IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 183 of 1997 Date of decision: 02.07.2010 _________________________________________________________________ The State of H.P. .....Appellant. Versus Mohinder Singh & others .....Respondents. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? _________________________________________________________________ For the appellant: Mr. Rajinder Dogra, Additional Advocate General with Mr. Anil Jaswal, Deputy Advocate General. For the respondents: Mr. K.D. Sood, Advocate with Mr. Sanjeev Sood, Advocate. R.B. Misra, J (Oral). The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment and order dated 07.09.1996, passed by the learned Additional Sessions Judge, Kullu, District Kullu, in Sessions Trial No. 13/95, acquitting the alleged accused No. 1 for the offences under Sections 363, 366 and 376(1) read with Section 34 of the Indian Penal Code, whereas, other alleged accused No. 2 to 6 have been acquitted for the offences under Sections 363 and 366 read with Section 34 of the Indian Penal Code. 2. In order to adjudicate the criminal appeal, it is necessary to give the factual background of the case. According to the prosecution, the prosecutrix (name withheld) at that relevant time was a student of 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... Government Senior Secondary School, Kullu and was learning tailoring, during the summer vacation in the school, in a Tailoring Centre at Shishamati and on 23.08.1994 had been going for tailoring centre alongwith her friends Ms. Naina Devi and Ms. Kaushalaya Devi. When they reached near Khalara Nullah, she observed a blue coloured maruti van, where accused Mohinder Singh was standing alongwith his companions and the victim was forcibly taken in the van. The other two girls were also manhandled and the prosecutrix was taken to the house of Mohinder Singh at village Chanaugi, where the victim was kept. The incident was revealed by Naina Devi and Kaushalya Devi to the mother of the prosecutrix on the same day at about 1 P.M. and in that connection, the mother of the prosecutrix visited the house of Mohinder Singh after 4-5 days of the incident and asked the accused Mohinder Singh to allow the prosecutrix to go to her house, however, accused had refused to send the prosecutrix back and threated the mother of the prosecutrix that she may meet the dire consequences. The mother of the prosecutrix informed her husband, Shri. Lubdhu Ram, through letter followed by a telegram, who at that time was in Army at Gorakhpur. In that reference father of the prosecutrix arrived at the village on 15.09.1994, who alongwith mother of the prosecutrix and Prithvi Raj, Vice President, went to the Police Station. However, at that time as per advice of the police, FIR was not lodged to save the reputation of the family of the prosecutrix. As per advice, uncle of the prosecutrix, Shri Moti Ram and Prithvi Raj, Vice President, visited the house of the accused and on their request, prosecutrix was not allowed to go back to the house of her parents and thereafter father of the prosecutrix lodged FIR on 18.09.1994, i.e., by delay of 25 days. After completion of investigation, accused persons were charged for the ...3... aforesaid offences and the case was committed to the Sessions Court for trial. 3. The prosecution in order to prove its case examined thirteen witnesses, whereas, the accused through their statements under Section 313 Cr.P.C. have denied the prosecution case. 4. PW-1 Dr. J.R. Thakur, stated that he examined accused Mohinder Singh and found him capable of performing sexual intercourse. 5. PW-2, prosecutrix while supporting the prosecution case has stated that on 23.08.1994, at about 12.O' clock, when she was accompanying with Naina and Kaushalaya had reached Khalara Nullah, she observed accused Mohinder Singh and Shashi standing near a maruti van, who caught hold of the victim and took her in the van. Despite struggle, PW-2 could not get rid of the accused. Naina caught of Mohinder Singh, but he pushed her away. There were three boys and one driver inside the van, later on, known as Dharam Raj, Gian Chand, Partap and the driver was Dipu. They took PW-2 to the house of Mohinder Singh at Chanaugi and the other accused went away. PW-2 was kept in the house of Mohinder Singh till 18.09.1994. During the entire period, despite her resistance, she was repeatedly sexually assaulted by accused Mohinder Singh. PW-2 tried to run away, but she was threatened to be killed. PW-2 further stated that she was given assurance by accused Mohinder Singh to marry her, as she was at that time 17 years of age. PW-2 has also stated that she had written two letters, Ex. PW-2/A and Ex. PW-2/B, out of which one letter was handed over to her mother, when her mother visited the house of the accused Mohinder Singh after 5-6 days of the incident. PW-2 was recovered from the house of accused Mohinder Singh accused on 19.09.1994 and was ...4... medically examined. 6. According to PW-2, 40-50 families were residing in village Chanaugi, Naina and Kaushalyawere friends of PW-2. 