Himachal Pradesh High Court
State Of Himachal Pradesh vs Pawan Kumar And Another on 20 August, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
( 2024:HHC:7040-DB ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 4238 of 2013 Reserved on: 14.08.2024 Decided on: 20th August, 2024 .
State of Himachal Pradesh .......Appellant
Versus
Pawan Kumar and another ...Respondents
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Yashwardhan Chauhan, Mr. I.N. Mehta, Senior Additional Advocates General, Mr. Navlesh Verma, Additional Advocate General with Mr. Raj Negi, Deputy Advocate General.
For the respondents: Mr. Sanjeev Kumar, Advocate.
Tarlok Singh Chauhan, Judge Aggrieved by the acquittal of the respondents for the commission of offence punishable under Sections 363, 366, 376, 368 and 201 of the Indian Penal Code (hereinafter referred to as the 'IPC'), the State has filed the instant appeal.
2. The case of the prosecution, in brief, is that on 24.09.2011 at about 4.00 p.m., the prosecutrix was all alone at her home, when she was intimated telephonically by 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 20/08/2024 20:38:15 :::CIS2 ( 2024:HHC:7040-DB ) respondent No.1 to reach Shahpur by bus. She boarded the bus and got down at Shahpur where respondent No.1 was already waiting and took her along-with him. The sister of .
respondent No.1 i.e. respondent No.2 herein lived at Naina Devi, District Bilaspur, H.P. The prosecutrix was taken there and stayed on the night of 24th September, 2011 in her house, where respondent No.1 had committed sexual intercourse with her without her consent and thus committed the rape. After few days, respondent No.1 took the prosecutrix to the house of his another sister in the same area, where he disclosed that he was going to marry with the prosecutrix. The brother-in-law of respondent No.1 brought both respondent No.1 as well as prosecutrix to Nurpur Thana (Police Station), where the prosecutrix gave her statement that respondent No.1 had taken her on the promise to marry her and hence the case, pursuant to which FIR No.350/2011 dated 27.09.2011, came to be registered. Respondent No.1 was arrested and the prosecutrix was handed over to her father and thereafter she was also medically examined along-with respondent No.1.
3. During the course of investigation, respondent No.1 made a disclosure statement, pursuant to which, the place where he stayed at village Dholra near Naina Devi and the ::: Downloaded on - 20/08/2024 20:38:15 :::CIS 3 ( 2024:HHC:7040-DB ) room where they stayed was identified by respondent No.1 and the spot map was prepared.
4. During the course of investigation, the Investigating .
Officer had taken the photographs of the room at village Dholra and the father of the prosecutrix had handed over the middle standard examination certificate to the I.O. The statements of the witnesses were recorded under Section 161 Cr.PC and on receipt of the report from FSL, Junga challan was prepared against the respondents under the aforesaid sections and presented in the Court for trial.
5. On finding a prima-facie case, charges against the respondents were framed under Sections 363, 366, 376 and 368 IPC, to which, they pleaded not guilty and claimed trial.
5. In order to substantiate its case, the prosecution examined as many as 14 witnesses.
6. On closure of prosecution evidence, the respondents were examined under Section 313 Cr.P.C., in which, they denied the case of the prosecution but had not chosen to lead any evidence.
7. The learned trial Court after appreciating the evidence on record acquitted the respondents, constraining the State to file the instant appeal.
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8. It is vehemently argued by Mr. Navlesh Verma, learned Additional Advocate General that the findings recorded by the learned trial Court are perverse and, therefore, deserve .
to be set aside and the respondents deserve to be convicted for the offences, they have been charged with.
9. On the other hand, Mr. Sanjeev Kumar, learned counsel appearing for the respondents would urge that there is no perversity in the findings recorded by the learned trial Court and being based on evidence, the same do not warrant any interference by this Court as there is double presumption of innocence upon acquittal of the respondents, which need not to be interfered with.
10. We have given our thoughtful consideration to the submissions made at the Bar and have also gone through the judgment of the learned trial Court as well as the evidence on record.
11. First of all, we would reiterate the principles laid down by the Hon'ble Apex Court, governing the scope of interference by the High Court in an appeal filed by the State for assailing the acquittal of the accused, on the findings recorded by the learned trial Court.
12. In Rajesh Prasad vs. State of Bihar and another 2022 Live Law (SC) 33, a three Judge Bench of the Hon'ble ::: Downloaded on - 20/08/2024 20:38:15 :::CIS 5 ( 2024:HHC:7040-DB ) Apex Court encapsulated the legal position governing the field, after considering various earlier judgments, and held as under:-
.
