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2010 DIGILAW 551 (HP)

STATE OF H. P. v. SANJAY KUMAR

2010-03-20

DEEPAK GUPTA, SANJAY KAROL

body2010
JUDGMENT Deepak Gupta, J.(Oral)-This appeal by the State is directed against the JUDGMENT of the learned Sessions Judge, Shimla, in Sessions trial No.18-S/7 of 1995 dated 28.10.1995 whereby he acquitted the accused of having committed offences punishable under Sections 376, 420, 313 read with Section 34 of the Indian Penal Code. 2. The prosecution story in brief is that the prosecutrix was below 16 years of age in the year 1993. She was a school going girl and the accused committed forcible sexual intercourse with her for the first time in March, 1993. Thereafter, he continued to have sexual intercourse with her for over a period of two months. Sometime in June, 1993 the prosecutrix started vomiting and she was taken to the hospital at Sandasu for check up and then the doctor informed that she was pregnant. On inquiry, the prosecutrix disclosed that she was pregnant because of the intercourse with accused Sanjay Kumar. The mother of the prosecutrix then took the prosecutrix to the house of accused Sanjay Kumar where his father accused Sham Lal was also present. They both promised that Sanjay Kumar would get married to the prosecutrix and as per the prosecution Sham Lal paid Rs.21 as token gift on the engagement. 3. The prosecutrix was thereafter brought to Lady Reading hospital at Shimla where her pregnancy was got terminated without her consent or the consent of her parents. It is also alleged that both the accused entered into an agreement whereby they agreed that Sanjay Kumar accused would marry the prosecutrix. This promise was not fulfilled and finally Sanjay Kumar married some other girl. Thereafter, the prosecutrix made a complaint to the Sub Divisional Judicial Magistrate, Rohru, who ordered that a case be registered. Thereafter, case was registered and investigation done and challan filed against the accused. 4. The first question we have to decide is with regard to the age of the prosecutrix. In the present case admittedly the prosecutrix remained silent for about three months and disclosed the factum of the alleged rape to her mother only after it was discovered that she was pregnant. The prosecutrix does not say that the accused ever threatened her. She was living at her own house with her own mother. If the sexual intercourse was without her consent she would have told her mother about the same immediately. The prosecutrix does not say that the accused ever threatened her. She was living at her own house with her own mother. If the sexual intercourse was without her consent she would have told her mother about the same immediately. The fact, however, is that she repeatedly met Sanjay Kumar and even as per her version she had sexual intercourse with him on many occasions. Thus consent is writ large and it is only the age which is to be determined. 5. The prosecutrix in her statement does not give her own age. The mother Kala Wati, while appearing as PW-2, is also silent about the age of the prosecutrix. PW-3 father of the prosecutrix states that the date of birth of the prosecutrix was 11.10.1978 which would make her below 16 years at the time of the incident. Reliance is also placed on the Panchayat certificate Ext.PW-10/A, in which also the date of birth record is 11.10.1978 and the school leaving certificate in which also the same date is recorded. 6. PW-5 Dr. Mrs. A. Santoshi, has determined the skeletal age of the prosecutrix and according to her opinion the prosecutrix is between 15 to 16½ years of age. She has, however, admitted that there can be a margin of two years on either side. The prosecution has only produced the certificate issued by the Panchayat. PW-10 states that he does not know who made the entries regarding the date of birth of the prosecutrix. He in fact does not even know from which year the register, in which the entries were made, was being maintained. He also admits that he has not brought the complete record and has in fact not brought the register of births and deaths but has only brought part-A of the register from the Panchayat. He also admits that the entry of birth is an estimated entry. In this view of the matter no reliance can be placed on this entry. 7. As far as school leaving certificate is concerned, there is nothing on record to show what was the date filled in when the prosecutrix was got admitted in the school. On the other hand, as opined by PW-4, the age of the prosecutrix could be upto 18½ years. Admittedly, the pregnancy of the prosecutrix was got medically terminated through PW-6. As far as school leaving certificate is concerned, there is nothing on record to show what was the date filled in when the prosecutrix was got admitted in the school. On the other hand, as opined by PW-4, the age of the prosecutrix could be upto 18½ years. Admittedly, the pregnancy of the prosecutrix was got medically terminated through PW-6. In the discharge certificate Ext.PW-3/C the age of the prosecutrix is shown to be over 18 years. Dr. Ritu Sareen has categorically stated that the age was disclosed by the prosecutrix herself. In view of this conflicting evidence, it cannot be said with certainty that the prosecutrix was below 16 years of age. Since consent is writ large and the prosecutrix was over 16 years of age no offence of rape is made out. 8. Next comes the question, as to whether the offence under Section 313 of the Indian Penal Code is made out. As already observed above, PW-6 Dr. Ritu Sareen has in no uncertain terms stated that the pregnancy was terminated at the instance of the prosecutrix and that all the details i.e. parentage, address and age was given by the prosecutrix herself. The prosecutrix also admits that when she came to Shimla her mother joined her on the same day though she came separately. According to the mother they came together. Therefore, the mother was also present when the operation took place because it is apparent from the certificate Ext.PC that the prosecutrix remained admitted in the hospital from 12.6.1993 to 18.6.1993. Thus the termination was got done with the consent of the prosecutrix and her mother. 9. Lastly, coming to the question as to whether any offence under Section 420 is made out. The allegation is that the accused Sanjay Kumar and his father promised to marry the prosecutrix but there was a breach of this promise and Sanjay Kumar married some other lady and as such committed an offence under Section 420 IPC. 10. As far as Sanjay Kumar is concerned, there is no agreement bearing his signature. Other than the oral testimony there is no other material to show that Sanjay ever promised to marry the prosecutrix. In fact, PW-4 Babu Ram, who recorded the alleged compromise, clearly states that only Sham Lal accused and Kanwar Singh, father of the prosecutrix, were present when the compromise was executed. Other than the oral testimony there is no other material to show that Sanjay ever promised to marry the prosecutrix. In fact, PW-4 Babu Ram, who recorded the alleged compromise, clearly states that only Sham Lal accused and Kanwar Singh, father of the prosecutrix, were present when the compromise was executed. No promise of marriage could have been made on behalf of Sanjay Kumar accused since he was already a major. Therefore, no offence under Section 420 IPC is made out. 11. In view of the above discussion we are of the considered opinion that the learned trial Court has rightly acquitted the accused. There is no merit in the appeal. The appeal is accordingly dismissed. Bail bonds furnished by the accused are ordered to be discharged.