Himachal Pradesh High Court
Between vs And on 22 September, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
REPORTABLE/NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 22nd DAY OF SEPTEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
.
&
HON'BLE MR. JUSTICE SATYEN VAIDYA.
CRIMINAL APPEAL NO. 153 OF 2021
Between:-
STATE OF HIMACHAL PRADESH
...APPELLANT
(BY SH. ASHOK SHARMA, ADVOCATE GENERAL,
WITH SH. RAJINDER DOGRA, SENIOR ADDITIONAL
ADVOCATE GENERAL, SH. SHIV PAL MANHANS,
ADDITIONAL ADVOCATE GENERAL AND
MR. BHUPINDER THAKUR, DEPUTY ADVOCATE GENERAL)
AND
KULDEEP, SON OF SH. MOHAN LAL,
RESIDENT OF VILLAGE JAGHANA,
POST OFFICE, DOMEHAR, TEHSIL
AND POLICE STATION, ARKI,
DISTRICT SOLAN, H.P.
....RESPONDENT.
(SH. V.S. CHAUHAN, SENIOR ADVOVATE
WITH SH. AVINASH SHARMA, ADVOCATE)
__________________________________________________________________
This appeal coming on for admission this day,
Hon'ble Mr. Justice Satyen Vaidya, delivered the following:
JUDGMENT
2. By way of instant appeal, appellant has assailed the
judgment of acquittal dated 28.11.2020 passed by learned
Additional District & Sessions Judge, Fast Track Special Court,
Solan, District Solan, H.P. in Sessions Trial No. 30-S/7 of
2020/2016
.
3. Respondent herein was charged and prosecuted for
offences under Sections 363, 366 and 376 of the Indian Penal
Code (for short 'IPC') and Section 4 of the Protection of Children
from Sexual Offences Act, 2012 (for short 'POCSO Act').
4. The prosecution of respondent was result of
investigation carried out in pursuance to registration of FIR
No.03 of 2016 dated 8.1.2016 at Police Station, Arki, District
Solan, H.P. The above noted FIR was registered on the complaint
of Ganga Ram S/o Sh. Pahal Singh. It was alleged by him that
respondent herein used to meet his daughter (victim). Despite
advice, respondent used to roam in or around his house. In the
evening of 07.01.2016, at around 6.00 P.M. respondent had
enticed the victim and had kidnapped her with intention to marry
her.
5. During investigation, the victim was recovered on
17.01.2016 from the company of the respondent from village
Haripur, Tehsil Chakrata, Vikasnagar, Dehradun. The victim
denied having been enticed by respondent. The victim disclosed
that she was maintaining relation with respondent voluntarily
and was pregnant. She had accompanied respondent of her own
free will.
.
6. On completion of investigation, report under Section
173 Cr.P.C. was submitted recommending trial of respondent.
Learned trial Court charged respondent for offences under
Sections 363, 366 and 376 of IPC and Section 4 of the POCSO
Act.
7.
After completion of trial, the learned trial Court has
recorded the finding of acquittal vide impugned judgment.
8.
The appellant has assailed the impugned judgment
mainly on the ground that the evidence has not been correctly
appreciated by the learned trial Court. It has been contended
that the findings of the learned trial Court to the effect that
victim was major at the time of alleged offence is against the
material proved on record. According to appellant, the statement
of PW-2, father of victim has not been considered in right
perspective. Documents Ex.PW-8/B and Ex.PW-8/C have
wrongly been discarded. The precedence given to document Ext.-
DX vis-à-vis documents Ex. PW-8/B and Ex.PW-8/C, is against
the settled principles of law. It has also been submitted that the
statement of victim under Section 164 Cr.P.C. Ex.PW-19/F, has
not been appreciated correctly.
9. We have heard Mr. Rajinder Dogra, learned Senior
.
Additional Advocate General for the appellant and Mr. V.S.
Chauhan, Senior Advocate, assisted by Mr. Avinash Sharma,
Advocate, for the respondent and have also gone through the
records.
10. It is not disputed by either side that the respondent has
married the victim and have two children from the wedlock. They
are living happy married life. The factum of marriage having been
solemnized between respondent and victim cannot be a legal
ground to absolve the respondent from the criminal liability, if
the alleged offence is otherwise proved against him. Thus, the
material available on record needs independent assessment.
11. The controversy revolves around the prime issue
regarding the age of victim at the time of alleged offences. The
victim had accompanied the respondent on 17.01.2016.
According to her version, she had conceived as a result of
physical relation developed between her and the respondent on
2/3.11.2015. Thus, the fate of the case hinges upon the age of
the victim on 2/3.11.2015 and thereafter on 07.01.2016.
12. The prosecution has examined the father of victim
Sh. Ganga Ram as PW-2, who in his examination-in-chief
narrated the age of victim to be 16 years in the year 2016.
.
However, in cross-examination, he admitted to have executed an
affidavit Ext.-DX before the Executive Magistrate, Arki regarding
the date of birth of his daughter. He also admitted the fact that
his daughter had solemnized marriage with respondent on
03.01.2016. He denied the suggestion that his daughter at the
time of marriage was major.
