Himachal Pradesh High Court
State Of Himachal Pradesh vs Ajeet Kumar And Another on 4 September, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 1797 of 2023 Date of decision:04.09.2023.
.
State of Himachal Pradesh .....Appellant.
Versus Ajeet Kumar and another .....Respondents. Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
of The Hon'ble Mr. Justice Ranjan Sharma, Judge.
Whether approved for reporting?1 No.
For the Appellant
rt : Mr. I. N. Mehta, Sr. Addl. A.G.
with Ms. Sharmila Patial, Addl.
A.G., Mr. J.S. Guleria, Deputy
Advocate General and Mr. Rajat
Chauhan, Law Officer.
For the Respondents : None.
Tarlok Singh Chauhan, Judge
Aggrieved by the acquittal of respondent No. 1 for the offence punishable under Sections 363, 366 & 120B of IPC and of respondent No. 2 for the offence punishable under Sections 363, 366 & 120B of IPC and Section 6 of the Protection of Children from Sexual Offences Act (for short 'POCSO Act'), the State has filed the instant appeal.
2. Briefly stated, the prosecution story is that victim (PW-5) was sixteen years and eight months old and had 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 06/09/2023 21:30:31 :::CIS 2 completed her plus two. Her neighbour Pooja used to call her to her house. Respondent No. 2 was the cousin of Pooja and would frequently visit her house. The victim was learning .
tailoring at Durana. On 23.01.2020, as usually she went to Durana, but did not return. Her father (PW-6) on his own level tried to find out her whereabouts and came to know that respondent No. 2 had enticed her away. He obtained mobile of number of respondent No. 2 from Pooja's brother Ajay Kumar and when contacted found the same to be switched off. He rt then took mobile number of Ajeet Kumar (Respondent No.1) father of respondent No. 2, from Ajay Kumar and contacted him, who in turn, told him that respondent No. 2 had committed a mistake and he assured him that the victim was safe and respondent No. 2 would drop her at house on 25.01.2020 and further requested him not to file any complaint. The victim did not reach her house on 25.01.2020 as promised, constraining the complainant (PW-6) to contact respondent No. 1 telephonically. He told him that he was a poor man and was not having bus fair and would drop the victim on 26.01.2020 at 12:00 p.m. However, he did not drop the victim as promised and thereafter the complainant (PW-6) kept on contacting respondent No. 1, who in turn deferred the matter on one pretext or the other, constraining the ::: Downloaded on - 06/09/2023 21:30:31 :::CIS 3 complainant to lodge a complaint with the police Ext.P1/PW6 and thereafter formal FIR Ext.P3/PW23.
3. During investigation, the Investigating Officer .
(PW3) obtained extract of Family Register of the family of the complainant Ext.P2/PW8 and CAFs and CDRS of mobile phones of the respondents and the complainant (PW6). On recovery of the victim PW5) and respondent No. 2 from Hamirpur, the of Investigating Officer (PW23) got the victim (PW5) and the respondent No. 2 medically examined and obtained their MLCs rt Ext. P2/PW19 and Ext.P2/PW20, respectively and preserved samples. The Investigating Officer (PW23) got the statement of the victim Ext. P2/PW18 recorded under Section 164 Cr.PC and obtained DVD Ex.P9/PW3 thereof. The Investigating Officer (PW23) seized Guest Entry Register Ex.PW4/A of Thakur Dharamshala, Hamirpur where respondent No. 2 had stayed with the victim (PW5) vide memo Ex.PW4/B. The Investigating Officer (PW23) prepared rough site plan Ex.P1/PW23 on the spot and also got photographs Ex.P1/PW11, Ex.P5/PW11 and Ex.P6/PW5 clicked there at. The Investigating Officer (PW23) recovered bed sheet Ex.MO2/PW7 from the house of Ram Chand (PW7) at Kanjan Manali, wherein respondent No. 2 and the victim (PW5) had stayed vide memo Ex.P1/PW7 and separately retained seal impressions Ex.P2/PW7. The Investigating Officer (PW23) prepared rough ::: Downloaded on - 06/09/2023 21:30:31 :::CIS 4 site plan Ex.P2/PW23 on the spot and also got photographs Ex.P3/PW7, Ex.P7/PW5 and Ex.P8/PW5 clicked there. The Investigating Officer (PW23) got the photographs developed .
and DVD prepared from Rajinder Soga (PW17) and obtained certificate under Section 65B of Indian Evidence Act Ex.P2/PW17. The Investigating Officer (PW23) got the case property analyzed from RFSL, Dharamshala and SFSL Junga of and obtained RFSL report Ex.P1/PW21 and SFSL/DNA report Ex.P1/PW24. The Investigating Officer (PW23) also recorded rt statements of the witnesses.
