Himachal Pradesh High Court
State Of Himachal Pradesh vs Sanjeev Kumar & Others on 22 April, 2016
Author: Sandeep Sharma
Bench: Sanjay Karol, Sandeep Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
.
Cr.Appeal No.240 of 2008
Judgment Reserved on: 12.04.2016
Date of decision: 22.04.2016
State of Himachal Pradesh ....Appellant
of
Versus
Sanjeev Kumar & Others ....Respondents
Coram
rt
The Hon'ble Mr.Justice Sanjay Karol, J.
The Hon'ble Mr.Justice Sandeep Sharma, J.
Whether approved for reporting ?1 Yes.
For the Appellant: Mr.V.S. Chauhan, Additional Advocate General with Mr.J.S. Guleria, Assistant Advocate General.
For the Respondents: Mr.I.S. Chandel, Advopcate and Mr.Anil Chauhan, Advocate, Legal Aid Counsel.
Sandeep Sharma,J.:
By way of present appeal, appellant-State has assailed the impugned judgment of acquittal dated 01.10.2007 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes.::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 2
passed by learned Sessions Judge, District Shimla in Sessions Trial No. 19-8/7 of 2007, whereby the respondents-accused, .
who were charged with and tried for the offences punishable under Sections 323, 342, 343 and 366-A read with Section 34 of the Indian Penal Code (hereinafter referred to as `IPC'), have been acquitted.
2. Brief facts of the case necessary for the adjudication of are that PW-2 Shri Bhup Chand, father of the prosecutrix lodged a written complaint (Ext.PW-2/A) with the Police Station rt Theog, District Shimla specifically alleging therein that on February 23, 2007 at about 5.45 PM, her daughter intended to visit to the house of her maternal uncle PW-7 Shri Ravinder Chauhan, accordingly, he allowed his daughter to go to the house of her maternal uncle with the direction to come back home in the morning. He further alleged that thereafter when he went to his orchard, he saw accused Sanjeev Kumar with his daughter and found them sitting together in the orchard of accused-respondent Sanjeev Kumar. He further alleged that he asked his daughter as to why she was sitting there. PW-2 Shri Bhup Chand further averred in his complaint that accused Sanjeev Kumar gave a 'danda' blow on his head and thereafter he fell unconscious. He further averred that after some time ::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 3 when he regained consciousness, he found that both of them i.e. accused as well as his daughter have disappeared from the .
spot. He also averred in the complaint that he has doubt that his minor daughter, who is just 14 years old, has been kidnapped by Shri Sanjeev accused-respondent No. 1. Though aforesaid incident had taken place on February 23, 2007 at about 5:45 PM but he lodged complaint with the Police Station of on February 24, 2007 because he could not go to the police station due to darkness.
3. rt On the basis of aforesaid averments made in the written complaint, an FIR Ext.PW-9/A was registered by the Police Station concerned. Subsequent to lodging of the FIR. PW-
9 Trilochan Dutt Sharma, Station House Officer, Police Station, Theog, sent an application Ext.PW-7/A to the Civil Hospital, Theog, for the medical examination of PW-2 Shri Bhup Chand and thereafter doctor issued Medico Legal Certificate Ext.PW-
2/B in respect of aforesaid Shri Bhup Chand. Thereafter, PW-9 SHO Shri Trilochan Datt Sharma inspected the spot of incident in the presence of PW-2 Shri Bhup Chand and two other witnesses, and Nisandehi of spot was taken vide Memo Ext. PW-
2/C. Shri Bhup Chand also proved 'danda' Ext.P-1 at that time.
Accordingly, Investigating Officer prepared the site plan Ext.PW-
::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 49/B. Thereafter, during the course of investigation, prosecutrix was found from the house of PW-6 Shri Ravinder Chauhan, .
maternal uncle of the prosecutrix, in village Gumma and her custody was handed over to her father vide Memo Ext.PW-1/A. Thereafter, prosecutrix was sent for medical examination which was conducted vide MLC PW-1/D. After the recovery of prosecutrix, Police also associated her with the investigation of and the prosecutrix gave Nisandehi of the house of Shri Chet Ram where she was allegedly kept from February 26, 2007 to March 02, rt 2007. On the Nishandehi of prosecutrix, Investigating Officer prepared the site plan Ext.PW-9/C of the house of Chet Ram. Investigating Officer also prepared the site plan Ext.PW-9/D of the deserted house of one Udi Ram, where the prosecutrix was kept by the accused Sanjeev Kumar on the night of February 23, 2007. During investigation, Investigating Officer concerned also collected the date of Birth Certificate Ext.PW-5/B of the prosecutrix and recorded the statement of witnesses.
