Rajiv Sharma, J.@mdashThis appeal is directed against the judgment dated 4.1.2008 and order dated 7.1.2008 rendered by the learned Sessions Judge, Kinnaur Sessions Division at Rampur in Sessions Trial No. 8 of 2005, whereby the appellant, Pawan Kumar, who was charged with and tried for offences punishable under Sections 363, 366A and 506 of the Indian Penal Code, has been convicted and sentenced to undergo rigorous imprisonment for two years with a fine of Rs. 5,000/- and in default of payment of fine to undergo simple imprisonment for two months u/s 363 of the Indian Penal Code. He has been acquitted of the offences punishable under Sections 366A and 506 of the Indian Penal Code. The case of the prosecution, in a nutshell, is that on 27.3.2004, PW2 Tek Singh, resident of Village Riwali, Tehsil Kumarsain lodged a report at Police Station Kumarsain that his daughter, prosecutrix (PW1) aged about 15 years, had gone to appear in the examination at Government High School, Duttnagar, Tehsil Rampur on 26.3.2004, but she did not return from the school to home. He made enquires about her in the village. He was told by daughter of One Dalip Kumar of Village Nirath that the prosecutrix had been kidnapped by the appellant Pawan Kumar in a van No. HP-06-3075, who had taken her towards Shimla. On the basis of report, case was registered under Sections 363, 366A and 506 of the Indian Penal Code against the appellant. Investigation was completed by PW16 ASI Bhagat Singh. During investigation, it was found that driver of Taxi No. HP-01A-3178 along with appellant and the prosecutrix was arrested under Sections 41(2) and 109 Cr.P.C. at Police Station East Shimla. PW16 ASI Bhagat Singh visited the Police Station, East Shimla and conducted investigation of the case. The appellant was arrested and the prosecutrix was handed over to her parents. The appellant and the prosecutrix were got medically examined. Date of birth certificate of the prosecutrix was obtained. Thereafter, all the codal formalities were completed and the challan was put up against the appellant in the Court.
2. The prosecution examined as many as sixteen witnesses in support of its case. Statement of the appellant was also recorded u/s 313 Cr.P.C. He pleaded innocence and claimed trial. He examined DW1 Sukh Dev in his defence. Learned trial court convicted and sentenced the appellant, as noticed hereinabove. Hence, this appeal.
3. Mr. Vinay Thakur, learned Advocate, has vehemently argued that the prosecution has failed to prove its case against the appellant. He then contended that the appellant has contracted marriage with the prosecutrix.
4. Mr. Parmod Thakur, learned Additional Advocate General has supported the impugned judgment dated 4.1.2008 and order dated 7.1.2008 rendered by the learned trial court.
5. I have heard learned counsel for the parties and have also gone through the pleadings minutely.
6. PW1, prosecutrix, has deposed that she was-student of 10th Class in the year 2004. She was 15 years old. Pushpa was her class fellow. Pushpa introduced her with the appellant for friendship. She refused to do so. On 26.3.2004, she had gone to Duttnagar for undertaking practical examination of Science. She finished her exam at 12.30 P.M. She was accompanied by Pushpa. When she reached on the road, a van was parked there. The appellant was sitting in it. She along with Pushpa sat in the van. Pushpa got down from the van at Badrash. She was to get down at Rewali. The appellant alighted her in between Badrash and Rewali. Thereafter, the appellant proposed to marry her. When she refused the proposal, the appellant threatened to kill her. The appellant took her to backside of the road. She along with the appellant went on foot upto village Kepu. The appellant took her in a truck to Sainj and thereafter in a jeep to Shimla. She did not raise alarm as she was threatened by the appellant. She was medically examined at Rampur. She had handed over her salwar to police, which was taken into possession vide memo Ext. PW1/A. In cross-examination, she has admitted that the bus stopped at Nirath for some time. At that time, the van was already parked there. Pushpa asked her to get down and they went in the van to Duttnagar. She has denied the suggestion that after the practical exam was over, the vehicle was not there and they waited there and when the van came, they signalled to stop and thereafter, they boarded the same. According to her, Pushpa alighted with another person at Badrash. She was made to sit behind the bushes, but the appellant did nothing with her.
7. PW2, Tek Singh, is father of the prosecutrix. According to him, her daughter was 15 years and 6 months old at the relevant time. On 26.3.2004, she had gone to appear in examination at Duttnagar. When she did not come back in the evening, he searched her. He was told by some girl that the prosecutrix was taken by the appellant in a van. He lodged a report at Police Station, Kumarsain. Thereafter, he had gone to Shimla along with police and reached at Police Station, Chotta Shimla. He identified the prosecutrix. The police handed over the custody of the prosecutrix to him vide memo Ext. PW2/A. In cross-examination, he has deposed that he has lodged the report at Police Station, Kumarsain on 27.3.2004.
