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2020 Supreme(All) 16
IN THE HIGH COURT OF ALLAHABAD
KARUNESH SINGH PAWAR, J.
Sita Ram @ Guni and another - Appellant
Versus
State of U.P. - Respondent
Criminal Appeal No. 79 of 1997
Decided On : 14-01-2020
Advocate Appeared:
For the Appellant : J.N.Chaudhary, Amit Chaudhary
Headnote:
Cr.P.C – Section 161 – Appeal filed against judgment, informant brother of prosecutrix gave written report alleging that her sister Siya Dulari went to ease herself in night at around 9:30 p.m. then the appellants with an intent to sell her had taken her away which has been seen by Billeshwar, Shiv Pyare, and Rudrapal Singh of the village. He further stated that his father had already given an information regarding missing of his sister Police Station Maurawan. Lastly, it has been stated in the written report, that sister of the informant while going out from the house has taken away golden ring and other jewellery with her. tilak ceremony of the prosecutrix was fixed and marriage was fixed Upon a written report, Chik FIR was registered which is Exhibit Ka-9. The Investigating Officer took up the investigation and recorded the statements of the prosecution witnesses spot inspection was done, site plan was prepared after conducting the inspection, which is Exhibit Ka-6. On 15.03.1994 during investigation, appellant Ramesh Yadav was arrested and his statement was taken and on that basis appellant no.1 was arrested and the prosecutrix was recovered at 10:30 a.m. at Charbagh Railway Station. prosecutrix was medically examined by P.W.4, charge sheet was filed. prosecution has produced five witnesses:-P.W.1 Shiv Shankar, is the informant and brother of the prosecutrix ; P.W.2 is the prosecutrix; P.W.3 Mahavir, is father of the prosecutrix ; P.W. 4 is Dr. Kusum Dubey who has medically examined the prosecutrix; and P.W. 5 is Pramod Kumar Tiwari, Investigating Officer –Held, Prosecution has to prove that prosecutrix was abducted and further the abduction was for the Purposes mentioned under section 366 IPC. The testimony of the prosecutrix suffers from improvement, improbability and not trustworthy. Prosecutrix was major and according to statements of P.W.1, P.W.3 and P.W.5 she went away along with Rs.9000/-cash, golden earrings kamar peti and other jewellery although her marriage was fixed shortly, this shows that she willingly went away. Prosecutrix was seen by the independent witnesses with the appellants at Nautaknki (operatic theatre performance) in the night of 25.02.1994 also shows that the prosecutrix went away willingly. fact that these independent witnesses have not been produced by the prosecution before the Court has further weakened the case of prosecution. For these reasons, I am of the view that the prosecution has also failed to prove the charge under Section 366 IPC. Therefore, the finding recorded by the learned Trial Court in this regard is erroneous and is hereby reversed – Appeal is allowed.(Para 62)
Facts of the case:
Appeal filed against judgment, informant brother of prosecutrix gave written report alleging that her sister Siya Dulari went to ease herself in night at around 9:30 p.m. then the appellants with an intent to sell her had taken her away which has been seen by Billeshwar, Shiv Pyare, and Rudrapal Singh of the village. He further stated that his father had already given an information regarding missing of his sister Police Station Maurawan. Lastly, it has been stated in the written report, that sister of the informant while going out from the house has taken away golden ring and other jewellery with her tilak ceremony of the prosecutrix was fixed and marriage was fixed Upon a written report, Chik FIR was registered which is Exhibit Ka-9. The Investigating Officer took up the investigation and recorded the statements of the prosecution witnesses spot inspection was done, site plan was prepared after conducting the inspection, which is Exhibit Ka-6. On 15.03.1994 during investigation, appellant Ramesh Yadav was arrested and his statement was taken and on that basis appellant no.1 was arrested and the prosecutrix was recovered at 10:30 a.m. at Charbagh Railway Station. prosecutrix was medically examined by P.W.4, charge sheet was filed. prosecution has produced five witnesses:-P.W.1 Shiv Shankar, is the informant and brother of the prosecutrix ; P.W.2 is the prosecutrix; P.W.3 Mahavir, is father of the prosecutrix ; P.W. 4 is Dr. Kusum Dubey who has medically examined the prosecutrix; and P.W. 5 is Pramod Kumar Tiwari, Investigating Officer.
