Himachal Pradesh High Court
Chanchal Dev Alias Panku vs State Of Himachal Pradesh on 20 October, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 20 of 2019 Reserved on: 18.10.2023 .
Decided on: 20.10.2023
Chanchal Dev alias Panku
........Appellant
Versus
State of Himachal Pradesh
.......Respondent
Coram
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge, of Hon'ble Mr. Justice Ranjan Sharma, Judge. WHETHER APPROVED FOR REPORTING? No For the petitioner : Mr. N.S. Chandel, Senior rt Advocate with Mr. Pranav Sharma, Advocate.
For the respondents: Mr. Anup Rattan, Advocate General with Mr. Y.W. Chauhan, Mr. I.N. Mehta, Senior Additional Advocates General and Ms. Sharmila Patial, Additional Advocate General.
Tarlok Singh Chauhan, Judge The appellant has been convicted and sentenced under Sections 363, 366-A and 376 of Indian Penal Code (hereinafter referred to as 'IPC') and Section 6 of the Protection of Children from Sexual Offences Act (hereinafter referred to as 'POCSO Act') and aggrieved thereby has filed the instant appeal.
2. The case of the prosecution in brief is that one Smt. Shakuntla Devi filed a complaint with SHO, Police ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 2 Station, Bhoranj, alleging therein that her eldest daughter (the victim) was residing in her parental house in District Hamirpur with her mother and studying in 10+2 in School .
at Bharari. On 27.05.2017 when she was at her home, in the evening she received a telephonic call from her daughter from mobile No.70187-77352 from one boy on her mobile number 98827-23411 and that she does not of want to study in the school where she was studying and that she does not want reside with her maternal grand-
rt mother and wants to come back to reside in village at Kalbog (Kotkhai).
3. It is further averred that on 28.07.2017 the complainant had visited her mother at Hamirpur and thereafter contacted mobile No. 70187-77352 from mobile on which the recipient of the call disclosed his name as Panku and said that he acquainted with her daughter and had been making telephonic calls to her for the last 3-4 months.
4. On 29.05.2017 at about 12:00 Noon, the complainant had gone to the school to obtain the school leaving certificate of victim and at that time her daughter was at the house of her mother, however, when she ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 3 returned from school, her daughter was not found to be there. She searched her in the neighborhood and relations, but she could not be traced her daughter. She further .
deposed that her daughter was 16 years of age and she is confident that she may be kidnapped by the appellant Panku by alluring her and prayed that the legal action be taken.
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5. On the basis of complaint, police registered the FIR No.67 of 2017 initially under Sections 363 and 366-A rt of the Indian Penal Code.
6. During investigation, the victim and the appellant were searched but to no avail. However, on 10.06.2017 both victim and appellant were found to be sitting in the Rain-Shelter at Sulgwan (Jahu) and on being identified were recovered. The spot was inspected and spot map was prepared to this effect under videography. The statement of victim was got recorded through Lady Constable Milan Kumari in presence of the mother of the victim under videography. Statements of the witnesses under Section 161 Cr.P.C were also recorded by the Investigating Officer. The victim was taken to CH Bhoranj for her medical examination, where she refused to undergo ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 4 the same before Medical Officer and MLC was obtained.
The appellant was thereafter arrested and information to this effect was given to his father.
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7. On 12.06.2017, the statement of the victim was got recorded under Section 164 Cr.P.C before the learned ACJM, Hamirpur. On the basis of the said statement, the appellant then charged for commission of offence under of Sections 376 and 506 of the Indian Penal Code and under Section 6 of the POCSO Act, in which she disclosed that rt the appellant had taken her to Tiwadi Colony, Haridawar where near a railway crossing he had taken a room on rent and committed rape with her and wanted to get herself medically examined. The victim was accordingly taken to C.H. Bhoranj and got medically examined and thereafter MLC was obtained. The clothes of victim i.e. shirt, under-
shirt, Pyjami, underwear and dupatta (Ext. P6 to Ext.P10) were recovered in a cloth parcel Ext.P11 and handed over to the police. The appellant was also got medically examined at C.H. Bhoranj and MLC was obtained. The Medical Officer had taken the samples of pubic swab, pubic hair and blood on FTA card and clothes i.e. underwear, T-shirt and Banyan Ext. P13 to Ext. P16 sealed ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 5 in a cloth parcel Ext.P12 and handed over the same to the police. The blood samples of the victim and the appellant were taken on FTA card for DNA profiling and sent to RFSL .
Mandi. A copy of matriculation certificate of victim and date of birth certificate was obtained from Gram Panchayat, Kalbog, according to which her date of birth was 15.04.2001 meaning thereby she was aged about 16 of years and 1½ months on the date of alleged incident.