4. On completion of the investigation, the Investigating Officer concerned prepared the challan under the relevant provisions of IPC against the accused persons and filed the same in the competent Court of law.
::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 55. Learned Judicial Magistrate, Ist Class, Theog, after securing the presence of the accused persons, supplied the .
copies of challan to them and thereafter committed the case to the Court of learned Sessions Judge Shimla, being exclusively triable by the Court of learned Sessions Judge vide order dated July 17, 2007.
6. Thereafter, learned Sessions Judge Shimla, framed of the charges against the accused persons under Sections 323, 363, 342 and 366-A read with Section 34 IPC on August 06, rt 2007. Prosecution with a view to prove its case examined as many as nine witnesses i.e. PW-1 prosecutrix, PW-2 Bhup Chand father of the prosecutrix, PW-3 and Rakesh Verma and PW-4 Inder Singh i.e. in whose presence 'danda' was recovered from the spot, PW-5 Shri Ramesh Sharma, Panchayat Sahayak, Gram Panchayat Klind, who had brought Pariwar Register of Gram Panchayat, Kalind to certify the date of birth of the prosecutrix, PW-6 Shri Ravinder Chauhan, maternal uncle of the prosecutrix, PW-7 Dr.Kuldeep Kanwar, who had medically examined PW-2 after the incident, PW-8 Dr. Dalip Tegta, who had examined the prosecutirx after her recovery and PW-9 SHO Shri Trilochan Dutt Sharma, Investigating Officer.
::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 67. The learned Sessions Judge after examining the aforesaid prosecution witnesses as well as perusing the .
statements of accused persons recorded by him under Section 313 of the Code of Criminal Procedure (hereinafter referred to as `Cr.P.C.') acquitted all the accused of the charges framed against them.
8. Feeling aggrieved, appellant-State has come up with of the instant appeal specifically stating therein that the judgment passed by the learned trial Court deserves to be quashed and rt set-aside being wrong on facts as well as on law. Appellant-
State, while appearing before this Court, strenuously argued that trial Court below has failed to evaluate as well as appreciate the prosecution evidence in its right perspective.
9. We have heard learned counsel appearing for the parties and have gone through the record of the case carefully.
10. Mr. J.S. Guleria, learned Assistant Advocate General appearing for the appellant-State, vehemently argued that reasoning given by the learned trial Court while acquitting all the accused is not tenable at all in the facts and evidence collected by the prosecution during the investigation. He further argued that the reasoning of the trial Court is manifestly ::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 7 unreasonable and unsustainable and as such judgment passed by the learned trial Court deserves to be quashed and set-aside.
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11. Albeit, this Court during the hearing of the appeal in question has minutely gone through the statements of each and every prosecution witnesses but it would be apt in the interest of justice to critically examine the statements given by the relevant prosecution witnesses during trial for the fair and of just decision.
12. Perusal of the statement of prosecutrix PW-2 rt suggests that when she was going to the house of her maternal uncle, accused Sanjeev Kumar met her on the way. Though, she has said in her statement that accused Sanjeev Kumar threatened her that in case she does not accompany him he will not permit her to go. But in her statement, she has nowhere said that accused Sanjeev Kumar forcibly took her to his orchard. Prosecutrix in her statement has further said that in the meantime her father came there and scolded her as to why she was sitting with the accused in the orchard. But definitely, there is nothing in the statement which can suggest that at that point of time she complained to her father that she is being threatened by the accused. Though, prosecutrix, while appearing as PW-1, stated that accused Sanjeev Kumar gave a ::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 8 danda blow to her father and due to which her father went unconscious but there is nothing in the statement from which it .
can be inferred that even at that time she made an attempt to run away and make a hue and cry. To the contrary, she went along with accused-Sanjeev Kumar to an abandoned house, where she was allegedly kept for the night.
13. Prosecutrix, PW-1, in her statement also stated that of accused Sanjeev Kumar kept her in an abandoned house for the night and he himself went away. Thereafter, accused Sanjeev rt Kumar came next morning and took her to his farm house where she was allegedly kept till March 02, 2007. She has stated in her statement that the aunt of accused Sanjeev Kumar, namely, Smt.Tara Devi and sister Ranjana had been coming to her for serving meals. She has stated in her statement that on March 02, 2007, in the evening time when accused Tara had gone on the roof of the house and had left the door open, she succeeded in escaping from there and thereafter, she went to the house of her aunt at Gumma and stayed there for one night. In her cross-examination she has stated that orchard of the accused Sanjeev Kumar is just about 10-15 yards away from the place where he met her. She has also stated in her statement that after the quarrel, which took place ::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 9 between her father and Sanjeev Kumar, she stayed back in the orchard for some time and thereafter, was taken away by .
