[2008] 13S.C.R.1

STATE OF H.P.

A v.

SURESH KUMAR @ CHHOTU (Criminal Appeal No. 973 of 2002)

AUGUST 28, 2008 B

[DR. ARIJIT PASAYAT, P. SATHASIVAM AND AFTAB

ALAM, JJ]

Penal. Code, 1860:

ss. 36;3, 368 and 376 - Kidnapping and rape - HELD: c High Court has rightly concluded that accusations were not established and prosecutrix was more than 16 years of age at the time of occurrence - Findings of High Court about age of prosecutrix cannot be said to be without any basis - High Court was justified in its conclusions about the prosecutrix having D accompanied the accused on her own and being a consenting party to the sexual acts.

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 973 bf 2002 t E From the final Judgment and Order dated 5.11.2001 of the High Court of Himachal Pradesh at Shimla in Crl. Appeal No. 507 of 1999

Naresh K. Sharma and Meenakshi Arora for the Appellant

,-1 The Order' of the Court was delivered by F

Dr. ARIJIT PASAYAT, J. Challenge in this appeal is to the judgment of a learned Single Judge of the Himachal Pradesh High Court directing acquittal of the respondent (hereinafter referred to as the 'accused'). Learned Sessions Judge, Kangra G at Dharamshala had found the accused guilty of offences punishable under Sections 363, 366 and 376 of the Indian Penal "

Code, 1860 (in short 'IPC') and sentenced him to undergo rigorous imprisonment for seven years and two years and fine with default stipulation.

Ti;2 prosecution version as unfolded during trial is as fol-

Prosecutrix (PW-2) daughter of Nirmala Devi (PW-1) and J:igar Nath (PW-3) was, on 23.3.1996 present in her house in viiiage Sadwan. The accused and lshwar Dass alias Sheru (who

f3 was a co-accused before the trial court and will be referred to r <is such hereafter) came to her house. Accused asked her to ' . marry him. On her refusal, the accused and the said co-accused t11reatened to kill her brother. They made her to accompany them at the point of a knife and was taken to different houses and

.~ finally to the house of Ashok Kumar (who was also a co-accuse before the trial court and is referred to as such hereafter). From there, she was brought to Kunalpathri temple for performing marriage with the accused. But she refused and the priests also refused to perform the marriage. The accused and the co-ac- :J cused then took the prosecutrix to the Court premises at Dharamshala where she was forced to sign an affidavit regarding soleminazation of her marriage with the accused and such affidavit alongwith affidavit of the. accused tc the same effect were attested by RS.Rana, Advocate (PW-5). She was then E taken back to the house of co-accused Ashok Kumar at Shahpur

where she siayed for five days and during this period, the accused subjected her to sexual intercourse.

When the mother of the prosecutrix (PW-1) returned home from the fields, she found the prosecutrix missing and started F searching for her in the neighbourhood and also at her parents' house and finally reported the matter to the police on 26.3.1996 on the basis of which formal Ex. PWc 1/A was registered at Poe lice Station, Nurpur by AS! Sharif Mohammad (PW-10). The father of the prosecutrix (PW-3) who was, at the ma!erial time, G viorking at Kullu was informed about the occurrence whereupon

!18 returned home: On the liasis of information received, the o::ilice aiongwith PW2 recovered the prosecutrix from the house cf co-accused Ashok Kumar vide memo Ex.P'vV3/A and she vi<; s hor.ded over to PW-2 vide memo Ex PW-/B. The prosecuh tnx •Nas got medically examined and Dr. D.R.Royal (PW12) who

._

examined her issued the MLC Ex.PW-12/B and opined that A the possibility of sexual intercourse qua the prosecutrix could not be ruled out. At the time of medical examination of the prosecutrix, PW12 took in possession the underwear which the prosecutrix was wearing at the relevant time and also collected vagi-

- i nal swab, prepared the slides and after sealing, handed them B over to the police to get them analyzed from the Chemical Ex-- aminer. After arrest, accused was also got medically examined and Dr. Praveen Bhardwaj who examined him vide MLC Ex.PW13/A opined that the accused was capable of performing sexual intercourse. At the time of medical examination, his c underwear was also taken in possession by PW13 and handed over to the police for chemical analysis. As per the report regarding chemical analysis of the aforesaid articles Ex.PX, nothing incriminating was found in the articles so analysed, except the underwear of the prosecutrix which was found stained with D ---! human blood. During the course of the investigation, the police

"'( also took possession of the age certificate Ex.PW14/A of the . prosecutrix and the abstract of the register Ex.PW14/B. On completion of the investigation, a charge sheet under Sections 363, 366, 368 and 376 IPC was submitted by the officer in E charge, Police Station, Nurpur against the accused and his coaccused.

The accused abjured guilt and took the stand that he has been falsely implicated. The co-accused Ashok Kumar was tried

-"'j in respect of a charge under Sections 368 and 109 read with F Section 376 IPC and co-accused lshwar Dass @ Sheru was

charged for offences relatable to Sections 363, 376 read with _.. 34 and Section 109 read with Section 376. _,

In order to establish the accusations, fifteen witnesses were examined .. The accused and the co-accused were examined G under Section 313 of the Code of Criminal Procedure, 1973 (in

).. short 'Code'). Learned Trial Judge acquitted the co-accused of

-1 the charges but convicted the accused and imposed sentences as aforesaid.

A The High Court noted that there was inconsistency in the evidence of the prosecutrix. She appeared to have accompanied the accused of her own accord and the sexual intercourse alleged to have been committed was done with her consent.

The stand of the prosecutrix was that as she was below 16 years B of age, her consent, if any, was of no consequence. The High r Court referred to the evidence of PWs. 1,2,3, and 14 and the documents relied upon i.e. the birth certificate. The High Court noted that those documents apparently were not relatable to the prosecutrix and therefore the date of birth indicated in the c documents could not be that of the prosecutrix. It referred to the evidence of the mother. It was concluded that the documents could not be also relatable to the prosecutrix in view of the statement of the mother about her own age. That being so, the High Court held that the accusations were not established and the

D prosecutrix, as evident from the documents was more than 16 years of age at the time of occurence. \-

In support of the appeal, learned counsel for the appel· r lant-State submitted that the evidence of the prosecutrix ought not to have been rejected. The documentary evidence, though E there appear to be some inconsistencies in the documents as regards the name of the child born, and her caste in a village area should have been considered to be of no consequence.

Learned Amicus Curiae supported the judgment of the

F High Court.

>- We find that the High Court was justified in its conclusions about the prosecutrix having accompanied the accused on her own and being a consenting party to the sexual acts. As rightly .. contended by learned counsel for the State, if the age of the '

G prosecutrix was below 16 years, the consent would be of no consequence. But the High Court's findings as regards the age of the prosecutrix cannot be said to be without any basis. The High Court has analysed the oral evidence and the documen- "' tary evidence to come to a conclusion that the date of birth of

H the prosecutrix as claimed by the prosecution has not been

established. That being so, we find no merit in this appeal which A is accordingly dismissed.

We record our appreciation for the assistance rendered by learned Amicus Curiae.

R.P.

Appeal dismissed.