CRA-S-97-SB-2014 1

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

CRA-S-97-SB-2014
Date of decision:-19.7.2018

Yogesh @ Vikki and another

….Appellants

Versus

State of Haryana

….Respondent

CORAM : HON’ BLE MR. JUSTICE H.S. MADAAN

Present : Mr.Ankit Gautam, Advocate
for the appellants.

Mr.Gaurav Bansal, AAG, Haryana.

****
H.S. MADAAN, J.

Accused Yogesh alias Vikki and Mamta faced trial by

learned Additional Sessions Judge, Karnal, who vide judgment dated

11.12.2013 convicted them for an offence under Section 363 IPC and

vide order of the even date they were sentenced to undergo rigorous

imprisonment for a period of three years and to pay a fine of Rs.2,000/-

each and in default thereof, to further undergo rigorous imprisonment

for a period of one month each, whereas, they were acquitted for the

offences punishable under Sections 366, 366-A, 120-B IPC and 7 of

Protection of Children from Sexual Offences Act, 2012 (hereinafter

referred to as the Act).

The accused-convicts – Yogesh alias Vikki and Mamta,

who are appellants before this Court pray that the appeal be accepted,

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the impugned judgment of conviction and order of sentence passed

against them be set aside and they be acquitted of the charge framed

against them.

Briefly stated, the facts of the case are that criminal

machinery was set into motion by the complainant Satpal, who

submitted an application at Police Station City, Karnal stating therein

that on 13.2.2013 at about 9:00 a.m., his daughter (daughter name not

being mentioned to conceal her identity and referred to as ‘the victim’), a

student of 4th Class in Arya Samaj School situated near Police Station

City, Karnal had gone to school for study but she did not return home

after school hours were over; that they searched for her, but could not

find her. On the basis of that application, formal FIR was registered for

an offence under Section 365 IPC. The matter was investigated, during

the course of which, the date of birth of the victim was found to be

4.8.2000. On 24.2.2013, accused Yogesh @ Vikki was arrested from the

house of Ms.Sabina wife of Fateh Mohammad, resident of Jogiwala

Mohalla, Kharthal Town, District Alwar (Rajasthan). Such accused had

taken a portion of that house on rent. The victim was recovered from his

possession. The offences under Sections 363 and 366-A IPC were added

and offence under Section 365 IPC was deleted. The statement of victim

was recorded under Section 164 Cr.P.C. by the Area Magistrate,

wherein she stated that accused Mamta instigated her to contract a Court

marriage with accused Yogesh alias Vikky. Accused Mamta was

arrested in this case on 25.2.2013.

After completion of investigation and other formalities,

challan against the accused was prepared and filed in the Court of

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learned Chief Judicial Magistrate, Karnal.

On presentation of challan in the Court of learned Chief

Judicial Magistrate, Karnal, he supplied copies of documents relied

upon in the challan to the accused free of costs as provided under

Section 207 Cr.P.C. Then finding that the offence under Section 366-A

IPC is exclusively triable by Court of Sessions, learned Chief Judicial

Magistrate, Karnal committed the case to the Court of learned Sessions

Judge, Karnal vide order dated 6.4.2013 from where it was entrusted to

the Court of learned Additional Sessions Judge, Karnal.

On receipt of case in the Court, learned Additional Sessions

Judge, Karnal, observing that prima facie charge for offences under

Sections 120-B, 363, 366 and 366-A read with Section 120-B IPC and

Section 7 of the Act was disclosed against accused, they were charge-

sheeted accordingly, to which, they pleaded not guilty and claimed trial.

During the course of its evidence, the prosecution examined

as many as thirteen witnesses as per details below:

PW1 prosecutrix – victim deposed that on 13.2.2013 at

about 9:00 a.m. while she was going to her school at Choura Bazar,

Karnal and reached near Ram Dev Temple, Karnal then accused Yogesh

@ Vikki met her telling that he would take her to his wife Mamta near

Namaste Chowk, Karnal and then he after enticing her giving her

allurement of providing new clothes and other articles, took her to

Gharaunda in a tempo from there to Railway Station Gharaunda and

then to Rajasthan by a train, where he took a room on rent and confined

her there. She stated that Vikki provided her food to her in that room and

on the next day, her father along with the police reached there and took

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her and accused to Karnal. She stated that Mamta was with her when

accused took her to Rajasthan. She further deposed regarding making

statement under Section 164 Cr.P.C.

