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2025 DIGILAW 694 (HP)

SUNIL KUMAR v. State of H. P.

2025-04-08

RAKESH KAINTHLA

body2025
JUDGMENT : (Rakesh Kainthla, J.) The present appeal is directed against the judgment of conviction dated 30.11.2010 and order of sentence dated 01.12.2010 passed by learned Additional Sessions Judge, Fast Track Court, Chamba, (learned Trial Court) vide which the appellant (accused before the learned Trial Court) was convicted of the commission of an offence punishable under Section 366 of Indian Penal Code (in short ‘IPC’) and was sentenced to undergo simple imprisonment for one year, pay a fine of Rs.5,000/- and in default of payment of fine to undergo further simple imprisonment for 30 days for the commission of aforesaid offence. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience). 2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for the commission of offences punishable under Sections 363 and 366A of the IPC. It was asserted that the victim (name withheld to protect her identity) had gone to graze her sheep on 24.03.2009. She was going to the house of her maternal aunt when she met the accused, who was unknown to her. The accused caught hold of the victim and took her to his room. He told her that he wanted to marry her and kept her in the room. He went to his job in the morning, and the victim escaped from the room. Her uncle met her on the way. The victim went to her home. The matter was reported to the police and F.I.R. (Ext.PW-1/A) was registered at the Police Station. SI Ram Nath (PW-14) conducted the investigation. He filed an application (Ext.PW-14/A) for the medical examination of the victim. Doctor Anuradha Mahajan (PW-15) conducted medical examination of the victim and found that the victim had not sustained any injury. There was nothing to suggest that sexual intercourse had taken place. She issued MLC (Ext.PW-15/A) and preserved the clothes and samples of the victim. She handed them over to the police official accompanying the victim. Ram Nath (PW-14) arrested the accused. He made an application (Ext PW 14/B) for conducting the medical examination of the accused. Doctor Vivek Kaushal (PW-10) conducted the medical examination of the accused and found that there was nothing to suggest that the accused was incapable of performing sexual intercourse. She handed them over to the police official accompanying the victim. Ram Nath (PW-14) arrested the accused. He made an application (Ext PW 14/B) for conducting the medical examination of the accused. Doctor Vivek Kaushal (PW-10) conducted the medical examination of the accused and found that there was nothing to suggest that the accused was incapable of performing sexual intercourse. He preserved the sample and underwear of the accused. He issued an MLC (Ext.PW-10/A) and handed over the sample to the police official accompanying the accused. SI Ram Nath (PW-14) went to the spot and prepared the site plan (Ext.PW-14/C). He seized the bed sheet from the house of the accused vide memo (Ext.PW- 3/A). He put the bed sheet in a parcel, and sealed the parcel with five impressions of seal ‘D’. The seal impression (Ext.PW3/B) was taken on a separate piece of cloth. Age certificates of the victim (Ext. PW-7/A and Ext.PW-7/B) were obtained from the school authorities by filing an application, (Ext.PW-14/D). SI Ram Nath (PW-14) filed an application (Ext.PW-14/E) for obtaining the birth certificate of the victim. Certificates (Ext.PW-6/A and Ext.PW-6/B), and a copy of the extract of the Pariwar Register (Ext.PW-6/C) were obtained. The samples were sent to SFSL, Junga, for analysis, and the result (Ext.PX) was issued showing that no blood and semen were detected in the bed sheet, salwar, shirt, vaginal swab and pubic hair of the victim. Human blood was found on the pubic hair and underwear of the accused. Statements of witnesses were recorded as per their version, and after completion of the investigation, the challan was prepared and presented before the learned Chief Judicial Magistrate, Chamba, who committed it for trial to the learned Sessions Judge, Chamba, H.P. Learned Sessions Judge, Chamba, assigned it to learned Additional Sessions Judge, Fast Track Court, Chamba (learned Trial Court). 3. The learned Trial Court charged the accused with the commission of offences punishable under Sections 363 and 366-A of the IPC, to which he pleaded not guilty and claimed to be tried. 4. The prosecution examined fifteen witnesses to prove its case. The victim (PW-1), narrated the incident. Her father (PW-2) proved that the victim was found missing. Her uncle (PW-3) met the victim when she had escaped from the room of the accused. 4. The prosecution examined fifteen witnesses to prove its case. The victim (PW-1), narrated the incident. Her father (PW-2) proved that the victim was found missing. Her uncle (PW-3) met the victim when she had escaped from the room of the accused. Roop Chand (PW-5) and Ram Lal (PW-4) found the victim and accused going together but they did not support the prosecution case. Harish Thakur (PW-6) produced the birth record of the victim and a copy of the Pariwar Register. Prahlad Kumar (PW-7) proved the date of birth of the victim from the school last attended by the victim. Onkar Singh (PW-8) carried the case property to SFSL, Junga. Madan Lal (PW-9) was working as MHC with whom the case property was deposited. Dr Vivek Kaushal (PW-10) conducted the medical examination of the accused. Paras Ram (PW-11) and Jatinder Kumar (PW-12) prepared Tatimas. Sohan Singh (PW-13) handed over the birth certificate of the victim to the police. Ram Nath (PW-14) investigated the case. Dr Anuradha Mahajan (PW-15) conducted the medical examination of the victim. 