R.B. Misra, J.@mdashThe 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 has been granted in reference to judgment dated 30.01.1997, passed by Learned Additional Sessions Judge, Sirmour District at Nahan, H.P., in Sessions Trial No. 8-N/7 of 1995/94, under Sections 363, 366 and 376 read with Section 34 of the Indian Penal Code, in reference to case FIR No. 19/93, acquitting the alleged accused/respondents.
2. The prosecution case is that the victim/prosecutrix (name not given) was allured by one Vidya Devi to get her married with accused Neeta Ram and she was further allured by accused Vidya Devi that she shall be kept nicely after marriage, and in absence of her parents, the victim/prosecutrix was taken to the place of accused, where she was stayed for one night and was sexually assaulted. The father of the victim/prosecutrix, namely, Ran Singh, gathered information by one Tulsi Ram (PW.1) that he has seen the victim/prosecutrix, on 9.2.1993, going with accused Neeta Ram to the place of Sohan Singh and Vidya Devi. On this information, Ran Singh, went to the house of accused Sohan Singh and asked him about his daughter, who told the complainant (PW.10) that his daughter has been sent to Sarahan ''Ser-Ki-Bag'' for her marriage with accused Neeta Ram. Accordingly, case FIR No. 19/93 was registered in Police Station Renuka Ji. The victim/prosecutrix was recovered from the residential house of accused Neeta Ram on 12.2.1993. She was medically examined by doctor Pratibha Sood (PW.3) on 13.2.1993 in District Hospital, Nahan, who issued MLC Ex.PC. Accused Neeta Ram was also medically examined by Dr. Birbal Viz (PW.4), Medical Officer, R.H. Dadahu.
3. After investigation, the accused were arrested and charged for the offence under Sections 363, 366 and 376 read with Section 34 the Indian Penal Code and the case was committed for Sessions Trial. In order to prove its case, the prosecution has examined as many as 13 prosecution witnesses. Whereas, the accused through their statement u/s 313 of Cr.P.C., have shown their innocence and denied the prosecution case.
4. On scrutiny of the prosecution witnesses and material on record, we notice that PW.1 is the most material independent eye witness of the prosecution, from whom Ran Singh (PW.10) father of the victim/prosecutrix, gathered information. However, Tulsi Ram (PW.1), has not supported the prosecution case and subsequently was declared hostile.
5. PW.2 Ratti Ram, the then Secretary Gram Panchayat, Ghaton, Tehsil Renuka Ji, has endeavour to prove the date of birth of the victim/prosecutrix, on the basis of family register, and according to the entry made in the family register, the date of birth of the victim/prosecutrix was shown as 30.8.1977.
6. PW.3 Dr. Prathiba Sood, Senior Medical Officer, District Hospital, Nahan, medically examined the victim/prosecutrix (PW.11) and observed as under:
1. The clothes were got changed by prosecutrix. I observed no mark of violence on the body. The last mensuration period was about 4 days back. The pubic hairs were present and the axillary hairs present.
2. On examination of vagina, the vagina admitted two fingers easily and was well relaxed. Hymen was present. Hymen carunculae was present. There were no marks of injuries on the genitals. Uterus was retroverted. The lulliprous and the forenices were free having no infection.
3. Perspectual examination showed bleeding. It is mensurational os. Pad of 6 hours seen bleeding. Vaginal smear was not taken as she was under menses.
On medical examination PW.3 has opined that the victim/prosecutrix was habitual of sexual intercourse.
7. PW.4 Dr. Birbal Viz, the then Senior Medical Officer at Referral Hospital, Dadahu, has medically examined accused Neeta Ram on 13.2.1993. On examination, accused Neeta Ram was found fit for sexual intercourse.
8. PW.5 Dr. H.K. Pant was posted as Radiologist at District Hospital, Nahan, has examined the X-ray films of the victim/prosecutrix and found the skeleton age of the prosecutrix to be within 14-15 years.