8. During further investigation, the victim rt identified the room at Tiwadi Colony, Haridwar in presence of witnesses where the appellant is alleged to have kept her from 30.05.2017 to 08.06.2017. On her identification, the spot plan was prepared under videography. The bed-sheet Ext.P1 was sealed in a cloth parcel Ext.P2 and taken into possession vide separate memo. The clothes of the victim i.e. shirt, salwar and underwear Ext.P3 to Ext.P5 that were lying in the room were sealed in cloth parcel Ext.P6 and taken into possession vide a separate memo. The case property was sent to RFSL, Mandi from where the report Ext.PX was obtained.
9. During further investigation, the Investigating Officer also took into possession the hired Taxi alongwith ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 6 documents vide separate memo. It is found during the investigation that appellant had been running a Karyana shop at B (name withheld) Bazar where he used to meet .
the victim and would asked her to flee from the house in order to get married and that is why on 29.05.2017, the appellant had allured the victim and hired a private car and taken her initially to Bilaspur and from there to of Chandigarh and lastly to Haridwar where the appellant had taken a room on rent in Tiwadi Colony near railway crossing rt and kept her there from 30.05.2017 to 08.06.2017 and committed sexual intercourse with her repeatedly.
10. The Court having found a prima facie case framed charges under Sections 363, 366-A, 376 and 506 of IPC and Section 6 of the POCSO Act, 2012 to which the appellant pleaded not guilty and claimed trial.
11. The prosecution examined 19 witnesses and on completion of the prosecution evidence, the entire incriminating circumstances and evidence were put to the appellant. His statement under Section 313 Cr.P.C was recorded wherein he denied the prosecution evidence in toto and stated that all the witnesses have deposed falsely ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 7 and he was innocent. He however admitted that he and victim were friends and the victim herself proposed to marry with him, but his father had refused for the .
marriage since the victim was minor. However, the appellant did not lead any evidence in his defence.
12. The learned Trial Court after recording the evidence and after evaluating the oral and documentary of evidence on record convicted and sentenced the appellant to undergo Rigorous imprisonment for 3 years and to pay a rt fine of Rs.3,000/- and in default of payment of fine to undergo Simple imprisonment for 6 months for the offence under Section 363 IPC. Since Section 376 IPC and Section 6 of POCSO Act are the same offence qua committing of sexual intercourse and the legislation has made special enactment for the protection of minor children known as the Protection of Children from Sexual Offences Act, 2012, therefore, the appellant is sentenced to undergo Rigorous imprisonment for 10 years and to pay a fine of Rs.10,000/-
and in default of fine, to undergo simple imprisonment for one year for the offence punishable under Section 6 of the POCSO Act, being special enactment and appellant is not ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 8 required to be sentenced for the offence under Section 376 IPC.
13. It is vehemently argued by Sh. N.S. Chandel .
learned Senior Counsel assisted by Mr. Pranav Sharma, Advocate that the finding of conviction recorded by learned court below are totally perverse and, therefore, the same deserves to be set aside.
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14. On the other hand, Ms. Sharmila Patial, learned Additional Advocate General would argued that the rt findings recorded by the learned Court below are in tune with the evidence that has come on record and, therefore, warrants no interference.
15. We have heard the learned counsel for the parties and have gone through the material available on record.
16. In order to appreciate the rival contentions it would be necessary to go through the oral as well as documentary evidence that has come on record.
Complainant Smt. Shakuntala Devi has been examined as PW-1 and has stated that at the relevant time her daughter was student of 10+2 class and had been kidnapped by the appellant on 29.05.2017 and taken to Haridawar. She had ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 9 reported the matter vide complaint Ext.PW1/A and at that time she was not aware that the appellant had already kidnapped her daughter. The father of appellant had also .
lodged the missing report of his son. Her daughter and the appellant were brought by the police after 10 days on 10.06.2017 and police had got her daughter medically examined. She further deposed that her daughter had of disclosed that appellant had done "wrong work with her".
Her daughter was 16 years of age at the time of incident.
She rt further deposed that her daughter received a telephonic call on 28.05.2017. The police had got identified her daughter vide memo Ext.PW1/B and given on spurdari vide memo Ext. PW1/C. Her statement was recorded under videography. The statement of her daughter was got recorded before Magistrate, Court No.1, Hamirpur by the police. She stated that her daughter narrated the incident to her. She was taken to Haridwar by the police alongwith her daughter. She identified the bed-sheet Ext.P1 which was sealed in cloth parcel Ext.P2. She also identified her clothes i.e. one shirt Ext.P3, one Salwar Ext.P4, one underwear Ext.P5, which were lying in the room that had been taken on rent by the appellant.
::: Downloaded on - 20/10/2023 20:42:57 :::CIS 1017. Upon her cross-examination, this witness stated that her statement was recorded when the police had brought both of them from Haridwar and the same .
had been videographed. She admitted that her daughter had refused for her medical examination on 10.06.2017.
