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2024 DIGILAW 168 (UTT)

State of Uttarakhand v. Ashwani

2024-03-06

ALOK KUMAR VERMA, RITU BAHRI

body2024
JUDGMENT : (Ritu Bahri, CJ.) : The State has come up with this Government Appeal No. 94 of 2013, as against the judgment of acquittal dated 06.05.2013, passed by the IIIrd Addl. Sessions Judge, Haridwar, in Sessions Trial No.282 of 2010, “State Vs. Ashwani”, whereby, the learned Trial Court has acquitted the respondent-Ashwani for the offence under Sections 376, 366, 368 and 506 of the IPC. However, the accused-respondent-Ashwani has been convicted for three years for the offence under Section 363 of the IPC, for kidnapping a minor girl from the custody of her legal guardian. 2. In the Government Appeal No.94 of 2013, Mr. J.S. Virk, learned Deputy A.G. for the State/appellant has argued that the conviction under Section 376 of the IPC could have been made. 3. However, a perusal of the medical report, at page-6 of the paper book, shows that there were no injuries on the private parts of the victim and the sample of vaginal swab has been sent for histopathological examination. Page 7 of the paper book is the ossification report assessing the age of the victim and report of the vaginal swab. As per the ossification report, at page 7 of the paper book, the age of the victim was about 18 years, and there was no spermatozoa seen dead or alive on the vaginal swab. Hence, the offence per se is not made out from this report. The judgment of the Trial Court acquitting the accused for the offence under Section 376 of the IPC has rightly been passed. 4. With regard to other offences under Section 366, 368 & 506 of the IPC, the victim was more than 18 years of age and she had accompanied with the respondent-accused on 21st April, 2010 on a motorcycle. She had gone from Roorkee to Haridwar. Subsequently, on a complaint made by her father, she was recovered on 22nd April, 2010 and an FIR, Ext.Ka.7-page 8, was registered on 21st April, 2010 under Sections 363, 366A and 506 of the IPC. The victim was recovered on 22nd April, 2010. 5. The complainant was the father of the victim. The charges were framed against the accused-Ashwani for the offence under Sections 366, 376, 368 and 506 of the IPC. 6. The victim had appeared in the witness box as PW2. The victim was recovered on 22nd April, 2010. 5. The complainant was the father of the victim. The charges were framed against the accused-Ashwani for the offence under Sections 366, 376, 368 and 506 of the IPC. 6. The victim had appeared in the witness box as PW2. She has stated in her statement that she was taken by the accused on 21.04.2010 on a motorcycle. She was recovered from the possession of the accused on 22.04.2010. She has further stated that the accused had committed rape upon her. The victim in her evidence has stated that she knew the respondent-accused, as the victim was in visiting terms with the sister of the accused. She had stated that after the school got over on 21.04.2010, the accused came on the motorcycle and picked her on the pretext that he will drop her back. She was recovered on 22.04.2010. 7. For making of an offence under Section 366 IPC, it is necessary that the abduction of a woman should be done with an intent to compel her to marry against her will, or to force or seduce her to illicit relationship. This is what has been laid down by the Hon’ble Apex Court in a case of Rajak Mohammad Vs. The State of Himachal Pradesh as reported in (2018) 9 SCC 248 . 8. In the present case, as per the medical evidence given, the victim was more than 18 years of age and even as per the report, at page-7, there was no spermatozoa seen on the vaginal swab. So the allegation under Section 376 of the IPC is also not made out. If the offence under Section 376 IPC is not made out, the offence under Section 366 of the IPC cannot be made out. Offence under Section 368 of the IPC is also not made out, because the victim has gone with the accused-respondent with her own consent as she was more than 18 years of age. The complaint was made by her father. The victim has stated in her evidence that she has gone with the accused with her own will. 9. The judgment of acquittal is rightly based on appreciating the evidence on the correct perspective. Hence, the Government Appeal (GA No.94 of 2013) is dismissed. The judgment of acquittal passed by the Trial Court is hereby affirmed. 10. The victim has stated in her evidence that she has gone with the accused with her own will. 9. The judgment of acquittal is rightly based on appreciating the evidence on the correct perspective. Hence, the Government Appeal (GA No.94 of 2013) is dismissed. The judgment of acquittal passed by the Trial Court is hereby affirmed. 10. As far as Criminal Appeal No. 236 of 2013, “Ashwani Vs. State of Uttarakhand” is concerned. Since the appellant is not represented by any counsel, the Court appoints Mr. D.N. Sharma, as an Amicus Curiae to assist the Court in this criminal appeal. 11. As per the observation made by this Court while dismissing the Government Appeal No.94 of 2013, in the present case since the victim was more than 18 years of age as per the ossification report and she was known to the accused being a neighbour. The victim was in visiting terms in the house of the accused, as the sister of the accused was teaching her. Being 18 years of age, the victim accompanied with the accused on the motorcycle. It is not the case of the State that the victim resisted on the motorcycle. There is no evidence that any stuff/tablet was given to the victim so that she became unconscious. As per the statement of the victim, some tablets were given and she became unconscious. Even this stand cannot be accepted as she was going on a motorcycle and after becoming unconscious, she could never have sat in the motorcycle and travel with the accused. The offence under Section 363 of the IPC will only be made out, if the girl is minor and she is taken from the company of legal guardian against her will. 12. Thus, the Criminal Appeal No. 236 of 2013 is allowed. Judgment and order dated 06.05.2013, passed by the IIIrd Addl. Sessions Judge, Haridwar, in Sessions Trial No.282 of 2010, “State Vs. Ashwani”, convicting the accused under Section 363 of the IPC is set aside. The accused-Ashwani is on bail. His bail bonds are cancelled and sureties are discharged. 13. Let the record of the case be sent back to the Trial Court for compliance.