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Himachal Pradesh High Court · body

2015 DIGILAW 1936 (HP)

Jai Krishan v. State of H. P.

2015-12-19

RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment dated 31.10.2006 rendered by the Additional Sessions Judge, Shimla, Camp at Rohru in Sessions Trial No. 2-R/7 of 2005, whereby the appellants-accused (hereinafter referred to as the accused for convenience sake), who were charged with and tried for offences punishable under sections 363, 366-A and 34 of the Indian Penal Code were convicted and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 5,000/- each and in default of payment of fine, they were further ordered to undergo rigorous imprisonment for six months for committing offence under section 363 read with section 34 of the Indian Penal Code and were acquitted for offence under section 366 of the Indian Penal Code. Accused Dipender Rithwan was acquitted of all the charges. 2. Case of the prosecution, in a nutshell, is that PW-1 was student of plus one in Sanskrit College, Jangla. On 6.8.2003, she alongwith her friend Laxmi was returning to her village Dali after attending the ‘Laila’ fair at about 4.00 P.M. When they reached near transformer at Tikker, a vehicle No. HP-10-2813 came from behind and stopped in front of them. Accused Jai Krishan and Ashok Kumar got down from the vehicle and lifted her and pushed her inside the Bolero camper. The prosecutrix raised hue and cry and the accused drove the Bolero camper towards Badiara. On noticing the red light on the vehicle of S.D.M. at Khilocha Kainchi, driver remarked that the vehicle was of S.D.M. and he turned the Bolera camper towards Diswani road. The prosecutrix was raising cries inside the vehicle and the jeep of S.D.M. started chasing the Bolero camper. The driver stopped the Bolera and the accused decamped. Sh. Rajeev Rithwan kept standing at the spot and he also tried to resist the accused from abducting the prosecutrix. On the basis of the statement of prosecutrix, FIR Ex.PW-6/B for offence under sections 363, 366-A and 34 of the Indian Penal Code was registered at Police Station, Rohru. The custody of prosecutrix was handed over to Smt. Raj Kumari maternal aunt. The date of birth of the prosecutrix was 10.6.1986. The police investigated the case and the challan was put up in the Court after completing all the codal formalities. 3. Prosecution examined number of witnesses to prove its case against the accused. The custody of prosecutrix was handed over to Smt. Raj Kumari maternal aunt. The date of birth of the prosecutrix was 10.6.1986. The police investigated the case and the challan was put up in the Court after completing all the codal formalities. 3. Prosecution examined number of witnesses to prove its case against the accused. Statements of accused under Section 313 Cr.P.C. were recorded. According to them, they were falsely implicated. Trial court convicted and sentenced the accused, as noticed hereinabove. 4. Mr. Neeraj Sharma has supported the judgment dated 31.10.2006. 5. I have heard the learned counsel for the parties and have gone through the judgment meticulously. 6. PW-1 has deposed that she was student of plus one in Sanskrit College, Jangla. On 6.8.2003, she alongwith her friend Laxmi was returning to her village Dali after attending the ‘Laila’ fair at about 4.00 P.M and when they reached near transformer at Tikker, a vehicle No. HP-10-2813 came from back side. The vehicle stopped in front of them. Accused Jai Krishan and Ashok Kumar got down from the vehicle and lifted her and pushed her inside the Bolero camper. She raised hue and cry and the accused drove the Bolero camper towards Badiara. At Khilocha Kainchi, on noticing the red light atop the vehicle, Pyare Lal remarked that the vehicle was of S.D.M. Thereafter, accused drove the Bolero camper towards Diswani road. She was raising hue and cry. S.D.M. vehicle chased them. The accused left the vehicle and fled away from the spot. In her cross-examination, she has admitted that 100 of people were present. People started leaving the fair at about 4.00 P.M. The S.D.M. inquired from her about the incident. She did not remember about the nature of inquiry made from her by the S.D.M. 7. PW-3 Rajeev Rithwan has deposed that he went to Laila fair in the Bolero. He returned from fair at about 4.00 P.M. Sh. Bihari Lal was the driver. Depinder, Ashok and Jai Kishan were in the cabin and many other persons were in the rear portion of the vehicle. Two girls gave signal in order to take lift in the Bolero. One girl boarded the Bolero and the other girl did not sit. There were number of passengers in the Bolero. When the Bolero reached near Khilocha Kainchi, S.D.M. stopped the same as it was over loaded. Two girls gave signal in order to take lift in the Bolero. One girl boarded the Bolero and the other girl did not sit. There were number of passengers in the Bolero. When the Bolero reached near Khilocha Kainchi, S.D.M. stopped the same as it was over loaded. The S.D.M. inquired as to why the vehicle was over loaded, upon which the accused ran away from the place. He was declared hostile. He has denied that on the aforesaid day, accused Jai Kishan near Tikkri Nallah asked the driver to stop the Bolero and as soon as the Bolero was stopped, accused Jai Kishan alighted from the Bolero and put the prosecutrix, who was walking in the road, inside the Bolero and then they fled away from the place alongwith the girl as recorded in portion ‘A’ to ‘A’ of the statement mark ‘X’. According to him, he made statement to the police under threat of S.D.M as he had told him that he would put him behind the bar. He has also denied the suggestion that Rekha was raising hue and cry inside the Bolero. He denied that thereafter the S.D.M. chased the Bolero. The S.D.M. got the statement from him under threat. He has also denied the suggestion that the prosecutrix was forcibly lifted from the road and put in the Bolero. In his cross-examination by the learned defence counsel, he has admitted that number of persons including ladies and children were walking