4. On completion of the investigation and on being satisfied of the commission of offence punishable under Sections 363, 366, 120B of IPC by respondent No. 1 and commission of offence punishable under section 363 and 366 of IPC and Sections 6 of the POCSO Act by respondent No. 2, challan thereunder against them was presented in the Court.
5. Respondent No. 1 was charged for the offience punishable under Sections 363 and 366 read with Section 34 of IPC and 120B of IPC and respondent No. 2 was charged for the offences punishable under Sections 363 and 366 read with Section 34, 120B of the IPC and Section 6 of the POCSO Act, to which they pleaded not guilty and claimed trial.
6. The prosecution in support of its case examined as many as twenty five witnesses.
::: Downloaded on - 06/09/2023 21:30:31 :::CIS 57. Thereafter, statements of the respondents were recorded under Section 313 Cr.P.C, wherein they denied incriminating evidence against them in toto and claimed .
innocence. However, no evidence in defence was led by the respondents.
8. After evaluating the evidence, the learned Court below acquitted the respondents and aggrieved thereby, the of State has filed the instant appeal.
9. At the outset, it needs to be observed that there is rt no contemporaneous official record placed by the prosecution to establish that the victim was minor on the date of the alleged incident. Evidently, only the copy of Parivar Register Ext.PW2/PW8 has been placed on record to prove the age, which by no means can be considered to be a birth certificate.
10. This issue has already been considered by this Court in its recent judgment rendered in Criminal Appeal No. 609 of 2017 titled Kuldeep Kumar and another vs. State of Himachal Pradesh and another, decided on 22.08.2023, wherein it was observed as under:
"21. Even otherwise, it is more than settled that family register issued by the Panchayat cannot be accepted as equivalent to matriculation certificate to prove the age of the prosecutrix. Reference in this regard can conveniently be made to one of the recent judgments of the Hon'ble Supreme Court in Vinod Kataria vs. State of U.P. AIR 2022 SC 4771."::: Downloaded on - 06/09/2023 21:30:31 :::CIS 6
11. It is vehemently contended by Shri I. N. Mehta, learned Senior Additional Advocate General that since the victim had barely completed her plus two, therefore, she .
should be presumed to be minor. Even this aspect of the case had duly been considered by us in the aforesaid judgment and negating the said contention, this Court observed as under:-
"15. We have considered the aforesaid observations of and find it extremely difficult to align much less uphold the aforesaid observations. No presumption unless backed by provisions of law could have been raised by the rt learned Special Judge. Even otherwise, the aforesaid observations are based on surmises and conjectures without there being any reasonable basis for the same."
12. Once there is nothing on record to establish that the victim was minor on the said date, then it would be noticed that it is the victim who out of her free will and volition has accompanied respondent No. 2 and would be noticed that neither the victim nor her parents has supported the case of the prosecution.
13. The mother the victim appeared as PW1 and stated that her daughter had gone to the house of her friend and she even failed to identify respondent No.2 in the Court, whereafter she was declared hostile by the prosecution. In her cross-examination by the prosecution, she although admitted that her brother-in-law/uncle of the victim (PW2) and the ::: Downloaded on - 06/09/2023 21:30:31 :::CIS 7 complainant (PW6) had telephonically enquired from respondent No. 1 about the victim. However, she feigned ignorance that they had told that respondent No. 2 had .
committed a mistake and he would drop the victim in her house. In her cross-examination by the defence, she admitted that the victim had not disclosed that she was enticed away or was wronged and had conceded that the complainant (PW6) of on suspicion had lodged complaint (Ext.P1/PW6).