10 to 12 students were getting training in Tailoring Centre at Shishamati. PW-2 has also stated that mother of accused Mohinder Singh is niece of her material grand mother and mother of PW-2 used to visit the house of accused Mohinder Singh and mother of accused used to visit the house of PW-2. One sister of accused Mohinder Singh is married at village Chhurla. PW-2 in cross-examination has stated that the market is near Shishamati apart from residential houses and PW-2 was taken to Akhara bazar at Kullu only once during the period from 23.08.1994 to 18.09.1994 and Mohinder Singh accused got a photograph with PW-2 forcibly at akhara bazar and at that time sister of accused Mohinder Singh was also accompanying them. There are 6-7 families residing in village Chanaugi. PW-2 has also stated that her parents, uncle Moti Ram, Vicie President Prithvi Raj and Shanti Lal had come with police to the house of accused Mohinder Singh and took her (PW-2) to her house. 7. PW-2, the victim, has stated in cross-examination that she wrote another letter Ex. PW-2/A to the accused Mohinder Singh and on the next day she wrote letter Ex. PW-2/B to her father, respectively on 25.08.1994 and 26.08.1994, however, she did not post any letter during her stay from 23.08.1994 to 18.09.1994. PW-2 has also stated that when she was being taken in the van to village Chanaugi, she cried, but, her mouth was gagged by accused Mohinder Singh. PW-2 has also stated that during her stay at Chanaugi she did not tell any villager that she has been forcibly kept under detention by accused Mohinder Singh. She never told the police that accused Mohinder Singh had threatened her to kill. PW-2 was also taken to 'Fungni' fair at village Banogi during her ...5... stay with Mohinder Singh accused and during such stay, PW-2 had been doing house hold works, such as, cooking the meals etc. 8. PW-3, Uttra Dixit, Jr. Statistical Assistant, brought the register of Gram Panchayat, showing the date of birth of the victim as 31.01.1977. PW-3 Uttra Dixit stated that certificate, Ex. PW-3/A was prepared by her. 9. PW-4 Naina Devi, a friend of the victim, stated that the victim was her class fellow and on 23.08.1994 between 12 to 1 P.M. near Shishamati the victim was taken by Mohinder Singh in a blue coloured maruti van and at that time 3-4 other boys were inside the van. In the cross-examination PW-4 has stated that she had come from village Chhurla alongwith Smt. Anupa Thakur, her neighbour, the sister of Mohinder Singh. In cross-examination PW-4 has stated that accused Mohinder Singh and victim were friends and used to visit village Chhurla and victim wanted to marry Mohinder Singh whereas the mother of the victim was compelling her to marry with one Devi Singh. Therefore, she had accompanied Mohinder Singh accused at her own will. PW-4 on 23.08.1994 herself had told the mother of the victim that victim had gone to the house of Mohinder Singh. PW-4, Naina Devi, contrary to the statement of PW-2 had not stated that when the victim was taken by Mohinder Singh accused, PW-4 was also manhandled. PW-4, Naina Devi, who was stated to be friend of the victim, as per testimony of PW-2, whereas, Naina Devi PW-4 claimed her to be class fellow of the victim and PW-4 Naina Devi in cross-examination has stated that the victim wanted to marry accused and went at her own will accompanying Mohinder Singh accused as her mother wanted to marry her with one Devi Singh. As per the testimony of PW-2 she was married to Devi Singh on 08.06.1995. ...6... 10. PW-5, Kumari Kaushalaya Devi stated that on 23.08.1994, at about 12.O' clock, when Tailoring Centre, Sishamati, was closed, PW-5 alongwith PW-4 and victim left for their village and had reached Khalara Nullah at about 1 P.M. The victim was taken by accused Mohinder Singh and Shashi in a blue coloured maruti van and Naina Devi (PW-4) tried to rescue the victim, but she was pushed away by the accused Mohinder Singh. According to PW-5, 2-3 other boys were sitting inside the van, namely Deepu, Gaian and Dharam Raj, as their names were disclosed to PW-5 by Naina Devi. In cross-examination, PW-5 has stated that only three girl students were in the Tailoring Centre from Dughilag side. Kaushalya Devi, however, has stated in cross-examination that she did not raise any hue and cry on the spot from where the victim was being taken by the accused. PW-5 has also denied and has shown her ignorance that she was not aware as to whether the victim was interested in marrying the accused Mohinder Singh. 11. PW-6, Lubdhu Ram, father of the victim, has stated that he received telegram, Ex. PW-6/A, dated 12.09.1994, at Gorakhpur on 13.09.1994, indicating that his daughter was serious and PW-6 left Gorakhpur on 14.09.1994 and reached home on 15.09.1994 and on coming to know about the said incident of 23.08.1994, he went to the Police Station on 16.09.1994 and in order to save the honour of the family, report was not lodged. Thereafter, as per advice of the police, PW-6 alongwith his wife and brother went to the house of the accused Mohinder Singh, where the victim was residing, but accused refused to hand over the custody of the victim to her parents. Thereafter, on 19.09.1994 he lodged a report with the police. PW-6, being the father of the victim, was not even aware about the date of birth of the victim. PW-6 has further stated in cross-examination that letter, Ex. PW-2/B was ...7... handed over by the victim to her mother, whereas, Ex. PW-2/A was found by the mother of the victim beneath the pillow of the victim, in the house of the accused. 