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2020 DIGILAW 31 (UTT)

Gaje Singh v. State Of Uttarakhand

2020-01-08

R.C.KHULBE

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JUDGMENT R.C. Khulbe, J. - The present appeal is directed against the judgment and order dated 07.10.2008 passed by the Additional Sessions Judge, Roorkee, District Haridwar in Sessions Trial No.250 of 2007, State vs. Sonu and others, whereby the appellants were found guilty for the offence punishable under Section 363 of IPC, and each of them was sentenced to undergo three years' rigorous imprisonment with fine of Rs. 1,000/- each. By the same judgment, co-accused Sonu was acquitted by the Court below for the charges levelled against him. 2. Brief facts of the present case, inter alia, are that the complainant Mahendra had given written information Ex. Ka-1 on 25.07.2006 to the Police Station Mangalore with the allegations that he had gone out from his house for doing labourer work; his daughter Pooja aged about 14 years was, alone at the house. The accused-Jogendra, who was the relative of his brother, was also residing in the same village for some days. On 18.07.2006, he took away his daughter Pooja. There was a suspicion on Sonu, Khushi and Mahipal. On the basis of the said information an FIR Ex.Ka-7 was lodged on 25.07.2006 at about 14:10, at Police Station Manglore (Roorkee). On 07.08.2006, Km. Pooja was recovered from the possession of the accused, accordingly recovery memo Ex. Ka-2 was prepared by PW-5, SI Rajesh Bisht. 3. Investigating Officer conducted investigation in the matter and submitted the charge-sheet against the appellants- Gaje Singh and Babli under Sections 363, 366 and 120-B of IPC and as against the accused Jogendra under Sections 363, 366, 376 and 120-B of IPC. 4. Since at the time of occurrence the accusedJogendra was found minor, hence inquiry was conducted by the Juvenile Board, Haridwar. 5. The trial court framed charges against the appellants-accused- Gaje Singh and Babli for the offences punishable under Sections 363/ 366, 120-B r/w Section 363 IPC, to which they pleaded not guilty and claimed trial. 6. To prove the prosecution story, PW-1 Mahendra, PW-2 Pooja, PW-3 Rakesh Kumar, PW-4 Dr. Kamal and PW-5 SI Rajesh Bisht, were examined as prosecution witnesses. Thereafter, the statements of appellants-accused were recorded under Section 313 of Cr.P.C. In defence, the appellants-accused did not produce any evidence. 7. The trial court, having perused the entire material made available on record, vide judgment and order under appeal, convicted and sentenced the appellants, as mentioned hereinabove. Kamal and PW-5 SI Rajesh Bisht, were examined as prosecution witnesses. Thereafter, the statements of appellants-accused were recorded under Section 313 of Cr.P.C. In defence, the appellants-accused did not produce any evidence. 7. The trial court, having perused the entire material made available on record, vide judgment and order under appeal, convicted and sentenced the appellants, as mentioned hereinabove. Feeling aggrieved, appellants have preferred present appeal. 8. Heard learned counsel for the respective parties and perused the entire material available on the record. 9. Pw-1 Mahendra, who is the informant, stated that he knows the accused. This occurrence took place two years ago. Jogendra, who was residing with the accused Sonu, took away his daughter aged about 14 years old, by enticing her in his absence. 10. Pw-2 Pooja stated that the occurrence took place two years ago. She was studying in Class-8th. The accused Jogendra was residing with Sonu. Accused Jogendra had enticed her away to Laksar at the residence of Babli and Gaje Singh. They forced her to wear the clothes and they sent her with Jogendra at Jalandhar. In Jalandhar, accused- Jogendra had kept her some time at the station, Dharmshala & sometimes at a temple and committed sexual intercourse with her against her will. After 15-16 days, Jogendra took her away to Manglore, where the police caught them. 11. Pw-3 Rakesh Kumar stated that Pooja was the daughter of his uncle. On 18.07.2006, Jogendra had enticed away Pooja. Babli and Gaje Singh had assisted Jogendra Singh in taking away of Pooja. On 07.08.2006, he informed his uncle Mahendra that Jogendra and Pooja were standing at Mangalore bus station and informed the police, accordingly. Thereafter, the police came at the spot and arrested Jogendra and then Pooja was given in the custody of her father. 12. Pw-4 Dr. Kamal stated that on 07.08.2006, he was posted at Government Hospital, Roorkee, as Medical Officer; on that day he conducted medical examination of Kr. Pooja and prepared the report Ex.Ka2 and supplementary report Ex.Ka-3. 13. Pw-5 S.I. Rajesh Bisht, stated that on 25.07.2006, he was posted at Police Station Mangalore as a Sub Inspector. On that day, the FIR was lodged on the basis of information given by PW-1 Mahendra. He recorded the statements of witnesses and prepared the site map Ex. Ka-5, recovery memo Ex.Ka-2 and then, submitted the charge-sheet after completion of the investigation. 