CRJA/45/2012 of KM. BHAWANA Vs STATE OF UTTARAKHAND

Reserved

IN THE HIGH COURT OF UTTARAKHAND AT NAINITALCriminal Jail Appeal No. 45 of 2012

Km. Bhawana

… Appellant

Versus

State of Uttarakhand

…Respondent

Present: - Mr. Rajesh Sharma, Advocate for the appellant. Mr. Pratiroop Pandey, A.G.A. for the State.

And

Criminal Appeal No. 357 of 2012

Mohd. Siraj and another

… Appellants

Versus

State of Uttarakhand

...Respondent

Present: - Mr. Rajesh Sharma, Advocate for the appellants Mr. Pratiroop Pandey, A.G.A. for the State.

JUDGMENT

Per: Hon’ble Ravindra Maithani, J.

Since common question of law and facts are involved in both these appeals, they are being taken up together and decided by this common judgment.

2. Both these appeals are preferred against the judgment and order dated 31.10.2012/01.11.2012, passed in Sessions Trial No. 193 of 2006, State Vs. Mohd. Siraj and others, by the court of 1[st] Additional Sessions

Judge, Dehradun. By the impugned judgment and order, the appellants have been acquitted of the charge under Section 366 read with 34 IPC, but they have been convicted under Section 363 read with 34 IPC and sentenced to undergo rigorous imprisonment for period of three years and three months with fine of Rs.1000/-. In default of payment of fine to undergo simple imprisonment for further period of one month.

3. Facts necessary for disposal of these appeals, briefly stated, are as hereunder:-

Km. Aparna, who was 15 years of age in the year 2006, when she was studying in Class X[th] in Kanya Gurukul Mahavidyalaya, Rajpur, Dehradun. Her school was to close for holidays from 23.05.2006. Therefore, her mother and brothers came Dehradun to take her back home. They had reservation in the train. On 23.05.2006, Km. Aparna alongwith her mother and brothers boarded the train. Her brother went to phone her father from PCO. Meanwhile, Km. Aparna de-boarded the train for getting water, but she did not return. Her mother PW3 Shashi Kumari Bansal immediately informed her husband PW1 Sushil Kumar Bansal, who was at Ferozabad then. Immediately thereafter, PW3 Shashi

Kumari Bansal gave report at the Police Station GRP Dehradun, about the missing of the victim PW2 Km. Aparna from the railway station. In this report (Ex. A8), PW3 Shashi Kumari Bansal informed that under the pretext of getting water Km. Aparna de-boarded the train and did not return. On 24.05.2006, PW1 Sushil Kumar Bansal reached Dehradun. There he met PW5 Ajay Goyal at the railway station, who told it to him that he had seen PW2 Km. Aparna alongwith the appellants on 23.05.2006 at the railway station. Thereafter, PW1 Sushil Kumar Bansal lodged police report Ex. A1. Based on it, chik FIR was recorded at 2:25 PM, at Police Station GRP Dehradun, under Sections 363 and 366 IPC and an entry was made in the General Diary (extract is Ex. A11). It is the case of the prosecution that on 26.05.2006, PW2 Km. Aparna, the victim was recovered from the custody of the appellants, from near bus station Dehradun. PW2 Km. Aparna was medically examined on the same day (the report is Ex. A9). After recording her statement under Section 164 of the Code of Criminal Procedure, 1973 (for short, “the Code”) on 27.05.2006, PW2 Km. Aparna was given in the custody of her father and supurdginamawas also recorded which is Ex. A3.

4. Investigation was carried out. During investigation, the date of birth certificates of PW2 Km. Aparna was obtained. Investigating Officer (for short, “the IO”) prepared the site plan, Ex. A16 and submitted the charge sheet. Cognizance was taken and the trial proceeded.

5. On 08.01.2008, charge under Sections 363 read with 34 IPC and Section 366 read with 34 IPC were framed against the appellants, to which they denied and claimed trial.

6. In order to prove its case, prosecution examined six witnesses, namely, PW1 Sushil Kumar Bansal, father of the victim, PW2 Ms. Aparna Singh, the victim, PW3 Shashi Kumari Bansal, mother of the victim, PW4 Manoj Kumar, PW5 Ajay Goyal and PW6 Dr. Bhagirathi Jangpangi.

