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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Raghvendra Singh Chauhan, J.
State Of Uttarakhand - Appellant
Versus
Mohan Lal & Ors. - Respondents
Government Appeal No. 109 of 2013
Decided On : 24-02-2021
(A) Criminal Procedure Code, 1973, Secs. 378 and 156(3) and Indian Penal Code, 1860, Secs. 363, 366, 376, 120-B and 506 – Allegation of kidnapping and rape – F.I.R. by PW1/Father of prosecutrix (PW2) – Acquittal by Trial Court – Finding the contradictory evidences of oral and documentary relating to age of the prosecutrix – Criminal appeal against by State-PW1/Father of prosecutrix admits in her examination in chief that he was married about twenty-three years age and prosecutrix was born two years after his marriage – PW6 has admitted that the ink used while cutting the date and changing the numerical dates and the words are different from the ink used for making other entries in the admission register which is an unreliable piece of evidence – Age determination by a medical Doctor is not with mathematical exactitude – She is 18 years (major) in x-ray form reportal the time of occurrence – Prosecutrix was confined in the house of accused/appellant for forty-five days but the neither shouted for help, nor protested or tried to run away from accused’s control – Infact her physical relation with accused was of her own free will – Prosecution failed to establish the offence u/s 376, IPC against appellant – No illegality or perversity in the impugned judgment of acquittal – Appeal dismissed.
(B) Criminal Procedure Code, 1973, Sec. 378 – Power of appellate Court in an appeal against an acquittal order – Interference with – Principle of – Discussed. (Para 9)
¼v½ n.M izfØ;k lafgrk] 1973] /kkjk 378 o 156¼3½ vkSj Hkkjrh; n.M lafgrk] 1860] /kkjk 363] 366] 376] 120-B ,oa 506 & vigj.k ,oa cykRlax dk vfHkdFku & PW1/vfHk;ksD=h PW2 ds firk }kjk izFke lwpuk fjiksVZ & fopkj.k U;k;ky; }kjk nks"keqfDr & vfHk;ksD=h dh vk;q ds laca/k esa ekSf[kd ,oa nLrkosth lk{; ds fojks/kkHkklh gksus dk fu"d"kZ & jkT; ljdkj }kjk blds fo#) nkf.Md vihy & PW1@vfHk;ksD=h ds firk viuh eq[; ijh{kk esa ;g Lohdkj djrs gSa fd mldk fookg 22 o"kks± iwoZ gqvk Fkk vkSj vfHk;ksD=h dk tUe mlds fookg ds 2 o"kZ i'pkr gqvk Fkk & PW6 us ;g Lohdkj fd;k gS fd xf.krh; fof/k;ksa dks ifjofrZr djrs le; vkSj frfFk dks dkVrs le; iz;qDr dh xbZ L;kgh ml izos'k jftLVj esa dh xbZ vU; izfof"V;ksa esa iz;qDr dh xbZ L;kgh ls fHkUu gS tks lk{; dk ,d vfo'oluh; va'k gS & esfMdy fpfdRld }kjk vk;q dk vo/kkj.k xf.krh; vkadyu ugha gS & ?kVuk ds le; ,Dl&js izk:i fjiksVZ ds vuqlkj og 18 o"kZ dh o;Ld gS & vfHk;ksD=h dks vfHk;qDr@vihykFkhZ ds ?kj esa 45 fnuksa rd fo#) fd;k x;k Fkk ijUrq u rks og lgk;rk ds fy, fpYykbZ Fkh u gh mlus fojks/k fd;k Fkk vkSj u gh mlus vfHk;qDr ds fu;U=.k ls Hkkx tkus dk iz;kl fd;k Fkk & okLro esa] vfHk;qDr ds lkFk mldk 'kkjhfjd laca/k mldh viuh Lo;a dh bPNk ls Fkk & vfHk;kstu i{k vihykFkhZ ds fo#) /kkjk 376] Hkkjrh; n.M lafgrk ds v/khu vijk/k LFkkfir djus esa vlQy jgk Fkk & nks"keqfDr ds vk{ksfir fu.kZ; esa dksbZ voS/kkfudrk vFkok vuqfprrk ugha & vihy [kkfjtA ¼izLrj 13 ls 18½
¼c½ n.M izfØ;k lafgrk] 1973] /kkjk 378 & nks"keqfDr ds vkns'k ds fo#) vihy esa vihyh; U;k;ky; dh 'kfDr & ds lkFk gLr{ksi fl)kUr & foosfprA ¼izLrj 9½
JUDGMENT
Raghvendra Singh Chauhan, J. - Aggrieved by the acquittal of Mohal Lal (A-1), Ranjeet Lal (A-2) and Hukami Lal (A-3), by judgment dated 29.03.2013, passed by the learned Sessions Judge, Chamoli, in Session Trial No. 02 of 2009, the State has preferred the present appeal before this Court.
