State of H.P. vs Namohar Lal and Others

R.B. Misra, J.—The present criminal appeal has come up for consideration after the leave to appeal has been granted u/s 378(3) of the Code of Criminal Procedure, in reference to judgment dated 2.6.2000 passed by learned Sessions Judge, Kullu in Session Trial No. 11/98, thereby acquitting the respondents/accused for the offence under Sections 363, 366, 511 read with Section 34 IPC

The prosecution case is that on 17.2.1996 at about 4.30 PM when the complainant Prem Chand was coming in his three wheeler from Manali side along with Yog Raj and Ram Lal and when reached at Chakki Nallah bridge at 5.30 PM, he had seen some girls and the accused persons who were dragging victim-prosecutrix and other girls were trying to save her from the accused. Accused persons pushed the girls aside and they came to the complainant and told that the accused persons are taking the victim forcibly with them in the vehicle. Victim was crying for help. He had immediately gone there and asked the accused persons why they are taking the victim in the vehicle. In the meantime, Yog Raj and Ram Lal also reached there and they helped the victim. According to the complainant, had they not reached the spot, accused would have taken away the victim forcibly with them. The victim was only 17 years of age at the time of incident. As such, the case was investigated and the accused persons were charged for the aforesaid offences and the case was committed to the Session Court.

In order to prove its case, prosecution has examined PW-1 Nirmala Devi, PW-2 Ram Lal, PW-3 Nawang Sonam, PW-4 Som Lata Sharma, PW-5 P.N. Banyal, PW-6 Sita Ram, HC, PW-7 Chharing Dorje, LHC, PW-8 Prem Chand, PW-9 Victim-prosecutrix, PW-10 SI Balwant Singh.

PW-1 Nirmala Devi said to have supported the prosecution case, has stated that the accused came in a Maruti Van, caught hold of victim and dragged her towards the van. Victim cried for help and the witnesses along with other girls caught victim but the accused Namohar gave them push. Accused Narender and Hotem also came out of the van and all the accused lifted victim and she was taken inside the van. When the accused persons were taking victim in the van, maternal uncle of the victim, Prem Chand, came out the spot in three wheeler along with two other persons and they had saved victim from the clutches of the accused. PW-2, Ram Lal has, however, not supported the case of the prosecution and has denied the entire prosecution case. PW-7, LHC Chhering Dorje, has stated that on 18.2.1996 at 9.00 PM Prem Chand, complainant along with victim came in police post and got recorded report in the Rapat Rojnamcha which is Ex PC. In cross examination, PW-7 stated that only Prem Chand and victim came in the police post. PW-8, Prem Chand, complainant, who has supported the prosecution case, has stated that on the fateful day, when he reached at the spot, was told by the victim-prosecutrix that she was taken forcibly by the accused persons in the van. In the cross examination, PW-8 has stated that Yog Raj and Ram Lal came in his three wheeler on that day. PW-9 victim prosecutrix supported the prosecution case and has stated that she was coming from tailoring centre along with Sushma, Nirmla, Anjna and Leshma at about 5.30 PM when accused told her that he wants to marry her and on declining by the victim-prosecutrix, she was forcibly taken inside the van. The other girls tried to save her form the clutches of the accused. The other accused also helped accused. The witnesses raised hue and cry. In the meantime, maternal uncle Prem Chand of the victim came there and he saved her from the accused. At the relevant time, the age of the victim-prosecutrix was 17 years. PW-10 SI Balwant Singh has investigated the case.

In view of the testimony of PW-9, victim-prosecutrix, no other girl was present and examined in the Court and in view of the testimony of PW-9, accused dragged her inside the van with the help of other two accused. However, she was saved by Prem Chand, who came there in three wheeler with Yog Raj and Ram Lal. PW-2, Ram Lal when stepped into the witness box, has denied the entire case of the prosecution. According to PW-2, he along with Yog Raj came from Manali at 2.00/2.30 PM and thereafter they consumed liquor at Karjan. This witness has denied the entire case of the prosecution. PW-8 Prem Chand, no doubt, supported the case of the prosecution, but from the police record, and statement of PW-10 SI Balwant Singh, Prem Chand has lodged the report on 18.2.1996 at PP Patlikuhal. In cross examination, PW-8 has specifically stated that in the cross examination that the complainant had not visited the police post on 17.2.1996. The report in the case has been lodged by Prem Chand, as per copy of the Rapat Rojnamcha Ex PC and FIR Ex PD. There is nothing on record to show what prevented the police to lodge the report of victim who at the time of incident, according to her own statement, was 17 years of age. The birth certificate issued by the Headmaster of Govt. High School, Naggar and Gram Panchayat, Naggar Ex PA and Ex PB, where in the date of birth of the victim has been given as 9.5.77 and the incident is of dated 17.2.1996 which means that the victim was major at the time of incident. The only allegation against the accused are that they tried to abduct the victim-prosecutrix forcibly in a van.

In the facts and circumstances, it could be inferred that the victm-prosecutrix, at the time of incident, was such of age that she could able to apply her own discretion and infact before kidnapping or before being abduction, she was saved. There is contradictory version emanating from the testimony of relevant prosecution witnesses who have supposed to be on the spot, namely PW-2 Ram Lal and in the absence of non examination of other girls, allegedly accompanying the victim on the fateful day. Therefore, in our considered view, the prosecution cannot be said to have proved its case beyond reasonable doubt. Therefore, we find no scope for interference in the impugned judgment. The criminal appeal, being devoid of merit, is accordingly dismissed.

The bail bonds, furnished by the accused/respondents, are discharged.