accused Sanjeev Kumar to the abandoned house. She herself stated that abandoned house was at a distance of 2/3 minutes' walk from the orchard. She further stated that door of the house was opened when she entered the house and while lodging her in the deserted house accused remained outside and of never entered the same. She also stated that there is a house of her maternal uncle adjacent to the deserted house which has rt been shown as Ext.DB. She has categorically stated in her statement that name of her maternal uncle is Satish Verma and his house is only at 25-30 yards away from the deserted house, where four family members are residing in the house of her maternal uncle. She has stated in her statement that she used to go for urination and defecation twice, first in the morning and then at night hours, and during that period, accused Tara and Ranjana used to be in another house with Chet Ram. She has specifically stated in her statement that the house where she was taken is about fifteen minutes' walk from the deserted house. She further stated that accused Sanjeev stayed at the farm house only for about 2/3 minutes. Thereafter, she only saw him during trial. She also stated that when she used to go ::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 10 out for urination and defecation in the farm house, she used to put on shoes.
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14. A careful reading of statement of prosecutrix nowhere suggests that she was forcibly taken away by the accused Sanjiv Kumar. To the contrary, if the statement is read in its entirety, it can be safely inferred that accused Sanjiv Kumar and the prosecutrix, were known to each other and had of meeting earlier also because if the statement of PW-2 Shri Bhup Singh is seen, he has categorically stated that at the time of rt incident he saw prosecutrix as well as accused sitting in the orchard. He has nowhere stated in his statement that he saw accused Sanjeev Kumar taking his daughter, rather he as well as his daughter both have stated that PW-2 Bhup Singh scolded her daughter that why she is in the company of accused Sanjeev Kumar. Apart from this, prosecutrix has stated that she was taken to the abandoned house which was at a distance of 2/3 minutes' walk from the orchard and the door of the house was opened when she entered the house. She has further stated that house of her maternal uncle namely Satish Sharma was just adjacent to the deserted house Ext.PB and which was at a distance of 25-30 yards away from the deserted house. She has nowhere stated that she made any effort to call for a help from ::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 11 the house of her maternal uncle whose house was situated at a distance of 25-30 yards from the deserted house. She has .
further stated that accused Sanjeev Kumar after lodging/retaining her in the abandoned house went away and came in the next morning.
15. PW-1 Prosecutrix in her statement has also admitted that when she was kept in the farm house by the of accused Sanjeev Kumar, she was served with foot etc. by the co-
accused persons and even there is no whisper of any force used rt by the co-accused. There is no whisper in the statement to the effect that accused as well as other co-accused ever used any force to keep the prosecutrix in the farm house. Facts and circumstances narrated in the statement of the prosecutrix clearly suggest that had she been kept in wrongful confinement, she had ample opportunities/chances to escape from the alleged illegal custody of the accused. To the contrary, statement given by the prosecutrix suggests that she knew accused Sanjeev Kumar. Statement given by the prosecutrix during trial nowhere suggests that she was forcibly taken away by the accused Sanjeev Kumar and she was forcibly kept in wrongful confinement by the other accused. It also remained unexplained in the statement of prosecutrix PW-1 that once ::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 12 when she escaped from the farm house why she did she go to Gumma at the house of her maternal uncle instead of her .
father's house which was nearer. It is also admitted fact that between the place of confinement of the prosecutrix and Gumma there were number of villages but the prosecutrix did not inform any resident of those villages with regard to her alleged kidnapping.
of
16. If we analyze the statement of PW-1 juxtaposing the same with statement of PW-4, it can be safely conducted the rt testimony of PW-1 is not trustworthy and cannot be given credence. PW-4 Inder Singh in his statement stated that he had seen the deserted house near the orchard of the accused and the wooden plank was used to be placed on the door of that deserted house. It is already admitted fact that deserted house was without any door, shutters and windows. It has been further stated by PW-4 that there was open space to make the entry to the deserted house. In view of the statement given by the PW-4 coupled with the fact that house of maternal uncle namely Satish Verma was just 25-30 yards away from the deserted house, it remained unexplained that what prevented the prosecutrix from raising alarm as well as escaping from the deserted house. The prosecutrix has nowhere stated in her ::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 13 statement that she was given any beatings by the accused before her alleged confinement, rather she has been candid in .
stating that accused after lodging her in deserted house never came back and she saw him only during trial. Prosecutrix also stated in her cross-examination that while going for urination and defecation, that too twice in a day, she was not guarded or being escorted by anyone. PW-8 Dr.Dalip Tegta, who medically of examined the prosecutrix, has categorically stated that there was no external injuries on the person of the prosecutrix vide rt MLC Ex.PW-1/D.
