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2013 DIGILAW 121 (HP)

State of Himachal Pradesh v. Naresh Kumar

2013-02-27

DEEPAK GUPTA, KULDIP SINGH

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JUDGMENT Per Deepak Gupta, J. 1. This appeal by the State is directed against the judgement dated 20.08.2007 delivered by the learned Additional Sessions Judge, Mandi, in Sessions trial No. 22/2006 whereby he acquitted the respondent-accused of having committed offences punishable under Sections 363, 366 and 376 IPC. 2. The prosecution story, briefly stated, is that the prosecutrix was a minor girl aged about 15 years. She belongs to a family of Nomadic, whose roots are in Haryana but was residing at the relevant time in Sundernagar for some years. According to the prosecution, the accused, who belongs to district Bijnour in U.P., was working in Kamaksha Sweet Industry, Sundernagar. It is alleged that on 30.07.2006 when the prosecutrix went to answer the call of the nature in the early hours of the morning she was abducted by the accused and forcibly taken away. When the prosecutrix did not return to her house her father and other family members searched for her but could not find her. 3. Finally on 16.08.2006 her father PW-2 Satbir Singh lodged a complaint with the police. The police investigated the matter and came to know that the accused is also missing from Sundernagar since 30.7.2006 and thereafter some police officials accompanied by PW-2 father of the prosecutrix and PW-3 maternal uncle of PW-2 went to the native village of the accused. Neither the accused nor the prosecutrix was found there. According to the prosecution a Naka was laid at Nandpur Hirwali Chowk, near the village of the accused. After some time one girl and a boy alighted from a bus and the girl was identified to be the prosecutrix. The boy was accused Naresh Kumar. The prosecutrix was handed over to her parents and the accused was arrested. Thereafter other investigation was carried out and the prosecutrix was got medically examined. 4. The learned trial Court held that the prosecution has failed to prove that the prosecutrix was below 16 years and further came to the conclusion that the prosecutrix of her own accord had gone with the accused and the sexual acts were consensual in nature and therefore, acquitted the accused. Hence, this appeal by the State. 5. We have heard Shri V.S.Chauhan, learned Additional Advocate General for the State and Shri G.R.Palsra, learned counsel for the respondent. 6. Hence, this appeal by the State. 5. We have heard Shri V.S.Chauhan, learned Additional Advocate General for the State and Shri G.R.Palsra, learned counsel for the respondent. 6. At the outset, we may notice that as far as the accused is concerned he was also a young man aged about 23-24 years. The F.I.R was lodged after the delay of more than a fortnight and in the F.I.R. Ext.PW-2/A lodged at the instance of PW-2 Satbir Singh, father of the prosecutrix, it is alleged that the prosecutrix was taken away by the accused by subterfuge and by promise that he would marry her. In the statement of the father PW-2 or his maternal uncle PW-3 there is virtually no explanation why the complaint was lodged after almost 15 days. 7. Be that as it may, the first question which arises for consideration is as to what was the age of the prosecutrix. According to the prosecution the age of the prosecutrix was 15 years but there is no documentary proof in this regard. The father and the maternal uncle have both stated that she was about 16 years but neither the date nor the year of birth has been given by both of them. Both are totally illiterate. The father has stated that the prosecutrix was born when he was living in Kangra but according to him no entry was made in the Panchayat record. Thus there is no documentary evidence at all. 8. As far as the medical evidence is concerned PW-9 has carried out the ossification test to determine the radiological age of the accused. According to opinion of PW-9 the age of the prosecutrix was between 14 to 16½ years. He has also admitted that this can vary by another two years. Therefore, on the basis of this report it cannot be said that the prosecutrix was below 16 years of age or even below 18 years. 9. As far as the merits of the case are concerned from the statements of the prosecutrix as well as the other witnesses it is apparent that the prosecutrix went with the accused on 30.07.2006. The version of the prosecutrix is that when she went out to answer the call of nature the accused gagged her mouth and forcibly put her inside a vehicle which was driven away. The prosecutrix was recovered on 24th August, 2006 i.e. 25 days later. The version of the prosecutrix is that when she went out to answer the call of nature the accused gagged her mouth and forcibly put her inside a vehicle which was driven away. The prosecutrix was recovered on 24th August, 2006 i.e. 25 days later. She lived with the accused in his village for 25 days. She went from Sundernagar to district Bijnour in U.P and she would have had various opportunities to raise an alarm which she did not do. This clearly indicates that she had gone willingly with the accused. The prosecutrix in her statement has admitted her signatures on an affidavit Ext.DB which also bears a photograph of her and the accused. In this affidavit she has stated that she is 20 years old and has married the accused. The marriage may or may not have taken place legally but the fact remains that the prosecutrix did sign an affidavit in this regard before the Notary Public on 2.8.2006 itself. This also clearly indicates that she had willingly gone with the accused. 10. In view of the fact that the prosecutrix had willingly gone with the accused and stayed with him of her own accord and keeping in view the fact that the prosecution has miserably failed to prove that she was below 18 years of age neither any case under Section 363 nor under Sections 366 & 376 is made out. The appeal is, therefore, dismissed. Bail bonds discharged.