IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 126 of 1997. Reserved on 04.06.2010. Decided on: 17.06.2010. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Anil Kumar and others. …Respondents. Coram: The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the appellant : Mr. Rajinder Dogra, Additional Advocate General. For respondent No. 1 : Mr. Sunil Thakur, Advocate vice Mr. N.K. Thakur, Advocate. For respondents No. 2 and 3. : Mr. Ban Bhushan Singh, Advocate vice Mr. Ajay Sharma, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge(Oral): State has preferred this appeal against the judgment dated 01.10.1996, rendered in Sessions Case No. 16 of 1995, whereby the respondents, who were charged with and tried for offences punishable under Sections 363 and 366 read with section 34 of the Indian Penal Code, have been acquitted. 2. The case of the prosecution, in a nut-shell, is that PW-1 Joginder Singh, father of Nisha Rani (PW-8) was serving at Chandigarh and his wife Raj Kumari (PW-7) alongwith her daughter Nisha Rani and other children was living at Gagret. 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. - 2 - Nisha Rani was aged 17 ½ years at the time of occurrence. She was studying in 10+1 at Kaloh. Nisha Rani (PW-8) had gone to school as usual on 21st March, 1994, but did not return in the evening. PW-7 Raj Kumari searched for her. She learnt from school that Nisha Rani had not come to the school on that day. Thereafter, PW-7 sent PW-3 Sugrib Singh to inform Joginder Singh (PW-1) that Nisha Rani was missing from the house. PW-1 Joginder Singh came to the village, searched for her in her relatives house and in the school and other places and after some days, i.e., on 11.04.1994, he went and lodged the report, but the Police refused to enter the name of any suspect though he was assured that his daughter will be searched. The girl was traced on 24.4.1994. She was medically examined by PW-5 Dr. Neelam. She issued M.L.C., Ex.-PE. Accused Anil Kumar was also examined by Dr. Y.P. Sharma (PW-4). He issued M.L.C. Ex.- PC. The matter was investigated by the Police and the challan was put-up against the accused after completing all the codal formalities under Section 207 of the Code of Criminal Procedure. The accused were also examined under Section 313 of the Code of Criminal Procedure. They denied the allegations. The learned trial Court acquitted the respondents. Hence, this appeal by the State. 3. Mr. Rajinder Dogra, learned Additional Advocate General has strenuously argued that the prosecution has proved its case against the respondents (accused). 4. Mr. Sunil Thakur, learned vice counsel for respondent No. 1 and Mr. Ban Bhushan Singh, learned vice - 3 - counsel for respondents No. 2 and 3 have supported the judgment of the learned trial Court. 5. We have heard the learned counsel for the parties and gone through the record carefully. 6. PW-1 Joginder Singh is the father of Nisha Rani (PW-8). He deposed that he has three daughters and one son, namely, Suman Lata aged 21 years, Nisha Rani aged 18 ½ years, Meena Devi aged 16 ½ years and Dinesh Kumar aged 14-15 years. On 24.03.1994, his brother-in-law came to Chandigarh and informed that his daughter Nisha Rani is missing from his village. Thereafter, he came to his village and inquired from his wife, who told him that on 21.03.1994, Nisha Rani had gone to school at 8:30 A.M., but did not return till evening. He searched for her for about 12-13 days. He went to the Police Station on 11.04.1994 and lodged the report. He also went to the Superintendent of Police, Una and lodged a complaint in writing. The Superintendent of Police, Una assured him to look into the matter. In the application submitted to Superintendent of Police, Una, he named Anil Kumar and other accused as suspects. According to him, Anil Kumar accused had become God-brother of his daughter and used to visit their house, but he had seen him doing some unwanted acts with his daughter. He told Anil Kumar not to visit their house. 7. PW-7 Smt. Raj Kumari is the mother of PW-8. She deposed the age of her daughter about 17 ½ years at the time of occurrence. She also deposed that Nisha Rani (PW-8) was studying in 10+1 at Kaloh and had gone to school as usual in the morning on 21st March, 1994. She did not return from the - 4 - school in the evening. She searched for her in the school and in the hospital, but she learnt from the school that she had not come to school on that day. She informed her husband at Chandigarh. He came on the next day. Her husband searched for Nisha Rani with their relations at Hosiarpur, Chandigarh and Delhi, but she was not traceable. They learned that Anil and one other person had taken Nisha for the purpose of performing marriage. She admitted in cross-examination that the accused’ s family and their family was on visiting terms. 