IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.A. No. 328 of 1995 Date of Decision: 6.11.2008 State of H.P. …Appellant Versus. Balbir Singh .. Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K.Ahuja, Judge. Whether approved for Reporting? No For the Appellant(s): Mr. R.M.Bisht, Dy.A.G. For the Respondent(s): Mr. Ashwani Sharma, Advocate. __________________________________________________________________ Deepak Gupta, J.(oral) This appeal is directed against the judgment of the learned Additional Sessions Judge (1), Kangra at Dharamshala in Sessions case No.7-P/94 decided on 28.7.1994 whereby he has acquitted the respondent-accused of having committed offences punishable under Sections 363, 366 and for abetment of offence under Section 376 IPC. The prosecution case, in brief, is that the accused Balbir Singh along with co-accused Lachhman (who has been declared a proclaimed offender) had dinner at the house of Desh Raj father of the prosecutrix. Both these persons reached the house of Desh Raj on a scooter driven by respondent Balbir Singh. After partaking the meals they left the house at about 10 p.m. Around 11 p.m. the prosecutrix who is alleged to be only 14 years old went outside the house to answer the call of the nature. It is alleged that Lachhman was standing outside the house. He gagged the mouth of the - 2 - prosecutrix and forcibly made her sit on the scooter which was driven by the respondent Balbir. After some distance the respondent- accused reportedly stopped the scooter and Lachhman then took the prosecutrix towards the jungle where he raped her. Thereafter, on the morning of 27.1.1992 at about 4 a.m. Lachhman left the prosecutrix in the godown of the respondent from where she was recovered by the police. After the prosecutrix failed to return to her house, her father along with his neighbours went to the police station and lodged a missing report at Police Station, Palampur. According to the prosecution, next morning the prosecutrix was recovered from the godown of the respondent in the presence of her father and two other persons, namely, Puran Chand and Om Parkash. The prosecutrix was got medically examined and after completion of the evidence challan was filed. Lachhman was declared to be a proclaimed offender and no trial could take place against him. The respondent-accused contested the case and pleaded not guilty. After trial the learned trial Court acquitted the accused mainly on the ground that the identity of the person who was driving the scooter when Lachhman kidnapped the prosecutrix has not been established. It stands proved on record that both Balbir and Lachhman had dinner in the house of the father of the prosecutrix. The prosecutrix while appearing in Court states that about one hour after Balbir and Lachhman had left her house she came out of the house to answer the call of the nature. There she saw Lachhman who gagged her mouth - 3 - and made her sit on scooter driven by Balbir. She admits in cross examination that she did not see the face of the person driving the scooter nor she talked to the said person. She also admits that it was dark. The distance for which the scooter was driven was only about two furlongs. It is therefore clear that she could not have identified the person driving the scooter. In fact the prosecutrix admits that she presumed that it was Balbir who was driving the scooter since he was driving the scooter earlier when Balbir and Lachhman come to her house to have dinner. Even if the entire evidence of the prosecutrix is treated as the gospel truth, it is apparent that no case is made out against Balbir. It is not the allegation of the prosecutrix that he raped her. According to her he was driving the scooter on which Lachhman forcibly made her to sit. As discussed above, from the evidence of the prosecutrix itself it cannot be held that it was Balbir who was driving the scooter. The mere fact that she was allegedly dropped at the godown of Balbir after the incident is not sufficient to hold that it was Balbir who had kidnapped and abducted the prosecutrix or that he abetted in the rape committed by Lachhman. There is great discrepancy in the prosecution version about the time of the recovery of the prosecutrix from the godown of the respondent-accused. According to the prosecutrix she was recovered at 7 a.m. by the police and only her father had accompanied the police. According to the Investigating Officer the prosecutrix was - 4 - recovered at 3 p.m. in the presence of the father Desh Raj, Puran and Om Parkash. PW-4 father of the prosecutrix gives the time of the recovery at 4 p.m. According to him the recovery was made in the presence of Om Parkash and Puran. However, Puran has given a totally different version and states that the prosecutrix was not recovered in his presence. Om Parkash was not examined. This casts a grave doubt on the version of the prosecution. In view of the above discussion, we find no reason to interfere in the judgment of the learned trial Court. The appeal is accordingly dismissed. Bail bonds furnished by the accused are discharged. ( Deepak Gupta ), J. November 6, 2008. ( V.K. Ahuja ),J. PV