IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No.: 620 of 1996. Decided on: 21.04.2010. __________________________________________________________ State of Himachal Pradesh. … Appellant. Versus Lobu Ram and others. …Accused/Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the petitioner : Mr. Vivek Thakur, Additional Advocate General with Mr. Rajesh Mandhotra, Deputy Advocate General. For the Respondents : Mr. Romesh Verma, Advocate. Deepak Gupta, J (Oral). This appeal by the State, is directed against the judgment dated 30.3.1991, delivered by the learned Sessions Judge, Kinnaur Sessions Division at Rampur in Sessions Trial No.34-R/7 of 1995/93 whereby accused Lobu Ram was acquitted of having committed offences punishable under Sections 363, 366, 368, 376 read with Section 109 of Indian Penal Code and all the other accused have been acquitted of having committed an offence punishable under Sections 363, 366, 368 read with Section 109 of Indian Penal Code. The prosecution version is that on 11th March, 1993 when the prosecutrix, who was then a student of Class-10, was returning from school at 4 P.M., she was abducted by accused No.1 to 6. She was 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - forcibly dragged into a Maruti Van and thereafter Lobu Ram took her to village Lawarang. From there they walked to village Kanam where they stayed for the night in the house of accused No.8, Tanzin Gayachho, who is the maternal uncle of accused No.1. It was also alleged that accused No.1 committed forcible sexual intercourse with the prosecutrix while staying in the house of Tanzin Gayachho. Thereafter she was again brought to village Lawarang to the house of accused No.7 where she was kept in the house of Chhering Lal. There he again raped the prosecutrix. Accused No.9 is the driver of the taxi. A complaint Ex.PW-4/A was lodged at Police Station, Pooh on 13.3.1993 by PW-4, Chhering Nortan, father of the prosecutrix in which he alleged that his daughter (the prosecutrix) was returning from school on 11.3.1993 and when she was near the army camp at Tutu, accused No.1 to 6 caught hold of the prosecutrix and took her in Maruti Van No.2112. According to the allegations made in this complaint, Lobu Ram forcibly abducted the prosecutrix with a view to marry her. It was alleged that the prosecutrix is a minor girl. It was further stated that on 11.3.1993 he alongwith other relatives started searching for the prosecutrix and reached village Kanam where they learnt that the prosecutrix had been illegally confined in the house of Tanzin Gayachho, accused No.8. It was also alleged that when Shri Tanzin Gayachho and his wife were requested to hand over the custody of the prosecutrix to them, they alongwith other villagers started throwing stones on the complainant and his relatives. On the basis of this complaint, F.I.R. Ex.PW-11/A was registered and the police went to village Lawarang where the prosecutrix was recovered from the house of accused No.7. She was then handed - 3 - over to her father. After completion of investigation, report under Section 173 of the Code of Criminal Procedure was filed in the Court. Since the offences were triable by the Court of Sessions, the case was committed by the learned Chief Judicial Magistrate, Kinnaur to the Sessions Court. After trial, the accused have been acquitted. Hence, the present appeal. We have heard Mr. Vivek Thakur, learned Additional Advocate General with Mr. Rajesh Mandhotra, Deputy Advocate General on behalf of the State and Mr. Romesh Verma, learned counsel for the accused-respondents. At the outset, it may be mentioned that the prosecutrix was admittedly more than18 years old at the time when the occurrence took place since her date of birth as per school certificate Ex.PW-2/A which was relied upon by the prosecution is 17.1.1974 and the incident took place on 11.3.1993, which would mean that she was 18 years and 10 months old at the time of occurrence. The question which arises for consideration is whether the accused forcibly abducted the prosecutrix and whether the accused No.1 forcibly subjected her to sexual intercourse. The defence of the accused is that the prosecutrix was a consenting party and she had herself gone with accused No.1 and stayed with him in the house of accused No.7. The prosecution alleged that when the prosecutrix was returning from school and was near the army camp at Tutu, she was accompanied by two of her school mates, namely, Kunkhin Lama and Mahagiani. Kunkhin Lama was not examined in Court. Mahagiani appeared in Court as PW-6. She has supported the prosecution version. She however stated that they never made any complaint to the persons in the army camp. Here we are not dealing with small children, but people who were - 4 - at least 15/16 years of age at the time of occurrence. Kunkhin