Smt. Pushpa vs State of Rajasthan

N.C. Sharma, J.—The Additional Sessions Judge, Gangapur City by his judgment dated September 14, 1982 acquitted the appellant in respect of offence under Sections 366 and 376, IPC, but convicted her for the offence u/s 363, IPC, and sentenced her to rigorous imprisonment for one year and a fine of Rs. 500/-.

On going through the judgment of the Additional Sessions Judge, Gangapur City, it would appear that in order to hold the charge for offence u/s 363, IPC as proved against the appellant, he has solely placed reliance on the statement of the girl Mst. Anguri and in her solitory statement, be has come to the ''conclusion that Mst. Anguri was kidnapped by the appellant from the lawful guardianship of her parents.

The Addl. Sessions Judge, Gangapur City completely lost sight of the contents of the First Information Report which had been lodged by Sukha (P/Wl), father of the girl. The report was lodged after five days of Mst. Anguri''s becoming untraceable. It has been mentioned in the First Information Report that Mst. Anguri was seen on August 24, 1981 at 3.30 p.m. at the shop of one Gheesa Dhobi. It was expressly said that Bhero Lal, a Police Constable, informed Yasin son of Sukba that the former had made the sister of Yasin to sit at the shop of Gheesa Dhobi Bhero Lal asked Yasin to call his mother. Yasin then went to his father and Sukha came to the shop of Gheesa. It was then mentioned that by that time Gheesa Dhobi made Mst. Anguri to disappear from that place. When Sukba inquired from Gheesa about Mst. Anguri, he showed his ignorance. A crowd had assembled when Bhero Lal constable was also there. The persons in the crowd, including Bhero Lal constable, put pressure upon Gheesa Dhobi and, Bhero Lal told him that he bad made Mst Anguri to sit at his shop and where that girl was ? Thereupon, Gheesa told that he would get the girl recovered. Sukha followed Gheesa but Bhero Lal constable prevented Sukha from following Gheesa and told that neither the girl will go any where nor Gheesa Dhobi. Accordingly, Sukha did not follow Gheesa Dhobi. Then it was mentioned that it was not known where Gheesa Dhobi was ? This was in its entirety the First Information Report.

Necessarily, Bhero Lal, Police Constable, was a material witness in this, case. Much inference can be drawn against the prosecution on account of with holding Bhero Lal, Police Constable. The important question arises is as to why and bow Bhero Lal constable made Mst Anguri to sit at the shop of Gheesa Dhobi ? Under what authority Bhero Lal constable was acting ? Why Bhero Lal constable prevented Sukha from following Gheesa Dhobi in search of his daughter ? From where Bhero Lal Constable had brought that girl ? All these questions remain unanswered by the prosecution and could only be answered by Bhero Lal constable. Strong adverse inference should be drawn against the prosecution that the real culprit was Bhero Lal constable who had baew playing with this girl and could make ter sit at the ''shop of Gheesa Dhobi and also make her disappear from the shop Nothing was said in the First Information Report about Mst. Pushpa. It was also not stated that Mst. Pashpa used to tempt Mst. Anguri that she would get a job for her. It was also not mentioned that Mst. Anguri left the house under the pretext that she was going to the house of her father''s sister. All these facts are missing in the First Information Report. Rather, Bhero Lal constable was acting both as hero and villian of the incident. Implicit reliance could not, therefore, be placed on the sole testimony of Mst. Anguri.

It may be mentioned that the Investigating Officer had not recover ed Mst. Anguri from the possession of the appellant. Sukha himself has stated that about two or three days of the lodging of the First Information Report, Police people informed that Mst. Anguri had come at the Police Station. Pushpa was also there. How Mst Anguri reached the Police Station has not been made clear. Bhero Lal constable knew Mst.-Anguri from before, Mst. Anguri has also stated that she had not told her mother that any sexual intercourse was committed with her by the husband of Pushpa. Her statement would go to show that Mst. Anguri was some times at railway platform, sometimes at Nadoti, sometimes at Gangapur and sometimes on the shop of Gheesa Dhobi and accompanied Bhero Lal constable, and then Pushpa came.

On consideration of all these facts and circumstances of the case, the prosecution has not been able to establish beyond reasonable doubt that it was the appellant who bad kidnapped Mst. Anguri from lawful guardianship of her parents. Rathor it was Mst. Anguri who followed The appellant is entitled to the benefit of doubt.

I, therefore, allow this appeal, set aside the conviction of the appellant recorded by the Additional Sessions Judge, Gangapur City by his judgment dated September 14. 1982 and acquit the appellant of the offence u/s 363, IPC. Her bail bends are cancelled and she need not to surrender.