IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.47 of 2002 Judgment reserved on:25.2.2009. Decided on: February 27, 2009. Beena Devi …Appellant. VERSUS State of H.P. ….Respondent. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant: Mr.Ramakant Sharma, Advocate. For the respondent: Mr Anshul Bansal, Addl.A.G. Kuldip Singh, Judge: This appeal has been directed against the judgment dated 20.2.2002 passed by learned Additional Sessions Judge, Solan, Camp at Nalagarh in Sessions Trial No.3-NL/7 of 1999 convicting and sentencing appellant under Section 109 IPC read with Sections 363, 366, 376 and 34 IPC for seven years simple imprisonment and fine of Rs.20,000. In default of payment of fine, the convict has Whether the reporters of the local papers maybe allowed to see the judgment? Yes …2… been ordered to further undergo simple imprisonment for six months. 2. The appellant was tried for offence punishable under Section 109 IPC read with Sections 363, 366, 376 and 34 IPC. The prosecution case, in brief, is that on 9.6.1998 at about 9.30 a.m. Suresh Kumar co-accused kidnapped prosecutrix PW-15 aged 15 years, daughter of complainant PW-13 Smt.Darshna Devi from ward No.1 Nalagarh and committed sexual intercourse with her against her will and consent. The appellant abetted the commission of offence punishable under Section 109 IPC read with Sections 363, 366, 376 and 34 IPC. Both the accused were tried together but Suresh Kumar accused did not appear in the trial Court after 22.7.2000 and he was declared proclaimed offender. The prosecution has examined 16 witnesses and also produced documents. The learned Additional Sessions Judge on conclusion of trial convicted and sentenced the appellant, as noticed above, hence, this appeal. 3. I have heard Mr.Ramakant Sharma, learned counsel for the appellant and Mr.Anshul Bansal, learned Additional Advocate General for the State and gone through the record. The learned counsel for the appellant has submitted that the prosecution has miserably failed to prove the case against the appellant. There is no evidence on …3… record to show that appellant had abetted the commission of offence. The learned Additional Sessions Judge has not properly appreciated the legal matrix of the case. There is no material on record that appellant in any way instigated, induced prosecutrix and conspired or otherwise helped Suresh Kumar for commissioning of alleged offence. Mr.Sharma has referred Goura Venkata Reddy versus State of A.P., (2003) 12 SCC 469 and Kishori Lal versus State of M.P., (2007) 10 SCC 797 in support of his submissions. The learned counsel for the appellant has submitted for acquittal of the appellant. The learned Additional Advocate General has supported the impugned judgment and has submitted that the prosecution has proved the case against the appellant beyond reasonable doubt. The learned Additional Sessions Judge has rightly convicted the appellant. 4. PW-1 Smt.Ravinder Shakhian has stated that on 15.6.1998 Daulat Singh Sarpanch along with Sucha Singh handed over the prosecutrix to police in her presence as well as others vide memo Ext.PW-1/A. On the same day, the prosecutrix was handed over to her mother Smt.Darshna Devi vide memo Ext.PW-1/B. PW-2 Mohinder Singh has stated that on 15.6.1998 Darshna Devi handed over to police certificate Ext.PW-2/A of the prosecutrix in his …4… presence and others. PW-3 Daulat Singh Ex-Sarpanch of Gram Panchayat Sarian and Numberdar has stated that mother of accused Suresh Kumar told him that Suresh Kumar had brought the prosecutrix. He asked whereabouts of the girl. On this, Suresh Kumar told him that he had kept the girl at Swarghat. He along with Sucha Singh took Suresh Kumar in a van but the girl was not present in the room. She came to the room from Nallah side. They took the girl to Nalagarh and handed over to police. The prosecutrix in the Panchayat said that she did not want to go to her parents’ house as they used to beat her. This witness was permitted to be cross examined by prosecution but nothing supporting the case of the prosecution was extracted in his cross examination by the prosecution. PW-4 Dr.C.L.Bhardwaj has stated that on 15.6.1998 he examined the prosecutrix. He issued the MLC Ext.PW-4/B and as per chemical analysis report Ext.PW-4/A there was no evidence of sexual intercourse in the recent past. PW-5 Sohan Lal, Head Constable, is a witness who deposited sealed parcels with Jai Gopal. He has also stated that on 18.6.1998 S.H.O. Nutan Parshad deposited with him two parcels. He sent all the parcels for chemical analysis through constable Ram Avtar to FSL Junga. PW-6 Datta Ram has stated that on 18.6.1998 he and Jeet Ram were taken by the police to …5… village Pasra in a room which was taken on rent by Suresh Kumar. The police recovered one Dari Ext.P-1 and underwear Ext.P-2 vide memo