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2009 DIGILAW 751 (HP)

STATE OF H. P. v. LEKH RAJ

2009-09-01

SURINDER SINGH, SURJIT SINGH

body2009
JUDGMENT Surjit Singh, J (Oral):-State has appealed against the judgment, dated 29th December, 1994, of learned Sessions Judge, whereby respondent, who was tried for offences, under Sections 363 and 366 of the Indian Penal Code, for allegedly kidnapping a minor girl, aged about 15 years, on 6th September, 1991, from village Matlana, in Hamirpur District, has been acquitted. 2. Case of the prosecution, which has led to the trial and consequential acquittal of the respondent, may be summed up thus. In July 1991, respondent took on lease, for a period of 2-3 months, a portion of land of PW-1 Kaushalya Devi, for grazing his mules. He also rented some accommodation in the building of PW-3 Rania Ram, adjacent to the house of said PW-1 Kaushalya Devi, for enclosing his mules for the night. Respondent is resident of village Sakoh in Tehsil Sarkaghat of District Mandi. Respondent’s son Pawan Kumar also joined him. Both, the respondent and his son Pawan Kumar, started grazing their mules in the land taken on lease from PW-1 Kaushalya Devi. The respondent and his son would often go to the residence of PW-1 Kaushalya Devi to fetch water. PW-1 Kaushalya Devi had a minor daughter, aged about 14 years. Pawan Kumar, the son of the respondent, allegedly started proclaiming that he would forcibly take away the said minor daughter of PW-1 Kaushalya Devi. 3. On 6th September, 1991, the aforesaid daughter of PW-1 Kaushalya Devi, hereinafter referred to as prosecutrix, went to her fields to mow grass. She left the house around 9 a.m. She did not return home till 4 p.m. PW-1 Kaushalya Devi started searching for her. She was informed by PW3 Rania Ram that he had seen the prosecutrix going in the company of the respondent towards village Bakkar Khad. Next day, matter was reported to the police by PW-1 Kaushalya Devi, vide FIR Ex. PA. 4. Police started searching for the respondent and his son Pawan Kumar. On 10th September, 1991, police raided the house of the respondent in village Sakoh in Tehsil Sarkaghat. The respondent, his son Pawan Kumar and the prosecutrix (PW-2) were present there. Prosecutrix was got released and her custody was handed over to her mother. PA. 4. Police started searching for the respondent and his son Pawan Kumar. On 10th September, 1991, police raided the house of the respondent in village Sakoh in Tehsil Sarkaghat. The respondent, his son Pawan Kumar and the prosecutrix (PW-2) were present there. Prosecutrix was got released and her custody was handed over to her mother. She (the prosecutrix) told the police that the respondent had forcibly taken her to Jaisinghpur, from there to Palampur, from Palampur to Mandi, where she was made to sign some affidavit and then brought to village Sakoh by the respondent. She told the police that she had been kidnapped, with a view to forcing her to marry Pawan Kumar, the son of the respondent. 5. Prosecutrix was subjected to X-rays examination for determination of skeletal age. The Radiologist, namely PW-5 Dr. J.R. Azad, gave the opinion that the skeletal age of the prosecutrix was 15 to 19 years, as per skiagrams of her joints. 6. Respondent was challaned. Judicial Magistrate concerned, after complying with the requirement of law, committed the case to the Sessions Court. Respondent’s son Pawan Kumar had also been challaned. Sessions Court discharged the son of the respondent, but the respondent was charged with offences, under Sections 363 and 366 of the Indian Penal Code. 7. Prosecution examined the prosecutrix, her mother, PW-3 Rania Ram, Doctor, who conducted epiphysis test, namely PW-5 Dr. J.R. Azad, some teachers from the school where the prosecutrix studied and also proved entries in the school record and a certificate issued by the Secretary of the Gram Panchayat. As per certificate, issued by the Secretary, Gram Panchayat, date of birth of the prosecutrix was 23rd October, 1976. 8. Trial Court did not believe the prosecution version and acquitted the respondent. 9. We have heard the learned Assistant Advocate General as also the learned counsel for the respondent and gone through the record. 10. As per FIR Ex. PA lodged with the police by the mother of the prosecutrix, the prosecutrix had been enticed away, with the promise that she will be married to Pawan Kumar, the son of the respondent. The prosecutrix herself, in her testimony as PW-2, however, did not speak of any enticement. Instead she stated that she had been forcibly taken from the place, where she had been mowing grass. The prosecutrix herself, in her testimony as PW-2, however, did not speak of any enticement. Instead she stated that she had been forcibly taken from the place, where she had been mowing grass. She stated that she was dragged to a nullah and her mouth had been gagged with a towel and that after the towel was removed in the nullah she tried to raise noise, but was shown a knife by the respondent and made to walk in his company. She stated that she was taken to various places, as stated hereinabove, and at Mandi she was made to sign an affidavit. 11. The testimony of the prosecutrix does not inspire confidence, so far the allegation of her having been taken away from her Ghasni land to Mandi, is concerned. She has stated that she was kept in a hotel at Palampur for a night and was also kept at a hotel at Mandi for the second night. It is also testified by her that she was taken by buses from Jaisinghpur to Palampur and from Palampur to Mandi. It is also stated by her that at Mandi new clothes had been got stitched for her and she was taken to the Court premises where stamp papers were purchased, affidavits were got typed and then she was taken before some Executive Magistrate for the attestation of affidavit. Had she been taken away forcibly, she was supposed to have raised alarm, when being taken by buses to different places or atleast when in the Court premises at Mandi. She could have also informed the hoteliers at Palampur and Mandi about the alleged abduction, had it been a fact. 12. Also, we find that the evidence regarding the age of the prosecutrix is doubtful. There is no entry in the Panchayat record about the birth of the prosecutrix, per testimony of PW-11 Rakesh Kumar, Panchayat Secretary. If that is so, no reliance can be placed on certificate Mark ‘A’, issued by the Gram Panchayat. Entries in the school record are not shown to have been made on the basis of any authentic record or information given to the school authorities. 13. Testimony of PW-5 Dr. J.R. Azad shows that the age of the prosecutrix was between 15 and 19 years, at the relevant time. Entries in the school record are not shown to have been made on the basis of any authentic record or information given to the school authorities. 13. Testimony of PW-5 Dr. J.R. Azad shows that the age of the prosecutrix was between 15 and 19 years, at the relevant time. In view of the above stated position, we do not consider this to be a fit case for interfering with the judgment of acquittal. Hence, the appeal is dismissed.