2. Briefly stated the facts of the case are that on 03.08.2008, Netri Lal (P.W. 1) lodged a written report (Ex. Ka. 1) before the Naib Tehsildar, Ghat, District Chamoli, wherein he claimed that his minor daughter (name withheld) was enticed by Makli Lal on 02.08.2008 at around 08:00 P.M, and was taken away by him. He further claimed that two persons from his village, namely Ranjeet Lal, and Hukami Lal (A-2 and A-3 respectively), were equally involved in taking away his daughter. He further claimed that Makli Lal had also taken away a few pieces of jewellery and cash. According to him, the accused are staying in Village Ustoli, District Chamoli.
3. Similarly on 18.08.2008, Netri Lal (P.W. 1) submitted another report before the District Magistrate, Chamoli, wherein he claimed that his minor daughter is studying in Class-VIIIth. According to him, Mohan Lal, Ranjeet Lal and Hukami Lal have enticed his daughter and taken her away. According to him, Mohan Lal is keeping his minor daughter in his house located in Village Ustoli. Furthermore, according to him, these three accused persons have taken away certain pieces of jewellery such as Gulband (made of gold), one gold nose, ring and one silver anklet. They also took away Rs. 50,000. Furthermore, according to the complainant, Mohan Lal is already married and has two children. According to him, Mohan Lal is keeping his minor daughter, and is treating her like a wife. He is thereby ruining her life. Furthermore, according to him, these three persons are threatening him and his family. Despite the fact that he had filed a written report before the Naib Tehsildar, Ghat on 03.08.2008, no action has been taken on his complaint.
4. Since neither of the two complaints elicited any response, on 26.08.2008, Netri Lal (P.W. 1.) filed a complaint under Section 156(3) Cr.P.C. (Ex. Ka. 3.) before the Chief Judicial Magistrate, Chamoli, wherein he repeated the same set of allegations against the three accused persons. Upon an order passed by the Chief Judicial Magistrate on 26.08.2008, the Naib Tehsildar eventually registered an F.I.R. (Ex. Ka. 12), namely F.I.R. No. NIL/2008, for offences punishable under Sections 363, 366, 392, 120-B and 506 IPC. Since the complaint related to the jurisdiction of the Police, the F.I.R. was transferred to Police Station, Chamoli, District Chamoli. After a thorough investigation, the Police submitted a charge-sheet against Mohan Lal for offences under Sections 363, 366, 376, 120-B and 506 IPC. The Police also submitted a charge-sheet against Ranjeet Lal and Hukami Lal for offences under Sections 363, 366, 120-B and 506 IPC.
5. In order to establish its case, the prosecution examined eleven witnesses, and submitted twenty-three documents. On the other hand, the defense neither examined any witness, nor submitted any documents. After going through the evidence produced by the prosecution, the learned Trial Court acquitted all the three accused persons by judgment dated 29.03.2013. Hence, the present appeal before this Court.
6. Mr. Jagjit Singh Virk, the learned Deputy Advocate General for the State of Uttarakhand, has raised the following contentions before this Court :-
Firstly, the learned Trial Court has failed to appreciate the evidence in a proper perspective.
Secondly, according to Dr. G.S. Joshi (P.W. 8), he had examined the prosecutrix in order to determine her age. According to the Medical Report contained in the X-Ray Form (Ex. Ka. 9), issued by the said witness, the prosecutrix was of the age between fifteen years and eighteen years. Therefore, according to the medical evidence, the prosecutix was minor. Hence, the learned Trial Court is not justified in acquitting the
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