Himachal Pradesh High Court
Neha vs State Of Himachal Pradesh And Another on 5 September, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 99 of 2018.
.
Reserved on : 31.08.2023.
Date of decision: 05.09.2023.
Neha .....Appellant.
of
Versus
State of Himachal Pradesh and another .....Respondents.
Coram
rt
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Ranjan Sharma, Judge.
Whether approved for reporting?1 Yes For the Appellant : Mr. Rajesh Prakash, Advocate.
For the Respondents : Ms. Sharmila Patial, Additional Advocate General with Mr. J.S. Guleria, Deputy Advocate General and Mr. Rajat Chauhan, Law Officer, for respondent No.1.
Mr. N.K. Thakur, Senior Advocate with Mr. Divya Raj Singh, Advocate, for respondent No.2.
Mr. Vikrant Thakur, Advocate, for respondents, in Cr.M.P. No. 1076 and 1077 of 2018.
Mr. Amit Singh Chandel, Advocate, for respondent, in Cr.M.P. No. 1078 of 2018.
Whether the reporters of the local papers may be allowed to see the Judgment?Yes 1 ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 2 Mr. Atharv Sharma, Advocate, for respondent, in Cr.M.P. No. 1079 of 2018.
.
Tarlok Singh Chauhan, Judge Aggrieved by the acquittal of respondent No.2 (herein) under Sections 363, 366 of the Indian Penal Code (for short 'IPC') of and Section 12 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act'), the appellant/complainant has rt filed the instant appeal.
2. Briefly stated, the prosecution story is that on 08.04.2014, complainant Ishwar Kumar visited Police Station, Sadar, District Chamba, and lodged a report that on 07.04.2014, there was a 'Jagrata' (religious function) in his house. His daughter i.e. appellant herein was in the house till 10.30 p.m., but at about 11.00 p.m., she was found missing. The complainant along with other local residents searched for her daughter, but in vain. The complainant further reported that when her daughter was studying in a school at Karian, one boy Mohammad Shah alias Bablu used to contact her on the telephone of her friend. He had also come to know that earlier respondent No.2 was a tenant in his house and he had suspicion that he had enticed the appellant with intent to marry her. On the basis of this, an FIR came to be registered against ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 3 respondent No.2 and investigation was conducted by S.I. Kamlesh Kumar, who visited the spot on 09.04.2014, prepared site plan and .
also collected call details of mobile number of respondent No.2 which revealed that in the morning of 08.04.2014 his location was in Chamba area and that appellant had contacted respondent No.2 from the mobile number of one Kajal, her friend.
of
3. During investigation, it was found that respondent No.2 had taken the appellant to Kashmir and then they rushed to a Stone rt Crusher at Lasjan-Srinagar from where respondent No.2 was arrested and the appellant was also recovered. Both of them were brought to Chamba and on 20.05.2014, the appellant was got medically examined. On 21.05.2014, the appellant was produced by the police before the learned Magistrate and got recorded her statement under Section 164 Cr.P.C. Further investigation was conducted by S.I. Shakini Kapoor, who procured copy of 'Parivar' register and also recorded the statement of the witnesses.
4. On completion of investigation, challan was prepared and presented in the Court by SHO Tilak Raj.
5. On appearance, respondent No.2 was supplied with the copies of challan and other documents. Finding a prime facie case, respondent No.2 was charged for the aforesaid offences to which he pleaded not guilty and claimed trial.
::: Downloaded on - 06/09/2023 21:40:36 :::CIS 46. In order to prove its case, prosecution examined as many as 16 witnesses and also relied upon the documentary .
evidence. After closure of the prosecution evidence, respondent No.2 was examined under Section 313 Cr.P.C. His defence was that of simpliciter denial. However, no defence evidence was adduced by respondent No.2.
of
7. After evaluating evidence, the learned Court below acquitted respondent No.2 and aggrieved thereby, the appellant has rt filed the instant appeal.
8. Cr.M.P. Nos. 1076 to 1079 of 2018 are the fallout of orders passed by this Court on 12.12.2017 and thereafter on 03.01.2020 and shall be dealt with separately after the judgment in the criminal appeal.
9. It is vehemently argued by Shri Rajesh Prakash, learned counsel for the appellant that the findings recorded by the learned Court below are perverse and, therefore, deserve to be set aside.
10. On the other hand, Shri N.K. Thakur, Senior Advocate assisted by Shri Divya Raj Singh, Advocate, for respondent No.2, would argue that the learned Court below has rightly acquitted him and such findings warrant no interference.
::: Downloaded on - 06/09/2023 21:40:36 :::CIS 511. We have heard the learned counsel for the parties and have also gone through the records of the case.
