Himachal Pradesh High Court
State Of Himachal Pradesh vs Of on 10 November, 2016
Bench: Dharam Chand Chaudhary, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
Cr. Appeal No. 538 of 2012
Decided on: 10th November, 2016
State of Himachal Pradesh .......Appellant
Versus
of
Vijay Kumar ...Respondent
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
rt
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 Yes.
For the appellant: Mr. M.A. Khan and Mr. Virender
Verma, Addl. A.Gs.
For the respondent: Mr. Dalip K. Sharma, Advocate.
Dharam Chand Chaudhary, Judge (Oral)
State of Himachal Pradesh aggrieved by the judgment dated 17.07.2012, passed by learned Additional Sessions Judge, Fast Track Court, Solan in Session Trial No. 28FTC/7 of 2010, is in appeal before this Court. It is seen that learned trial Judge has acquitted the respondent (hereinafter referred to as the accused) of the charge under Sections 363, 376, 342 and 506 of the Indian Penal Code.
1Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 21:32:18 :::HCHP 22. The allegations against the accused in a nut-shell are that on 2.6.2010 and 13.7.2010, in the .
morning hours, he kidnapped the prosecutrix, a minor from the lawful guardianship of her parents and she was taken to hotel 50 miles stone near Deonghat, where she of was subjected to forcible sexual intercourse in Room No. 102 and thereby he has committed an offence rt punishable under Section 363 and 376 of the Indian Penal Code. As per further allegations against the accused, on 2.6.2010, the prosecutrix was wrongfully detained in Room No. 102 of hotel 50 miles stone after 12.00 noon for about 2-3 hours and also threatened to do away with her life by throwing 'Tezab' if she disclosed the factum of her kidnapping by him and subjecting her to sexual intercourse in the room of hotel to anyone and thereby committed an offence punishable under Section 342 read with Section 506 of the Indian Penal Code.
3. The legality and validity of the impugned judgment has been questioned on the grounds inter-alia that despite of the direction evidence as has come on ::: Downloaded on - 15/04/2017 21:32:18 :::HCHP 3 record by way of own testimony of the prosecutrix and her father PW-16 as well as by way of testimony of PW-6 .
Jagdeep Singh, the owner of hotel 50 miles stone near Panch Parmeshwar Temple, Solan, the same has not been appreciated in its right perspective and the trial of Court has proceeded to record findings of acquittal mechanically and without application of mind. The rt testimony of PW-16 that while going to his residence in police line Solan from market, he got attracted to the place of occurrence on hearing cries of people gathered there and school girls present and noticed that the accused had caught hold hand of his daughter the prosecutrix and that on seeing him the accused had fled away from the spot is also not appreciated in its right perspective and to the contrary, the accused has been acquitted of the charge on presumptions and assumptions.
4. The grouse of the appellant-State, therefore, in a nut-shell is that learned trial Court has erroneously ignored and brushed aside the cogent and reliable evidence produced by the prosecution. In order to ::: Downloaded on - 15/04/2017 21:32:18 :::HCHP 4 show the involvement of the accused in the commission of the offence and that he has been acquitted .
erroneously without application of mind, the findings recorded by learned trial Court are stated to be perverse and as such, the impugned judgment is not of legally sustainable.
5. The nature of the offence, the accused rt allegedly committed is not only heinous but also grievous in nature because as per the allegations, he has not only removed the prosecutrix, a minor from her lawful guardianship, but also subjected her to sexual intercourse against her will and without her consent. It is, however, yet to be determined by us that occurrence has taken place in the manner as claimed by the prosecution or not and also that the prosecution has been able to establish its case that the prosecutrix at the relevant time was a minor and kidnapped as well as subjected to sexual intercourse forcibly.
6. Before coming to the factual matrix and also re-appraisal of the evidence available on record, it is desirable to take note as to under what circumstances it ::: Downloaded on - 15/04/2017 21:32:18 :::HCHP 5 can be inferred that the prosecutrix, a minor has been kidnapped from the lawful guardianship of her parents .
and under what circumstances she can be said to have been subjected to forcible sexual intercourse. A bare perusal of Section 361 IPC reveals that if a female under of 18 years of age is enticed away by a person from her lawful guardianship without the consent of her guardian, rt such person can be said to have committed the offence of kidnapping. The essential ingredients to constitute an offence of kidnapping, therefore, is enticing away a minor form her lawful guardianship without the consent of her guardian or any other person legally authorized to consent on behalf of such guardian of minor. Such person can be said to have committed an offence of kidnapping punishable under Section 363 of the Indian Penal Code.