7. The appellants were examined under Section 313 of the Code and according to them, they have been falsely implicated in the case. PW2 Km. Aparna was not recovered from them. In defence, DW1 Manoj Kumar

Satija, brother of the appellant Bhawna and DW2 Ravindra Singh have been examined. After hearing the parties, by the impugned judgment and order, the appellants have been acquitted of charge under Section 366 read with 34 IPC. But, as stated, they have been convicted and sentenced under Section 363 read with 34 IPC, which is impugned herein.

8. Heard learned counsel for the parties and perused the record.

9. Learned counsel for the appellants would submit that the prosecution has not been able to prove its case. The appellants ought to have been acquitted of the charges. But, the learned court below committed error in convicting and sentencing the appellants. Learned counsel raised the following points in his submissions:-

(i) FIR is delayed in the instant matter and the cause for delay has not been explained. the cause for delay has not been explained.

(ii) There is no motive attributed to the appellants to commit the offence. appellants to commit the offence.

(iii) The appellants had no reason to take or entice the victim. entice the victim.

(iv) The statement of PW3 Sashi Kumar Bansal is also not reliable, because in the court, she has stated that under her direction PW2 Km. Aparna had de-boarded the train in order to get the water, but in her report given on 23.05.2006 (Ex. A8), she had recorded that PW2 Km. Aparna had de-boarded the train under the pretext of taking water. Bansal is also not reliable, because in the court, she has stated that under her direction PW2 Km. Aparna had de-boarded the train in order to get the water, but in her report given on 23.05.2006 (Ex. A8), she had recorded that PW2 Km. Aparna had de-boarded the train under the pretext of taking water.

(v) The statement of PW2 Km. Aparna is not reliable. There are many contradictions in her statement. reliable. There are many contradictions in her statement.

(vi) PW2 Km. Aparna was not recovered from the appellants. the appellants.

10. Learned counsel for the appellants would also submit that, in the instant case, the IO has not been examined. He was an important witness. His statement would have helped to appreciate the evidence of other witnesses. It is also argued that even mere recovery of person from someone’s custody does not make out case under Section 363 IPC.

11. In support of his contention, learned counsel has placed reliance on the principles of law, as laid down in the case of Anversinh alias Kiransinh Fatesinh Zala Vs. State of Gujrat, (2021) 3 SCC 12. Especially, paragraph 13, last lines have been referred to where Hon’ble Supreme Court has observed “however, mere recovery of missing minor from the custody of stranger would not ipso facto establish the offence of kidnapping. Thus, where the prosecution fails to prove that the incident of removal was committed by or at the instigation of the accused, it would be nearly impossible to bring the guilt home…………..”

12. On the other hand, learned State counsel would submit that the principle of law, as laid down in the case of Anversinh (supra) are not applicable in the instant case because in that case, the victim had stated that she on her own had left the custody of her guardian. It is argued that in the instant case, PW2 Km. Aparna had categorically stated that she was forcibly taken by the appellants. She was minor. She was recovered from the possession of the appellants. Therefore, offence under Section 363 IPC has been proved beyond reasonable doubt against the appellants. Learned counsel would also

submit that the motive to entice the victim was to take her to Bihar, as told by PW2 Km. Aparna. Therefore, it is argued that the appeals are devoid of merit and deserve to be dismissed.

13. Appellants have been convicted under Section 363 read with 34 IPC. Section 363 IPC provides punishment for kidnapping.

14. Kidnapping is defined under Section 361 IPC. It

is as hereunder:-

“361. Kidnapping from lawful guardianship.—Whoever takes or entices any minor under sixteen years of age if male, or under eighteen years of age if female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

Explanation.—The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or other person.

Exception.—This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.”

15. Taking or enticing any minor out of keeping of

lawful guardianship of such minor without the consent of such guardian amounts to kidnapping. The words “takes” or “enticed” are important.