8. PW3, Sudhir Kumar, has deposed that his uncle had taken the custody of the prosecutrix vide memo Ext. PW2/A. The prosecutrix had produced salwar Ext. P1 before the police vide memo Ext. PW1/A. School certificate of the prosecutrix was taken into possession by the police vide memo Ext. PW3/A.
9. PW4, Smt. Snehlata has proved on record certificate Ext. PW4/A.
10. PW5, Hari Chand, Secretary, Gram Panchayat, Shamathla, had issued certificate Ext. PW5/A, which was taken into possession by the police vide memo Ext. PW5/B.
11. PW6, Constable Tara Chand, has proved on record Report No. 7, dated 27.3.2004, vide Ext. PW6/A.
12. PW7 Sonika Sharma, has deposed that the prosecutrix was student of 10th class in her school. On 26.3.2004, at about 12.30 P.M., when she reached Duttnagar for practical examination of Science, she had noticed the prosecutrix boarding van. She did not see anyone sitting in the van. She was declared hostile.
13. PW8, Pushpa, has deposed that the prosecutrix was her class fellow. The appellant was known to him as he was from her parental village. According to her, on 26.3.2004, she and the prosecutrix boarded the van. The prosecutrix had signalled the van to stop as the buses were not coining. She got down at Badrash. She was declared hostile. In her cross-examination conducted by the Advocate appearing for the appellant, she has deposed that the appellant never asked her to talk to the prosecutrix for friendship. She has deposed that on 26.3.2004, when she and prosecutrix reached at Nirath in bus, while going to Duttnagar, the prosecutrix after seeing the appellant in a van asked her to alight and to go by van. She along with prosecutrix travelled by van to Duttnagar.
14. PW9, Constable Govind Singh, has proved on record reports No. 57 and 56 dated 27.3.2004 vide Ext. PW9/A and PW9/B respectively.
15. PW10 HC Nokh Ram, has deposed that on 27.3.2004, when he was on patrolling duty along with HHC Swaroop Singh near Nigam Vihar Shimla, at about 1.45 A.M. one Marshal Jeep No. HP-07B-3178 came from Chhota Shimla side. It was got stopped by him. One girl and one boy were sitting in the jeep besides the driver. The girl was in school uniform. He enquired the addresses of the boy and girl, but they did not disclose their addresses properly. He apprehended them u/s 140(1) and 109 Cr.P.C. and produced them before the SHO, Police Station Chhota Shimla. In cross-examination, he has deposed that the girl disclosed her age to be 17 years.
16. PW11, HC Swaroop Ram, has deposed that he had taken into possession date of birth certificate of the prosecutrix from Secretary, Gram Panchayat, Shamathla vide recovery memo Ext. PW5/B.
17. PW12, Constable Rajesh Kumar, has deposed that on 15.4.2004, MHC Devi Singh had handed over to him one parcel with a direction to deposit the same in FSL Junga vide RC No. 4/2004. He had deposited the sealed parcel in FSL junga on 17.4.2004.
18. PW13, Inspector Anil Dutt, has deposed that on the basis of report No. 7, Ext. PW6/A, he recorded FIR, Ext. PW13/A. The investigation of the case was handed over to ASI Bhagat Singh. After receipt of Chemical Examiner Report, PX, he had prepared the challan.
19. PW14 Dr. Namita Verma, Medical Officer, Zonal Hospital, Mandi, has deposed that on 28.3.2004, on the application moved by the police, she medically examined the prosecutrix. According to her no marks of violence on any part of the body of prosecutrix were found. She had taken bath and changed her dresses. She had opined that occurrence of sexual intercourse could not be ruled out. She issued MLC, Ext. PW14/B. In cross-examination, she has admitted that the prosecutrix had not complained about sexual intercourse.
20. PW15, HC Devi Singh, has deposed that on 15.4.2004, he had handed over the case property along with sample seals to Constable Rajesh Kumar vide R.C. No. 4 of 2004 for depositing the same in FSL Junga.