7. Now if coming to the commission of offence punishable under Section 376 of the Indian Penal Code in a case of minor, the commission of such an offence can be inferred once it is established that the prosecutrix has been subjected to sexual intercourse and it is not ::: Downloaded on - 15/04/2017 21:32:18 :::HCHP 6 required to prove that she was not a consenting party to such an act on the part of the accused. However, in a .
case where the prosecutrix is not minor, the prosecution is required to plead and prove beyond all reasonable doubt that such cardinal intercourse with her was of against her will and without her consent.
8. Now if coming to the legal principles rt attracted in a case of this nature, in State of Punjab Vs. Gurmeet Singh and others, AIR 1996 SC 1393, the Apex Court has held that the own statement of the prosecutrix if inspires confidence is sufficient to bring the guilt home to the accused. The apex Court in order to ensure that an innocent person is not implicated in the commission of an offence of this nature, while taking note of the judgment in Gurmeet Singh's case supra has however diluted the ratio thereof in Ranjit Hazarika Vs. State of Assam, (1998) 8 SCC 635 and held that the statement of prosecutrix cannot be universally and mechanically applied to the facts of every case of sexual assault, as in its opinion, in such cases, the possibility of false implication can't also be ruled-out. Similar was the view ::: Downloaded on - 15/04/2017 21:32:18 :::HCHP 7 of the matter taken again by the apex Court in Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. and .
another, (2003) 3 SCC 175. While placing reliance on this judgment and the law laid down by the Apex Court in the judgment supra, this Court in Criminal Appeal No. of 481 of 2009 titled State of Himachal Pradesh V. Negi Ram, decided on 27th May, 2016 has held as under:
rt "15. Therefore, the legal position as discussed supra makes it crystal clear that irrespective of an offence of this nature not only grievous but heinous also, the Court should not got swayed merely by passion and influence only on account of the offence has been committed against a woman and rather keep in mind the cardinal principle of criminal administration of justice, that an offender has to be believed to be innocent unless and until held guilty by the Court after satisfying its judicial conscience on the basis of given facts and circumstances of each case as well as proper appreciation of the evidence available on record."::: Downloaded on - 15/04/2017 21:32:18 :::HCHP 8
9. It is also worth mentioning that in a case of this nature, it is the age aspect of the prosecutrix which .
assumes significance.
10. Now if coming to the factual matrix, the prosecutrix being born on 10.11.1992 was approximately of 18 years and eight months old on 26.07.2010, when she made the application Ext. PW-5/A to the Station House rt Officer, Sadar, District Solan for registration of a case against the accused. Even if the date of occurrence is taken as 2.6.2010, in that event also, she was approximately 17 years seven months old at that time. In order to prove her age below 18 years school certificate Ext. PW-16/A, date of birth certificate Ext. PW-22/A and the extracts of parivar register Ext. PW-10/B has been produced in evidence. The school certificate Ext. PW-
16/A has been produced in evidence by her father PW-
16 Narender Pal Singh. The same in the present form is not legally admissible because no evidence has come on record as to what was the source on the basis of which the date of birth of the prosecutrix has been recorded as 10.11.1992 in this document. The entries in ::: Downloaded on - 15/04/2017 21:32:18 :::HCHP 9 the parivar register being not primary evidence qua the birth of a person are also not legally admissible in .
evidence nor on the basis thereof, it can be said that such person was born on the date mentioned therein.
Now if Ext. PW-16/A and Ext. PW-10/A are excluded from of the evidence, there remains only Ext. PW-22/A, the date of birth certificate issued by the Registrar, Births and rt Deaths, Gram Panchayat, Maan, Tehsil Arki, District Solan, H.P. PW-22, who has proved this document is Ravinder Kumar, Registrar, Births and Deaths, Gram Panchayat, Maan, Tehsil Arki, District Solan. True it is that he had brought the birth register and while in the witness box has deposed that the birth certificate Ext. PW-22/A has been issued by him on the basis of entries in the said register, however, in his cross-examination he has admitted over writing and cutting in column No. 5 of the register and that the entries at Serial No. 46 in the said register are in different ink. He has also admitted over writing and cutting in the entries made at Serial No. 47, 48 and 49 of the register. He has also admitted rubbing of entries at Serial No. 46 in the register. The abstract of ::: Downloaded on - 15/04/2017 21:32:19 :::HCHP 10 register was obtained by the police during the course of investigation and as such this witness while in the witness .
box has proved the abstract of register, which is Ext. D-1.