17. In view of above, statement given by the prosecutrix has been rightly not relied upon by the learned trial Court below being un-trustworthy. Learned trial Court had rightly concluded that if the prosecutrix had been wrongly confined in the farm house she could have easily returned to her father's house at the very first available opportunity because there was no one to guard her.
18. Now, if we peruse the statement of PW-2 Shri Bhup Chand, the father of the prosecutrix, it clearly emerges that he has not narrated the actual facts because in the statement before the learned Court below he stated that during the intervening night of February 23rd & 24th, 2007 he could not go ::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 14 to police station due to darkness. Whereas, in his cross-
examination he stated that he remained without sleep .
throughout night because his daughter, prosecutrix herein, had not returned to the house. If the statement of PW-2 is seen, he has stated that her daughter, prosecutrix herein, intended to go to the house of her maternal uncle which he allowed with a direction that she must come back in the morning. But to the of contrary PW-6 Ravinder Chauhan, maternal uncle of the prosecutrix, in his statement stated that PW-2 Bhup Chand rt came to him at Gumma in the evening of February 23, 2007, where he got PW-2 Bhup Chand medically treated at Gumma.
Whereas PW-2 Bhup Chand has stated that he could not lodge complaint with the police station on February 23, 2007 due to darkness. It is not understood that how he could go to Gumma in the evening of February 23, 2007 which was at a considerable distance from his house. PW-2 in his statement referred to the medical examination got conducted by Investigating Officer, Police Station, Theog vide Ex.PW-7/A but there is not a whisper with regard to his medical treatment allegedly given to him at Gumma in the presence of PW-6 Shri Ravinder Chauhan, who has categorically stated in his statement that PW-2 Bhup Chand made a telephonic call to him ::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 15 on 23rd February, 2007 that accused Sanjeev Kumar had picked up a quarrel with him and had kidnapped the .
prosecutrix, immediately thereafter he went to the house of Bhoop Chand and brought him to the private doctor at Gumma, but there is no record which has been placed on record suggesting that immediately after alleged quarrel some medical treatment was given to PW-2 at Gumma. Rather, both the of witnesses i.e. PW-2 and PW-6 have contradicted to each other leaving scope to infer the statements made by them are not rt correct. It remained also unexplained in the statements of PW-2 and PW-6 that once PW-2 could be taken to Gumma from the spot of alleged incident why complaint was not lodged with the police on the same date. Statement of PW-2 Bhup Chand, if read in its entirety, also suggests that accused Sanjeev Kumar and prosecutrix were known to each other and perhaps their intimacy was not being liked with by the PW-2 and his family.
Though in his statement PW-2 has stated that both of them i.e. accused and PW-2, entered into a scuffle and thereafter accused Sanjeev gave a danda blow on the head of PW-2. But, PW-1 prosecutrix in her cross-examination has categorically stated that PW-2 was not beaten by accused Sanjeev Kumar nor any `hathapai' (scuffle) took place between my father and Sanjeev ::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 16 Kumar. The aforesaid statement coupled with another facts and circumstances of the case raises suspicion about the .
correctness of the story of scuffle and thereafter blow of danda put forth by prosecution and has been rightly rejected by the learned trial Court below.
19. If we advert to statement of PW-3 Shri Rakesh Verma, he has stated that danda was not produced by PW-2 of Shri Bhup Chand. In his cross-examination this witness has stated that his statement was recorded by the police in which he rt has stated that informant Bhup Chand had shown the spot i.e. orchard of Shri Rattan Lal to the police in his presence, where the accused and Bhup Chand had got some scuffle. He also stated in his cross-examination that his house was at a distance of 20 yards from the deserted house but he nowhere states that he witnessed the scuffle as well as presence of prosecutrix in the deserted house.
20. PW-4 Shri Inder Singh also stated that he was called for identification of the place of incident but he did not state anything with regard to alleged scuffle which took place between the accused and PW-2 Bhup Chand. In his cross-
examination he has admitted that the deserted house was without any door, shutter and windows and there was an open ::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 17 space to make an entry to the deserted house. If we peruse the statements of PW-3 and PW-4, the so called independent .
witnesses associated by the prosecution, these nowhere suggest that scuffle, if any, took place in their presence and PW-2 Bhup Chand was given beatings and blow of danda by the accused.
