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Judgments of Supreme Court of India and High Courts

__ vs Subhkaran on 22 April, 2017

1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Criminal Appeal No. 279 of 2014

Judgment reserved on :12.04.2017

Date of Decision : 22.04.2017

.

__
State of Himachal Pradesh ….Appellant

Versus

Subhkaran ….Respondent

Coram:

The Hon’ble Mr. Justice Sanjay Karol, Judge.

The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.

Whether approved for reporting?1 Yes

For the appellant : Mr. V.S. Chauhan, Additional
Advocate General with Mr. Vikram
Thakur and Mr. Puneet Rajta,
Deputy Advocate Generals.

For the respondent : Mr. Sunny Dhatwalia, Advocate.

Vivek Singh Thakur, Judge

State has preferred instant appeal against acquittal

of respondent assailing judgment dated 22.04.2014, passed by

the Additional Sessions Judge, Judge(II) Kangra at

Dharamshala District Kangra, H.P. in Sessions trial in RBT S.C.

No. 80J/VII/13/12 dated 22.04.2014, in FIR No. 171/11,

Whether reporters of Local Papers may be allowed to see the judgment?Yes

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registered at Police Station Jawali District Kangra, H.P. under

Sections 363,366 and 376 IPC.

2. As per prosecution case on 15.07.2011 at about

12.00 (Noon), 17 years old prosecutrix, student of 10th class,

.

while coming back from the school after taking her

examination, was kidnapped by respondent from her lawful

guardianship from a place Trilokpur with intent to compel her

to marry with him and thereafter during succeeding night she

was sexually assaulted by respondent against her will and

consent in the house of his uncle in village Ghera/Seri.

3. On 15.07.2011, police machinery was set in motion

by PW-5 Jagdish Chand, father of prosecutrix, by lodging

missing Report in Police Post Kotla at about 9.00 PM with

request to search his daughter as she had not returned home

from school after her examination, which was over at about

12.30 PM.

4. It is the case of prosecution that during day time

prosecutrix had made a mobile phone call to her friend PW-14

Usha Devi and PW-5 father of prosecutrix while present in

Police Post Kotla was conveyed about this by parents of

PW-14 Usha Devi and thereafter PW-1 Sonu Kumar

wastraced at Mecleod Ganj through his mobile, used by

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prosecutrix to call PW-14 Usha Devi. He led police party, PW-

2 Rajinder Singh Guleria Pradhan, PW-5 Jagdish Chand and

others to the house of respondent wherefrom, on information

of father of respondent, Police Party and others traced

.

respondent and prosecutrix sleeping in the house of his uncle

in village Seri. Prosecutrix was handed over to her father and

respondent was arrested and also respondent and prosecutrix

were medically examined. During investigation, towel, bed

sheets and white chuni of prosecutrix and her date of birth

certificate were also taken in possession. After completion of

investigation finding prima facie, involvement of respondent in

committing an offence under Sections 363,366 and 376 of the

Indian Penal Code, challan was presented in the Court. On

conclusion of trial, the trial Court has acquitted respondent.

5. We have heard learned counsel for parties and have

also gone through record.

6. Prosecution has successfully proved on record, by

producing date of birth certificate of prosecutrix Ex. P-5 issued

under Section 12/17 of Birth and Death Registration Act, 1969

by Registrar Gram Panchayat Trilokpur, that date of birth of

prosecutrix was 22.07.1994. PW-4 Kishan Kumar, Panchayat

Sahayak Gram Panchayat Trilokpur proved contents of the

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said certificate by comparing with original record which was not

disputed by or on behalf of respondent as this witness was not

cross-examined despite granting opportunity. Dealing with

.

effect of not cross-examining a witness on a particular

point/circumstance, the Apex Court, after considering various

judgments,in case Laxmibai and another versus Bhagwantbuva

and others reported in (2013) 4 SCC 97, has observed as

under:

“40 Furthermore, there cannot be any dispute with

respect to the settled legal proposition, that if a

party wishes to raise any doubt as regards the
correctness of the statement of a witness, the said
witness must be given an opportunity to explain his

statement by drawing his attention to that part of it,
which has been objected to by the other party, as

being untrue. Without this, it is not possible to

impeach his credibility. Such a law has been
advanced in view of the statutory provisions

enshrined in Section 138 of the Evidence Act, 1872,
which enable the opposite party to cross-examine a
witness as regards information tendered in evidence
by him during his initial examination in chief, and
the scope of this provision stands enlarged by
Section 146 of the Evidence Act, which permits a
witness to be questioned, inter-alia, in order to test
his veracity. Thereafter, the unchallenged part of his

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evidence is to be relied upon, for the reason that it
is impossible for the witness to explain or elaborate
upon any doubts as regards the same, in the
absence of questions put to him with respect to the
circumstances which indicate that the version of

.

events provided by him, is not fit to be believed,
and the witness himself, is unworthy of credit. Thus,

if a party intends to impeach a witness, he must
provide adequate opportunity to the witness in the
witness box, to give a full and proper explanation.

The same is essential to ensure fair play and
fairness in dealing with witnesses. (See: Khem
Chand v. State of Himachal Pradesh, AIR 1994 SC

226; State of U.P. v. Nahar Singh (dead) Ors.,

AIR 1998 SC 1328; Rajinder Pershad (Dead) by
L.Rs. v. Darshana Devi (Smt.), AIR 2001 SC 3207;
and Sunil Kumar Anr. v. State of Rajasthan, AIR

2005 SC 1096)”.

7. As per medical evidence, age of prosecutrix is 17 to

18 years. However, when admissible conclusive un-rebutted

evidence of exact date of birth is available on record,

determination of age on the basis of medical evidence is

neither necessary nor relevant. In present case, though not

required, medical evidence corroborates age of prosecutrix as

proved on the basis of date of birth certificate. Therefore, age

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of prosecutrix, on the date of incident stands proved as 16

years 11 months and 12 days.

8. PW-11 Dr. Pankaj Katoch proved MLC Ex. PW-11/B

issued by him after medical examination of respondent on

.

16.07.2011 establishing that there was nothing to suggest that

respondent was incapable of performing sexual intercourse.

9. PW-13 Dr. Surekha Gupta proved MLC Ex. PW-13/B

with respect to medical examination of prosecutrix alongwith

her opinion Ex. PW-13/C endorsed thereupon according to

which there was evidence of sexual intercourse. PW-10 Dr.

Arvind Kumar also medically examined prosecutrix on

20.07.2011 who, on the basis of such physical examination as

also that of PW-13 Dr. Surekha Gupta, opined that sexual

intercourse had occurred.

10. In fact, respondent had not disputed rather claimed

acquaintance with prosecutrix and her family and also in his

statement under Section 313 Cr.PC, he stated that on relevant

date, prosecutrix made telephonic call for picking her from

the school after examination and further that prosecutrix was

in visiting terms with him and his family, and he had also

stayed in the house of prosecutrix and mother of prosecutrix

had borrowed Rs.10,000/- from him and was assuring his

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marriage with prosecutrix and when he did not fulfill further

demand of money, he was falsely implicated at the instance of

family of prosecutrix.

11. Statement under Section 313 Cr.PC is not a

.

substantive piece of evidence and it is not equivalent to

confession of accused. Conviction cannot be based solely on

the basis of statement made under Section 313 Cr.PC where

prosecution failed to discharge its onus to prove its case as

onus to prove certain facts is on the party who asserts.

Similarly, in case where prosecution discharges its burden to

prove certain facts leading to some presumption or indicating

guilt of accused resulting shift of onus upon accused to rebut

the same then onus to prove facts contrary to prosecution

case cannot be said to be discharged by accused only on the

basis of statement given under Section 313 Cr.PC. In such a

situation accused has also to lead substantive evidence either

under Section 315 Cr.PC or to bring some substantive

evidence on record during evidence of prosecution in

statements of witnesses as statement under Section 313

Cr.PC can only be considered and referred to corroborate

substantive evidence led by either party. Statement under

Section 313 Cr.PC has corroborative value and it can also be

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taken into consideration to complete the chain of missing link.

False or impossible plea in statement under Section 313 Cr.PC

may also be taken as adverse circumstance against accused.

