DAULAT RAM Vs. STATE OF H.P.

JUDGEMENT

(1.) In Session Trial No. l -S/7 of 2000, Daulat Ram (A -l) was tried on charges under Section 363 read with Section 34 and Section 376 of the Indian Penal Code whereas his co -accused Deep Ram (A -2) was tried on charges under Section 363 read with Section 34 IPC and Section 366 -A IPC. On trial, the Additional Sessions Judge, Shimla found A -l guilty of the offence under Section 363 read with Section 34 IPC and Section 376 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for three years under Section 363 IPC with fine of Rs, 2,000; in default of payment of fine to undergo further simple imprisonment for three months. He was also sentenced to undergo ten years rigorous imprisonment and to pay fine of Rs. 5,000 under Section 376 IPC. In default of payment of fine, A -1 shall further undergo simple imprisonment for six months. A -2 was sentenced to undergo three years rigorous imprisonment under Section 363 IPC with fine of Rs. 2,000. In default of payment of fine he shall suffer simple imprisonment for three months. Under Section 366 -A IPC, A -2 was sentenced to seven years rigorous imprisonment with fine of Rs. 5,000. In default of payment of fine he shall undergo six months simple imprisonment. All these sentences imposed by the learned Additional Sessions Judge shall run concurrently. If the amount of fine was realized from the accused persons, a sum of Rs. 10,000 was ordered to be paid to the prosecutrix. Both the accused persons have preferred this appeal challenging their convictions and sentences.

(2.) According to the prosecution, Ramesh Chand (PW -4) and A -2 are the cousin brothers of the prosecutrix R (real name with held by us) (PW -3). They are all residents of village Kayari, Tehsil Chopal, District Shimla. A -l is the resident of village, Khokha, Tehsil Chopal, District Shimla and he! is the son of maternal uncle of A -2. Hari Singh deceased was the father of the prosecutrix. At the time of death of the parents of the prosecutrix her age was about two years and the age of her brother Joginder was about four years. After the death of their parents, the prosecutrix and her brother started residing in the house of their uncle Kali Ram father of PW -4. Kali Ram also expired and thereafter the prosecutrix and her brother were under the guardianship of their cousin brother PW -4 and his wife Smt. Bimla Devi who brought up and looked after them. PW -4 also constructed a small room for their residence. It was the prosecution case that A -2 had entertained some grudge against the father of the prosecutrix and, therefore, after his death he started threatening the prosecutrix and her brother. A -2 threatened the prosecutrix to get her married with his cousin brother A -l. On 19.9.1999, A -l came to the village of the prosecutrix and A -2 and stayed with him for a night. On 20.9.1999 prosecutrix was not found in her room where she had resided with her brother on the previous night. PW Ramesh Chand and his wife Bimla Devi tried to search the prosecutrix in nearby villages and other places of their relations, but their efforts remained unsuccessful. It was on 28.9.1999, when PW -4 went to the police station, Chopal and lodged formal First Information Report (Ext. PW -4/A) at about 9 a.m. inter alia, stating that he was confident that both the accused persons must have induced the prosecutrix a minor girl to accompany them out of his guardianship, without his consent and he also apprehended that the prosecutrix might be forced or seduced to illicit inter -course or she might be forced to marry A -l.

(3.) On the basis of the said FIR Sub -Inspector Shri Vidhi Chand (PW -12), Police Station, Chopal (PW -12) started investigation of the case. He associated PW -4, one Relu Ram and some more persons and raided the house of Smt. Phulma Devi (PW -5) at village Khokha on 28.9.1999. The prosecutrix was recovered from the house of PW Smt. Phulma Devi and was entrusted in the custody of her cousin brother PW -4 and brother Joginder. Dari (a piece of cotton mattress) (Ext. P -2) stated to have been found spread over the floor of the room in the house of PW -5 and used for sleeping purpose by the prosecutrix jointly with A -l and Salwar (Ext. P -3) worn by the prosecutrix were taken into possession by the Investigating Officer in the presence of PW -4 Joginder and Relu Ram vide recovery memo (Ext. PW -3/B). Both the articles were sealed with seal impression "A" and the seal after use was handed over to Relu Ram.