STATE OF H.P. Vs. MASTAN SINGH

JUDGEMENT

(1.) THE present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378(3) of the Code of criminal Procedure in reference to judgment dated 4.10.1999, passed by Learned Sessions Judge, Kangra at Dharamshala, H.P., in Sessions Case No. 43 -G/VII/98, for the offence under Section 363, 366 and 376 of the Indian Penal Code, acquitting the alleged accused / respondent.

(2.) AS per prosecution story, PW.3 Seema Kumari daughter of PW.4 Sher Singh and PW.6 Smt. Santosh Kumari was studying in 9th class in the year 1997, allegedly minor was allured by the respondent -accused. Respondent -accused had taken the victim to Ludhiana. On 30.5.1997, when PW.4 Sher Singh, father of the prosecutrix / victim came back to his house from Palampur, and did not find his daughter at home, as such, he went to the police Station for lodging the FIR which was recorded by SI Roop Singh (PW.8). Thereafter, the police party accompanied by PW.4 Sher Singh went to Ludhiana and recovered the girl from the house of one Suresh. On medical examination, the prosecutrix / victim was found habitual of sexual intercourse and was pregnant for 14½ to 15 weeks. After investigation, the accused was arrested and charged for the above offences and the case was committed for trial to the Sessions Court.

(3.) WE have scrutinized the prosecution case and materials on record, we find that victim / prosecutrix (PW.3) has herself declared hostile and has not supported the prosecution case. PW.3 victim / prosecutrix has stated that Ashwani Kumar her brother was elder to her by 2 or 3 years. The entry of birth of said Ashwani Kumar has been proved from the statement of DW.1 Smt. Manorma Devi, Head Teacher, Government Primary School, Garli, Ex.D1, according to which the date of birth of Ashwani Kumar was 6.10.1977, as such, when Ashwani Kumar being two years elder to the victim / prosecutrix, then date of birth of the victim / prosecutrix should be in the year 1979 -80, then her age would certainly at about 18 years at the time of occurrence.