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2018 DIGILAW 510 (HP)

Mast Ram v. State Of Himachal Pradesh

2018-03-29

SURESHWAR THAKUR

body2018
JUDGMENT Sureshwar Thakur, J —The instant appeal stands directed against the impugned judgment, of, 7.11.2006, rendered by the learned Presiding Officer, Fast Track Court, Mandi, District Mandi, H.P., in Sessions trial Nos. 10/2003, 31/2005, whereby he convicted the appellant herein, for his committing an offence punishable under Section 363 of Indian Penal Code (hereinafter referred to as "IPC") also sentenced him as follows:- " .to undergo rigorous imprisonment for 4 (four) years and to pay a fine of Rs. 10, 000/-. In case of default in the payment of fine, the accused/convict shall further undergo imprisonment for one year " 2. Brief facts of the case are that on 11.1.2009 at about 11 a.m. the prosecutrix (PW-2) daughter of Chuhru Ram (PW-3) aged 15 years was going to knitting Centre Dhaneshwari from her house when on the way accused Mast Ram came in a van and asked her to sit in the van but when the prosecutrix refused to do so then she was forcibly taken inside the van by accused Mast Ram under assurance/allurement of marriage with her thereafter the prosecutrix was brought to Tarna Temple Mandi, where accused against her will garlanded the prosecutrix and told her that they have solemnized marriage. The prosecutrix was thereafter taken by accused Mast Ram to village Sharabain to the house of his maternal aunt namely Dharmi Devi and the prosecutrix was kept there during the night. On 12.1.2000 accused Tara Devi alongwith mother of accused Mast Ram came to the house of Dharmi Devi and they forced the prosecutrix to wear the dress of bride and asked the accused Mast Ram to take the prosecutrix to kullu for 4.5 days and thereafter to return to his house. Accused Mast Ram kept the prosecutrix with him for 3 to 4 days as his wife and on 16.1.2000 accused Mast Ram asked the prosecutrix to give telephonic call to her parents and told them that she has solemnized the marriage. Accused Mast Ram brought the prosecutrix back to her house on 21.1.2000 then the prosecutrix disclosed that accused Mast Ram has kidnapped her with intention to solemnize marriage with her and he also committed forcible sexual intercourse with her. The matter was thereafter reported to the police. Accused Mast Ram brought the prosecutrix back to her house on 21.1.2000 then the prosecutrix disclosed that accused Mast Ram has kidnapped her with intention to solemnize marriage with her and he also committed forcible sexual intercourse with her. The matter was thereafter reported to the police. After completing all codal formalities and on conclusion of the investigation into the offence, allegedly committed by the accused persons, challan was prepared and filed in the Court of learned Additional Chief Judicial Magistrate, Sundernagar, who vide order of 28.1.2003 committed the case to the Court of learned Sessions Judge Mandi, H.P., who has assigned the same to the Court of learned Additional Sessions Judge, Mandi and ultimately received by the Court of the Presiding officer, Fast Track Court, Mandi, District Mandi, H.P. 3. The accused persons namely Punnu Ram, Bimla Devi, Raju and Tara Devi stood charged by the learned trial Court for theirs committing offences punishable under Sections 120-B, 363, 366 of IPC, whereas accused Mast Ram stood charged by the learned trial Court, for his committing offences'' punishable under Sections 120-B, 363, 366, 376 of IPC and under Section 5 of Child Marriage Restraint Act, to, which they pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 12 witnesses. On closure of prosecution evidence, the statements of the accused persons under Section 313 of the Code of Criminal Procedure were recorded, wherein, they pleaded innocence and claimed false implication. They chose not to lead any defence evidence. 5. On an appraisal of the evidence on record, the learned trial Court, acquitted accused Punnu Ram, Bimla Devi, Raju and Tara Devi for offence(s) punishable under Sections 120-B, 366/376 of IPC. The learned trial Court also acquitted accused/appellant herein for charges vis--vis offences charged, and, under Section 5 of Child Marriage Restraint Act. However, the learned trial Court convicted, the appellant herein for charge qua an offence punishable under Section 363 of IPC. 6. The learned counsel appearing for the appellant herein, has concertedly and vigorously contended qua the findings of conviction, rendered, for the offence punishable under Section 363 of IPC standing, not based, on a proper appreciation of evidence on record by it, rather theirs standing sequelled by gross mis-appreciation, by it, of the relevant material on record. 6. The learned counsel appearing for the appellant herein, has concertedly and vigorously contended qua the findings of conviction, rendered, for the offence punishable under Section 363 of IPC standing, not based, on a proper appreciation of evidence on record by it, rather theirs standing sequelled by gross mis-appreciation, by it, of the relevant material on record. Hence he contends qua the findings of conviction warranting reversal by this Court in the exercise of its appellate jurisdiction, and, theirs standing replaced by findings of acquittal. 7. The learned Deputy Advocate General has with considerable force and vigor contended qua the findings of conviction recorded by the Court below standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating interference rather theirs meriting vindication. 8. This Court with the able assistance of the learned counsel, on either side, has with studied care and incision, evaluated the entire evidence on record. 