16. In the case of Thakorlal D.Vadgama Vs. State of Gujarat, (1973) 2 SCC 413, the Hon’ble Supreme Court

interpreted the words “takes” or “enticed” and observed as hereunder:-

“10. The legal position with respect to an offence under Section 366 IPC is not in doubt, in State of Haryana v. Rajaram [(1973) 1 SCC 544 : 1973 SCC (Cri) 428] this Court considered the meaning and scope of Section 361 IPC it was said there:

“The object of this section seems as much to protect the minor children from being seduced for improper purpose as to protect the rights and privileges to guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words ‘takes or entices any minor ... out of the keeping of the lawful guardian of such minor’ in Section 361, are significant. The use of the word ‘keeping’ in the context connotes the idea of charge, protection, maintenance and control: further the guardian's charge and control appears to be compatible with the independence of action and movement in the minor, the guardian's protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial: it is only the guardian's consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud, persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section.”

In the case cited reference has been made to some English decisions in which it has been stated that forwardness on the part of the girl would not avail the person taking her away from being guilty of the offence in question and that if by moral force of willingness is created in the girl to go away with the former, the offence would be committed unless her going away is entirely voluntary. Inducements by previous promise or persuasion was held in some English decision to be sufficient to bring the case within the mischief of the statute. Broadly, the same seems to us to be the position under our law. The expression used in Section 361 IPC is “whoever takes or entices any minor”. The word “takes” does not necessarily connote taking by force and it is not

confined only to use of force, actual or constructive. This word merely means, “to cause to go”, “to escort” or “to get into possession”. No doubt it does mean physical taking, but not necessarily by use of force or fraud. The word “entice” seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This can take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success on the mental state of the person at the time when the inducement is intended to operate. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time, in achieving its ultimate purposes of successful inducement. The two words “takes” and “entices”, as used in Section 361 IPC are in our opinion, intended to be read together so that each takes to some extent its colour and content from the other. The statutory language suggests that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in Section 361 IPC. But if the guilty party has laid foundation by inducement, allurement or threat, etc. and if this can be considered to have influenced the minor or weighed with her in leaving her guardian's custody or keeping and going to the guilty party,then prima facie it would be difficult for him to plead innocence on the ground that the minor had voluntarily come to him. If he had at an earlier stage solicited or induced her in any manner to leave her father's protection, by conveying or indicating or encouraging suggestion that he would give her shelter, then the mere circumstance that his act was not the immediate cause of her leaving her parental home or guardian's custody would constitute no valid defence and would not absolve him. The question truely falls for determination on the facts and circumstances of each case.

(emphasis supplied)

17. In the case of S. Varadarajan Vs. State of

Madras, AIR 1965 SC 942, the Hon’ble Supreme Court had found that the victim had willingly accompanied the accused. In that background, it was observed “she

willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her. She was no uneducated or unsophisticated village girl but senior college student who had probably all her life lived in modern city and was thus far more capable of thinking for herself and acting on her own than perhaps an unlettered girl hailing from rural area.”

18. The provisions of Sections 363 and 366 IPC further came up for discussion in the case of Anversinh (supra). In the case of Anversinh (supra), the Hon’ble Supreme Court distinguished the law as laid down in the S. Varadarajan (supra), and in paragraphs 18 and 19 observed as hereunder:-

“18. The ratio of S. Varadarajan [S. Varadarajan v. State of Madras, (1965) 1 SCR 243 : AIR 1965 SC 942 : (1965) 2 Cri LJ 33] , although attractive at first glance, does little to aid the appellant's case. On facts, the case is distinguishable as it was restricted to an instance of “taking” and not “enticement”. Further, this Court in S. Varadarajan [S. Varadarajan v. State of Madras, (1965) 1 SCR 243 : AIR 1965 SC 942 : (1965) 2 Cri LJ 33] explicitly held that charge of kidnapping would not be made out only in case where minor, with the knowledge and capacity to know the full Varadarajan v. State of Madras, (1965) 1 SCR 243 : AIR 1965 SC 942 : (1965) 2 Cri LJ 33] , although attractive at first glance, does little to aid the appellant's case. On facts, the case is distinguishable as it was restricted to an instance of “taking” and not “enticement”. Further, this Court in S. Varadarajan [S. Varadarajan v. State of Madras, (1965) 1 SCR 243 : AIR 1965 SC 942 : (1965) 2 Cri LJ 33] explicitly held that charge of kidnapping would not be made out only in case where minor, with the knowledge and capacity to know the full

import of her actions, voluntarily abandons the care of her guardian without any assistance or inducement on the part of the accused. The cited judgment, therefore, cannot be of any assistance without establishing: first, knowledge and capacity with the minor of her actions; second, voluntary abandonment on part of the minor; and third, lack of inducement by the accused.