Accused has a right to remain silent but at the same time when

.

onus is upon him to explain certain facts and circumstances

which are only in his exclusive knowledge ( say under Section

106 of Evidence Act), silence can be fatal for him. The

Hon’ble Supreme Court in case Dehal Singh versus State of

Himachal Pradesh reported in (2010) 9 SCC 85 has held as

under:-

“23” Statement under Section 313 of the Code of

Criminal Procedure is taken into consideration to
appreciate the truthfullness or otherwise of the case

of prosecution and it is not an evidence. Statement
of an accused under Section 313 of the Code of
Criminal Procedure is recorded without

administering oath and, therefore, said statement

cannot be treated as evidence within the meaning of
Section 3 of the Evidence Act………….. There is

reason not to treat the statement under Section 313
of the Code of Criminal Procedure as evidence as
the accused cannot be cross-examined, with
reference to those statements………………….”

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12. In another case Manu Sao versus State of Bihar,

reported in (2010) 12 SCC 310, the Apex Court has

elaborated evidentiary value of statement of accused under

.

Section 313 Cr.PC as under:-

“12 Let us examine the essential features of this

Section 313 Cr.P.C. and the principles of law as
enunciated by judgments, which are the guiding
factors for proper application and consequences

which shall flow from the provisions of Section 313
of the Code.

13. As already noticed, the object of recording the

statement of the accused under Section 313 of the
Code is to put all incriminating evidence against the
accused so as to provide him an opportunity to

explain such incriminating circumstances appearing
against him in the evidence of the prosecution. At

the same time, also to permit him to put forward his
own version or reasons, if he so chooses, in relation

to his involvement or otherwise in the crime. The
Court has been empowered to examine the accused

but only after the prosecution evidence has been
concluded. It is a mandatory obligation upon the
Court and besides ensuring the compliance thereof
the Court has to keep in mind that the accused gets
a fair chance to explain his conduct. The option lies
with the accused to maintain silence coupled with
simplicitor denial or in the alternative to explain his

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version and reasons, for his alleged involvement in
the commission of crime. This is the statement
which the accused makes without fear or right of
the other party to cross- examine him. However, if

.

the statements made are false, the Court is entitled
to draw adverse inferences and pass consequential

orders, as may be called for, in accordance with
law. The primary purpose is to establish a direct
dialogue between the Court and the accused and to

put to the accused every important incriminating
piece of evidence and grant him an opportunity to
answer and explain. Once such a statement is

recorded, the next question that has to be

considered by the Court is to what extent and
consequences such statement can be used during
the enquiry and the trial. Over the period of time,

the Courts have explained this concept and now it
has attained, more or less, certainty in the field of

criminal jurisprudence.

14. The statement of the accused can be used to
test the veracity of the exculpatory of the

admission, if any, made by the accused. It can be
taken into consideration in any enquiry or trial but
still it is not strictly evidence in the case. The
provisions of Section 313 (4) explicitly provides that
the answers given by the accused may be taken into
consideration in such enquiry or trial and put as
evidence against the accused in any other enquiry
or trial for any other offence for which such answers

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may tempt to show he has committed. In other
words, the use is permissible as per the provisions
of the Code but has its own limitations. The Courts
may rely on a portion of the statement of the
accused and find him guilty in consideration of the

.

other evidence against him led by the prosecution,
however, such statements made under this Section

should not be considered in isolation but in
conjunction with evidence adduced by the
prosecution”.

13. PW-2 Rajinder Singh remained associated with PW-

5 Jagdish Singh, father of prosecutrix and also in investigation

since beginning till last. However, in the Court, he was

declared hostile for resiling from his earlier statement recorded

under Section 161 Cr.PC. It is settled position of law that

statement of hostile witness is not to be brushed aside in toto

but Court can consider evidence of hostile witness to

corroborate other evidence on record. It is also well settled

that mere fact that a witness is declared hostile does not make

him unreliable witness so as to exclude his evidence from

consideration altogether but the said evidence remains

admissible in the trial and there is no legal bar to base

conviction or acquittal upon testimony of hostile witness if

corroborated by other reliable evidence. Hon’ble Supreme

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Court in case Raja and others Vs. State of Karnataka