"28. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."::: Downloaded on - 20/08/2024 20:38:15 :::CIS
6 ( 2024:HHC:7040-DB )
13. Further, in case titled as H.D. Sundara and others vs. State of Karnataka (2023) 9 SCC 581, the Hon'ble Apex Court summarized the principles governing the .
exercise of Appellate jurisdiction, while dealing with an appeal against acquittal under Section 378 Cr.P.C. The relevant paragraphs No. 8 to 10 of the judgment are reproduced as under:-
"8. In this appeal, we are called upon to consider the legality and validity of the impugned judgment rendered by the High Court while deciding an appeal against acquittal under Section 378 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.'). The principles which govern the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of Cr.P.C. can be summarised as follows: -
8.1. The acquittal of the accused further strengthens the presumption of innocence;
8.2. The Appellate Court, while hearing an appeal against acquittal, is entitled to re-appreciate the oral and documentary evidence;
8.3. The Appellate Court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the Trial Court is a possible view which could have been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the Appellate Court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The Appellate Court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.
9. Normally, when an Appellate Court exercises appellate jurisdiction, the duty of the Appellate Court is to find out whether the verdict which is under challenge is correct or incorrect in law and on facts. The Appellate Court normally ascertains whether the ::: Downloaded on - 20/08/2024 20:38:15 :::CIS 7 ( 2024:HHC:7040-DB ) decision under challenge is legal or illegal. But while dealing with an appeal against acquittal, the Appellate Court cannot examine the impugned judgment only to find out whether the view taken was correct or incorrect. After re-appreciating the oral and documentary evidence, the Appellate Court must first decide whether the Trial Court's view was a possible view. The Appellate Court cannot .
overturn acquittal only on the ground that after re-appreciating evidence, it is of the view that the guilt of the accused was established beyond a reasonable doubt. Only by recording such a conclusion an order of acquittal cannot be reversed unless the Appellate Court also concludes that it was the only possible conclusion. Thus, the Appellate Court must see whether the view taken by the Trial Court while acquitting an accused can be reasonably taken on the basis of the evidence on record. If the view taken by the Trial Court is a possible view, the Appellate Court cannot interfere with the order of acquittal on the ground that another view could have been taken.
10. There is one more aspect of the matter. In many cases, the learned Trial Judge who eventually passes the order of acquittal has an occasion to record the oral testimony of all material witnesses. Thus, in such cases, the Trial Court has the additional advantage of closely observing the prosecution witnesses and their demeanour. While deciding about the reliability of the version of prosecution witnesses, their demeanour remains in the back of the mind of the learned Trial Judge. As observed in the commentary by Sarkar on the Law of Evidence, the demeanour of a witness frequently furnishes a clue to the weight of his testimony. This aspect has to be borne in mind while dealing with an appeal against acquittal."
14. Thus, it is beyond the pale of doubt that the scope of interference by an Appellate Court for reversing the judgment of acquittal rendered by the learned trial Court has to be exercised within the four corners of the following principles:-
a) That the judgment of acquittal suffers from patent perversity;
b) That the same is based on misreading/omission to consider material evidence on record;
c) That no two views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.::: Downloaded on - 20/08/2024 20:38:15 :::CIS
8 ( 2024:HHC:7040-DB )
d) The Appellate Court in order to interference with the judgment of acquittal would have to record pertinent findings on the above factors, if it is inclined to reverse the judgment of acquittal rendered by the trial Court."
15. Equally settled is the proposition that it is not the .
duty of the Appellate Court when it agrees with the view of the trial Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court, expression of general agreement with reasons given by the Court, the decision of which is under appeal, would ordinarily suffice (Refer: Girijanandini Devi and others vs. Bijendra Narain Choudhary AIR 1967 SC 1124).
16. As per admitted case of the prosecution, respondent No.1 is the brother-in-law of the brother of father of the prosecutrix, whereas, respondent No.2 is the real sister of respondent No.1. It is also admitted case of the prosecution that respondent No.1 was in visiting terms at the residence of the prosecutrix. It is also admitted case of the prosecution that mother of the prosecutrix had died about eight months prior the alleged date of incident i.e. 24.09.2011.
17. As per the prosecution, there were earlier allegations of molestation leveled by the prosecutrix against respondent No.1, which had been compromised when the mother of the prosecutrix was alive. It is further admitted case ::: Downloaded on - 20/08/2024 20:38:15 :::CIS 9 ( 2024:HHC:7040-DB ) of the prosecution that prosecutrix was about 16 years and four months of age when she had left the house of her father and accompanied respondent No.1 and had thus attained the .
age of discretion.