She however admitted that her daughter had given the statement that she had not been sexually assaulted by the of appellant. She did not remember the person who had written the complaint. It is the police who had told about rt the recording of her statement before the Magistrate. She further denied that the complaint Ext.PW1/A had been lodged under the pressure of her parents and brother. She has denied the other suggestions but admitted that the cloths of her daughter were also taken into possession by the doctors.
18. The victim was examined as PW-2 and stated that she was student of 10+2 and her Date of Birth was 15.04.2000. She further deposed that the appellant was her friend for the last two years after 10th class and was running a shop near the school. The appellant had proposed her for marriage by way of elopement. On 29.05.2017, the appellant had asked her to visit Haridwar ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 11 for solemnizing marriage. The appellant had taken her in vehicle up to Kandrour (Bilaspur) where they both had thrown their mobile phones in the river. She further .
deposed that thereafter they were brought by the driver to Bilaspur and then the appellant took her in a bus to Chandigarh and from there to Haridawar. The appellant had taken a room on rent at Haridawar and remained of there from 30.05.2017 to 08.06.2017. The appellant had contacted his family members from STD and they had rt come to know that their parents had lodged the police reports, then they returned from Haridwar and the police caught them at Sulgan bus-stop. She was identified by her mother and handed over to her. Firstly, she refused to get herself medically examined, thereafter she was got medically examined by the police on 12.06.2017. Her statement Ext.PW2/A was got recorded before the Magistrate by the police. The appellant had committed sexual intercourse with her many times off and on during their stay at Haridawar. Her statement was recorded by the police under videography. Police had taken her to Haridawar where she had shown the room to the police and the police in turn had taken into possession a bed ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 12 sheet Ext.P1 which is sealed in cloth parcel Ext.P2 vide memo Ext.PW2/B. Her shirt Ext.P3, Salwar Ext.P4 and underwear Ext.P5 were also taken into possession vide .
memo Ext.PW1/D. Her clothes were also sealed in a cloth parcel. The police had taken into possession the vehicle which was got identified by her vide memo Ext.PW2/C, in which the appellant had taken her up to Bilaspur. Doctor of had taken her clothes during medical examination which were also sealed in a cloth parcel. She identified the cloth rt parcel and her shirt Ext.P6, under-shirt Ext.P7, Pyjami Ext.P8, underwear Ext.P9 and dupatta Ext.P10.
19. In cross-examination, the victim stated that the family members were not aware about her friendship with the appellant. She further stated that her statement was recorded on 10.06.2017 at Sulgan and admitted that her statement had been recorded under the videography. On that day, they had gone to the house of her maternal grand-mother. She further deposed that the police used to call them to the police station on alternate days and she had been called by the police 2-3 times even after her medical examination. She further deposed that the driver was not known to her. She admitted that she had not cried ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 13 for help when the appellant had taken her. She further admitted that she had boarded the vehicle as per her own wish. She further deposed that she had not got recorded in .
her statement that the appellant had committed sexual intercourse on alternate days. She further admitted that she had not disclosed this fact to anybody that the appellant had done wrong act with her many times. She of admitted that she had given statement to the police subsequently under the pressure of her relatives. She rt further admitted that the parents of the appellant had said that her marriage could not be solemnized at this stage since she was minor.
20. PW-3 Smt. Anuradha is the Mami of the victim in whose house she had been residing at the relevant time, but her testimony is based on hearsay and otherwise also she have been declared hostile and when cross-examined by learned Public Prosecutor denied the suggestion that she has given the statement to the police that the appellant used to have telephonic conversation with the victim and she had suspected that the victim might have eloped with him.
::: Downloaded on - 20/10/2023 20:42:57 :::CIS 1421. PW-4 Lady Constable Milan Kumari stated that on 10.06.2017, the victim was recovered from Sulgwan rain-shelter with the appellant and recovery memo .
regarding the identification of the victim Ext.PW-1/B vide which she was identified by her mother vide memo Ext.PW-1/C. The victim was handed over to her mother and she had brought the victim before the Court of ACJM, of Hamirpur on 12.06.2017. Her statement has been recorded as per the dictation of the victim on 17.06.2017.
rt She had taken the victim for taking the blood sample on FTA card to CHC Bhoranj. The Doctor had taken blood sample on FTA card, which she deposited with the MHC alongwith envelope.
22. In cross-examination, she admitted that the statement of the victim had been recorded in presence of her mother on 10.06.2017. She admitted that her statement was recorded under videography. She further admitted that the victim had given statement that the appellant had not done any wrong work with her. She further admitted that the victim had refused to get herself medically examined.
::: Downloaded on - 20/10/2023 20:42:57 :::CIS 1523. PW-5 Constable Ashok Kumar stated that on 10.06.2017 he had conducted the videography when the statement of the victim was recorded by ASI Chaman Lal .
through LC Milan Kumari. He prepared the CD Ext.
PW5/A of the videography. On 07.08.2017 he had been deputed by the MHC to bring the report from RFSL, Mandi which he brought and handed over to the MHC.