Overwriting and cutting in the entries against Serial No. 46 of the register qua the birth of prosecutrix renders the of prosecution case that she has been born on 10.11.1992 as highly doubtful. The extract of register, Ext. D-1 makes rt it crystal clear that there is overwriting against entries at Serial No. 46. Otherwise also, it is Yasoda Devi, the grand mother of the prosecutrix at whose instance as per version of PW-22, the entries qua birth of the prosecutrix were entered in the birth register, was a material witness who could have told us that the prosecutrix was born on 10.11.1992 and that she had disclosed her correct date of birth to the Registrar, Births and Deaths, Gram Panchayat, Maan. As per version of PW-22, said Smt. Yasoda Devi is known to him and that she is alive. She, however, has neither been associated nor cited as a witness to the reasons best known to the prosecution.
On the other hand, if coming to the opinion of Radiologist encircled red at point 'B' on the reverse of ::: Downloaded on - 15/04/2017 21:32:19 :::HCHP 11 the MLC Ext. PW-24/A, the radiological age of the prosecutrix at the relevant time was 15½ to 17 years. The .
margin of two years, though as per the testimony of PW-
24 Dr. Tanzin Chhokit the same may 3-4 years on either side, if taken into consideration, the age of the of prosecutrix at that time was more than 18 years.
Otherwise also, the age of the prosecutrix if taken above rt 17½ years, she had already attained the age of discretion. In the given facts and circumstances to be discussed hereinafter, therefore, it cannot be said that she was below 18 years of age and removed from her lawful guardianship by the accused without the consent of her parents. Being so, it cannot be said that the prosecutrix was minor below 18 years on the date of occurrence.
11. Before coming to the merits of the case, it is desirable to take note of the own admission of accused in his statement recorded under Section 313 of the Code of Criminal Procedure. His answers to question No. 2 to 8 reveal that he has admitted the prosecutrix a student of Government Girls Senior Secondary School, Solan and ::: Downloaded on - 15/04/2017 21:32:19 :::HCHP 12 that he is owner of Balero bearing registration No. HP-11- 3765 (used in the commission of offence). He has also .
admitted that the students of Badhalag were taken to Chandigarh, Kurukshetra and Renuka side for picnic and his vehicle was also hired for the purpose. It is he who of had driven the vehicle during the period the students were taken for picnic. Though it is denied that he had rt obtained the cellphone number of the prosecutrix, however, according to him it is she who herself had asked for number of his cellphone. He also admits that he started calling the prosecutrix over her cellphone from his cellphone number 98054-38872. The prosecutrix also admitted in her cross-examination that she used to talk with accused continuously for 15 minutes to one hour at a time. She also used to call him from her cellphone. The explanation that she had been doing this due to fear is neither plausible nor reasonable. The accused also admits that he was subjected to medical examination vide MLC Ext. PW-1/B and that his vehicle HP-11-3765 was taken in possession vide seizure memo Ext. PW-7/A. It is thus seen that the accused and ::: Downloaded on - 15/04/2017 21:32:19 :::HCHP 13 prosecutrix were well acquainted with each other. They used to talk with each other because as per prosecution .
case also, if believed to be true the accused had taken the number of cellphone of the prosecutrix. The controversy, therefore, lies in a narrow compass because of it is to be seen from the evidence available on record that the prosecutrix a minor below 18 years was rt kidnapped by the accused from her lawful guardianship and subjected her to sexual intercourse.
12. On 2.6.2010, in the morning on her way to school from her quarter in Police Line, Solan at 11.30 a.m the accused was sitting in his Bolero and met her on bye pass near police line, Solan. He offered lift to her at the pretext that he will drop her near school, however, when they reached near Saproon bye pass, instead of taking turn towards Saproon chowk, he drove the vehicle towards Deonghat side. She tried to get the vehicle stopped but accused did not agree, therefore, she had altercation with him, but of no avail. She was taken to hotel at Deonghat and subsequently to a room in the said hotel. There he committed rape with her forcibly ::: Downloaded on - 15/04/2017 21:32:19 :::HCHP 14 and also man handled her. He threatened her to throw acid on her body in case she disclosed the incident to .
anyone else. He removed her clothes including salwar and subjected her to sexual intercourse forcibly.