Lama was a class-mate of the prosecutrix and Mahagiani was studying in class 8. If they had raised a hue and cry, somebody would have immediately taken action, because admittedly, the army barrier is at a distance of 100 metres from the place from where the prosecutrix was allegedly abducted. Even the other witnesses have admitted that the army camp is situate close to the place of occurrence. If the class mates of the prosecutrix, namely, Kunkhin Lama and Mahagiani were actually accompanying her, they in natural course would have raised an alarm and alerted the army personnel at the army camp. They could have easily reported the matter to the army officials who were only at a distance of 100 metres and they would have immediately taken some action. This clearly indicates that the prosecutrix went of her own accord with the accused. According to the prosecutrix after she was dragged into the van, it went towards Chhaso Khad, but she did not remember what happened thereafter since she became unconscious. She stated this for the first time in the Court. She had not stated in her statement recorded under Section 161 Cr.P.C. that she had become unconscious. According to her, she did not know when the other five accused got down from the van, but by the time she reached village Lawarang, only accused Lobu Ram and Hari Sharma, driver of the van were present in the taxi. This part of her story is not believable and does not inspire confidence. She does not state how she became unconscious when admittedly she was neither beaten nor threatened. There is no reason why she would become unconscious. - 5 - The prosecutrix admitted that from village Lawarang it takes 25 minutes to reach village Kanam on foot. Both village Lawarang and village Kanam are large villages. They have more than 100 houses each. The prosecutrix walked from village Lawarang to village Kanam. It is not alleged that accused No.9 was accompanying her when she walked from village Lawarang to village Kanam. Therefore, obviously, she was walking alone with accused No.1. When there was only one person with her while she was taken from village Lawarang, what prevented her from raising an alarm, making a struggle or trying to flee from the accused. This clearly indicates that the prosecutrix was a consenting party and had gone with Lobu Ram of her own accord. Next day the prosecutrix was brought back to village Lawarang from village Kanam when again they traveled on foot for 25 minutes alone and again she was having sufficient time to raise alarm. The prosecutrix has contradicted herself on this aspect by stating that she was kept in village Kanam for two days. This portion of her statement is contrary to the stand of the prosecution that she was recovered from village Lawarang by the police. This also shows that the prosecutrix is not telling the truth and her statement cannot be relied upon. Therefore, no case of abduction is made out against the accused. So far as the offence of rape is concerned, according to the prosecutrix, Lobu Ram raped her twice; once at village Kanam and once in village Lawarang. According to her, she was kept alone in a room. Therefore, she was having an opportunity to raise alarm. In cross- examination, she stated that in village Kanam she was kept in the house of the maternal uncle of accused No.1. She had a scuffle with the accused and her clothes were torn, but she did not sustain any injury. - 6 - This cannot be believed since the prosecutrix is 19 years old and not a minor child. The story of the prosecutrix does not inspire confidence. She has made many improvements in her statement in Court. Whereas in Court she stated that she was kept in the house of the maternal uncle of Lobu Ram, but this fact is not recorded in her statement under Section 161 Cr.P.C. Similarly, whereas in Court she states that she was kept in the house of Gawa Dandup, however, such fact is not recorded in her statement Ex.PW-3/A. In fact, according to her, she had not stated to the police that accused Lobu Ram took her from village Lawarang to village Kanam, which fact is recorded in Ex.PW-3/A. These improvements made by the prosecutrix in her statement in Court render her statement doubtful and therefore, it would be very risky to rely solely on the statement of the prosecutrix. According to the medical report, the prosecutrix was habitual of sexual intercourse. There is no evidence of physical injury on her person. Therefore, the medical evidence also does not corroborate the version of the prosecutrix that she struggled or tried to resist the attempts of accused No.1. In view of the above discussion, we find no merit in this appeal and the same is accordingly dismissed. Bail bonds furnished by the accused-respondents stand discharged. (Deepak Gupta), Judge. (Rajiv Sharma), Judge. April 21, 2010. (sck).