IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.212 of 1999 Decided on: 3rd June, 2010 State of H.P …..Appellant. VERSUS Mohammad Sher …..Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the Appellant: Mr.Vivek Singh Thakur, Additional Advocate General with Mr.Rajesh Mandhotra, Dy.Advocate General. For the Respondent: Mr.Mahesh Gupta, Advocate. Deepak Gupta,Judge (Oral) This appeal by the State is directed against the judgement dated 31.12.1998 delivered by the Learned Additional Sessions Judge, Shimla in Sessions Trial No.52- S/7 of 1995 whereby he acquitted the accused of having 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… committed offences punishable under Sections 366 and 376 of the Indian Penal Code. 2. Admittedly, the prosecutrix in this case was more than 18 years of age. The learned Trial Court has held that this is a clear case of consent where the prosecutrix willingly went with the accused and had sex with him. Therefore, we are discussing only that portion of the evidence which is relevant. 3. According to the prosecutrix, on 12.4.1994 she had come to her old school at Dewat. The accused met her there. He told her that her brother had sent him to bring her from the school. He also asked the prosecutrix to collect her certificate from the school so that she could get a job at Baddi. According to the prosecutrix, she refused to go with the accused since her brother had not told this to her. However, the accused pressurized her to accompany him. He told her that her brother would join them at Chopal from where they would catch a bus for Shimla. According to her, she was forcibly brought on foot upto Chharki and little beyond Chharki, they boarded a bus. She could not see her brother in the bus. Despite this, she went with the accused on his assurance that her brother would meet them at Shimla. At Shimla, …3… the brother of the prosecutrix was also not present. Here the accused and another person namely Guljar forcibly made her to sit in a bus bound for Chandigarh. 4. At Chandigarh, she alongwith the accused spent the whole night in the bus stand. Next morning, she was taken to Baddi from Chandigarh. Her brother was also not there. The accused expressed his desire to marry the prosecutrix but she refused to do so. Thereafter, the accused threatened to kill her or to sell her to some Sikhs. One Mohammad Ali also threatened her similarly. She was then taken to the Court. According to the prosecutrix, she did not sign any paper but the accused came back with some papers and told her that their marriage is complete. She was thereafter taken to the Pinjore Garden where photographs were taken. In these photographs Ext.PW1/A and PW1/B, the prosecutrix seems to be happy in the company of the accused. Her explanation is that she was forced to pose in these photographs in this manner. 5. Thereafter, they stayed at the house of some persons for 6-7 days near Nalagarh. From Nalagarh, the accused and the prosecutrix went to Sundernagar where they stayed for two days in Sangam Hotel. Then the …4… accused took the prosecutrix to Mandi to some person’s house and asked her to solemnize the Nikah ceremony with him. Thereafter, on the request of the prosecutrix, the accused took her back to her village and on the way, they spent one night in Sood Dharamshala at Shimla. According to the prosecutrix, it was only after they had travelled to all these places and the prosecutrix was brought back to the village that the accused for the first and only time subjected her to forcible sexual intercourse. Next day she met her brother and mother and told them the whole story. 6. Thereafter, FIR Ext.PQ1/D was lodged with the police and investigation was done. The prosecutrix was got medically examined. The prosecutrix admitted that she knew the accused Mohammad Sher since her childhood. In examination-in-chief, she stated that it was only the accused who had taken her from her school to Chharki but in cross-examination she stated that one other person namely Mohammad Gulzar was also accompanying them. She admitted that her neighbour, Vinod was occupying a seat in the bus which went to Shimla. She denied the suggestion that she had signed any paper or appeared before the SDM, Nalagarh. From …5… the statement of the prosecutrix, it is more than apparent that the prosecutrix lived voluntarily with the accused for about a fortnight. She went with him from Dewat to Chharki, Chharki to Shimla, Shimla to Chandigarh, Chandigarh to Nalagarh, Nalagarh to Sundernagar, Sundernagar to Mandi and Mandi to Shimla and thereafter back to her village. In all these places, they either stayed at the houses of some relatives/friends or in hotels/guest houses. It has also come in evidence that on the way, she met her neighbours also. It is, therefore, more than apparent that the prosecutrix was a consenting party and had willingly gone with the accused. Even if the defence evidence is gone through, it is apparent that on 13.4.1994 the prosecutrix had submitted an affidavit in which she admitted that she had got married to the accused. 7. The SDM, Nalagarh at the relevant time has appeared in the witness box as DW/3. He stated that he attested the affidavit only after the prosecutrix admitted before him that she had signed the affidavit. There is also material on record to show that the wedding of the prosecutrix and the accused was registered in the Maszid at Boileauganj. …6… 8. In view of the aforesaid facts, no case whatsoever is made out against the accused. The appeal being without merit is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. 3rd June, 2010 (Sanjay Karol) (m) Judge