14. The complainant when examined as PW6 stated rt that he had moved complaint (Ext.P1/PW6) However, he could not state who is author of the complaint and further stated that he had moved this complaint after the victim had already returned to her house. It is then, this witness was declared hostile and cross-examined by the prosecution. In cross-
examination, he denied the case of the prosecution in its entirety. In his cross-examination by defence, he admitted that he suspected respondent No. 2 only because the victim some time used to talk with him over his mobile phone. He also admitted that the victim had told that respondent No. 2 was only a friend and she was in the house of her friend Anju. He further admitted that he had stated to the police that he did not want to pursue the case, however, he was told that he may say whatever he likes in the Court. He also admitted to having telephonic calls with respondent No. 1. However, he ::: Downloaded on - 06/09/2023 21:30:31 :::CIS 8 denied that respondent No. 1 assured him of dropping the victim at his house. He admitted that the victim had not identified any place in his presence. He stated that he neither .
knew Ram Chand (PW7) nor Lalit Kumar (PW11) and nor they signed any document in his presence. He has stated to have signed the documents in the Police Station that too at the instance of the police without going through the contents of thereof.
15. The victim while appearing as PW5 has not rt supported the case of the prosecution and sated that on 23.01.2018, she had gone to the house of her friend Anju and did not return to her house for 2-3 days. She further stated that after her return to her house, the police had telephonically called her and the complainant (PW6) to the Police Station, whereupon, they went thereto. Having resiled from her statement under Section 161 Cr.P.C., she was declared hostile and cross-examined by the prosecution. In her cross-examination by the prosecution, the victim stated that she had told her mother (Ext.PW1) that she wanted to go to her friend's house, however, when she was scolded, she without telling anyone went to the house of her friend on her own. She further stated that her statement was recorded in the Court at Dharamshala, but volunteered to state that the police had given her statement in writing and had tutored her ::: Downloaded on - 06/09/2023 21:30:31 :::CIS 9 to make the statement in the Court. She denied having visited Thakur Dharamshala at Hamirpur and Karjan at Kullu alongwith respondent No. 2 and she feigned ignorance qua .
the recovery of Guest entry register Ext.PW4/A as well as bed sheet Ext.MO2/PW7. In her cross-examination by the defence, she admitted that her signature on documents were procured by the police at the Police Station, which neither were read of over to her nor were read by her.
16. It is manifest from the aforesaid statement that rt neither the mother of the victim nor the father of the victim nor the victim herself have supported the case of the prosecution.
17. Shri I. N. Mehta, learned Senior Additional Advocate General, is at great pains to argue that the statement of the victim under Section 164 Cr.P.C. is categoric and establishes the case of the prosecution beyond reasonable doubt that she on 23.01.2023 had been kidnapped by the respondents from her lawful custody of parents and thereby committed an offence punishable under Section 363 IPC read with Section 34 of IPC and since the victim was minor at the time, the respondents in furtherance of the common intention to compel her to marry her with respondent Ajit Kumar had committed offence under Section 363 of IPC and after kidnapping the minor from the lawful guardianship of her ::: Downloaded on - 06/09/2023 21:30:31 :::CIS 10 parents had for the purpose of sexual exploitation committed offence punishable under Section 120 B of IPC and lastly, the respondent No. 2 had committed penetrative sexual assault .
with the victim more than once despite having below 18 years of age and thereby committed the offence punishable under Section 6 of the POCSO Act.
18. We however, find no merit in all these contentions, of as there is nothing on record to prove that the victim as on the date of the alleged incident was a minor. That apart, there is rt no evidence whatsoever to establish that the victim had been kidnapped from the lawful custody of her parents so as to attract the provisions of Section 363 and 366 of IPC and not being a minor, the provisions of Section 366 of IPC was otherwise not attracted.
19. Even if, it is assumed for a moment that the victim was minor, even then this Court finds the prosecution story regarding the victim being enticed away or forced to go with the respondent not at all palatable. It is simply not possible that the victim would continue to be with respondent No. 2, travelling by public transport and also living at various places and would not at the given opportunity complain to anyone, if there was any compulsion or force asserted by the respondents or any one of them.