18. It is in this backdrop that the veracity and correctness of the findings rendered by the Court below had to be tested.
19. The prosecutrix appeared in the witness box as PW-5 and deposed on oath that in the year 2009, she had passed 8th class and thereafter did 10th privately and started stitching work in her house. They were three sisters and one brother. Her brother after passing +2 started welding work.
8/9 months prior to the occurrence, her mother had died. Her father used to work as labourer. Adjoining to her house, the house of her aunt Asha Devi was situated whose brother's name was Pawan Kumar (respondent No.1). Respondent No.1 used to visit their house and his aunt. She used to live alone in her house, as her father remained busy in his work. One year prior to the occurrence, respondent No.1 had come to her house and at that time, she was all alone. He committed rape with her. Thereafter, he again committed rape with her 1, 2, 3 times against her wish on the promise that he will marry her.
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20. On 24.09.2011, respondent No.1 called her to Shahpur by bus and she left her house and came to Shahpur by bus. From there, respondent No.1 took her to his sister's .
house (respondent No.2) at Naina Devi, but she did not remember the name of the village. On the said date also, respondent No.1 committed rape with her. After few days, respondent No.1 again took her to the house of his another sister in the same area, where he disclosed that he was going to marry her. Sukhdev, the brother-in-law of respondent No.1 brought her and respondent No.1 to Nurpur Police Station, where she gave statement to the police that respondent No.1 had taken her on the promise to marry her. She was medically examined and appended her signatures on the MLC. She deposed that respondent No.1 committed rape with her against her will and consent.
21. On being cross-examined, the prosecutrix stated that she did not remember the exact date and month when respondent No.1 committed rape with her but volunteered to state that her mother was alive at that time. She disclosed this fact to her mother and father also, but they did not lodge any complaint with the police. Volunteered to state that the matter was re-conciled. She denied that respondent No.1 had not committed rape with her. She further denied that the matter ::: Downloaded on - 20/08/2024 20:38:15 :::CIS 11 ( 2024:HHC:7040-DB ) was compromised only with regard to the outraging of her modesty. She further denied that she was having love affair with respondent No.1 and wanted to marry with him. She .
denied that she used to talk with respondent No.1 over the telephone. She further deposed that when respondent No.1 used to call her on the telephone, she had not disclosed this fact to anyone of her family members. Respondent No.1 used to call her on the telephone of his sister, who is her aunt. At that time, her aunt was not present in her house and she had not disclosed this fact to her. The distance between her house and the house of her aunt is approximately 50 meters. Respondent No.1 called her on the mobile of her aunt, which was lying in the house of her aunt. None of the family members of Kushal was present in the house. She boarded the bus from Raja-ka-
Talab, which was at a distance of 3-4 kilometers from her house. No-one met her on the way. She admitted that when she boarded the bus, it was full with passengers, but she did not disclose this fact to any passenger. She denied that mobile bell could be heard at a distance of 50 meters. She further deposed that she had boarded the bus at Raja-ka-Talab at about 10-11.00 a.m. She left her house at 9.30 a.m. She had de-boarded the bus at Shahpur bus stand, where respondent No.1 was already waiting and many people were present at ::: Downloaded on - 20/08/2024 20:38:15 :::CIS 12 ( 2024:HHC:7040-DB ) Shahpur bus stand at that time. Thereafter, she accompanied respondent No.1 in a small vehicle, but did not remember its registration number or the name of its driver. After reaching .
the house of respondent No.2, she did not board any bus and this fact was disclosed to the police in her statement (confronted with the statement mark 'X' where this fact was not specifically recorded). She had never visited Kiratpur. There were number of Police Stations from Shahpur to Bilaspur on the way and number of people had met her on the way, but she did not disclose this fact to anybody. She stated that at the time of her medical examination, the doctor had inquired the matter from her.
