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2019 DIGILAW 584 (HP)

State Of Himachal Pradesh v. Ajay Kumar

2019-05-13

DHARAM CHAND CHAUDHARY, VIVEK SINGH THAKUR

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JUDGMENT Vivek Singh Thakur, J. (Oral) - State has preferred present appeal against acquittal of respondent by learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala vide judgment dated 4.4.2012 passed in sessions trial No. 6 of 2012/RBT SC No. 19-D/VII/11, title State vs. Ajay Kumar, in case FIR No. 80 of 2011, dated 13.5.2011 registered at Police Station Dharamshala, District Kangra, under Sections 363, 366 and 376 of Indian Penal Code. 2. We have heard Mr. J.S. Guleria, learned Additional Advocate General as well as Mr. Bhupinder Pathania, learned counsel for the respondent, and have also gone through the record. 3. In the present case, police machinery was set in motion by PW13 Ashwani Kumar, father of PW12 the victim, by approaching the police in Police Station Dharamshala on 13.5.2011 with a written complaint Ext.PW13/A suspecting kidnapping of his 16 years old daughter (PW12) by respondent/accused during the previous night, whereupon case FIR No. 80 of 2011 was registered under Sections 363 and 366 IPC in P.S. Dharamshala. Thereafter, on 18.5.2011, respondent/accused along with PW12 victim had appeared in the Police Station Dharamshala, whereafter statement of victim was recorded under Section 161 Cr.P.C., 1973 wherein it was alleged that victim had come in contact of respondent/accused in the year 2009 when she was studying in 9th class as she had travelled in his taxi to her school and at that time, respondent/accused has proposed her for friendship which was not replied by victim and thereafter, respondent/accused had taken her in his taxi on excursion tour to Mcleodganj and during those visits he had expressed his desire to make her his life partner after marrying her and thereafter he had developed physical relations with her more than once in a garden known as Kandiyala Bag situated near their village and on 10th May, 2011, he had met her in the same garden at 3 PM and had asked her to accompany him during night intervening 12th and 13th May, 2011, without informing her parents, so as to visit Amritsar for performing marriage and thereupon, influenced by respondent/accused, she had left her home and accompanied the accused on foot upto Shahpur and thereafter they had boarded the bus to Amritsar and at Amritsar, he had again violated her forcibly on the pretext of marriage and thereafter he had executed an agreement of marriage at Amritsar. 4. 4. It is the case of prosecution that on the basis of statement of victim, offence under Section 376 IPC was also added in the case FIR. It is further case of the prosecution that on the basis of identification by victim as well as accused, spot map (Ext.PW23/A) of houses of accused and victim, Kandiala garden, the path which was adopted by accused and victim during night after leaving their village to visit Amritsar and spot of boarding the bus and also spot map (Ext.PW23/B) of location of Amrit Guest House at Amritsar were prepared. During investigation letters Ext.PW12/A and Ext.PW12/B sent by respondent/accused to victim were taken into possession on production by victim. The accused and victim were medically examined and their MLCs Ext.PW5/B and Ext.PW11/C were also obtained. Relevant page of the register Ext.PW9/A maintained by Amrit Guest House indicating the stay of respondent/accused along with another person on 15.5.2011 was also taken into possession, which was also containing the signatures of respondent/accused, which were sent and matched with the admitted hand writing of respondent/accused on the analysis in RFSL Dharamshala. Date of birth certificates Ext.PW7/A and Ext.PW8/B of victim, were also taken in possession from Panchayat and Primary school. After receiving the RFSL report of chemical examination on clothes of victim and accused and vaginal swab of victim, it was opined by doctor that there was evidence of sexual intercourse. On the basis of X-rays, doctor Anupma (PW4) had opined that victim was between the age of 17-19 years. 5. Defence of respondent/accused is that victim had accompanied him on her own, whereas respondent/accused was asking her to wait till attaining the age of 18 years, however, by writing a letter Ext.D1, she had compelled the respondent/accused to accompany her after leaving her house and to perform the marriage. 6. The trial Court, after going through the record, finding prima facie complicity of respondent/accused, had framed charges against respondent/accused under Sections 363, 366 and 376 IPC. After recording the statements of 23 prosecution witnesses, statement of respondent/accused was recorded under Section 313 Cr.P.C., 1973 whereafter he had opted not to lead any evidence in his defence and on conclusion of trial, the trial Court has acquitted the accused. 7. Victim and her father/complainant have been examined as PW12 and PW13. Mother of victim was given up by the prosecution being repetitive in nature. 8. PW11 Dr. 7. Victim and her father/complainant have been examined as PW12 and PW13. Mother of victim was given up by the prosecution being repetitive in nature. 8. PW11 Dr. Ruby Bhardwaj has examined victim on 16.5.2011 and PW6 Bali Ram Radiographer had taken the X-ray of victim and PW4 Dr. Anupma Medical Officer had assessed the age of victim on the basis of X-ray films Ext.P1 to Ext.P3 and had opined that her age was between 17-19 years. PW5 Dr. S. Chkrawarti had examined the respondent/accused. 9. PW14 Amit is a taxi driver, who has proved on record the writing of letter to the victim on behalf of respondent/accused when respondent/accused was not able to write the same on account of injuries in his hand. PW9 Prabhjot Singh, owner of Amrit Guest House Amritsar has proved the page of his register and has identified the respondent/accused as a person who had stayed in his Guest House on 15.5.2011. PW17 Dr. Visheshwar Sharma has proved the signatures of respondent/accused on the page of the said register in his hand writing. PW19 SI Mukesh Kumar has registered the case FIR on the basis of complaint submitted by PW13 Ashwani Kumar. PW15 HC Rahul Rishi has performed the role of MHC during the investigation for accepting the case property and sending the various articles/samples to RFSL Dari through PW16 C. Amarjit Singh and PW10 HHC Dharam Chand. Witnesses PW1 Tripta, PW2 Parkash Chand, PW3 Chaman Lal, PW7 Vijay Kumar, PW8 Suresh Kumar, PW18 Sanjeev Kumar and PW22 Balbir Singh are witnesses of recovery/seizure memos of letters, date of birth certificate, marriage agreement, preparation of spot map on identification of victim and accused. PW20 ASI Suram Singh has investigated the case partly by recording statements of some witnesses. PW23 ASI Om Parkash has conducted the investigation and has submitted the file to PW21 SHO Ramesh Kumar who had prepared the challan and presented it in the Court. 10. Entire case of prosecution rests upon the statement of victim, who has been examined as PW12. PW23 ASI Om Parkash has conducted the investigation and has submitted the file to PW21 SHO Ramesh Kumar who had prepared the challan and presented it in the Court. 10. Entire case of prosecution rests upon the statement of victim, who has been examined as PW12. In her deposition in Court, she has not only denied violation of her person by respondent/accused at any point of time, but has also disowned her statement Ext.PW23/C recorded under Section 161 Cr.P.C., 1973 She was declared hostile and subjected to cross examination by learned Public Prosecutor, but therein also she has specifically denied the portions of her statement Ext.PW23/C to have been deposed by her to the police. Though she has admitted the acquaintance with the accused since 2009 during her school days and visiting Kandiala garden on calls, but has denied any untoward happening there. It is well settled law that even portion of deposition of a hostile witness, which lend credence on the basis of corroboration from other material on record, can be relied upon in favour of either of party. Though in her deposition, victim has stated that accused had taken away her from house of her parents during night of 12th May, 2011 by saying that he would marry her at Amritsar, but in the cross examination she has denied that during that night respondent/accused had asked her to come out of her house by throwing a stone by him on the roof of her house so as to take her to Amritsar for solemnizing marriage with her. She has specifically denied the allegations of forcible violation of her person by accused. She has admitted the letters Ext.PW12/A and Ext.PW12/B were written by accused to her and also letter Ext.D1 was written by her to the accused. She has also admitted that on her return from Amritsar, she was wearing ''Chura'' and also having Sindoor on her head. 11. Deposition of victim and her father has vanished the allegations of sexual intercourse with victim. As per the opinion of Doctor in MLC Ext.PW11/C, there is evidence of sexual intercourse. But that much evidence is not sufficient to hold that it was respondent/accused who had violated the person of victim much less forcibly. Therefore, despite having evidence of intercourse in her medical examination Ext.PW11/C, the accused cannot be convicted for that. 12. As per the opinion of Doctor in MLC Ext.PW11/C, there is evidence of sexual intercourse. But that much evidence is not sufficient to hold that it was respondent/accused who had violated the person of victim much less forcibly. Therefore, despite having evidence of intercourse in her medical examination Ext.PW11/C, the accused cannot be convicted for that. 12. PW13 Ashwani Kumar, father of victim, either in his complaint or in his deposition in Court, has not uttered a single word about violation of the person of his victim daughter (PW12) by accused at any point of time, which might have come in his knowledge on disclosure by his victim daughter (PW12) or otherwise. Mother of victim has not been examined being a witness to facts repetitive in nature. Therefore, there is no oral evidence of violation of person of victim daughter by respondent/accused. There is no sufficient evidence to substantiate the charge against the accused under Section 376 IPC. 13. For convicting the respondent/accused under Sections 363 and 366 IPC, it has to be proved by prosecution that victim was kidnapped by accused from lawful guardianship of her parents and for kidnapping it is necessary to establish on record that victim, being under 18 years of age, was taken away or enticed out of the keeping of her lawful guardian without consent of such guardian. 