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Himachal Pradesh High Court · body

2016 DIGILAW 1519 (HP)

State of Himachal Pradesh v. Dev Raj

2016-07-28

RAJIV SHARMA, VIVEK SINGH THAKUR

body2016
JUDGMENT : Vivek Singh Thakur, J. Present appeal has been preferred by the State against acquittal of respondent vide judgment dated 19.09.2009 passed by learned Sessions Judge, Kinnaur, Sessions Division at Rampur Bushahr at Rampur in Sessions Trial No. 27 of 2008 in case FIR No. 56 of 2007, registered at Police Station, Bhabanagar, District Kinnaur, H.P. under Sections 363 and 376 of Indian penal Code. 2. Respondent was charge sheeted under Sections 363 and 376 of Indian Penal Code for enticing and taking away PW-8 prosecutrix on 24.08.2007 from lawful guardianship of her father from Tapri and committing rape with prosecutrix at different places during 24.08.2007 to 27.08.2007. 3. As per prosecution story, PW-8 prosecutrix was found missing since morning of 24.08.2007 and could not be traced anywhere by her parents. It is claimed that co-worker of accused-respondent had informed parents of prosecutrix that accused-respondent had taken her away. It is also claimed by PW-1 Rami Devi mother of prosecutrix that she was telephonically informed by prosecutrix that accused-respondent had enticed her away with promise to marry but it was revealed that respondent was already married and having two children and she was in the house of accused-respondent. Parents of prosecutrix had visited native village of respondent in District Kullu but accused-respondent and prosecutrix were not found there. Thereupon, father of prosecutrix (now deceased) had lodged report Ex.PW-1/B bearing No. 27 dated 28.08.2007 at Police Station Banjar District Kullu Ex.PW-1/B suspecting that respondent has kidnapped his minor daughter PW-8 prosecutrix with false assurance to solemnize marriage with her. Prosecutrix was recovered from house of accused-respondent and was brought to Bhabanagar and FIR Ex.PW-1/A was registered at Police Station, Bhabanagar at 5.40 PM on 29.08.2007. 4. After completion of investigation challan was put up in the Court. Accused respondent was charge sheeted under Sections 363 and 376 of Indian Penal Code. 5. PW-8 prosecutrix is victim of offence committed by accused-respondent against her. Therefore statement of PW-8 prosecutrix is primary evidence against accused-respondent. However perusal of statement of PW-8 prosecutrix shatters whole prosecution story. As per her statement, she was called by accused-respondent at Tapri on 22.08.2007 and she went to Tapri on 23.08.2007 and stayed with her parents on that day. On next day, accused-respondent had met her at Tapri who had taken her to Rampur by telling that he will marry her. As per her statement, she was called by accused-respondent at Tapri on 22.08.2007 and she went to Tapri on 23.08.2007 and stayed with her parents on that day. On next day, accused-respondent had met her at Tapri who had taken her to Rampur by telling that he will marry her. After staying for one night at Rampur they stayed at Ani on second day in house of maternal uncle of accused respondent. On third day i.e. 26.08.2007 they went to Village Bathar i.e. native place of accused respondent/ prosecutrix came to know that accused-respondent is already married. On reaching house of accused-respondent prosecutrix came to know that accused –respondent is already married whereas accused-respondent was claiming himself to be unmarried. However, prosecutrix has specifically stated that accused-respondent had not committed any bad act with her when she remained with him. She was declared hostile and subjected to cross-examination by Public Prosecutor but during cross- examination she has again denied that accused respondent had committed bad act with her during period since 24.08.2007 to 27.08.2007. She has admitted that she had identified different places of her stay with respondent. During cross examination on behalf of accused-respondent she had admitted that her sister Hira Devi is three years elder to her. She had further admitted that distance between Shango to Tapri is about 50 Kms., from Tapri to Rampur is about 70 Km and from Rampur to Bathar is more than 100 Km. 6. PW-8 prosecutrix was medically examined by PW-10 Dr. Sangeeta Uppal who had opined on the basis of physical examination and chemical examiners' report that possibility of rape could not be ruled out during period 24.08.2007 to 27.08.2007. However, said opinion is of no relevance as PW-8 prosecutrix has denied committing any bad act with her by accused respondent during this period. Therefore, there is no evidence on record to infer that accused respondent had committed an offence under Section 376 of Indian Penal Code as alleged. 