.
12. It needs to be noticed that prior to the statement of the appellant was recorded in the Court, her statement under Section 161 Cr.P.C. was recorded by the police and thereafter her statement under Section 164 Cr.P.C. was recorded before the learned Judicial of Magistrate vide Ext. PW-1/A. In both these statements, she had stated that it was the appellant, who had threatened respondent rt No.2 to commit suicide in case he did not turn up to take her away.
She had herself called respondent No.2 telephonically. She further stated that it was respondent No.2, who had advised her against running away and solemnizing marriage as she was still minor. She further deposed that she had accompanied respondent No.2 out of her free wish and volition and remained with him at different places.
However, the statement recorded under Section 164 Cr.P.C. can never be used as a substantive evidence of truth of the facts but may be used as contradictions and corroborations of a witness, who made it.
13. 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 ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 6 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 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 Cr.P.C. for the purposes of bringing out the contradictions, if any, in of her evidence. In the absence of the same the court cannot read statement under Section 164 Cr.P.C. and compare the same with rt her evidence.
14. It shall be appropriate to refer to the following judicial precedents on this point.
15. 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 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 ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 7 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 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 procedure laid down in that section, oral evidence of the confession is inadmissible.
of 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 rt 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 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.::: Downloaded on - 06/09/2023 21:40:36 :::CIS 8
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 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 of and that other methods of performance are necessarily forbidden, applied to judicial officers making a record under S. 164 and, therefore, held that the magistrate could not give rt 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 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 ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 9 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 implication, prohibited a magistrate from giving oral evidence of the statements or confessions made to him.
of [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 rt 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 accused person purporting to be recorded under Section 164 or Section 364 is tendered in evidence "finds that any of the ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 10 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 procedure laid down in S. 164 had in fact been followed when the Court of finds that the record produced before it does not show that that was so. If the oral evidence establishes that the procedure had been followed, then only can the record be rt 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 confession by other evidence including the oral evidence of the ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 11 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 of confession made by an accused which may be used in evidence against him and at the same time it provides certain safeguards for his protection by laying down the rt procedure subject to which alone the 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 ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 12
322) and Deep Chand v. State of Rajasthan, 1962-1 SCR 662 : (AIR 1961 SC 1527). We have found no reason to take .
a different view."
16. 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 of Cr.P.C were corroborative of what had been stated earlier in the Committal Court.
17. rt 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 Procedure is not substantive evidence.
It can be used to corroborate the statement of a witness. It can be used to contradict a witness.
18. 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.
::: Downloaded on - 06/09/2023 21:40:36 :::CIS 1319. In Chinnammal vs. State of Tamil Nadu, 1997 (1) SCC 145, the Hon'ble Supreme Court held that:
.
"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 of 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 rt survival and the report (Ext. PI) that she lodged 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 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.
20. 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 ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 14 Procedure Code and not his evidence in Court. The said statement was treated as substantive evidence; as would be .
evident from the 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."
of 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 rt Criminal Procedure Code cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating him".
21. In Utpal Das vs. State of West Bengal, (2010) 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 ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 15 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 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 of any, in her evidence".
22. In R. Shaji vs. State of Kerala (2013) 14 SCC 266, the rt Hon'ble Supreme Court said that a proposition to the 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-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.
23. Judged in light of the aforesaid exposition of law, we would have to advert to the statement of the appellant as given before the Court. She stated that in the year 2013, she was studying in 10th Class and in that year, respondent No.2 had taken a room in our house on rent. She stated that they used to talk to each other and respondent No.2 used to tell her that he will perform marriage with her. Thereafter, respondent No.2 gave her a mobile ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 16 phone so that they had a talk and her parents came to know about it.
In that year i.e. 2013, respondent No.2 told her to accompany her .
otherwise he would hurt himself in an accident or by putting his hand in the electric transform. He used to intimidate her in many ways.
He also intimidated her by saying that he would put her photograph on the internet in which she was shown kissing respondent No.2.
of On 07.04.2014, respondent No.2 called her below her house.
24. On the said date, there was a 'Jagrata' in their house.
rt She went with him on the said date at about 9.10 p.m. at Karian near the school, where respondent No.2 had parked a vehicle and he was accompanied by 11 persons. Amongst those eleven persons, 2-3 persons were known to her. Thereafter, she boarded the vehicle and respondent No.2 took her to the house of her aunt(Massi) which was situated ahead of Rakhalu Mata Temple, Tissa. They reached there at about 12.00-1.00 a.m. and stayed there for about 1-2 hours. At that time, the aunt and her family members, respondent and 2-3 persons were with her. Thereafter, she along with respondent No.2 and 2-3 other boys went to the jungle in Tissa.
