State of Himachal Pradesh vs Gian Chand and Others

Sanjay Karol, J.—For an offence, which is alleged to have been committed on 5.12.1992, accused were put to trial. In terms of judgment dated 1.1.2000 passed by learned Sessions Judge, Chamba, District Chamba, H.P., in Criminal Case No. 35 of 1996 titled as State of Himachal Pradesh v. Gian Chand and Ors. Criminal Case No. 35 of 1996, the accused stand acquitted of the charged offences.

It is the case of the prosecution that prosecutrix (PW-7), daughter of Shri Dharam Chand (PW-2) of Village Miyura was forcibly taken away by Gian Chand (accused No. 1), Chando Ram (accused No. 2) and Smt. Sumna Devi (accused No. 3) from the guardianship of her parents with an intention to compel her to marry accused No. 1. On 5.12.1992, PW-2 was away from his house. Prosecutrix had gone to the forest for grazing cattle. In the evening when she did not return home her parents searched for her. Shri Mahinder Kumar (PW-4) informed them that accused had forcibly taken away the prosecutrix in a taxi. PW-2 consulted the village panchayat and lodged report (Ext.PB) with the police. On the basis of which, FIR (Ext.PC) dated 9.12.1992 under Sections 366, 366, 34, IPC was registered at Police Station Chowari. Police commenced investigation and prosecutrix was recovered from the house of the accused in the presence of Gorkh Chand and Dulo Ram. Her custody was entrusted to her father. She was got medically examined through Dr. (M Rs. ) V.K. Pathak (PW-1) (Radiologist) to ascertain the exact age Skiograms test and x-ray report Ext.P-1, Ext. P-2 and Ex.PA/1 were taken by the police. Shri Hans Raj (PW-9), Secretary Gram Panchayat, Khaniara, was associated during investigation, who issued birth certificate (Ext.PF), according to which the prosecutrix was born on 30.6.1975. After completion of investigation challan was presented in the Court for trial.

Accused were charged for having committed an offence punishable under Sections 363, 366 read with Section 34, IPC, to which they did not plead guilty and claimed trial.

In order to prove its case prosecution examined 11 witnesses and statements of accused u/s 313, Code of Criminal Procedure were also recorded. Plea taken is that of innocence and in defence accused also examined two witnesses.

The Court below acquitted the accused of the charged offence. Hence the present appeal.

There are certain distinctive facts about this case. Accused No. 3 Smt. Summo Devi is the real sister of the prosecutrix. It is the admitted case of the parties that prosecutrix was recovered from the house of the accused and thereafter handed over to her father.

To prove the charge, prosecution has essentially relied upon the statement of prosecutrix (PW-7) as also their star witness Shri Mohinder (PW-4).

Now PW-4 only talks about presence of the accused at the spot of occurrence. He does not even whisper about the accused persons by using any force compelled the prosecutrix to board the van in which she was allegedly kidnapped and taken away. He simply narrates that he saw the prosecutrix in new clothes and was being taken away in the van.

No doubt PW-7 has supported the prosecution case. But her statement does not inspire confidence. In fact it stands falsified from the material on record. Now it is a matter of record that immediately after prosecutrix was recovered, her statement (Ext.DC) was recorded by the police. Therein she got it recorded that she was engaged to accused Gian Chand with whom she had sexual relations but her parents wanted her to marry one Murli of village Bhaled who was lame. This statement of hers stands duly corroborated by Shri Sadhu Ram (DW-1), Superintendent Tehsil office, Dharamshala and also DW-2 Chando. They have proved on record affidavit (Ext.DD) duly executed by the prosecutrix and attested by the competent authority in discharge of their official duties.

Additionally even Dr. (Mrs.) Jyoti Kapil has stated that at the time of examination prosecutrix had disclosed it to her that she had ran away from her house on 5.12.1992 with the accused and got married in the Courts at Dharamshala the very same day. Thereafter she remained with him for 3 days at Reedakumar (Shahpur) from where she was taken away by the police. Now all this renders the prosecution version as also the deposition of the prosecutrix to be false.

It appears that of her own prosecutrix had desired to go with the accused, including her real sister, and then got married to accused Gian Chand. This perhaps has not acceptable to her parents and she was brought back with the intervention of the police. There is not even an iota of evidence on record to show that the accused persons either had common intention of kidnapping the prosecutrix from lawful guardianship of her parents with an intention to compel her to marry accused No. 1 against her will. It is not the case of the prosecution that accused had forced or seduced the prosecutrix to have illicit intercourse with accused No. 1 and 2.

Further from the statement of Dr. V.K. Pathak (PW-1) it is evident that radiological age of the prosecutrix, at the time of alleged offence, was between 17-19 years. The certificate (Ext.PF) issued by PW-9 on the basis of Pariwar Register cannot be relied upon for the reason that Pariwar Register was not maintained properly. Name of father of the prosecutrix is recorded as Dharmi whereas it is Dharam Chand. Nothing has been produced on record to prove that they are one and the same person. Further in the Pariwar register there is cutting and overwriting. Name of Sakanya daughter of Dharmi has been written as Sumna. This cutting has also not been initialed by any one. All this renders the prosecution case to be doubtful.

The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.