1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 694 of 2002 Decided on August 29, 2011 _____________________________________________________ State of H.P. …Appellant. Versus Ramesh and others ...Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Dev Darshan Sud Judge. ¹Whether approved for reporting? For the appellant: Mr.R.K.Sharma, Senior Additional Advocate General with Mr.Rajinder Dogra, Additional Advocate General For the respondent: Mr.Purneet Gupta, Advocate. Justice Dev Darshan Sud,J. The state is aggrieved by the judgment of passed by the learned Additional Sessions Judge, Shimla, in Sessions Trial No.21-S/7 of 2000 on 17.2.2002 acquitting the respondents charged with offences under Sections 363, 366 and 511 read with Section 34 IPC for kidnapping the prosecutrix, namely, Guddi Devi (PW.1). 2. The case of the prosecution, as alleged against the accused, was that the prosecutrix was a student of class 9 in Government High School, Baggi. On 6.11.1999, she had gone to her house at village Jarla and on 9.11.1999, when 2 she was going to Baggi, at Ghanasidhar, near the sawmill, three accused Ramesh, Ishwar Dass and Jaggu met her and told that she had been called by her mother. She expressed her surprise as she had just come from her house. On this, it is alleged that accused Ramesh tried to snatch her chunni and other accused, namely, Ishwar Dass and Jaggu caught hold of her from her arms. Accused Ishwar Dass gagged her mouth with a chunni and thereafter the accused dragged her towards the jungle and took her towards Koferi temple. When accused Ishwar Dass took off his hands from her mouth, she raised an alarm. On hearing her cries, Atma Ram PW.3 came there and rescued her from the clutches of the accused, he was accompanied by his son Kehar Singh (PW.11). At that time the prosecutrix was wearing her school uniform and in the struggle, her shirt and sweater were torn. 3. The case of the prosecution is that accused Ramesh Kumar wanted to marry the prosecutrix. The case of the prosecution then proceeded that when Atma Ram (PW.3) and Kehar Singh (PW.11) came to the spot accused Ramesh as well as Jaggu fled away from there. Only accused Ishwar Dass remained there, who was taken to the house of Atma Ram PW.3. The prosecutrix narrated the entire incident to Atma Ram PW.3. Her mother was also 3 called there. Accused Ishwar Dass was taken by Kehar Singh PW.11 and the mother of the prosecutrix to the Police Post, Baggi. The prosecution case then proceeded when accused Ishwar Dass ran away from the Police Post. 4. On the evidence on record, the learned Additional Sessions Judge has acquitted the accused on two grounds; (a) that the factum of kidnapping or attempting to kidnap, the prosecutrix has not established; (b)that the prosecutrix was minor at the time of alleged occurrence is not established from the record of the case. In order to prove its case, the prosecution examined as many as 12 witnesses. 5. The prosecutrix appeared as PW.1 and supported the prosecution case. In cross-examination, she says that she was engaged to marry accused Ramesh Kumar with whom she never wanted to get married, but her parents had wanted her to enter this matrimonial bond. This fact is also admitted by PW.2 Kagdu, mother of the prosecutrix, who says that her daughter was engaged to marry accused Ramesh. She denies the suggestion that later on she wanted to marry the prosecutrix with aother boy of village Dhanwal. 6. PW.3 Sh.Atma Ram states that on 9.11.1999 at around 9.45 A.M., he heard some cries coming from the 4 jungle. He rushed to the spot and found all the accused persons dragging the prosecutrix. Then he shouted at them, upon which accused Ramesh and Jaggu ran away. Accused Ishwar Dass remained at the spot. He had gagged the mouth of the prosecutrix with his hand. He tried to save her from the clutches of accused Ishwar Dass but he could not do so then he called his son to help him. He states in cross-examination that his house is at a distance of one furlong from the place of occurrence. He further states that he saw the accused when they were at a distance of 25-30 meters. The thorough-fare where the incident is supposed to have occurred is used by the public at large. The evidence of the other witnesses is not being referred to since they are formal witnesses. But we need to consider evidence of Sh.Satya Nand (PW.8), who was declared hostile. He says that about a year ago from the date when he was in the witness box in the Court, he was walking on the path in the jungle to trace the wife of his servant, on the way he met Atma Ram, Kehar Singh, Ishwar Dass and a girl accompanying them. He says that he does not know the name of that girl. Nothing material has emerged from his cross-examination. 