9. PW.6 Meen Singh was posted as Constable, General Duty in police station, Renuka Ji. PW.6 has stated that on 13.2.1993, he got accused Neeta Ram medically examined at Referral Hospital, Dadahu. He has also received a sealed parcel from the Medical Officer, which was handed over by him to MHC Bhim Singh (PW.7).
10. PW.7 Bhim Singh has stated that on the statement of Ran Singh (PW.10), he lodged FIR Ex.PF on 11.2.1993. PW.8 Ramesh Kumar has stated that on 4.3.1993 Bhim Singh MHC (PW.7) handed over two sealed parcels to him which he deposited with the Chemical Examiner. PW.9 Rajesh Dhirmani, was posted as Inspector/SHO Police Station, Renuka Ji, during the year 1993. This witness recorded the statement of Dr.Prathibha Sood (PW.3) and on completion of the investigation prepared the challan.
11. PW.10 Ran Singh, father of the victim/prosecutrix has endeavour to support the prosecution case, has stated that he has one daughter and three sons and the age of his daughter is about 18 years, she was 14 years of age at the time of occurrence and that about 3 years back his daughter was alone in the house, as he had gone with his wife to Naya Pinjore and his sons were at Dogri and when he came back, he found his daughter (PW.11) missing, however, he came to know from Tulsi Ram (PW.1) that her daughter has been taken by accused Vidya Devi to the house of Sohan Singh. On approaching to the house of accused Sohan Singh, Ran Singh (PW.10) came to know that victim/prosecutrix has been taken to Sarahan Ser-Ki-Banah for her marriage with accused Neeta Ram. However, an endeavour was made to search the victim/prosecutrix and admittedly, she was traced out on 12.2.1993 from the house of accused Neeta Ram. PW.10 Ran Singh has further stated that marriage of his daughter was done without his consent, therefore, he reported the matter to the police and after registration of the case police went to village Ser-Ki-Banah with the witnesses and raided the house of accused Neeta Ram, where her daughter victim/prosecutrix was found sitting in the courtyard and that she was handed over to him.
In cross-examination this witness has stated that his daughter told him that accused took her away from the home by giving allurement of giving good food and clothing and he was also informed by his daughter that accused Neeta Ram committed rape on her. In cross-examination PW.10 has further stated that Tulsi Ram (PW.1) told him about taking of victim/prosecutrix by accused at evening time and accused Sohan Singh was also in the village Mandoli when victim/prosecutrix was taken by the accused. PW.10 has further stated in his cross-examination that he did not go to the house of accused Sohan Singh personally and he sent his son to his house and that Sohan Singh is not in visiting terms with him and at the house of accused Neeta Ram, his son, wife and his parents were present and accused Neeta Ram was not there.
12. PW.11 (victim/prosecutrix) in support of the prosecution case has narrated that on 7.2.1993, at about 3.00 P.M., accused Sohan Singh and Vidya Devi, came to her house and told that they want to marry her in a good family where she will get good food and clothing and asked her to company them and on this she accompanied the accused because she was influenced by their talk and thereafter, accused Sohan Singh remained at Mandoli and she was sent to Dongi with accused Vidya Devi, where accused Neeta Ram had also come and she was asked to marry accused Neeta Ram and thereafter she alongwith accused Neeta Ram and Vidya Devi, went to Banah-Ki-Ser and in the night she slept in the room of accused Neeta Ram, where she was sexually assaulted by accused against her consent. However, according to PW.11, she had fallen ill and changed her clothes because she experienced mensuration and she was taken by her father and the police to her village and at Banah-Ki-Ser she produced her clothes, e.g., shirt Ex.P1 and Salwar Ex.P2 to the police.
In cross-examination PW.11 has admitted that she alongwith accused proceeded towards Mandoli through village Kolwa and stayed at village Dongi for one night. She has further admitted that due to some ailment accused Sohan Lal could not walk. PW.11 has further stated that she told the police regarding the names of Ganga Ram and Somati, that they also accompanied her when she was taken away from her home and that Ganga Ram and Somati asked her to go to the house of accused Neeta Ram. PW.11 has further admitted that wife of accused Sohan Singh is her first cousin and accused Neeta Ram is brother of accused Sohan Singh. PW.11 has further admitted that children, wife and parents of accused Neeta Ram used to live with him in the same village at Banah-Ki-Ser, and there 2-3 houses near the house of accused Neeta Ram. In cross-examination PW.11 has further stated that when she was raped she did not raise any hue and cry.