(2016) 10 SCC 506 has held as under:-

“32. That the evidence of a hostile witness in all

.

eventualities ought not stand effaced altogether and
that the same can be accepted to the extent found

dependable on a careful scrutiny was reiterated by
this Court in Himanshu @ Chintu (supra) by drawing
sustenance of the proposition amongst others from

Khujii vs. State of M.P. (1991) 3 SCC 627 and Koli
Lakhman Bhai Chanabhai vs. State of Gujarat
(1999) 8 SCC 624. It was enounced that the

evidence of a hostile witness remains admissible

and is open for a Court to rely on the dependable
part thereof as found acceptable and duly
corroborated by other reliable evidence available on

record.”

14. In the aforesaid settled position and in the light of

admitted and proved facts and circumstances, veracity of

prosecution witnesses particularly that of prosecutrix is to be

evaluated for determining the guilt of respondent on the basis

of material on record.

15. PW-5 Jagdish Singh is father of PW-3, prosecutrix.

When prosecutrix did not return home till late evening despite

her examination was over about 12.30 PM, PW-5 approached

PW-2 Rajinder Singh Guleria, Panchayat Pradhan whereafter

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both of them went to police post Kotla and filed an application

Ex. PW-5/A about missing of prosecutrix. According to PW-5

during that period a telephonic call was received from father of

PW-14 Usha Devi, a friend of prosecutrix, disclosing that PW-

.

14 had received a telephonic call from prosecutrix from Mobile

Phone No. 9805497823 and the said fact was brought in the

notice of police.

16. On tracing PW-1 Sonu Kumar through his mobile

used by prosecutrix to call Usha Devi, he took police party as

well as PW-2 and PW-5 to the spot wherefrom Police party

and others reached in the house of respondent and on the

basis of information given by father of respondent, prosecutrix

and respondent were traced in village Seri sleeping in a

room in house of uncle of respondent. These facts stand

proved on record being not disputed in cross-examination.

From trend of cross-examination read with explanation given in

statement of respondent recorded under Section 313 of the

Code of Criminal Procedure, it can safely be inferred that it is

admitted fact that in the night of 15.07.2011 prosecutrix was

found sleeping with respondent in house of his uncle. There

are positive suggestions put to prosecutrix, also admitted by

her, that when she and respondent reached in the house in

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village Seri, an elderly couple was present there and room of

that couple was opposite to the room in which she was

and those persons had inquired respondent about her and

respondent had told that she was his friend and those persons

.

provided meal to them and she shared bed with respondent

during night. In cross-examination of PW-15 Investigating

Officer also, though denied by him, it was suggested that at

place Ghera prosecutrix had told him that she had gone with

respondent with her consent.

17. Replying to question No. 34, in statement under

Section 313 of the Code of Criminal Procedure, respondent

stated that prosecutrix was in visiting terms with him and

his family and she invariably used his taxi and he had also

stayed in the house of prosecutrix. In cross-examination to

PW-5 Jagdish Singh, about which he expressed ignorance, it

was suggested that respondent and prosecutrix were good

friends, they loved each other and prosecutrix wanted to marry

respondent. The facts that prosecutrix accompanied

respondent to his house and stayed with him in the house of

his uncle and was found sleeping in one room with respondent

also have corroboration from trend of cross-examination.

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These facts also stand proved on record beyond reasonable

doubt.

18. In examination-in-chief, PW-3 categorically stated

that respondent sexually assaulted her during night on

.

15.07.2011 and in cross-examination, she stated that she was

sexually assaulted by respondent twice. The fact that she had

not resisted at that time, was not disputed rather admitted by

her. A suggestion put to prosecutrix, which she admitted, that

she had shared bed with respondent during that night, also

corroborates the prosecution story that during the night of

15.07.2010, prosecutrix was exposed to sexual intercourse by

respondent. This fact also stands established with

corroboration of scientific evidence on record.

19. Now, question as to whether prosecutrix was

enticed or taken by the respondent out of lawful guardianship

by taking her from school to his uncle’s house and she was

subjected to sexual intercourse without her consent, and in

case there was consent of prosecutrix as to whether

prosecutrix was competent to consent for the same, is to be

decided.