Findings of the court:
Prosecution has to prove that prosecutrix was abducted and further the abduction was for the Purposes mentioned under section 366 IPC. The testimony of the prosecutrix suffers from improvement, improbability and not trustworthy. Prosecutrix was major and according to statements of P.W.1, P.W.3 and P.W.5 she went away along with Rs.9000/-cash, golden earrings kamar peti and other jewellery although her marriage was fixed shortly, this shows that she willingly went away. Prosecutrix was seen by the independent witnesses with the appellants at Nautaknki (operatic theatre performance) in the night of 25.02.1994 also shows that the prosecutrix went away willingly. fact that these independent witnesses have not been produced by the prosecution before the Court has further weakened the case of prosecution. For these reasons, I am of the view that the prosecution has also failed to prove the charge under Section 366 IPC. Therefore, the finding recorded by the learned Trial Court in this regard is erroneous and is hereby reversed.
Result: Appeal is allowed.
JUDGMENT :
1. Heard Shri Amit Chaudhary, learned counsel for the appellants, Shri Shiv Nath Tilhari, learned AGA for the State and perused the record.
2. During pendency of this appeal, the appellant no.1-Sita Ram had died therefore, in respect of appellant no.1, the appeal was abated vide order dated 04.04.2017.
3. This criminal appeal has been filed against the judgment and order dated 13.02.1997 passed in Session Trial No.196 of 1995 in Crime No.97 of 1994 whereby Special Judge, Unnao vide aforesaid judgment has convicted and sentenced each of the appellants under Sections 366, 376 IPC for ten years rigorous imprisonment in each sections. The sentences were directed to run concurrently.
4. In brief, prosecution case is that informant Shiv Shankar, brother of the prosecutrix gave a written report dated 14.3.1994 at Police Station Maurawan, District Unnao alleging that her sister Siya Dulari went to ease herself in the night of 25.2.1994 at around 9:30 p.m. then the appellants Sita Ram and Ramesh Yadav with an intent to sell her had taken her away which has been seen by Billeshwar, Shiv Pyare, and Rudrapal Singh of the village. He further stated that his father had already given an information regarding missing of his sister on 27.2.1994 at Police Station Maurawan. Lastly, it has been stated in the written report, that sister of the informant while going out from the house has taken away Rs.9000/-, golden ring and other jewellery with her. The tilak ceremony of the prosecutrix was fixed on 03.03.1994, and marriage was fixed on 14.03.1994. Upon a written report, Chik FIR was registered which is Exhibit Ka-9. The Investigating Officer took up the investigation and recorded the statements of the prosecution witnesses under Section 161 Cr.P.C. A spot inspection was done, site plan was prepared after conducting the inspection, which is Exhibit Ka-6. On 15.03.1994 during investigation, appellant Ramesh Yadav was arrested and his statement was taken and on that basis appellant no.1 was arrested and the prosecutrix was recovered at 10:30 a.m. at Charbagh Railway Station. The prosecutrix was medically examined on 16.03.1994 by P.W.4. Thereafter, charge sheet was filed. The prosecution has produced five witnesses:-P.W.1 Shiv Shankar, is the informant and brother of the prosecutrix ; P.W.2 is the prosecutrix; P.W.3 Mahavir, is father of the prosecutrix ; P.W. 4 is Dr. Kusum Dubey who has medically examined the prosecutrix; and P.W. 5 is Pramod Kumar Tiwari, Investigating Officer.
5. The case was committed to the court of Sessions by the Court of Munsiff Magistrate, Unnao vide order dated 17.2.1995. Thereafter charges were framed against the accused persons and the same were read out and explained to the accused persons to which they pleaded not guilty.
6. After examining witnesses, statements under Section 313 Cr.P.C. of appellants were taken in which their defence was of total denial, and of false implication due to enemity.
7. P.W.1 in his statement before the Court has stated that accused appellants Sita Ram and Ramesh Yadav were residents of his village. He further stated that accused persons with an intent to sell the prosecutrix had taken her away on 25.2.1994 when she at around 9:30 p.m. had gone outside to ease herself, at that time, her age was 15-16 years while the accused persons fled with her. A missing report was lodged by his father on 27.2.1994. On 13.3.1994 Billeshwar, Shiv Pyare and Rudra Pal Singh told him that they have seen the accused persons along with the prosecutrix and who have taken her away. He has proved the FIR as Exhibit Ka-1. On 15.03.1994, the accused appellant no.2 Ramesh Yadav was arrested by the police who told that accused Sita Ram and prosecutrix will go to Lucknow. Then appellant no. 2 along with police personnel, the informant and his Uncle Lallu Prasad, came to Charbagh Railway Station, Lucknow and there at Platform No.1, he found accused appellant no.1 Sitaram and Siya Dulari sitting. In the cross exami
