STATE OF H P Vs. NANDU

JUDGEMENT

(1.) This appeal is directed against the judgement dated 7.5.1999 passed by the learned Sessions Judge, Solan, in Sessions Trial No. 28-S/7 of 1998 whereby he acquitted the accused of having committed offences punishable under Sections 363, 366, 376, 368 IPC read with Section 34 IPC.

(2.) Briefly stated the case of the prosecution is that PW-2 Devinder Chopra is a retired Navel Officer. His wife retired as a lieutenant from the Military Nursing Service. After retirement they had settled at Chandigarh. There they adopted the prosecutrix when she was only about two months old. According to them she was born on 11th September, 1985. Shri Devinder Chopra has two sons. One at the relevant time was an Admiral in the Indian Navy and the younger one was a Major in the Indian Army. Shri Chopra and his family alongwith the prosecutrix shifted to Parwanoo in the year 1990 when the prosecutrix was about 13 years old. It is alleged that on 12.7.1998 she had gone to attend some tuition, which was to take place in the school where she was studying. She did not return home after tuition. Thereafter PW-2 sent a messenger to the school and came to know that the prosecutrix had left with Bhagwati, one of the accused persons, who earlier used to work as a domestic help in their house. When PW-2 could not find his daughter he and his wife phoned the police who came and recorded the statement Ext.PA. In this statement it was recorded that in 1985 they had adopted one girl at Chandigarh, who was the prosecutrix aged about 13 years. The said girl was studying in National Public School in 7th Class. They earlier had one domestic help Bhagwati, who worked with them for 3-4 years earlier and now her mother Vishnoo Devi is working as a domestic help. In this statement it was stated that one boy of Nepalese origin, namely, Nandu (accused) had worked in their house as a labourer. On 12.7.1998 the prosecutrix went to the school to attend tuition. When she did not return home Sh. Chopra rang up the Principal and the Principal's daughter informed the complainant that one girl, namely Bhagwati had come to the school and the prosecutrix was seen talking to her and the prosecutrix had told her that she is going home. When the prosecutrix did not return home till 8 p.m then the search was made in Parwanoo and Kalka till mid night and thereafter the report was lodged. Next day, when PW-2 alongwith police officials were searching for the prosecutrix they saw her near the Railway Bridge. Then the prosecutrix told that accused Bhagwati had taken her to Kalka. From there she was told that they would go to Pinjore, but she was taken to Chandigarh. Accused Nandu and Chhutan Kumar (accused No.3) were also accompanying them. At Chandigarh they went to Hallo Majra and from there they went to the Main Bus Stop Chandigarh. At Chandigarh she was taken to a liquor vend where one of the employees, namely, Pal Singh (accused No.2) was known to the other persons. There she was raped by Nandu accused. The prosecutrix was thereafter got medically examined and after completion of investigation the accused were charged for having committed offences as aforesaid. They pleaded not guilty and claimed trial. The prosecution led evidence and the learned trial Court came to the conclusion that the accused were innocent and acquitted them.

(3.) As far as offences under Sections 363 and 366 are concerned, according to the learned trial Court there was no enticement or taking away of the prosecutrix since the minor was not kidnapped from her parental home and not influenced by any promise, offer or inducement. As far as the allegation of rape is concerned, the learned trial Court held that the prosecutrix was a consenting party and aged above 16 years and hence acquitted the accused. Hence the present appeal.