For one week, they remained in the jungle. Respondent No.2 and his two other companions pressurized her to accompany them to the jungle. After one week, cousin brother along with brother of respondent No.2 came to the jungle and brought a 'Burqa' and told ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 17 her to wear the same. Thereafter, she, cousin brother of respondent No.2 and his brother went to Jammu in a vehicle and on reaching .
there, respondent No.2 boarded in a separate bus and met her at Jammu-Pathankot and she had not visited the said places earlier.
These places were disclosed to her by respondent No.2, his brother and cousin brother. Respondent No.2 took a room on rent of for them in the above places where they stayed for one night.
Nearby the room, there was a house of aunt of respondent No.2. On rt the next day, they went there and stayed there for 2-3 days.
Thereafter, they went to Pantha Chowk in the house of maternal uncle of respondent No.2 where they stayed for 21-22 days.
Thereafter, the police came to the house of maternal uncle of respondent No.2 and brought her and respondent No.2 to Chamba.
She was produced before the Court and lateron sent to 'Balika Ashram' and she remained there for one night and thereafter her custody was handed over to her maternal aunt (Mami). Thereafter, she was produced before the doctor, but at the instance of respondent No.2, she refused to get her medically examined. Her statement under Section 161 Cr.P.C. was recorded by the police which was videographed. Her statement was also recorded in the Court vide Ext. PW-1/A. After about 6-7 days, she was again ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 18 produced before the Medical Officer and medically examined there.
This in entirety is the statement of PW-1 in examination-in-chief.
.
25. Now adverting to the statement of PW-1 in her cross-
examination where she stated that her statement was recorded by the police once or twice, but she did not remember the dates. She stated that she had not got her statement recorded before the police of or the Court that respondent No.2 had pressurized her to marry him.
She also admitted that she did not get recorded her statement rt before the police or the Court to the effect that respondent No.2 had threatened her in case she would not marry him or he would commit accident and put his hand in the electric transformer. She further admitted that she had not got recorded in her statement before the police or the Court that respondent No.2 had threatened her that he would upload her photographs in which she was shown kissing him in case she refused to marry with him. She further admitted that in her statement before the police or the Court, she had never disclosed that respondent No.2 had called her on 07.04.2014 below her house. Even though, she stated that she had got recorded the statement before the police and the Court that respondent No.2 had called her on 07.04.2014 below her house.
Confronted with the statement mark D-1 and Ext. PW-1/A, wherein it was not so recorded. She did not remember whether she had got ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 19 recorded in her statement before the police and the Court that 10-12 persons were there in the vehicle when she went with respondent .
No.2 near the school. She further stated in the statement recorded before the police and the Court that she along with respondent No.2 had stayed in the house of aunt of respondent No.2 for 1-2 hours.
However, when confronted with Mark D-1 and Ext. PW-1/A, wherein of it was not so recorded. Likewise, confronted with the story put up by her regarding 'Burqa' and admitted that she had not got recorded rt in her statement that during the period of one week, they stayed in the jungle and it was the parents of respondent No.2, who used to visit them in the jungle and gave them food. She also admitted that she had not got recorded before the police or the Court that cousin brother of respondent No.2 took her to Pathankot in a vehicle and respondent No.2 came in a bus and met her at Pathankot. She admitted portion 'A' to 'A' of her statement Ext. PW-1/A recorded before the Court, which reads as under:
" फर मने इनक बात नह ं मानी व खुद Phone करके उस लड़के को अपने घर बुलाया। वो लड़का आ नह ं रहा थI तो मने उसे धमक द क य द आप नह ं आए तो म आ मह या कर लँ ूगी । फर उ ह ने मुझे कहा क तेर उ कम है इस लए शाद न हो सकती है । फर मैने जबरद ती उ ह बुलाया। वो मुझे आधे रा ते मले व म उनके साथ चल गई|"::: Downloaded on - 06/09/2023 21:40:36 :::CIS 20
She also admitted to have stated portion 'B' to 'B' of her statement Ext. PW-1/A, which also reads as under:
.
"मेर बबलू के साथ शाद न हुई है । इसने मेरे साथ कोई गलत काम न ' कया। बबलू मुझे बहला फुसला कर न ले कर गया था।"
26. At this stage, it shall be apt to reproduce Sections 363 as also Section 366 IPC, which read as under:
of "363. Punishment for kidnapping.-Whoever kidnaps any person from India or from lawful guardianship, shall be rt punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
"366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; 2[and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid]"::: Downloaded on - 06/09/2023 21:40:36 :::CIS 21
27. It would be evidently clear from the statement of the appellant herself that she was neither abducted nor kidnapped or .
enticed by respondent No.2. Rather, statement of appellant recorded under Section 164 Cr.P.C. i.e. portions 'A' to 'A' and 'B' to B'. which have been admitted by her indicate that the appellant had accompanied respondent No.2 of her own free will and volition.
of
28. However, learned counsel for the appellant would argue that consent of a minor is no consent in the eyes of law and since rt the appellant was admittedly studying in school at the relevant time, she is presumed to be a minor, more especially, when her birth certificate Ext.PW-9/B reflects her date of birth to be 09.06.1998 whereas the offence had taken place on 07.04.2014 when the appellant was admittedly below 18 years of age.
