DHIAN SINGH Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) Kumari Dindu a girl nearing the age of majority, was found kidnapped on 17 -7 -1972 from her house at village Lashwal (Kulu). Her father Kewali Ram is an employee in the Electricity Department and as such he used to remain on out -door duties for 2 to 3 days in one stretch. Accordingly when he came back and enquired of his mother Dhani and another daughter Bhadri, he came to know about the kidnapping of Dindu. Adjoining the house of Kewali Ram. resided Moharu and his wife Kishni with their children. They had given a room on rent to Dhian Singh Gorkha (22 years) Appellant in the present case. It was reported to Kewali Ram that Dhian Singh had seduced the girl and had taken her away to the jungle of Mathi Kochher where Dhian Singh was employed. Accordingly Kewali Ram went to that jungle and made enquiries. Instead, he was threatened by the associates of Dhian Singh and he had to return back. Finally on 5 -9 -1972 when every effort failed to recover the girl, he made a report to the Police at Banjar. He made a full and careful report and narrated the entire event. His suspicion was undoubtedly on Dhian Singh, Moharu and Kishani. Incidentally, it may be stated, that Dindu used to visit very often Moharu and Kishni, and similarly had gone to them on that day. She was kidnapped from there by Dhian Singh who kept her as his wife in the jungle of Mathi Kochher. Accordingly when the Police was alerted, several attempts were made to recover the girl. Finally on 23 -11 -1972 she was recovered along with Dhian Singh accused. Both were medically examined. The age of the girl was found by Dr. B.N. Mishra to be 14 to 17 years. However, he recommended for X -ray examination for the ossification of bones. Dr. Miss Veena Sud accordingly examined the girl under X -ray and found her age to be 15 or 16 years. Although there was no sign of violence on the person of Dindu, yet she was criminally assaulted and to that extent even the accused admitted that he committed carnal intercourse with her, treating her as his wife.

(2.) The Police sent up the case against the three accused: Dhian Singh, Moharu and Kishni under Ss. 363, 366 and 376 of the Indian Penal Code. Except Dhian: Singh, the other two were discharged by the Magistrate Dhian Singh was committed to Sessions and the offences were found proved against him. He was sentenced by the: Sessions Judge, Mandi, for 5 years rigorous imprisonment under Sec. 376, and 3 years rigorous imprisonment under each of the Ss. 363 and 366. He has felt aggrieved of the decision and has preferred this appeal.

(3.) The learned Counsel strenuously contended that Dindu was above 16 years and inasmuch as she consented for sexual intercourse, so no offence was made out -under Sec. 376. The prosecution relied upon a birth entry Ex. PF said to be of Bhadri which is dated 3 -9 -1954 and it is stated that Denudes 2 to 3 years younger to that girl. From this birth entry, on the date of the offence the age of Bhadri should be near about 17 years, 10 months. Thus Dindu should be 15 years, 10 months, or 14 years, 10 months. According to Dr. B.N. Mishra (PW. 5) she is 14 to 17 years, while in accordance with the X -ray examination she is 15 to 16 years. However, Dindu stated that she is 20 years, which is apparently a mistake because she was won over by the accused, and as her statement indicates, she suppressed certain facts which were otherwise proved. The birth entry of Dindu was not available and hence could not be produced. In the F.I.R. the age was shown as 15 to 16 years. The girl was already married to two of the persons before she was kidnapped by Dhian Singh. From all this evidence, it may be plainly right to hold that two inferences were to be deduced: (1) that Dindu was a little under 16 years, or (2) that she was 16 years or a little more at the time of the commission of the offence. Dr. B.N. Mishra has stated that she could even be 17 years, while according to Dr. Miss Veena Sud, she could be 16 years. It would be fatuous to hold that the medical evidence regarding age was conclusive. It could only be suggestive in the sense that the age of the girl could be near about 16 years at the time of the offence. When two inferences are deduced, one favourable to the accused and the other against him, and both the inferences can get a stamp of truth after review of evidence, the one favourable to the accused must be accepted. It would, therefore, be appropriate to hold that Dindu was 16 years or a little more and the offence of rape under Sec. 376 was not made out against the Appellant. He needs be acquitted of that offence.