14. On that day, the FIR was lodged on the basis of information given by PW-1 Mahendra. He recorded the statements of witnesses and prepared the site map Ex. Ka-5, recovery memo Ex.Ka-2 and then, submitted the charge-sheet after completion of the investigation. 14. It is argued by learned counsel for the appellants that the appellants have been falsely been implicated in the crime and there is no evidence on record to convict them under Section 363 of IPC. As per the evidence adduced by the prosecution witnesses, all the allegations were made against Jogendra, but he, being a minor, was inquired by the Juvenile Board Haridwar, in which prosecutrix-Pooja was produced as PW-1 and she did not support the prosecution story as alleged in the FIR. Ultimately, Jogendra was acquitted by the Juvenile Board, Haridwar on 30.05.2014. Since Jogendra has been acquitted by the Juvenile Board, hence the present appellants-accused are also entitled for benefit of doubt. 15. From the perusal of the FIR Ex.Ka-1, the occurrence took place on 18.07.2006, while PW-1 Mahendra gave information to the police station, Mangalore on 25.07.2006, which shows that the FIR was lodged after seven days of the occurrence. The delay in lodging the FIR is not properly explained by the prosecution. 16. From the perusal of the statement of PW-1 Mahendra, who is the father of prosecutrix- Pooja, it is clear that at the time of occurrence, he was out of the village and as per the FIR Ex. Ka-1 and the statement of PW-1 Mahendra, at the time of occurrence, no other person was present at the house of PW-1 Mahendra where PW-2 Pooja was staying. The prosecutrix Pooja was produced as PW-2, who stated that when she proceeded from the house, at that time, only Jogendra was along with her and none else was there. It clearly shows that at the time of taking away of Pooja by Jogendra, the present appellants were not present there, which shows that the appellants-accused did not kidnap Pooja from her house. 17. As per the statement of prosecutrix Pooja the accused Jogendra took her at the house of appellants where the appellants forced her to wear the clothes and sent her with Jogendra. There is no allegation against the present appellants that the appellants took her away forcefully from her house. 18. Pw-3 Rakesh Kumar is not the eye witness of the scene. There is no allegation against the present appellants that the appellants took her away forcefully from her house. 18. Pw-3 Rakesh Kumar is not the eye witness of the scene. The prosecutrix Pooja was recovered at the Police Station Mangalore in his presence. When the prosecutrix Pooja was kidnapped, at that time PW-3 Rakesh Kumar was not there. 19. Pw-4 Dr. Kamal is a formal witness of the case, who examined PW-2 Pooja and prepared the medical report. 20. Pw-5 SI Rajesh Bisht, is the formal witness of the case, who investigated the matter and submitted the charge sheet, accordingly. 21. Pw-2 Pooja was also produced before the Juvenile Board as PW-1 where she categorically stated that the accused Jogendra never kidnapped her nor committed sexual intercourse with her. 22. From the perusal of the statement of Pooja recorded before the Juvenile Board, she did not support the prosecution story as alleged in the FIR and she did not make any allegations against the present appellants also. 23. Since the accused Jogendra did not kidnap the prosecutrix Pooja from her house then, there does not arise any question to kidnap her by the appellants also, because as per the statement of Pooja when they started from her house at that time, only Jogendra was there. The medical report was prepared by the PW-4 Dr. Kamal, which is Ex. Ka-3 and Ex.Ka-4 in which no spermatozoa, either dead or alive, was found. 24. From the reassessment of the evidence, I have come to the conclusion that the trial Court convicted the accused only on the basis of statements given in chief by PW-2 Pooja, while there is no sufficient evidence on record against the present appellants. I have reached to the conclusion that there is no clinching evidence available on record to convict the accused under Section 363 of IPC. 25. For the reasons, as recorded hereinabove, the appeal preferred by the appellants is liable to be allowed. The appeal is, accordingly, allowed, with the result, the judgment and order dated 07.10.2008 passed by the Additional Sessions Judge, Haridwar in Sessions Trial No.250 of 2007, State vs. Sonu and others is, accordingly, set aside against the appellants. Resultantly, the accused/appellants are acquitted from the charge framed against them under Section 363 of IPC. 26. Accused are on bail. They need not to surrender. Resultantly, the accused/appellants are acquitted from the charge framed against them under Section 363 of IPC. 26. Accused are on bail. They need not to surrender. Their bail bonds are cancelled and sureties are discharged. 27. A copy of this judgment and order along with the LCR be sent to the Court below.