THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL NO.1526 OF 2004 ORDER: This appeal is directed against the conviction and sentence passed by the Additional Assistant Sessions Judge (Fast Track Court), Badvel in S.C.No.364 of 2002 on 13.07.2004. The appellants herein were prosecuted for the offence under Section 366 IPC alleging that on 31.08.2002 at about 10.00 A.M. P.W.1 lodged a complaint with P.W.7 about missing of girl, P.W.5 from the hostel on 23.08.2002 at 11.30 A.M. and the same was registered as a case in Crime No.112 of 2002 as girl missing and investigation was taken up. During the course of investigation on 06.09.2002 at about 1.00 P.M. on information P.W.8 along with P.W.3 and another N.Chinna Obaiah proceeded to Velellavaripalle located on Badvel-Porumamilla road near Seelamvaripalle and apprehended accused No.2 and recorded his confessional statement, wherein he has confessed about himself and accused No.1 kidnapping P.W.5 with an intention to marry her to the son of accused No.1 and P.W.5 is in possession of accused No.1 at Muthulurupadu Harijanwada of Khajipet Mandal. Accused No.2 lead P.W.8 along with mediator P.W.3 and another China Obaiah to Muthalurupadu Harijanwada, Khajipet Mandal to the house of P.W.6, where they arrested accused No.1, then accused No.1 went inside the house of P.W.6 and produced P.W.5 victim girl before them. P.W.8 has examined P.W.5 and recorded her statement and handover her to her father, P.W.4 and filed the charge sheet against the accused for the offence under Section 366 IPC by altering the Section of law. The learned Assistant Sessions Judge has framed the charge under Section 366 IPC against the accused Nos.1 and 2 and the accused pleaded not guilty for the said charge. In order to establish the said charge, the prosecution examined P.Ws.1 to 8 and got marked Exs.P.1 to P.5. No oral and documentary evidence was adduced on behalf of the accused. The learned Assistant Sessions Judge by taking into consideration of the said oral and documentary evidence found the accused guilty for the offence under Section 366 IPC and convicted and sentenced to undergo rigorous imprisonment for a period of 8 years each and to pay a fine of Rs.500/- each in default to undergo simple imprisonment for one month each. Aggrieved by the said conviction and sentence, the accused therein have filed the present appeal. Now, the point that arises for consideration is: Whether the prosecution could able to establish the offence under Section 366 IPC against the accused beyond reasonable doubt? P O I N T: The appellants’ counsel has pleaded that there are disputes between accused No.1 and P.W.4, father of the victim girl, therefore a false case is foisted against the accused. He further pleaded that the sole evidence of P.W.5, victim girl cannot be relied upon as she admitted in her cross-examination that the police tutored her before giving evidence. He further pleaded that the prosecution has failed to establish the recovery of P.W.5 from the possession of accused No.1 in the presence of P.W.3 and another as P.W.3 turned hostile to the prosecution. The Additional Public Prosecutor on the other hand has pleaded that P.W.5, victim girl has categorically stated about accused No.2 kidnapping her from her school by misrepresenting that her parents were kept in jail at Badvel and she has also specifically stated that accused No.1 asked her to marry his son and kept her at various places at Kadapa and Bangalore and she was recovered by police from the house of P.W.6. According to the prosecution, accused No.2 has taken away the victim girl, P.W.5 from the school by misrepresenting that her parents were kept in the jail and thereafter accused No.1 joined him and took her to different places, during which period he has threatened her to marry his son. On the complaint of P.W.1, police have recovered the victim girl, P.W.5 from the possession of accused No.1 in the house of P.W.6 in the presence of P.W.3 and another. P.W.1 is the warden of Social welfare hostile, Badvel, where the victim girl was staying by studying in the Z.P.Girls High School, Badvel. P.W.2, who is working as a teacher in the said School and both of them have stated that the victim girl, P.W.5 came to them and informed them that her parents were kept in the jail and she wants to go to her native place. According to P.W.1 as the victim girl did not return to the hostel, she enquired A.Bharathi, who is her friend, about victim girl for not coming to the hostel after going to her native place. After 2 days the said Bharathi returned from her native place and informed her that the parents of victim girl came to the hostel. The parents of the victim girl came to the hostel and reported that she has not come to their house. Thereafter, she lodged a complaint with the police. P.W.7, A.S.I has registered a case in Crime No.112 of 2002 as girl missing case on receipt of the complaint of Ex.P.1 from P.W.1. P.W.8 has taken up the investigation. According to him on 06.09.2002 at 1.00 P.M. he arrested accused No.2 at Seelamvaripalli cross road and recorded his confessional statement in the presence of P.W.3 and another. Accused No.2 led them to Muthaluripadu, Harijanawada and accused No.1 produced the victim girl and he arrested accused No.1 in the presence of P.W.3 and another Chinna Obaiah. Then he sent accused Nos.1 and 2 to remand and handover the victim girl to her parents. Therefore, the investing officer arrested accused Nos.1 and 2 in the presence of P.W.3 and recorded their confessional statements Exs.P.2 and P.3. But P.W.3, mediator for the arrest of accused Nos.1 and 2 turned hostile to the prosecution. He has specifically stated that he signed