29. It needs to be noticed that the sole document that has been produced on record by the prosecution to prove the age of the appellant is a document Ext. PW-9/B which is not a birth certificate as obtained from the Registrar, Births and Deaths, rather, the same is an extract of 'Parivar' register which by no means can be considered to be a birth certificate.
30. 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 ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 22 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 of Supreme Court in Vinod Kataria vs. State of U.P. AIR 2022 SC 4771."
31. rt Likewise, the other contention of the appellant that since she was studying in the school, therefore, she should be presumed to be a minor, has also been considered by us, in the aforesaid judgment, wherein the learned Special Judge had proceeded to take a judicial notice of the fact that since the prosecutrix was studying in school, therefore, she would be presumed to be a minor. Negating such findings, this Court observed as under:
"15. We have considered the aforesaid observations 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 learned Special Judge. Even otherwise, the aforesaid observations are based on surmises and conjectures without there being any reasonable basis for the same."::: Downloaded on - 06/09/2023 21:40:36 :::CIS 23
32. In the absence of any proof to establish that the appellant was minor on the date of alleged incident, it can .
conveniently be held that she was a major and was neither abducted nor kidnapped or enticed away by respondent No.2.
33. In the present case, what has to be considered, is the of fact as to whether there was involvement of respondent No.2 in forcibly enticing away the appellant from the lawful guardianship of rt her father or an active role in taking her away from that guardianship. From the material available on record, it can conveniently be held that the appellant was neither abducted nor kidnapped or enticed by respondent No.2, rather, the appellant out of her free will or volition accompanied respondent No.2 and remained with him for over a period of nearly 2 ½ months.
34. It needs to be observed that even though the appeal has been filed by the appellant after so called attaining majority, but no efforts were made by her during its pendency for more than six years to bring on record any contemporaneous official records to prove that on the alleged date of incident, she was minor.
::: Downloaded on - 06/09/2023 21:40:36 :::CIS 2435 Even if the appellant is presumed to be a minor, even then there is no proof that the minor was later on enticed away out of .
the keeping of the lawful guardians.
36 In S. Varadarajan vs. State of Madras, AIR 1965 SC, 942, the Hon'ble Supreme Court held as under:
of "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 rt 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 the other question raised before us and that is that "taking" of Savitri out of the keeping of her father has not been established. The offence of "kidnapping from lawful guardianship" is defined thus in the first paragraph of s. 361 of the Indian Penal Code :
"Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."
It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what, we have to find out is whether the part played by the appellant amounts to "taking", out of the keeping of the lawful guardian, of Savitri. We have no doubt that though Savitri had been left by S. Natarajan at the ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 25 house of his relative K. Natarajan ,She still continued to be in the lawful keeping of the former but then the question .
remains as to what is it which the appellant did that constitutes in law "taking". There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning of October 1st, she herself of 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 rt she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. There is no suggestion that the appellant took her to the Sub- Registrar's office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or ,anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her own side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping ,of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited -different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 26 consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever .
he went was of course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him.
of 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 rt good and what was bad for her. She was no uneducated or un- sophisticated village girl but a senior college student who had probably all her life lived in a modern city and was thus far more capable of thinking for herself and acting on her own than perhaps an unlettered girl hailing from a rural area.
The learned Judge of the High Court has referred to the decision In re : Abdul Sathar(1) in which it was held that where the evidence disclosed that, but for something which the accused consented to do and ultimately did, a minor girl would not have left her husband's house, or would not have been able to leave her husband's house, there was sufficient taking in law for the purpose of S. 363 and expressing agreement with this statement of the law observed: "In this case the minor, P.W. 4, would not have left the house but for the promise of the appellant that he would marry her." Quite apart from the question whether this amounts to blandishment we may point out that this is not based upon any evidence direct or otherwise. In Abdul Sathar's case(1) Srinivasa Aiyangar J., found that the girl whom the accused was charged with having kidnapped was desperately ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 27 anxious to leave her husband's house and even threatened to commit suicide if she was not taken away from there and .