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24. In cross-examination, he admitted that the victim had given her statement voluntarily to ASI Chaman Lal.
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25. PW-6 Ms. Meena Kumari was Pradhan of the Gram Panchayat at the relevant time and stated that on 10.06.2017 she was telephonically called by the maternal uncle of the victim and she had accompanied him for her search alongwith police. She further deposed that both the appellant and victim were caught by the police in the rain shelter of Sulghan bus-stand. Lady Constable had recorded the statement of the victim wherein she stated that the appellant taken her to Haridwar on the pretext of marriage on 29.05.2017. She further stated that the statement of the victim was recorded under the videography.
::: Downloaded on - 20/10/2023 20:42:57 :::CIS 1626. On being cross-examined, she failed ignorance regarding statement having been given by the victim that the appellant had not done any wrong work with her.
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27. PW-7 LC Jyoti Devi stated that on 12.06.2017 she has recorded the statement of the victim in presence of her mother at Police Station Bhoranj under videography.
She was associated by the I.O in the investigation.
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28. In cross-examination she denied that she had not recorded the correct version of the statement as given rt by the victim and further denied the suggestion that she has recorded the statement of the victim under tutoring by the police and mother of victim.
29. PW-8 LC Sakshi Komal stated that she had taken the victim for medical examination on 13.06.2017 and got her medically examined and obtained MLC. He further deposed that the parcels and samples given by the Doctor were deposited with the MHC.
30. On being cross-examined, she denied that the parcel had been handed over to her by the Doctor.
31. PW-9 Titu stated that the appellant had taken a room on rent from him on 30.05.2017 and had told him that the victim was his wife and he stayed with her in the ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 17 room. On 30.05.2017 to 08.06.2017 both of them had stayed in the room and they left the room on the pretext that they would return after 10 days. Thereafter, the police .
came to his house with the victim. He further stated that he did not remember that any bed-sheet has been taken into possession by the police, but admitted his signatures on Ext.PW-2/B at this stage, he was declared hostile and of permitted to be cross-examined by the prosecution.
32. In his cross-examination, he denied that the rt bed-sheet Ext.P1 has been taken into possession by the police on the identification of the victim. He further denied the suggestion that parcel Ext.P2 was containing his signatures. He admitted that the memo Ext. PW-2/B contained his signatures.
33. Being cross-examined by the defence counsel, this witness stated that when the police came there, the room was locked and the police opened the room. The victim had not told him that she had eloped with the appellant and admitted that his house was situated in the densely populated area. He further stated that he had not issued any receipt of rent to the appellant.
::: Downloaded on - 20/10/2023 20:42:57 :::CIS 1834. PW-10 Constable Manoj Kumar, accompanied ASI Chaman Lal to Haridwar along with LC Jyoti Devi and the victim. He stated that on demarcation of victim, one .
bed-sheet Ext.P1 has been taken into possession from the rented premises which have been sealed in a cloth parcel Ext.P2 and thereafter the clothes of the victim had been recovered. Even though this witness was cross-examined, of however, nothing could be elicited from him.
35. PW-11 Sh. Sunil Kumar is the Mama of the rt victim and stated that his sister had telephonically asked him to obtain school leaving certificate as the victim did not want to study in the school at B. He alongwith their sister had brought the school leaving certificate of the victim on 29.05.2017. He further deposed that his wife was in the house however, the victim was found to be missing.
His sister telephonically called the appellant as previously the victim had disclosed to her mother the mobile number of the appellant. The appellant had disclosed his name Panku but he is unaware about the conversation that had taken place between them. He further deposed that on 30.05.2017, the matter was reported to the police who in turn had told him that the appellant and the victim had ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 19 been recovered by them from the rain shelter. He further deposed that he had informed the Pardhan and gone to the spot where the police had prepared the recovery memo .
Ext. PW1/B containing his signatures.
36. On being cross-examined, this witness stated that the statement of the victim and her mother were recorded in the Police Station on 10.06.2017, but the same of were not recovered in his presence. He further stated that no statement was recorded in his presence at Sulgwan. He rt admitted that the victim had never disclosed to him about the appellant.
37. PW-12 Constable Sanjeev Kumar had taken the appellant for medical examination and stated that the Doctor had medically examined the appellant and handed over to him three parcels alongwith FTA card which in turn was deposited with the MHC on 12.06.2017. He further proposed that the taxi of Ajit Kumar (name withheld) was taken into possession and the same had been hired by the appellant which he had taken from B Bazar vide memo Ext. PW2/C.
38. On being cross-examined, the witness denied the suggestion that no vehicle has been taken into ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 20 possession and he further denied that he had not taken the appellant to CH nor had he deposited anything.
39. PW-13 Rajinder Singh Secretary, Gram .
Panchayat has stated that on the application of the police Ext.PW13/A, he had prepared the Birth Certificate of the victim Ext.PW13/B from the Birth and Death Register and abstract of family Ext.PW-13/C. The date of birth of the of victim was 15.04.2001 as per record. He had also brought the original birth and death register which was seen and rt then returned by the Court.
