Uttarakhand High Court
Smt. Patma vs State Of Uttarakhand And Another on 25 July, 2023
Author: Pankaj Purohit
Bench: Pankaj Purohit
Judgment reserved on: 26.05.2023
Judgment delivered on: 25.07.2023
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Criminal Misc. Application No. 03 of 2016
(Under Section 482 of the Cr.P.C.)
Smt. Patma ..... Applicant
Versus
State of Uttarakhand and Another ..... Respondents
Present :-
Mr. Devang Dobhal, learned counsel for the applicant.
Mr. Kuldeep Rawal, learned AGA for the State.
Hon'ble Pankaj Purohit, J. (Oral)
By means of this C-482 application, the applicant has challenged the entire proceedings of the Special Sessions Trial No. 16 of 2015, "State Vs. Ashish and others", qua the applicant only, pending in the court of learned Special Judge POCSO/Sessions Judge, Tehri Garhwal arising out of Case Crime No. 22 of 2015, under Sections 363/366-A/376 of IPC and Section 16 of The Protection of Children from Sexual Offences Act, 2012 (in short "POCSO" Act) registered with Police Station- Ghansali, District- Tehri Garhwal, pursuant to First Information Report dated 29.08.2015.
2. The case of the prosecution is that a First Information Report was lodged at Police Station- Ghansali, District-Tehri Garhwal on 29.08.2015 at 19:45 2 hours by the informant/respondent no.2 Hukum Singh Gussain, against the co-accused Ashish S/o Murlidhar, R/o Village-Maliyacoat, Patti-Nailchami, Police Station- Ghansali, District- Tehri Garhwal, on the basis of which a Case Crime No. 22 of 2015, under section 363 of IPC only, was lodged against the co-accused Ashish.
3. The case of the prosecution as unfolded from the FIR is that the informant lodged the First Information Report stating therein that his daughter (the victim), was the student of class XIIth in Government Intermediate College-Dhela Nailchami, went to attend her college on 27.08.2015 at 07:00 AM from her house, but after the school was closed, she did not return to her home; the informant and his other family members searched for her but she was not found. It has further alleged by the informant that on 28.08.2015, he himself went to the college and gave all the information to the Principal of the College; according to the information gathered by the Principal from the teachers and her classmates, victim was present in the school, but in the attendance register her attendance was not entered and her school bag was found kept in the house of someone near the college. The informant further alleged that according to school documents, the date of birth of his daughter was 24.03.2001, the photo copy of the certified copy given by the Principal, Government Intermediate College-Dhela Nailchami also annexed in the FIR. The informant further submitted that accused Ashish S/o Murlidhar, R/o Village & Post-Maliyacoat, Nailchami, who was a student of class XIIth in Government Intermediate College, Dhela Nailchami, enticed away the minor daughter of the 3 informant and according to the information, it appeared to him that Ashish was protected by his family, parents and uncle in the alleged crime.
4. It appears from the record that the victim was recovered by the police in the house of applicant with co- accused Ashish on 30.08.2015 in Village Maliyacoat. The victim was medically examined on 30.08.2015 at 7.00 PM at District Hospital Baurari, New Tehri by the doctor.
5. During investigation, the victim's statement under Section 164 Cr.P.C. was also recorded by the learned Judicial Magistrate, Narendra Nagar, Tehri Garhwal on 01.09.2015. From the record it appears that after recovery of the victim with co-accused Ashish, from his house in Village Maliyacoat, Section 366-A/376 IPC and Sections 3/4 of POCSO Act was added during investigation. After investigation, on 18.11.2015, the charge-sheet no. 29 of 2015 was submitted by the Investigating Officer against the applicant under Section 368 of IPC and Section 16 of POCSO Act alongwith Murlidhar, father of co-accused Ashish, however, against co-accused Ashish S/o Murlidhar, the charge-sheet was submitted under Sections 363/366-A/376 of IPC and section 3/4 of POCSO Act. The cognizance was taken against the applicant under section 368 of IPC and section 16 of POCSO Act by the Special Sessions Judge, Tehri Garhwal on 26.11.2015.
6. Thus, Feeling aggrieved by the submission of the charge-sheet and the initiation of the criminal trial against the applicant, in the court of learned Special 4 Judge POCSO/Sessions Judge, Tehri Garhwal in Special Sessions Trial No. 16 of 2015, the present C-482 application was filed by the applicant, invoking the inherent powers of this Court for quashing the entire proceedings of Special Sessions Trial No. 16 of 2015 "State Vs. Ashish and others", qua the applicant on the various grounds given in the C-482 application.
7. Heard learned counsels for the parties.
8. It is submitted by the learned counsel for the applicant that the applicant was falsely roped in, in the alleged crime only on account of the fact that she was the mother of the co-accused Ashish S/o Murlidhar. The learned counsel for the applicant Mr. Devang Dobhal, drew the attention of this Court to the FIR, the statement of victim recorded under Section 164 of Cr.P.C. by the learned Judicial Magistrate, Narendra Nagar, Tehri Garhwal, on 01.09.2015, as well as the narration made by the victim to the doctor, when she was medically examined on 30.08.2015 and submitted that this involves love angle between the victim, who was allegedly 14 years of age at the time of incident and the co-accused Ashish, who too was 17 years of age at the time of incident. Both of them were studying in class 12th in Government Intermediate College, Dhel Nailchami. From the statement recorded under Section 164 Cr.P.C. and before that narration given by the victim to the doctor, make it explicitly clear that both, the victim and co-accused Ashish, were in love and want to run away from their home.
59. It is further narrated by the victim to the doctor that on 27.08.2015, while returning from the school, both of them went to forest for two days and stayed there; on 29.08.2015 in the morning at 4.00 AM, they came back to the house of co-accused Ashish; his inmates of the house asked her to go her home but she did not; after that police came and the police took her. In the statement recorded under Section 164 of Cr.P.C. on 01.09.2015, some more details were given by the victim, in which it was stated that she instead of going back to her home from the school, on 27.8.2015 at 12:00 Noon followed the co-accused Ashish who asked her, as to where she was going; she told him that she would go to his home, she loved co-accused Ashish very much and, therefore, she went behind him. It has further stated by the victim that thereafter, both of them went into the forest and came back to the house of the co-accused Ashish on 30.08.2015 at 11.00 A.M. in the morning; in the house only Ashish's father was there, who scolded and asked her to go back to her home; she told father of Ashish that she was hungry and would go after having some meal, but, in between police reached there and took her and Ashish down to Police Station Ghansali. It was also disclosed by the victim that in the forest both of them made sexual relations with their own will.
10. On the basis of this scenario as reflected from the version of the prosecution, it was argued by the learned counsel for the applicant that the charge-sheet was wrongly submitted by the police against the applicant, not a single sentence or evidence, even prima- facie was there to prosecute the applicant under Section 6 368 of IPC. According to him, no ingredients of Section 368 of IPC and Section 16 of POCSO Act, at all were satisfied to proceed against the applicant. Section 368 of IPC and Section 16 of POCSO Act are reproduced as under:-
"368. Wrongfully concealing or keeping in confinement, kidnapped or abducted person. Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement."
"16. Abetment of an offence.- A person abets an offence, who-
First.- Instigates any person to do that offence ; or Secondly.- Engages with one or more other person or persons in any conspiracy for the doing of that offence, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that offence; or Thirdly.- Intentionally aids, by any act or illegal omission the doing of that offence.
Explanation I.- A person who, by willful
misrepresentation, or by willful concealment of a
material fact, which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure a thing to be done, is said to instigate the doing of that offence.
Explanation II.- Whoever, either prior to or at the time of commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act. Explanation III.- Whoever employ, harbours, receives or transports a child, by means of threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or of a position, vulnerability or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of any offence under this Act, is said to aid the doing of that act."7
11. The learned counsel for the applicant submitted that in order to attract the provision of Section 368 of IPC, the essential ingredients are required, which are as under:-
(i) The offender must know that any person (victim) has been kidnapped.
(ii) The victim should be concealed and confined wrongfully by the offender.
12. Likewise the provision of Section 16 of POCSO Act would be attracted, if the accused abets of an offence under the POCSO Act. There is no such evidence, even prima-facie to attract these two Sections against the applicant. Not an iota of evidence is there, which would even remotely suggests that the applicant-Patma Devi concealed or confined the victim. As against this, the statement of the victim makes it very much clear that as soon as, she reached with co-accused Ashish, in the house of Ashish, the inmates of the house of Ashish and parents scolded to her and asked her to go back to her home. But she (the victim) said that she would go after having the meal, as she was very much hungry and in between the police reached there and victim was recovered with co-accused Ashish from the house.
13. Per contra, the learned AGA submitted that the victim was a minor and her date of birth, as per the school record, was 24.03.2001 and she was studying in Class-X. He further took this Court to the statements of Tikam Singh, S/o Hukam Singh (Prahari) R/o Village Pundoli and Dalip Singh S/o Ghanshyam Singh, R/o Village Maliyacoat, recorded under Section 161 Cr.P.C.
8and submitted that these two witnesses stated that when police reached the house of co-accused Ashish, the applicant was in the house, but on seeing the police, she hid her behind the house. It was also stated by Tikam Singh in his statement that the victim was given meal (Lunch) by the applicant, but when a pointed query was made by this Court to the learned AGA, as to whether the informant Hukum Singh Gussain or the victim said anything even in the statements recorded under Section 161 Cr.P.C. against the applicant involving her with the crime or assigning any role to the applicant, reply of the learned AGA was in negative. Rather, he took this Court to the statements of the informant Hukum Singh Gussain and victim recorded under Section 161 Cr.P.C., in which, there were no such statement attributed to the applicant, which were too enough even prima-facie, to implicate the applicant with the offence of Section 368 IPC and Section 16 of POCSO Act. In the statement of the informant recorded under Section 161 Cr.P.C., only this much was there, " rc eq>s iwjk ;dhu gks x;k Fkk fd esjh csVh dks vk"kh'k cgyk Qwlykdj vius lkFk Hkxk dj ys x;k gSA rc eSaus iz/kkukpk;Z ls "kfeZyk dh tUe frfFk dk izek.k fy;k vkSj "kfeZyk dks <wa<us yxs tc dkQh ryk"k djus ij Hkh "kfeZyk dk dqN irk ugha pyk rks fn0 29@08@15 dks geus Fkkuk ?kulkyh ij "kfeZyk dh xqe"kqnxh dh fjiksVZ ntZ djok nh vkSj vk"kh'k ds fo:} eqdnek fy[kok fn;kA** and further stated to implicate the applicant that "eq>s iwjk ;dhu gS fd vk"kh'k gh esjh csVh dks Hkxk dj ys x;k gS rFkk mls Hkxokus esa vk"kh'k ds pkpk jks"ku yky rFkk mlds ekrk firk dk iwjk iwjk gkFk gSA** and in the statement of victim recorded under Section 161 Cr.P.C., she said that "vkt fnukad 30@08@15 dks ge nksuksa djhc 11%00 cts ge nksuksa ;gka vk"kh'k ds ?kj eY;kdksV vk x;s Fks ml le; ?kj ij dsoy vk"kh'k ds firk Fks ftUgksus vk"kh'k dks eq>s Hkxkus dks ysdj dkQh MkaVk Fkk vkSj eq>s esjs ?kj NksM+dj vkus ds fy;s dgk Fkk ij eSus gh ftn dh Fkh fd eSa vius ?kj ugha tkuk pkgrh ij vk"kh'k ds firk ugha ekus rc eSus dgk fd eSus dqN ugha [kk;k gS eSa [kkuk [kk ds pyh tkamxhaA ge yksx vHkh rd vk"kh'k 9 dh eka ds vkus dk bartkj dj jgs Fks] oks ?kkl ysus x;h gS vkSj vHkh rd ugha vk;h gS oks gekjs ?kj vkus ls igys gh ?kkl ysus pyh x;h Fkh mUgsa bl lEcU/k esa dqN ugha irk gSA**
14. Having heard the learned counsels for the parties, I carefully perused the record of the case. This Court is of the opinion that there is no material against the applicant, even to maintain the trial against her. Such a trial, which would culminate into nothing, but acquittal of the applicant, there is no reason to ask the applicant to face such a trial. It would be nothing, but a sheer abuse of process of the Court. It has been brought to the notice of this Court, by the learned counsel for the applicant that co-accused Ashish was found guilty of the offence punishable under Section 376(2) IPC and Section 6 of POCSO Act and was convicted and sentenced rigorous imprisonment for a period of 10 years and a fine of Rs.10,000/-, in default of stipulation of additional rigorous imprisonment for a period of 6 months, by the learned Special Sessions Judge, Tehri Garhwal vide judgment and order dated 07.11.2017 and said judgment and order is on record. Further, even the husband of the applicant Murlidhar S/o Banu was discharged by the learned Sessions Judge on 28.05.2016, as the learned trial court did not find anything against the co-accused Murlidhar even to frame charges under Section 368 IPC and Section 16 of POCSO Act, which order attained finality. On 18.01.2016, the file of the applicant Patma Devi was separated by the learned Sessions Special Judge, Tehri Garhwal.
1015. In view of the aforesaid discussions, this Court is of the considered opinion that in such case it would be a travesty of the justice, if this Court fails to exercise its inherent powers in favour of the applicant. Thus, the entire proceedings of Special Sessions Trial No. 16 of 2015, "State Vs. Ashish and others", pending in the court of learned Special Judge POCSO/Sessions Judge, Tehri Garhwal, arising out of Case Crime No. 22 of 2015, under Sections 363/366-A/376 of IPC and Section 16 of POCSO Act, are hereby quashed/set aside, registered pursuant to the FIR dated 29.08.2015. Accordingly, the charge-sheet dated 18.11.2015 and the FIR dated 29.08.2015 are also quashed, qua the applicant only.
16. The C-482 application stands allowed.
(Pankaj Purohit, J.) PN/-