IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. 292 of 1999 Decided on: 17.9.2010 State of H.P. ..…Appellant Versus Sharif Mohammad & Ors. ..…Respondents Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice V.K. Sharma, J. Whether approved for reporting?1 For the appellant : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl.A.G. For the respondents : Mr. Romesh Verma, Advocate. R.B. Misra,J. (Oral) The present criminal appeal has come-up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted, in reference to the impugned judgment dated 1.1.1999, passed by learned Sessions Judge, Shimla, H.P. in Sessions Trial No. 27-S/7 of 1998, acquitting the respondents-accused for the offence, under Section 376 of the Indian Penal Code. 2. The prosecution case is that on 29.6.1997 one Rafiq Mohammad accompanied his wife and two children went to the field of one Atma Ram and had engaged one Mohan Singh and his wife Promila to make baskets for him. One Sakinder Batt 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 was also at his place that day. In the absence of Rafiq Mohammad and his wife, respondents-accused Sakura Begum and Hanif Mohammad went to their house. Respondent- accused Sakura Begum is a sister of said Rafiq Mohammad, while Hanif Mohammad is Sakura Begum’s husband. Both took victim/prosecutrix to a forest on the pretext that they needed her help to load fuel wood on the back of a mule and when they reached the forest, respondent-accused Sharif Mohammad, who was hiding in the forest, also joined them. They gagged victim’s/prosecutrix mouth and one of them physically lifted her and took her to village Khail. On the way, respondent-accused Sharif Mohammad was proclaiming that he would marry victim/prosecutrix, even if she was not willing and as such, victim/prosecutrix was taken to the house of the Pradhan of the Panchayat and kept her there. From the house of the Pradhan of the Panchayat, she was taken to the house of one Ali Sher and kept there. Victim’s/prosecutrix father Rafiq Mohammad was informed about the incident by one Mohammad Din, around 6.00 P.M. when he was still in the field of Atma Ram and after going to home enquired from Mohan Singh and his wife, whom he had engaged for making baskets for him, the couple told him that respondents-accused Sakura Begum and Hanif Mohammad had taken away his daughter. Said Sharifu Din was working as a police constable, who thereafter lodged FIR No. 77 of 1997. Accordingly, respondents-accused persons were charged for the aforesaid offence and case was committed to the Sessions Court. 3. In order to prove its case, the prosecution examined as many as seven witnesses, namely, PW-1 Rafiq Mohammad, 3 PW-2 Mohan Singh, PW-3 Mohammad Din, PW-4 victim/prosecutrix, PW-6 Sharifu Din and PW-7 Bidhi Singh, whereas, the respondents-accused through their statement under Section 313 Cr.P.C. denied the prosecution case and examined one Ali Sher in defence. 4. PW-1 Rafiq Mohammad has stated that on 29.6.1997 he had gone to the field of Atma Ram along with his wife and two children, leaving victim/prosecutrix and another child at home. He has further stated that he had engaged Mohan Singh and his wife Promila for making baskets for him and around 6.00 P.M. when he was returning home from the field of Atma Ram, Mohammad Din met him on the way and told him that respondents-accused Sakura Begum and Hanif Mohammad had asked him to inform PW-1 that they had taken away his daughter and he should not report the matter to the police and after going to home he found his daughter missing and Mohan Singh and Promila informed him that respondents- accused Hanif Mohammad and Sakura Begum came to his house and around 3.00 P.M. took away his daughter to the forest on the pretext that her help was required to load fuel wood on the back of a mule. As per him, around 11.00 P.M. he went to the police station and lodged FIR Ext.PA and accordingly next day his daughter was recovered from the house of Ali Sher. 5. PW-2 Mohammad Din, who allegedly informed Rafiq Mohammad that respondents-accused Mohammad and Sakura Begum had required him to inform Rafiq Mohammad that they have taken his daughter. PW-2 Mohammad Din has stated that victim/prosecutrix on the fateful day refused to go respondent- 4 accused Sakura Begum. Thereafter, respondent-accused Hanif Mohammad came there and asked for meals which victim/prosecutrix provided to him and some time later