::: Downloaded on - 06/09/2023 21:30:31 :::CIS 1120. 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 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 of 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 rt 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 ::: Downloaded on - 06/09/2023 21:30:31 :::CIS 12 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.
of 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 rt 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 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 ::: Downloaded on - 06/09/2023 21:30:31 :::CIS 13 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 of 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 rt 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 ::: Downloaded on - 06/09/2023 21:30:31 :::CIS 14 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 of 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 rt 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 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 ::: Downloaded on - 06/09/2023 21:30:31 :::CIS 15 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 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 rt 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)
21. 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 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 ::: Downloaded on - 06/09/2023 21:30:31 :::CIS 16 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 of idea of charge, protection, maintenance and control : further the guardian's charge and control appears to be. compatible with the rt 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 which 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 ::: Downloaded on - 06/09/2023 21:30:31 :::CIS 17 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 of 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 rt many forms, difficult to visualise exhaustively; some of them may be quite subtle, and describe 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 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 ::: Downloaded on - 06/09/2023 21:30:31 :::CIS 18 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 of 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 rt 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 ::: Downloaded on - 06/09/2023 21:30:31 :::CIS 19 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."
(P. 2320 and 2321)
22. Thereafter, in Moniram Hazarika vs. State of Assam AIR 2004 SC 2472, the Hon'ble Supreme Court held of as under:
"Keeping in mind the above requirement of law, we will examine the facts of this case to find out whether two rt 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 ::: Downloaded on - 06/09/2023 21:30:31 :::CIS 20 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 of 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 rt had committed the offence punishable under Section 366 of IPC."
23. 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 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)
24. As regards the statement of the victim recorded under Section 164 Cr.P.C, it is more than settled that ::: Downloaded on - 06/09/2023 21:30:31 :::CIS 21 statement recorded under Section 164 Cr.P.C. can never be used as substantive evidence of truth of the facts but may be used for contradictions and corroboration of a witness who .
made it. The statement made under Section 164 Cr.P.C. can be used to cross-examine the maker of it and the result may be to show that the evidence of the witness is false. It can be used to impeach the credibility of the prosecution witness. In of the present case it was for the defence to invite the victim's attention as to what she stated in the first information report rt and statement made under Section 164 Cr.P.C. for the purposes of bringing out the contradictions, if any, in her evidence. In the absence of the same the court cannot read statement under Section 164 Cr.P.C. and compare the same with her evidence.
25. It shall be appropriate to refer to the following judicial precedents on this point.
26. In State of Uttar Pradesh vs. Singhara, AIR 1964 SC 358, the Hon'ble Supreme Court held that:
"[5]. A confession duly recorded under Section 164 would no doubt be a public document under S. 74 of the Evidence Act which would prove itself under S. 80 of that Act. Mr. Dixit who recorded the confession in this case was a second class magistrate and the prosecution was unable to prove that he had been specially empowered by the State Government to record a statement or confession under S. 164 of the Code. The trial, therefore, proceeded on the basis that ::: Downloaded on - 06/09/2023 21:30:31 :::CIS 22 he had not been so empowered. That being so, it was rightly held that the confession had not been recorded under S. 164 and the record could not be put in evidence under Ss. 74 and 80 of the Evidence Act to .
prove them. The prosecution, thereupon called Mr. Dixit to prove these confessions, the record being used only to refresh his memory under S. 159 of the Evidence Act. It is the admissibility of this oral evidence that is in question.
[6]. The Judicial Committee in Nazir Ahmed v. King of Emperor, 63 Ind App 372 : (AIR 1936 PC 253 (2)) held that when a magistrate of the first class records a confession under S. 164 but does not follow the rt procedure laid down in that section, oral evidence of the confession is inadmissible. Nazir Ahmed's case, 63 Ind App 372 : (AIR 1936 PC 253 (2)) naturally figured largely in the arguments presented to this Court and the Courts below. The learned trial Judge following Asharfi v. The State, ILR (1960) 2 All 488 : (AIR 1961 All
153) to which we will have to refer later, held that Nazir Ahmed's case, 63 Ind App 372 : (AIR 1936 PC 253 (2)) had no application where, as in the present case, a magistrate not authorised to do so purports to record a confession under S. 164, and on that basis admitted the oral evidence. The learned Judges of the High Court observed that the present case was governed by Nazir Ahmed case, 63 Ind App 372 : (AIR 1936 PC 253 (2)) and that Asharfi's case, ILR (1960) 2 All 488 : (AIR 1961 All 153) had no application because it dealt "with the question of identification parades held by Magistrates.
