State of Himachal Pradesh vs Veena Devi

Sanjay Karol, J.—Assailing the judgment dated 16.1.2008, passed by learned Addl. Sessions Judge, Fast Track Court, Shimla, H.P., in Sessions Trial No. 20-S/7 of 2007, titled as State of Himachal Pradesh vs. Smt. Veena Devi & another, whereby respondents-accused stand acquitted, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.

It is the case of prosecution that on 22.3.2006, accused kidnapped two girls PW-4 and PW-8 (names not disclosed) and took them to Aligarh. Accused Sanju had wanted his brother Anil to get married to PW-4. Missing report (Ext. PW-7/A) was lodged by Sh. Anup Thakur (PW-1) father of PW-4, on the basis of which F.I.R. No. 70/2006, dated 29.3.2006 (Ext. PW-10/A) was registered at Police Station East, Shimla, under the provisions of Sections 363 and 366 of the Indian Penal Code. Investigation was conducted by SI-Yodha Ram (PW-12) and after recovery of the girls from Aligarh, their custody was handed over to their parents. 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 were charged for having committed offences punishable under the provisions of Sections 363 and 366 both read with Section 120-B of the Indian Penal Code, to which they did not plead guilty and claimed trial.

In order to prove its case, in all, prosecution examined twelve witnesses and statements of the accused u/s 313 Cr. P.C. were also recorded, in which they took plea of innocence and false implication. No evidence in defence was led by the accused.

After trial, accused persons stand acquitted. Hence, the present appeal.

We have heard Mr. Ashok Chaudhary, learned Addl. Advocate General assisted by Mr. Vikram Thakur, learned Dy. A.G. and Mr. J.S. Guleria, Asstt. A.G., on behalf of the State as also Mr. Y.K. Thakur, learned counsel, 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." "

Prosecution, through the testimonies of Anup Thakur (PW-1), Shanti Devi (PW-2), Kalpa Devi (PW-3), PW-4 and PW-8 wants us to believe that accused hatched a criminal conspiracy and enticed away PW-4 and PW-8, who were below 16 years of age, from their lawful guardianship with an intent of solemnizing the marriage of PW-4 with Anil.

We find that Kalpa Devi (PW-3), mother of PW-8 has not supported the case of the prosecution at all. She was declared hostile and yet nothing fruitful could be elicited from her testimony. In fact she goes to state that her daughter, as on 22.3.2006 was above 16 years of age and that both PW-8 and PW-4, being good friends had gone away from home of their own. We find that even Anup Thakur (PW-1) admits that "it is correct that Pushpa and Meena alias Rani left home of their own". Though at some places he does state that PW-4 was enticed by accused Sanju but then qualifies that Anil had accompanied the police from Shimla to Aligarh. If that were so then obviously the prosecution version of the accused having kidnapped the girls and taken them to Aligarh is false.

Testimony of Shanti Devi (PW-2), mother of PW-1 is also of not much consequence. All that she states is that Kalpa Devi (PW-3) informed her that PW-4 was taken away by the accused, which version we find not to have been corroborated. In fact to the contrary belied by PW-3.

In examination-in-chief, PW-4 states that accused Veena Devi had asked her to get married to her son Anil. On the asking of Veena Devi, she went to meet accused Sanju and boarded the vehicle in which he was sitting. She was taken to Shoghi where accused Veena Devi gave her Rs. 500/-. From Shoghi, alongwith PW-8 and accused Sanju she went in a bus to Chandigarh and then to Aligarh via Delhi. Sanju married PW-8 in Court. This witness was then taken by Sanju to his house at Kukawar and Jalali. Thereafter she was left at Aligarh railway station from where she called her parents and returned with the police. Significantly she admits that at that time she was 17 years of age. Noticeably this witness does not state that she was either enticed, threatened, intimidated or kidnapped by any of the accused persons. From her examination-in-chief it appears that she and PW-8 travelled from Shimla to Aligarh when accused was not with them. She admits to have travelled in a public transport and remained away from Shimla for seven days. She travelled from one place to another, yet did not make any grievance with any person. She also did not call her parents prior to 30.3.2006. There is no corroborative evidence of any telephonic calls. It appears that police recovered the girls who left their house of their own, whereafter story of this witness informing her parents on phone was introduced. In fact her testimony, which in any case is not against the accused, stands belied and contradicted by PW-8 herself, who has not supported the prosecution case at all and despite being extensively cross examined by the learned Public Prosecutor nothing fruitful could be elicited from her testimony. This witness (PW-8) has deposed as under:

"It is correct that me and Pushpa went from New Shimla by buses of our own from New Shimla to Aligarh. It is correct that from Delhi we rang up in the house of Laxmi, the sister of accused Sanju. The phone was attended by accused Sanju. We told him that we are coming to Aligarh and he should pick us up from the bus stand. It is correct that Pushpa stayed in the house of accused of her own. Me and Pushpa had left Shimla of our own. Pushpa used to visit me and the accused when we were staying in Mangla Bhawan. It is correct that the accused had no knowledge that me and Pushpa have fled away from our houses. Accused Sanju had left Shimla in February, 2006, for his native place. It is correct that me and accused Sanju came to Shimla in April, 2006 and surrendered before the police. The affidavit of marriage which was executed is Ext. DA. It bears my signatures."

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 hatched a criminal conspiracy and enticed PW-4 and PW-8 who were below 16 years of age, from their lawful guardianship with an intent of solemnizing marriage of PW-4 with Anil, 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 have arisen out of incomplete appreciation of prosecution evidence.

The accused have 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.