7. Sh.Kehar Singh (PW.11) supported the fact that Satya Nand was present at the time when they tried to 5 rescue the prosecutrix. It is not disputed before us that the prosecutrix and the accused are related. Accused Jaggu, father of accused Ramesh and Ishwar Dass is married to the sister of the father of the prosecutrix. 8. Adverting to the evidence on record, the learned Additional Sessions Judge holds that the evidence does not establish the essential ingredients of kidnapping. While considering the evidence, he notes that on the day of the incident, prosecutrix was going to school at Baggi when the incident occurred. He also holds from the evidence of the prosecutrix that the path on which she was walking is a public thoroughfare which is being used by the public at large. This fact has been admitted even by PW.3 Atma Ram in his cross-examination. Accused Jaggu is related to the prosecutrix in as much as the sister of the prosecutrix's father is married with the one of the accused. The version that the prosecutrix was dragged and in this process her clothes were torn, has also not been established during the trial. The evidence also establishes that the prosecutrix was engaged to be married to Ramesh one of the accused and that she did not want to marry him. 9. In view of the evidence of Kagdu (PW.2) who states in her cross-examination that the prosecutrix had told her that she was willing to accompany the accused and 6 adverting to the evidence of Kehar Singh PW.11, who does not support PW.3 Atma Ram, the learned trial court holds that the factum of kidnapping is not established. PW.8 Sh.Satya Nand, who according to the prosecution case had also reached the spot immediately after Atma Ram and Kehar Singh, does not support the prosecution case. That only leaves Atma Ram (PW.3) whose version, the learned trial court finds, is not supported by his son Kehar Singh (PW.11) on material points, namely, that she was being dragged, she had been gagged and that the accused then fled away from the spot. Adverting to the age of the prosecutrix, learned trial court holds that Ex.PW.10/A which was produced by PW.10 Haria Ram Rasik, purporting to be a birth certificate, has not been proved in accordance with law, as this witness has not made the entry in the original register of admission in the school. No witness has been examined by the prosecution, who had in fact, reported this fact to the Headmaster or any other official of the school at the time of her admission and the entry was made accordingly. PW.10 Haria Ram Rasik has not stated anything regarding admission of the prosecutrix in the school. The learned trial court relies upon the decision of Hon'ble Supreme Court in Birad Mal Singhvi Versus Anand Purohit, AIR 1988 SC 1796, to hold that mere proof 7 of documents would not tantamount to proof of the contents or the correctness of date of birth. 10. We advert to the evidence of Sh.Haria Ram Rasik PW.10, Headmaster, Government High School, Baggi, who has not made the entry in the original register of admission in the school. In his cross-examination, he states that entry pertaining to the date of birth is not in his hand. He admits that the prosecutrix appeared in the matriculation examination. He states that from the record, which was never prepared or written by him, its authenticity cannot be vouched. We have also gone through Ex.PW.10/A which simply says that the date of birth of the prosecutrix is 5.1.1983. 11. In view of the evidence on record, we do not find any merit in the appeal or flaw in the appreciation of evidence by the learned trial court when the prosecutrix herself has admitted that she was engaged to marry accused Ramesh but she did not want to get married him and that of her mother PW.2 Kagdu who says that the prosecutrix was willing to accompany the accused. In these circumstances, it creates a serious doubt in our minds as to whether accused ever wanted to kidnap the prosecutrix. Thus, we do not find any merit in the present appeal, accordingly the same is dismissed. 8 12. Bail bonds furnished by the respondent are discharged. (R.B. Misra) Judge August 29, 2011 (Dev Darshan Sud) (Purohit) Judge