7. So far as charge under Section 363 of Indian Penal Code is concerned, conduct and age of PW-8 prosecutrix is relevant to decide culpability of accused-respondent. So far as conduct of PW-8 prosecutrix is concerned, from evidence it is evident that she had left village Shango and reached Tapri to meet accused-respondent after traveling 50 Kms. 7. So far as charge under Section 363 of Indian Penal Code is concerned, conduct and age of PW-8 prosecutrix is relevant to decide culpability of accused-respondent. So far as conduct of PW-8 prosecutrix is concerned, from evidence it is evident that she had left village Shango and reached Tapri to meet accused-respondent after traveling 50 Kms. and thereafter she was accompanying him for a distance of 170 (70 + 100) Kms., staying with him at different places, travelling in public transport with her free will and consent. It appears from the statement of PW-1 Rami Devi mother of prosecutrix PW-2 Bhajan Dev brother-in-law (Jija) of prosecutrix, PW-3 Hira Devi sister of prosecutrix and PW-4 Bharat Bhushan cousin of prosecutrix that leaving of house by PW-8 prosecutrix with her consent was in their knowledge. Therefore in the aforesaid facts and circumstance, conduct of leaving her village Shango by prosecutrix and traveling 50 kms. to Tapri to meet respondent and next day leaving parents house, staying with respondent at Rampur after traveling 70kms.and thereafter traveling 170 kms. to the native village of respondent after halting for night at Ani on the way reflects that she was accompanying respondent with her free will and consent. However, consent will be immaterial in case of prosecutrix is proved to be under 18 years of age. 8. PW-1 has admitted that no witness had informed her that accused-respondent had enticed away her daughter. She has deposed about telephonic call of prosecutrix and has stated that her daughter was not prepared to reside with accused-respondent as respondent accused was already married and having two children from first wife. PW-2 Bhajan Dev has stated that he cannot say that prosecutrix had gone voluntarily or as a result of enticing by respondent. PW-3 Hira Devi sister of prosecutrix was also declared hostile when she deposed that she did not ask her sister (prosecutrix) as to where she had been and who had taken her away. However, in cross- examination she has admitted that she had informed police that respondent had enticed away her sister for purpose of marriage and had committed sexual intercourse with her But in cross examination she has stated that her mother had informed her that respondent had enticed away prosecutrix. PW-4 Bharat Bhushan has also deposed similarly. PW-4 has not lent any support to prosecution story and was declared hostile. 9. PW-4 Bharat Bhushan has also deposed similarly. PW-4 has not lent any support to prosecution story and was declared hostile. 9. For proving age of prosecutrix, prosecution has relied upon date of birth certificate Ex. PW-5/A and copy of Parivar Register PW-5/B indicating date of birth of prosecutrix as 19.06.1992 by producing these document through PW-5 Prem Lal Kashyap, Secretary Gram Panchayat Kotgaon. But date of birth certificate has become doubtful as PW-5 Prem Lal Kashyap has admitted that entries in birth register were made on the basis of family registered and whose instance entry of birth was incorporated has not been mentioned in Parivar register. 10. PW-11 Dr. Ashwani Kumar Tomar had examined PW-8 prosecutrix for determining her estimated age after conducting her X-Ray. As per him age of prosecutrix was between 14½ to 15½ years. However, he has admitted that his observations are based on study conducted on Punjabi girl and there may be variation in Punjabi girl and Pahari girl. PW-3 Hira Devi is elder sister of prosecutrix. She has stated her age to be 23 years at the time of deposition in court on 21.04.2009. PW-1 mother of PW-8 prosecutrix has stated that PW-8 prosecutrix is younger to Hira Devi by 3-4 years. PW-2 Bhajan Dev has also admitted that age of his wife i.e. PW-3 Hira Devi is 24-25 years in March, 2009 and PW-8 prosecutrix is younger by Hira Devi by four years. Family members are best persons to say about age of prosecutrix particularly when PW-3 Hira Devi was unable to deny that date of birth was not correctly reported to Gram Panchayat and same was reported by guess work. 11. Entries in birth register and Parivar Register are doubtful and therefore certificate Ex. PW-5/A and copy of Parivar register Ex. PW-5/B cannot be treated as a reliable evidence for determining age of prosecutrix. Opinion of PW-11 Dr. Ashwani Kumar Tomar is based upon study of Punjabi girl. In view of his admission his estimate of age of prosecutrix is neither conclusive nor reliable. Moreover, age estimation on the basis of Radiologist is also not conclusive proof of age of a person and it is also accepted principle that age estimated by Radiologist may have variation of 2 to 3 years. Therefore, age of prosecutrix determined by Radiologist may vary upto 18 ½ years. Moreover, age estimation on the basis of Radiologist is also not conclusive proof of age of a person and it is also accepted principle that age estimated by Radiologist may have variation of 2 to 3 years. Therefore, age of prosecutrix determined by Radiologist may vary upto 18 ½ years. On the basis of statements of PW-1, PW-2 and PW-3 age of prosecutrix comes to be about 20 years in the year, 2009 and therefore, it can be inferred that at the time of incident in the year, 2007 prosecutrix was about 18 years of age. In view of this, it cannot be said that prosecution has proved beyond reasonable doubt that respondent had committed an offence under Section 363 of Indian Penal Code. 12. On the basis of evidence, it can safely be held that learned trial Court has rightly concluded that offence under Sections 363 and 376 of Indian Penal Code is not made out against accused. There is no perversity and infirmity in finding returned by the trial Court. 13. The present appeal, devoid of any merit, is dismissed, as also pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of the Court below be sent back immediately.