19. Unfortunately, it has not been the appellant's case that he had no active role to play in the occurrence. Rather the eyewitnesses have testified to the contrary which illustrates how the appellant had drawn the prosecutrix out of the custody of her parents. Even more crucially, there is little to suggest that she was aware of the full purport of her actions or that she possessed the mental acuities and maturity to take care of herself. In addition to being young, the prosecutrix was not much educated. Her support of the prosecution version and blanket denial of any voluntariness on her part, even if presumed to be under the influence of her parents as claimed by the appellant, at the very least indicates that she had not thought her actions through fully.”

19. The legal position is much settled. Mere

recovery of child from some other person may ipso facto does not amount to an offence. To bring home the offence of Section 363 IPC, it has to be shown that the accused either took or enticed the minor, out of keeping of the lawful guardian. “Taking” or “enticing” are important. Along with it, the level of understanding of the victim has also to be seen, because it was also one of the factors, which is weighed by the Hon’ble Supreme Court, while laying down the principles, in the case of S. Varadarajan (supra).

20. This case has to be seen in view of the settled legal position. PW2 Km. Aparna is the victim. Before recording her statement, the Court satisfied that she is able to understand the question and depose on oath. According to PW2 Km. Aparna, in the year 2006, she was studying in in Kanya Gurukul Mahavidyalaya, Rajpur, Dehradun, where she came in touch with the appellant Bhawna. They were staying in the same hostel of the Gurukul. The appellant Bhawna befriended her. The appellant Bhawna was talking to the appellant Mohd. Siraj on telephone. Appellant Bhawna also made the witness PW2 Km. Aparna to speak to the appellant Mohd. Siraj. According to PW2 Km. Aparna, the appellant Bhawna also suggested her to marry Mohd. Siraj because she was told that the appellant Mohd. Siraj has lot of money, vehicles etc.

21. On the date of incident, according to PW2 Km. Aparna at about 12:00-12:15, they had already boarded the train, when her brother went to telephone her father. She also alighted from the train to get water, because their water bottles were empty. As soon as, she de-boarded the train, according to, PW2 Km. Aparna, the appellant Bhawna pulled her hand and forcibly took her

outside the railway station. There they met the appellants Mohd. Siraj and Kamrunisha. All of them forcibly made her to sit in the car. They muffled her mouth and made her inhale some substance, due to which, she became unconscious. She was then taken to Delhi. From Delhi bus station, they straightaway went to the hotel and stayed there for the night and next day, i.e. on 24.05.2006, they travelled back and reached Dehradun. According to PW1 Km. Aparna, throughout, the appellants had threatened her not to raise any alarm. They wanted to take her to Bihar, but Police arrested them. This witness proved her signature in the recovery memo, supurdginama by which she was given into the custody of her father PW1 Sushil Kumar Bansal and her date of birth certificates, which reveals her date of birth as 29.12.1991.

22. PW3 Sashi Kumari Bansal was accompanying PW2 Km. Aparna, when she disappeared from the railway station on 23.05.2006. According to her, on that date, when she boarded the train, her son de-boarded the train to talk to his father on telephone from PCO. Thereafter, PW2 Km. Aparna also de-boarded the train to get water, but she did not return. Thereafter, this witness informed

her husband and lodged the report to the Police, which is Ex. A8. She also tells that when PW2 Km. Aparna disappeared she had seen the appellants on the railway platform. On 24.05.2006, her husband reached Dehradun.

23. PW1 Sushil Kumar Bansal is the father of PW2 Km. Aparna. He has also supported the statements of PW2 Km. Aparna and PW3 Sashi Kumar Bansal in his examination in chief. According to him, after the incident, he reached Dehradun on 24.05.2006. PW5 Ajay Goyal and Suresh Kumar met him at the railway station, who told him that they had spotted PW2 Km. Aparna with the appellants on 23.05.2006. Thereafter, he lodged an FIR Ex. A1. According to him, on 26.05.2006, at about 12:30, PW2 Km. Aparna was recovered from the custody of the appellants. This witness proved the signature on recovery memo Ex. A2 and supurdginama Ex. A3.