21. PW-3 Shri Rakesh Verma in his statement has categorically stated that his house was at a distance of 20 yards of from the deserted house but he has also not uttered a word with regard to any hue and cry, which could be made by the rt prosecutrix, if she was lodged in that house after kidnapping by the accused. At this juncture if the story of alleged kidnapping as well as lodging of the prosecutrix in deserted house by the accused is considered to be correct then it remained unexplained that what prevented the prosecutrix to escape from the house which was without doors, shutters and windows especially when it was not guarded as per the version of prosecution. PW-3 in his statement has stated that his house was at a distance of 20 yards from the deserted house, hence prosecutrix could always escape from the deserted house which was open and report the incident to PW-3 whose house was merely at a distance of 20 yards. If we read the statements of PW-1, PW-2, PW-3 and PW-4 in its entirety, it nowhere suggests ::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 18 that prosecutrix was forcibly taken away by the accused Sanjeev Kumar. Nowhere it suggests and establishes that scuffle .
between the accused and PW-2 Bhup Chand took place because there is no eye witness to the same. PW-4 though has stated in his statement that in his presence danda, used by the accused during scuffle, was handed over to the police but he nowhere speaks about scuffle, if any, took place between the accused of and PW-2. Initial, deposition made in the statement of PW-2 Bhup Chand itself casts suspicion on the correctness of the rt story put forth by the prosecution because he has been candid in saying that when he went to orchard he saw his daughter and accused Sanjeev Kumar sitting together in the orchard.
The aforesaid statement of PW-2 is in total contradiction to the statement of PW-1 prosecutrix where she states that she was forcibly taken away by the accused Sanjeev Kumar. Moreover, she nowhere says that when her father came to the orchard she complained him that she is being threatened by the accused Sanjeev Kumar. Hence, learned trial Court below has rightly concluded that the story put forth by the prosecution cannot be relied upon being untrustworthy as there are lot of contradictions and exaggerations.
::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 1922. Now, if we take the statement of PW-6, Ravinder Chauhan, maternal uncle of the prosecutrix, he has stated that .
on receiving telephonic call on February 23, 2007 he brought PW-2 to Gumma for medical check up, where he got him medically treated but there is no record with regard to the same.
It also remained un-explained in his statement that when he could bring PW-2 Bhup Chand from his village to Gumma for of treatment then why he could not be taken to Police Station, Theog on the same day for lodging complaint.
23. rt PW-5, Shri Ramesh Chand, Panchayat Sahayak, Gram Panchayat Klind, has stated that he proved on record birth certificate Ex.PW-5/B of the prosecutrix. But in his cross-
examination he has denied that the above entry does not pertain to Birth and Death Register.
24. PW-7, Dr.Kuldeep Kumar, after examining PW-2 Bhup Chand, reported contusions red coloured approximately 2cm x 1cm on the left parietal portion of the scalp and advised X-Ray of scalp. He further reported that there is no fracture in the X-Rays Ex.PW-7/B-1 and Ex.PW-7/B-2. He specifically reported vide Medico Legal Certificate Ex.PW-2/B that injury No.1 was simple in nature and the same could be inflicted by a blow from stick. But in cross-examination he stated that injury ::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 20 can be caused by a scuffle or by a fall or striking against a tree and its branches.
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25. PW-8, Dr.Dalip Tegta, who examined the prosecutrix, reported that there were no external injuries on the person of prosecutrix and he issued Medico Legal Certificate Ex.PW-1/D.
26. If we peruse the statement of PW-7 Dr.Kuldeep of Kanwar, he has stated that there is simple injury which could be caused by a scuffle or by a fall or by striking against a tree rt and its branches. But, in the present case, prosecution has failed to prove any scuffle between accused and PW-2 Bhup Chand. No witness has stated that they saw scuffle between PW-2 and accused. No doubt PW-1 in her examination-in-chief stated that scuffle took place between the accused and her father at orchard but in her cross-examination she has specifically denied that any `hathapai' (scuffle) took place between the accused and PW-2 Bhup Chand. Hence, opinions given vide MLC Ex.PW-2/D could not be of any help to the prosecution. As far as statement given by PW-8 Dr.Dalip Tegta is concerned, he has categorically reported vide Ex.PW-1/D that there were no external injuries on the person of prosecutrix.
Even prosecutrix in her statement has nowhere stated that she ::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 21 was given any kind of beatings by the accused. Even there is no whisper with regard to the fact that ever she was touched by the .
accused during this period of her alleged illegal confinement.
Hence, opinions given vide MLC Ex.PW-1/D by PW-8 Dr.Dalip Tegta also could not be of any help to the prosecutiion.
27. Now, we peruse the statement of PW-9, Shri Trilochan Dutt Sharma, Inspector/ Station House Officer, Police of Station, Theog. He states that the prosecutrix gave `Nishandehi' of house of Chet Ram, where she was kept from February 25, rt 2007 to March 2, 2007 and he prepared a site plan Ex.PW-9/C. In his cross-examination he also states that there were residential houses near the deserted house. But it remained unexplained that, as stated by the prosecutrix in her statement that she was kept by the accused in the house of his uncle namely, Chet Ram, where his wife and old woman, who was mother of Chet Ram were also present, why Investigating Officer did not think it proper to associate them in the investigation and cite them as prosecution witnesses. Hence, the absence casts suspicion with regard to correctness of prosecution story.