9. The prosecution would succeed in sustaining charge against the accused/appellant herein, for, his committing an offence punishable under Section 363 of the IPC, upon its adducing requisite proof, qua, the trite factum (a) of the prosecutrix at the relevant time not holding the capacity to mete consent to the accused; and (b) in case she held the capacity, hers'' not purveying her consent to the accused. 10. It is to be initially gauged, from, the evidence on record, qua the prosecutrix, at the relevant stage, holding or not holding the capacity to mete consent, to the accused. Obviously hence the apposite documentary evidence, revealing the age of the prosecutrix especially at the relevant time, enjoins allusion thereto (a) the best documentary evidence in proof of the age, of the prosecutrix, is, comprised in Ex. PW-5/B, Ex. whereof is the birth certificate of the prosecutrix, (b) AND, also is comprised in the abstract, of Pariwar Register, abstract whereof is borne in Ex. PW-5/A. In both the afore-stated exhibits, the name of one Himavati is occurring, yet in the apposite MLC borne in Ex. PW-4/B, the name of one Hema Devi occurs. The aforesaid incongruity(s) inter-se the reflections borne in Birth certificate, and, in the abstract of Pariwar register, respectively borne in Ex. PW-5/B, and, in Ex. PW-5/A, vis--vis the reflections'' borne in the apposite MLC, and, in FIR, respectively borne in Ex. PW-4/B, and, in Ex. PW-4/B, the name of one Hema Devi occurs. The aforesaid incongruity(s) inter-se the reflections borne in Birth certificate, and, in the abstract of Pariwar register, respectively borne in Ex. PW-5/B, and, in Ex. PW-5/A, vis--vis the reflections'' borne in the apposite MLC, and, in FIR, respectively borne in Ex. PW-4/B, and, in Ex. PW-10/A, conspicuously vis--vis the variant identity of Hema Devi, and, of Himavati, (c) and, more importantly with the aforesaid incongruity(s) remaining un-clarified, by the prosecution nor with the father of the prosecutrix, after, of the aforesaid documents being adduced in evidence, being assayed by the learned PP concerned, to, hence step into the witness box, for clarifying qua both Himavati and Hema Devi, pertaining to the same personality or qua the same person, (d) thereupon the aforesaid pervasive inexplicated incongruity(s) inter-se the identity or personality, of, Hema Devi as reflected in MLC, and, in FIR vis--vis the one reflected, in birth certificate, and, in abstract of pariwar register, does, enable an aura of doubt to seep into the identity of the prosecutrix. Consequently, the aforesaid apposite incongruity(s) inter-se the aforesaid exhibits, clearly and assuredly stems, an inference of the age of Himavati reflected in Pariwar Register, and, in birth certificate being not truthful vis--vis one Hema Devi nor it is apt to conclude, of, the prosecutrix Hema Devi, not at the relevant time hence possessing the relevant capacity, to, mete her consent, if any, to the penal misdemeanor(s) of the accused. 11. Be that as it may, even though with the best documentary evidence afore-stated vis--vis the age of the prosecutrix, as exists on record, is for reasons aforesaid infirm, (a) thereupon the opinion rendered by the Radiologist concerned vis--vis the age of the prosecutrix when hence otherwise is inconsequential, rather assumes significance, thereupon it is apt to allude to the report, of the Radiologist, borne in Ex. PW-8/H. The Radiologist stepped into the witness box, as, PW-8, and, testified in proof of his report comprised in Ex. PW-8/H, wherein the radiological age of the prosecutrix is depicted to be ranging between 15 to 16 years. Since it is mandated in Jaya Mala v. Home Secretary, Govt. PW-8/H. The Radiologist stepped into the witness box, as, PW-8, and, testified in proof of his report comprised in Ex. PW-8/H, wherein the radiological age of the prosecutrix is depicted to be ranging between 15 to 16 years. Since it is mandated in Jaya Mala v. Home Secretary, Govt. of J & K , (1982) AIR(Supreme Court) 1297 (b) that an error of plus minus, two years, being reckonable vis--vis the radiological age of the victim concerned, and, it being also expostulated therein qua the benefit of margin, of two years either way in the apposite radiological age of the victim, being affordable vis--vis the accused. Consequently, when it is well settled that when two opinions upon the radiologist''s report are possible, thereupon the one leaning vis--vis the accused, is, to be opted, whereupon with the radiologist pronouncing the radiological age of the victim, to range between 15 years to 16 years, (c) hence in consonance with the apposite expostulations carried in the judgment supra, qua benefit of two years vis- -vis the upper radiological age of the victim being afforded qua the accused. In sequel by adding 2 years in the upper radiological age of the prosecutrix, thereupon the age of the prosecutrix, is computed beyond 18 years, hence she at the relevant time, held, the capacity to mete consent vis--vis the accused. In aftermath, when she testifies in her crossexamination of the accused, not, exerting influences upon her, rather, when she echoes therein qua hers voluntarily joining the company of the accused, hence the charge under Section 363 of IPC rather founders. 12. For the foregoing reasons, appeal is allowed and the impugned judgment of conviction and sentence, passed by the learned trial Court is unsustainable and as such is set aside. The accused stands acquitted, and, the fine amount, if any, deposited by the accused is ordered to be refunded to him. Bail bonds, if any, furnished by the accused are cancelled and discharged. Send down the records.