Ext.PW-6/A. PW-7 Jai Gopal is a witness of four parcels and is not a material witness. PW-8 Ram Avtar Constable is again a witness of six parcels and thus is not a material witness. PW-9 Mohinder Partap Bam, S.H.O. Police Station Nalagarh has stated that on completion of investigation he prepared challan. PW-10 Jagpal Singh, Head Constable, has stated that on 10.6.1998, the case was entrusted to him and he searched the prosecutrix at Bilaspur and at the residential house of Suresh Kumar but she was not traced. PW-11 Smt.Manju has stated that on 15.6.1998 she got prosecutrix medically examined and procured MLC Ext.PW-4/C. PW-12 Dinesh Kumar did not support the prosecution and he was declared hostile. PW-12 was again examined on 13.7.2000. He has stated that as per Register, the date of birth of prosecutrix is entered as 9.11.1982 and Photostat copy of the Register is Ext.PW-12/A. 5. PW-13 Smt.Darshna Devi is the mother of prosecutrix and has stated that Suresh Kumar was residing in her Mohalla and he used to reside with his sister, namely, Parveen. Beena Devi is also known to her who is sister of her husband. On 9.6.1998 she went to temple at 8 a.m. and …6… the prosecutrix was alone in the house. She returned to her house at 12.30 noon from the temple. The prosecutrix was not present in the house. She searched the prosecutrix in the house of relatives and her friends but the prosecutrix was not found. Mohinder husband of Beena Devi told her that the prosecutrix had gone along with accused Beena to village Dattowal. Later on Mohinder disclosed that prosecutrix had gone with Suresh Kumar. Rajinder her brother-in-law, told her to keep check on prosecutrix as he had seen Suresh Kumar talking with prosecutrix. On 10.6.1998, she lodged F.I.R. Ext.PA. On 15.6.1998 prosecutrix was brought by Beli Ram and was taken to Police Station. Thereafter, Investigating Officer handed over the prosecutrix to her. She handed over school certificate Ext.PW-2/A of prosecutrix on 15.6.1998 to Investigating Officer. The prosecutrix was taken at the instance of her husband’s sister who is accused in the present case and she was kidnapped by accused Suresh Kumar. 6. PW-14 Dr.B.K.Bhardwaj, Radiologist, has stated that on 17.6.1998 X-Ray films of prosecutrix were taken. The radiological age as per report Ext.PW-14/B of prosecutrix was between 15 to 17 years. In cross examination, he has stated that there can be variation of age between three years. …7… 7. PW-15, the prosecutrix, has stated that on 1.6.1998 accused Beena Devi called her to her residential house. She went to the residential house of Beena. Accused Beena told her to go with accused Suresh Kumar and marry him. Accused Suresh Kumar told her to meet her at Dattowal on 9.6.1998. On 9.6.1998 she went from her residential house at 9 a.m. to Dattowal. Accused Suresh met her at Dattowal, boarded her in the bus. Suresh took her to village Nal Bhasra near Swarghat. He took the room on rent. Accused Suresh told her that he would marry her. Suresh Kumar committed sexual intercourse with her. On third day, accused Suresh came to Beena at Dattowal. She was kept by the accused in a residential rented house till 15.6.1998. The accused committed sexual intercourse without her consent. She was medically examined. In cross examination, she has stated that she was 17 years and 7 months at this stage. On 1.6.1998 when she visited the house of accused Beena, her (prosecutrix) sisters, mother were present in the house. 8. PW-16 Nutan Sharma, Additional S.H.O., Solan, is the Investigating Officer, he has stated on completion of investigation, he handed over the case file to Mohinder Pal Bam. The appellant was examined under Section 313 Cr.P.C., he denied the prosecution case. …8… 9. Ext.PA is the F.I.R. in which appellant has not been named in any manner. Ext.PW-2/A is the middle standard examination result card of the prosecutrix showing her date of birth 9.11.1982 and to the same effect is Ext.PW-12/A copy of Register showing the date of birth of the prosecutrix as 9.11.1982. The occurrence took place on 9.6.1998, therefore, on the date of occurrence the prosecutrix was less than 16 years. The question in this appeal is whether in any way the appellant is connected with the commission of the offence for which she was tried. The prosecution has examined many witnesses but the statements of two witnesses, namely, PW-13 Smt.Darshna Devi and PW-15 prosecutrix are relevant on the point whether appellant has abetted the commissioning of the offence. PW-13 has not stated in her examination in chief that appellant in her presence asked, instigated or allured the prosecutrix to run away with Suresh Kumar who in fact took away prosecutrix and committed sexual intercourse with her. The statement of PW-13 in the end of her examination in chief that prosecutrix was taken at the instance of her