40. On being cross-examined, he admitted that the entries had not been recorded by him.
41. PW-14 Sh. Ajit Kumar, stated that he was running his own taxi and the appellant was personally known him as he was running a Karyana shop at B bazar.
He did not remember the date, but the appellant had hired his taxi in the month of May, 2017 from Bharari to Bilaspur. The victim had boarded the taxi from A (name withheld) which is five kilometers from B Bazar thereafter the appellant had boarded the taxi at B and in turn had dropped them at Bilaspur. The police had taken into possession his taxi vide memo Ext.PW2/C. ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 21
42. On being cross-examined, this witness stated that the victim had not made any hue and cry while boarding the taxi.
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43. PW-15 Dr. Ruchi Sharma stated that on 12.06.2017 the victim had been brought for her medical examination with the application Ext.PW15/A. She medically examined the victim and issued MLC of Ext.PW15/B. The victim was brought with the alleged history that she had gone to Chandigarh and Haridwar rt with appellant on 29.05.2017. She further stated that on general physical examination secondary sexual characters were well developed, no external injury mark was visible over any part of her body. Aerola dark colour. On internal examination, no injury mark over genital area including vulval and parienal region, thigh. No seminal or blood stains were visible over the parienal region and pubic hair.
No tenderness was found. Labia majora flashy and not covering labia minora completely. She was mensurating at the time of examination. Fourchette found torn. Hymen was also found torn. Vaginal walls were smooth, anterior and posterior vaginal walls were normal. She was habitual.
Forcibly sexual intercourse cannot be ruled out and her ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 22 final opinion remained the same. She has stated that she had taken the samples of vaginal slide and vaginal swab and garments, 5ml. of clotted blood and pubic hairs were .
sealed and handed over to the police. On the same day, she had medically examined the appellant on application Ext.PW15/C and issued MLC Ext.PW15/D and appellant was found capable of doing sexual intercourse. She further of stated that she had taken the samples of pubic swab, pubic hair, blood on FTA card and garments which were rt sealed and handed over to the police. She identified the parcel Ext.PW12, underwear Ext.P13 and Ext.P14 and T-
shirt Ext.P15 and banian Ext.P16 to be the same which had been sealed at the time of examination.
44. On being cross-examined, she admitted that she had not mentioned in the MLC regarding the duration of sexual intercourse with the victim and voluntarily stated that such type of opinion cannot be given. She further admitted that there is no injury on the private part and, therefore, no opinion could be formed regarding sexual intercourse with the victim. She also admitted that the hymen could be ruptured by cycling or any other exercise.
::: Downloaded on - 20/10/2023 20:42:57 :::CIS 23She admitted that there was no sexual activity found from the RFSL report.
45. PW-16 Constable Anup Kumar stated that MHC .
Rakesh Kumar vide RC No.127/17, dated 23.06.2017 Ext.PW16/A had taken the case property to RFSL Mandi and after depositing the same had handed over the receipt to the MHC.
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46. PW-17 ASI Chaman Lal, is the Investigating Officer who stated that the case file of the instant case had rt been handed over to him on 30.05.2017 for investigation.
On 31.05.2017 he recorded the statements of complainant Shakuntla and witnesses Sunil Kumar and Anuradha vide Ext.PW17/A, as per their version. The victim was searched, but on 10.06.2017 the victim and the appellant were recovered from the Rain Shelter and he had prepared the recovery memo Ext. PW1/B and prepared the spot plan Ext.PW17/B. The statement of the victim was got recorded through LC Milan Kumari under the videography done by HHC Ashok Kumar. The victim was handed over to her parents vide sapurdarinama Ext.PW1/C. The victim and the appellant were got medically examined and thereafter the respective MLCs were obtained. He filed an application ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 24 Ext.PW17/C and got recorded the statement of the victim under Section 164 Cr.P.C Ext.PW2/A before the learned ACJM Hamirpur. Again the supplementary statement of .
the victim was recorded on 12.06.2017 and he also recorded the statements of other witnesses, as per their version. On 14.06.2017, he had gone to Haridwar and on the demarcation of the victim prepared the spot plan of Ext.PW17/D of the room where the appellant had kept the victim for about eight days by taking room on rent. He rt further deposed that one bed-sheet Ext.P1 was taken into possession and sealed in parcel Ext.P2 and memo Ext.