5. Accused in his statement recorded under Section 313 of Cr.P.C. admitted that he was medically examined. He denied rest of the prosecution's case. He stated that there was a dispute between the company officials and landowners regarding the acquisition of the land. He was falsely implicated due to the dispute. He claimed that he was innocent and that he was falsely implicated. No defence was sought to be adduced by him. 6. The learned Trial Court held that the testimony of the victim was satisfactory. It was corroborated by the statements of her father and her uncle that the victim was kidnapped by the accused with the intent to solemnize marriage with her. She was a minor on the date of the incident and was taken out of the guardianship without the consent of her father. Therefore, the accused was convicted and sentenced as aforesaid. 7. Feeling aggrieved and dissatisfied with the judgment of conviction and order of sentence passed by learned Trial Court, the accused has filed the present appeal, asserting that the learned Trial Court erred in convicting and sentencing the accused. Ram Lal (PW-4) and Roop Chand (PW-5) did not support the prosecution case, and they were declared hostile. There were various contradictions in the testimonies of the prosecution witnesses and the learned Trial Court erred in relying upon them. Ram Lal (PW-4) and Roop Chand (PW-5) did not support the prosecution case, and they were declared hostile. There were various contradictions in the testimonies of the prosecution witnesses and the learned Trial Court erred in relying upon them. The victim was not proved to be a minor. Therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. 8. I have heard Mr. Karan Sharma, learned counsel for the appellant and Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent-State. 9. Mr. Karan Sharma, learned counsel for the appellant, submitted that the victim did not raise any hue and cry and accompanied the accused to his room voluntarily. The accused expressed his intention to marry her and left the door open to allow the victim to escape. These circumstances are inherently improbable. Hence, he prayed that the present appeal be allowed and the judgment of conviction and order of sentence passed by learned Trial Court be set aside. He relied upon the judgments passed by this Court in Sunil Kumar @ Sunny vs. State of Himachal Pradesh 2024 STPL 9955 HP , Minga Ram vs. State of H.P. Latest HLJ2014 (1) HP 97 and Kuldeep Kumar vs. State 2013(1) SLC 517 in support of his submission. 10. Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent/State, submitted that the learned Trial Court had found the victim’s testimony creditworthy. Her testimony was corroborated by her uncle. There is nothing inherently improbable in her testimony. Hence, he prayed that the present appeal be dismissed. 11. I have considered the submissions made by learned counsel for the parties at the bar and have gone through the records carefully. 12. As per the prosecution, Roop Chand (PW-5) and Ram Lal (PW-4) had seen the victim and the accused together. However, they did not support the prosecution’s case. Roop Chand (PW-5) denied that he had seen the accused and the victim together. He denied his previous statement recorded by the police. Similarly, Ram Lal (PW-4) denied that he had seen the accused and the victim going together. He also denied his previous statement recorded by the police. Thus, both the witnesses have not supported the prosecution's case, and the prosecution cannot derive any advantage from their testimonies. 13. He denied his previous statement recorded by the police. Similarly, Ram Lal (PW-4) denied that he had seen the accused and the victim going together. He also denied his previous statement recorded by the police. Thus, both the witnesses have not supported the prosecution's case, and the prosecution cannot derive any advantage from their testimonies. 13. The victim (PW-1) stated that the accused threatened her and took her to his room forcibly. The accused asked her to marry him, but she refused. She asked the accused to leave her at her uncle’s house, but he kept her in his room. She managed to get out of the room in the absence of the accused and met her uncle. She narrated the incident to her uncle. 14. She stated in her cross-examination that it takes 45 minutes to reach the room of the accused. Vehicles and people were moving on the road leading to the room of the accused; however, none met her on the way. She admitted that the project work was going day and night on in the area of Tarwai, where the room of the accused is located. 6-7 houses were situated adjacent to the road where she was kept. She did not disclose this fact to any person that the accused had forcibly taken her. She admitted that there was a dispute between the villagers and the company officials. She denied that she had falsely implicated the accused due to the dispute. 