IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Leave to Appeal No. 48 of 2006 State of Uttarakhand .……… Appellant. Versus Jaiveer Singh S/o Sri Muni .……… Respondent Mr. B.S. Parihar, Brief Holder for the appellant/State. None for the respondent. Hon’ble J.C.S. Rawat, J. Mr. B.S. Parihar, Brief Holder for the appellant/State. None for the respondent inspite of sufficient service. 2. The present leave to appeal application has been filed by the State to grant leave to file appeal against the order of acquittal dated 25/05/2006 passed by the learned Addl. Sessions Judge/2nd F.T.C. Haridwar in S.T. No.265 of 2004, State Vs. Jaiveer. 3. Brief fact of the case are that an F.I.R. was lodged on 19/08/2003 at about 10:00 a.m. by the complainant Bona alleging therein that the accused/respondent has abducted his daughter-in-law Smt. Usha alongwith her daughter aged about 1 year. The complainant tried his best to search them but could not find out her daughter-in-law. The police investigated the matter and during the investigation, the accused/respondent surrendered before the court concerned and he was taken into custody by the police but the prosecutrix Smt. Usha was not traced. After completing the investigation, the police submitted the chargesheet u/s 363/366 I.P.C. against the accused/respondent. 4. After submission of chargesheet, the accused was committed to the court of Sessions for trial and the trial court framed charge u/s 363/366 I.P.C. against the accused/appellant. The accused denied the charges levelled against him and claimed his trial. 2 5. The prosecution in support of its case examined as many as seven witnesses. PW1 Sukhviri, PW2 Bona (complainant), PW3 Kallan, PW4 Mamraj, PW5 S.I. S.L. Azad (Investigating Officer), PW6 Constable Jaipal Singh and PW7 Rajesh Kumar 6. The accused-respondent was examined u/s 313 Cr.P.C. and he has pleaded not guilty to the offence. He has further stated that he has been falsely implicated in this case due to enmity. 7. The learned Addl. Sessions Judge, after appreciation of the evidence and hearing the parties, acquitted the accused/respondent. 8. Heard Mr. B.S. Parihar, Brief Holder for the appellant/State. Notices were sent to the respondent but inspite of served personally, he did not appear before this Court. I summoned the trial court record and perused the record as well as the judgment passed by the trial court. Learned trial court has acquitted the accused on the ground that there were contradictions in the evidence of the witnesses; the victim was a major aged about 23 to 24 years of age; she went with her own consent with the accused/respondent; there is no evidence against the accused/respondent that he enticed away or took the victim away forcibly; there is no evidence that the victim Usha was abducted to compel her to marry with the accused/respondent or any other person; the child aged about 1 to 2 years was in a lawful guardianship of her mother; and the prosecution failed to establish the case against the accused/respondent. 9. I have gone through the entire evidence. The prosecution witnesses have been discussed by the trial court at length. To attract the provision of Section 363 I.P.C., the ingredients as provided u/s 362 I.P.C. should be proved by the prosecution. According to Section 362 I.P.C., the accused must compel the victim by force to accompany him or her or by any deceitful means. On the fulfillment of these 3 conditions, the evidence of abduction is said to have been proved. In the instant case, prosecution witnesses PW1 Sukhviri, PW2 Bona (complainant) and PW3 Kallan have only stated in their deposition that they saw the victim going with the accused/respondent. The accused/respondent was going ahead and the victim was following him with a bag in her hand and child on her lap. It is also in the evidence that the accused/respondent has not caught the hand of the victim or he has not threatened the victim. There is no evidence that the victim was forcibly taken by the respondent. Whereas the deceitful means is concerned, the said evidence is lacking in this case. It is very much in the evidence that the accused never used to come to the matrimonial house of the victim and the victim also never used to go to the house of the accused/respondent. There is no iota of evidence what type of deceitful means was practiced upon the victim. The prosecution failed to prove the ingredients of Section 363 I.P.C. by a cogent and credible evidence. 10. The accused/respondent was also charged u/s 366 I.P.C. Section 366 I.P.C. deals with the kidnapping or abduction of any woman with intent to compel her to marry. In this case, the trial court has rightly held that there is no evidence on record to prove the charge leveled against the accused/respondent. 11. I have gone through the evidence with the help of the learned Brief Holder. The learned trial court has rightly appreciated the evidence. I do not find that the approach of the learned trial court acquitting the accused/respondent was incorrect. It is also settled position of law, if two views are possible, the appellate court will prefer the view which has been taken by the trial court particularly in the cases of appeal against the acquittal. I do not find that the learned trial court has made any error in assessing the evidence of the prosecution. I do not find that any interference is required in this case. 4 12. In view of the above, I do not find any infirmity in the judgment of the learned trial court. The learned trial court has rightly acquitted the accused/respondent in this case. The leave petition is liable to be dismissed and is hereby dismissed. Accordingly, the appeal also stands dismissed. (J.C.S. Rawat, J.) 05.05.2009 Shiv