IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 706/1996 Decided on: 11.5. 2010 _____________________________________________ State of Himachal Pradesh. …Appellant. Versus Roop Chand. …Respondent. _______________________________________________________ Coram: Hon’ble Mr. Justice Deepak Gupta, Judge. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the Appellant : Mr. Vivek Singh Thakur, Addl. A.G. with Mr. Rajesh Mandhotra, Deputy Advocate General. For the Respondent : Mr. Sunil Mohan Goel, Advocate. ____________________________________________________ Rajiv Sharma, J. (oral) State has filed this appeal against the judgment dated 30.12.1995 passed by the learned Additional Sessions Judge, Mandi in Sessions Trial No. 20 of 1994, whereby respondent, who was charged with and tried for offences punishable under sections 363, 366-A and 376 of the Indian Penal Code, has been acquitted. 2. Case of the prosecution, in a nutshell, is that PW-4 Diwan Singh was having two children, one daughter Krishana Devi (PW-3) and one son Netar Singh aged 14 years. PW-4 Diwan 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 Singh had gone to Mandi on 7.6.1993. He returned in the evening. He found PW-3 Krishana Devi missing. Netar Singh, his son, told him that she has gone to the house of her aunt in village Kandhi. However, after three days, Paina Ram of village Phaloh alongwith his son Rup Chand came to his house that his daughter was taken away by them for being married to Roop Chand. He apprised them that his daughter was minor and they should return her. They refused to do so. PW-4 alongwith Parma Nand went to village of Paina Ram and Rup Chand to bring back PW-3 Krishana Devi. They were threatened by Rup Chand. The report was lodged, vide Ex.PB in sequel to which FIR No. 76/1993 was registered on 5.7.1993. The matter was investigated by the police and the challan was put up in the Court after completing codal formalities, under section 207 of the Code of Criminal Procedure. 3. After the closure of prosecution evidence, respondent was examined under section 313 of the Code of Criminal Procedure. His defence is of simpliciter denial. 4. Mr. Vivek Singh Thakur, learned Additional Advocate General has strenuously argued that the prosecution has proved its case against the respondent. 5. Mr. Sunil Mohan Goel has supported the judgment of the learned trial court. 6. We have heard the learned counsel for the parties and perused the record carefully. 3 7. The incident is dated 7.6.1993. Statement of PW-4 Diwan Singh, under section 154 of the Code of Criminal Procedure, was recorded on 5.7.1993, which led to the registration of FIR. 8. Prosecutrix, i.e. PW-3 Krishana Devi, was medically examined by Dr. Jai Vaidya (PW-1) on 23.8.1993. According to the opinion of the doctor, she was exposed to coitus; however, exact duration of last coitus could not be given. According to ossification test, Ex.PW-1/A, the age of the prosecutrix was found between 16½ to 17 years. Medico Legal Certificate was issued by PW-1 Jai Vaidya. PW-2 Dr. Hemant Kumar had examined the respondent and he issued Medico Legal Certificate, Ex.PW-2/B. 9. Prosecutrix, Krishana Devi, has appeared as PW-3. She stated that she had gone to graze the cattle. Her father had gone to Mandi and younger brother had gone to School. The respondent accosted her in Bali Chowki Mela about ten days prior to incident and asked her to marry. She told the respondent that she was minor and could not marry. At about 3.00 P.M., when she was grazing the cattle, respondent Rup Chand came and threatened her and forcibly took her to village Phaloh. Thereafter after three-four days of her kidnapping, Painu Ram alongwith Rup Chand came to her father. Her mother Tillu Devi and her brother- in-law Parma Nand came to the house of respondent to take her back. Respondent and his father refused to return her. She further stated that respondent committed sexual intercourse with her against her will. The police came, however, she was taken by the respondent to Jungle and whenever she tried to escape, 4 respondent threatened her. She was kept in the house by the respondent for two-three months. She was ultimately recovered by the police from the house of respondent. She was medically examined. 10. PW-4 Diwan Chand is the father of prosecutrix. He stated that Rup Chand and his father came and told that Krishana Devi was in their house and she was taken away by them to marry with Rup Chand. He apprised that his daughter was minor and should be returned immediately. Tilu Devi, his wife and Parma Nand went to the house of respondent, however, his daughter was not returned. It is in these circumstances, he lodged report Ex.PB. Police went with Parma Nand to the house of respondent. She could not be traced in the house. It was only on 22.8.1993 that the police recovered and handed over Krishana Devi to him. 11. PW-5 is Parma Nand. He deposed that PW-4 Diwan Singh called him and told that Krishana Devi was kidnapped by respondent Rup Chand. He alongwith Tilu Devi went to the house of respondent. She was found in the house of respondent. However, respondent refused to return her. He again went with the police to the house of respondent, however, Krishana Devi was not found there. It is only when he again went with the police, Krishana Devi was recovered from the house of respondent. According to Ex.P-6, date of birth of the prosecutrix was 5.3.1977. 12. Case of the prosecution that Krishana Devi was forcibly taken away, cannot be believed. According to ossification test, Ex.PW-1/A, her age was between 16 ½ years to 17 years. The 5 distance between her village and the house of accused was 20 kilometers. She boarded the bus and got down at Larji. Thereafter she was taken in a van to the house of respondent. She had not raised any alarm while taken in a bus or when she travelled in a van. She also crossed many houses. She could always escape from the house of respondent, however, she did not chose to do so on the pretext that respondent used to threaten her. The other flaw in the case of prosecution is that incident had taken place on 7.6.1993, however, the FIR was registered on 5.7.1993. It has come in the evidence that Parma Nand and mother of the prosecutrix had gone to the house of respondent to plead with respondent and his father to return the prosecutrix. Parma Nand (PW-5) was again sent by PW-4, however, the prosecutrix was not returned. It has come in the statement of PW- 4 (Diwan Chand) that Rup Chand and his father had come to his house and told him that they should marry his daughter with Rup Chand. It has happened after three-four days of the incident. Thus, PW-4 Diwan Chand knew that his daughter was in the house of respondent. He did not lodge any report after three-four days and he also got another occasion to lodge the FIR when the respondent and his father refused to return his daughter again. His statement was recorded under section 154 of the Code of Criminal Procedure after one month of the incident, which led to registration of FIR on 5.7.1993. Only explanation given by the father of Prosecutrix for not registering the FIR with promptitude was that the reputation of the daughter was involved. It is true 6 that in Indian scenario, families do deliberate whether to lodge report or not. In this case, FIR has been registered though PW-3 was missing for one month. She remained in the house of respondent for more than two months. In view of this, the explanation given for not lodging the FIR with promptitude is not tenable. It has also come in the statement of PW-1 Dr. Jai Vaidya that the prosecutrix was exposed to coitus. Accordingly, the prosecution has failed to prove the guilt of the respondent. 13. Consequently, in view of above discussion, the view taken by the learned trial court is supportable by the evidence and there is no perversity in the findings recorded by the trial court. Consequently, the appeal is dismissed. Bail bonds furnished by the respondent/accused stand discharged. (Deepak Gupta), J. (Rajiv Sharma), J. 11.5.2010 *awasthi*