15. The testimony of the victim is not satisfactory. She claimed that the accused was not known to her, but still she accompanied the accused. She stated that the accused had forcibly taken her with him. She admitted that there are houses near the room of the accused, and it takes about 45 minutes to reach the room of the accused. It is not shown that she had protested while she was being taken to the room of the accused or that she had shouted for help. She claimed that the accused asked her to marry him, and when she refused, the accused kept her inside the room. However, she also stated that she left the room after the accused had left for his job, clearly suggesting that the room was not locked. Had the accused wanted to confine her in his room, he would not have left the door open. 16. However, she also stated that she left the room after the accused had left for his job, clearly suggesting that the room was not locked. Had the accused wanted to confine her in his room, he would not have left the door open. 16. The testimony of the victim shows that she was not known to the accused, however, there is nothing on record to explain why the accused would pick a random girl, take her to his room to marry her and leave the room open to enable her to escape from the room. Her version is not corroborated by Ram Lal (PW-4) and Roop Chand (PW-5), who denied that they had seen the accused and the victim. All these circumstances make it difficult to rely upon her version without any corroboration from independent sources. 17. Her father (PW-2) stated that the victim used to go to the house of her uncle. He went to the house of his brother on 25.03.2009, but the victim was not present in the house of her uncle. He started searching for the victim. Ram Lal (PW-4) said that he had noticed the accused and his (PW-2) daughter going towards Talwai. On 25.03.2009, his brother (PW-3) told him at 11:00 p.m. that the victim met him near the bridge towards Talwai. PW-2 stated in his cross-examination that the distance between Dadiyun and Talwai is about 3-4 km. 4-5 houses exist in the village Talwai. He had not seen the accused taking the victim and was told about this fact by Ram Lal (PW-4). Ram Lal (PW-4) did not support this version in the Court on oath. Thus, his testimony does not provide any corroboration of the testimony of the victim. 18. His brother (PW-3) (uncle of the victim) stated that the victim did not reach his home on 24.03.2009. He thought that she might have stayed in her father’s home. His brother sent Jai Singh on 25.03.2009 to enquire about the victim, and he (PW-3) told Jai Singh that the victim had not reached his house. He, the victim’s father and other villagers searched for her. Roop Chand (PW-5), Ram Lal (PW-4) and Piar Singh met them. Roop Chand (PW-5) and Ram Lal (PW-4) disclosed that they had seen the victim with the accused 30 minutes before meeting them. This fact was told on 25.03.2009 at noon. He, the victim’s father and other villagers searched for her. Roop Chand (PW-5), Ram Lal (PW-4) and Piar Singh met them. Roop Chand (PW-5) and Ram Lal (PW-4) disclosed that they had seen the victim with the accused 30 minutes before meeting them. This fact was told on 25.03.2009 at noon. Rasalu Ram (PW-3) went to the room of the accused, where the accused was present. The accused denied that the victim had visited his room. He noticed that the victim was sitting near the bridge. She revealed on enquiry that the accused had dragged her towards his room after gagging her mouth. He took the victim to his room and informed the victim’s father. Thereafter matter was reported to the police. 19. His testimony does not support the prosecution case. As per him, Roop Chand (PW-5) and Ram Lal (PW-4) had seen the accused and the victim on 25.03.2009. It is not the prosecution case that the victim and the accused were together on 25.03.2009; rather, the victim stated that the accused had left for his job and she escaped from the room, taking advantage of the absence of the accused. Hence, his testimony cannot be believed that the accused and the victim were together on 25.03.2009. 20. There is no other evidence to support the victim’s version. The victim claimed that the accused had dragged her after gagging her mouth. This shows that she had resisted, but no corresponding injury was found on her person by the Medical Officer. Therefore, medical examination does not corroborate the testimony of the victim. 21. There is no evidence to connect the accused with the commission of a crime. The testimony of the victim is not sufficient to conclude that the accused had kidnapped her with intent to marry her. Learned Trial Court failed to notice the inherent improbability in the testimony of the victim and erred in convicting and sentencing the accused. 22. In view of the above, the present appeal is allowed and the judgment of conviction and order of sentence passed by learned Trial Court is set aside and the accused is acquitted of the commission of an offence punishable under Section 366A of IPC. 22. In view of the above, the present appeal is allowed and the judgment of conviction and order of sentence passed by learned Trial Court is set aside and the accused is acquitted of the commission of an offence punishable under Section 366A of IPC. The fine amount, if deposited by the appellant, be refunded to him after the expiry of the statutory period of limitation in case of no further appeal and in case of appeal, the same be dealt with as per the orders of the Hon’ble Apex Court. 23. In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023) the appellant is directed to furnish bail bonds in the sum of Rs.50,000/- with one surety of the like amount to the satisfaction of the learned Trial Court which shall be effective for six months with a stipulation that in an event of a Special Leave Petition being filed against this judgment or on grant of the leave, the appellant on receipt of notice thereof shall appear before the Hon'ble Supreme Court. 24. In view of above, the present appeal stands disposed of, so also also the pending miscellaneous application(s), if any. 25. A copy of the judgment, along with record of the learned Trial Court, be sent back forthwith.