There was no occasion to discuss the question of confession recorded before Magistrates." In this view of the matter the learned. Judges of the High Court held the oral evidence inadmissible and acquitted the respondents. It would help to clear the ground to state ::: Downloaded on - 06/09/2023 21:30:31 :::CIS 23 that it had not been argued in Nazir Ahmed's case, 63 Ind App 372 : (AIR 1936 PC 253 (2)) that S. 533 of the Code had any operation in making any oral evidence admissible and the position is the same in the present .
case. It would not, therefore, be necessary for us to consider whether that section had any effect in this case in making any evidence admissible.
[7]. In Nazir Ahmed's case, 63 Ind App 372 : (AIR 1936 PC 253 (2)) the Judicial Committee observed that the principle applied in Taylor v. Taylor, (1876) 1 Ch. D 426 of to a Court, namely, that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of rt performance are necessarily forbidden, applied to judicial officers making a record under S. 164 and, therefore, held that the magistrate could not give oral evidence of the confession made to him which he had purported to record under S. 164 of the Code. It was said that otherwise all the precautions and safeguards laid down in Ss. 164 and 364, both of which had to be read together, would become of such trifling value as to be almost idle and that "it would be an unnatural construction to hold that any other procedure was permitted than that which is laid down with such minute particularity in the sections themselves." [8]. The rule adopted in Taylor v. Taylor (1876) 1 Ch D 426 is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted. A magistrate, therefore, cannot in the course of ::: Downloaded on - 06/09/2023 21:30:31 :::CIS 24 investigation record a confession except in the manner laid down in S. 164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid .
down. If proof of the confession by other means was permissible, the whole provision of S.164 including the safeguards contained in it for the protection of accused persons would be rendered nugatory. The section, therefore, by conferring on magistrate the power to record statements or confessions, by necessary of implication, prohibited a magistrate from giving oral evidence of the statements or confessions made to him.
rt [9]. Mr. Agarwala does not question the validity of the principle but says the Nazir Ahmed's case, 63 Ind App 372 : (AIR 1936 PC 253 (2) was wrongly decided as the principle was not applicable to its facts. He put his challenge to the correctness of the decision on two grounds, the first of which was that the principle applied in (1876) 1 Ch D 426 had no application where the statutory provision conferring the power was not mandatory and that the provisions of S. 164 were not mandatory as would appear from the terms of S. 533.
[10]. This contention seems to us to be without foundation. Quite clearly, the power conferred by S. 164 to record a statement or confession is not one which must be exercised. The Judicial Committee expressly said so in Nazir Ahmed's case, 63 Ind App 372 : (AIR 1936 PC 253 (2)) and we did not understand Mr. Aggarwala to question this part of the judgment. What he meant was that S. 533 of the Code showed that in recording a statement or confession under S. 164, it was not obligatory for the magistrate to follow the procedure mentioned in it. Section 533 says that if the court before which a statement or confession of an ::: Downloaded on - 06/09/2023 21:30:31 :::CIS 25 accused person purporting to be recorded under Section 164 or Section 364 is tendered in evidence "finds that any of the provisions of either of such sections have not been complied with by the .
magistrate recording the statement, it shall take evidence that such person duly made the statement recorded." Now a statement would not have been "duly made" unless the procedure for making it laid down in S. 164 had been followed. What S. 533 therefore, does is to permit oral evidence to be given to prove that the of procedure laid down in S. 164 had in fact been followed when the Court finds that the record produced before it does not show that that was so. If the oral evidence rt establishes that the procedure had been followed, then only can the record be admitted. Therefore, far from showing that the procedure laid down in S. 164 is not intended to be obligatory, S. 533 really emphasises that that procedure has to be followed. The section only permits oral evidence to prove that the procedure had actually been followed in certain cases where the record which ought to show that does not in the face of it do so.
