1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. JUDGMENT Mahesh Chand Sharma Vs. The State of Raj. S.B.CR. APPEAL NO. 306/1987 UNDER SECTION 374 CR.P.C. AGAINST THE JUDGMENT AND ORDER DATED 5.8.1987. DATE OF JUDGMENT ::: 11st August, 2008. P R E S E N T HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Virendra Singh Gurjar, for the appellant. Mr. B.S. Chhaba, Public Prosecutor, for the State. BY THE COURT: Challenge in this appeal is to the judgment dated 5th August, 1987 whereby the Additional Sessions Judge No.5, Jaipur city, Jaipur convicted the accused appellant in the offence under Sections 366 of IPC and sentenced him to Rigorous Imprisonment of four years and a fine of Rs.200/-; in default of payment of fine to further undergo simple imprisonment of one month. 2. The prosecution story as unravelled for trial, runs as under: “That the complainant PW/2 Suresh Chand Jain and the accused appellant Mahensh Chand were living in one house No.214 situated in front of Veer Hanuman Tample in Brahmpuri, Jaipur. The complainant was living with his wife Smt. Manju. The accused used to visit his home frequently. On 21st October, 1986 at about 9.30 AM, he went on duty to SMS Hospital as usual. When he returned in the evening at 6.00 PM, he found the door locked. He enquired 2 about his wife from his landlord but he replied that he did not know anything. Till late night he waited for the return of his wife but she did not return. Thereafter, he took care of his house-hold articles and found that the golden ornaments like Chain, rings etc. were missing. He found the door of the accused Mahesh Chand also locked. He searched his wife at all possible places but of no avail. He apprehended the accused to have abducted his wife and therefore, submitted a written complaint Ex.P/1 in Police Station Brahampuri whereupon the police registered the FIR Ex.P/2 and commenced investigation. 3. During investigation the witnesses were examined, the accused Mahesh Chand was arrested vide memo Ex.P/4, necessary memos were drawn and after usual investigation the accused was sent for trial. 4. The accused appellant was charged for the offence under Section 366 of IPC who pleaded not guilty and claimed trial. In order to further its version, the prosecution has examined as many as six witnesses. In his explanation under Section 313 of Cr.P.C., the accused claimed innocence. On completion of trial, the Court convicted and sentenced the accused Mahesh Chand as indicated hereinabove. 5. Heard the submissions advanced by the learned counsel for the appellant, learned Public Prosecutor for the State and with their assistance, scanned the material available on record. 3 6. The learned counsel for the appellant has contended that PW/3 Smt. Manju Jain was 19 years of age at the time of occurrence. She with her husband and accused were living in one building. She was prudent enough to take care of her interests. A close analysis of her statements tangibly reveals that she voluntarily accompanied the accused. There is not even a shred of evidence on record which may lead the Court to hold that the accused abducted her with an intent to marry against her will or that she will be forced or seduced to illicit intercourse. He has further contended that the police detained the accused under Section 109 of Cr.P.C on suspicion. Had Smt. Manju Jain been abducted by the accused, she would have immediately disclosed this fact to PW/4 Man Singh, who arrested the accused on suspicion. The prosecution has failed to prove the offence beyond reasonable doubt against the accused, as such, he deserves to be acquitted. 7. Per contra, the learned Public Prosecutor has submitted that the judgment of the lower Court is perfectly just and proper and the alleged offence is proved against the appellant beyond reasonable doubt, hence, the appeal may be dismissed. 8. The fact situation emerging in the instant appeal is thus: (i) Both PW/3 Smt. Manju Jain and accused Mahesh Chand were living in one building on rent. 4 (ii) PW/3 Manju Jain was living with her husband. (iii) As usual the complainant Suresh Chand Jain went on duty to SMS Hospital on 21st October, 1986 but on return in the evening at 6.00 PM, he did not find her wife in the house and the door was locked. (iv) At the same time, the door of the apartment of accused Mahesh Chand was also found locked. (v) On 23rd October, 1986 both Smt. Manju Jain and the accused were detained by PW/4 Man Singh ASI at Jodhpur. 9. The only question springing for consideration in the instant appeal is that as to whether the accused appellant abducted Smt. Manju Jain with an intent to marry her against her will or with an intent to force or seduce her to illicit intercourse? It is worthwhile to mention that the whole prosecution case rests upon the testimony of PW/3 Smt. Manju Jain. In her deposition, she has stated that the accused persuaded her to go to his parent's house at Rasidpur giving this impression that her father was ill. He also told her that her husband had already proceeded to Rasidpur. Thereupon, she also agreed to proceed with him. She has further stated that instead of Rasidpur, the accused took her to Ajmer. There, they stayed in a house of one doctor. Next morning, they proceeded to Jodhpur where they stayed in a 'Sarai'. In Sarai, they took one room on rent. In the night, the accused did sleep on the bed and she lied on the floor. The accused insisted her for coitus but she objected to it. Thereafter, he 5 threatened to kill if she did not co-habit with him. Then she raised hue and cry in night only. The Sarai being situated near police station, the police reached there immediately and took them in custody. 10. In her searching cross examination, she has clearly admitted that during journey in the bus, on the road, in a Hotel, in Sarai and in doctor's house, she did not raise hue and cry anywhere nor she complained to anyone that she had been abducted by the accused Mahesh Chand. The prosecutrix had an ample opportunity and sufficient time to draw the attention of the passersby or the co-passengers travelling in the bus and the people staying in Sarai to the fact that she had been abducted by the accused but the prosecutrix is nowhere found to have acted in alike manner. 11. Albeit, the prosecutrix has stated that the accused had abducted her giving this impression that her father was ill and she was being taken to Rasidpur and thereafter took her to Ajmer and Jodhpur but the manner in which she has narrated the story and the conduct, which she has exhibited seem to be unlike that of an incident leading to her abduction by the accused. On the contrary, the statements of the prosecutrix take the court to hold that she accompanied the accused voluntarily and there appears no evidence on record which may result 6 in his conviction. The testimony of the prosecutrix is found to be unworthy of credence. The manner in which the prosecutrix has deposed before the Court casts doubt on her veracity and it is not found safe to base conviction of the accused on the sole testimony of the prosecutrix. 12. PW/4 Man Singh is a witness, who having found them in a state of suspicion detained both the prosecutrix and the accused Mahesh Chand at Jodhpur. He has also stated that both the accused Mahesh Chand and Smt. Manju Jain introduced themselves before him as wife and husband. Thus, I do not find even a shred of evidence on record against the accused. The prosecution has miserably failed to establish the charge against the accused beyond reasonable doubt. The impugned judgment of the trial Court is totally based on surmises and conjunctures. Para 18 of the impugned judgment reveals that the learned trial court has exhibited misplaced sympathy with the prosecutrix against all the canons of criminal jurisprudence. Justice cannot be rendered with the passionate feelings nor the justice can flow from the streams of passion and impulses. The learned trial Court seems to have adopted this unwarranted course to decide the case on hand. The impugned judgment suffers from both legal and factual infirmity and his finding of conviction is not at all just and proper, and I respectfully disagree with the same. The 7 accused appellant, in the facts and circumstances of the case, deserves to be acquitted as the prosecution has not succeeded in establishing the guilt. 13. For these reasons, the appeal filed by the accused-appellant Mahesh Chand Sharma is allowed. The conviction and sentence awarded to him vide impugned judgment dated August 5, 1987 are set aside. Instead, he is acquitted in the offence under Section 366 of IPC. The accused-appellant is on bail. His bail bonds stands discharged. (MAHESH BHAGWATI),J. PCG