13. PW.12 Heera Singh was also material prosecution witness but he was declared hostile. PW.13 Dil Bag Singh was posted as SHO, Police Station, Renuka Ji, during the year 1993, has stated that he visited Banah on 12.2.1993 and recovered the victim/prosecutrix from the house of accused Neeta Ram and handed over the prosecutrix to her father Ran Singh (PW.10).
In cross-examination PW.13 has stated that the name of accused Neeta Ram has been omitted to mention in the FIR. As per testimony of PW.13, it reveals that there were 14-15 houses in village Banah-Ki-Ser. It was also indicated by PW.13 that in the house of accused Neeta Ram, his wife, children and parents were also residing. PW.13 has also indicated in cross-examination that at the time of raid accused Neeta Ram was not in the village Banah-Ki-Ser when he went there on 12.2.1993. According to PW.13, there were 30-40 houses in village Ghaton and S/Sh. Mohan Lal and Amar Singh also saw the victim/prosecutrix with accused Vidya Devi and Sohan Singh. In cross-examination PW.13 has changed his version and has stated that he did not see accused Sohan Singh and Vidya Devi in the house of Neeta Ram on the day when he visited the village of accused Neeta Ram.
14. On analysis of the prosecution witnesses and material on record, we notice that the victim/prosecutrix was taken on 7.2.1993 firstly by accused Vidya Devi to the house of accused Sohan Singh and thereafter to the place of accused Neeta Ram and report was lodged on 11.2.1993 at about 2.30 P.M. Admittedly, the victim/prosecutrix (PW.11) did not depose that she was kidnapped by anyone. As per prosecution, there were 30-40 houses in village Ghaton, but none of them observed PW.11 (victim/prosecutrix) being taken away. Tulsi Ram (PW.1) had seen the accused being taken away by accused Vidya Devi, but has not supported the prosecution case. Ran Singh (PW.10) did not go to the house of accused Sohan Singh personally. He sent his son which is a clear improvement of the version given by him to the police in the FIR Ex.PF. Son of Ran Singh (PW.10) was also not produced and examined. Ran Singh (PW.10) admitted that he was not in visiting terms with accused Sohan Singh. The victim/prosecutrix in her cross-examination, has introduced names of Ganga Ram and Somti by deposing that they were also with her but both of them are neither accused nor witnesses. It has further come in evidence that accused Neeta Ram was residing with his wife, children and parents. The record also shows that the victim/prosecutrix stayed in the village Dongi for the night but no witness has been produced from village Dongi. It has further come in evidence that Mohan Lal and Amar Singh saw the victim/prosecutrix going with the accused but they have also not been examined in support of the prosecution case. It is further in evidence that accused Vidya Devi was not present in the house of accused Neeta Ram and at the time of recovery of victim/prosecutrix, accused Neeta Ram was not present at his house.
15. From the testimony of Ran Singh (PW.10) as well as from the perusal of family register Ex.PB, it appears that the victim/prosecutrix could be the youngest child, whereas from the document Ex.PB, it appears that Narayan Singh is the youngest child of Ran Singh (PW.10), hence the document Ex.PB which has been produced in support of the age of the victim/prosecutrix, cannot be relied upon. Ran Singh (PW.10), father of the victim/prosecutrix, has stated that age of the victim/prosecutrix is 18 years at the time of his examination, as such, on the date of alleged occurrence, i.e., on 7.2.1993, she was 16 years 9 months and 22 days. In cross-examination, Dr. H.K. Pant (PW.5) has stated that the age of the victim/prosecutrix could be 12 to 17 years.