22. PW-4 is the father of the prosecutrix. He deposed that on 27th September, 2011, he had gone to forest with goats and the prosecutrix was present in the house. At about l 'o' clock, when he came back to his house, he did not find the prosecutrix in the house and made inquiry from his brother Kushal, who informed him that the prosecutrix had gone to the well to fetch water. Thereafter, he tried to search her in the village and surrounding area of the village, but could not find her. Thereafter, he came to know that the prosecutrix had been taken away by respondent No.1. Respondent No.1 is brother-
in-law of his brother. Respondent No.1 used to visit their ::: Downloaded on - 20/08/2024 20:38:15 :::CIS 13 ( 2024:HHC:7040-DB ) house. Prior to this occurrence, respondent No.1 was also tried to outrage the modesty of the prosecutrix. At that time, he called the parents of respondent No.1 and the matter was .
reconciled. His brother informed him that the prosecutrix had been taken away by respondent No.1. Thereafter, he lodged the report with the police vide Ex. PW4/A. The prosecutrix was recovered from Naina Devi in District Bilaspur. She was also medically examined. After recovering the prosecutrix, her custody was handed over to him by the police vide seizure memo Ex. PW4/B. He handed over school certificate of the prosecutrix to the police.
23. On being cross-examined, he stated that he was married in the month of 'Magh' (Desi Month) 1984. His first child was born after 7 year of marriage in 1989 and second was born in 1991 and the third in the year 1993. He did not remember the month of the birth. He did not produce the matric certificate of the prosecutrix to the police. He did not remember in which year she passed 10th class. He did not lodge any complaint with the police when respondent No.1 had tried to outrage the modesty of his daughter 7/8 months prior to this occurrence. He disclosed this fact to the police in the FIR. (Confronted with the FIR wherein one year is mentioned instead of 7/8 months). He further deposed that thereafter, ::: Downloaded on - 20/08/2024 20:38:15 :::CIS 14 ( 2024:HHC:7040-DB ) respondent No.1 never repeated such act. He disclosed to the police that he came back to his house at 1 '0' clock.
(Confronted with FIR Ex.PW4/A wherein time 4 '0' clock was .
recorded instead of l 'o' clock). He did not remember when his brother telephonically informed him about the fact that the prosecutrix had been taken by respondent No.1. He had not seen Pawan (respondent No.1) in the village on 24th. He could not state as to whether any other villager had seen respondent No.1 in the village on the said date. He deposed that his village was thickly populated and there were only three houses in the village. When he made the inquiry about the prosecutrix from the villagers, none of them informed that she had been taken away by respondent No.1. He informed Sudershan BDC member that his daughter had gone with respondent No.1 on 24th. He admitted that he had not lodged any complaint with the police on 23rd, 24th, 25th and 26th and had lodged the complaint with the police only on 27th in the evening. He could not state that his daughter had left the house voluntarily and travelled in the bus. He denied that his daughter was having love affair with respondent No.1. He denied that his daughter wanted to marry with respondent No.1. He denied that he had wrongly recorded the date of birth of his daughter and at the time of occurrence, she was more than 18 years old.
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24. At this stage, it shall be apt to reproduce Sections 363 as also Section 366 IPC, which read as under:
"363. Punishment for kidnapping.-Whoever kidnaps any .
person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
"366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; 2[and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid."
25. It would be evidently clear from the statement of the prosecutrix herself that she was neither abducted nor kidnapped or enticed by respondent No.1 out of the keeping of her lawful guardian.
26. In S. Varadarajan vs. State of Madras, AIR 1965 SC, 942, the Hon'ble Supreme Court held as under:
"7.The question whether a minor can abandon the guardianship of his or her own guardian and if so the further question whether Savitri could, in acting as she did, be said to have abandoned her father's guardianship may perhaps not ::: Downloaded on - 20/08/2024 20:38:15 :::CIS 16 ( 2024:HHC:7040-DB ) be very easy to answer. Fortunately, however, it is not necessary for us to answer either of them upon the view which we take on the other question raised before us and that is that "taking" of Savitri out of the keeping of her father has not been established. The offence of "kidnapping from lawful guardianship" is defined thus in the first paragraph of s. 361 .
of the Indian Penal Code:
"Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."
It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what, we have to find out is whether the part played by the appellant amounts to "taking", out of the keeping of the lawful guardian, of Savitri. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Natarajan ,She still continued to be in the lawful keeping of the former but then the question remains as to what is it which the appellant did that constitutes in law "taking". There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. There is no suggestion that the appellant took her to the Sub- Registrar's office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or, anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her own side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping ,of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited -different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite ::: Downloaded on - 20/08/2024 20:38:15 :::CIS 17 ( 2024:HHC:7040-DB ) consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was of course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the .