[11]. The second ground on which Mr. Aggarwala challenged the decision in Nazir Ahmed's case, 63 Ind App 372 : (AIR 1936 PC 253 (2)) was that the object of S. 164 of the Code is to permit a record being kept so as to take advantage of Ss. 74 and 80 of the Evidence Act and avoid the inconvenience of having to call the magistrate to whom the statement or confession had been made, to prove it. The contention apparently is that the section was only intended to confer a benefit on the prosecution and, therefore, the sole effect of the disregard of its provisions would be to deprive the prosecution of that benefit, for it cannot then rely on Ss. 74 and 80 of the Evidence Act and has to prove the ::: Downloaded on - 06/09/2023 21:30:31 :::CIS 26 confession by other evidence including the oral evidence of the Magistrate recording it. It was, therefore, said that the principle adopted in Nazir Ahmed's case, 63 Ind App 372: (AIR 1936 PC 253 (2)) .
had no application in interpreting S. 164.
[12]. A similar argument was advanced in Nazir Ahmed's case, 63 Ind App 372 : (AIR 1936 PC 253 (2)) and rejected by the Judicial Committee. We respectfully agree with that view. The section gives power to make a record of the confession made by an accused which of may be used in evidence against him and at the same time it provides certain safeguards for his protection by laying down the procedure subject to which alone the rt record may be made and used in evidence. The record, if duly made may no doubt be admitted in evidence without further proof but if it had not been so made and other evidence was admissible to prove that the statements recorded had been made, then the creation of the safeguards would have been futile. The safeguards were obviously not created for nothing and it could not have been intended that the safeguards might at the will of the prosecution be by-passed. That is what would happen if oral evidence was admissible to prove a confession purported to have been recorded under S. 164. Therefore it seems to us that the object of S. 164 was not to give the prosecution the advantage of Ss. 74 and 80 of the Evidence Act but to provide for evidence being made available to the prosecution subject to due protection of the interest of the accused. We have to point out that the correctness of the decision of Nazir Ahmed's case, 63 Ind App 372 :
(AIR 1936 PC 253 (2)) has been accepted by this Court in at least two cases, namely, Shiv Bahadur Singh v. State of Vindhya Pradesh, 1954 SCR 1098 : (AIR 1954 SC 322) and Deep Chand v. State of Rajasthan, 1962-1 ::: Downloaded on - 06/09/2023 21:30:31 :::CIS 27 SCR 662 : (AIR 1961 SC 1527). We have found no reason to take a different view."
27. In State of Rajasthan vs. Kartar Singh, (1970) .
2 SCC 61, Para 11, a three-Judge Bench of the Hon'ble Supreme Court held that the statements of witnesses recorded under Section 164 Cr.P.C were corroborative of what had been stated earlier in the Committal Court.
of
28. In Ram Kishan Singh vs. Harmit Kaur, AIR 1972 SC 468, the Hon'ble Supreme Court held that a statement under section 164 of the Code of Criminal rt Procedure is not substantive evidence. It can be used to corroborate the statement of a witness. It can be used to contradict a witness.
29. In Ramprasad vs. State of Maharashtra, (1999) 5 SCC 30, the Hon'ble Supreme Court held that a Magistrate can record the statement of a person as provided in Section 164 of the Code and such statement would either be elevated to the status of Section 32 if the maker of the statement subsequently dies or it would remain within the realm of what it was originally. A statement recorded by a Magistrate under Section 164 becomes unable to corroborate the witness as provided in section 157 of the Evidence Act or to contradict him as provided in Section 155 thereof.
30. In Chinnammal vs. State of Tamil Nadu, 1997 (1) SCC 145, the Hon'ble Supreme Court held that:::: Downloaded on - 06/09/2023 21:30:31 :::CIS 28
"On perusal of the impugned judgment we find that the principal reason which weighed with the High Court in setting aside the convictions of the accused- respondents is that the statement (Ext. D1) made by .
the appellant (who also claimed to have been assaulted by the accused persons during the incident) before a Magistrate which was initially recorded as her dying declaration but was subsequently treated as a statement recorded under Section 164 Cr. P.C. in view of her survival and the report (Ext. PI) that she lodged of with the police (which was treated as the First Information Report) contradicted each other materially. In our considered view, this approach of the High Court rt in dealing with the evidence was patently wrong. It is trite that a case has to be decided on the basis of the evidence adduced by the witnesses during the trial and any previous statements made by any of such witnesses can be used by the defence for the purpose of only contradicting and discrediting that particular witness in the manner laid down in Section 145 of the Evidence Act. Under no circumstances can such previous statements he treated as substantive evidence as has been treated by the High Court in the instant case.
