IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Leave to Appeal No. 41 of 2008 with Government Appeal No. 109 of 2008 State of Uttarakhand ...…………. Appellant versus Deepak ...…………. Respondent Mr. P.S. Saun, AGA for the appellant State. Mr. Bhuwnesh Joshi, Advocate holding brief of Mr. Vivek Shukla, Advocate for the accused-respondent. Hon’ble U.C. Dhyani, J. (oral) Present special leave to appeal no. 41 of 2008 was preferred on behalf of the State of Uttarakhand against the impugned order dated 14.02.2008, passed by Addl. Sessions Judge / I F.T.C., Haridwar, whereby the accused- respondent Deepak was exonerated of the charges levelled against him under Sections 363, 366 and 376 of IPC. 2) An FIR (Ext. Ka-1) was lodged by the informant Damodar Prasad alleging therein that when informant, his wife and his daughter Monika, aged 17 years, were sleeping in their house in the intervening night on 27th / 28th of June 1998, at 04:00 A.M. (of 28.06.1998), he found that his daughter Monika was missing. Informant’s sons Ajay and Pintu were also sleeping nearby. Informant woke up. Informant alongwith his wife started searching for the missing daughter. They inquired in the neighbourhood, whereupon one Sri Chand Pandit told the 2 informant that Monika was going towards Bheemgoda alongwith a boy. They also inquired from Vivek Sharma alias Bholu, who was also residing in their neighbourhood. Vivek Sharma alias Bholu said that he used to write letters to Monika. Vivek Sharma pleaded ignorance about the whereabouts of Monika, but indicated that she might have gone alongwith Deepak, who was a sweeper in Municipality. The informant alongwith his family members went to the house of Deepak. His aunt could not say anything about the whereabouts of Deepak. Deepak also did not attend the office of Municipality. Deepak asked one of his friends Babloo to attend to his work in his absence. The informant suspected that his daughter was kidnapped by Deepak and his father Dhani Ram. A report (Ext. Ka-1) was lodged in police station Kotwali to this effect. The same was entered into the GD. Investigation of the case was handed over to SI Inder Singh and subsequently to SI Ram Avtar Sharma and SI Arun Goyal. Investigation officer took the statements of the witnesses, prepared site plan and submitted chargesheet against the accused persons in respect of offences punishable under Sections 363 and 366 of IPC. A supplementary chargesheet was also submitted against accused Deepak in respect of offence punishable under Section 376 of IPC. 3) Monika alongwith accused persons namely, Deepak and Moti were arrested during the investigation. Monika was taken to Medical Officer in the Women’s Hospital at Haridwar on 26.03.1999. Her x-ray was also conducted. When the trial commenced and prosecution 3 opened it’s case, charge for the offences punishable under Section 363 and 366 of IPC was framed against Deepak and Moti on 17.11.1999. Another charge was framed against Deepak on 26.01.2001 in respect of offence punishable under Section 376 of IPC, to which he pleaded not guilty and claimed trial. 4) Eight witnesses namely, PW1 Km. Monika Sharma, PW2 Damodar Prasad, PW3 Dr. R.K. Pandey, PW4 Constable Vijay Singh, PW5 SI Arun Goyal, PW6 SI Inder Singh, PW7 SI Ram Avtar Sharma and PW8 Pradeep Arora were examined on behalf of the prosecution. After the prosecution evidence was closed, incriminating evidence was put to the accused persons under Section 313 of Cr.P.C., in reply to which they said that they were falsely implicated in the case. Accused Deepak said that he married Monika on 10.05.1998, which marriage was registered before the Registrar Marriages, Dehradun. DW1 Nav Ratan Singh was examined in defence. After considering the evidence on record, learned court below exonerated Deepak in respect of charges framed against him giving him benefit of doubt. Co-accused Moti absconded himself. He was declared an absconder and therefore the judgment was not rendered in respect of Moti. Aggrieved against said judgment and order, the State has preferred this Government Appeal. 