13.
executed by PW-2 on
Perusal of document Ext.-DX, reveals that the same was
07.11.2015 before the Executive
Magistrate, Arki, District Solan and had solemnly affirmed as
under:
"1. That the date of birth of my daughter Meena is 10.5.1997 which
is true and correct and the date of birth which was written in school
certificate i.e. 10.5.1999 is wrong, which was written at that time
due to mistake."
14. The date of execution of this document has not been
challenged by the prosecution. Thus, it cannot be said that this
document was created or manufactured after registration of the
case to create evidence.
15. The prosecution has also examined PW-8 Sh. Shanta
Kumar to prove the extract of admission and withdrawal register
of Government Senior Secondary School, Baghal, Tehsil Kotkhai,
.
District Shimla, Ex.PW-8/C and a copy of an affidavit executed
by PW-2 Ganga Ram as Ex. PW-8/B.
16. Contents of affidavit Ex.PW-8/B disclose that the date
of birth of victim mentioned therein is 10.5.1999. However, the
document placed on record is not the original and does not even
reveal the date of its execution or details of its attestation.
Strangely, the execution of document Ex.PW-8/B has not been
proved through its purported author i.e. PW-2. For the reasons
best known to prosecution, the document Ex.PW-8/B was not
shown to the witness, who is alleged to have executed the same.
Evidently, the entries in school register Ex.PW-8/C, are based
upon the contents of this affidavit, therefore, such entry in
respect of the date of birth of victim is not beyond shadow of
doubt.
17. The cardinal principle of criminal jurisprudence is that
the standard of proof required in criminal trials is beyond all
reasonable doubts. The prosecution, in light of above discussion,
has failed to discharge the burden in accordance with law. The
fact that the victim was minor on the date of alleged offence was
required to be proved by the prosecution by cogent and
convincing evidence, but the evidence on record is found to be
.
deficient in more than one way. The fact remains that execution
of affidavit Ext.-DX remained un-rebutted. Prosecution omitted to
re-examine the witness PW-2 on this material aspect. In light of
the admission of PW-2 as to execution of document Ex. DX, his
oral version regarding minority of victim at the time of alleged
offence, looses significance.
18. to
The victim appeared as PW-1 and did not support the
prosecution case. In cross-examination, she specifically denied
her date of birth to be 11.05.1999. In her further cross-
examination by the defence counsel, she categorically admitted
her date of birth to be 10.05.1997.
19. PW-16 Shri Bhupinder Gupta was examined as a
witness to prove the records of Govt. Senior Secondary School,
Bhumti, Tehsil Arki, District Solan. This witness deposed that
on the request of police, he had issued certificate Ex. PW-16/B
and had also handed over a copy of School Leaving Certificate
Ex.PW-16/C to the police during investigation. Though, these
documents also mention the date of birth of victim as
10.05.1999, but again there is nothing on record to authenticate
these entries. It is not clear as to on what basis the date of birth
of the victim was recorded as 10.05.1999.
.
20. Ex.PW-16/C is the school leaving certificate, which
shows that the victim was admitted in Govt. Senior Secondary
School, Bhumti, Tehsil Arki, District Solan on 15.11.2011 and
remained there till 27.02.2012. The entry in Ex. PW-8/C against
the name of victim at serial No. 567 of the register dates back to
11.03.2011. It appears that after leaving Govt. Senior Secondary
School, Baghal, Tehsil Kotkhai, District Shimla, the victim was
admitted in Govt. Senior Secondary School, Bhumti, Tehsil Arki,
District Solan. Hence, the entry of 10.05.1999 as date of birth of
victim in records of both the schools remained the same. The
school at Govt. Senior Secondary School, Bhumti, Tehsil Arki
must have admitted the victim on the basis of record of her
previous schooling. When the entry in document Ex. PW-8/C
with respect to the date of birth of victim has been held to be
doubtful, the entry in documents Ex.PW-16/B and Ex.PW-16/C
cannot have better credence.
21. The ossification test does not appear to have been
conducted on victim to ascertain her age.
22. On the basis of the evidence on record, it is not
established and proved that the victim was a minor at the time of
alleged offence. To the contrary, the evidence is that she was
.
born on 10.05.1997 and thus had attained majority on
10.05.2015. That being so the findings recorded by the learned
trial Court cannot be faulted. Once the victim was not proved to
be a minor, no offence could be said to have been committed by
respondent for which he was charged. The victim has
categorically stated that she had accompanied respondent of her
own will more than once and had maintained relations with him
voluntarily. None of the incidences when victim is alleged to have
accompanied respondent relate to the period of her minority. The
factum that the victim and respondent are happily married is a
relevant fact only to evaluate the veracity of version given by the
victim.
23. In light of the above discussion, we find no merit in the
appeal and the same is dismissed, so also the pending
application(s), if any.
(Tarlok Singh Chauhan)
Judge
22nd September, 2021 (Satyen Vaidya)
(GR) Judge