28. After perusing the statements given by all the prosecution witnesses as well as documentary evidence adduced on the record, we see no reason to differ with the judgment ::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 22 passed by the learned trial Court which appears to be passed on the correct appreciation of the evidence available on the record.
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The prosecution has miserably failed to prove that prosecutrix was ever kidnapped by the accused namely, Sanjeev Kumar because material available on the record nowhere, suggests that prosecutrix was forcibly taken away by the accused. To the contrary, there are statements made by PW-1 and PW-2, of prosecutrix and her father Bhup Chand, which suggests that accused Sanjeev Kumar and prosecutrix were known to each rt other prior to date of alleged incident. Prosecutrix in her statement has nowhere stated that she was given any kind of beatings by the accused and moreover, she nowhere states that during her alleged wrongful confinement she was ever threatened by accused as well as other co-accused. Prosecutrix in her statement has candidly stated that she never saw accused after 24th February, 2007 and thereafter she could only see him during trial. She also stated in her statement that during alleged confinement she was given proper meal by the occupants of the house, where she was allegedly kept in illegal confinement. On the other hand, PW-2 Bhup Chand father of the prosecutrix himself states that he saw her daughter and accused Sanjeev Kumar sitting in the orchard which clearly ::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 23 establishes that both knew each other prior to the date of alleged incident. He also nowhere states that when he saw .
them together, her daughter made any complaint of threat being extended to her by accused Sanjeev Kumar. PW-1, Prosecutrix, in her cross-examination also states that no scuffle took place between her father and accused Sanjeev Kumar. It also remained un-explained that once PW-2 was hit by danda by the of accused why did prsecutrix left the place of incident with the accused. Moreover, there is no witnesses who have supported rt the story of scuffle put forth by the prosecution especially in view of the fact that it has come on record that there were number of houses near the place of incident.
29. PW-3 in his statement has stated that his house was only situated at 20 yards from the place of incident as well as deserted house. But strangely he has not uttered a single word with regard to alleged scuffle and lodging of prosecutrix by the accused in the deserted house. It also remained un- explained in the statement of PW-6 that why he could not take PW-2 to Police Station for lodging complaint when he could take him to Gumma which was at a considerable distance from his village for treatment. Moreover, he has not produced any record ::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 24 pertaining to treatment which was allegedly given to PW-2 at the first instance at Gumma.
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30. Story of recovering danda has also not been supported by the prosecution witnesses. Rather in their statements they have admitted that the deserted house, allegedly used for illegal confinement of the prosecutrix, was without any doors, shutters and windows and there was enough of open space to run away.
31. Admittedly, PW-7 Dr.Kuldeep Kanwar in MLC rt Ex.PW-7/B-2 issued by him has reported injury which was simple in nature but in his cross-examination he has admitted that the same could be caused by a scuffle or by a fall or by striking against tree. But in the present case where the prosecution has miserably failed to prove the story of scuffle, Ex.PW-7/B MLC issued by PW-7 could be of any help to the prosecutrix. Rather, statement given by PW-8 Dr.Dalip Tegta, vide MLC Ex.PW-1/D where he states that there was no external injuries on the person of prosecutrix, clearly suggests that no force was used by the accused as well as other co-accused while she was in their alleged illegal confinement.
32. It has clearly come on record from photographs Ex.DB that house in question had no door or windows and it ::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 25 was a four walls structure in dilapidated condition which could be blocked only with a wooden plank. Hence, the version of the .
prosecutrix that she was confined in such a house by bolting door from the outside cannot be taken as a truth.
33. In view of the detailed discussion above, we are of the view that prosecution has failed to prove any charge under Section 323 read with Section 34 of the IPC because it has failed of to prove that any scuffle took place between the accused and PW-2 as there was no independent witness to support the story rt of scuffle put forth by prosecution. Hence, learned trial Court has rightly acquitted the accused persons under Section 323 read with Section 34 of the IPC.
34. As far as Section 363 read with Section 34 of the IPC is concerned, prosecution has also not been able to prove the same. Section 363 of IPC reads as under:-
"363. Punishment for kidnapping.--Whoever kidnaps any person from 1[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."
A careful reading of Section 363 of IPC suggests that charge under Section 363 of IPC can only be sustained if kidnapping is ::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 26 proved and it is established that the person is kidnapped from the lawful guardianship. The word `Kidnapping' has been .
defined under Section 359 of the IPC, which reads as under:-
"359. Kidnapping.--Kidnapping is of two kinds:
kidnapping from 1[India], and kidnapping from lawful guardianship."