PW-2/B was prepared. The clothes of victim i.e. shirt Ext.P3, salwar Ext.P4 and underwear Ext.P5 which were lying in room were also taken into possession and sealed in parcel Ext.P6 and memo Ext.PW1/D was prepared. He had drawn the sample seal Ext.PW10/A on separate piece of cloth and all the proceedings at Haridwar had been videographed and CD Ext.PW5/A was prepared from the memory card. He recorded the statement of the witnesses, victim, Constable Manoj and Titu, landlord of the room vide Ext. PW17/E. The blood sample of the victim was taken on FTA card for DNA profiling on 17.06.2017. He ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 25 had obtained the birth record of victim from gram Panchayat Kalbog, Kotkhai. He had also recorded the statement of the witnesses. He had taken the copy of RC .
and Malkhana Register alongwith RFSL report. On completion of investigation, he handed over the case file to the SHO for preparation of challan.
47. On being cross-examined, he admitted that on of 10.06.2017 Shakuntla Devi and the victim had given the statement that no wrong work was done with the victim rt nor physical relations were made by the appellant with her. He admitted that their statements were recorded under videography at Sulghan. He admitted that on 16.10.2017 medical examination of the victim and appellant have been conducted. He stated that on 12.06.2017 the supplementary statement of victim was recorded at the Police Station Bhoranj. He admitted that the appellant had not been taken to Haridwar. He further stated that the room at Haridwar was locked which was opened by taking its key from landlord Titu. He has stated that the supplementary statement of the victim was recorded prior to her statement under Section 164 Cr.P.C.
::: Downloaded on - 20/10/2023 20:42:57 :::CIS 2648. PW-18 Inspector Chhota Ram was the SHO at the relevant time and has stated that on the application of complainant Ext.PW1/A, he had recorded the FIR .
Ext.PW18/A and the investigation was then handed over to ASI Chaman Lal. On completion of investigation, he had prepared the challan and presented the same in the Court through HC Ashwani Kumar.
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49. PW-19 HC Rakesh Kumar stated that he was posted as MHC Police Station Bhoranj and on 13.06.2017 rt LC Shakshi Komal had deposited with him in the Malkhana 5 parcels along with one envelope addressed to RFSL Mandi which were entered at serial No.70/768 and abstract thereof is Ext.PW19/A. On the same day, Constable Sanjeev Kumar had deposited one parcel with two envelopes addressed to RFSL Mandi and one parcel containing the blood sample on FTA card which he had entered at serial No.71/769 as per abstract Ext.PW19/B. On 15.06.2017, ASI Chaman Lal had deposited with him two parcels which he had entered at serial No.72/770 as abstract Ext.PW19/C. On 17.06.2017, LC Milan Kumari had deposited FTA card containing blood sample of victim which he entered at serial No.73/771 as per abstract ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 27 Ext.PW19/D. On 23.06.2017, vide RC No.127/17 Ext.PW-
19/E, he had sent the case property to RFSL Mandi through Constable Anup Kumar. He further stated that he .
brought the original Malkhana and RC Registers which was sent and returned by the Court.
50. On being cross-examined, he denied the suggestion that no parcel has been deposited with him and of further denied the suggestion that the records had been fabricated in connivance with the Investigating Officer.
rt This is the entire evidence of the prosecution.
51. Now adverting to the submissions of Mr. N.S. Chandel learned Senior Counsel assisted by Mr. Pranav Sharma, Advocate, for the appellant that the findings as recorded by the court below are perverse, it needs to be noticed that it has been specifically admitted by PW-1 Shakuntala Devi, mother of the victim that her daughter had refused for her medical examination on 10.06.2017 and she had further admitted that her daughter had given statement that she had not been sexually assaulted by the appellant.
52. As regards the victim, nodoubt in examination-
in-chief she has stated that the appellant had committed ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 28 sexual intercourse with her so many times off and on during their stay at Haridwar, but she had not used the expression rape or forcible sexual intercourse. That apart, .
in her cross-examination she had clearly stated that she had not got recorded in her statement that the appellant had committed sexual intercourse with her in alternate days and further admitted that she had not disclosed this of fact to anybody that the appellant had done any wrong act with her many times. She has further admitted that she rt had given the statement to the police subsequently under the pressure of her relatives. Lastly, she admitted that it was the parents of the appellant who had said that her marriage could not be solemnized with the appellant as she was minor. The version as put forthwith by the victim is similar to the one as stated by the mother while appearing as PW-2.
53. Even the testimony of PW-4 clearly establishes that the appellant had not done anything wrong with the victim when he admits that the victim had given statement that the appellant had not done any wrong work with her and further stated that the victim had refused to get herself medically examined.
::: Downloaded on - 20/10/2023 20:42:57 :::CIS 2954. Even the Investigating Officer PW-17 ASI Chaman Lal in his cross-examination has clearly admitted that on 10.06.2017 Smt. Shukantala Devi and the victim .
had given their statements that no wrong work was done with the victim nor physical relation were made by the appellant with her.
55. In addition to the above, there is no proof of whatsoever and even the medical evidence does not in any way establish the offence of rape under Section 376 of the rt IPC for that matter and under Section 6 of the POCSO Act.
