1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 392/1997 Decided on: September 6 , 2010 State of H.P. …Appellant. VERSUS Vidya Singh ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge Whether approved for reporting?1 For the Appellant: Mr.Anil Jaswal, Dy.AG. For the respondent: Mr. Vipan Rajta, Advocate R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure, in reference to judgment dated 31.5.1997 passed by learned Sessions Judge, Shimla, District Shimla HP, in Sessions Tr. No. 17-S/7 of 1995, thereby acquitting the respondent / accused of the offences under Sections 366 and 376 of IPC. 2. The prosecution case, in nut shell, is that on 29.6.1996, one Mian Ram son of Rattan Dass, Mistri, resident of Kawar, Tehsil Dodra Kawar, District Shimla, lodged a report saying that he was staying in village Tangnu along with his family members for the last few days for earning his livelihood and that Whether the reporters of the local papers maybe allowed to see the judgment? 2 four days back his daughter, the victim-prosecutrix, aged about 13 years had gone to attend the marriage of one Kedar Singh, from where she was kidnapped by the accused /respondent Vidya Singh and when he went to the house of accused/respondent to know the whereabouts of her daughter, accused/respondent and his family members tried to assault and accordingly FIR was lodged. The girl was recovered from the custody of accused/respondent Vidya Singh and later on her custody was entrusted to her father Mian Ram. Whereas the victim-prosecutrix, in her statement under section 161 Cr.P.C has stated that the accused Vidya Singh is the son of her father’s real sister and for the last 4-5 months her parents, her brother and sisters and she herself had been staying at the house of the accused and her father directed the victim-prosecutrix to have cohabitation with accused as his wife and, as such, on the permission of her father, she started living with the accused as his wife and was being sexually assaulted almost everyday. On investigation, the accused/respondent was charged of the aforesaid offences. The case was committed for session trial. 3. In order to prove its case, prosecution has examined as many as 11 prosecution witnesses, whereas to his statement, under section 313 Cr.P.C, accused/respondent denied the prosecution case. 4. The age of the victim-prosecutrix was said to be about 13 years in the year 1994, showing her date of birth as 11.4.1981, however, the victim-prosecutrix has denied that she had been kidnapped. On analysis of the prosecution witnesses 3 and materials on record and the FIR Ex PA, it appears that the victim-prosecutrix was kidnapped four days prior to the lodging of FIR (i.e the FIR was lodged on 29.6.1994) when she had gone to attend the marriage of one Kedar Singh, but the victim- prosecutrix, in her deposition as PW-9, has stated that she was kidnapped three months prior to her restoration to her parents by the police (her custody was restored to her parents on 30.6.1994) that is to day just one day after the lodging of the FIR. PW-9, victim-prosecutrix has further stated that she was kidnapped from her house when her parents had gone to the jungle to work as labourers. She specially denied that she was not kidnapped from the marriage of Kedar Singh. Not only this, PW-9 stated that she was not allowed to attend the marriage of Kedar Singh because she had been detained in the house of the accused and this fact had been kept concealed from her parents. The mother of the victim-prosecutrix Smt. Bimla Devi (PW-8), in her cross examination, has stated that victim-prosecutrix was kidnapped from the place of Kedar Singh. As such, we notice that the statements of victim-prosectrix PW-9 and PW-8, Bimla Devi, mother of the victim-prosecutrix are contradictory regarding kidnapping. 5. As per the testimony of victim-prosecutrix, she was kidnapped from her father’s rented premises, whereas her mother PW-8 Bimla Devi, in her cross examination, has stated that she was kidnapped from Kedar Singh’s house, where the victim had gone to attend the marriage. According to the FIR, victim- prosecutrix was kidnapped from Kedar Singh’s house. It appears 4 from the evidence that the marriage of Kedar Singh had taken place only 405 days prior to the alleged recovery of victim- prosecutrix. From the testimony of victim-prosecutrix, it appears that Kedar Singh’s marriage took place only few days prior to the lodging of FIR because she has stated in her cross examination that she was not allowed to attend the marriage of Kedar Singh as she had been kept concealed in the house of accused for the last more than three months. No doubt, victim-prosecutrix had been staying with the accused, who had sexually assaulted her for about three months almost daily before her custody was restored to her parents vide memo Ext PB, but analysis makes it a different story that she could not have been at the residence of the accused for more than 4-5 days. Victim-prosecutrix has deposed in the court that she was kidnapped and kept confined in the house of accused for three months, where the accused sexually assaulted her almost daily, vide her statement under section 161 Cr.P.C. Ext DA with which she was duly confronted and she has stated that she had been settled with the accused as his wife by her father 4-5 months back, when her parents, brother and sister and she herself had been staying at the accused’s parents place. As such, the victim-prosecutrix contradicted in material particulars, so far as her deposition that she was sexually assaulted by the accused is concerned. 6. In the present facts and circumstances of the case, marriage of victim-prosecutrix with accused was never proved and kidnapping of victim-prosecutrix was also not proved. If as per the testimony of victim-prosecutrix that she along with 5 brothers, sisters and parents were residing in the house of accused, then as per her testimony, there cannot be any kidnapping. Her testimony is self contradictory as she had divulged that she was not allowed to attend the marriage of Kedar Singh, whereas, as per the prosecution case, she was kidnapped from the place of marriage of Kedar Singh. Neither the victim- prosecutrix was medically examined nor her testimony appears to be reliable. A different version is being revealed from her own testimony regarding stay and regarding sexual assault also. 7. On the analysis of the prosecution witnesses and material on record we are of the considered view that the learned Sessions Judge has rightly arrived at finding that the prosecution has failed to prove its case beyond reasonable. Therefore, the criminal appeal, being devoid of merit, is accordingly dismissed. 8. The bail bonds, furnished by the accused/ respondent, are discharged. ( R.B.Misra ), J. 6th September, 2010 ( V.K.Sharma ), J. (sl) 6