35. If we peruse the entire sequence of events of the of present case, prosecution has miserably failed to prove its case.
The basic ingredients of Section 363 IPC have not been met by rt prosecution. Evidence put forth by it during the course of trial clearly establish that prosecutrix was not kidnapped by the accused and other co-accused. Rather, she was known to the accused from the prior point of time. Prosecution has also failed to prove the ingredients of Section 342 IPC, which states as under:-
"342. Punishment for wrongful confinement.-- Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
36. A careful consideration of the entire evidence brought on record by the prosecution itself suggests that the prosecutrix was never in the wrongful confinement of the ::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 27 accused or other co-accused, rather the evidence collected on record by the prosecution itself suggests that the story put forth .
by the prosecution is concocted and cannot be relied upon in its face value. As has been pointed out above that despite there being sufficient opportunity prosecutrix did not make any attempt to escape from the house which was admittedly without any door and shutters.
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37. Apart from this, if the story of prosecution is believed, it has come on record that accused after lodging the rt prosecutrix in the alleged deserted house went away and returned next morning and during that time there was nobody to guard that house. These all circumstances indicate that prosecutrix if at all had gone with the accused that was with her consent because there is no iota of evidence which suggests that she was in illegal confinement and she made effort to escape from that house.
38. Our attention is invited to a decision in Shyam & Another vs. State of Maharashtra, 1995 SCC (Cri) 851, wherein the Hon'ble Apex Court, while dealing with the similar case which had the identical facts, held that in the facts and circumstances of the case, prosecutrix was a willing party to go with the appellant on her own and there was no "taking" out of ::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 28 the guardianship of her mother. The Hon'ble Apex Court in para-3 held:-
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"3. In her statement in Court, the prosecutrix has put blame on the appellants. She has deposed that she was threatened right from the beginning when being kidnapped and she was kept under threat till the police ultimately recovered her. Normally, her statement in that regard would be difficult to dislodge, but having of regard to her conduct, as also the manner of the so-called "taking", it does not seem that the prosecutrix was truthful in that regard. In the rt first place, it is too much of a coincidence that the prosecutrix on her visit to a common tap, catering to many, would be found alone, or that her whereabouts would be under check by both the appellants/ accused and that they would emerge at the scene abruptly to commit the offence of kidnapping by " "taking" her out of the lawful guardianship of her mother. Secondly, it is difficult to believe that to the strata of society to which the parties belong, they would have gone unnoticed while proceeding to the house of that other. The prosecutrix cannot be said to have been tied to the bicycle as if a load while sitting on the carrier thereof. She could have easily jumped off. She was a fully grown up girl may be one who had yet not touched 18 years of age, but, still she was in the age of discretion, sensible and aware of the intention of the ::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 29 accused Shyam, That he was taking her away for a purpose. It was not unknown to her with whom she was going in view of his earlier .
proposal. It was expected of her then to jump down from the bicycle, or put up a struggle and, in any case, raise an alarm to protect herself. No such steps were taken by her. It seems she was a willing party to go with Shyam the appellant on her own and in that sense there was no "taking"
out of the guardianship of her mother. The of culpability of neither Shyam, A-1 nor that of Suresh, A-2, in these circumstances, appears to us established. The charge against the rt appellants/ accused under Section 366, I.P.C. would thus fail. Accordingly, the appellants deserve acquittal. The appeal is, therefore, allowed acquitting the appellants."
39. As far as Section 366-A of the IPC, under which accused and co-accused were charged, is concerned, it also does not hold good grounds in the present case. Section 366-A reads:
"366A. Procuration of minor girl.--Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with ::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 30 imprisonment which may extend to ten years, and shall also be liable to fine."
.
Basic ingredients of Section 366 of IPC speaks about the kidnapping or abducting or inducing woman with the intent that she may be compelled to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse. Section 366 IPC states as under:-
of "366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may rt 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; 1[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."::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 31
40. In the present case, prosecutrix in her statement has nowhere stated that accused ever used any force for .
keeping her in illegal confinement, rather she stated in her statement that after lodging her in deserted house, the accused went away and she could only see him during trial. She has also stated that during her alleged illegal confinement she was never maltreated or threatened by the occupants of that house of which was used for illegal confinement. She in her statement has nowhere stated that she was ever compelled to marry and rt have illicit intercourse with anybody. Prosecutrix in her statement has stated that during her alleged illegal confinement she used to have proper meal and time for urination and she was also even free to go to urination and defecation without any escort or guard. Hence Section 366 of the IPC was not applicable in the present facts and circumstances of the case against the accused and co-accused and it has been rightly rejected by the learned trial Court below.
