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2013 DIGILAW 403 (UTT)

SANTOSH KUMAR SINGH v. STATE OF UTTARAKHAND

2013-06-28

Alok Singh

body2013
JUDGMENT Hon’ble Alok Singh, J (Oral) Present appeal is filed assailing the judgment and order dated 07.12.2009 passed by Sessions Judge, Tehri Garhwal in Sessions Trial No. 53 of 2007 whereby appellant was held guilty for the offences punishable under Section 366, 376 IPC and was sentenced to undergo rigorous imprisonment for a period of 5 years and to pay fine of Rs. 4000/- and in default of making payment of fine, to undergo 1 year additional rigorous imprisonment under Section 366 IPC; sentenced to undergo rigorous imprisonment for a period of 8 years and to pay fine of Rs. 6000/- and in default of making payment of fine, to undergo 1 year additional rigorous imprisonment under Section 376 IPC with the stipulation that both the sentences shall run concurrently. 2. Brief facts of the present case, inter alia, are that father of the prosecutrix PW1 lodged a report at police station Rishikesh on 22.03.2007 stating therein that his daughter (prosecutrix) aged about 15 years in the morning of 05.02.2007 left her house for Government Girls Inter College, Rishikesh but did not come back; on search, she could not be found, therefore, report was also submitted to police station Muni-ki-Reti, Tehri Garhwal about missing of his girl, he kept on searching for his daughter; PW1 could get information that her daughter was seen going with the appellant by neighbours; appellant by deceitful means has taken his daughter to Gorakhpur, therefore, his daughter may be got recovered from the custody of appellant and should be handed over to him. 3. Investigation was handed over to the police of police station Muni ki Reti on the ground that prosecutrix left her home situated within jurisdiction of Muni ki Reti and thereafter, went missing; on search, she was recovered and medically examined on 01.08.2007. Her statement under Section 164 Cr.P.C. was also recorded by the Chief Judicial Magistrate on 03.08.2007. 4. Having investigated the matter, charge-sheet was submitted against the appellant and one Satish Singh for the offence under Section 363/34, 366/34, 376 IPC. After committal of the case, charges were framed against the appellant for the offence punishable under Section 363/34, 366/34, 376 IPC while against co-accused Satish Singh under Section 363/34, 366/34, 120-B IPC. Appellant and co-accused denied the charges and claimed trial. 5. After committal of the case, charges were framed against the appellant for the offence punishable under Section 363/34, 366/34, 376 IPC while against co-accused Satish Singh under Section 363/34, 366/34, 120-B IPC. Appellant and co-accused denied the charges and claimed trial. 5. To prove the prosecution story, PW1 informant father of the prosecutrix; PW2 Ashok Singh, PW3 Rama Gusain, PW4 prosecutrix, PW5 Dr. Riya Thapliyal, PW6 O.P. Arya, PW7 Sheela Devi Raturi, PW8 Investigating Officer Kripal Singh were examined and thereafter, statements of accused were also recorded under Section 313 Cr.P.C. 6. Having perused the entire material made available on record, learned trial court was pleased to acquit the co-accused Satish Singh, however, convicted and sentenced the appellant vide judgment and order, under appeal. 7. I have heard Mr. Sandeep Tandon, Advocate for the appellant, Mr. Raman Kumar Sah, AGA for the State and have carefully perused the record. 8. PW1 father of the prosecutrix stated that prosecutrix went missing on 05.02.2007; he tried to trace out her till 08.02.2007 whereafter reported the matter to police on 09.02.2007; he was told by neighbours that prosecutrix was seen going with the appellant and thereafter, he acquired the knowledge that she was staying with the appellant at Gorakhpur, therefore, another report was got registered on 23.02.2007; he further stated that after few months of the missing of the prosecutrix, he could know that Avadh Narayan Singh has dropped his daughter in the house of maternal grand father of prosecutrix, after reaching there, prosecutrix told him that appellant got married with her forcefully and thereafter, she was dropped at her maternal grand father’s house. During cross-examination PW1 stated that date of birth of prosecutrix as 22.06.1988 was rightly written in her horoscope. 