CR.A/633/2000 on 29 December 2011

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 633 of 2000 Decided on December 29, 2010 __________________________________________________________ State of H.P. …Appellant. Versus Ram Pal & Others ...Respondents.

Coram

The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. ¹Whether approved for reporting? No. For the appellant: Mr. R.K.Sharma, Senior Addl. Advocate General, with Mr.Rajinder Dogra, Addl. Advocate General. For Respondents No.1 and 4: Mr.Neeraj Sharma, Advocate. For Respondents No.2 and 6: Mr.Rajesh Rakesh Raghuvanshi, Advocate. For Respondents No.3 and 5: Mr.B.S.Ranjan, Advocate. __________________________________________________________ Justice Sanjay Karol,J

(oral)

.

For an offence, which is alleged to have been committed on 25.7.1992, accused were put to trial. In terms of judgment dated 18.1.2000 passed by Additional Sessions Judge, Shimla, H.P., in Sessions Trial No.20-S/7 of 1996, titled as State of H.P. vs. Ram Pal and others, accused stand acquitted of the charged offences.

2. It is the case of the prosecution that prosecutrix (PW.3), daughter of Sh.Ranjor Singh (PW.2)

used to live with her Uncle Fina Dass at Batwari. Ranjor Singh used to work as a Carpenter in village Dhuma-dhar. Certain negotiations were going on between accused Jehar Singh and parents of the prosecutrix with regard to her marriage with accused Ram Pal. Accused Ram Pal and Jehar Singh approached Ranjor Singh for giving hand of his daughter which proposal was not acceptable to him. In the night intervening 29/30.7.1992, accused kidnapped the prosecutrix and forcibly contracted her marriage with accused Ram Pal. Surinder, brother of the prosecutrix was however taken into confidence. He was present at the time of solemnization of marriage which took place in a Temple. After the marriage, couple took blessings of Fina Ram. Marriage was not acceptable to the father, therefore he reported the matter to the police vide complaint (Ex.PW.2/B). On the basis of said complaint FIR No.167/1992 dated 25.7.1992 (Ex.PW.2/A) was registered with Police Station, Rohru, under Sections 363 and 366 of the Indian Penal Code. PW.10 Sh.K.S.Guleria, Dy.S.P. and Sub-Inspector Anant Ram investigated the matter. Prosecutrix was recovered from the custody of the accused and handed over to her father. Prosecutrix was got medically examined through Dr.Renu Sharma (PW.6), who issued MLC (Ex.PW.6/A). In order to determine the radiological age of the prosecutrix, Dr.B.K. Lakhanpal (PW.5) medically examined the prosecutrix and on the basis of X-ray examination issued report (Ex.PW.5/B). Doctor opined her age to be between 14 to 16 years. To the same effect report (Ex.PW.7/B) of Dr.Usha Sharma (PW.7), who also medically examined the prosecutrix was obtained. Accused No.1 was medically examined through Doctor P.C.Gupta (PW.8), who issued MLC (Ex.PW.8/A). Investigation revealed that after solemnization of marriage prosecutrix was subjected to sexual intercourse without her consent and will. With the completion of investigation, challan was presented in the Court for trial.

3. Accused Ram Pal was charged of having committed offences punishable under Sections 363, 366 and 376 IPC and remaining accused persons were charged of having committed offences punishable under Sections 363, 366 and 109 IPC, to which they did not plead guilty and claimed trial.

4. In order to prove its case, prosecution examined 11 witnesses and statements of the accused under Section 313 Cr.P.C. were also recorded.

5. Court below acquitted the accused of the charged offences, hence the present appeal.

6. Prosecutrix was medically examined by Dr.Renu Sharma (PW.6), who found no marks of injury on the body of the prosecutrix. She was subjected to sexual intercourse.

7. In order to determine the radiological age and dental age prosecutrix was examined by Dr.Usha Sharma (PW.7) and Dr.B.K.Lakhanpal (PW.5). Both have opined the age of the prosecutrix to be between 14 to 16 years. Medical examination took place immediately after the alleged offence. Experts opine that there can be margin of error by 2 years. It is a settled position of law that benefit of doubt, on this count, is to be given to the accused. From the medical opinion on record, it cannot be said that as on the date of the alleged offence prosecutrix was below 18 years of age. That apart, even though in her own statement prosecutrix initially revealed her age to be of 14 years but subsequently corrected herself by stating that she was more than 20 years which fact was disclosed by her to police at Una.

8. To prove offence under Sections 363 and 366 IPC, prosecution has relied upon the testimonies of the prosecutrix, her father (PW.2) and mother (PW.3). We find statements of the parents not to inspire confidence. In fact, their statements stand contradicted by the version given by the prosecutrix in Court. She admits to have been married to accused Ram Pal in a Temple at Seema. According to her, marriage was solemnized in the presence of 50 persons and feast was also arranged for them. She admits to have had the blessings of the elders in the family. She also admits to have filed an affidavit before the police acknowledging that she was married with accused Ram Pal. No doubt, she states that marriage was solemnized against her will and consent, but however, this part of her testimony, to our mind does not inspire confidence. Marriage took place in broad day light in the presence of several persons. Thereafter she admits to have lived with the accused as her husband at different places. Most importantly, she acknowledges the presence of her brother Surinder and cousin Bittu at the time of marriage. They have not been examined. Obviously, marriage was not acceptable to her mother as she had wanted the prosecutrix to get married to her brother. It has come on record that both the natural parents of the prosecutrix had remained themselves with different persons. They were both married twice. Prosecutrix is not born through PW.3. Even the mother admits that prosecutrix was living with Fina Dass and not with them. Now this gentleman has not been examined in Court. Marriage obviously took place with the consent of the prosecutrix and the other persons. She admits that she was treated nicely by the accused persons. She further admits to have made a statement before the police that she was married with accused Ram Pal. Thus, we find that no case as alleged by the prosecution is made out. It cannot be said that prosecutrix was removed from the lawful guardianship of her parents or that she was compelled to marry accused Ram Pal without her wishes or that she was subjected to sexual intercourse without her consent by accused Ram Pal.

9. Accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.

(R.B. Misra)

Judge

December 29, 2010

(Sanjay Karol) (Purohit)

Judge