12. PW-7, Chandra Wati, mother of the victim stated that on 23.08.1994 PWs Naina Devi and Kaushalya Devi came to her house and told her that when they were returning from Tailoring Centre, accused Mohinder Singh came out of a van and forcibly caught hold of the victim and Naina Devi tried to save her, but, she was pushed away by the accused and the victim was taken forcibly by Mohinder Singh alongwith 3-4 other boys, namely, Partap, Gian, Shashi etc. According to PW-7, she went to the house of Mohinder Singh after 3-4 days, where the victim told her (PW-7) weepingly that she has been taken forcibly by accused Mohinder Singh and she had written two letters, Ex. PW-2/A and Ex. PW-2/B. PW-7 has further stated that she knew accused Mohinder Singh from past, as his sister is married in the village of PW-7. As per the testimony of PW-7, on persuasion, accused did not send the victim alongwith her and thereafter on 19.09.1994 report was lodged by the father of the victim. 13. PW-8, Dinesh Sain, stated that on 20.09.1994, police took into possession Maruti Van (Taxi) No. HP-2 3361 in his presence. PW-9, HC Hem Raj, stated that on 19.09.1994, four sealed parcels were deposited with him. PW-10, Constable Baldev Singh, stated that on 10.10.1994 four sealed parcels were handed over to him by MHC Hem Raj and he deposited the same at Forensic Science Laboratory, Bharari, Shimla. PW-11, Inspector Amar Singh, has supported the prosecution case to the extent that on receipt of Chemical Examiner's report, he had prepared the challan. PW-12, Dr. Shashi Thakur, had examined the victim and opined that the victim was habitual of sexual intercourse, ...8... however, the age of the victim was not ascertained. PW-13, SI Sham Lal, raided the house of accused Mohinder Singh on 19.09.1994 alongwith father of the victim and recovered the victim and completed the investigation. 14. From the scrutiny of prosecution witnesses, it appears that the victim/prosecutrix was friendly to the accused and both the victim and the accused were also relative. Both were friendly to the house of each other, however, the mother of the victim wanted to marry the victim with some other person against the wishes of victim and since in view of the statement of Naina Devi, the victim was given assurance of marriage by accused Mohinder Singh, therefore PW-2 victim went with the accused in a van. Naina Devi and Kaushalya Devi were stated to be accompanying the victim on the day of incident, however, contrary to the statements of Kaushlya devi and victim, Naina Devi, has not indicated that she was pushed away by accused Mohinder Singh when she was trying to rescue the victim from Mohinder Singh. The victim at one place has stated that she cried in the van, but, her mouth was gagged by the accused. From the testimony of the victim it appears that she remained in the house of accused Mohinder Singh for about 26 days and during that period her mother also visited her and she allegedly wrote letters, one to her mother and the other to the accused Mohinder Singh, but she did not post the same despite availing opportunity and she gave one letter to her mother, however, the contents of the letter deliberately not discussed. Even as per the testimony of father of the victim, he alongwith his wife and his brother visited the house of accused, but accused did not allow the victim to go to her parents' house and in order to save the honour of the family, report was not lodged and the report was lodged after a delay of 26 days after ...9... consultation. 15. During the stay of the victim with accused Mohinder Singh, she was also taken to the market, to a fair and at several houses of the locality, however, despite availing several opportunities, though saying that she has been forcibly kept by the accused Mohinder Singh in his house, victim for the reasons best known to her did not divulge this fact to any of the villager or any person of the locality, including any person in the market or in the fair. From the narration of incidence, it appears that the matter was not taken so seriously as it could have been, had the victim really been forcibly taken by the accused Mohinder Singh. Naina Devi and Kaushlya Devi informed the mother of the victim on 23.08.1994 itself and the mother of the victim went to the house of the accused Mohinder Singh after 4-5 days to pursue the accused to allow her daughter to go back to her house. The incident is alleged to have been taken place in the manner as if the victim was really kidnapped from the lawful guardianship of her parents. The age of the victim was not ascertained and she was in the age of discretion and was certainly about 18 years whereas learned trial court has found that the victim was 18 years of age. From the incident, it appears that prosecutrix was consenting party, who happily had accompanied the accused Mohinder Singh. 16. As per birth certificate given by PW-3, the prosecutrix was born on 31.01.1977, as such on the date of incident she was 17 years, 7 months and 23 days, whereas, as per ossification test, her age was assessed as 19 years. Therefore, we can also take that the victim was above 18 years of age and her entire conduct and testimony indicate that for the sake of only saying, she stated that she was taken forcibly by the accused Mohinder Singh, however, she had willingly went with ...10... accused Mohinder Singh, as has been indicated by Naina Devi, i.e., one of the friend accompanying the victim on the date of incident. 17. We have gone through the contents of the impugned judgment, we are also of the considered view that the prosecution has failed to bring home the guilt against the accused and the prosecution has failed to prove its case beyond reasonable doubt against the accused-respondents. 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 2nd July, 2010 (virender)