IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.767 OF 2001 (OLD NO.664/1991) Dilshad Ali S/o Mohammad Ali R/o Tharali, District Chamoli ……… Appellant Versus The State ……… Respondent Dated: November 5, 2008 Sri Suresh Mishra, learned counsel for the appellant Sri M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This appeal, preferred by the appellant u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 27.3.1991 passed by Sessions Judge, Chamoli in Sessions Trial No.19/1990, State Vs. Dilshad Ali and another, whereby the learned Sessions Judge, convicted the appellant/accused Dilshad Ali u/s 366 of the Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to five years rigorous imprisonment. However, the appellant/accused was acquitted by the trial court u/s 363 I.P.C. The co- accused Mohd. Shahid was also acquitted by the trial court u/Ss 363, 366 and 109 I.P.C. 2. In brief, the prosecution case is that P.W.1 Jot Singh lodged the F.I.R. on 10.4.1990 in the Police Chowki Tharali with the averment that his daughter Km. Vimla, aged about 17 years, has gone to Tharali on 8.4.1990 where his another daughter Km. Sunita, aged about 14 years, was living and who was studying in Class IX at Government Girls Inter College, Tharali. When his daughter did not come to the house in the evening on 8.4.1990 then on 9.4.1990 he went to Tharali for the 2 search of his daughter. When he came to see her daughters at her room then he did not found her both the daughters. Then, after enquiring from the people, he came to know that the appellant/accused Dilshad Ali and the co-accused Mohd. Shahid enticed his daughters and has taken them away from there. He continued search of his daughters whole night then on 10.4.1990 he came to know from the constable of the Police Chowki, Tharali that his daughters (Vimla and Sunita) and the appellant/accused were taken to the police station Tharali from Bageshwar. Then, he came to police station where he met his daughters, Dilshad Ali and Dharmendra Singh. With the same averments, F.I.R. was lodged by him, i.e., Ext.Ka-1. The report was also lodged in the Police Station, Bageshwar on 9.4.1990 at 9:30 P.M. of the recovery of the two girls. The entry was made in the G.D., copy of the G.D. is Ext.Ka-2. On the basis of the report Ext.Ka-1, Chik F.I.R. was prepared by Head Moharrir P.W.7 Ombeer Singh on 10.4.1990 at 11:30 A.M. in Police Station Tharali, District Chamoli. The Chik F.I.R. is Ext.Ka-3. The necessary entry was also made in the G.D., carbon copy of the G.D. is Ext.Ka-4. Km. Sunita and Km. Vimla were given in the supardgi of their father. The entry was also made in the G.D. on 10.4.1990, copy of the G.D. is Ext.Ka-5. Statement of the victims, Km. Sunita and Km. Vimla, were also recorded u/s 164 Cr.P.C. by P.W.9 S.D.M., Sri G.D. Tripathi. The statement of Km. Vimla is Ext.Ka-16 and the statement of Km. Sunita is Ext.Ka-17. Investigation of this case was entrusted to P.W.8 Station Officer, Sri Chandra Prakash Sharma, who during the course of the investigation, recorded the statement of the witnesses and after completing the investigation filed the charge sheet against the appellant/accused and the 3 co-accused u/Ss 363, 366A and 120B I.P.C. That charge sheet is Ext.Ka-15. 3. Learned Chief Judicial Magistrate, Chamoli committed the case to the Court of Sessions on 8.10.1990 after giving necessary copies to the appellant/accused and the co-accused as provided u/s 207 Cr.P.C. 4. On 22.10.1990, learned Sessions Judge, Chamoli framed the charge of offence punishable u/Ss 363 and 366 I.P.C. against the appellant/accused Dilshad Ali. The charge was also framed against the co-accused Mohd. Shahid (acquitted by the trial court) for the offence punishable u/Ss 363, 366 and 109 I.P.C. The charge was read over and explained to the appellant/accused and the co-accused (acquitted by the trial court), who pleaded not guilty and claimed to be tried. 5. In order to prove its case, the prosecution has examined P.W.1 Jot Singh-complainant of the case, P.W.2 Km. Vimla (victim), P.W.3 Km. Sunita (victim), P.W.4 Dharmendra Singh, P.W.5 Head Constable Mohan Chandra, P.W.6 Constable Tejpal Singh, P.W.7 Head Constable Ombeer Singh, P.W.8 Chandra Prakash Sharma-Investigating Officer of the case, P.W.9 G.D. Tripathi, S.D.M. 6. Thereafter, the statement of the appellant/accused and the co-accused (acquitted by the trial court) were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against them. However, in defence, they did not produce any oral or documentary evidence. 