PW2 Satpal also deposed on those lines stating that on

13.2.2013, his daughter (victim) was aged abut 12 ½ years; that she had

gone to school but did not return; that they traced for her but in vain.

That accused Vikki and his wife Mamta were residing in their

neighbourhood and they were also missing from their house from

13.2.2013; then he informed the police and on 23.2.2013 accompanied

the police to Rewari from where his daughter was recovered from the

possession of accused; that the police had got the victim medico legally

examined and got her statement under Section 164 Cr.P.C. recorded;

that the custody of his daughter was handed over to him thereafter.

PW3 Constable Sushila, who on 25.2.2013 was the member

of the police party deposed regarding her part.

PW4 Constable Dharambir, who was member of the police

party on 24.2.2013 testified regarding what had been done by the

Investigating Officer in his presence.

PW5 Ms.Suresh Rani, Headmistress, R.D. Aarya Girls High

School, Karnal proved school certificate of the victim and photocopy of

attendance register.

PW6 Dr.Nipun Kalra, who on 25.2.2013 on police request

had medico legally examined the accused Yogesh @ Vikki proved

carbon copy of MLR giving opinion that there was nothing to suggest

that he was incapable to perform intercourse.

PW7 Lady Constable Beero Devi, in whose presence the

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victim had been recovered from the accused deposed in that regard

besides the other facts within her knowledge.

PW8 Inspector/SHO Naib Singh, who had filed the challan

in the Court on completion of investigation on 15.3.2013 deposed about

the same.

PW9 SI Dalip Singh, who on 14.2.2013 was working as

SHO of Police Station City, Karnal deposed regarding complainant

Satpal submitting an application regarding missing of his daughter, the

victim, on the basis of which formal FIR was recorded.

PW10 Dr.Prem Lata testified that on 24.2.2013 on a police

applicaiton, she had medico legally examined the victim vide MLR,

copy of which being Ex.P14.

PW11 ASI Gurnam Singh tendered in evidence his affidavit

Ex.P15.

PW12 SI Satwinder Singh, who had carried out the

investigation in this case after registration of the FIR deposed in that

regard. He testified regarding what had been done by him with regard to

investigation of the case.

PW13 Ms.Rekha, the then learned Judicial Magistrate Ist

Class, Karnal, who had recorded statement of the victim under Section

164 Cr.P.C. deposed about that.

With that the prosecution evidence got concluded.

Statements of accused were recorded under Section 313

Cr.P.C., in which all the incriminating circumstances appearing against

them were put to them but they denied the allegations contending that

they are innocent and had been falsely involved in this case.

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Accused did not lead any evidence in defence.

After hearing arguments, learned trial Court convicted and

sentenced accused Yogesh alias Vikki and Mamta as mentioned above,

which left them aggrieved and they have filed the present appeal.

I have heard learned counsel for the appellants – accused –

convicts, learned Assistant Advocate General for the State of Haryana

besides going through the record.

The prosecution had successfully proved its charge against

the accused for the offence under Section 363 IPC to the effect that they

had kidnapped the victim, who was aged about 12 ½ years taking her to

Rajasthan by removing her from lawful guardianship of her father Satpal

on 13.2.2013. It needs to be mentioned here that the accused had in fact

kidnapped the victim and she was got recovered from their possession.

The witnesses examined by the prosecution had no motive to depose

falsely in favour of prosecution and against the accused. They stood

their cross-examination well and their credibility could not be shaken on

any point.

The judgment of conviction and order of sentence passed

by the trial Court are well reasoned one, based upon proper appraisal

and appreciation of evidence and correct interpretation of law. There is

no illegality or infirmity therein. Further, the appellants/accused have

been sentenced to undergo rigorous imprisonment for a period of three

years, which cannot be said to be on higher side keeping in view the

gravity of the offence. The said judgment of conviction and order of

sentence are upheld whereas appeal is found to be without any merit and

the same is dismissed accordingly.

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It is stated that appellants – accused namely Yogesh @

Vikki and Mamta are on bail in terms of the orders passed by this Court.

The bail order is cancelled. They are ordered to be taken into custody

and made to undergo the remaining sentence. Necessary direction in that

regard be issued to Chief Judicial Magistrate, Karnal.

(H.S.MADAAN)
19.7.2018 JUDGE
Brij

Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No

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