STATE OF H.P. Vs. VIDYA SINGH

JUDGEMENT

(1.) THE present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to judgment dated 31.5.1997 passed by learned Sessions Judge, Shimla, District Shimla HP, in Sessions Tr. No. 17 -S/7 of 1995, thereby acquitting the respondent / accused of the offences under Sections 366 and 376 of IPC.

(2.) THE prosecution case, in nut shell, is that on 29.6.1996, one Mian Ram son of Rattan Dass, Mistri, resident of Kawar, Tehsil Dodra Kawar, District Shimla, lodged a report saying that he was staying in village Tangnu along with his family members for the last few days for earning his livelihood and that four days back his daughter, the victim -prosecutrix, aged about 13 years had gone to attend the marriage of one Kedar Singh, from where she was kidnapped by the accused /respondent Vidya Singh and when he went to the house of accused/respondent to know the whereabouts of her daughter, accused/respondent and his family members tried to assault and accordingly FIR was lodged. The girl was recovered from the custody of accused/respondent Vidya Singh and later on her custody was entrusted to her father Mian Ram. Whereas the victim -prosecutrix, in her statement under Section 161 Cr.P.C. has stated that the accused Vidya Singh is the son of her father's real sister and for the last 4 -5 months her parents, her brother and sisters and she herself had been staying at the house of the accused and her father directed the victim -prosecutrix to have cohabitation with accused as his wife and, as such, on the permission of her father, she started living with the accused as his wife and was being sexually assaulted almost everyday. On investigation, the accused/respondent was charged of the aforesaid offences. The case was committed for session trial.

(3.) THE age of the victim -prosecutrix was said to be about 13 years in the year 1994, showing her date of birth as 11.4.1981, however, the victim -prosecutrix has denied that she had been kidnapped. On analysis of the prosecution witnesses and materials on record and the FIR Ex PA, it appears that the victim -prosecutrix was kidnapped four days prior to the lodging of FIR (i.e. the FIR was lodged on 29.6.1994) when she had gone to attend the marriage of one Kedar Singh, but the victim -prosecutrix, in her deposition as PW -9, has stated that she was kidnapped three months prior to her restoration to her parents by the police (her custody was restored to her parents on 30.6.1994) that is to day just one day after the lodging of the FIR. PW -9, victim -prosecutrix has further stated that she was kidnapped from her house when her parents had gone to the jungle to work as labourers. She specially denied that she was not kidnapped from the marriage of Kedar Singh. Not only this, PW -9 stated that she was not allowed to attend the marriage of Kedar Singh because she had been detained in the house of the accused and this fact had been kept concealed from her parents. The mother of the victim -prosecutrix Smt. Bimla Devi (PW -8), in her cross examination, has stated that victim -prosecutrix was kidnapped from the place of Kedar Singh. As such, we notice that the statements of victim -prosecutrix PW -9 and PW -8, Bimla Devi, mother of the victim -prosecutrix are contradictory regarding kidnapping.