State of H.P. vs Mastan Singh

R.B. Misra, J.—The present Criminal Appeal has come up for adjudication after the grant of leave to appeal u/s 378(3) of the Code of criminal Procedure in reference to judgment dated 4.10.1999, passed by Learned Sessions Judge, Kangra at Dharamshala, H.P., in Sessions Case No. 43-G/VII/98, for the offence u/s 363, 366 and 376 of the Indian Penal Code, acquitting the alleged accused / respondent.

As per prosecution story, PW.3 Seema Kumari daughter of PW.4 Sher Singh and PW.6 Smt. Santosh Kumari was studying in 9th class in the year 1997, allegedly minor was allured by the respondent-accused. Respondent-accused had taken the victim to Ludhiana. On 30.5.1997, when PW.4 Sher Singh, father of the prosecutrix / victim came back to his house from Palampur, and did not find his daughter at home, as such, he went to the police Station for lodging the FIR which was recorded by SI Roop Singh (PW.8). Thereafter, the police party accompanied by PW.4 Sher Singh went to Ludhiana and recovered the girl from the house of one Suresh. On medical examination, the prosecutrix / victim was found habitual of sexual intercourse and was pregnant for 14� to 15 weeks. After investigation, the accused was arrested and charged for the above offences and the case was committed for trial to the Sessions Court.

In order to prove its case, the prosecution has examined as many as 11 prosecution witnesses. Whereas, the accused / respondent through his statement u/s 313 of Cr.P.C., has denied the prosecution case. The accused-respondent, in support of his case, has examined one witness in his defence.

We have scrutinized the prosecution case and materials on record, we find that victim / prosecutrix (PW.3) has herself declared hostile and has not supported the prosecution case. PW.3 victim / prosecutrix has stated that Ashwani Kumar her brother was elder to her by 2 or 3 years. The entry of birth of said Ashwani Kumar has been proved from the statement of DW.1 Smt. Manorma Devi, Head Teacher, Government Primary School, Garli, Ex.D1, according to which the date of birth of Ashwani Kumar was 6.10.1977, as such, when Ashwani Kumar being two years elder to the victim / prosecutrix, then date of birth of the victim / prosecutrix should be in the year 1979-80, then her age would certainly at about 18 years at the time of occurrence.

We have also noticed that victim / prosecutrix on her sweet will spent many days comfortably in the company of accused-respondent and indulge in sexual intercourse and became pregnant and the victim / prosecutrix did not raise any hue and cry despite getting opportunities during the stay and while they were travelling, even then she did not try to disclose the matter to anyone that she was being forcibly taken by the accused-respondent. Further, during the stay at Ludhiana with the respondent-accused, the victim / prosecutrix did not divulge any one that she has been forcibly taken away by the accused-respondent. Dr. Savita Rana who examined the victim / prosecutrix opined that she was habitual of intercourse, therefore, the medical evidence is also not supported the prosecution case.

In the facts and circumstances, the victim / prosecutrix was certainly about 18 years of age, as such, she was the consenting party travelling with the accused-respondent and had been staying with the accused-respondent comfortably, as such, the offence as indicated above, cannot be made out. It has also been brought to our notice during the course of arguments, that now both of them have been solemnized marriage and as a result of their wedlock, they have given birth to three children and they are leading their life comfortably as husband and wife.

In the facts and circumstances and on analysis of the prosecution witnesses as well as materials on record, we are of the considered view that the prosecution has failed to prove its case beyond reasonable doubt and there is no scope of interference in the findings given by learned Sessions Judge. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed.

The bail bonds furnished by the accused- respondent are hereby discharged.