24. PW4 Manoj Kumar has proved the Nagar Palika Firozabad register, which reveals the date of birth of PW2 Km. Aparna as 29.12.1998.

25. PW6 Dr. Bhagirathi Janpangi had medically examined PW2 Km. Aparna on 26.05.2006 and proved the medical examination report, Ex. A9 and the age related certificate. Chik FIR, Ex. A10, copy of General Diary, Ex. A11, arrest memo and information memo Exs. A12, A13 and A14 and copy of General Diary after arrest Ex. A15, site plan of the place of recovery, Ex. A16, charge sheet, Ex. A17 were exhibited after defence mark on them, as “formal proof dispensed with”. IO has not been examined.

26. The important witness in the case is PW2 Km. Aparna. First and foremost, the victim of recovery has to be seen, to ascertain, as to whether, PW2 Km. Aparna was recovered from the possession of the appellants. It is the case of the prosecution that on 26.05.2006, PW2 Km. Aparna was recovered from the possession of the appellants from near bus station at about 12:30. The recovery memo is Ex. A2 and site plan Ex. A16. The IO has not been examined. He would have explained the circumstances in much better manner. The examination of PW2 Km. Aparna recorded under Section 164 of the Code has not been proved, which is on record. It is prosecution document. Reference of it may be made.

27. PW2 Km. Aparna has stated that from railway station, she was taken to Dehradun bus station and from there they reached Delhi bus station and then stayed in hotel in Delhi. Next date i.e. 24.05.2006, they returned to Dehradun. This has to be first evaluated and examined.

28. PW2 Km. Aparna has also stated in paragraph 7 of her statement that as soon as she de-boarded the train to get water, the appellant Bhawna pulled her hand and took her near car. But, she has not stated so, in her statement recorded under Section 164 of the Code. There she has stated that when she was seated in the train, the appellants from the platform signaled her to de-board the train. Thereafter, under the pretext of taking water, she de-boarded the train and followed the appellants to the bus station. There are great contradictions in her statements. She told that she was made to inhale some substance due to which she became unconscious, but, in paragraph 28 of her statement, she was not able to tell as to where she was made to inhale the substance. She admits that she has not stated the factum of being unconscious in her previous statement. Why?

29. PW2 Km. Aparna also tells that in Delhi, the appellant Mohd. Siraj and Kamrunisha and she stayed in room, but the appellant Mohd. Siraj and his wife did not speak to her. She also tells that they did not leave that room (paragraph 35). In her statement in paragraph 38, PW2 Km. Aparna tells that they had left the hotel in Delhi on 24.05.2006, and straightaway from hotel, they reached Dehradun, in taxi. In Dehradun, according to PW2 Km. Aparna, they stayed in hotel and she admits, in her statement, given at paragraph 40 that she had told it to the Magistrate that on 25.05.2006, they stayed in Rang Mahal Hotel.

29. The statement of PW2 Km. Aparna reveals, as if, they stayed in Delhi in hotel on 23.05.2006 night and left the hotel sometimes in the night of 24.05.2006(statement of PW2 at para 38) and on 25.05.2006, they stayed in Rang Mahal Hotel. There is no record of any hotel. PW2 Km. Aparna could not tell in which hotel they stayed in Delhi. There is no record of Rang Mahal Hotel, where the appellants and PW2 Km. Aparna allegedly stayed in the night of 25.05.2006. This could have been easily ascertained by the IO, but it is not

done. It has some links to evaluate the credibility of PW2 Km. Aparna.