law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her. She was no uneducated or un- sophisticated village girl but a senior college student who had probably all her life lived in a modern city and was thus far more capable of thinking for herself and acting on her own than perhaps an unlettered girl hailing from a rural area. The learned Judge of the High Court has referred to the decision In re : Abdul Sathar(1) in which it was held that where the evidence disclosed that, but for something which the accused consented to do and ultimately did, a minor girl would not have left her husband's house, or would not have been able to leave her husband's house, there was sufficient taking in law for the purpose of S. 363 and expressing agreement with this statement of the law observed: "In this case the minor, P.W. 4, would not have left the house but for the promise of the appellant that he would marry her." Quite apart from the question whether this amounts to blandishment we may point out that this is not based upon any evidence direct or otherwise. In Abdul Sathar's case(1) Srinivasa Aiyangar J., found that the girl whom the accused was charged with having kidnapped was desperately anxious to leave her husband's house and even threatened to commit suicide if she was not taken away from there and observed :
"If a girl should have been wound up to such a pitch of hatred of her husband and of his house or household and she is found afterwards to have gone out of the keeping of her husband, her guardian, there must undoubtedly be clear and cogent evidence to show that she did not leave her husband's house herself and that her leaving was in some manner caused or brought about by something that the accused did."
In the light of this observation the learned Judge considered the evidence and came to the conclusion that there was some legal evidence upon which a court of fact could find against the accused. This decision, therefore, is of little assistance in this case because, as already stated, every essential step was taken by Savitri herself : it was she who telephoned to the appellant and fixed the rendezvous, she walked up to that place herself and found the appellant waiting in the car; she got into the car of her own accord without the appellant asking her to step in and permitted the appellant to take her wherever he liked. Apparently, her one and only intention was to become ::: Downloaded on - 20/08/2024 20:38:15 :::CIS 18 ( 2024:HHC:7040-DB ) the appellant's wife and thus be in a position to be always with him.....
9. It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would .
like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of s. 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian...."
12.....It must be borne in mind that while ss. 497 and 498, I.P.C. are meant essentially for the protection of the rights of the husband,- s. 361 and other cognate sections of the Indian Penal Code are intended more for the protection of the minors and persons of unsound mind themselves than of the rights of the guardians of such persons. In this connection we may refer to the decision in State v. Harbansing Kisansing, ILR (1954) Bom. 784: (AIR 1954 Bom. 339). In that case Gajendragadkar J., (as he then was) has, after pointing out what we have said above, observed:
"It may be that the mischief intended to be punished partly consists in the violation or the infringement of the guardians' right to keep their wards under their care and custody; but the more important object of these provisions undoubtedly is to afford security and protection to the wards themselves." (P. 944, 945 and
946)
27. This decision was subsequently considered by the Hon'ble Supreme Court in Thakorlal D. Vadgama vs. The State of Gujarat, AIR 1973 SC 2313, wherein it was held as under:
"9. The legal, position with respect to an offence under s. 366, I.P.C. is not in doubt. In State of Haryana v. Raja Ram AIR ::: Downloaded on - 20/08/2024 20:38:15 :::CIS 19 ( 2024:HHC:7040-DB ) 1973 SC 819, this Court considered the meaning and scope of s. 361, I.P.C. It was said there:
"The object of this section seems as much to protect the minor children from being seduced for improper purposes as. to protect the rights and privileges of guardians having the lawful charge or custody of their .
minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this--Section, out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor........ out of the keeping of the lawful guardian of such minor" in s. 361, are. significant. The use of the word "keeping" in the context connotes the idea of charge, protection, maintenance and control : further the guardian's charge and control appears to be. compatible with the independence of action and movement in the minor, the guardian's protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial; it is only the guardian's consent rwhich takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would: be sufficient to attract the section".
In the case cited reference has been made to some English decisions in which it has been stated that forwardness on the part of the girl would not avail the person taking her away from being guilty of the offence in question and that if by moral force a willingness is created in the girl to go away with the former, the offence would be committed unless her going away is entirely voluntary. Inducement by previous promise or persuasion was held in some' English decision to be sufficient to bring the case within the mischief of the statute. Broadly, the same seems to us to be the position under our law. The expression used in s. 361, I.P.C. is "whoever takes or entices any minor The word "takes" does not necessarily connote taking by force and'-it is not confined only to use of force, actual or constructive. 'This word merely means, "to cause to go9", "to escorts' or "to get into possession'. No doubt it does mean physical taking, but not necessarily by use of force or fraud. The word "entice" seems to involve the idea of inducement- or allurement, by giving rise to hope or desire in the other. This can take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success on the mental state of the person at the time when the inducement is intended to ,operate. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some ::: Downloaded on - 20/08/2024 20:38:15 :::CIS 20 ( 2024:HHC:7040-DB ) time, in achieving its ultimate purposes of successful inducement. The two words "takes" and "entices', as 'used in s. 361, I.P.C. are, in our opinion, intended to be read together so that each takes to some extent its colour ,and content from the other. The statutory language suggests that if the minor leaves her parental home, completely uninfluenced by any promise, .
offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in s. 361, I.P.C. But if the, 'guilty party has laid a foundation by inducement, allurement or threat, etc. and if this can be considered to have influenced the minor or weighed:
with her in leaving her guardian's custody or keeping and going to the guilty party, then prima facie it would be, difficult for him to plead innocence on the ground that the minor had voluntarily come to him. If he had at an earlier stage solicited or induced her in any manner to leave her father's protection, by conveying or indicating an encouraging suggestion that he would give her shelter, then the mere circumstance that his act was not the immediate cause of her leaving her parental home or guardian's custody would constitute no valid defence and would not absolve him. The ;question truly falls for determination on the facts and circumstances of each case. In the case before us, we cannot ignore the circumstances in which the appellant and Mohini came close to each other and the manner in which he is stated to have given her presents and tried to be intimate with her. The letters written by her to the appellant mainly in November, 1966 (Exhibit p. 20) and in December, 1966 (Exhibit p. 16) and- also the letter written by Mohini's mother to the appellant in September, 1966 (Exhibit p.
27) furnish very important and essential background in which the culminating incident of January 16th and 17th, 1967 has to be examined. These letters were taken into consideration by the High Court and in our opinion rightly. The suspicion entertained by Mohini's mother is also, in our opinion, relevant in considering the truth of the story as narrated by the prosecutrix. In fact, this letter indicates how the mother of the girl belonging to a comparatively poorer family felt when confronted with a rich man's dishonourable behaviour towards her young, impressionable, immature daughter; a man who also suggested to render financial help to her husband in time of need. These circumstances, among others, show that the main substratum of the story as revealed by Mohini in her evidence, is probable and trustworthy and it admits of no reasonable doubt as to its truthfulness. We have, therefore, no hesitation in holding that the conclusions of the two courts below with respect to the offence under s. 3 66, 1. P.C. are unexceptionable. There is absolutely no ground for interference under Article 136 of the Constitution."
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28. Thereafter, in Moniram Hazarika vs. State of Assam AIR 2004 SC 2472, the Hon'ble Supreme Court held as under:
.
"Keeping in mind the above requirement of law, we will examine the facts of this case to find out whether two courts below were justified in convicting the appellant. It is clear from the finding of facts of two courts below which is based on material available on record, that PW-2 was a minor at that time when she was taken away from her lawful guardian. As a matter of fact the said finding is not seriously challenged. The case of the appellant is that PW-2 voluntarily accompanied him with a view to marry him and there was no enticement or taking away of PW-2 as contemplated under Section 361 of IPC. We think the material on record shows otherwise. It has come on record that the appellant was known to the family of PW-2 and was on visiting terms. It is his own case that during such visits he developed intimacy with PW-2. It is the case of the defence that even on the day of incident when the appellant was standing outside the house, PW-2 came to him and requested him to take her away. But there is material on record to show that the appellant promised to marry her and it is based on such promise she went away with the appellant and there is also material on record to show that on that day preparation for marriage was already made in the house of the appellant. Thus two things are clear from this fact; one, that there was a promise of marriage and secondly, based on the said promise PW-2 went with the appellant. Of course, PW-2 had come out with the case that she had come out of the house to answer the call of nature when she was forcibly taken by the appellant which part of the prosecution case is not accepted. But the material on record, as stated above, shows that there was a promise of marriage made to PW-2 which amounts to enticement of a minor because of which she had left the house of her lawful guardian. In this background, in our opinion, the courts below were justified in coming to the conclusion that the appellant had committed the offence punishable under Section 366 of IPC."
29. Earlier to that, this Court in Paramjit Singh vs. State of Himachal Pradesh 1987 Cri. L.J. 1266 held as under:-
"24...............It is clear that in order to hold a person guilty of an offence under S. 363 of the Indian Penal Code it must be proved that the accused played an active part in taking away a female out of the keeping of her guardian without the ::: Downloaded on - 20/08/2024 20:38:15 :::CIS 22 ( 2024:HHC:7040-DB ) consent of the guardian either prior to, or at the time of her taking away out of such guardianship by either directly using force or threat against the female or injecting into her mind some irresistible allurements or temptations which may impel her to leave or forsake the custody of her guardian." (P.1270) .
