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2008 Supreme(UK) 103
2008 N.C.C. 772
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice Dharam Veer
Criminal Appeal No. 1210 of 2001
(Old No.606 of 1987)
SMT. RENU TYAGI – Appellant
Versus
THE STATE – Respondent
Criminal Appeal No. 1211 of 2001
(Old No. 600 of 1987)
MOHAN LAL & ORS. – Appellants
Versus
THE STATE – Respondent
Decided on : 14.03.2008
For the Appellant : Mr. Lokendra Dobhal, learned counsel
For the Respondent: Mr. Harish Pujari, Addl. G.A.
For the Appellants : Mr. Alok Singh, Sr. Adv. assisted by Mr. D. Barthwal, learned counsel
Headnote:(A) I.P.C., 1860, Secs. 363, 366, 376 — Conviction for offences under — Propriety of — Prosecutrix her admitting that she had gone with the accused persons of her accord — She further stating that she was not enticed away by inducment of any accused or by force — She also having stated that her marrige with one of the accused persons (charged with an offence of Section 376, IPC) was solemnised according to Hindu customs because her uncle with whom she was living wanted to sell her somewhere else — Her mother also living with her for several days at another place where she was taken by accused — Her mother also stated that prosecutrix was more than 18 years at the time of alleged incident — Conviction on basis of such evidence — Not justified and liable to be quashed. (Paras 24, 28, 29, 30)
(B) Appreciation of evidence — Offence under Sections 363, 366, 376 — Victim while allegedly kidnapped taken away in bus, train and rickshaw passing through a number of villages and places and not making any attempt to get down the same and going away and also not making any noise — Conduct of prosecutrix showed that she had gone of her own consent — Medical examination of the victim also showing that she was habitual of sexual intercourse — Conviction based on such evidence — Not sustainable. (Para 24 to 30)
¼v½ Hkkjrh; n.M lafgrk] 1860] /kkjk,a&363] 366] 376 & ds vUrxZr vijk/kksa gsrq nks"kflf) & dk vkSfpR; & vfHk;ksfD= us ;g Lohdkj fd;k fd og vfHk;qDrksa ds lkFk viuh ethZ ls xbZ Fkh & mlus vkxs ;g Hkh dgk fd og fdlh vfHk;qDr ds }kjk cyiwoZd ;k mRizsfjr dj QqlykbZ ugha xbZ Fkh & mlus ;g Hkh dgk fd vfHk;qDrksa esa ls ,d ds lkFk mldk fookg ¼vkbZ-ih-lh- /kkjk&376 ds vUrxZr vfHk;qDr½ fganw jhfr fjoktksa ls gqvk Fkk] D;ksafd mldk pkpk] ftlds lkFk og jg jgh Fkh] mls dgha vkSj cspuk pkgrk Fkk & mldh ek¡] Hkh mlds lkFk ml LFkku ij dkQh fnu jgh tgk¡ vfHk;qDr mls ys x;k Fkk & mldh ek¡ us Hkh crk;k fd vfHk;ksfD= ?kVuk ds le; 18 o"kZ ls vfèkd vk;q dh Fkh & ,sls lk{; ds vk/kkj ij nks"kflf) U;k;ksfpr ugha o jn~n fd;s tkus ;ksX; gSA ¼izLrj 24] 28] 29] 30½
¼c½ lk{; dk ewY;kadu & /kkjk&363] 366] 376 ds vUrxZr vijk/k & ihfM+rk] dks tc dfFkr :i ls vigj.k fd;k x;k] cl] Vªsu o fjD'kk esa ys tk;k x;k vkSj vusd xk¡oksa o LFkkuksa ls gksdj ys tk;k x;k] rks mlus u rks mrjus dk iz;kl gh fd;k vkSj u gh 'kksj epk;k & vfHk;ksfD= ds O;ogkj ls izdV gksrk gS fd og viuh ethZ ls xbZ Fkh & eSfMdy ijh{k.k ls Hkh irk pyk fd ihfM+rk laHkksx dh vH;Lr Fkh & ,slh lk{; ij vk/kkfjr nks"kflf) xzká ugha gSA ¼izLrj 24 ls 30½
Hon’ble Dharam Veer, J.
