State of H.P. vs Sanjay Shah

Dev Darshan Sud, J.—The State is aggrieved by the judgment of acquittal passed by learned Additional Sessions Judge, Shimla, acquitting the accused/Respondent Sanjay Shah for offences u/s 363, 366 and 376 of the Indian Penal Code.

Brief facts of the case are that Sh. Raj Bahadur PW-2, father of the prosecutrix, lodged First Information Report 38 of 2997 at Police Station Jubbal on 17.5.1997, stating that he is permanent resident of Nepal and is running a tea stall at Kuddu for the last four years. He has three daughters and three sons. His daughters Kanta and Susheela are 22 and 18 years and one younger daughter is 16 years. His sons are studying at Teuni. In order to look after them i.e. to prepare their meals etc., during the time when they were preparing for examination, he sent the prosecutrix Sapna to Teuni on 2.4.1997. On 8.5.1997, his son Shiva informed him at Kudu that the prosecutrix had left Teuni for Hatkoti on 14.4.1997 to celebrate Ashtmi and she has not returned thereafter.

He conducted a search in the local area and also enquired from his relatives and friends as to whether she was staying with them and learnt that she had been enticed by a boy belonging to Uttarkashi. A letter Ex.PW-2/A from the prosecutrix, which has been addressed to Sushila (elder sister of the prosecutrix) had been received on 10.5.1997. On reading that letter, he came to know the address of the prosecutrix and he along with his daughter Sushila PW-1 and Inder Dev, PW-3 visited the house of the accused and found the prosecutrix detained there.

We have heard learned Counsel for the parties and considered the facts of the case as brought on the record. The learned Additional Advocate General submits that this is a case where the trial Court has gone wrong in appreciating the evidence of the prosecutrix Krishna who appeared as PW-7 and corroborated the prosecution case in each and every detail. He submits that in the facts and circumstances, even if a statement is uncorroborated, conviction can be based on her sole testimony.

Before going into this submission, we notice that vide Ex.DW-1/A a joint application for registration of the marriage between the prosecutrix and the accused was submitted before the Registrar of Hindu Marriages, Uttarkashi District in Uttar Pradesh in which it was stated that they had solemnized marriage on 13.4.1997. It is signed by both of them and is also certified by the Priest Santosh who solemnized the marriage. A certificate by Molu Ram who is the Member of the Nagarpalika Parishad, Uttarkashi has also been appended with the application. DW-1 Shri Nati Ram from the office of the Registrar proves the certificate DW-1/A which also bears the photographs of both the accused and the prosecutrix. Ex.PW-2/A is a letter addressed by the prosecutrix to her parents sending respects to them and seeking their blessings. It is all praise for the accused as also the members of his family and goes on to state that she has been treated with a love and affection by the family of the accused and is not even allowed to perform any work but is being looked after well. Another letter mark ''X'' has been brought on the record which expresses her love and desire for the accused in sentimental and poetical terms. When confronted with Ex.PW-2/A, she admits that she was the author of this letter. According to Ex.PW-4/A, the age of the prosecutrix is given as between 15 to 16 years. In Criminal Appeal No. 209 of 1998, titled: State of Himachal Pradesh v. Rajesh Kumar, decided on 9th April, 2010, this Court, while following the decision of the Supreme Court in Jaya Mala Vs. Home Secretary, Government of Jammu and Kashmir and Others, and of this Court in Paramjit Singh Vs. State of Himachal Pradesh, and Chintu alias Chint Ram v. State of H.P. 1997 (2) Sim. L.C. 294, has held that margin of error of two years should be allowed in favour of the accused.

In the circumstances and on the evidence on record, there cannot be any doubt that the prosecutrix is an adult. The evidence on the record is a clear indicator to her consent. She has been moving around with the accused freely, has stayed with him, traveled all the way from Teuni to Uttarkashi, presented an application for registration of their marriage, wrote letter Ex.PW-2/A the contents of which she admits to be correct, and during this period of her so called abduction of recovery she has not made a single attempt to complain to any person that she has been forcibly kept and subjected to sexual intercourse against her will. These facts do not establish either kidnapping which is otherwise also not established on the record by any evidence or rape as alleged by her.

In these circumstances, we cannot place reliance on the statements of the prosecution witnesses to hold that they are sufficient to convict the accused. There is, thus, no merit in this appeal which is accordingly dismissed. Bail bonds furnished by the Respondent shall stand discharged.