IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.70 of 2005 Decided on : April 21, 2008 Dinesh ......Appellant. VERSUS State of H.P. ......Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. M.S. Guleria, Advocate. For the respondent : Mr. P.K. Sharma, Additional Advocate General, with Mr. P.M. Negi, Deputy Advocate General. Surjit Singh, Judge (Oral) Appellant has appealed against the judgment of the Sessions Court, whereby he has been convicted and sentenced of offences punishable under Sections 366 and 376 of the Indian Penal Code, for allegedly abducting and raping the prosecutrix, who, at the relevant time, was aged more than 18 years. The date of birth of the prosecutrix, as per prosecution evidence, is 5.11.1984. The alleged incident of abduction took place on 28.5.2003 and she was raped on 29th and 30th May, 2003. 2. Case of the prosecution is that the prosecutrix is resident of a village in Una District. Appellant Dinesh, who hails from a village in Hardoi District of U.P. State, alongwith some other persons of his area, was employed as a labourer by a construction Whether the reporters of the local papers may be allowed to see the judgment? …2… contractor. The site of the construction was at a distance of about 200 metres from the house of the prosecutrix. Appellant came into contact with the prosecutrix, as he used to keep his tools and some building material like cement etc. in a hut behind the house of the prosecutrix. The appellant and two other persons, named Bachu and Dhani Ram, who too were impleaded as accused with the appellant, used to tell the prosecutrix that the appellant had a large piece of land, besides a tractor and so many other things, creating an impression in her mind that he was a rich man. After the appellant and his above-named two co-accused had worked with the construction contractor for about a month, they were removed from the job by the said contractor and the prosecutrix did not see them in or around her village for quite some time. On 28th May, 2003, when the prosecutrix went to river Swan to collect fodder, appellant and his above-named two co-accused appeared there. They asked the prosecutrix to accompany them to their village in Hardoi District of U.P. and promised that she will be brought back to her native place. The prosecutrix went with them by bus upto Ludhiana, where all of them boarded a train for Hardoi. 3. Matter was reported to the police by a first cousin of the prosecutrix, namely Mansuri Lal (PW-3). Police investigated the matter. Search of the house of the appellant in Hardoi District was conducted and the prosecutrix was found there. She was got medically examined. She made a statement to the police that she had been raped repeatedly on 29th and 30th May, 2003, by the appellant in his hut in the area of Hardoi District. Appellant was also …3… got medically examined. He was found to be fit to perform sexual intercourse. 4. Trial Court has believed the version of the prosecutrix, so far as the role of the present appellant is concerned and convicted and sentenced him, as aforesaid. The other two persons, who were charged alongwith the appellant, were acquitted. There is no appeal by the State against the acquittal of those two persons. 5. We have gone through the record and heard the learned counsel for the appellant as also the learned Additional Advocate General. 6. Admittedly, the prosecutrix was more than 18 years of age, at the time of the alleged abduction. Now, in a case of abduction, what is required to be proved by the prosecution is that the prosecutrix was taken away either forcibly or by deceitful means. It is not the case of the prosecution that the prosecutrix was taken away by use of force. Prosecution has sought to establish that deceitful means were practiced by the appellant and his two accomplices to abduct the prosecutrix. Prosecutrix’ own testimony, which she made as PW-2, gives a lie to the story of her having been abducted or taken away by deceitful means. She has stated that on the fateful day the appellant and his two accomplices approached her in Swan river where she had gone to collect fodder with the offer that she accompanied them to their village in Hardoi District and promised to bring her back. 7. The prosecutrix is not a simpleton lady. She had studied upto 8th standard. She was a young girl. She must have understood the meaning of the offer of the appellant and his …4… accomplices and comprehended the consequences of her going with them to their village in Hardoi District, which was an unknown place for her. Normally, no young woman of the age of the prosecutrix would accompany a stranger just on being asked to do so, especially when the stranger belongs to a strange area. The conduct of the prosecutrix speaks volumes. It appears that she was a willing person to go with the appellant. 8. It is also made out from the prosecution’s own evidence that on reaching the native place of the appellant the prosecutrix visited the Office of the District Magistrate, Hardoi, in the company of the appellant and submitted an application, Ex. DA, for the registration of their marriage. The prosecutrix travelled with the appellant and his accomplices from river Swan to Gagret and from there she went with them by bus to Ludhiana and on the way they changed the bus at Hoshiarpur. At Ludhiana they boarded a train for Hardoi. On reaching the place of the appellant, the prosecutrix slept with him in a room, which was not occupied by any other person. They shared a single cot for the night. Appellant, per prosecutrix’ testimony, had had sexual intercourse with her twice or thrice in the course of the night. On the next day also he had sexual intercourse with her during day time. She admitted that no alarm was raised by her. She also did not complain to anybody till the police reached the house of the appellant accompanied by her cousin PW-3 Mansuri Lal, who lodged report with the police. It was only after she was found at the place of the appellant that she made the statement to the police accusing the appellant of rape. …5… 9. In view of the abovestated position, we are of the firm view that neither the charge of abduction nor that of rape is proved against the appellant. From the prosecution evidence, it appears that the prosecutrix voluntarily went with the appellant to marry him and had had sexual intercourse with him of her own free will. Consequently, the appeal is allowed. Judgment of the trial Court convicting and sentencing the appellant is set aside. The appellant, who is in jail, undergoing the sentence of imprisonment awarded by the trial Court, is ordered to be set free immediately, in case his detention is not required in any other case. Appeal stands disposed of. ( Surjit Singh ), J. April 21, 2008(sd) ( Surinder Singh ), J.