husband’s sister who is accused in the present case and she was kidnapped by accused Suresh Kumar is not based upon her personal knowledge but it is her opinion which is not legal evidence. …9… 10. PW-15 prosecutrix has stated that on 1.6.1998 she was asked by Beena to run away with Suresh and marry him. She has stated that her sisters and mother were present at that time in the house of Beena but this is not so stated by PW-13 Smt.Darshna mother of PW-15 prosecutrix. PW-15 has nowhere stated that appellant in any way influenced her or instigated her to run away with Suresh. She has also not stated that she accepted the advice of Beena to run away with Suresh and marry him. PW-13 and PW-15 have not elaborated why appellant Beena was interested that prosecutrix should run away with Suresh and marry him. It has come on record that Beena is none else but sister of father of prosecutrix. As per prosecution, the prosecutrix did not run away on 1.6.1998 with Suresh Kumar when she was allegedly asked by Beena to run away with him. On the contrary, it is the prosecution case that prosecutrix left her parents’ house on 9.6.1998 and she went to village Dattowal where Suresh met her, who boarded her in the bus and took her to village near Swarghat. The prosecutrix in her statement has also stated that on 9.6.1998 she met Beena Devi in her house but she has not stated that on that date Beena Devi asked the prosecutrix to run away with Suresh. …10… 11. In Goura Venkata Reddy versus State of A.P., (2003) 12 SCC 469 Supreme Court in Paragraph-8 has held as follows:- “Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. A person abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment then the offender is to be punished with the punishment provided for the original offence. "Act abetted" in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence. In the instant case, the abetted persons have been convicted for commission of offence punishable under Section 304. So in the case of A-1 it is Section 304 read with Section 109 IPC, that is attracted.” …11… In Kishori Lal versus State of M.P., (2007) 10 SCC 797, the Supreme Court, in Paragraph-6, again reiterated the interpretation of Sections 107, 109 IPC as follows:- “Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in IPC. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. ‘'Abetted'’ in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence.” 12. On 9.6.1998 the prosecutrix was at least 15 ½ years old as per Ext.PW-2/A, middle standard examination result card and Ext.PW-12/A copy of Register but it cannot be said that the prosecutrix was not capable of …12… understanding what is wrong and what is right. It cannot be said that the prosecutrix just on mere asking of appellant Beena Devi ran away with Suresh Kumar on 9.6.1998. The prosecution, in light of law laid-down by the Supreme Court in the above referred judgments, has miserably failed to establish that the appellant had provoked, instigated, persuaded, incited, allured, urged the prosecutrix to run away with Suresh Kumar for commission of offence or the appellant in conspiracy with Suresh Kumar or anybody else acted in the manner for the commission of the offence. The prosecution has also failed to prove that the appellant has intentionally aided by positive act or illegal omission for the commission of the offence. The prosecutrix was living with her parents. PW-3 Daulat Singh has stated that prosecutrix in the Panchayat said that she did not want to go to her parents’ house as they used to beat her. This gives an indication that prosecutrix was not feeling comfortable in the house of her parents. It is quite possible that prosecutrix of her own left her parents’ house on 9.6.1998 so as to join Suresh Kumar, what are the legal consequences of such joining with Suresh Kumar is a different matter but so far as the appellant is concerned she cannot be blamed for that. The prosecution has not led cogent, unimpeachable evidence so as to establish the charge of abetment against the …13… appellant. The learned Additional Sessions Judge has not properly appreciated the material on record and has erred in convicting and sentencing the appellant under Section 109 IPC read with Sections 363, 366, 376 and 34 IPC. The impugned judgment in the facts and circumstances of the case is not sustainable. 13. No other point was urged. 14. The result of the above discussion, appeal is allowed and judgment of conviction and sentence dated 20.2.2002, passed by learned Additional Sessions Judge, Solan, Camp at Nalagarh, under Section 109 IPC read with Sections 363, 366, 376 and 34 IPC, in Sessions Trial No.3- NL/7 of 1999, is set aside. The appellant is acquitted of the charge. The fine amount, if deposited by the appellant, be refunded to her. Bail bonds discharged. February 27, 2009. ( Kuldip Singh ), J. (soni)