on the panchanamas in the police station at the instance of the police due to fear, but he cannot say the contents of panchanamas dated 06.09.2002 at 1.00 P.M. and 4.00 P.M, but they contain his signatures and he has categorically stated that the police have not arrested the accused in his presence and took custody of victim. He has specifically stated that he do not know the victim girl Jayalakshmidevi at all. Therefore, the mediator, P.W.3 has completely turned hostile to the prosecution. Thus, for recovery of victim girl the only evidence available on record is the evidence of investigating officer, P.W.8 and the victim girl P.W.5. P.W.4, father of the victim girl, has only stated about his enquiries with regard to his daughter and informing to P.W.1 about not tracing of his daughter. According to him, after 15 days of the report given by P.W.1, police traced his daughter and when he enquired his daughter, she informed that accused No.2 took her from the hostel in an auto stating that himself and his wife were in jail and accused No.1 joined on the way and both of them taken her to some unknown places. P.W.5, victim girl, has stated that she knows accused No.1, who belongs to her village Akkalareddipalli. On 23.08.2002 when she was in the class, one of her classmate went outside the classroom and again came and informed her somebody told her parents were put in jail, Badvel and asked her to come out of the class. Then she went to the school gate and saw accused No.2 at the gate. She informed the same to her teacher and took away her books and went to hostel and told the same to her warden and came out of the hostel. Accused No.2 took her in an auto towards Kadapa road and stopped the auto and brought accused No.1. Accused Nos.1 and 2 took her to Mydukur, from there accused No.1 took her to Kadapa to a lodge. Accused No.2 remained in Mydukur and she was kept in lodge for 3 days, from there accused No.1 took her to Bangalore and kept in his relative’s house for 6 days. From there she was taken to Rayachoty by accused No.1 and kept her in a lodge for one day, from there accused No.1 took her to a village and kept her for 3 days in the village, from there she was shifted to Kothapeta and after one day she was taken to Muttalurupadu and kept her in the house of P.W.6. On the 2nd day night police came to Muthalurupadu and traced her and brought her to the Badvel police station. Accused No.1 took her to all these places with an intention to perform her marriage with his son. He threatened to kill her if she wants her parents. But in the cross-examination, she has stated that she was going for tuition to accused No.1 while she was in her village for 4 years and accused No.1 was saying now and then she would be married to his son, but she did not tell the said fact to anybody. She cannot say the names of the lodge at Kadapa, where she was kept. She also further stated that there were ill-feelings between her father, P.W.4 and accused No.1. Police tutored her before giving evidence. Therefore, as per the admission made by her in the cross-examination that she was tutored by the police, so it is not safe to rely upon the evidence of P.W.5, victim girl in the absence of any corroboration. According to P.W.8, he arrested accused No.2 and in pursuance of his confession proceeded to Muthaluripadu Harijanawada and recovered the victim girl, P.W.5 at the instance of accused No.1 from the house of P.W.6. P.W.6 has stated about accused No.1 bringing P.W.5 to his house on 23.08.2002 by informing that P.W.5 is his sister’s daughter and asked her to keep that girl in his house for one day and provide food to her. On the next day police came to his house and took away P.W.5 along with accused No.1. According to him on the date of alleged kidnap, she was kept in the house of P.W.6 and on the next day police recovered her from the house of P.W.6, but it is not the case of the prosecution that immediately on the next day of the commission of alleged incident, the victim girl was traced out. According to the investigating officer, P.W.8 she was recovered on 06.09.2002 from the house of P.W.6., but the same was not supported by the evidence of P.W.6. Even the victim girl, P.W.5 also stated that she was taken to different places after kidnapping and finally brought to the house of P.W.6, from where police have recovered her. But she did not specify in whose presence she was recovered from the house of P.W.6. Therefore, in view of contradictions in the evidence of P.W.6 and as P.W.3, who is the mediator, turned hostile to the prosecution, the prosecution could not establish the recovery of P.W.5 from the house of P.W.6 at the instance of accused No.1. With regard to the intention of the accused to get the victim girl, P.W.5 married to the son of accused No.1; P.W.4 father of the victim girl has not spoken about the same. P.W.5, victim girl has only stated that at all places accused No.1 expressed his intention to marry her to his son and threatened to kill her if she wants her parents. Even the accused No.1 has not compelled her to marry his son. Therefore, the prosecution has failed to establish that the accused has kidnapped the victim girl for compelling her to marry to the son of accused No.1. Thus, the prosecution has failed to establish the charge under Section 366 IPC against the accused beyond reasonable doubt. In the result, the appeal is allowed. The conviction and sentence passed by the Additional Assistant Sessions Judge (Fast Track Court), Badvel in S.C.No.364 of 2002 on 13.07.2004 is hereby set aside and the accused Nos.1 and 2 are acquitted for the offence under Section 366 IPC. _______________________ P.DURGA PRASAD, J 16th December, 2011 Ksp