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2014 DIGILAW 1341 (HP)

STATE OF HIMACHAL PRADESH v. RAJESH KUMAR

2014-09-24

PIAR SINGH RANA, SANJAY KAROL

body2014
JUDGMENT SANJAY KAROL, J. 1. In the instant case, we find that prosecutrix (PW. 2) has not supported the prosecution case in relation to the charged offence of Sections 363, 366/120B of the Indian Penal Code. 2. Assailing the judgment dated 15.11.2007, passed by Sessions Judge, Sirmaur District at Nahan, H.P., in Sessions Trial No. 26-ST/7 of 2007, titled as State of Himachal Pradesh Versus Rajesh Kumar & another, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973. 3. Smt. Shanti Devi (PW. 1), mother of the prosecutrix, lodged a report that her daughter i.e. prosecutrix (PW. 2), on 28.01.2007 had gone to attend a wedding in the village. When she did not return home, matter was reported to Tula Ram (PW. 4), President of the Panchayat. Since prosecutrix was nowhere to be found, police was informed. Investigation revealed that accused Rajesh Kumar had allured the prosecutrix and on the promise of marrying her had taken her to a far off place. Investigation further revealed that accused had taken the prosecutrix to Chandigarh and made her sleep in the house of his friend, who was married. Prosecutrix was recovered and her custody handed over to her parents since she was a minor. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, Challan was presented in the Court for trial. 4. The accused were charged for having committed an offence punishable under the provisions of Sections 366 and 120B of the Indian Penal Code, to which they did not plead guilty and claimed trial. 5. In order to establish its case, in all, prosecution examined as many as sixteen witnesses. Statements of the accused u/s 313 of the Code of Criminal Procedure were also recorded, in which they took plea of innocence. No evidence in defence was led. 6. Trial Court, after appreciating the testimony of prosecution witnesses acquitted the accused. Hence the present appeal. 7. We have heard Mr. B.S. Parmar, learned Addl. Advocate General, on behalf of the State as also Mr. Deepak Kaushal, Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. Advocate General, on behalf of the State as also Mr. Deepak Kaushal, Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice. 8. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offence. 9. In Prandas Vs. The State, AIR 1954 SC 36 , Constitution Bench of the apex Court, has held as under: "(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.c., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in - AIR 1934 227 (Privy Council) , in these words: "Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice." " 10. As already observed prosecutrix has not supported prosecution case at all. Despite extensive cross-examination, nothing fruitful could be elicited from her testimony. As such, there is no legal evidence on record, on the basis of which accused can be held guilty. Also findings returned by the trial Court, cannot be said to be perverse, erroneous, illegal or not borne out from the record. 11. Dr. Nirmala Vaish (PW. 10), who examined the prosecutrix, has deposed that no injury was found on the body of the prosecutrix nor could it be said that she was subjected to rape. 12. That prosecutrix is a minor cannot be disputed, but then there has to be legal evidence to convict the accused of the charged offence. Testimony of complainant Shanti Devi (PW. 1) also does not prove the case of prosecution. Her testimony is only to the effect that when she found her daughter missing "suspicion arose" upon "accused Rajesh Kumar", but then that is about all and nothing more. 13. Hence, it cannot be said that prosecution has been able to prove its case, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that the accused kidnapped the prosecutrix from the lawful guardianship of her parents, with the intention that she would be compelled to marry. 14. 13. Hence, it cannot be said that prosecution has been able to prove its case, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that the accused kidnapped the prosecutrix from the lawful guardianship of her parents, with the intention that she would be compelled to marry. 14. The Court below, in our considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that judgment of trial Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice. 15. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., AIR 2010 SC 566 , since it cannot be said that trial Court has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case. For all the aforesaid reasons, present appeal, being devoid of merit, is dismissed, so also the pending application(s), if any. Bail bonds furnished by the accused are discharged. Record of the trial Court be immediately sent back.