observed :
"If a girl should have been wound up to such a pitch of hatred of her husband and of his house or household and she is found afterwards to have gone out of the keeping of her husband, her guardian, there must undoubtedly be clear and cogent evidence to show that she did not leave her of 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 rt the evidence and came to the conclusion that there was some legal evidence upon which a court of fact could find against the accused. This decision, therefore, is of little assistance in this case because, as already stated, every essential step was taken by Savitri herself : it was she who telephoned to the appellant and fixed the rendezvous, she walked up to that place herself and found the appellant waiting in the car; she got into the car of her own accord without the appellant asking her to step in and permitted the appellant to take her wherever he liked. Apparently, her one and only intention was to become 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 ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 28 a case like the present where the minor alleged to have been taken by the accused person left her father's protection .
knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused of person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian...."
rt
12.....It must be borne in mind that while ss. 497 and 498, I.P.C. are meant essentially for the protection of the rights of the husband,- s. 361 and other cognate sections of the Indian Penal Code are intended more for the protection of the minors and persons of unsound mind themselves than of the rights of the guardians of such persons. In this connection we may refer to the decision in State v.
Harbansing Kisansing, ILR (1954) Bom. 784: (AIR 1954 Bom. 339). In that case Gajendragadkar J., (as he then was) has, after pointing out what we have said above, observed:
"It may be that the mischief intended to be punished partly consists in the violation or the infringement of the guardians' right to keep their wards under their care and custody; but the more important object of these provisions undoubtedly is to afford security and protection to the wards themselves." (P. 944, 945 and 946)
37. 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:::: Downloaded on - 06/09/2023 21:40:36 :::CIS 29
"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 and privileges of guardians having the lawful charge or custody of 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 rt guardian. The words "takes or entices any minor........ out of the keeping of the lawful guardian of such minor" in s. 361, are. significant. The use of the word "keeping" in the context connotes the idea of charge, protection, maintenance and control : further the guardian's charge and control appears to be. compatible with the independence of action and movement in the minor, the guardian's protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial; it is only the guardian's consent 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 persuasion was held in some' English decision to ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 30 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 of necessarily by use of force or fraud. The word "entice" seems to involve the idea of inducement- or allurement, by giving rise to hope or desire in the other. This can take many rt forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success on the mental state of the person at the time when the inducement is intended to ,operate. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time, in achieving its ultimate purposes of successful inducement.
The two words "takes" and "entices', as 'used in s. 361, I.P.C. are, in our opinion, intended to be read together so that each takes to some extent its colour ,and content from the other. The statutory language suggests that if the minor leaves her parental home, completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in s. 361, I.P.C. But if the, 'guilty party has laid a foundation by inducement, allurement or threat, etc. and if this can be considered to have influenced the minor or weighed: with her in leaving her guardian's custody or keeping and going to the guilty party, then prima facie it would be, difficult for him to plead innocence on the ground ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 31 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 of facts and circumstances of each case. In the case before us, we cannot ignore the circumstances in which the appellant and Mohini came close to each other and the manner in rt which he is stated to have given her presents and tried to be intimate with her. The letters written by her to the appellant mainly in November, 1966 (Exhibit p. 20) and in December, 1966 (Exhibit p. 16) and- also the letter written by Mohini's mother to the appellant in September, 1966 (Exhibit p. 27) furnish very important and essential background in which the culminating incident of January 16th and 17th, 1967 has to be examined. These letters were taken into consideration by the High Court and in our opinion rightly. The suspicion entertained by Mohini's mother is also, in our opinion, relevant in considering the truth of the story as narrated by the prosecutrix. In fact, this letter indicates how the mother of the girl belonging to a comparatively poorer family felt when confronted with a rich man's dishonourable behaviour towards her young, impressionable, immature daughter; a man who also suggested to render financial help to her husband in time of need. These circumstances, among others, show that the main substratum of the story as revealed by Mohini in her evidence, is probable and trustworthy and it admits of no reasonable doubt as to its ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 32 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)
38. Thereafter, in Moniram Hazarika vs. State of Assam AIR 2004 SC 2472, the Hon'ble Supreme Court held as under:
of "Keeping in mind the above requirement of law, we will examine the facts of this case to find out whether two courts rt 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 ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 33 the house of the appellant. Thus two things are clear from this fact; one, that there was a promise of marriage and .
secondly, based on the said promise PW-2 went with the appellant. Of course, PW-2 had come out with the case that she had come out of the house to answer the call of nature when she was forcibly taken by the appellant which part of the prosecution case is not accepted. But the material on record, as stated above, shows that there was a promise of of marriage made to PW-2 which amounts to enticement of a minor because of which she had left the house of her lawful guardian. In this background, in our opinion, the courts below rt were justified in coming to the conclusion that the appellant had committed the offence punishable under Section 366 of IPC."
