IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. : 723 of 1996 Decided on : 13.07.2010. _____________________________________________________________ State of Himachal Pradesh … Appellant. Versus Parshotam Chand … Respondent. _____________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Rajinder Dogra, Additional Advocate General. For the respondent : Mr. Parveen Chandel, Advocate vice Mr. Ajay Sharma, Advocate. _____________________________________________________________ R.B. Misra, Judge (oral). The present appeal has come up for consideration after leave to appeal has been granted under Section 378 (3) Cr. P.C in reference to the impugned judgment dated 22.03.1996, passed by the learned Additional Sessions Judge-1, Kangra at Dharamshala, in Sessions Case No.16 of 1994, acquitting the accused namely Parshotam Chand and Madan Lal for the offences under Section 366 and 376 IPC and 1 Whether reporters of the local papers may be allowed to see the judgment? 2 verdict was given on 22.03.1996. However accused No.1 Parshotam Chand was declared proclaimed offender vide order dated 08.04.1994 of learned Judicial Magistrate 1st Class, Una. On 13.09.1994, it was ordered by the court of sessions that the case of accused No.1 be dealt separately. Vide order dated 22.03.1996 of the learned Additional Sessions Judge has acquitted accused Madan Lal from the offences under Sections 366 and 376 of IPC. 2. In order to adjudicate the present appeal, it is necessary to give the factual background of the case. According to the prosecution on 11.11.1989, accused Parshotam Chand abducted the victim, daughter of Mohinder Singh and she was illegally detained to Tatehra and was taken towards village Arthewal Lidharwal and kept in the house of one Gujjar Hussaina, where victim was sexually assaulted by the accused. According to the victim, she was kept under fear and accused No.1, asked her to accompany him and on her refusal, the accused threatened her with dire consequences. Because of fear the victim sat on the scooter of accused No.1 who took her to his house towards Talwara side (Punjab). The victim was detained there and both the accused Parshotam Chand and Madan Lal, being brothers and relative sexually assaulted the 3 victim. However, victim was recovered on 18.11.1989 from the house of one Hussaina, from Village Athrewal and accused as well as the victim was medically examined. Both the accused were charged for offence under Sections 366 and 376 of the IPC. However as indicated above Parshotam Chand was declared proclaimed offender on 08.04.1994. 3. The victim (name not given) was first medically examined by PW-1 (Dr. Suresh Kumar). As per medical report the accused No.1 Parshotam Chand was fit for performing sexual intercourse and it was also appended that prior to the examination of the victim, she was used to have sexual intercourse, may be one month from the date of examination which was made on 18.11.1989. The accused on examination was also found fit for sexual intercourse, but, however as per medical opinion of PW-1, no apparent scratches and marks could have been indicated that victim was sexually assaulted against her will. 4. PW-2 the victim has stated that she used to go for tailoring to that village, accused No.1 used to tease her, who had always put victim under fear and also tried to give her assurance that he could give job to her at Jallandhar and on such allurement, PW-2 the victim/prosecutrix was asked by the 4 accused No.1 to accompany him on the scooter and on refusal the victim was given threats. As such, the victim was taken up at about 10 a.m. on 11.11.1989 on the scooter towards Talwara Side (Punjab) and on the way she stayed at the house of Parshotam Chand where she was bolted inside the room. However, when parents of Parshotam Chand (accused No.1) slept then at about 11.pm (night) Parshotam Chand came in the room and started ravishing/raping her and in the next morning, the victim was taken towards Hazipur where she was kept in the house of Gujjar and was sexually assaulted there. The PW-2 however in cross-examination has stated that she had not made any complaint against Parshotam Chand (accused No.1) as she was under impression that Parshotam Chand will not do anything. She has also stated in her cross-examination that she has not told her mother Smt. Rachna Devi PW-3 that accused Parshotam Chand has given her an assurance to provide employment/service at Jullundhar. PW-2 the victim has also divulged that she has not stated to Police that accused Parshotam Chand used to tease her on the way, when she used to go to learn tailoring. PW-2 the victim has further stated in cross-examination that people met her when she was being taken by accused Parshotam Chand on scooter, she did not 5 make any hue and cry or raised any alarm and tell anybody that she is taken on the scooter against her will. She further stated that she tried to slip from the scooter but the accused threatened her with dire consequences. 