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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
The Hon’ble Mr. Justice R.B. Misra, Judge.
The Hon’ble Mr. Justice Sanjay Karol, Judge.
State of Himachal Pradesh …Appellants.
Versus
Gulbir and another. . …Respondents.
Cr. Appeal No. 151 of 2001
Decided On: 5.1.2011.
Criminal Appeal - Sexual Assault - Indian Penal Code - Sections 363, 366, 376 - The court discussed the prosecution's case of sexual assault against the victim-prosecutrix and the evidence presented to prove the accused's guilt. The court considered the victim's testimony, medical examinations, and witness statements to determine the age of the victim and the circumstances of the alleged assault. The court concluded that the victim-prosecutrix had gone to the accused-respondents' place willingly and stayed with them, leading to the inference that she was a consenting party. As a result, the accused-respondents were given the benefit of doubt and acquitted.
Fact of the Case:
The victim-prosecutrix was allegedly sexually assaulted by the accused-respondents after being taken to their place under the pretext of marriage. The prosecution presented evidence to prove the accused's guilt, including witness testimonies and medical examinations.
Finding of the Court:
The court found that the victim-prosecutrix had gone to the accused-respondents' place willingly and stayed with them, leading to the inference that she was a consenting party. As a result, the accused-respondents were acquitted due to the prosecution's failure to prove their guilt beyond reasonable doubt.
Issues: The key issues revolved around the victim's age, consent, and the circumstances of the alleged sexual assault. The prosecution aimed to establish that the victim was a minor and was forcibly taken and assaulted by the accused-respondents.
Ratio Decidendi: The court's decision was influenced by the victim's testimony, medical examinations, and witness statements, which led to the conclusion that the victim-prosecutrix was a consenting party in the alleged assault.
Final Decision: The criminal appeal was dismissed, and the accused-respondents were acquitted due to the prosecution's failure to prove their guilt beyond reasonable doubt.
R.B. Misra, J.
The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment dated 28.10.2000, passed by the learned Additional Sessions Judge, Mandi, H.P. in Sessions Trial No. 29 of 1995, acquitting the alleged accused for the offences under Sections 363, 366 and 376 of the Indian Penal Code.
2. The prosecution case, in brief, is that the victim-prosecutrix was taken on 18.2.1995 by the accused persons to their place by alluring for marriage where the respondents-accused had committed sexual assault on the victim-prosecutrix against her wishes. Victim-prosecutrix was accompanied accused Brij Pal on 18.2.1995 and thereafter on 20.2.1995, a complaint regarding her missing was lodged by her father and she was recovered on 24.2.1995. Thereafter she was medically examined. On the basis of the complaint, the accused were charged for the aforesaid offences and the trial was conducted by learned Additional Sessions Judge, Mandi.
3. In order to prove the case of the prosecution, the prosecution examined as many as 12 prosecution witnesses, namely, Dr. M.L. Nadha(PW-1), Kumari Munish (PW-2), Ram Singh(PW-3), Neetu (PW-4), Dr. Fulan Rani(PW-5), Savita Bhatia(PW-6), Dr. Kiran Malhotra(PW-7), Dr. Balbir Singh Verma (PW-8), Iqbal Mohammad(PW-9), Dr. V.K. Pathak (PW-10), Sher Singh (PW0-11) and Mast Ram (PW-12).
4. According to the prosecution victim-prosecutrix was allured by accused-respondents and was taken to different places and was sexually assaulted against her will, as such, the accused-respondents were held guilty of the aforesaid offences. According to the prosecution, the radiological age of the victim-prosecutrix was 13 to 15 years and she was the youngest child of her father and in view of her testimony, she was 13 years of age at the time of incident and was sexually assaulted by the accused-respondents, therefore, they were liable to be held guilty of the offences in question.
5. In order to prove as to whether the victim-prosecutrix was minor at the relevant time and was taken against her wishes and was sexually assaulted without her consent, we have to see the testimony of the prosecution witnesses and materials on record.
6. PW-1 Dr. M.L. Nadha examined accused Brij Pal and opined that the age of Brij Pal was between 17 to 20 years.
7. PW-2 victim-prosecutrix, stated that her father was working as Sweeper in B.B.M.B. at Sundernagar and she was the youngest daughter of her parents. She was 13 years of age in the year 1995. Her mother had died several years back. She was residing in the quarter allotted to her father. Accused No.2 Gulbir had been working as Sweeper in B.B.M.B. at Sundernagar. Accused No.1 is the brother of the wife of accused No.2, who too was allotted residence in B.S.L. colony near the residence of the victim-prosecutrix. Accused No.1 Brij Pal had been visiting the accused Nos. 2 and 3 and all the accused had been visiting the house of the victim-prosecutrix and reciprocately the victim-prosecutrix was also visiting the house of accused No.2 at Sundernagar. As per the testimony of victim-prosecutrix, accused No.1 Brij Pal had gone to drop his sister in village Rajpuragari in District Mujjafarnagar and after dropping his sister in his village in Rajpuragari, accused No.1 Brij Pal had returned to Sundernagar. On 18.2.1995, Brij Pal and accused Gulbir had invited PW-2 to their residence where PW-2 was sexually assaulted. As per the testimony of PW-2, she did not cry as she was afraid of being put to shame. Accused Brij Pal had asked PW-2 to marry, on that PW2 suggested that the matter may be taken to her father. The accused persons offered tea to PW-2, whereupon she turned unconscious and regained consciousness at Panipat bus-stand from where PW-2 was taken to Yamuna Nagar by accused Brij Pal and Gulbir to the house of the brother of the accused person Gulbir at Yamuna Nagar
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