21. PW16, ASI Bhagat Singh, is the Investigating Officer. He has deposed that on 27.3.2004, he had gone to Shimla to recover the prosecutrix. The prosecutrix was recovered and handed over to her father Tek Chand vide memo Ext. PW2/A. He had prepared the spot map of recovery, vide Ext. PW16/A. The appellant was arrested from Shimla. On 28.3.2004, the prosecutrix was got medically examined at MGMSC Khaneri. The prosecutrix had produced one salwar Ext. P1, which was sealed in a parcel with seal impression ''A'' and seal after use was handed over to Sat Pal. The salwar, Ext. P1 was taken into possession vide memo Ext. PW1/A in the presence of witnesses Sat Pal and Sudhir Kumar. He also obtained date of birth certificate of the prosecutrix from G.P.S. Riwari on 12.4.2004 and the same was taken into possession vide memo Ext. PW3/A.
22. What emerges from the facts, enumerated hereinabove, is that at the time of incident, PW1, prosecutrix, was student of 10th Class. She was 15 years old. According to her, on 26.3.2004, she along with her friend PW8 pushpa had gone to Duttnagar for undertaking practical examination of Science. When she reached on the road, a van was parked there. The appellant was sitting in it. She and PW8 Pushpa sat in the van. Pushpa got down from the van at Badrash. The prosecutrix was to get down at Rewali. The appellant alighted her in between Bardrash and Rewali and proposed her for marriage. She refused the proposal of the appellant. The appellant threatened to do away her life. The appellant took her to backside of the road. The appellant taken her on foot upto village Kepu. Thereafter, the appellant took her in a truck to Sainj. According to her, he threatened her at Sainj and took her in a jeep to Shimla. Surprisingly, in whole process, the prosecutrix did not try to raise an alarm. She could have raised alarm when - appellant alighted her from the van in between Bardrash and Rewali; and when the appellant took her on foot covering distance of about 1-2 kms upto village Kepu; when the appellant took her in a truck to Sainj; and when she was taken by the appellant in a jeep to Shimla. When she was interrogated by the police, the prosecutrix disclosed her age 17 years and did not tell her correct address. It is apparent that the prosecutrix had accompanied the appellant voluntarily. Her modesty was never outraged by the appellant. PW8, Pushpa, was declared hostile. According to PW8 Pushpa, the prosecutrix had signalled the van to stop as the buses were not coming. PW7, Sonika Sharma, who was class fellow of the prosecutrix, was also declared hostile. She has categorically deposed that she had noticed the prosecutrix boarding the van. She had not seen anyone sitting in the van. PW14, Dr. Namita Verma, has deposed in her cross-examination that the prosecutrix had never complained about sexual intercourse. The incident has happened on 26.3.2004, however the FIR has been registered on 27.3.2004.
23. During the pendency of the appeal, the appellant filed an application bearing Cr.M.P. No. 11729/2013 for placing on record affidavit sworn by the prosecutrix and the marriage certificate. According to the marriage certificate dated 1.12.2013 issued by the Gram Panchayat Bhutti, Development Block Narkanda, Shimla, the appellant and prosecutrix have contracted the marriage on 3.6.2013. According to the averments contained in the affidavit sworn by the prosecutrix, she had friendship with the appellant. However, she was married to one Sunil Kumar against her wishes. Out of the wedlock, one daughter was born. Sunil Kumar has expired in an accident on 14.3.2012. On 3.6.2013, the appellant has contracted marriage with the prosecutrix and even her daughter has also been adopted by him. Notice of the application was issued to the respondent-State. Thereafter, status report was filed by the SHO, Police Station Rampur Bushahr. According to the report, which is taken on record, ASI Bhagat Ram has obtained the marriage registration certificate of the prosecutrix and the appellant and pariwar register from the Gram Panchayat Bhutti, Tehsil Kumarsain. According to the marriage registration certificate, the appellant has contracted the marriage with the prosecutrix on 3.6.2013. The factum of marriage is entered at Sr. No. 13/2013, at page 132 of marriage registration register.
24. The material witnesses, PW7 Sonika Sharma and PW8 Pushpa have turned hostile. They have not supported the case of the prosecution at all. Learned trial court has overlooked this aspect. The prosecution has failed to prove the case against the appellant. Accordingly, in view of the discussion and analysis made hereinabove, the appeal is allowed and the impugned judgment dated 4.1.2008 and order dated 7.1.2008 rendered by the learned Sessions Judge, Kinnaur Sessions Division at Rampur in Sessions Trial No. 8 of 2005, is set aside. The appellant is acquitted of the offence punishable u/s 363 of the Indian Penal Code. The fine amount, if any deposited by the appellant is ordered to be refunded to him. The bail bonds are ordered to be discharged. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.