9. Prosecutrix in her statement recorded under Section 164 Cr.P.C. stated as under: “Appellant started talking with me and asked me go with him at Gorakhpur, firstly, I refused and thereafter, agreed to go with him to Gorakhpur; appellant took me to Gorakhpur at his residence; I stayed at his residence for some days and thereafter, I was taken to house of maternal uncle of appellant wherein I stayed for some time; after 1 – 1 ½ months, appellant proposed to marry with me and thereafter, both of them got married.” 10. Prosecutrix in her statement, on oath, stated that appellant took her to Gorakhpur; they visited house of relatives of the appellant and thereafter, she went to the house of appellant and thereafter, she was taken to the house of co-accused Satish Singh, maternal uncle of the appellant; she was taken to temple where she got married with the appellant. During her cross examination, she admitted that she appeared before the Marriage Officer wherein she disclosed her age about 22-year and signed several documents in the office of Marriage Officer at Gorakhpur. She further admitted Exhibit Ka-1 and Ka-2. 11. Exhibit Ka-1 is an affidavit containing her signature and Exhibit Ka-2 is letter written by her. Perusal of Exhibit Ka-1 reveals that it was an affidavit containing her photograph and signature duly identified by Public Notary. It was stated in the Exhibit Ka-1 that prosecutrix got married with appellant in a Temple at Gorakhpur, as per Hindu Rites and Ceremonies on 02.12.2006 and she was pregnant and happily living with the appellant. It has further been stated in the affidavit that her father PW1 got registered an FIR against the appellant and no action should be taken against the appellant pursuant to the FIR lodged by the her father. 12. In Exhibit Ka-2, letter written by prosecutrix, she wrote that she was having pregnancy of 5 months and she married with the appellant out of her own sweet will. 13. As noted hereinbefore, father of the prosecutrix during his cross-examination, stated that as per horoscope of the prosecutrix, her correct date of birth was 22.06.1988. It means that on 05.02.2007 when she went missing, she was aged about 19 years and she was major. Statement of prosecutrix recorded under Section 164 Cr.P.C. that she was requested by the appellant to go with him to Gorakhpur and she agreed to go with him to Gorakhpur demonstrates that she was consenting party. Had there been any pressure or coercion, she could have raised alarm while going to Gorakhpur in a Roadways Bus, while she was present in the temple or was present in the office of marriage officer. 14. Dr. Riya Thapliyal (PW5) stated that at the time of medical examination, she could notice milk in the breast of prosecutrix and after pregnancy of more than 2 months milk started coming in the breast of women. 14. Dr. Riya Thapliyal (PW5) stated that at the time of medical examination, she could notice milk in the breast of prosecutrix and after pregnancy of more than 2 months milk started coming in the breast of women. She further stated that external mouth of uterus of prosecutrix was open, therefore, it could be said that soon before her medical examination, abortion was done. 15. In view of the above, I find substance in the argument of Mr. Sandeep Tandon, Advocate for the appellant that prosecutrix and appellant were in love, she herself went with the appellant and got married with him, she was having pregnancy out of her wedlock with the appellant; since the appellant was of another caste, therefore, she was forced for abortion and under pressure of her parents, she did not narrate the correct story before the court. 16. In view of the above discussion made hereinbefore, prosecution has failed to prove its case beyond reasonable doubt, consequently, appeal is allowed. Impugned judgment and order dated 07.12.2009 is set aside. Appellant is acquitted from the charges levelled against him. Appellant is on bail. He need not to surrender before the court in connection with the present case. His personal bond is cancelled and sureties are discharged. 17. Let a copy of this order be forwarded to the lower court for compliance along with lower court record.