41. In Iqbal vs. State of Kerala, (2008)3 SCC (Cri) 381, the Hon'ble Apex Court held:
"9. The residual question is of applicability of Section 366A IPC. In order to attract Section 366A IPC, essential ingredients are (1) that the ::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 32 accused induced a girl; (2) that the person induced was a girl under the age of eighteen years; (3) that the accused has induced her with .
intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse; (4) such intercourse must be with a person other than the accused; (5) that the inducement caused the girl to go from any place or to do any act.
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10. In the instant case, the admitted case of the prosecution is that girl had left in the company of the accused of her own will and that she was rt not forced to sexual intercourse with any person other than the accused. The admitted case is that she had sexual intercourse with the accused for which, considering her age, conviction under Section 376 IPC has been maintained. Since the essential ingredient that the intercourse must be with a person other than the accused has not been established, Section 366A has no application."
42. Learned counsel representing the respondent-
accused has also invited our attention to the judgment passed by this Court in 2012(1) Him.L.R. (DB) 280, wherein this Court relying upon the judgment passed by the Hon'ble Apex Court in Ramesh vs. State of Maharashtra, AIR 1962 SC 1908, has ::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 33 held that before a person can be found guilty of the offence punishable under Section 366A, the jury must be satisfied that .
the accused either intended that the girl should be seduced or forced to illicit intercourse with others or that he knew that she was likely to be so forced or seduced when he took her away and kept her in different houses." In the facts and circumstances of the present case we have no hesitation to hold of that there is no evidence on record to this effect. It is not the case of the prosecution that the accused has induced the rt prosecutrix to accompany him in an orchard with and intention and intended that she will be forced to seduce to have illicit intercourse with other persons and as such the provisions of Section 366A IPC are not attractable in the present case.
43. In this case it has been also stated by PW-9 Shri Trilochan Dutt Sharma that he had also collected date of birth certificate Ex.PW-5/B of the prosecutix and recorded statements of witnesses correctly but in his cross-examination he has denied that its entry does not pertain in the Birth and Death Register.
44. Learned counsel representing the respondents-
accused has also vehemently argued that the provisions of Section 366A IPC are not attracted in the present case because ::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 34 prosecution has failed to establish on record that the prosecutrix was minor at the relevant time. Admittedly, to .
attract the provisons of Section 366A IPC the prosecutrix was required to establish on record that the prosecutrix was below the age of 18 years. In the present case to prove the age of the prosecutrix, the prosecution has examined PW-5 Ramesh Sharma, Panchayat Sahayak, Gram Panchayat, Klind. He of states in examination-in-chief that he has not brought the Pariwar Register of Gram Panchayat, Kalind and as per entry at rt page 59 thereof the family members of Sita Ram are entered and prosecutrix PW-1 has been shown as daughter of Bhup Chand.
Her date of birth is entered as 20.8.1992. He stated that he has not brought Birth and Death Register. He has categorically stated that vide application Ex.PW-5/A he has prepared the birth certificate of the prosecutrix Ex.PW-5/B from the Pariwar Register.
45. In this regard learned counsel representing the respondents-accused has invited our attention to the decision of this Court in State of H.P. vs. Sunil Kumar, 2012(1) Him.L.R.(DB) 120, wherein this Court has held:
"12. In order to prove the exact date of birth of the prosecutrix prosecution ought to have placed ::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 35 material on record to shw that name of the prosecutrix was entered either in the register maintained under the Registration Act or the .
Pariwar register maintained by the Panchayat in which entry was made on the basis of some authentic source/record."
46. In the present case version of the prosecutrix as well as her father PW-2 Bhup Chand seems to be highly of improbable and could not be relied upon while passing the judgment by the learned trial Court, hence has been rightly rt rejected. In this regard in Rai Sandeep @ Deepu V/s State of NCT of Delhi", (2012) 8 SCC 21, the Hon'ble Supreme Court observed as under:
"22. In our considered opinion, the "sterling witness" should be of very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely at the time when the witness makes ::: Downloaded on - 15/04/2017 20:09:39 :::HCHP 36 the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused.
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There should not be any prevarication in the version of such a witness."
47. In view of the detailed discussion made hereinabove, we find no reason to interfere with the judgment passed by the learned trial Court below which appears to be of based upon correct appreciation of oral as well as documentary evidence on record. Accordingly, the present appeal is rt dismissed being devoid of any merit. Bail bonds furnished by the respondents are discharged.
(Sanjay Karol)
Judge
April 22 , 2016 (Sandeep Sharma)
(aks) Judge
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