30. PW2 Km. Aparna tells that on 26.05.2006, they left Dehradun hotel at about 10:00 in the morning. They took some conveyance (she is not sure that whether it was taxi, vikram or bus) and travelled for about 10-15 minutes and then they reached at the bus station. According to her, they had stayed in Rang Mahal hotel, Dehradun (statement of PW2 Km. Aparna at para 39 and 40). This statement does not support the prosecution case, because as per the site plan (Ex. A16) , the place of recovery is just adjacent to the hotel Rang Mahal. It is virtually in front of hotel, Rang Mahal. Therefore, if PW2 Km. Aparna was recovered, as per the site plan, Ex. A16, near hotel Rang Mahal, the statement of PW2 Km. Aparna, becomes false that they had travelled for about 10-15 minutes in vehicle before they reached the bus station. As stated, PW2 Km. Aparna was not sure, as to where they stayed in Delhi and her statement about their staying in Rang Mahal hotel becomes much doubtful for the two reasons:-

(i) There is no record of hotel Rang Mahal that on the night of 25.05.2006, the

appellants and PW2 Km. Aparna stayed in hotel and;

(ii) According to PW2 Km. Aparna from the hotel they travelled in vehicle for 10-15 minutes and thereafter, they reached at the bus station, where they were recovered by the police (it is so because the place of recovery is adjacent to hotel Rang Mahal. It is adjacent to old bus station, Dehradun).

31. The statement about recovery, even individually, as given by the PW2 Km. Aparna is not reliable statement. PW1 Sushil Kumar Bansal, is the father of PW2 Km. Aparna. He also tells that PW2 Km. Aparna was recovered from the custody of the appellants. According to him, PW5 Ajay Goyal was with him. At the very outset, this Court would like to observe that the statement of PW5 Ajay Goyal is not reliable. He is the chance witness and it does not inspire any confidence for the foregoing reasons:-

(i) According to PW5 Ajay Goyal, on 20.05.2006, he had come to visit Dehradun alongwith his friend Suresh

Kumar and he wanted to go back on 23.05.2006. When they reached at the railway station, due to heavy rush, he returned. According to him, there he spotted PW2 Aparna and the appellants coming out from the railway station. The question is why this witness did not question PW2 Km. Aparna, as to what was she doing there? This is so because this witness is childhood friend of PW1 Sushil Kumar Bansal and he had come Dehradun earlier also with PW1 Sushil Kumar Bansal. He knew the appellants also. He was resident of Ferozabad, not of Dehradun. In normal circumstances, had he noticed PW2 Km. Aparna at Ferozabad market perhaps, it would not have been expected of him to inquire from PW2 Km. Aparna, as to why she was in the market. But, here according to PW5 Ajay Goyal, at the railway station, he spotted PW2 Km. Aparna along with appellants coming out from the railway station. As normal human conduct, it was expected of him,

to inquire, as to why, PW2 Km. Aparna is there along with the appellants.

(ii) PW5 Ajay Goyal has stated that he had come to Dehradun on 20.05.2006 and there they stayed in the hotel. He is not much clear about where did they stay. In page 4, 1[st] paragraph to his statement PW5 Ajay Goyal says that for one day they had stayed in hotel. Now, this also doubts the presence of PW5 Ajay Goyal in Dehradun on 23.05.2006, because he had come to Dehradun on 20.05.2006 along with Suresh Kumar and stayed in hotel for day. The question is as to where did PW 5 stayed on 20.05.2006, 22.05.2006 & 23.05.2006. IO has not collected any evidence to show that, in fact, on the night of 22.05.2006, PW5 Ajay Goyal was staying in some hotel in Dehradun. This witness is totally unreliable. come to Dehradun on 20.05.2006 and there they stayed in the hotel. He is not much clear about where did they stay. In page 4, 1[st] paragraph to his statement PW5 Ajay Goyal says that for one day they had stayed in hotel. Now, this also doubts the presence of PW5 Ajay Goyal in Dehradun on 23.05.2006, because he had come to Dehradun on 20.05.2006 along with Suresh Kumar and stayed in hotel for day. The question is as to where did PW 5 stayed on 20.05.2006, 22.05.2006 & 23.05.2006. IO has not collected any evidence to show that, in fact, on the night of 22.05.2006, PW5 Ajay Goyal was staying in some hotel in Dehradun. This witness is totally unreliable.

32. In view of what is stated hereinabove, this Court is of the view that, in fact, prosecution has not been able to prove beyond reasonable doubt that PW2 Km. Aparna was recovered from the custody of the appellants.

