CRIMINAL APPEAL 245 of 2000 on 23 December 1999

1

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 245 of 2000Decided on December 6, 2010

________________________________________________________________

State of H.P.

Versus

…Appellant.

Gian Chand

...Respondent.

CoramThe 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.RajinderDogra, Addl. Advocate General.

For the respondent:

Mr. Neeraj Sharma, vice counsel.

Justice Sanjay Karol,J.

For an offence, which is alleged to have been committed on 31.12.1998, accused was put to trial. In terms of judgment dated 23.12.1999 passed by Additional Sessions Judge, Shimla, in Sessions Trial No. 7-S/7 of 1999, titled as State of H.P. vs. Gian Chand, accused stands acquitted of the charged offence.

2. It is the case of the prosecution that prosecutrix was studying in the Government High School, Kuthar. Sangita (PW.9) was her classmate. Together they would walk to the school from the village. As usual On 31.12.1998 the prosecutrix was on way to her school. At about 12.30 P.M. while she was returning home alone accused who was accompanied with Boby and Babloo met her at village Thoth. There accused asked her to come behind the bushes and the boys remained on the path. Accused asked the prosecutrix to get herself photographed with him and also write a letter addressed to him. At about 4.00 P.M. Smt.Sangita Devi (PW.9) also noticed the prosecutrix in the company of the accused. Thereafter, accused took the prosecutrix to the house of his sister at village Sharauntha in Sirmour District and through Boby sent a message to his house that the accused and the prosecutrix had solemnized their marriage. Accused then took the prosecutrix to his house in village Mundu. There accused slept with the prosecutrix and subjected her to sexual intercourse against her will. In the morning, accused asked the prosecutrix to wash her clothes and wear new clothes given to her. On 3.1.1999, itself Usha (PW.7), mother of the prosecutrix enquired about the whereabouts of the prosecutrix and was told by PW.9 that she had seen the prosecutrix in the company of the accused. Usha (PW.7) in turn narrated the incident to her husband Hari Singh (PW.6), who got the matter reported vide report (Ex.PW.6/A) to the police at Police Post, Deha, on the basis of which FIR No.4 /1999 dated 3.1.1999 (Ex.PW.5/A) was registered at Police Station, Theog, under Sections 363 and 366 read with Section 34 IPC.

3. Police commenced investigation. Prosecutrix was recovered from village Mundu and handed over to her father. She was got medically examined through Doctor Seema (PW.2), who issued MLC (Ex.PW.2/B), after examining the report of the Chemical Examiner (Ex.PW.2/A).

4. For determining the radiological age of the prosecutrix, X-ray was conducted and report (Ex.PW.2/C) issued by the doctor taken on record. Birth certificate (Ex.PW.4/A) issued by Smt.Shakti Kapoor (PW.4), Head Mistress, Government High School, Kuthar was taken by the police. Abstract of Parivar Register (Ex.PW.11/B) and birth certificate (Ex.PW.11/A) and on the basis of Parivar Register, issued by Sh.Narinder Lal (PW.11), Secretary Gram Panchayat, Kuthar, were also taken by the police. Accused was medically examined by doctor (PW.1), who issued MLC (Ex.PW.1/B). With the completion of investigation, challan was presented in the Court for trial.

5. Accused was charged for having committed offence punishable under Sections 363, 366 and 376 IPC, to which he did not plead guilty and claimed trial.

6. In order to prove its case, the prosecution examined 12 witnesses and statement of the accused under Section 313 Cr.P.C. was also recorded.

7. Court below acquitted the accused of the charged offence, hence the present appeal.

8. As per Dr. Seema (PW.2), on the date of medical examination of the prosecutrix she found her age to be between 13-15 years. She admits that margin of two years is permissible. It is a settled position of law that benefit of doubt is to be given to the accused. According to the doctor, no injury marks were found on the body of the prosecutrix and the last coitus might have been taken place one week prior to her examination which was on 4.1.1999. This itself renders the prosecution story that prosecutrix was subjected to sexual intercourse on 3.1.1999/4.1.1999 to be doubtful.

9. Be that as it may be, in our considered view prosecution has failed to prove that as on the date of the alleged offence, prosecutrix was less than 16 years of age. According to Hari Singh (PW.6), age of the prosecutrix on 31.1.1999 was 14 years. In Court prosecutrix does not disclose her exact date of birth while taking oath she simply states her age to be 15 years. Birth certificate (Ex.PW.11/A) and abstract of Parivar Register (Ex.PW.11/B) proved by PW.11 do not help the prosecution at all. We find the register not to be maintained properly. It is certainly not an authentic record maintained by the authorities. There are overwritings and cuttings which are not even endorsed/ initiated by the officers who got entries recorded or source of entry therein is also not stated therein. The certificate (Ex.PW.4/A) issued by the school authorities is not based on the register maintained under the Births and Deaths Registration Act. PW.4 Smt.Shakti Kapoor, Principal of the school, admits that entries made in the admission register are on the basis of the certificate issued by the Primary School. Now this record of Primary School has not been placed on record. Thus, it cannot be said that the prosecution has been able to prove its case with regard to the age of the prosecution.

10. According to PW.9, she had noticed the prosecutrix to be in the company of the accused. Importantly, she does not state that prosecutrix appeared to be under any threat or fear. 11. It is a settled position of law that version of the prosecutrix needs no corroboration and if it inspires confidence, same can be relied upon to prove the guilt to the accused.

12. No doubt, in examination-in-chief, prosecutrix has narrated the prosecution story, but however, in cross-examination, she categorically admits that “it is correct that I went with the accused with an intention to marry him”. She further admits that she remained with the accused at the place where she was photographed for four hours. She further admits that accused had proclaimed that both were married. She further admits to have written a letter, though on asking of the accused, stating that he should not think that she had forgotten him. No doubt she states that accused raped her in the house of his sister but importantly, she does not state that there she was under any threat, fear or wrongful constraint. She admits to have openly walked in broad day light with the accused from place to place. To our mind, she willingly went with the accused. She admits to have accompanied the accused with an intent to marry him. Accused had declared both of them to be married. Obviously it cannot be said that prosecutrix was kidnapped by the accused from the lawful guardianship of her guardian with an intent that she would be compelled to marry against her wishes or seduced to have illicit intercourse with the accused.

Ratio decidendi

13. To our mind, proposal of marriage was not acceptable to the parents and therefore, false complaint was filed with the police and only when custody of the prosecutrix was handed over to her parents, there was change of mind. Importantly, mother of the prosecutrix (PW.7) admits that she was informed by (PW.9) that prosecutrix had fled away with the accused. Thus to our mind, no case against the accused is made out.

14. The accused has 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 the 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 6, 2010

(Purohit)

(Sanjay Karol)

Judge