State of Himachal Pradesh vs Suresh Kumar

Sanjay Karol, J.—Assailing the judgment dated 29.2.2008, passed by learned Addl. Sessions Judge, Fast Track Court, Shimla, H.P., in Sessions Trial No. 18-S/7 of 2007, titled as State of Himachal Pradesh v. Suresh Kumar, whereby respondent-accused stands acquitted, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.

Through testimonies of eight witnesses, prosecution wants the court to believe that on 1.10.2006 accused Suresh Kumar kidnapped the prosecutrix (PW-2), minor daughter of complainant Sh. Pania Ram (PW-1), with an intent of compelling her to marry him. On the basis of complaint lodged by PW-1, F.I.R. No. 152/2006, dated 2.10.2006 (Ext. PW-1/A) was registered at Police Station Theog, Distt. Shimla, under the provisions of Sections 363 and 366 of the Indian Penal Code, against the accused. Allegedly accused took the prosecutrix to Chandigarh and Baddi, wherefrom she was recovered. Prosecutrix was got medically examined by Dr. Rama Thakur who issued MLC (Ext. PX). With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.

Accused was charged for having committed offences punishable under the provisions of Sections 363 and 366 of the Indian Penal Code, to which he did not plead guilty and claimed trial.

In order to prove its case, in all, prosecution examined eight witnesses and statement of the accused under Section 313 Cr.P.C. was also recorded, in which he took plea of innocence and false implication. No evidence in defence was led by the accused.

Based on the testimonies of witnesses and the material on record, trial Court acquitted the accused of the charged offences. Hence, the present appeal by the State.

We have heard Mr. Ashok Chaudhary, learned Addl. Advocate General assisted by Mr. Vikram Thakur and Mr. Puneet Rajta, learned Dy. A.Gs and Mr. J.S. Guleria, learned Asstt. A.G., on behalf of the State as also Mr. B.C. Verma, learned Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.

It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offences.

In Prandas Vs. The State, , Constitution Bench of the apex Court, has held as under:

"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.C., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in - AIR 1934 227 (Privy Council), in these words:

"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice."

We find that in the instant case, neither the prosecutrix (PW-2) nor her father (PW-1) have supported the prosecution. From the version so disclosed by the prosecutrix, it is quite apparent that she left her parental house in the company of the accused without any threat, intimidation or coercion. Of her own sweet will, she travelled with him from Theog to Shimla and then to Chandigarh and Baddi using different modes of public transportation. They travelled together in broad day light and passed through several stations and public places. She states that at Baddi, she stayed in the house of Sunita who asked her to go back to her parental house. But she did not do so.

When we examine the testimony of her father Sh. Pania Ram (PW-1), it is apparent that prosecution has not been able to establish the charged offences. Witness only states that he suspected the accused to have kidnapped the prosecutrix. Smt. Sunpa Devi (PW-3), aunt of the prosecutrix, also admits that prosecutrix left her parental house of her own.

The question which still needs to be examined is as to whether prosecution has been able to establish the age of the prosecutrix to be below 18 years or not. Certificate i.e. extract of pariwar register (Ext. PW-5/A) stands proved by Sh. Suman Parkash (PW-5). Date of birth of the prosecutrix so recorded therein is 2.1.1992. Now it is a settled position of law that date of birth cannot be proved on the basis of entry made in the pariwar register. Significantly PW-5 has not recorded the entry in the register. He is not aware as to how and on what basis such entries were made. As such, his evidence is not conclusive in nature. To same effect is the testimony of Sh. Sita Ram (PW-6) who proved certificate (Ext. PW-6/A) issued by the Head Teacher of the school, recording date of birth of the prosecutrix to be 2.1.1992. Apparently entry in the school was made on the basis of certificate issued by the Panchayat Secretary. But then, the same was not placed on record. Author of the entry made in the school register has also not been examined in court nor such entry proved in accordance with law. Sh. Pania Ram (PW-1) states that prosecutrix, who is 15 years of age, has studied only up to fourth class. But then, even this portion of his testimony is so shaky that it only requires to be discarded. He does not remember the year of his marriage. He does not remember the year in which he got his daughter admitted in the school. He admits that prosecutrix failed 3 - 4 times. Prosecutrix simply states that at the time of incident she was 15 years of age. But then she does not remember the year in which she was born or admitted in the school.

Thus from the evidence so produced on record by the police, it cannot be said that prosecution has been able to establish the fact that at the time of commission of the alleged offence, prosecutrix was minor.

Having perused the testimony of prosecution witnesses on record, it cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, to the effect that accused kidnapped the prosecutrix (PW-2), minor daughter of complainant Sh. Pania Ram (PW-1), with an intent of compelling her to marry him against her will, by leading clear, cogent, convincing and reliable material on record. It cannot be said that findings returned by the Court below are not borne out from record, are perverse, illegal, erroneous or arisen out of incomplete appreciation of the prosecution evidence.

The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., , since it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case.

For all the aforesaid reasons, present appeal, devoid of merit, is dismissed, so also pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of the Court below be immediately sent back.