56. As regards the offence under Sections 363, 366-A and 506 of IPC, it would be relevant to firstly reproduce the aforesaid sections which read as under:-
"Section 363. Punishment for kidnapping- Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 366-A Procuration of minor girl:-
Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 30 imprisonment which may extend to ten years, and shall also be liable to fine.
Section 506. Punishment for criminal intimidation:- Whoever commits, the offence of .
criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc.--And if the threat be to cause death or grievous hurt, or to cause the destruction of any of property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to rt seven years, or to impute, unchastely to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
55. Adverting to the testimony of the victim, it would not be noticed that she has nowhere stated that she was either abducted or kidnapped or enticed or criminally intimidated by the appellant rather the version i.e. come on record is that the victim and appellant were friends for the last two years and the victim had accompanied the appellant to Kandarour, Bilaspur, Chandigarh and thereafter to Haridwar where they resided together from 30.05.2017 to 08.06.2017. During that time, no complaint was lodged by the victim and even later the victim when apprehended on 10.06.2017 had no grievance against the ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 31 appellant and that is why she clearly and categorically refused to get her medical examination conducted and further unequivocally stated that she had not been .
sexually assaulted by the appellant.
57. The appellant admittedly was a minor under the guardianship of her grandmother but she of her own accompanied the appellant, can the offence under Sections of 363, 366-A and 506 of IPC be said to have been proved?
58. In order to answer this question, one would rt have to fall back on the decision of three judge Bench of Hon'ble Supreme Court in S. Varadarajan vs. State of Madras, AIR 1965 SC, 942, the Hon'ble Supreme Court held as under:
"7.The question whether a minor can abandon the guardianship of his or her own guardian and if so the further question whether Savitri could, in acting as she did, be said to have abandoned her father's guardianship may perhaps not be very easy to answer. Fortunately, however, it is not necessary for us to answer either of them upon the view which we take on 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 :
::: Downloaded on - 20/10/2023 20:42:57 :::CIS 32"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 of 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 rt though Savitri had been left by S. Natarajan at the house of his relative K. Natarajan ,She still continued to be in the lawful keeping of the former but then the question remains as to what is it which the appellant did that constitutes in law "taking". There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. There is no suggestion that the ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 33 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 of 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 rt be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was of course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her. She ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 34 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 of 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. rt 363 and expressing agreement statement of the law observed: "In this case the with this minor, P.W. 4, would not have left the house but for the promise of the appellant that he would marry her." Quite apart from the question whether this amounts to blandishment we may point out that this is not based upon any evidence direct or otherwise. In Abdul Sathar's case(1) Srinivasa Aiyangar J., found that the girl whom the accused was charged with having kidnapped was desperately anxious to leave her husband's house and even threatened to commit suicide if she was not taken away from there and observed :
"If a girl should have been wound up to such a pitch of hatred of her husband and of his house or household and she is found afterwards to have gone out of the keeping of her husband, her guardian, there must undoubtedly be clear and cogent evidence to show that she did not leave her husband's house herself and that her leaving was in some manner caused or ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 35 brought about by something that the accused did."
In the light of this observation the learned Judge considered the evidence and came to the conclusion that there was some legal evidence .
upon which a court of fact could find against the accused. This decision, therefore, is of little assistance in this case because, as already stated, every essential step was taken by Savitri herself : it was she who telephoned to the appellant and fixed the rendezvous, she walked of 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 rt he liked. Apparently, her one and only intention was to become the appellant's wife and thus be in a position to be always with him.....
9. It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of s. 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 36 kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the .
guardian...."
12.....It must be borne in mind that while ss. 497 and 498, I.P.C. are meant essentially for the protection of the rights of the husband,- s. 361 and other cognate sections of the Indian Penal Code are intended more for the protection of the minors and persons of unsound mind themselves of 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 rt (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:
"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:::: Downloaded on - 20/10/2023 20:42:57 :::CIS 37
"The object of this section seems as much to protect the minor children from being seduced for improper purposes as. to protect the rights and privileges of guardians having the lawful charge or .
custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this-- Section, out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor........ out of the keeping of the lawful guardian of such minor" in s. 361, are. significant. The use of the word "keeping" in the context connotes the idea of charge, of 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 rt 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 ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 38 decision to be sufficient to bring the case within the mischief of the statute. Broadly, the same seems to us to be the position under our law. The expression used in s. 361, .
I.P.C. is "whoever takes or entices any minor The word "takes" does not necessarily connote taking by force and'-it is not confined only to use of force, actual or constructive.
'This word merely means, "to cause to go9", "to escorts' or "to get into possession'. No doubt it does mean physical taking, but not of necessarily by use of force or fraud. The word "entice" seems to involve the idea of inducement- or allurement, by giving rise to rt hope or desire in the other. This can take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success on the mental state of the person at the time when the inducement is intended to ,operate.
