Dhian Singh vs State of Himachal Pradesh

D.B. Lal, J.—Kumari Dindu a girl nearing the age of majority, was found kidnapped on 17-7-1972 from her house at village Lashwal (Kulu). Her father Kewali Ram is an employee in the Electricity Department and as such he used to remain on out-door duties for 2 to 3 days in one stretch. Accordingly when he came back and enquired of his mother Dhani and another daughter Bhadri, he came to know about the kidnapping of Dindu. Adjoining the house of Kewali Ram. resided Moharu and his wife Kishni with their children. They had given a room on rent to Dhian Singh Gorkha (22 years) Appellant in the present case. It was reported to Kewali Ram that Dhian Singh had seduced the girl and had taken her away to the jungle of Mathi Kochher where Dhian Singh was employed. Accordingly Kewali Ram went to that jungle and made enquiries. Instead, he was threatened by the associates of Dhian Singh and he had to return back. Finally on 5-9-1972 when every effort failed to recover the girl, he made a report to the Police at Banjar. He made a full and careful report and narrated the entire event. His suspicion was undoubtedly on Dhian Singh, Moharu and Kishani. Incidentally, it may be stated, that Dindu used to visit very often Moharu and Kishni, and similarly had gone to them on that day. She was kidnapped from there by Dhian Singh who kept her as his wife in the jungle of Mathi Kochher. Accordingly when the Police was alerted, several attempts were made to recover the girl. Finally on 23-11-1972 she was recovered along with Dhian Singh accused. Both were medically examined. The age of the girl was found by Dr. B.N. Mishra to be 14 to 17 years. However, he recommended for X-ray examination for the ossification of bones. Dr. Miss Veena Sud accordingly examined the girl under X-ray and found her age to be 15 or 16 years. Although there was no sign of violence on the person of Dindu, yet she was criminally assaulted and to that extent even the accused admitted that he committed carnal intercourse with her, treating her as his wife.

The Police sent up the case against the three accused: Dhian Singh, Moharu and Kishni under Sections 363, 366 and 376 of the Indian Penal Code. Except Dhian: Singh, the other two were discharged by the Magistrate Dhian Singh was committed to Sessions and the offences were found proved against him. He was sentenced by the: Sessions Judge, Mandi, for 5 years rigorous imprisonment u/s 376, and 3 years rigorous imprisonment under each of the Sections 363 and 366. He has felt aggrieved of the decision and has preferred this appeal.

The learned Counsel strenuously contended that Dindu was above 16 years and inasmuch as she consented for sexual intercourse, so no offence was made out-under Section 376. The prosecution relied upon a birth entry Ex. PF said to be of Bhadri which is dated 3-9-1954 and it is stated that Denudes 2 to 3 years younger to that girl. From this birth entry, on the date of the offence the age of Bhadri should be near about 17 years, 10 months. Thus Dindu should be 15 years, 10 months, or 14 years, 10 months. According to Dr. B.N. Mishra (PW. 5) she is 14 to 17 years, while in accordance with the X-ray examination she is 15 to 16 years. However, Dindu stated that she is 20 years, which is apparently a mistake because she was won over by the accused, and as her statement indicates, she suppressed certain facts which were otherwise proved. The birth entry of Dindu was not available and hence could not be produced. In the F.I.R. the age was shown as 15 to 16 years. The girl was already married to two of the persons before she was kidnapped by Dhian Singh. From all this evidence, it may be plainly right to hold that two inferences were to be deduced: (1) that Dindu was a little under 16 years, or (2) that she was 16 years or a little more at the time of the commission of the offence. Dr. B.N. Mishra has stated that she could even be 17 years, while according to Dr. Miss Veena Sud, she could be 16 years. It would be fatuous to hold that the medical evidence regarding age was conclusive. It could only be suggestive in the sense that the age of the girl could be near about 16 years at the time of the offence. When two inferences are deduced, one favourable to the accused and the other against him, and both the inferences can get a stamp of truth after review of evidence, the one favourable to the accused must be accepted. It would, therefore, be appropriate to hold that Dindu was 16 years or a little more and the offence of rape u/s 376 was not made out against the Appellant. He needs be acquitted of that offence.

The learned Counsel then submitted that the offence of kidnapping under Sections 363 and 366 was also not formulated. But on that count his argument is innately unconvincing. There are so many circumstances pitted against the Appellant so that it was not difficult for the learned trial Judge to hold that the minor girl was taken or enticed out of the keeping of her lawful guardian, namely the father. It was, of course, not at all difficult to hold that she was kidnapped with intent that she may be compelled or knowing it to be likely that she will be compelled to marry the accused against her will, or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to such intercourse. The learned Counsel pointed out the statement of Dindu and seemed to found his argument on that statement. As I have stated above, Dindu was naturally under the influence of the accused. According to her statement, they used to meet inside a jungle known as Talati Jungle where Dhian Singh was formerly employed. The girl used to visit the house of Moharu where the accused was available. She must have had talk with the accused, and as a result to that talk which resulted in inducement and blandishment she was taken or enticed away on that fateful day. The girl was cross-examinated upon her previous statement to the Police that the accused had given her the allurement of good clothes and ornaments. She had stayed with the accused for about 4 to 5 months and naturally she developed some intimacy with him. In her statement she affirmed that she married the accused but at the same time admitted that the marriage was performed by the assistance of nobody. It appears she was not married at all. But in view of the fact that she consented to live with the accused, she considered herself to be his wife. This is all in the name of marriage which existed between the couple. At any rate, no evidence was adduced in proof of marriage. The statement of the accused was that Kewali Ram married her and because he demanded Rs. 2,000 which he was unable to pay, a false case has been foisted upon him.

The statement is entirely discredited, as there is no evidence even to suggest it, what to say of proving it. The girl even denied sexual intercourse with the accused in the first instance. However, she admitted that fact later on. This shows the extent upto which she was under the influence of the accused. Taking all these facts into consideration, I am of the opinion that the accused did play an important part in the formation of girl''s intention when she decided to go with him. Some inducement was decidedly held out by him and active participation on his part in the formation of the intention of the minor to leave the house of the guardian, was no doubt there. The learned Counsel relied on Section S. Varadarajan Vs. State of Madras, The facts of that case with which their Lordships were dealing, stood on entirely a different footing as compared to the facts of the present case. In the present case, the accused used to meet the girl and it was he who induced her to leave her parents'' house. When the girl was under 18 years of age she was decidedly under the lawful guardianship of her father, even though she was present at the house of Moharu or inside Talati jungle. She was thus taken or induced out of the lawful guardianship of her father. Therefore, the offences under Sections 363 and 366 were proved against the Appellant.

The learned Counsel then argued apologetically that the sentence be reduced to the period undergone. I do not find any mitigating circumstance to say so-Since the Appellant is being acquitted for the offence of rape u/s 376, no further reduction in sentence is required in his case.

The appeal is, therefore, allowed in so far as the offence u/s 376 of the LP. Code is concerned and he is acquitted of that charge. However, the appeal is dismissed in respect of the conviction of the Appellant under Sections 363 and 366 of the I.P. Code his conviction and sentence are maintained under both these Sections.