The State of H.P. vs Jagdish Chand and Others

R.B. Misra, J.—The present criminal appeal has come up for consideration after leave to appeal u/s 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment and order dated 14.01.1997, passed by the learned Additional Sessions Judge, Shimla, District Shimla, in Sessions Case No. 32-S/7 of 1992, acquitting the alleged accused under Sections 363, 366A, 376, 342, 368 and 212 of the Indian Penal Code in reference to FIR No. 68 of 1991.

During the course of arguments, it has been brought to our notice that accused-respondent No. 3, Kishori Lal, has died, as such, the criminal appeal against accused-respondent No. 3 is abated.

Prosecution case in brief is that PW-1, complainant, had one son and seven daughters. Victim was 3rd issue of PW-1, who was student of 7th standard. On 07.07.1991, PW-1 and his wife had left their village to visit a temple and the victim was alone at home. Accused No. 1 Jagdish Chand is alleged to have enticed the victim, took her to Khadrala, Rampur and Chirgaon and sexually assaulted her. On return, on 08.07.1991, PW-1 Patia, when could not find his daughter at home, lodged FIR Ex. PW-1/A against the accused No. 1 at Police Station, Jubbal, on 15.07.1991 at about 4:30 p.m. and on search, the victim was recovered. After investigation, the accused persons were charged for the aforesaid offences and the case was committed to the Sessions Court.

In order to prove its case, prosecution examined as many as fourteen witnesses, whereas, accused through their statements u/s 313 Cr.P.C. denied the prosecution case.

PW-1 Patia (father of the victim) in his endeavour to support the prosecution case has stated that he was not present at home when his daughter (victim/prosecutrix) was allegedly taken by the accused-respondent. PW-2 Sant Ram and PW-3 Yog Raj have witnessed the recovery of the victim/prosecutrix. However, PW-3 refused to support the prosecution case. PW-4 Dr. Suman Gupta had examined x-ray films, Ex. PW-4/A-1 to Ex. PW-4/A-8 of the victim/prosecutrix and opined her age between 15 to 16? years. PW-5 Dr. Sunita had medically examined the victim/prosecutrix and had not found any mark of violence on her person.

PW-6 Dr. M.L. Kaushal medically examined the accused-respondent No. 1 and found him capable of sexual intercourse. PW-7 Sher Singh was Secretary of Gram Panchayat Badhal in 1991. PW-8 Yashwant Singh an official of Government High School, Sarot, has stated that the date of birth of the victim/prosecutrix, in accordance with the books of the school, was 15.03.1973. PW-9 Sita Ram Head Constable handed over the case property at the police station. PW-10 Gautam Lal has witnessed the recovery of the victim/prosecutrix. However, he did not say anything against the accused-respondents. PW-11 Poshu Ram has supported the prosecution case to the extent it was expected. PW-12 Lachhman Dass S.I., PW-14 Dharam Dass Head Constable had investigated the case. PW-13 Krishan Bhandari has stated that he had been owner of Bhandari Hotel at Rampur, where accused No. 1 and victim/prosecutrix stayed, as per entry Ex. PW-12/B on 09.07.1991. However, he did not produce the visitors'' book of the hotel of 09.07.1991.

The most peculiar aspect is that the victim/prosecutrix could not be examined and her age could not be known from her statement. However, as per books of the Gram Panchayat and the School, the victim/prosecutrix appears to be of 18 years of age on 07.07.1991, as three years of approximation may occur in radiological assessment of the age of the victim/prosecutrix.

In view of the testimony of PW-4 Dr. Suman Gupta, the age of the victim/prosecutrix at that relevant time was 15 to 16? years and as such on 31.07.1991, the victim''s age was around 17?. As per the testimony of PW-1, Patia (father of the victim/prosecutrix) the victim was his 3rd issue and 4th issue of PW-1 was 21 years of age. Therefore, in any case in July, 1991, the age of the victim was above 18 years.

PW-5 Dr. Sunita did not find any mark of violence on the person of the victim/prosecutrix and it has also been brought to our notice that the victim/prosecutrix had died, therefore, Patia (father of the victim/prosecutrix) married his another daughter with the accused-respondent No. 1, Jagdish Chand.

From the scrutiny of the prosecution witnesses, material on record and the medical evidence, we infer that in any case the age of the victim/prosecutrix was more than 18 years on the day of incident and from the prosecution witnesses, it appears that the victim/prosecutrix was a consenting party and had accompanied the accused-respondents at her own sweet will indifferently free from enticement, as such, being major when she accompanied the accused-respondent No. 1, she could not be said to have been kidnapped or abducted and sexually assaulted against her will. In absence of any injury marks and in view of the testimony of PW-4 it cannot be said that the acts of the accused-respondents were against her consent.

On analysis of the prosecution witness and material on record, learned Sessions Judge has rightly arrived at the finding that the prosecution prosecution has failed to prove its case beyond reasonable doubt. In our considered view also prosecution has failed to bring home the guilt against the accused-respondents. In these circumstances, criminal appeal being devoid of merit is dismissed.