This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some 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 ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 39 committed the offence as defined in s. 361, I.P.C. But if the, 'guilty party has laid a foundation by inducement, allurement or threat, etc. and if this can be considered to .
have influenced the minor or weighed: with her in leaving her guardian's custody or keeping and going to the guilty party, then prima facie it would be, difficult for him to plead innocence on the ground that the minor had voluntarily come to him. If he had at an earlier stage solicited or induced her in of any manner to leave her father's protection, by conveying or indicating an encouraging suggestion that he would give her shelter, rt then the mere circumstance that his act was not the immediate cause of her leaving her parental home or guardian's custody would constitute no valid defence and would not absolve him. The ;question truly falls for determination on the facts and circumstances of each case. In the case before us, we cannot ignore the circumstances in which the appellant and Mohini came close to each other and the manner in which he is stated to have given her presents and tried to be intimate with her. The letters written by her to the appellant mainly in November, 1966 (Exhibit p. 20) and in December, 1966 (Exhibit p. 16) and- also the letter written by Mohini's mother to the appellant in September, 1966 (Exhibit p. 27) furnish very important and essential background in which the culminating incident of January 16th and ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 40 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, of impressionable, immature daughter; a man who also suggested to render financial help to her husband in time of need. These rt circumstances, among others, show that the main substratum of the story as revealed by Mohini in her evidence, is probable and trustworthy and it admits of no reasonable doubt as to its truthfulness. We have, therefore, no hesitation in holding that the conclusions of the two courts below with respect to the offence under s. 3 66, 1. P.C. are unexceptionable. There is absolutely no ground for interference under Article 136 of the Constitution." (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:
"Keeping in mind the above requirement of law, we will examine the facts of this case to find out whether two courts below were justified in convicting the appellant. It is clear from the finding of facts of two courts below which is based on material available ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 41 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 of 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 rt to marry her and it is based on such promise she went away with the appellant and there is also material on record to show that on that day preparation for marriage was already made in the house of the appellant. Thus two things are clear from this fact; one, that there was a promise of marriage and secondly, based on the said promise PW-2 went with the appellant. Of course, PW-2 had come out with the case that she had come out of the house to answer the call of nature when she was forcibly taken by the appellant which part of the prosecution case is not accepted. But the material on record, as stated above, shows that there was a promise of marriage made to PW-2 which amounts to enticement of a minor because of which she had left the house of her lawful guardian. In this background, in our opinion, the courts below were justified in coming to the conclusion that the appellant had committed the offence punishable under Section 366 of IPC."
39. Earlier to that, this Court in Paramjit Singh vs. State of Himachal Pradesh 1987 Cri. L.J. 1266 held as under:-
::: Downloaded on - 20/10/2023 20:42:57 :::CIS 42"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)
59. Thus the settled law is that if the minor walks of out of the house of the guardian without any inducement from the accused like in the instant case, then obviously rt the accused cannot be held guilty of the offence under Section 363 IPC.
60. Further, there is no material on record to prove the offence under Section 366-A of IPC to even remotely indicate that the victim was forced, or seduced to illicit intercourse with another person.
61. Lastly, there is nothing material whatsoever on record to even remotely indicate that the victim had been criminally intimidated so as to attract the applicability of Section 506 of IPC in the instant case.
62. Unfortunately, the Court below assumed that the victim had been kidnapped even though it had been argued before it that the victim had not raised any hue and ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 43 cry while boarding the taxi and had otherwise not complained during the entire period, when she resided with the appellant and was not even willing to complaint .
but was compelled by her relatives to do so and has further assumed that the victim had been raped and the fact had been corroborated by the Doctor who examined the victim. Whereas it is otherwise that Dr. Ruchi Sharma, of PW-15 had clearly opined that there was no sign of sexual activity found from the RFSL report.
63. rt To say the least, the findings recorded by the Special Court are based entirely on surmises and conjunctures and being perverse not sustainable in the eyes of law.
64. In view of the aforesaid discussion and in the given facts and circumstances, we are of the considered view that the prosecution has miserably failed to prove its case beyond reasonable doubt.
65. Accordingly, the appeal is allowed and the judgment of conviction and sentence, as recorded by the learned Special Judge, being not legally sustainable, is set aside. The appellant is ordered to be released immediately, ::: Downloaded on - 20/10/2023 20:42:57 :::CIS 44 if not required in any other case. Release warrant be prepared accordingly.
66. The Registry is directed to prepare release .
warrant of the appellant. In view of the provisions of Section 437A Cr.P.C., the appellant is directed to furnish personal bonds in the sum of Rs.50,000/- with one surety of the like amount to the satisfaction of the learned of Registrar (Judicial) of this Court, which shall be effective for a period of six months with a stipulation that in an rt event of an SLP being filed against this judgment or on grant of the leave, the appellant on receipt of notice thereof shall appear before the Hon'ble Supreme Court.
(Tarlok Singh Chauhan) Judge (Ranjan Sharma) Judge 20th October, 2023 (himani) ::: Downloaded on - 20/10/2023 20:42:57 :::CIS