13. It cannot be believed by any stretch of of imagination that the prosecutrix had reasons to withheld the occurrence from her parents because the rt explanation that she was threatened not to disclose the incident to anyone, failing which, the accused will throw acid on her, is neither plausible nor reasonable. This Court has also failed to understand as to how the prosecutrix could have forcibly taken away by the accused, that too, from Solan town. As per her own admission in the cross-examination, the locality from police line Solan onward is thickly populated up to Deonghat. The hotel at Deonghat is touching the road.
A 'Dhaba' also exist on roadside near the hotel. Room No. 102, where she was allegedly subjected to sexual intercourse situate below the restaurant/dhaba. She has not denied that in the restaurant no person was taking meal, however, expressed her ignorance as to how ::: Downloaded on - 15/04/2017 21:32:19 :::HCHP 15 many persons were taking meal there. She was taken to the hotel in a broad day light i.e. 12.00 noon. As per her .
version, they both went walking through stairs up to the room. She also admitted that on the gate of police line at Solan, there are shops of a single owner. In view of of such evidence as has come on record by way of her own testimony, even if it is believed that she was taken rt to hotel and subjected to sexual intercourse, it cannot be said that such an act on the part of the accused was forcible and contrary to her consent and against her will because had it been so, she could have raised hue and cry as it was not possible for the accused to have prevented her from doing so and also driving the vehicle simultaneously, that too, in Solan town and on Solan bye pass road, which as a matter of fact, is national highway and a very busy road. Being so, it would not be improper to conclude that she had voluntarily accompanied the accused and whatever happened on that day, she was a consenting party thereto. The prosecutrix for the purpose of commission of an offence under Section 376 of the Indian Penal Code was not ::: Downloaded on - 15/04/2017 21:32:19 :::HCHP 16 minor below 16 years of age and rather more than 17½ years of age on that day. At the relevant time a female .
below 16 years of age used to be minor so far as the commission of an offence punishable under Section 376 of the Indian Penal Code is concerned.
of
14. Now if coming to the incident of 13.07.2010 that she was taken by the accused in the same vehicle rt to the same hotel. He allegedly tried to subject her to sexual intercourse forcibly inside the vehicle, however, he did not succeed in his attempt to do so and he administered beatings to her inside the vehicle. Her testimony in cross-examination that they could not reach in the hotel on that day as a result thereof, the accused parked the vehicle at an isolated place on the national highway where he tried to subject her to sexual intercourse cannot also be believed to be true for the reason that it was not possible for the accused to have assaulted her sexually on road side, had she been not a consenting party for the reason that on national highway there always remain flow of traffic and she being a young lady, the accused would have not made an ::: Downloaded on - 15/04/2017 21:32:19 :::HCHP 17 attempt to assault her sexually on road side in the vehicle. How the accused could have driven the .
vehicle at a high speed and fighting with the prosecutrix also simultaneously. He could have also not prevented her from breaking glasses of the moving vehicle and of driving the vehicle also simultaneously. This part of her statement in cross-examination also seems to be merely rt an afterthought. The incident of 13.7.2010 is also not disclosed by her to her parents as according to her she was threatened by the accused.
15. Now if coming to the incident of 26.7.2010, the accused caught hold her hand near ITI Solan at such a time when she was coming back from her school. On raising hue and cry other persons gathered there. As per prosecution case, even school girls were also present there. Had it been so, it is not known as to why no-one from the locality or other persons gathered there or the school girl(s) were not associated by the police during the course of investigation and cited as witnesses to prove this aspect of the matter beyond all reasonable doubt. In the given facts and circumstances and taking ::: Downloaded on - 15/04/2017 21:32:19 :::HCHP 18 into consideration the own conduct of the prosecutrix, it is not safe to place reliance on her own testimony and .
that of her father PW-16. Had the occurrence of 26.07.2010 been taken place in the manner as claimed by the prosecution, the local people or anyone else of gathered at the alleged place of occurrence would have voluntarily come forward to assist the police in the rt investigation of the case in order to bring guilt home to the accused and to ensure that he is convicted. The possibility of the prosecutrix having voluntarily accompanying the accused on that day and when seen by her father PW-16, a false case was engineered and fabricated at the instance of her father to implicate the accused in this case, cannot be ruled-out.