Both the appeals have been filed against the common judgment and order dated 20.02.1987 and the appellants of both the appeals are also related to the same incident, hence, both the appeals are being disposed of by this common judgment and order.
2. Both these appeals preferred u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), are directed by the appellants against one judgment and order dated 20.02.1987 passed by Additional Sessions judge, Dehradun in Session Trial No. 21 of 1986, State Vs. Ganga Prasad alias Titu and others, whereby the learned Additional Sessions Judge, Dehradun has convicted the appellant Ganga Prasad alias Titu u/s 363, 366 and 376 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to undergo R.I. for five years u/s 363 IPC, 5 years u/s 366 IPC and 7 years u/s 376 IPC. Appellants Mohan Lal and Renu Tyagi were convicted u/s 363 and 366 IPC and each of them was sentenced to undergo R.I. for 5 years u/s 363 IPC and 5 years u/s 366 IPC. The sentences of all the appellants were directed to run concurrently.
3. In brief, the prosecution story is that on 24.12.1985, one Smt. Saroj, mother of the prosecutrix Km. Luxmi lodged a F.I.R. Ex. Ka.3 in P.S. Rajpur, District Dehradun stating therein that her daughter Km. Laxmi was aged about 15 years and about two months back, appellants Smt. Renu Tyagi and Mohan had asked for marriage of her daughter with the appellant Titu alias Ganga Prasad, who is brother in law of the appellant Mohan. When she asked her husband in this regrd, then he refused to marry his daughter and in the meanwhile, appellants were keep forcing her for the marriage of her daughter but she did not pay any heed to it. On 19.12.1985 at about 5:30 P.M. in the evening, the appellants in her absence and in absence of her husband, took away her daughter from her house by enticing her. She continued to search her daughter till the date of lodging of FIR and on that day, she came to know that her daughter was with Titu who is brother in law of appellant Mohan. The scriber of this report was Om Prakash, who is uncle of the prosecutrix Km. Laxmi. On the basis of this report, the Chik FIR was prepared by Head Moharrir Shakabul Hasan i.e. Ex. Ka-12. The entry was also made in the G.D., copy of the G.D. is Ex. Ka-13. This FIR was lodged on 24.12.1985 at 9:10 A.M. and the incident was said to have been taken place on 19.12.1985 at 5:30 P.M. The distance of the police station from the place of occurrence is one furlong. The case was registered u/s 363 and 366-A IPC. On the same day on 24.12.1985, the girl Km. Luxmi was recovered and was given in Supurdgi of her mother, the Supurdginama is Ex. Ka-4. The prosecutrix was medically examined on 26.12.1985 at 1:30 P.M., the medical report is Ex. Ka-1. The investigation of the case was entrusted to the S.I. Siya Ram, P.W.6. During the investigation, he has recorded the statements of the prosecutrix, complainant and other witnesses and prepared a map from where the girl was recovered i.e. Ex. Ka-5. He has also prepared a map of the place of occurrence from where the girl has gone from her house i.e. Ex. Ka-7. He has also prepared the map Ex. Ka-8 showing the place from where the prosecutrix was taken by the appellants. After completing the investigation, he has submitted the charge sheet Ex. Ka-11 against the appellant Ganga Prasad alias Titu u/s 363/366A/376 IPC and against the appellants Mohan and Renu Tyagi, the charge sheet was submitted u/s 363/366-A IPC.
4. On 10.03.1986 Judicial Magistrate-I, Dehradun committed the case to the court of Sessions u/s 209 of Cr.P.C. after complying with the provisions of Section 207 of Cr.P.C.
5. The case was transferred by Sessions Judge, Dehradun to II Additional Sessions judge, Dehradun for hearing and disposal according to law.
6. Against the appellant Ganga Prasad alias Titu, the charge was framed u/Ss 363/366/376 IPC