39. 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) ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 34
40. The view taken by the learned Court below is plausible and is not perverse and the same warrants no interference by this .
Court.
41. Consequently, we find no merit in this appeal and the same is accordingly dismissed.
Cr.M.P. Nos. 1076 to 1079 of 2018.
of
42. On 12.12.2017, this Court passed the following order:
"Heard for some time.
rt
2. Respondent No. 2, who was an accused in a case registered vide FIR No. 114/14, on 8th April, 2014, under Sections 363, 366 IPC and Section 8 of POCSO Act in Police Station Sadar, Chamba, has been acquitted of the charge so framed against him on the grounds inter alia that no evidence qua the age of the prosecutrix has been produced and the remaining evidence on record, including the statement of the prosecutrix, was suggestive of that she was a consenting party to her elopement with accused respondent No. 2.
3. Having gone through the record of this case, we are of the view that the Investigating Officer(s) did not collect the evidence qua the age of the prosecutrix and satisfied himself (themselves) by taking on record an extract of Parivar Register, which is Ex. PW9/B. PW11 Sub Inspector Shakini Kapoor has collected this certificate from PW9 Thakur Singh, the then Panchayat Secretary, Gram Panchayat Karian, Tehsil and District Chamba. When cross examined, PW11 has stated that he had not obtained the birth certificate of prosecutrix from Birth and Death Register nor tried to ascertain as to whether she had studied in school or not. He had also not obtained proof of the age of the prosecutrix from school record as the case file remained with him only for a day.
4. The main Investigating Officer of this case is PW15 Sub ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 35 Inspector Kamlesh Kumar. It was his duty to have collected the evidence qua the age of prosecutrix because the case against the accused, besides being under .
Sections 363 and 366 IPC, was also registered under Section 8 of the POCSO Act. No explanation is forthcoming as to why the Investigating Officer(s) has/have omitted to collect a material piece of evidence, i.e. proof of age of the prosecutrix in this case.
5. Learned counsel representing the applicant- victim has brought to our notice that the prosecutrix was studying in of school and as per the school record, her date of birth is 9th June, 1998. Meaning thereby that she was below sixteen years of age at the time of occurrence. The Investigating Officer, though, has stated in his statement that as per the investigation he rt conducted, the prosecutrix was studying in a school, however,failed to explain as to why he has not collected the proof qua her age from the school record. Had the birth certificate from school record or from the Birth and Death Register collected, would have legal and acceptable evidence qua her age. This Court is, thus, not satisfied with the investigation conducted in this case.
6. Therefore, we direct the Superintendent of Police, Chamba to call for the record of FIR No. 114/14 registered on 8th April, 2014, under Sections 363, 366 IPC and Section 8 of POCSO Act, from Police Station Sadar, Chamba, go through the same and file report on his affidavit that the investigation was conducted in a fair and impartial manner and if not, the reason(s) therefor. In case he is satisfied with the investigation conducted in this case, to give reason(s) therefor in the affidavit to be sworn in.
7. List on 9th January, 2018.
8. An authenticated copy of this order be supplied to the learned counsel for the parties for compliance."
43. It is pursuant to this order that Cr.M.Ps came to be registered and show cause notices came to be issued to the then ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 36 I.O., the SHO, Police Station, Chamba, Public Prosecutor, Chamba and Joint Director (Prosecution), Dharamshala.
.
44. Thereafter, on 20.03.2018, the Court passed the following orders:
"CrMP (M) No. 511 of 2017The affidavit filed by Superintendent of Police, Chamba, of discloses a sorrow state of affairs as the Investigating Officer, Sub Inspector Sakinni Kapoor, despite of the direction of Additional Superintendent of Police, Chamba, did not obtain the birth certificate of the prosecutrix either from birth and death register maintained by the Registrar rt (Birth and Death) nor from the school record and rather satisfied himself by obtaining the abstract of Parivar Register, which legally is not admissible nor can be taken as conclusive proof of the exact date of birth of a person.
2. Not only this, the then SHO, to whom the file, on completion of investigation, was handed over by Sakinni Kapoor aforesaid, has also not taken into consideration this aspect of the matter and prepared the challan. Challan, as per the contents of affidavit, was scrutinized by the Public Prosecutor and also the Joint Director (Prosecution), Dharamshala, District Kangra,however, it has also not struck to their mind that the abstract of Parivar Register could not have been believed to be the conclusive proof of the date of birth of the prosecutrix.
3. All these officers/officials were either negligent or they have omitted to collect reliable evidence qua the proof of age of the prosecutrix intentionally and deliberately. Their version in the matter, as such, is essentially required to go into this aspect of the matter further.