30. A learned Single Judge of this Court in Satbir Singh vs. The State of Himachal Pradesh, Latest HLJ 2012 (HP) 741, has held that where the prosecutrix is above 16 years of age and leaves the house of the complainant and the convict and co-accused are not instrumental in taking or enticing her house of the keeping of the then lawful guardian and that the prosecutrix voluntarily accompanies the convict, it cannot be said that the accused had enticed or had made any inducement attracting provisions of Section 363 IPC.
31. This judgment, in turn, has been followed by a Division Bench of this Court in Ram Lal vs. State of Himachal Pradesh, ILR 2019 (2), 222.
32. Now the moot question in this background would be regarding the age of the prosecutrix. As per parivar register Ext.PW-3/A, no date of birth of the prosecutrix has been mentioned, save and except an entry that she was born in the year 1995. In the entries in the register Births and Deaths, Ext.PW-10/A, she had been shown to be born on 12.09.1995 and as regards the certificate of middle issued by the H.P. Board of School Education, her date of birth had been shown ::: Downloaded on - 20/08/2024 20:38:15 :::CIS 23 ( 2024:HHC:7040-DB ) to be 07.05.1995. There was also an ossification test, which shows the age of the prosecutrix between 15-16 years.
33. In Satbir Singh's case (supra), it is held that the .
entry made in the parivar register regarding date of birth cannot be relied upon as the entry in the parivar register is not based on Birth and Death certificate.
34. A learned Single Judge of this Court in Manpreet vs. State of Himachal Pradesh Latest HLJ 2012 (HP) 279, while dealing with the age of the prosecutrix has held that where the secondary school certificate is based on the entry contained in school leaving certificate and the bases of school leaving certificate was not known, then, the public document has to be tested by applying the same standards in civil as well as criminal proceedings.
35. Adverting to the instant case, it would be noticed that Ext.PW-10/A is the birth certificate and on the basis of the entries in the Births and Deaths register, which has been proved by Sh. Rumel Singh (PW-10) Panchayat Secretary, who in his examination-in-chief deposed that the entry of the birth of the prosecutrix was entered at Serial No.51 brought by him and thus is the best and otherwise legally reliable evidence.
36. As already observed above, the entry in parivar register Ext.PW-3/A has to be left out of consideration for not ::: Downloaded on - 20/08/2024 20:38:15 :::CIS 24 ( 2024:HHC:7040-DB ) only the reasons assigned above but also because it has specifically come in the statement of Surinder Kumar (PW-3) that the entry regarding the age in the register had been .
incorporated on guess work and he also admitted that there is no entry in the panchayat regarding the birth of the prosecutrix.
37. Further, it needs to be noticed that no record of school where the prosecutrix had studied was brought on record and only a certificate of middle standard examination issued by the H.P. Board of School Education Ext.PW-14/C was collected by the investigating agency where her date of birth has been shown to be 07.05.1995. No evidence has been led by prosecution that at whose instance such entry was incorporated even with the board authorities, given the fact that the certificate had been produced by the father of the prosecutrix.
38. The Court is now left with the task to examine the allegations of rape leveled by the prosecutrix. Once, the prosecutrix has been held to be major, then, obviously, she has attained the age of discretion and as per her own testimony, as referred to above, the prosecutrix had sufficient time and opportunity to raise an alarm of protest while accompanying respondent No.1, but she opted to remain silent. She had left ::: Downloaded on - 20/08/2024 20:38:15 :::CIS 25 ( 2024:HHC:7040-DB ) the house of her father on her own accord and accompanied respondent No.1 to various places. Furthermore, she has not stated about any force, coercion or threat being extended to her .
during the time she stayed or accompanied respondent No.1, but would still state that she had been subjected to rape several times repeatedly at the house of respondent No.2, which apparently appears to be consensual.
39. In this background, it needs to be noticed that the prosecutrix was medically examined by PW-12 Dr. Sushma Sharma, before whom an application Ext.PW-12/A was moved by the Investigating Officer, in which, the prosecutrix had alleged history of sexual assault. According to history disclosed by her, the prosecutrix had changed the clothes worn by her daily and had taken bath daily. The medical expert in her cross-examination clearly stated that there was no positive evidence of rape. PW-12 further admitted that she could not state with certainty that the prosecution had been raped one year before. She opined that according to opinion of Gynecologist PW-11 Dr.Amod Kumar Singh, the prosecutrix was habitual to sexual intercourse and as per opinion of Radiologist, PW-2 Dr.Raman Kumar, the prosecutrix was between the age of 15-16 years of age.