16. It is significant to note that as per the complaint Ext. D-1, PW-16, the father of prosecutrix had mercilessly beaten up the accused. The allegations in the complaint also find support from the testimony of Dr. Lalit Mahajan who on being taken to the hospital by the police had examined the accused on the next day i.e. 27.7.2010 and issued MLC Ext. PW-1/B. PW-1 has noticed ::: Downloaded on - 15/04/2017 21:32:19 :::HCHP 19 multiple reddish abrasion on upper half of back, swelling and bluish sicolouration below both eyes in infraorbital .
region and swelling on nasal bridge. PW-1 has also stated that injuries mentioned in the MLC can be caused by way of beatings. In his cross-examination conducted of on behalf of learned defence counsel, he has stated that the injuries as disclosed in the MLC were recent.
rt Therefore, the possibility of the accused having been beaten up by none-else but by the father of the prosecutrix, cannot be ruled-out. Nothing has come on record as to that any inquiry was made on the application, Ext. D-1 submitted by the mother of the accused to the police. We, therefore, find the present a case where the prosecutrix was in the company of the accused on 26.7.2010 and the case was registered at the instance of her father PW-16, who was working in Police Department as Head Constable at Solan at the relevant time. PW-16 even had administered beatings also to the accused may be on account of that they both were seen in the company of each other. The evidence as has come on record by way of the ::: Downloaded on - 15/04/2017 21:32:19 :::HCHP 20 testimony of prosecutrix and that of her father is, therefore, not suggestive of that the prosecutrix was .
kidnapped from her lawful guardianship by the accused and that she was subjected to sexual intercourse without her consent and against her will in Room No. 102 of Hotel of 50 Mile Stone.
17. The statement of PW-6, the owner of Hotel 50 rt Mile Stone has also been pressed in service. He while in the witness box has stated that the accused and prosecutrix were identified by him in the Court to be the same persons who had come to his hotel on 2.6.2010 in vehicle HP-11-3765 around 12.00 noon. The accused had introduced the prosecutrix as his wife. He further tells us that Room No. 102 was got booked by the accused and the entries Ext. PW-5/B were made by him in the register. He has identified the bed sheet, Ext. P-6, which according to him was lying spreaded on the double bed on 2.6.2010 and on 27.7.2010 also.
Interestingly enough, his testimony in cross-examination reveals that the hotel situates on road side and there is 'Dhaba' of his brother where the services of Amar Deep ::: Downloaded on - 15/04/2017 21:32:19 :::HCHP 21 have been engaged for prepration of meal. The accused and prosecutrix were not quarreling with each .
other, however, according to him gone to the room quietly. He did not over hear the cries or shouting from the room. He remained in the hotel during the night also.
of As per his version, the bed sheets and other clothes being used in the hotel are changed on each and every rt occasion after use of the room. The father of the prosecutrix was known to this witness. He tells us that those persons found to be quarreling with each other are not being allowed to stay in the hotel. The prosecutrix and the accused had gone for a walk in the evening, however, it is only the accused who had returned at 8.00 p.m. to the hotel and not the prosecutrix. Even if his testimony in his examination-in-chief is believed to be true and it is believed that the accused had taken the prosecutrix on 2.6.2010 to his hotel, it would not be improper to conclude that she had gone there voluntarily because as per version of this witness, the accused and prosecutrix were not quarreling with each other and rather went quietly to the room. Not only this ::: Downloaded on - 15/04/2017 21:32:19 :::HCHP 22 but on the reception, the accused had introduced her being his wife to this witness. It is not known as to why .
the prosecutrix has not agitated against such conduct of the accused. Therefore, the evidence as has come on record by way of testimony of PW-6 Jagdeep Singh also of does not support the prosecution case.