20. Prosecutrix, in her statement Ex. PW-3/A recorded

under Section 154 of the Code of Criminal Procedure as well as

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in Court, stated that after examination, at about 12.00 noon,

she reached near gate of her school at Trilokpur near the van

of respondent, where respondent allured her for marriage and

on her refusal, forcibly put her in his van and took away.

.

They left the said van on stopping for empty fuel tank at Bhali

and therefrom travelled in a bus to Banoi wherefrom

respondent took her to his home at Jhikar in a long white car

where father of respondent scolded him and directed to leave

prosecutrix with her parents, and about half an hour

thereafter, respondent arranged a Alto car and also clothes

of his sister-in-law (Bhabi) and informed her that they had

to go Ghera where after and they started to Ghera in Alto

Car. On the way, her school dress was got changed by

respondent and she also contacted her friend through

mobile phone of PW-1 Sonu Kumar driver of car, and from

Ghera they went to village Seri on foot where after taking

meals, respondent took her in a room of his uncle and slept

with her and ravished her.

21. Prosecutrix also admitted that the bus boarded by

them was full of passengers and there were 3-4 other persons

already sitting in the long white car in which they travelled

from Banoi to Jhikar. She went with respondent from school

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to Bhali in his van in broad day light, travelled in public

transport vehicle i.e. bus from Bhali to Banoi, therefrom to

village of respondent in a car with 3-4 other passengers, from

Jhikar to Ghera in car driven by PW-1 Sonu Kumar, walked

.

together on foot for 3 Kms from Ghera to Seri but she did not

complain and even tried to complain to anybody in the bus or

in the car or to anybody at Bhali, Banoi, Jhikar, Ghera or Seri.

She was allegedly taken away forcibly by respondent in his

van during peak hours of school as it was time when

examination was over and maximum students were bound to

be present at the gate of the school. Prosecutrix herself stated

that there were other vehicles also parked in front of the gate

of the school but there is, not even murmur, in her statement

either in Ex. PW-3/A or in the Court that she had even made

slightest effort to raise alarm or to approach any persons on

these public places against forcible act of respondent.

22. It is also noticeable that respondent was scolded

by his father for bringing prosecutrix to his house and was

asked to leave prosecutrix with her parents but at that time

also prosecutrix conspicuously, not only remained silent but

voluntarily accompanied respondent in car of PW-1 to go to

Village Ghera, changed her clothes, made mobile call to PW-14

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and thereafter walked with respondent for about 3 Kms to

reach house of his uncle at Seri for staying. At Seri also, on

claiming her to be his friend in reply by respondent to

question raised by his uncle, she remained silent and continued

.

to join respondent even in bed till both of them were traced by

police and her father.

23. It is prosecution case that prosecutrix contacted

PW-14 Usha Devi on mobile which helped police to trace her.

PW-2 Rajinder Singh Guleria, PW-14 Usha Devi and PW-17

ASI Deepak Kumar corroborated the said fact. PW-1 Sonu

Kumar also stated that respondent and girl accompanying him,

while travelling in his car, used his mobile to call someone. It

establishes that prosecutrix was free to call anybody when she

was travelling with respondent which falsify the stand of

prosecutrix that she was forcibly taken or enticed by

respondent for getting married.

24. Admittedly location of prosecutrix and respondent

was traced on the basis of her telephonic call to her friend PW-

14 Usha Devi. Prosecutrix and PW-5 admitted that mother of

prosecutrix was also having mobile phone. While travelling with

respondent, prosecutrix having opportunity to make a call,

made it to her friend but not to her mother. She did not try to

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inform her parents about forcible act allegedly being

committed by respondent and taking her without her consent.

25. Age of prosecutrix in instant case stands proved

more than 16 years and consent on her part in the episode is

.

duly established on record. Therefore, for consent, no case

under Section 375 punishable under Section 376 IPC is made

out against respondent.

