State of H.P. vs Sunil Kumar

Deepak Gupta, J.—This appeal by the State is directed against the judgment dated 4.9.1999 delivered by the learned Sessions Judge, Sirmaur District at Nahan in Sessions Trial No. 23-ST/7 of 1998 whereby he acquitted the accused of having committed offences punishable under Sections 363, 366 read with Section 376 of the Indian Penal Code.

The prosecution story, in brief, is that the prosecutrix was working in the milk plant in village Rampur. She was residing with her parents in village Manpur Devra. The accused was also working in the milk plant. On 22.5.1997 the prosecutrix did not return home after performing her duties at the milk plant. Therefore, the father of the prosecutrix, PW-7 Kirat Singh, lodged a report Ext.P-9 with the Police Station-Paonta Sahib about the disappearance of his daughter. After two and half months later the prosecutrix was recovered on 6.8.1997 from the residential house of the accused at village Huranwala. Thereafter, the statement of the prosecutrix was recorded. She was got medically examined. On completion of investigation, challan was filed against the accused for having committed the offences aforesaid. He was charged and tried for having committed the aforesaid offences. The learned trial Court acquitted the accused. Hence, the present appeal by the State.

Three grounds weighed with the learned trial Court while acquitting the accused. Firstly, that the age of the prosecutrix had not been proved by the prosecution. Secondly, that the prosecutrix had gone willingly with the accused and had lived with him, which showed that she was a consenting party. Thirdly, that the offence of abduction/kidnapping had taken place in Uttar Pradesh and should have been tried there and the trial Court had no jurisdiction to try the same.

As far as the third ground taken by the learned trial Court is concerned, we are not in agreement with the findings of the learned trial Court. When in the course of the same transaction two or more offences take place then the trial can take place at the Court where any one of the offence has taken place.

Section 220 of the Code of Criminal Procedure provides that if in one series of acts so connected together as to form the same transaction, more than one offence are committed by the same person, he may be charged with and tried at one trial for every such offence. In this case, the accused was charged with having committed either the offences under Sections 363 or 366 and also having committed an offence u/s 376 IPC. Both the charges were inextricably linked together and formed part of the same transaction. In such an eventuality, the Court having jurisdiction over either of the two places where the said offences committed, would have jurisdiction to try the offences. This would be in consonance with Sections 178 and 179 of the Code of Criminal Procedure. Therefore, the learned trial Court was in error in holding that it had no jurisdiction to try the offence u/s 366 IPC.

The first question which arises for decision in this case is what was the age of the prosecutrix at the time of the commission of the offence? The prosecutrix while appearing in the Court in the year 1999 stated that she was 14 years of age, which would mean that at the time of occurrence she was only 12 years old. The prosecutrix was confronted with her statement recorded u/s 161 Cr.P.C. Ext.D-1 wherein she had stated that her age was 16/17 years. The statement of the prosecutrix is also contrary to the case set up by the prosecution itself and it is obvious that the prosecutrix is not telling the truth. The prosecutrix has also stated that she does not know her date of birth since she never attended school. We cannot lose site of the fact that the prosecutrix was employed in the milk plant and it cannot be believed that a minor of 11 or 12 years of age would be employed in the milk plant.

As far as the father of the prosecutrix is concerned, his version is that the prosecutrix was 14 to 15 years of age when she disappeared from the milk plant. He stated that she was working in the milk plant for one year prior to her disappearance. He was also confronted with the F.I.R. lodged at his instance in which the age of the prosecutrix was recorded as 16 years. He also admitted that he belongs to a poor family and that less nutrition and diet is given to his family.

PW-8 Banwari Lal produced the certificate Ext.P-12 based on the Pariwar Register in which the date of birth of the prosecutrix has been recorded as 19th February, 1983. In cross-examination he admitted that the Pariwar Register was prepared in the month of April, 1990 and it has also been recorded in the Pariwar Register that the family of Kirat Singh, father of the prosecutrix, settled in village Manpur Devra in the year 1990. The entry with regard to the family of Kirat Singh has been made in 1990. The witness could not state as to on what basis the entries of birth were recorded in the year 1990. This entry in the Pariwar Register has no evidentiary value whatsoever. It is not clear what is the basis of this entry. The prosecutrix is alleged to have been born in 1983 and therefore, the prosecution should have led some evidence to prove her birth in the year 1983.

Even the medical evidence does not support the case of the prosecution. According to PW-1 who assessed the skeletal age of the prosecutrix on the basis of x-ray examination the prosecutrix was aged between 14 to 16� years. He in cross-examination admitted that fusion of bones depends on climatic conditions, dietary habits and living condition of a person. It is settled law that there can be variation upto two years on either side. PW-13 Dr. H.S. Sodhi also examined the prosecutrix and as per his opinion based on the dental examination of the prosecutrix she could be aged about 15 to 17 years. He also admitted in cross-examination that the determination of age on dental examination is only an approximation. Even if the medical evidence is taken as the gospel truth the prosecutrix was definitely above the age of discretion which is 16 years. In fact, keeping in view the variations which are permissible, it would not be unreasonable to hold that the prosecution has failed to prove that the prosecutrix was below 18 years.

The prosecutrix in her statement stated that she left the milk plant at about 8.30 a.m. and went to Bhure Shah''s Mazar, which is across the river Yamuna in Uttar Pradesh now Uttrakhand. She went alone and nobody went with her. She does not say that it was the accused who asked her to come there. Therefore, she had not left her home or the milk plant on the asking of the accused. It was at the Mazar of Bhure Shah that the prosecutrix met the accused and he asked her to accompany him and she says that she went alongwith him from that place to Ranjowala. She stayed at Ranjowala with the accused for 10 days where the aunt and two cousins of the accused were residing. From Ranjowala the accused and she went to a jungle near Horawal and stayed in a hut. This hut was constructed by the accused. The accused had taken the prosecutrix to Dehradun where they both met a lawyer and wanted that a court marriage should take place. According to the prosecutrix, the lawyer did not agree to this proposal on the ground that the prosecutrix is a minor. Most importantly, the prosecutrix admitted that she did not inform the lawyer that she had been brought by the accused against her wishes. The prosecutrix candidly admitted that during this entire period of more than two months she did not complain to anybody that the accused had brought her forcibly and against her will or that she was subjected to sexual intercourse by the accused without her consent.

From the statement of the prosecutrix itself it is apparent that she had willingly gone with the accused, stayed with him and had sex with him. Therefore, the learned trial Court was right in acquitting the accused. We find no merit in the appeal and the same is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged.