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Himachal Pradesh High Court · body

2009 DIGILAW 1258 (HP)

STATE OF HIMACHAL PRADESH v. LOUHAR

2009-12-10

KULDIP SINGH

body2009
JUDGMENT Kuldip Singh, J.(Oral)-This appeal has been directed against the judgment dated 28.7.2001 passed by learned Additional Chief Judicial Magistrate Hamirpur in Crl. Case no. 107-II of 1995/ RBT. 61-II/97 acquitting the respondent under Section 363 IPC. 2. The prosecution case in brief is that on 2.3.1995 at Nadaun respondent took away minor child Master Adhitya alias Teetu from the lawful guardianship of his parents without their permission. The respondent used to work in neighborhood of PW-5 Raj Kumar, complainant. The matter was reported to the Police vide written complaint, Ex.PW5/B, on the basis of which FIR Ex. PW5/A was registered. On completion of investigation challan was presented. The respondent was charged for having committed offence punishable under Section 363 IPC. He pleaded not guilty and claimed trial. The prosecution has examined six witnesses and produced some documentary evidence. The evidence of the prosecution was closed vide order dated 22.6.2001. The respondent in his statement under Section 313 Cr.PC has denied the prosecution case. The respondent led no evidence in defence. The learned trial Magistrate acquitted the respondent, hence this appeal. 3. I have heard Mr. R.P. Singh learned Assistant Advocate General and Mr. Vinod Gupta learned counsel for the respondent and have also gone through the record. The learned Assistant Advocate General has submitted that prosecution has proved the case against the respondent beyond reasonable doubt but the learned Court below has not properly appreciated the evidence and has erred in acquitting the respondent. Per contra the learned counsel for the respondent has submitted that the Court below has properly appreciated the evidence on record. The prosecution has miserably failed to prove the case. The learned Magistrate has rightly acquitted the respondent The learned counsel for the respondent has supported the impugned judgment. 4. Ex. PW-5/B dated 2.3.1995 is the written complaint of Raj Kumar addressed to Incharge Police Station Nadaun. P.W-5 Raj Kumar had suspected that respondent had kidnapped minor child Teetu aged one and half years on 2.3.1995. On this FIR Ex5/A was registered. PW-1 Umesh Kumar has stated that Raj Kumar was residing at Nadaun in the year 1995. The child of Raj Kumar was searched here and there but the child could not -3be traced. He and Raj Kumar hired a Taxi and reached Bus Stand Hamirpur and found son of Raj Kumar with the accused at Bus Stand Hamirpur. PW-1 Umesh Kumar has stated that Raj Kumar was residing at Nadaun in the year 1995. The child of Raj Kumar was searched here and there but the child could not -3be traced. He and Raj Kumar hired a Taxi and reached Bus Stand Hamirpur and found son of Raj Kumar with the accused at Bus Stand Hamirpur. Parkash Chand was also accompanying them. 5. PW-2 Parkash Chand has stated that he knew Raj Kumar. The child was found with the accused at Bus Stand Hamirpur. PW-3 Raju has stated that nothing happened in his presence. He did not support the prosecution case. He was declared hostile and was cross examined by the prosecution. In cross examination he has denied that accused brought the child in his room. PW-4 Ram Bilas is a witness to recovery memo Ex. PW4/A. PW-5 Raj Kumar complainant has stated that he had lodged FIR Ex. PW5/A. He submitted application EX. PW5/B. He did not support the prosecution and was declared hostile and was cross examined by the Prosecutor. In cross examination he has denied that he made statement portion A to A of mark X, he never made such statement. In cross examination conducted on behalf of the defence he has stated that police had told him that the child was found at Dosarka at Hamirpur. He was told that the child was found in the house of another Mistry. He had given the application on suspicion. PW-6 Kumari Kaku, a child witness, is the daughter of PW-5, Raj Kumar. She has stated that accused had given a toffee to her brother who accompanied the accused. In cross examination she has stated that Teetu used to play with him. The accused in his statement under Section 313 Cr.PC has denied the prosecution case. 6. PW-5 complainant and father of the child has not supported the prosecution case. He has stated that police had told him that the child was found at Dosarka at Hamirpur. He was told that child was found at the -4residence of some other Mistry. PW-5 has not stated that the child was found with the accused at Bus Stand Hamirpur. He has also not stated that PW-1 Umesh Kumar and PW-2 Parkash Chand were with him when child was traced. PW-1 Umesh Kumar had contradicted PW-5 when he has stated that child was found at Bus Stand Hamirpur. PW-5 has not stated that the child was found with the accused at Bus Stand Hamirpur. He has also not stated that PW-1 Umesh Kumar and PW-2 Parkash Chand were with him when child was traced. PW-1 Umesh Kumar had contradicted PW-5 when he has stated that child was found at Bus Stand Hamirpur. PW-2 has also stated that child was found at Bus Stand Hamirpur. PW-6 Kumari Kaku is the sister of Teetu who has stated that Teetu accompanied the accused, she has not stated that accused had taken away Teetu. 7. There is no evidence that the child was taken away by accused without the permission of his parents. The prosecution has not led worth believing evidence to prove that Teetu son of PW-5 was taken away from the lawful guardianship of PW-5 without his permission. The learned Addl. Chief Judicial magistrate after due appreciation of material on record has taken a possible view from the evidence and acquitted the respondent after giving him benefit of doubt. It cannot be said that view taken by learned Addl. Chief Judicial Magistrate does not emerge from the evidence or it is perverse. 8. The learned Assistant Advocate General has failed to point out any illegality in the impugned judgment, resultantly appeal fails and is accordingly dismissed and bail bonds of respondent are discharged.