4 7. After appreciating the evidence available on record and hearing learned counsel for the parties, learned Sessions Judge vide his judgment and order dated 27.3.1991 convicted the appellant/accused Dilshad Ali u/s 366 I.P.C. and sentenced him to five years rigorous imprisonment. However, the appellant/accused was acquitted by the trial court u/s 363 I.P.C. The co-accused Mohd. Shahid was also acquitted by the trial court u/s 363, 366 and 109 I.P.C. 8. To prove its case, the prosecution examined P.W.1 Jot Singh, who has stated that he have got three daughters. The eldest one is Gomti who is married and have a son. Another daughter is Vimla, aged about 16-17 years, she is working in Anganbadi and she is Class X pass. Third daughter is Sunita, aged about 14 years, who is studying in Class X in Tharali and she is living in Tharali in a rented room. The elder daughter Km. Vimla works in his Village Kuni as Anganbadi worker and her office is in Tharali. He further stated that on 8.4.1990, his daughter Vimla has gone from the village to her office Tharali and she told him that she will come back in the house in the evening. When she did not came back to house then on the next day he went to Tharali. There he went to the room of her daughter where he did not found his both the daughters. When he enquired the matter from the people then he came to know that her daughters used to go in the Video Parlour of Mohd. Shahid. On 10.4.1990, he again came back to Tharali for search of his daughters, then he scribed the First Information Report by Anand Singh Pradhan. That F.I.R. is Ext.Ka-1. On the same day, he came to know that both of his daughters were recovered by the Bageshwar Police and they were taken to the Tharali Police Chowki. When he went to Police Chowki, Tharali, both the daughters were there. In the cross- 5 examination, in para 3, he has stated that he is about 50 years’ old and his wife is about 45 years’ old. He have got three daughters and have got no son. When his eldest daughter was born then he was about 23-24 years’ old and after two years of the birth of first daughter, second daughter was born and after three years of the birth of the second daughter, third daughter was born. **esjh mez djhc 50 o"kZ dh gSA esjh L=h dh mez 45 o"kZ dh gSA esjh rhu yM+fd;k¡ gSaA dksbZ yM+dk ugah gSA tc esjh lcls cM+h yM+dh iSnk gqbZ] rc esjh mez djhc 23] 24 o"kZ dh Fkh] igyh yM+dh iSnk gksus ds 2 lky ckn esjh nwljh yM+dh gqbZA nwljh yM+dh ds iSnk gksus ds 3 lky ckn rhljh yM+dh iSnk gqbZ FkhA** 9. P.W.2 is Km. Vimla, who has stated that the appellant/accused Dilshad Ali and co-accused were known to her. They were known to her before the said incident. Co-accused Mohd. Shahid has a video parlour and she used to go there to see video films. Since the appellant/accused Dilshad Ali has a shop adjacent to her room, so the appellant/accused was also known to her. Co-accused Mohd. Shahid used to ask her to come at Haldwani with him and he would give her good things there. He also told her that he will go to Haldwani one or two days before and had asked her to come along with the appellant/accused. She further stated that she came to Tharali from her house on 8.4.1990. Then she stayed in the room of her sister Sunita in the night of 8.4.1990 and on 9.4.1990 at about 11-12 A.M. she along with her sister Sunita went to the bus station where the appellant/accused Dilshad Ali met her. Then she along with her sister went to Gwaldum, the appellant/accused was also on the same bus and from Gwaldum they changed the bus and by another bus they went to Bageshwar. At Bageshwar, Dharmendra of her village met her. The appellant/accused stayed her and her sister in a 6 room at Bageshwar. Then in that room, police came and she along with her sister Sunita and the appellant/accused Dilshad Ali were taken by the police to the police station from where they were taken to Tharali Police Chowki. On 10.4.1990 she and her sister had gone to their village with their father. The statement of P.W.2 Km. Vimla gets corroboration from the statement of P.W.3 Km. Sunita. 10. P.W.4 is Dharmendra Singh, who has stated that the appellant/accused Dilshad Ali and the co- accused Mohd. Shahid were known to him as he used to visit Tharali and Km. Sunita and Km. Vimla belongs to the village which is at a distance of 1/2 Kilometer from his village. On 9.4.1990, he was at Bageshwar. At about 4-5 P.M. he saw the appellant/accused along with Km. Sunita and Km. Vimla. He asked both the girls but they gave no answer. Thereafter, boys of the locality surrounded all of them then they were taken to the police station. Next day both the girls and the appellant/accused were taken to the Tharali Police Chowki and both the girls were given in the supardgi of their father. 