5. The PW-3 Rachna Devi mother of two victim stated in her statement that after coming to know that her daughter/victim was missing she informed her husband through telegram. Thereafter, her husband, Mohinder Singh, reported the matter to the Police. According to PW-3 the victim PW-2 has not made any complaint about anybody. 6. PW-4 Mohinder Singh, father of the victim, has stated that at the time of incident the age of the victim was 18- 18 ½ . PW-5 Charno Devi has not supported the case of prosecution. PW-6 Chokas Ram has stated that accused No.1 tried to escape but was apprehended by Police from the house of one Hussaina Gujjar. The version of PW-7 Karam Chand is also of no help to the prosecution case. 7. PW-8 MHC Bhagwan Dass, PW-8 Constable Jagdish Chand, PW-10 Constable Gulzari Lal, PW-11 Krishan Kumar retired SI, PW-12 Om Parkash, Incharge, First Batalian, Una and PW-13 Sita Ram Parmar, Inspector State CID, in discharge of their official duties, have done the work assigned to them, 6 however, nothing substantial could be derived from their testimonies in favour of the prosecution. 8. PW-14 Hussaina stated that one girl accompanied by both the accused stayed at his residence and in cross- examination PW-14 has stated that it appears that the girl had voluntarily came on her free will along with both the accused as they (accused) told PW-14 that they have come from Jallandhar and girl accompanying them is their sister. However, according to PW-14 the police recovered the girl from his house. 9. PW-15 Thakur Dass, ASI, stated that the girl was recovered from the place of PW-14 and at that time accused were lying on the cot and the girl was enjoying the fire and both the accused were arrested. The girl was examined medically along with both the accused and PW-15 in his cross- examination stated that he gathered information during investigation that earlier to the occurrence, accused Parshotam was visiting the house of the girl. PW-15 has further stated that the place from where the girl was recovered is surrounded by abadies. 10. In view of the analysis of the prosecution witnesses and medical reports, it appears that the victim was acquainted 7 to Parshotam Chand and accompanied him on his scooter knowing fully well the consequences of accompanying Parshotam Chand. The date of birth of the victim is 24.11.1970 and as such at the time of occurrence, the age of the victim was more than 18 years. The victim allegedly went with Parshotam Chand and she stayed in village Arthewal Lidharwal and thereafter village Hazipur, where the victim was kept in the house of Gujjar Hussaina, where she was sexually assaulted by accused Parshotam Chand and Madan Lal. However, nothing is known as to how Madan Lal was helpful in taking away the victim and who invited Madan Lal to come to Hazipur in the house of Hussaina Gujjar. During the stay at the place of Hussaina Gujjar for 6-7 days the victim had not, despite getting opportunities, did not made any hue and cry and has also not tried to escape. She did not try to inform anyone near the locality that she was kept there against her wishes. The victim was recovered from the place of Hussaina Gujjar, PW-14, where both the accused were present and the victim was enjoying fire. There also, she had sufficient time to escape or to make hue and cry and put resistance, however, without any fear she comfortably spend 6-7 days there. No prosecution witness 8 indicated that victim-prosecutrix had put any resistance to raise alarm, when she spent time with accused. 11. As per testimony of the PW-3, mother of the victim, she had never made any complaint about the occurrence that she was being allured by accused No.1 that she will be given employment at Jalandhar. The role of accused No.2, Madan Lal appears to be doubtful, as he was not acquainted with the victim earlier and as such role of Madan Lal, in alleged kidnapping, inducement or abducting is missing and being a major woman she cannot be said to be sexually assaulted against her will. 12. In view of the prosecution witnesses and the material on record, the learned Additional and Sessions Judge-1, Kangra at Dharamshala, has rightly arrived at the conclusion that the prosecution has not been able to prove its case beyond reasonable doubt against the accused-respondent i.e. Madan Lal. There is no scope of any interference in the impugned judgment dated 22.03.1996 in respect of accused Madan Lal. The appeal being devoid of any merit is dismissed. (R.B. Misra) Judge. (V.K. Sharma) Judge. July 13, 2010. (Raj)