31. In George vs. State of Kerala, (1998) 4 SCC 605, the Hon'ble Supreme Court held that:
"We may now turn to the evidence of PW-50, detailed earlier. From the judgment of the trial Court we notice that the substantial parts of its comments, (quoted earlier) are based on his statement recorded under Section 164 Criminal Procedure Code and not his evidence in Court. The said statement was treated as substantive evidence; as would be evident from the ::: Downloaded on - 06/09/2023 21:30:31 :::CIS 29 following, amongst other observations made by the learned trial Court :-
"If Ext. P.42 (the statement recorded under Section 164 Criminal Procedure Code) is found to be a genuine .
statement it can be used as an important piece of evidence to connect the accused with the crime."
In making the above and similar comments the trial Court again ignored a fundamental rule of criminal jurisprudence that a statement of a witness recorded under Section 164 Criminal Procedure Code cannot be of used as substantive evidence and can be used only for the purpose of contradicting or corroborating him".
32. In Utpal Das vs. State of West Bengal, (2010) rt 6 SCC 493, the Hon'ble Supreme Court held that:
"15. It is needless to restate that the first information report does not constitute substantive evidence. It can, however, only be used as a previous statement for the purposes of either corroborating its maker or for contradicting him and in such a case the previous statement cannot be used unless the attention of witness has first been drawn to those parts by which it is proposed to contradict the witness. In this case the attention of the witness (PW-14) has not been drawn to those parts of the F.I.R. which according to the appellants are not in conformity with her evidence.
16. Likewise statement recorded under Section 164 Criminal Procedure Code can never be used as substantive evidence of truth of the facts but may be used for contradictions and corroboration of a witness who made it. The statement made under Section 164 Criminal Procedure Code can be used to cross examine the maker of it and the result may be to show that the evidence of the witness is false. It can be used to impeach the credibility of the prosecution witness. In ::: Downloaded on - 06/09/2023 21:30:31 :::CIS 30 the present case it was for the defence to invite the victim's attention as to what she stated in the first information report and statement made under Section 164 Criminal Procedure Code for the purposes of .
bringing out the contradictions, if any, in her evidence".
33. In R. Shaji vs. State of Kerala (2013) 14 SCC 266, the Hon'ble Supreme Court said that a proposition to the of effect that if statement of a witness is recorded under Section 164 Cr.P.C., his evidence in Court should be discarded, is not at all warranted. As the defence had no opportunity to cross-
rt examine the witness whose statement was recorded under Section 164 Cr.P.C. or under Section 161 Cr.P.C., such statements cannot be treated as substantive evidence.
34. It is then vehemently contended by Shri I. N. Mehta, learned Senior Additional Advocate General that the medical evidence fully corroborates the prosecution story, thereby, attracting the provisions of Section 6 of the POCSO Act.
35 However, we find no merit in such contention, firstly, the victim has not been proved to be minor as on the date of the alleged incident and much reliance otherewise cannot be placed upon the report of the RFSL.
36. The prosecution has relied upon RFSL report Ex.P1/PW21 and SFSL/DNA report Ex.P1/PW24 to prove the alleged involvement of respondent No. 2 in the case in hand.
::: Downloaded on - 06/09/2023 21:30:31 :::CIS 31As per RFSL report Ex.P1/PW21, human semen was detected in underwear of the respondent No. 2 and vaginal swabs, vaginal slides and payjama of the victim (PW5). As SFSL/DNA .
report, Ex.P1/PW24 two autosomal STR DNA profiles pertaining to a male individual and a female individual were obtained from payjama of the victim (PW5) out of which DNA profile pertaining to a female individual matched completely with the of autosomal STR DNA profile obtained from vaginal swab of the victim (PW5) and DNA profile pertaining to a male individual rt matched completely with autosomal STR DNA profile obtained from blood sample of the respondent No. 2 on FTA card and T-
STR DNA profile obtained from vaginal swab of the victim (PW5) matched completely with Y-STR DNA profile obtained from blood sample of respondent No. 2 on FTA Card. However, the fact remains that in order to prove complicity of the respondent No.2 on the basis of both these reports Ex.P1/PW21 and Ex.P1/PW24, the prosecution was under
obligation to establish complete link/chain right from alleged taking of clothes and body samples of the victim (PW5) and the accused uptill their examination in the laboratories.