26. So far as charges under Sections 363 and 366 IPC

are concerned, prosecutrix is below 18 years of age and for

taking or enticing a minor female under 18 years of age from

lawful guardianship respondent can be convicted as for age of

prosecutrix, her consent will be immaterial for purpose of

Section 361 IPC, in case it is found that she was taken or

enticed by respondent. But before convicting a person under

Section 363 and 366 IPC, evidence must establish that there

was an active role of that person in enticing or taking a minor

out of lawful guardianship with intention to compel minor to

marry.

27. In her statement Ex. PW-3/A, prosecutrix stated

that respondent visited her house thrice. On the other hand in

Court she deposed that she was not known to respondent

prior to the incident. However, in her later part of statement,

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she stated that respondent had visited her house once, two

years prior to the incident but was not seen by her and his visit

was informed to her by her cousin. She also stated that her

friend Neha used to talk with respondent on Mobile Phone and

.

to tell her that a person from Dharamshala knew her. She

also stated that her mother might have taken lift in vehicle of

respondent many times. Father of prosecutrix, PW-5 Jagdish

Singh admitted that vehicle of respondent was being plied

regularly in village but he expressed his ignorance about

taking lift in the said vehicle by prosecutrix or his wife and

visits of respondent in his house on numerous occasions and

also night stay in his and his wife’s absence. He also denied

knowledge about friendship and love affair of his daughter

with respondent and desire of his daughter to marry

respondent. He did not deny these facts specifically and gave

evasive replies to the suggestions put to him with regard to

relations of respondent and his family.

28. Though, respondent claiming visiting house of

prosecutrix on various occasions as also stated in his

statement under Section 313 Cr.PC, however, prosecutrix

denied the same and her father expressed ignorance about

the same. Therefore, statement under Section 313 Cr.PC, in

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21
isolation, can not be made basis for deriving inference of such

intimacy for want of substantive evidence on record in this

regard. Hence, there is nothing on record to establish that

even prior to date of incident, respondent played some role at

.

any stage to solicit or persuade prosecutrix to abandon her

legal guardianship. No doubt, the part played by the accused

could be regarded as facilitating the fulfillment of the intention

of prosecutrix. That part, in our opinion, as held in S.

Varadarajan vs. State of Madras AIR 1965 SC 942, falls short

of an inducement to the minor to slip out of the keeping of her

lawful guardianship and is, therefore, not tantamount to

‘taking’ or ‘enticing’.

29. Prosecutrix was just about to reach majority and

she herself left alongwith respondent. From evidence on

record, it is duly proved that she boarded various vehicles

including public transport and travelled with respondent at

various places and also walked on foot about 3 Kms. She

knowingly and voluntarily joined respondent. There is nothing

on record to show any inducement by respondent or any active

participation on his part by him in formation of intention of

prosecutrix to accompany him. Active role on the part of

respondent for inducing prosecutrix in taking or enticing

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prosecutrix out of the keeping of lawful guardianship of her

parents cannot be said to have established. Intimacy of

respondent with prosecutrix so as to entice or influence her is

neither alleged nor admitted much less established on record.

.

Therefore, respondent cannot be said to have ‘taken’ her out of

her lawful guardianship. In present case, there is no enticing or

taking as required to punish respondent under Sections 363

and 366 IPC.

30. From the above discussion, it is evident that the

evidence adduced by the prosecution, cannot be treated as

cogent, reliable, credible and trustworthy so as to prove

offence alleged to be committed by respondent beyond

reasonable doubt.

31. It is a settled principle of law that acquittal

strengthens presumption of innocence in favour of an accused.

To dislodge the same, onus heavily lies upon the prosecution.

The respondent has been acquitted by the trial Court. It cannot

be said that learned trial court has not appreciated evidence

correctly and completely and acquittal of accused has resulted

into travesty of justice or has caused mis-carriage of justice. In

this appeal, prosecution has failed to make out a case for

interference in impugned judgment.

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23

32. The present appeal, devoid of any merit, is

dismissed, so also pending applications, if any. Bail bonds, if

any, furnished by the respondent are discharged. Records of

the Court below be sent back forthwith.

.

(Sanjay Karol)
Judge

(Vivek Singh Thakur)
Judge

April 22, 2017
*brb*

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