ka Nala and kept PW-2 in the upper storey of the house. The room was locked from the outside. PW-2 accompanied the accused/respondent to the room from a staircase of stones through a Jangla by jumping into the room, where PW-2 was also sexually assaulted and remained there upto to 3.30/4 PM next day However, she was taken out from the room by Pawan Kumar, Ramesh, Chand, Daulat Ram. After reaching her house and on seeing her father, she became unconscious and she was taken to the hospital. 6. PW-2 has further stated that she was 10th fail and in her own admission, she admitted her age as 16 years 2 months and 14 days. At the time of examination by the Medical Officer, PW-2 did not state that on 9.9.2000 evening when she was cutting grass in the field, three men came, showed her knife and kidnapped her and gave her a toffee. After eating toffee, she became unconscious. PW-2 did not state to the police the incident correctly because of shame. PW-2 has also not stated to the police that the accused/respondent had not given to her any kind of intoxication. As per the testimony of PW-2 made in the cross examination, she has stated that accused had earlier stated her that he would take her to 4 Jammu and Kashimr and would marry her. Such assurance was given by the accused 3 days, prior to the occurrence and PW-2 did not disclose or has not made any complaint about such fact to her grandmother, grandfather or to any other relative and has revealed such fact in the court first time. 7. PW-2 has also stated in the cross examination that labourers were residing in the lower storey where PW-2 had stayed with the accused and about 10-12 persons were residing in that storey and there was a house in the back side of the said quarter where PW-2 had stayed with the accused/respondent, PW-2 was not able to say that in that house 5-7 members of his family were residing with the family. PW-2 has stated that the accused was ahead to her whey they climbed those stairs of the quarter and during sexual assault, PW-2 neither gave any tooth bite to the accused nor she tored his clothes or pushed him. 8. (PW-1) Bhag Singh, father of the victim- prosecutrix not an eye witness, however, produced the school leaving certificate Ex PB. (PW-7) Krishan Chand brought the record pertaining to the admission and withdrawal of victim- prosecutrix. As per record, date of birth of PW-2 was 28.6.1984. (PW-14) Suresh Kumar, Panchayat Secretary handed over copy of the birth certificate of victim-prosecutrix Ext PV to the police. (PW-8) Dr. S.K. Malhotra has stated that on 14.9.2000 the MLC X-rays of victim-prosecutrix was brought to him by LHC Som Dutt and in his opinion, victim-prosecutrix was between 15 to 16 years of age. (PW-9) Dr. Aruna, during medical examination 5 of PW-2 did not notice any mark of injury on the body or any private part of PW-2. 9. (PW-3) Jagdish Chand, Pradhan, Gram Panchayat, Dharampur has stated that after receiving message on 9.9.00 at 7 PM about the missing of victim-prosecutrix, he tried to locate her but in vain. On11.9.2000 he came to know that the victim-prosecutrix has been traced. On 12.9.2000 police associated him in the investigation of the case. Father of the victim-prosecutrix handed over one school leaving certificate which was taken into possession by the police. 10. On scrutiny of the prosecution witnesses and materials on record, we notice that as per school leaving certificate Ex PB, date of birth of the victim-prosecutrix was 28.6.1984. Such document was brought by PW-7 Krishan Chand. According to him, such age was entered on the basis of the record, but neither the said record was proved by any witness nor copy of any birth entry was attached with such certificate on the basis of which the age of victim-prosecutrix was treated to have been recorded. As such, the school leaving certificate Ex PB cannot be said to have determined the age of the victim-prosecutrix. Copy of parivar register Ext PE, proved in evidence by Raj Kumar, Panchayat Sahayak, indicates that the date of birth mentioned as 28.6.1984 was recorded in the year 1990. As such, the age of victim could not be correctly ascertained. On her own admission, victim-prosecutrix was more than 16 years and the testimony and conduct of victim- prosecutrix indicates that she was consenting party to the 6 sexually interaction with the accused/respondent. As such, offence under Section 376 of IPC is not made out. 11. As stated by PW-2 in the cross examination that the room where PW-2 was residing with the accused/respondent was not a place of solitude as 10-12 labourers were residing there in that storey. PW-2 has clearly stated that the accused was ahead of her and they climbed the stairs of the quarter while coming to that room. In these circumstances, it cannot be said that the accused had taken her forcibly to that room. 12. In our considered view, despite getting opportunity, victim-prosecutrix did not raise alarm and did not make hue and cry . Despite getting opportunity to escape, reasons best known to her, she did not escape. The circumstances reveal that PW-2 was the consenting party to the sexual intercourse with the accused/ respondent, while accompanying the accused/respondent during 9.9.2000 to 11.9.200. None of the prosecution witnesses have divulged that the victim-prosecutrix was taken forcibly by the accused/respondent from her lawful guardian. In these circumstances, offence under Section of 363 IPC is also not made out against the accused/ respondent. Prosecution could not bring anything or nothing otherwise could have corroborated that accused/respondent had kidnapped, abducted or induced PW-2 to marry her or she was forced or seduced to illicit intercourse, whereas, the conduct of the 7 victim-prosecutrix itself shows that she was willing and participating party in the company of the accused. 13. On analysis of the prosecution witnesses and materials on record, learned Sessions Judge has rightly arrived at the finding that the prosecution has failed to prove the guilt of the accused under Sections 363, 366 and 376 of IPC. Applying the observations made by this Court in Criminal Appeal No. 712 of 1996 titled as (State of HP Vs. Rajesh Kumar and another) decided on June 23, 2010, the offence against the accused/respondent under Sections 363, 366 and 376 of IPC: is not made out. Para- 30 of the above said judgment is reproduced here-in-below:- “30. We are of the considered view that the victim / prosecutrix even if not completed 18 years of age, but is capable of applying her wisdom, discretion and mind independently and is understanding the consequences of accompanying a person with whom she became friendly and had fallen in love with him and if has voluntarily accompanied such accused person at her own sweet will without any protest and without making hue and cry and took active part in going with the accused, even if was sexually assaulted by such accused person then if scrutiny of facts and circumstances indicate that the victim / prosecutrix had enjoyed good time with accused without showing resistance and without any endeavour to escape from the company of such accused and victim / prosecutrix was a willing and consenting party of the company of accused at the relevant time, then the victim / prosecutrix cannot be said that she had been enticed and kidnapped from her lawful guardian and 8 cannot also be said to be abducted or induced for marriage. In such situation, the act and conduct of accused cannot be regarded an overt act for inducement in reference to the offence under Sections 361, 363 and 366 of the Indian Penal Code.” 14. We find that the prosecution has miserably failed to prove its case beyond reasonable doubt. Prosecution has also failed to bring home guilt to the accused. We find no scope for interference in the impugned judgment of the trial court. The criminal appeal, being devoid of merit, is accordingly dismissed. 15. Bail bonds, furnished by the accused/ respondent, are hereby discharged. ( R.B.Misra ), J. 7th July, 2011(sl) ( Sanjay Karol ), J. (sl)