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 hisstatement by drawing his attention to that part of it,
which has been objected to by the other party, asbeing untrue. Without this, it is not possible to
impeach his credibility. Such a law has been
advanced in view of the statutory provisionsenshrined 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 his25/04/2017 23:58:12 :::HCHP
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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 SC226; 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, AIR2005 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 caseof prosecution and it is not an evidence. Statement
of an accused under Section 313 of the Code of
Criminal Procedure is recorded withoutadministering oath and, therefore, said statement
cannot be treated as evidence within the meaning of
Section 3 of the Evidence Act………….. There isreason 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 consequenceswhich 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 founddependable on a careful scrutiny was reiterated by
this Court in Himanshu @ Chintu (supra) by drawing
sustenance of the proposition amongst others fromKhujii 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 theevidence 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 onrecord.”
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
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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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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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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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