18. Now if coming the to the medical evidence rt as has come on record by way of testimony of PW-24 Dr. Tanzin Chhokit and the MLC Ext. PW-24/A, no doubt, at the time of medical examination of the prosecutrix, in her opinion, based upon local and physical examination of the prosecutrix, the possibility of sexual activity was not ruled-out, however, the duration of such activity could not be ascertained. The final opinion was left to be given after the receipt of the Chemical Examiner's report and the report of Radiologist. The report of chemical examiner was received from the FSL, no blood and semen was detected on public hair, external genitalia, vaginal swab and salwar of the prosecutrix. Human blood was detected in the sample of blood of the prosecutrix, shirt and bed sheet but the result was not ::: Downloaded on - 15/04/2017 21:32:19 :::HCHP 23 conclusive in respect of blood groups. No semen could be detected on other exhibits sent for analysis. The .
blood was detected in traces on underwear, however, the same was insufficient for further examination. Semen was not detected on the exhibits examined. The of medical examination report Ext. PW-25/F was produced before the Medical Officer, PW-24. She, however, has rt noticed only gist and the results and failed to give her final opinion as to whether the prosecutrix was subjected to sexual intercourse or not, nor said that her opinion remained the same even on perusal of the report of chemical examiner also. On the other hand, result of the examination of the exhibits sent to the laboratory for analysis is not suggestive of that the prosecutrix was subjected to sexual intercourse.
19. In view of the discussion made hereinabove, the offence punishable under Section 341 and 506 of the Indian Penal Code has not been made out for the reason that the prosecution has failed to prove beyond all reasonable doubt that the prosecutrix was kidnapped by the accused form her lawful guardianship without the ::: Downloaded on - 15/04/2017 21:32:19 :::HCHP 24 consent of her parents and that she has been subjected to sexual intercourse without her consent and against .
her will. Being so, there is no question of wrongful confinement of the prosecutrix in Room No. 102 of hotel 50 Miles Stone. It cannot also be believed that the of prosecutrix was threatened with dire consequences including throwing of acid on her by the accused.
rt Thyerefore, the charge under Section 341 and 506 of the Indian Penal Code as framed against the accused also fall to the ground.
20. There is no need to discuss the evidence as has come on record by way of the testimony of PW-7 Dharam Singh, PW-9 Naveen Kumar, Senior Assistant, office of Registering and Licensing Authority, Arki. The accused has not disputed the prosecution case qua his vehicle was taken into possession by the police along with its keys. PW-8 Vir Bhadra Tekta, Lecturer English, PW-
18 Randhir Thakur, Lecturer Economics, PW-19 Narinder Pal Singh, Computer Teacher, PW-20 Tripta, Lecturer Sociology and PW-21 Veena Gupta, Lecturer Maths are formal in nature because they were working as Lecturers ::: Downloaded on - 15/04/2017 21:32:19 :::HCHP 25 in Government Girls Senior Secondary School, Solan at the relevant time and as such had produced the record .
and deposed that the prosecutrix did not attend the classes on 2.6.2010. PW-10 Ravinder Kumar, Panchayat Sahayak, Gram Pachayat, Maan and Ravinder Kumar, of Deputy Registrar, Births and Deaths, Gram Panchayat, Maan have produced the record pertaining to the date rt of birth of the prosecutrix, which has been duly considered hereinabove and the findings already recorded.
21. The official witnesses i.e. PW-4 LC Sandhya, PW-11 LC Neelam Kumari, PW-12 HHC Narender Prakash, PW-13 Constable Sanjay Kumar, PW-14 HC Pradeep Kumar, PW-17 HC Chander Mohan, PW-23 HC Rakesh Guleria and PW-25 ASI Dharam Sain, the Investigating Officer are formal as they remained associated during the investigation of the case in one way or the other, whereas, PW-25 has conducted the investigation of this case also. Their testimony could have been used as link evidence had the prosecution been otherwise able to establish beyond all reasonable doubt that the ::: Downloaded on - 15/04/2017 21:32:19 :::HCHP 26 prosecutrix was kidnapped by the accused from her lawful guardianship and subjected to sexual intercourse .
without her consent and against her will.
22. In view of the re-appraisal of the given facts and circumstances of this case and also the evidence of available on record, in our considered opinion, the prosecution has failed to prove its case against the rt accused beyond all reasonable doubt. The accused, as such, has rightly been acquitted of the charge framed against him. The judgment under challenge is neither perverse nor can be said to be legally and factually unsustainable. The same is accordingly affirmed.
23. In view of what has been said hereinabove, this appeal fails and the same is accordingly dismissed.
Personal bonds furnished by the accused shall stand cancelled and surety bonds discharged.
(Dharam Chand Chaudhary)
Judge
(Chander Bhusan Barowalia)
November 10, 2016 Judge
(naveen)
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