IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 657 of 1996. Reserved on : 29.04.2010. Decided on :14.05.2010. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Ganga Ram and another. …Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1No. __________________________________________________________ For the appellant : Mr. Vivek Singh Thakur, Additional Advocate General. For the respondents : Mr. N.K. Thakur, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: A challenge has been laid by the State to the judgment of learned Sessions Judge, Una in Sessions Trial No. 13 of 1995, dated 12.09.1995, whereby the respondents, who were charged with and tried for offences, under Sections 363 and 366-A of the Indian Penal Code, have been acquitted. 2. The case of the prosecution, in a nut-shell, is that Kumari Jito Devi (PW-1), aged 16 years, on 30.04.1994, was student of 7th class in Government High School, Beetan. She was living with her parents. Accused Phoolan Devi was working 1 Whether the reporters of the local papers may be allowed to see the judgment?. No. - 2 - as a Peon and accused Ganga Ram was working as a Clerk. On 30th April, 1994, PW-1 Jito Devi came from the School at about 2 P.M.. After ½ hour, accused Phoolan Devi came to the house of PW-1 Jito Devi and asked her to accompany her to a shop. Jito Devi sought permission from her mother PW-2 Jogindero Devi. She declined the permission. Phoolan Devi forcibly took Jito Devi to some distance, where Ganga Ram accused was standing alongwith a scooter. Ganga Ram Asked Phoolan Devi as to where she intended to go. She told him that she has to go to village Gondpur Bulla. Phoolan Devi forcibly made Jito Devi to sit on the scooter and accused Ganga Ram took both of them towards Gondpur Bulla. They were noticed by school teacher Sh. K.P. Sood. Accused Ganga Ram left Phoolan Devi and Jito Devi and went away. Thereafter, Phoolan Devi took Jito Devi to a cattle-shed. Shri K.P. Sood and other teachers of Beetan school came there and inquired about their presence at the cattle-shed. The incident was narrated by Kumari Jito Devi to Shri K.P. Sood. Thereafter, Pradhan and other people of the village collected there and the father of the girl was also summoned from the village. Statement of Phoolan Devi was also recorded, i.e., PB and was signed by Phoolan Devi, father of the girl, PW-3 Kartara Ram and other teachers, including PW-5 K.P. Sood and Pradhan Shri Hakumat rai. The case was registered on receipt of statement Ex.-PA by PW-9 Kashmir Singh. The case was investigated and the challan was filed in the court. 3. Prosecution examined ten witnesses to prove the case against the accused. Statements of the accused, under Section 313 of the Criminal Procedure Code were recorded, in - 3 - which they denied the allegations and pleaded that Kumari Jito Devi had accompanied Phoolan Devi accused of her own and was going to the house of Phoolan Devi, and the case has been registered falsely against them. The trial court acquitted the accused on 12.9.1995. Hence, this appeal by the State. 4. Mr. Vivek Singh Thakur, Additional Advocate General has strenuously argued that the prosecution has proved its case against the respondents. 5. Mr. N.K. Thakur, Advocate learned counsel for the respondents has supported the judgment of the learned trial Court. 6. We have heard the learned counsel for the parties and gone through the record carefully. 7. PW-1 Jioto Devi, PW-2 Jogindero Devi, PW-3 Kartara Ram, PW-4 Balram Kumar, PW-5 Krishan Pal Sood are the material witnesses. 8. PW-4 Balram Kumar has proved the date of birth certificate, vide which Jito Devi was born on 28.03.1979. Admittedly, she was less than 16 years of age on the date of incident, i.e., 30.04.1994. 9. PW-1 Kumari Jito Devi has stated that she came back from the school at about 2 : 00 P.M. and accused Phoolan Devi also came after ½ hour. She asked her to accompany her to the shop for buying some articles. She sought permission from her mother, which was declined. She forcibly made her to walk to a place where Ganga Ram accused of the same school was standing alongwith a scooter. Ganga Ram asked accused Phoolan Devi where would she like to go. Phoolan Devi made - 4 - Jito Devi to sit on the scooter. The scooter was parked in the Khad. Accused went away and came back after one hour. Thereafter, they went towards Gondpur village. They were noticed by Shri K.P. Sood (PW-5). 10. PW-2 Jotindero Devi has supported the version of PW-1. She apprised PW-3 Kartara Ram that Phoolan devi has taken Jito Devi towards Gondpur Bulla. PW-5 Kartara Ram is the father of Jito Devi. 11. PW-5 Krishan Pal Sood has deposed that he was informed by his colleague that Ganga Ram came on a scooter and left after dropping Phoolan Devi and Jito Devi. She was searched and found in a cattle shed of one Sukhdev. He enquired from the accused and Jito Devi about the purpose of their visit. The Pradhan was called and the statement of Phoolan Devi was written, i.e., Ex.-PB. 12. PW-6 is the Pradhan of the village Panchayat. He called the father of the girl. PW-8 Krishan Gopal is the Head Master, who has proved the certificate Ex.-PE regarding the admission of Jito Devi in the School. PW-10 Gian Chand is the investigating officer. 13. We have gone through the evidence led by the prosecution in order to ascertain whether Jito Devi was forcibly taken by Phoolan Devi or not? Jito Devi though is a minor, but she is a grown up girl. It cannot be believed that she was forcibly taken by Phoolan Devi up to the place where accused Ganga Ram was standing alongwith a scooter. She has not raised any alarm when she was taken towards scooter and thereafter when she was taken to village Gondpur Bulla. It has come in the - 5 - evidence that she crossed through thickly populated areas and shops also. It is also not believable that a grown up girl could be made to sit on the scooter by Phoolan Devi forcibly. She could raise alarm at the first instance when she was taken away from her house, made to walk for some distance and thereafter when she was forcibly made to sit on the scooter, and ultimately when she was taken towards village Gondpur Bulla on the scooter. It has also come on the record that accused Ganga Ram has asked Phoolan Devi where they would like to go. Thereafter, Phoolan Devi and Jito Devi went on the scooter driven by the accused Ganga Ram to a Khud. The accused went away and came back after one hour. Jito Devi could easily raise alarm or come back. It cannot be believed that no passerby came when she was waiting for the accused for one complete hour. She was dropped by accused Ganga Ram and thereafter Phoolan Devi has taken her to a cattle-shed. In these circumstances, the accused cannot be held guilty of committing an offence punishable under Section 366-A of the Indian Penal Code. 14. There is ample evidence on record to come to the conclusion that the relations between the accused and other teachers, including PW-5 were not cordial. PW-5 K.P. Sood had filed complaints against the accused as per Ex. D-1 to Ex. D-4. The other circumstance which goes against the case of the prosecution, is the delay in lodging the F.I.R.. The incident has taken place on 30th April, 1994 and the F.I.R. was recorded on 2nd May, 1994. The delay in lodging the F.I.R. has not been explained. It may be true that in Indian set-up families do deliberate whether to lodge the report in these cases or not to - 6 - protect the dignity of the girl. However, nothing has come in evidence that family members have ever deliberated on this issue. They ought to have lodged the report immediately on 30th April, 1994 itself since the girl left her house in the afternoon. 15. The prosecution has also relied upon the statement Ex.-PB. This document was produced before PW-10 Gian Chand, ASI on 9th May, 1994, whereas the F.I.R. was registered on 2nd May, 1994. Accordingly, in view of the observations made hereinabove, there is no merit in this appeal and the same is dismissed. The bail bonds are ordered to be discharged. (Deepak Gupta), Judge (Rajiv Sharma) Judge May 14, 2010. (bhupender)