11. P.W.5 is Head Constable Mohan Chandra, who has stated that on 9.4.1990 he was posted as Head Moharrir in Police Station, Bageshwar, District Almora. On that day, at about 9:30 P.M., Gopal Giri Goswami and Hari Om Bhakuni brought the two girls, namely, Sunita and Vimla in the police station. The appellant/accused Dilshad Ali and Dharmendra were also with them and they (Gopal Giri Goswami and Hari Om Bhakuni) have given a report in the police station. The entry was made in the G.D., copy of the G.D. is Ext.Ka-2. After that both the girls, Dharmendra and Dilshad Ali were sent to Police 7 Chowki, Tharali along with the Constable Tejpal Singh and Niranjan Singh. 12. P.W.6 is Constable Tejpal Singh, who has stated that on 10.4.1990, he was posted as Constable in Bageshwar Police Station. On that day, he has gone to Tharali along with Km. Vimla, Km. Sunita, Dharmendra and the appellant/accused Dilshad Ali. They were taken by him from Bageshwar to Tharali and reached Tharali at 2:30 P.M. Copy of the G.D. Ext.Ka-2 was also given by him in the Tharali Police Chowki. 13. P.W.7 is Head Constable Ombeer Singh, who has stated that on 10.4.1990, he was posted as Head Moharrir in Police Chowki, Tharali. On that day, P.W.1 Jot Singh gave the written report Ext.Ka-1 in the police station. On the basis of this report, Chik F.I.R. Ext.Ka-3 was prepared by him. The necessary entry was also made in the G.D., carbon copy of the G.D. is Ext.Ka-4. Constable of the Police Station, Bageshwar, District Almora has come along with the two girls in the police chowki. The entry was also made in the G.D., copy of the G.D. is Ext.Ka-5. 14. P.W.8 is Chandra Prakash Sharma, who has stated that on 10.4.1990, he was posted as Station Officer, Karnaprayag, District Chamoli. He started the investigation of this case on the same day. During the course of the investigation, he recorded the statement of the witnesses. The statement of Km. Vimla and Km. Sunita were also recorded by S.D.M., Karnaprayag u/s 164 Cr.P.C. After completing the investigation, he filed the charge sheet against the appellant/accused and the co- accused u/Ss 363, 366A and 120B I.P.C. That charge sheet is Ext.Ka-15. 8 15. P.W.9 is G.D. Tripathi, who has stated that on 16.4.1990, he was posted as Sub Divisional Magistrate in Karnaprayag. The statement of Km. Vimla and Km. Sunita were recorded u/s 164 Cr.P.C. by him and he signed on it. The statement of Km. Vimla is Ext.Ka-16 and the statement of Km. Sunita is Ext.Ka-17. 16. After that the statement of the appellant/accused and the co-accused (acquitted by the trial court) were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against them. However, in defence, they did not produce any oral or documentary evidence. 17. Learned counsel for the appellant/accused submitted that on the basis of the evidence discussed above, the prosecution has not proved the case beyond reasonable doubt against the appellant/accused u/s 366 I.P.C. I find substance in the argument advanced by learned counsel for the appellant/accused. Before further discussion, it is pertinent to mention Section 366 of I.P.C., which is reproduced as under:- “366. Kidnapping, abducting or inducing woman to compel her marriage, etc.- Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; [and whoever, by means of 9 criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid].” 18. The statement of P.W.1 Jot Singh, P.W.2 Km. Vimla and P.W.3 Km. Sunita does not disclose that the victims Km. Vimla and Km. Sunita were kidnapped or abducted with intent to marry any person against their will or in order that they may be forced or seduced to illicit intercourse. From the evidence discussed above, it is also clear from para 3 of the statement of P.W.1 Jot Singh that the victim P.W.2 Km. Vimla was about 24 years’ old and P.W.3 Km. Sunita was about 21 years’ old at the time of the said incident. Both the victims were major at the time of the said incident. It has also come in the statement of P.W.2 Km. Vimla and P.W.3 Km. Sunita that P.W.2 Km. Vimla, with her own will, has come from her village Kuni to Tharali on 8.4.1990 and from Tharali, both the