However, in the case in hand, this link/chain is not complete as:-
1 Dr. Anupama (PW19) who allegedly statedly preserved slip and lower of he victim (PW5) EX.MO2/PW19 and Ex.MO3/PW19 respectively at the ::: Downloaded on - 06/09/2023 21:30:31 :::CIS 32 time of her medical examination, in her cross-
examination has conceded that the victim (PW5) had told to have changed the clothes which she was wearing at the time of the alleged sexual assault and .
to have not brought them to the hospital, 2 The prosecution has not claimed nor the Investigating Officer (PW23) has stated that he ever seized clothes of the victim (PW5) including her payjami which she was wearing at the time of the alleged incident, of 3 HHC Teja Singh (PW13) who as per the case of the prosecution and evidence of the MHC Yashpal (PW22) had deposited the case property alongwith RFSL report rt Ex.P1/PW21 with the MHC has not stated anything of the sort, 4 MHC Yashpal (PW22) has stated to have sent the case property to SFSL Junga vide RC No. 44/20 dated 17.03.2020 whereas unlike him Teja Singh (PW13) has stated that MHC Yashpal (PW22) had handed over POCS the case property to him vide RC No. 44/20 dated 24.02.2020.
37. Therefore, there is no evidence as to who brought the case property from SFSL Junga and with whom the same was deposited.
38. Even otherwise RFSL report Ext.PW1/21 and SFSL/DNA report Ext. P1/PW24 are only advisotry in nature and not conclusive proof of the guilt of the respondents. It would not be sufficient to prove that the respondents committed alleged offence, especially, when it is observed hereinabove that the victim (PW6) has totally exonerated respondent No. 2 and has not stated anything which may ::: Downloaded on - 06/09/2023 21:30:31 :::CIS 33 inculpate, as has been rightly held by the learned Special Court below.
39. These observations are in tune with the recent .
judgment of the Hon'ble Supreme Court in Prakash Nishan @ Kewat Ninak Nishad vs. State of Maharashtra (2023) 9 Scale 1, wherein it was observed as under:-
64. Even otherwise, on the value of DNA evidence, we of may refer to an observation made by this Court, in Pattu Rajan v. State of T.N.8, as under;
"52. Like all other opinion evidence, the probative rt value accorded to DNA evidence also varies from case to case, depending on the facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. This is all the more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible. Thus, it cannot be said that the absence of DNA evidence would lead to an adverse inference against a party, especially in the presence of other cogent and reliable evidence on record in favour of such party." (Emphasis supplied)
65. Referring to the above case, a three-Judge bench in Manoj v. State of M.P.9, through S. Ravindra Bhat J., observed;
"158. This Court, therefore, has relied on DNA reports, in the past, where the guilt of an accused ::: Downloaded on - 06/09/2023 21:30:31 :::CIS 34 was sought to be established. Notably, the reliance was to corroborate. This Court highlighted the need to ensure quality in the testing and eliminate the possibility of contamination of .
evidence; it also held that being an opinion, the probative value of such evidence has to vary from case to case."
66. In the present case, even though, the DNA evidence by way of a report was present, its reliability of is not infallible, especially not so in light of the fact that the uncompromised nature of such 8 (2019) 4 SCC 771 9 (2023) 2 SCC 353 evidence cannot be established; and other that cogent evidence as can be seen from rt our discussion above, is absent almost in its entirety.
40. In view of the aforesaid discussion, we find that the view taken by the special Judge is plausible, so there is no reason to grant leave to appeal and accordingly the same is rejected.
(Tarlok Singh Chauhan) Judge (Ranjan Sharma) Judge 4th September, 2023.
(Sanjeev) ::: Downloaded on - 06/09/2023 21:30:31 :::CIS