at the relevant time. The prosecutrix did not raise any hue and cry during her journey from the place of boarding till the place where the Bolero was stopped near Khilocha Kainchi. She boarded the Bolero for Diswani of her own sweet will. 8. PW-8 Amarjit Singh has deposed that he had gone to attend Laila fair in the official vehicle. Sh. Kanwar Singh was the driver. At about 4.00 P.M., when their vehicle reached Tikkar Nullah, they saw that four boys were hanging from the Bolero camper. When they reached near Bolero camper, they heard the cries of a girl coming from Bolero. The driver of the Bolero took the vehicle from Khiloncha Kainchi towards Diswani road. They chased the Bolero. Bolero stopped and four boys alighted from the Bolero and one boy Rajeev Rithwan and a girl Rekha only remained inside the camper. When they reached near Bolero camper, they heard the cries of a girl coming from Bolero. The driver of the Bolero took the vehicle from Khiloncha Kainchi towards Diswani road. They chased the Bolero. Bolero stopped and four boys alighted from the Bolero and one boy Rajeev Rithwan and a girl Rekha only remained inside the camper. Rekha told him that the boys had kidnapped her with intent to commit some offence. He alongwith Rekha and Rajeev and Bolero reached at Badiara and informed the S.H.O. Police Station, Rohru. S.H.O. reached the spot. 9. The most material witness in the present case is PW-9 Laxmi. She has testified that she alongwith Rekha was returning to their village in the evening at about 3/3.30 P.M. and when they were on the main road near Khachi’s house and transformer, a Bolero came from bhind and they raised their hands to stop the vehicle. There was rush in the Bolero. Rekha boarded the Bolero and she could not board the Bolero due to rush and the vehicle left with her. She was declared hostile and was cross-examined by the learned Public Prosecutor. She has denied that the police made inquiry from her about the incident. She has also denied that the accused Jai Krishan and Ashok Kumar foricibly put Rekha inside the Bolero and fled towards Badiara. She disowned portion ‘A’ to ‘A’ of mark X-1. 10. PW-10 Gulab Singh has proved the date of birth certificate Ex.PW-10/A. The date of birth of the prosecutrix is 10.6.1986. 11. PW-12 Manohar Lal was the Investigating Officer. He reached Badiara and recorded the statement of Rekha Ex.PA. Thereafter, FIR was registered. Site plan Ex.PW-12/A was prepared. Bolero was taken into possession. 12. The prosecution case has not been supported by PW-3 Rajeev Rithwan and PW-9 Laxmi. PW-3 Rajeev Rithwan has deposed that on 6.8.2003, he went to Laila fair in the Bolero. He returned from fair at about 4.00 P.M. Bihari Lal was the driver. Depinder, Ashok and Jai Kishan were in the cabin and many other persons were in the Dalla. Two girls gave signal to take lift in the Bolero. One girl boarded the Bolero and the other did not board as the jeep was full. PW-9 Laxmi has also deposed that she had gone to attend the fair with the prosecutrix. Depinder, Ashok and Jai Kishan were in the cabin and many other persons were in the Dalla. Two girls gave signal to take lift in the Bolero. One girl boarded the Bolero and the other did not board as the jeep was full. PW-9 Laxmi has also deposed that she had gone to attend the fair with the prosecutrix. She alongwith Rekha was returning to their village in the evening at about 3/3.30 P.M. When they were in the main road near Khachi’s house and transformer, a Bolero came from behind and they raised their hands for stopping the vehicle. There was rush in the Bolero. The prosecutrix boarded the Bolero and she could not board the Bolero due to rush and the vehicle left. Case of the prosecution is that accused Jai Kishan and Ashok alighted from the Bolero and caught hold of prosecutrix and pushed her inside the Bolero. She raised hue and cry and the accused drove the vehicle towards Badiara. Statement of PW-1 prosecutrix has not been corroborated by PW-3 Rajeev Rithwan and PW-9 Laxmi. These two witnesses have categorically deposed that the girls gave signal to take lift in the bolero. The prosecutrix boarded the jeep but PW-9 Laxmi could not board the jeep due to rush. Case of the prosecution is that the prosecutrix was forcibly lifted and she raised hue and cry. PW-8 Amarjeet Singh heard the cries of the girl and the vehicle was chased. PW-3 Rajeev Rithwan has categorically denied in his cross-examination that PW-1 prosecutrix was raising hue and cry inside the Bolero. 13. Section 363 of the Indian Penal Code has following essentials: (i) That the accused did: a. Forceful compulsion or inducement by deceitful means; b. The object of such compulsion or inducement must be the going of a person from any place; (ii) That such kidnapping of any person was done from India or from the lawful guardianship. 14. What emerges from the discussion of the statements of the prosecution witnesses is that PW-1 prosecutrix alongwith PW-9 Laxmi signalled the Bolero to stop. PW-1 boarded the jeep but PW-9 Laxmi could not board the jeep due to rush. Thus, the prosecution has failed to prove the case against the accused beyond reasonable doubt. 15. 14. What emerges from the discussion of the statements of the prosecution witnesses is that PW-1 prosecutrix alongwith PW-9 Laxmi signalled the Bolero to stop. PW-1 boarded the jeep but PW-9 Laxmi could not board the jeep due to rush. Thus, the prosecution has failed to prove the case against the accused beyond reasonable doubt. 15. Consequently, in view of analysis and discussion made hereinabove, the prosecution has failed to prove the case against the accused for offence punishable under section 363 of the Indian Penal Code. 16. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Judgment of conviction and sentence dated 31.10.2006 rendered by the Additional Sessions Judge; Shimla in Sessions Trial No. 2-R/7 of 2005 is set aside. Accused are acquitted of the charges framed against them by giving them benefit of doubt. Fine amount, if already deposited, be refunded to the accused. Bail bonds are discharged.