33. There is another aspect also. Insofar as, forcibly taking of the PW2 Km. Aparna by the appellants is concerned, the evidence is not reliable. It is not transpiring any confidence. Had the victim been enticed?

34. It is argued on behalf of the State that it is the case of enticing. But, why and who had enticed? PW2 Km. Aparna tells that, in fact, appellant Bhawna was in love with the appellant Mohd. Siraj (statement at paragraph 19). She also tells that Bhawna had suggested her to marry Mohd. Siraj (statement at Para 4). If appellant Bhawna was in love with the appellant Mohd. Siraj, why did the appellant Bhawna suggest PW2 Km. Aparna to marry Mohd. Siraj? This does not inspire any confidence. PW2 Km. Aparna has not stated that the appellant Mohd. Siraj, in any manner, suggested her to marry him. The appellants Mohd. Siraj and Kamarunisha are husband and wife. At some stage, PW2 Km. Aparna has stated that

the appellants were talking about taking her to Bihar. Why? This may be examined from another context.

36. If appellants had enticed PW2 Km. Aparna and taken her to Delhi on 23.05.2006, why should they return Dehradun on 24.05.2006? There is another prosecution document, which is statement of PW2 Km. Aparna, recorded under Section 164 of the Code. In that statement, PW2 Km. Aparna has stated that in Delhi, the appellants came to know that the Police is after them. If it is so, the question still remains that why should the appellants return Dehradun again, If they had to take PW2 Km. Aparna to Bihar? the route for Bihar from Delhi is not from Dehradun. The story of enticing PW2 Km. Aparna by the appellants has also no force at all. The arguments as given on this point by the learned State counsel does not merit acceptance.

35. An argument has been raised that the FIR is delayed. The learned court below found that the FIR is not delayed. PW2 Km. Aparna left the train on 23.05.2006, immediately thereafter, PW3 Shashi Kumari Bansal her mother gave report to Police Station, which is Ex. A8 and there she categorically stated that under the pretext

of taking water, PW2 Aparna had left the train and did not return. The word “pretext” is important. It suggests that PW3 Shashi Kumari Bansal had not asked PW2 Km. Aparna to get water, but in the court, PW3 Shashi Kumari Bansal, in paragraph 17 of her statement has stated that she had sent PW2 Km. Aparna to get water. This is great contradiction. This is something like developing story. Either PW2 Km. Aparna had gone under the pretext of taking water or she was sent to get water.

36. It is the prosecution case that on 24.05.2006, itself it was revealed that PW2 Km. Aparna was seen with the appellants at the railway platform on 23.05.2006. But, FIR has been lodged on 25.05.2006. It was very serious matter. girl was missing. When asked, PW1 Sushil Kumar Bansal, in paragraph 32 of the statement, tells that he wanted to be sure that the appellants had taken his daughter. Thereafter, he filed the FIR. This explanation is not satisfactory. It is also not inspiring any confidence. The FIR is delayed and the explanation is not satisfactory. It also doubts the prosecution case.

36. In view of the foregoing discussion, this Court is of the view that the prosecution has not been able to

prove the charge under Section 363 read with 34 IPC against the appellants. The appellants are liable to be acquitted of the charge under Section 363 read with 34 IPC. Learned Court below committed an error in convicting and sentencing the appellants. Accordingly, the Court is of the view that the appeals deserve to be allowed.

37. The appeals are allowed. Impugned judgment and order dated 31.10.2012/01.11.2012, passed in Sessions Trial No. 193 of 2006, State Vs. Mohd. Siraj and others, by the court of 1[st] Additional Sessions Judge, Dehradun is set aside to the extent it convicted and sentenced the appellants for the offence under Section 363 read with 34 IPC. Appellants Km. Bhawna, Mohd. Siraj and Smt. Kamrunisha are acquitted of the charge under Section 363 read with 34 IPC.

38. Appellants are on bail. Their bonds are cancelled and sureties discharged of their liability. The appellants shall furnish personal bond and two sureties by each one of them, each of the like amount to the satisfaction of the court concerned under Section 437 of the Code within thirty days from today.

39. Let copy of this judgment along with Lower Court Record be transmitted to the Court below for compliance.

Jitendra

(Ravindra Maithani, J.)

10.11.2021