8. PW-8 is Nisha Rani. She deposed that prior to her marriage on 02.05.1996, she was living with her mother and other family members at Gagret. She was studying in R.M.V. College, Gagret. She was going to her college on 21.03.1994. Indu Bala accused was also studying in her college at that time in the same class. Indu Bala used to tell her that she will marry Satish Kumar accused. She used to ask her that she should marry Anil Kumar accused. Anil Kumar accused used to call her and Indu Bala used to threaten her that in case she will not go to meet Anil Kumar, he will consume poison. She also admitted that Anil Kumar was her Rakhi brother. Anil Kumar used to ask her to marry him. On 21.03.1994, Anil Kumar accused met her at Gagret Chowk on her way to college. Indu Bala was also accompanying Anil Kumar at that time. She came with Indu Bala in a bus to Una since she had told her that a form is to be filled at Una for getting her job. She was to take employment and, therefore, she had come to Una with her. Anil Kumar had not accompanied them at that time. Satish Kumar accused met them at bus stand, Una. Satish Kumar made her and Indu Bala - 5 - board a van and brought them to Mehatpur. She asked them where they were taking her, but they did not tell her anything. At Mehatpur, Satish Kumar got her and Indu Bala boarded in a bus for Kullu, but did not tell her where she and Indu Bala were going to. She asked him where they were to go, but he did not tell anything to her. She was not knowing where she was going in a bus alongwith Indu Bala. Since she had resiled from her previous statement recorded by the Police, she was cross- examined by the Public Prosecutor. She deposed that her statement was recorded by the Police on 13.11.1994. She admitted that she stated in her statement before the Police that Indu Bala used to say her that she will elope with accused Satish Kumar. She used to tell her that accused Anil Kumar likes her and she should go with him and it will be better. She also admitted that Indu Bala had planned with accused Satish Kumar to run away on 21.04.1994. She did not agree with them and told them that she will not go and leave her parents and brothers. She also admitted that she had stated to the Police that on her refusal, Indu Bala was annoyed with her and she again said to her that she is her well wisher. She admitted that Satish Kumar took Indu Bala and her to Banjar, where he stayed with them in a house of his friend and not in room taken on rent by him. She also admitted that after 4-5 days, Anil Kumar also came there. Anil Kumar stayed there for 2-3 days and came back after handing over some money to Satish Kumar. She also admitted that accused Satish Kumar went to Kullu and married Indu Bala. They were also insisting that she should marry Anil Kumar. Anil Kumar stayed with them for one day at - 6 - Banjar and then brought them to Gagret side. She was apprehended by the Police at Gagret. When she was cross- examined by the counsel for accused Anil Kumar, she deposed that the house of Anil Kumar and their house are close by at Gagret. They were on visiting terms with each other. She also admitted that she did not lodge any protest and complaint to any person at Una or Mehatpur and Banjar that she was being taken forcibly. She stated in her cross-examination that she was medically examined on the same day when she was apprehended by the Police. 9. PW-10 is Smt. Sadhana, Pirincipal, K.M.V. College, Gagret. She deposed that certificate Ex. PW-10/A was issued by her as per the application form filled by the girl and her date of birth verified from Government Sr. Secondary School, Ambota. According to her, the date of birth of Nisha Rani was 15.09.1976. In her cross-examination, she stated that the certificate of Senior Secondary School was brought by the Clerk on the same day, i.e., 30.04.1994 when certificate Ex.PW-10/A was issued by her. 10. PW-5 has medically examined PW-8. According to her, the age of PW-8 was 17 ½ years. She issued M.L.C. Ex.