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40. All these facts assume importance because the prosecutrix in her cross-examination had stated that she had been repeatedly raped by respondent No.1 on 24th, 25th, 26th, .
27th and 28th. Even though, she had voluntarily accompanied respondent No.1 and stayed in the house of her sister (respondent No.2) and thereafter, stayed in the house of his another sister whose residence was adjoining to the house of the prosecutrix. If the prosecutrix was not a consenting party, then, she should not have opted to leave the house of her father and stayed with respondent No.1 in his sister's (respondent No.2) house, which clearly goes to indicate that she was a consenting party to the sexual intercourse, having voluntarily accompanied respondent No.1. The prosecutrix made no efforts to resist sexual advances and so called rape which impeaches her credibility.
41. The Hon'ble Apex Court in Dilip and another vs. State of M.P. (2001) 9 SCC 452 in paragraph 14 of the judgment has held as under:-
"14. The age of the prosecutrix was around 16 years, may be a little more. The fact remains that she was not just a child who would have surrendered herself to a forced sexual assault without offering any resistance whatsoever. Without going into testing truthfulness of the explanation offered by the prosecutrix that because of being over-awed by the two accused persons she was not able to resist, the fact remains ::: Downloaded on - 20/08/2024 20:38:15 :::CIS 27 ( 2024:HHC:7040-DB ) that the 'probabilities factor' operates against the prosecutrix. The gang rape is alleged to have been committed at about 2 p.m., in her own house, situated in a populated village by the side of the main road where people were moving on account of .
Holi festival. The prosecutrix did raise hue and cry to the extent she could and yet none was attracted to the place of the incident. The prosecutrix is said to have sustained injuries, also bladed from her private parts staining her body as also the clothes which she was wearing. This part of the story is not only not corroborated by the medical evidence, is rather belied thereby. The presence of blood-stains is not confirmed by forensic science laboratory or by the doctors who examined the prosecutrix. The own maternal aunt to whom the story of sexual assault has been narrated by the prosecutrix gives a version which does not tally with the version of the prosecutrix as given in the court. The learned counsel for the State relied on Section 114A of Evidence Act, 1872 which provides that in a trial on a charge under Section 376(2)(g) of IPC on the prosecutrix stating that she was not a consenting party, the Court shall presume absence of consent of the woman alleged to have been raped. Suffice it to observe that we should not misunderstood (sic) as recording a finding that the prosecutrix was a willing party to sexual intercourse by the accused persons. The court is finding it difficult to accept the truthfulness of the version of the prosecutrix that any sexual assault as alleged was committed on her in view of the fact that her narration of the incident becomes basically infirm on account of being contradicted by the statement of her own aunt and medical evidence and the report of forensic science laboratory. The defence has given suggestion in cross- examination for false implication of the accused persons which however have not gone beyond being suggestions merely. It is not necessary for us to dwell upon further to find out the probability of truth contained in the suggestions because we are not satisfied generally of the correctness of story as told by ::: Downloaded on - 20/08/2024 20:38:15 :::CIS 28 ( 2024:HHC:7040-DB ) the prosecutrix. We find it difficult to hold the prosecutrix in the case as one on whose testimony an implicit reliance can be placed."
.
42. What further makes the prosecution case doubtful is that the prosecutrix in her cross-examination has admitted that on receiving telephonic call from respondent No.1, she did not share this aspect with anyone in her family. If the prosecutrix had been subjected to rape as projected by her, she would have normally informed, if not her relative then atleast her father.
43. It is also not a case where respondent No.1 had sexually exploited the prosecutrix on the pretext of marriage.
This would be evidently clear from the fact that even though, the prosecutrix in her examination-in-chief did try to make an endeavour to state that respondent No.1 had established physical relations with her on the pretext of marriage, however, in her cross-examination, she had denied the fact that she was having a love affair with respondent No.1 or that she wanted to marry with him.
44. The State has miserably failed to establish that the approach of the trial Court is vitiated by some manifest or illegal error and the decision of the learned trial Court is against the material and evidence available on record.
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45. In this view of the matter, we are in agreement with the reasons recorded by the learned trial Court in acquitting the respondents and in our considered opinion, the impugned .
judgment is just, legal and proper, therefore, warrants no interference by this Court.
46. Consequently, there is no merit in the instant appeal and the same is accordingly dismissed. Bail bonds are discharged.
47. Record be sent down.
r ( Tarlok Singh Chauhan )
Judge
August 20, 2024 ( Sushil Kukreja )
(naveen) Judge
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