IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 189 of 1997 Reserved on: 05.07.2010 Date of Decision: 20.8.2010 State of H.P. …Appellant. Versus. Shukar Din and another …Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol,, Judge. Whether approved for Reporting? No. For the Appellant: Mr. Vivek Singh Thakur, Addl. Advocate General. For the Respondents: Mr. N.K.Thakur, Advocate. Per Deepak Gupta, J. 1. This appeal by the State is directed against the judgement dated 31.12.1996 delivered by the learned Sessions Judge, Chamba in Sessions Case No. 39 of 1994 whereby the accused No.1 Shukar Din was acquitted of having committed offences punishable under Sections 363 and 366 of the Indian Penal Code and accused No.2 was acquitted of having committed offence punishable under Section 376 IPC. 2 2. The prosecution case in brief is that on 26.07.1990 Shri Noor Din and Lasma lodged a complaint with the Police Station Chamba. It was alleged that Lasma’s daughter (prosecutrix-F) aged about 11 years and Noor Din’s daughter (prosecutrix-H) aged about 9 years were missing from 27.6.1990. According to the averments made in the complaint these two girls had been kept in the house of Mansho. It was further alleged that Mansho and his sister Smt. Ratto thereafter made these two girls board a bus at Chaned, which bus was bound for Jammu. On 26.7.1990 Mansho met the complainant in the bazaar and when confronted by the complaint sought two-three days time to trace the girls. When he was asked to come to the Police Station he fled away. On this basis case under Sections 363 and 366 IPC was lodged on 28.7.1990. However, no progress took place in the case for more than two years. 3. On 2.11.1992 a letter Ext.PM contained in envelope Ext.PL was received by Shri Bashir S/o complainant Noor Din. This letter was sent by one Abbas Mawe Wala of Charthawal town of District Mujaffarnagar. In this letter Abbas intimated Bashir that the prosecutrix-H (sister of Bashir) was with him for the last four months and he 3 could come and take her. This letter was taken to the Police Station and thereafter the police alongwith the complainant proceeded to Muaffarnagar where Abbas produced prosecutrix-H and she was handed over to her father Noor Din on 10.11.1992. The investigation revealed that Abbas had come across the prosecutrix-H at a road crossing in Mujaffarnagar in a pitiable condition. He, therefore, had taken pity on her and provided her shelter and he treated her as her own daughter. 4. Thereafter, on the information given by prosecutrix-H, prosecutrix-F was recovered from the house of Zakir Hussain on 11.11.1992 and entrusted to the custody of her uncle. Prosecutrix-F was medically examined by PW- 1 Dr.Mrs. Kamlesh Dogra, who found that she was habitual to sexual intercourse and was aged between 14 to 16 years. Prosecutrix-H was also medically examined and it was found that she had not been subjected to sexual intercourse and from physical appearance she was aged between 10 to 14 years. Thereafter, both the accused were arrested and charged with the offences mentioned here-in-above. 5. We have gone through the statements of the witnesses and the other documentary evidence carefully 4 and we find that the learned trial Court was fully justified in acquitting the accused. 6. As far as the prosecutrix-H is concerned, she has not at all supported the prosecution version. Even if we take up the story of the prosecutrix-F according to her she was instigated by accused No.1 to leave the village and go to Bombay where she wanted to become an actress. He also assured her that he had made all arrangements for taking her to the city. He also instigated her to take her younger sister prosecutrix-H with her. On the date of the occurrence, he met these two girls when they were grazing their cattle and told them that a bus was to arrive shortly and they should board that bus and meet him at Chanju nullah. They boarded the bus at Kapadigala and got down at Chanju nullah and stayed in the house of Mansha. Mansha helped them board a bus for Dalhousie in the morning where accused Shukar Din met them. He asked them to sit in a bus bound for Pathankot and gave money to both of them. He also told them that at Pathankot they should catch a bus for Jullandhar and he will meet them at Jullandhar bus stand. The two girls arrived at Jullandhar but did not meet the accused. One old lady met them and she asked them to accompany her 5 to her house. They stayed in the house of the old lady and next day the old lady made them board a bus for Chandigarh. She also gave them the fare for Chandigarh and told these girls that Shukar Din would meet them at Chandigarh. At Chandigarh another old lady met them and promised that Shukar Din would meet them at the Maszid. They both stayed in the Maszid for 10 days and thereafter a Kazi, namely, Khursid took them to Manimazra where he used to teach school children. He kept them there for two months. After that Khursid took these two girls to a place namely Sujdru in Uttar Pradesh and after three days of their arrival at Sujdru the prosecutrix-F was sent alongwith accused Zakir by Khursid where she was sexually abused. The prosecutrix- H remained in Sujdru with the mother-in-law of Kazi Khursid. 7. The story put up by the prosecutrix does not have a ring of truth. It is not supported by the other evidence. According to the prosecution case, the girls were missing from 27.6.1990 but the matter was reported to the police after one month on 26.7.1990. According to the prosecutrix-F accused Shukar Din offered to take her to Bombay but she had not disclosed this fact to her parents 6 or other members of her family. There is no material on record to show that accused Shukar Din allured either of the two girls to leave the house. The girls went of their own accord and after Dalhousie they travelled on their own from one place to the other. No case is made out against accused Shukar Din. 8. As far as the other accused is concerned, from the evidence on record it is apparent that after the girls reached Chandigarh one lady met them at the bus stand. This lady took the girls to the Police Station at Chandigarh. The police official at Chandigarh could not understand the language of the girls since they only knew Chambiali dialect and could not speak in Hindi. In fact, there is material on record to show that the lady wanted to adopt these girls but the police officials at Chandigarh found that the girls were Muslim and therefore, did not think it proper to allow a Hindu lady to adopt the girls and he took them to the Maszid at Chandigarh. There Khursid who was the Kazi of the Maszid looked after these two girls. He after some time realizing that he could not trace out their antecedents took these two girls to his in-laws house and got the elder girl married to accused No.2. 7 9. There is no conclusive evidence regarding the age of the girls and we find from the evidence on record that the Kazi, the police officials at Chandigarh were all trying to help the girls. In fact, it is only because of their kindness that this other girl who was missing from the house for more than two years was not subjected to any sexual abuse by anybody. In fact, this was a case where the accused should not have been prosecuted at all. 10. In view of the above discussion, we find no merit in the appeal, which is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. 20th August, 2010 (Sanjay Karol ) ™ Judge.