14. First of all, with regard to age of victim, prosecution itself has led self contradictory evidence. One hand reliance has been placed on certificates of date of birth (Ext.PW7/B and Ext.PW8/B) indicating her age below 18 years and on the other hand opinion of PW4 Dr. Anupma has also been relied wherein age of victim has been assessed between 17 to 19 years. Therefore, for self contradictory evidence relied upon by prosecution, benefit of doubt may be extended to the accused in given peculiar facts and circumstances of present case. Even otherwise, in case age of victim is considered below 18 years, then also ingredients for convicting the respondent/accused under Sections 363 and 366 IPC are missing on record. 15. In the deposition in Court, PW12 has categorically stated in her examination-in-chief that upto Shahpur they went on foot and therefrom onwards by bus. Even otherwise, in case age of victim is considered below 18 years, then also ingredients for convicting the respondent/accused under Sections 363 and 366 IPC are missing on record. 15. In the deposition in Court, PW12 has categorically stated in her examination-in-chief that upto Shahpur they went on foot and therefrom onwards by bus. The crux of letters Ext.PW12/A and Ext.PW12/B, written by respondent/accused to victim, proved on record by prosecution itself, is that respondent/accused was expressing his love towards victim with request to her to wait uptil attaining the age of 18 years for performing the marriage with advice to her that any act on their part, as being proposed by her, would be an offence as law was not permitting it and it also appears from these letters that victim was threatening to end her life for not succumbing to her desire and respondent/accused was trying to pacify and assure her on his part with advice for not to end the life. In letter Ext.D1 written by victim to the respondent/accused, she had expressed her extreme love for respondent/accused with desire to marry him and had stated that respondent/accused was worried about punishment instead of taking her care and had further stated that she would not depose against the accused/respondent and had said that in case respondent/accused was also loving her then he had to agree with her and further she had expressed that she was intending to leave the home and run away to live with him and she had further asked to do anything to take her with him by taking a decision by Saturday for taking her away by Monday, failing which she had threatened to end her life. In the last, she had stated that action of respondent/accused would decide intensity of his love for her and also that it was true love or cheating. 16. In the last, she had stated that action of respondent/accused would decide intensity of his love for her and also that it was true love or cheating. 16. The tone and tenor of letters Ext.PW12/A, Ext.PW12/B and Ext.D1 indicates that relations between the respondent/accused and victim had come in the knowledge of their families and parents of victim had threatened and abused her and were also abusing the respondent/accused and respondent/accused was asking the victim to wait till attaining the age of 18 years for solemnizing marriage but on account of harsh treatment given by family of victim and possibility of solemnizing her marriage by her parents with someone else, she was pressing hard to take her away or to see her dead body. 17. From the evidence on record, it appears that it is not the case of alluring, instigating, taking or enticing the victim by accused to keep her out of lawful guardianship of her parents. There is nothing on record to establish that at any point of time, prior to the victim leaving her house, any active part was played by accused or even at any earlier stage he had solicited or persuaded her to do so. Rather, on the contrary, evidence is on record, to establish that it was victim who was insisting the respondent/accused to marry her without waiting further or to see her dead body and it is apparent that she had joined the respondent/accused after leaving her house and walked with him on foot a long distance from her village to Shahpur to board the bus to Amritsar. No doubt, respondent/accused, who was in love with victim, had facilitated the desire of victim but under compulsion but such evidence, in our view, in facts and circumstances of present case, is insufficient to hold that respondent/accused had kidnapped the victim. 18. From above discussion, it is apparent that there is no sufficient evidence on record to establish beyond reasonable doubt that respondent/accused has committed the offence under Sections 363, 366 and/or 376 IPC. Therefore, there is no necessity to discuss other evidence on record as the prosecution has failed to establish foundation of case by leading cogent, reliable, trustworthy and confidence inspiring evidence on record. 19. Prosecution has failed to point out any incriminatory evidence on record against the respondent, not considered by the trial Court. Therefore, there is no necessity to discuss other evidence on record as the prosecution has failed to establish foundation of case by leading cogent, reliable, trustworthy and confidence inspiring evidence on record. 19. Prosecution has failed to point out any incriminatory evidence on record against the respondent, not considered by the trial Court. The trial Court has considered the entire evidence on record completely and correctly. There is no illegality, irregularity or perversity in judgment. Acquittal of respondent has neither resulted into travesty of justice nor has caused miscarriage of justice. Therefore, we find no ground for inferference in the impugned judgment. Appeal is dismissed accordingly. Bail/surety bonds furnished by respondent and his surety are discharged. Record be sent back to the concerned Court.