IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 718 of 1996 Date of decision: 15.05.2010 ________________________________________________________________ The State of H.P. .....Appellant. Versus Neelam and others .....Respondents. Coram The Hon 'ble Mr. Justice R.B. Misra,J. The Hon’ble Mr. Justice V.K. Sharma, J. Whether approved for reporting?1 ________________________________________________________________ For the appellant: Mr. Vivek Thakur, Deputy Advocate General. For the respondents: Mr. Mehar Chand, Advocate vice Mr. R.K. Gautam, Senior Advocate. ________________________________________________________________ R.B. Misra, J (Oral). The present criminal appeal has arisen after the leave to appeal has been granted in reference to judgment, dated 01.04.1996, passed by the learned Additional Sessions Judge, Solan, District Solan, in case No. 12-S/7 of 1995 in reference to the offences under Sections 363, 366 and 376 IPC, acquitting the alleged accused. 2. In order to adjudicate the criminal appeal, it is necessary to give the factual background of the case. 3. Soma Devi, the victim, prosecutrix was married with one Het Ram (PW-2) on 09.05.1993 according to Hindu rites and customs and on 17.09.1993, PW-2 Het Ram had come to the parental house of the prosecutrix. At that time he gave Rs. 5/- to Soma Devi. Thereafter prosecutrix left her husband in order to meet her friend Neelam, 1 Whether reporters of Local Papers may be allowed to see the judgment? :-2-: alleged accused, and thereafter did not turn up. It was alleged that Soma Devi was taken to Chamakaripul in maruti van HP 24-0157. Thereafter she was taken to Barmana and then Jallandhar and thereafter to Quadian where she remained with one Balbinder Singh, the alleged accused, with whom she was well acquainted since past. Neelam and Lakhbinder Singh, the alleged accused, wanted that Balbinder Singh should marry with Soma Devi. During the stay with Balbinder Singh, Soma Devi was sexually assaulted by Balbinder Singh, however, a report of missing was filed on 19.09.1993, Ex. PC (FIR No. 120/1993) by PW-2 Het Ram, husband of Soma Devi. Police arrested the alleged accused Neelam and Lakhbinder on 24.09.1993 and had recovered Soma Devi, prosecutrix, from the residence of Balbinder Singh at Quadian and she was medically examined on 22.09.1993 by PW-1 Dr. Manjeet Kaur Baweja and alleged accused was also medically examined by PW-6 Dr. Udit on 27.09.1993. 4. The alleged accused were charged for offences under Sections 363, 366 read with Section 34 IPC and Section 376 Indian Penal Code on 30.09.1995 and prosecution in order to prove its case examined thirteen witnesses, whereas, the alleged accused have shown their ignorance and they denied the involvement in the offences through their testimony under Section 313 Cr.P.C. 5. PW-2 Het Ram, the husband of the prosecutrix in his endeavor to explain the delay has, however, failed to explain the delay of two days in lodging the FIR, which was treated to be fatal and considered so by learned trial court. As per version of PW-2 Het Ram, husband of the prosecutrix, his relation with Soma Devi was not congenial. She was not liking him and she was not comfortable with the marriage. She wanted to marry with some other person. :-3-: 6. On the basis of record we notice that the prosecution has tried to prove Ex. PW-10/A, the extract of Pariwar Register, which was duly proved by PW-10 Bhagat Ram being Secretary of Gram Panchayat, that the prosecutrix was born in the year 1975, whereas the testimony of PW-1 Dr. Manjeet Kaur and PW-2 Het Ram as well as testimony of PW-11 Soma Devi shows that the age of the prosecutrix was about 19 years. 7. We also noticed that the prosecutrix was taken to Chamakaripul in a van accompanying the accused, specifically Balbinder Singh and thereafter accompanied alleged accused up to Bilaspur and from Bilaspur she was taken to Barmana by the alleged accused Balbinder, where she stayed in a room with Balbinder and she had sexual intercourse with Balbinder with her consent and thereafter Soma Devi stayed for several days with Balbinder, alleged accused. She never raised hue and cry, even she was being taken by bus from Barmana to Jallandhar and from Jallandhar to Quadian and in bus 50 to 60 passengers were traveling. 8. PW-3 Piara Lal, brother of prosecutrix, has not narrated anything about the occurrence. PW-4 Jagan Nath, who has been associated with investigation has only disclosed that Balbinder Singh has taken away the prosecutrix to Gurdaspur. PW-8 Amar Nath the driver of taxi No. HP 24-0157 has stated that on 19.07.1993 the prosecutrix and Neelam boarded his taxi and alighted at Chamakaripul. Even from the testimony of prosecutrix nothing is emanating that she was forcibly taken by the alleged accused for the purpose of sexual intercourse and she was not consenting to accompany the alleged accused Balbinder. As has been noticed that Soma Devi prosecutrix had all along been accompanying the alleged :-4-: accused Balbinder in a van upto Chamakaripul and had traveled with the alleged accused at many places but there is no iota of evidence on record to show that the alleged accused had ever threatened her with dire consequences if she disclosed the factum of alleged kidnapping, abduction and her commission to sexual intercourse without her consent. It does not stand to reason that she has not volunteered to accompany the accused and has not consented for sexual intercourse and nothing is emanating that she has raised any alarm or hue and cry during the company of alleged accused. 9. On the basis of material on record, prosecution witnesses and the version of prosecutrix as well as PW-2 Het Ram, the husband of the prosecutrix and keeping in view the age of prosecutrix and the behaviour of prosecutrix from the date of her alleged kidnapping up to the date of her recovery, the learned trial court has rightly arrived on a finding that prosecution has not been able to prove the guilt against the accused beyond reasonable doubt. 10. In our considered view, the prosecution has failed to prove its case, moreso, on the basis of material on record the alleged accused has rightly been acquitted. There is no scope of interference in the judgment of the trial court and appeal being devoid of merit is dismissed. (R.B. Misra) Judge (V.K. Sharma) Judge 15th May, 2010 (virender)