4. Learned Additional Advocate General to ensure that the names and present addresses of the Investigating Officer aforesaid (Sakinni Kapoor); the then SHO, Police Station Chamba; Public Prosecutor, Chamba and Joint Director (Prosecution), Dharamshala, are filed in the Registry of this Court within two weeks.::: Downloaded on - 06/09/2023 21:40:36 :::CIS 37
5. On having heard this application on merits, in view of what we have said in this order hereinabove, the present is a .
case which need adjudication on merits instead of dismissal of the appeal on the ground of limitation. Since accused respondent No. 2 hasbeen acquitted of the charge and as we are not satisfied in the manner the investigation is conducted, therefore, on this count also, the appeal preferred by the applicant, who is victim of the occurrence, need to be heard on merits.
of
6. The appeal, of course, is barred by 199 days, however, the same having been filed by the victim of the occurrence, who hails from rural area of District Chamba, the delay, so occurred, is not fatal and rather deserves to be condoned. The same otherwise stands also satisfactorily explained. The rt application, as such, is allowed. Consequently, the delay, as occurred in filing the appeal, is ordered to be condoned. The application is accordingly disposed of.
CrMP (M) No. 780 of 20177. Whether the victim of occurrence is required to seek leave to appeal particularly when nothing to this effect is there in the proviso to Section 372 of the Code of Criminal Procedure is a legal question which needs consideration.
List on 2nd April, 2018.
8. An authenticated copy of this order be supplied to the learned Additional Advocate General for compliance."
45. Later, vide order dated 02.04.2018, notices were ordered to be issued to the then SHO, Police Station, Chamba, Public Prosecutor, Chamba and the Joint Director (Prosecution), Dharamshala.
46. On 23.07.2018 upon entering appearance, separate proceedings against them came to be registered vide instant petitions. However, later, vide order dated 14.06.2019 another ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 38 Division Bench of this Court dropped the proceedings by passing the following orders:
.
"Since a valid explanation is meted by the notices to the show cause notice, thereupon the further proceedings against the Investigating Officer(s) concerned is/are not required to be drawn. Show cause notice is dropped. The applications stand disposed of."
of
47. However, later vide order dated 03.01.2020, the aforesaid order was ordered to be recalled and it was observed that rt these proceedings would be considered at the time of final hearing of the appeal.
48. As observed above, the main appeal is at the instance of the appellant (complainant), who admittedly was major at the time of filing of the appeal. However, she herself took no steps over a period of six years to bring on record any contemporaneous official records to show that on the date of alleged incident, she was minor.
48. As regards Public Prosecutor, he had retired at the time of issuance of show cause notice and has clearly stated that as per the scheme of the Code of Criminal Procedure, Investigating Officer at no stage of the investigation is legally obliged to take the opinion of a Public Prosecutor or any authority, except the superior police officer in the rank as envisaged under Section 36 of the Code. As such, when file pertaining to FIR No. 114 of 2014 dated 08.04.2014, ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 39 registered at Police Station, Chamba, came for scrutiny before filing the challan, then from the material available on record, it came to his .
notice that ASP, Chamba had specifically stated/written to the I.O.
concerned that birth certificate of the appellant should be obtained from the Registrar, Birth and Death or from the school records and since the concerned police officer in terms of Section 36 of the of Code was duty bound to collect and place the same on challan file, as such, he bonafidely gave his legal opinion in light of the rt statement of the appellant recorded under Section 164 Cr.P.C. He had further deposed that guidance be obtained from the Joint Director (Prosecution) N/Z, Dharamshala and, therefore, his entire action was bonafide.
50. As regards the then Joint Director (Prosecution), he too has retired and stated that the said lacuna had been pointed out by the Additional Superintendent of Police, Chamba and a direction had been issued to the Investigating Officer to obtain a copy of birth certificate from the Registrar, Birth and Death or from the school records and admitted that compliance of such direction was not made by the police official and the challan was put up in the Court. He has further stated that the police challans are scrutinized by the Public Prosecutors posted in the Office of the D.A.- cum-P.P. of the District as per rules and it is only in rare cases that the ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 40 matter is referred to the Joint Director when there is some confusion with respect to the legal position in some matters and probably this .
was the only case which had been referred to him for opinion from District Chamba during his 2½ years' tenure as Joint Director. He further stated that initially the challan had been scrutinized by Shri H.S. Dhiman, the then Public Prosecutor-cum-District Attorney, of Chamba, who gave his opinion in the matter which was supported by different judgments of the Hon'ble Supreme Court and observed rt that no offence was made out against respondent No.2. He further stated that he remained under bonafide impression that there was no other lacuna in the case and further stated that the Public Prosecutor had rightly stated that the challan was not fit to be sent to the Court because the appellant had herself shattered the prosecution case in her statement recorded under Section 164 Cr.P.C. and that the statement of the complainant or any other witnesses could be of no help in light of the statement of the appellant recorded under section 164 Cr.P.C. and despite this, challan had been forwarded to the Court.