5) PW1 Monika Sharma said that on 27th / 28th June 1998, at 03:00 A.M., accused Deepak asked her to accompany him otherwise he (accused) will kill her. 4 During those days, PW1 was studying in Class IX in Anandmai Sewa Sadan. PW1 accompanied Deepak. She went alongwith Deepak and Moti to Himachal Pradesh and Chandigarh. PW1 alongwith Deepak stayed in the house of Moti’s in-laws. Thereafter, Moti took them to another village where all of them stayed with Moti’s maternal uncle for 5-6 days. Deepal and Monika came back to Dehradun where they stayed in the house of uncle of Deepak. Thereafter, they came to Saharanpur where they stayed in the house of maternal aunt of Deepak. Both of them stayed there for 2-3 months. Thereafter, they came back to Dehradun where they stayed together for 2-3 months in the house of Deepak’s uncle. From Dehradun they went to Meerut where they stayed together for one month. They came back to Roorkee and stayed in the house of uncle (tau) of Deepak. From Roorkee they went to Jamuna Nagar and stayed there for one month. From Jamuna Nagar they came to Haridwar and thereafter PW1 was sent to Nari Niketan. 6) Although PW1 said that she was sexually assaulted by Deepak during these days, but the evidence is that she was a consenting party to the sex. PW1 consented to accused Deepak for having sex with her. 7) PW2 Damodar Prasad was the father of the victim, who said that the victim’s date of birth was 03.05.1982. PW2 Damodar Prasad also proved the report (Ext. Ka-1). The fact that the victim’s date of birth was 03.05.1982 was not proved on behalf of the prosecution. 5 Had her date of birth been proved, the victim would have been approximately 16 years of age as on the date of occurrence. PW4 Constable Vijay Singh was a formal witness. PW5 SI Arun Goyal, PW6 SI Inder Singh and PW7 SI Ram Avtar Sharma were the Investigating Officers in succession. PW8 Pradeep Arora did not support the prosecution story and was declared hostile. 8) In the absence of any reliable proven document to show that the date of birth of victim was 03.05.1982, the Court had no option but to rely upon the evidence of PW3 Dr. R.K. Pandey, Radiologist, who proved his report (Ext. Ka-2) alongwith x-ray plates (Ext. 1 and Ext. 2) and opined that the age of Monika was 19 years. PW5 SI Arun Goyal said that when the victim was apprehended, she was medically examined and it was found that she was pregnant. 9) Thus, in view of the age ascertained by PW3 Dr. R.K. Pandey, Radiologist, the accused Deepak could not be held guilty of the offences complained of against him, in as much as the age of reckoning for the purpose of Section 363 and 366 of IPC was 18 years and for the purpose of offence punishable under Section 376 of IPC, it was 16 years. In any case, the victim was above 18 years. 10 It is said, at the cost of repetition, that since there was no proven document to show that victim’s date of birth was 03.05.1982, the Court had no option but to fall back upon the opinion of the Radiologist, who said that the 6 victim was 19 years of age. The circumstances indicate that the victim was freely roaming around alongwith accused Deepak, she never objected to his having sexual intercourse with her and whatever she did, the same was done on her own volition. Had the victim been found below 18 years, the accused would have been convicted under Sections 366 and 366 of IPC. Had the victim been found below 16 years, the accused Deepak would have been convicted under Section 376 of IPC, but unfortunately the same never happened. The victim, in any case, was found to be above 18 years of age as on the date of occurrence. 11) The testimony of DW1 Nav Ratan Singh proved to be the death knell in the prosecution story. DW1 said that the marriage between Deepak and Monika was registered in the office of Registrar Marriages, Dehradun on 29.09.1998. Monika married to Deepak on 10.05.1998. According to their own submissions, Monika was aged 20 years and Deepak was aged 22 years as on the date of their marriage. DW1 Nav Ratan Singh proved the copy of marriage certificate (Ext. Kha-1) and copy of registration form (Ext. Kha-2). Thus it is interesting to note that Monika married to Deepak on 10.05.1998, whereas the FIR was lodged by her father in the month of June 1998 much after they solemnized their marriage. Learned trial court has discussed each and every aspect of the evidence offered by the prosecution and held that victim Monika Sharma was a consenting party to the sex. Monika was major as on the date when the FIR was lodged against the accused. 7 Monika herself admitted that she conceived on account of cohabitation with accused Deepak. Monika did not offer any resistance to the moves of the accused and finally Monika and Deepak married each other. 12) This Court is unable to take a view contrary to what was taken by the court below. There appears to be no illegality in the impugned judgment and order passed by the court below. The impugned order requires no interference. The special leave to appeal no. 41 of 2008 moved on behalf of the State is refused. Consequently, the government appeal also fails and the same is dismissed. (U.C. Dhyani, J.) Dt. May 14, 2013. Negi