sisters went to Gwaldum by bus. From Gwaldum they changed the bus and went to Bageshwar. At Bageshwar, they were wandering with their own will, which was at a distance of about 50 kilometers from her village. P.W.2 Km. Vimla and P.W.3 Km. Sunita travelled by bus. On the way, they met number of people but they have not complained to anybody that the appellant/accused Dilshad Ali has enticed them and taking them away without their consent. Thus, from the evidence discussed above, it is proved that P.W.2 Km. Vimla and P.W.3 Km. Sunita were major at the date of the said incident and they have gone to Bageshwar with their own consent. There is no evidence that they were compelled by the appellant/accused to marry with 10 any other person or were compelled to intercourse with any other person against their wish. No medical examination of the victims were conducted by the prosecution which creates a doubt in the prosecution story. Thus, from the evidence discussed above, the prosecution has not proved the case beyond reasonable doubt against the appellant/accused u/s 366 I.P.C. 19. Learned counsel for the appellant/accused argued that the appellant/accused was acquitted by the trial court u/s 363 I.P.C. and the State has not filed any appeal against this. Learned brief holder for the State also conceded to this point. In para no.23 of the judgment of the trial court, the court has specifically held that the victim P.W.2 Km. Vimla is 24 years’ of age and P.W.3 Km. Sunita is 21 years’ of age at the time of the said incident. No charge u/s 363 I.P.C. is proved against the appellant/accused and the co-accused (acquitted by the trial court). That finding is intact and no appeal was filed against the appellant/accused by the State, which also creates a doubt in the prosecution story. 20. Another point argued by learned counsel for the appellant/accused is that the co-accused Mohd. Shahid has been acquitted by the trial court on the basis of the similar set of evidence and on the same facts and circumstances and on this very ground the appellant/accused has been convicted by the trial court which is not sustainable in the eye of law. I find substance in the argument of the learned counsel for the appellant/accused that the co-accused Mohd. Shahid has been acquitted by the trial court on the basis of same evidence and I am fortified in my view with the verdict of Hon’ble Apex Court in the case of Deepak Rajak Vs. State of West Bengal reported in 2007 AIR SCW 5740. 11 Paras-5, 6 and 7 of this judgment are essential to mention here, which are reproduced hereunder:- “5. The position in law as to what happens in case of acquittal of similarly placed co-accused on the same set of facts and on similar accusations has been considered by this Court in several cases. 6. A departure may be made in cases where the accused had not surrendered after the conviction in addition to not filing an appeal against the conviction. But as in the present case, after surrender, the benefit of acquittal in case of co-accused on similar accusations can be extended. 7. The appeal is allowed and conviction and sentence as recorded by the trial court and upheld by the High Court is set aside.” 21. Thus, from the evidence discussed above and the facts and circumstances of the case, the prosecution has not proved the case against the appellant/accused beyond reasonable doubt u/s 366 I.P.C. The appellant/accused is also entitled for benefit of doubt on the basis of the same set of evidence in which the co- accused was acquitted by the trial court. 22. After considering the facts and circumstances discussed above and in view of the judgment of Hon’ble the Apex Court (supra), trial court has erred in convicting and sentencing the appellant/accused for the offence punishable u/s 366 I.P.C. 23. For the reasons recorded above, the appeal is allowed. The judgment and order dated 27.3.1991 passed by Sessions Judge, Chamoli in Sessions Trial No.19/1990, State Vs. Dilshad Ali and another, is set aside. The 12 conviction and sentence of five years’ R.I. for the offence punishable u/s 366 I.P.C. awarded by the trial court to the appellant/accused Dilshad Ali, is also set aside. The appellant-Dilshad Ali is on bail. He needs not surrender. His bail bonds are cancelled and sureties are discharged. 24. Let a copy of this judgment along with the record of the trial court be sent back to the trial court concerned for compliance of the order forthwith. (Dharam Veer, J.) 05.11.2008 RG