respondent-accused Sakura Begum again came and took away victim/prosecutrix with her. 6. PW-4 victim/prosecutrix deposed that respondent- accused Sakura Begum came to her house around 11.00 A.M. to take her to the forest on the pretext of helping her in loading fuel wood on the back of a mule but she did not go with her. She further stated that around 3.00 P.M. respondent-accused Hanif Mohammad came and he too sought her help in loading fuel wood on a mule and she went with him. PW-4 also stated that Sakura Begum was also with them and that when they reached a forest, respondents-accused Hanif Mohammad and Sakura Begum gagged her mouth and soon thereafter respondent- accused Sharif Mohammad also joined them and one of the respondent-accused lifted her and forcibly took her to village Khail and left at Pradhan’s house and from there she was taken to the house of Ali Sher. 7. PW-6 Sharifu Din in his endeavoured to support the prosecution case has stated that the daughter of Rafiq Mohammad was recovered on 1.7.1997 from the house of Ali Sher. However, for the reasons best known said Ali Sher did not examine by the prosecution on the plea that he had been won- over by the respondents-accused. Said Ali Sher has been examined by the defence as DW-1 who has categorically stated that neither the victim/prosecutrix had been brought to his place by anybody nor did the police recover her from his house. 5 The memo Ext.PB regarding recovery of the victim/prosecutrix was also not signed by Ali Sher. 8. PW-1 Rafiq Mohammad, the father of the victim/prosecutrix deposed that the age of victim/prosecutrix was 16 or 17 years at the relevant time. However, he was not ascertained about the exact age of the victim/prosecutrix. Victim/prosecutrix herself does not say definitely about her age. There is no documentary evidence about the proof of the age of the victim/prosecutrix. However, conduct of the victim/prosecutrix appears to reveal that she was not less than 18 years at the time of alleged incident. 9. On analysis of the prosecution witnesses, we notice that PW-4 stated that Sakura Begum respondent-accused came to call her to the forest at about 11.00 A.M. and stayed at her place up to 3.00 P.M. when respondent-accused Hanif Mohammad came there and both of them have took her to the forest on the pretext that her help is required to load the fuel wood on the back of a mule. However, Mohan Singh PW-2 says that respondent-accused Sakura Begum came to the house of Rafiq Mohammad around 3.00 P.M. and went back and thereafter respondent-accused Hanif Mohammad came and after taking meals, he took the victim/prosecutrix with him. Victim/prosecutrix herself does not say that she had provided meals to respondent-accused Hanif Mohammad. Victim/prosecutrix is contradicted by her own statement recorded under Section 161 Cr.P.C. Ext.DA in material particulars. To the police, she stated that Sakura Begum came to her place at 3.00 P.M. while in the witness box she denied 6 having made such a statement and claimed that she told the police that Sakura Begum came to her place at 11.00 A.M. She had deposed that one of the respondent-accused persons carried her on his back to village Khail from the forest, but she could not tell the name of that respondent-accused. She stated that she could not see that man as her mouth was gagged. It is not her case that she had been blind-folded or that she was prevented from seeing by use of some other device by the respondents-accused. Therefore, the explanation given by the victim/prosecutrix that she was not able to see the person who carried her on his back cannot be accepted. Such ignorance about the name of the person who carried the victim/prosecutrix on his back makes the testimony of victim/prosecutrix doubtful. 10. The Pradhan, Gram Panchayat, Khail, at whose place victim/prosecutrix allegedly been kept for the night has not been examined nor any explanation was offered by the prosecution. 11. In the facts and circumstances in our considered view the learned Sessions Judge had rightly come to the conclusion that the prosecution cannot be said to have prove its case beyond reasonable doubt and also failed to bring home the guilt of the respondents-accused. Accordingly, the appeal, being devoid of any merit is, therefore, dismissed. 12. Bail bonds, furnished by the respondents-accused are hereby discharged. (R.B. Misra), Judge. September 17, 2010 (V.K. Sharma), Judge. (vs) 7