-PE. It will be apt at this stage to reproduce the history narrated by Nisha Rani to PW-5, which reads thus: “History: Miss Nisha Rani says that they had plan to get married. Her parents came to know about this affair which was from 4-5 years. Her parents tortured her physically and mentally. Her parents threatened to keep her under lock and key after heer exams. So - 7 - they decided to run away. The boy named Anil Kumar sent her to Bhanjar to Bhagwati Devi who was related to Anil Kumar, on 21.3.1994. She stayed there till 23.4.1994. She was coming to the Police Station to give her statement that she went away with the accused on her own will. Both of them were caught by the police and the boy was arrested. She was sent to her parents, who she says pressurized her to say that she was raped and was threatened that they will kill her. Marital Status: Not married. Gynae History: 4-5/30 days, regular, L.M.P. 10 days back. Sexual History: Since 1 year they were living like husband and wife. Contact was once in a while. Examination: Shows bruise marks over whole body which were because of torture by her ‘Massi’ and ‘Mama’. Examination of hymen: Hymen is not intact whitish discharge present on her pyazamas. No injury on vagina. Examination of breast: No injury. Swab was taken from posterior fornix for examination. From the examination of breast and vagina, it appeared that there was no intercourse within three days.” 11. It is evident from the statement of PW-1 Joginder Singh that Nisha Rani was 18 ½ years and according to the statement of PW-7 Smt. Raj Kumari, she was 17 ½ years at the time of occurrence. The certificate Ex.PW-10/A issued by PW-10 Smt. Sadhana, mentions the age of Nisha Rani as 17 ½ years. The prosecution has not proved the age of PW-8 by leading any primary evidence. The prosecution has neither produced the original record from the Panchayat nor from the school. The - 8 - evidence led by the prosecution does not prove that the age of the prosecutrix at the time of occurrence was below 18 years. PW-1 has only stated that he was informed by his wife that PW- 8 was missing. He came to village and started searching for her. He went to lodge a report with the Police on 11.04.1994. Police did not investigate the matter properly. Thereafter, he went to Superintendent of Police, Una. It was only after the lodging of the complaint with S.P., Una that the investigation started and Nisha Rani was recovered. He admitted that Anil Kumar had become God-brother of his daughter and Anil Kumar used to visit his house and he was not happy with this situation. PW-7 Smt. Raj Kumari has also deposed the manner in which her daughter has disappeared on 21.03.1994. She also admitted in her cross-examination that the relations between the family of accused Anil Kumar and her family were cordial. Statement of PW-8 does not inspire confidence. It is apparent that she was a willing party. She had gone to Una from Gagret and thereafter she had gone to Mahetpur. From Mahetpur, she had gone with Satish Kumar and Indu Bala accused to Banjar. She had stayed at Banjar for few days. She had not raised any hue and cry and complained to any person while travelling from Gagret to Una, Una to Mahetpur and thereafter from Mahetpur to Banjar. PW-5 Dr. Neelam has recorded the history of PW-8. She had noted that PW-8 had planned to marry Anil Kumar, but her parents came to know about this affair which was going on for 4-5 years. Her parents tortured her physically and mentally. Her parents threatened to keep her under lock and key. Therefore, they decided to run away. The boy, named Anil Kumar sent her to - 9 - Banjar on 21.03.1994. She stayed there till 23.04.1994. They were apprehended by the Police and the boy was arrested. Thus, it is clear that PW-8 was having affair with Anil Kumar. They wanted to marry each other. Anil Kumar was visiting their house, though this was not acceptable to the family of PW-8. The information given by PW-8 that she had gone to seek employment is not believable. The version of PW-8 that Indu Bala accused used to tell her that if she will not marry accused Anil Kumar, he will consume poison, does not inspire confidence. We have already noticed that she was having affair with Anil Kumar and there was no occasion for Indu Bala to tell Nisha Rani that Anil Kumar will consume poison if she does not marry with him. In view of the above discussion, we find no merit in this appeal, which is accordingly dismissed. Bail bonds are ordered to be discharged. (R.B. Misra), Judge (Rajiv Sharma) Judge June 17, 2010. (bhupender) - 10 -