51. Reply to the show cause notice on behalf of the Inspector Shakini Kapoor, the then Sub-Inspector-Investigating Officer reveals that initially investigation of the case was conducted by Mr. Kamlesh Kumar, Sub-Inspector, who investigated the matter ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 41 with effect from 08.04.2014 to 29.07.2014 and on his transfer, the investigation was entrusted to him. He had gone through the case .
file and found that his predecessor had not obtained any document demonstrating the age of the appellant/victim. Thereafter, with great diligence and promptness, he approached the Secretary, Gram Panchayat, Karian and instructed him to supply the relevant records of of the appellant demonstrating her date of birth. Pursuant to his request, the Secretary stated that birth and death register was not rt available with them and in order to ascertain the date of birth of the appellant, he tendered a copy of 'Parivar' register in which her date of birth was shown to be 09.06.1998. He bonafidely presuming that the 'Parivar' register was the sufficient document to ascertain/establish the age of the appellant had taken the same on record. He further claimed that even Thakur Singh, Panchayat Secretary, while entering into the witness box had categorically stated that birth and death register was not available with the Panchayat Office at the relevant time. Lastly, he claimed that after completion of the investigation, the case file was handed over to the SHO concerned, who after scrutinizing the same, found no ambiguity/shortcoming regarding the age of the appellant and further the case file was scrutinized by the District Attorney as well as Joint Director (Prosecution) and even while scrutinizing the challan ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 42 minutely, no deficiency/shortcoming regarding the age of the appellant was pointed out and ultimately the challan was filed in the .
competent court.
52. Now, adverting to the reply filed by Inspector Tilak Raj.
He stated that he had gone through the case file and on scrutiny found that the original documents regarding date of birth of victim of i.e. copy of birth certificate/an extract of birth and death register had not been placed on the case file and, therefore, he made an rt inquiry from SI Shakini Kapoor about it, who informed that he had made every effort to obtain the same from concerned Secretary of the Gram Panchayat, who disclosed that the same was not available with him. He further disclosed that to prove the date of birth, he had obtained the copy of 'Parivar' register and in that record the date of birth of appellant was found to have been mentioned as 09.06.1998.
53. In order to ascertain the bonafides of the respondents herein, we would essentially have to refer to the statement of the Secretary, Gram Panchayat, Karian, who appeared in the witness box as PW-9 and stated that on the request of the police, he had supplied the copy of 'Parivar' register Ext. PW-9/B. In his cross-
examination, he specifically stated that when a child is born, the entry of birth is recorded in the register of births and deaths and ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 43 thereafter this entry is incorporated in the 'Parivar' register. He further went to state that when he supplied the copy of the 'Parivar' .
register, he had not compared the same with the birth and death register because the same was not available in the Panchayat.
54. In such circumstances, the respondents could not have been asked to perform the impossible by procuring the birth of certificate from the register of births and deaths. Moreover, the Court cannot be oblivious to the conduct of the appellant, who rt showed no indication or signs of pursuing the case, as is evident from her statement recorded under Section 164 Cr.P.C. Therefore, the Public Prosecutor, in the given facts and circumstances, was absolutely right in advising against putting up of challan and had advised the police to put up the challan before the Joint Director (Prosecution).
55. Obviously, in such circumstances, when the appellant herself had not stated anything whereby the offences under Sections 363 and 366 of IPC could have been invoked and rather stated that she herself had given threatening to respondent No.2 that she would commit suicide in case he did not come to take her and further stated that respondent No.2 had committed nothing wrong with her. The filing of the challan itself in the Court was totally ill-advised and the Court has no hesitation to conclude that ::: Downloaded on - 06/09/2023 21:40:36 :::CIS 44 the respondents herein had put in their best efforts and procured all the necessary documents that were within their reach and tried to .
support the case of the prosecution.
56. In the given facts and circumstances, we deem it to be a fit case where the show cause notices need to be dropped and the proceedings initiated against them also need to be dropped.
of Ordered accordingly.
57. Accordingly, the Cr.M.P. Nos.1076 to 1079 of 2018 rt stand disposed of.
(Tarlok Singh Chauhan) Judge (Ranjan Sharma) Judge 5th September, 2023.
(krt) ::: Downloaded on - 06/09/2023 21:40:36 :::CIS