16. From close scrutiny of the prosecution witnesses, it appears that the victim/prosecutrix did not make any objection to remain in the company of the accused. Admittedly, accused Neeta Ram has not made any allurement. The evidence shows that the victim/prosecutrix went to different places with the accused but she did not complain to anyone and she was moving freely. Further, the victim/prosecutrix had every occasion to disassociate herself from the accused and convey her grievance to the members of the family of accused Neeta Ram. However, she has not done so and on the other hand she willingly stayed with the accused persons. It is also apparent that accused Sohan Singh did not go to the place of victim/prosecutrix. Accused Vidya Devi took the victim/prosecutrix to the place of accused Sohan Singh and thereafter to the place of accused Neeta Singh, where she stayed comfortably for one night, despite having been sexually assaulted the victim/prosecutrix did not raise any hue and cry and even did not try to disclose the matter to anyone in the village.
17. From the close scrutiny of the testimony of PW.10 Ran Singh and medical evidence as well as family register, it appears that certainly the victim/prosecutrix was above 16 years of age, in these circumstances, the conduct, behaviour and act of the victim/prosecutrix shows that she stayed with the accused Neeta Ram by her own sweet will. The conduct of the victim/prosecutrix shows that there was consent on her part to be in the company of the accused and under these circumstances, the question of either kidnapping her or abduction would not arise.
18. So far, testimony of PW.3 Dr. Prathiba Sood, the victim/prosecutrix was 14-15 years of age on the date of her medical examination on 13.2.1993. The date of birth as per document Ex.PB which is extract from the family register, reveals that date of birth of the victim/prosecutrix has been recorded as 30.8.1977 from this angle also the victim/prosecutrix was above 16 years of age. In view of Modi''s Medical Jurisprudence and Toxicology (21st Edition), there may be error in the case of age based on ossification test in assessment of Radiologist and from this point of view, the age of the victim/prosecutrix could be more than 18 years. In any case, the prosecution has failed to prove the exact date of birth and age of the victim/prosecutrix at the time of incident. Different version and assessment is emanating from the documents and statements as indicated above, however, in any case, the victim/prosecutrix was certainly more than 16 years of age might not have attained 18 years. However, as per testimony of PW.11 (victim/prosecutrix), her conduct, behaviour and act indicates that she was consenting party to accompany accused Neeta Ram on her own sweet will and she willingly stayed with accused Neeta Ram for the purpose of getting herself married and certainly the victim/prosecutrix was at the stage when she was capable of applying her wisdom, discretion and independent mind, as such, the benefit of doubt shall have to be given to the accused. This Court (D.B.), in its order dated 23rd June, 2010 in in Criminal Appeal No. 712 of 1996 State of H.P. v. Rajesh Kumar and Anr., while considering the decisions of Supreme Court, has taken a view whereby the accused in the facts and circumstances cannot be held guilty of the aforementioned offences. The relevant paragraph of Rajesh Kumar''s case (supra) reads as follows:
30. We are of the considered view that the victim/prosecutrix even if not completed 18 years of age, but is capable of applying her wisdom, discretion and mind independently and is understanding the consequences of accompanying a person with whom she became friendly and had fallen in love with him and if has voluntarily accompanied such accused person at her own sweet will without any protest and without making hue and cry and took active part in going with the accused, even if was sexually assaulted by such accused person then if scrutiny of facts and circumstances indicate that the victim/prosecutrix had enjoyed good time with accused without showing resistance and without any endeavour to escape from the company of such accused and victim/prosecutrix was a willing and consenting party of the company of accused at the relevant time, then the victim/prosecutrix cannot be said that she had been enticed and kidnapped from her lawful guardian and cannot also be said to be abducted or induced for marriage. In such situation, the act and conduct of accused cannot be regarded an overt act for inducement in reference to the offence under Sections 361, 363 and 366 of the Indian Penal Code.
19. In view of the aforesaid analysis and decision of this Court in Rajesh Kumar''s case (supra) the verdict of learned Additional Sessions Judge, on the basis of prosecution witnesses that prosecution has failed to prove its case beyond reasonable doubt, is legally correct. In our considered view also, the prosecution has failed to bring home the guilt to the accused and there is no scope of interference in the findings given by learned Additional Sessions Judge. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed.
20. The bail bonds furnished by the accused/respondents are hereby discharged.
