1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 720 of 1996 Decided on: May 15, 2010. State of H.P. ..Appellant. Versus Tufanveer & Another ..Respondents Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr.Justice V.K. Sharma, Judge. Whether approved for reporting? Yes/No. For the Appellant : Mr. Vivek Thakur, Additional Advocate General with Mr. Rajesh Mandhotra, Deputy Advocate General. For respondent : Ms. Uma Maiyta, Advocate. No.1. Justice R.B. Misra,J (Oral). The present Criminal Appeal has come for adjudication after the grant of leave to appeal against the impugned judgment dated 1.1.1995 passed by learned Sessions Judge, Solan, H.P. in case No. 22-S/7 of 1994 under Section 366 and 363 of IPC acquitting the alleged respondents. 2. In order to adjudicate the present appeal, it is necessary to give the factual background of the case. The facts giving rise to the present case are that the prosecutrix Kumari Bhagwanti, aged about 17 years, daughter of Smt. Sumitra (PW.1), resident of Dharampur, Tehsil Kasauli, District Solan, Himachal Pradesh, left her home on 23.1.1993. The alleged accused Tufanveer was residing in the neighbourhood of Smt. Sumitra (PW.1) and was working as a labourer with resin contractor Subhash Chander. On November 23, 1993 the 2 alleged accused Tufanveer left his residence at Dharampur early in the morning at about 4 A.M. whereafter the prosecutrix Kumari Bhagwanti also left her residence by telling her mother that she was going to answer the call of nature. However, the prosecutrix did not return thereafter. On getting suspicious, her mother Smt. Sumitra (PW.1) contacted Kishori Lal, an employee of the contractor Subhash Chander, and came to know that accused Tufanveer was also missing from his residence as well as from the place of his work. Smt. Sumitra (PW.1) thereafter made efforts to trace her daughter, but to no avail. Accordingly, she lodged the FIR Ex. PA on November 30,1993 at Police Station, Dharampur against the accused Tufanveer. 3. The investigation of the case was conducted by Head Constable Bansi Lal (PW.12), ASI Baldev Ram, (PW.13), ASI Phool Chand (PW.14) and Shri Ratti Ram Thakur, (PW.15). It was found during the investigation of the case that the alleged accused Tufanveer first took the prosecutrix to his native place in village Saraban (Majhin) in Tehsil Khundia, District Kangra, Himachal Pradesh. He kept her there at his house for some time alongwith his wife Smt. Kanta Devi (PW.6). Thereafter, he took her to Shimla Puri in Ludhiana in the State of Punjab. The accused took her there to the house of Smt. Devki Devi (PW.7) and her husband Maksudan (PW.8). Smt. Devki Devi and her husband kept the alleged accused Tufanveer and Kumari Bhagwanti at their house for 15-16 days. During this period, Tufanveer got some private employment at Shimla Puri in Ludhiana and started living with the prosecutrix by taking on rent residential accommodation from one Sardarji. When the prosecutrix used to be left alone at her residence in the absence of alleged accused Tufanveer, the co-accused Smt. Manjit Kaur, who was 3 residing in the neighbourhood, used to come to the prosecutrix Kumari Bhagwanti and ask her to marry a relative of Smt. Manjit Kaur. 4. It was further revealed that prosecutrix Kumari Bhagwanti, on the instigation of Smt. Manjit Kaur the co-accused, ran away from there with one Kali Parshad (absconding accused ) and thereafter neither Kali Parshad nor Kumari Bhagwanti could be traced. However, a pair of wearing suits of the prosecutrix Ex. P1 and Ex. P2 alongwith one dupatta Ex. P3 and comb Ex. P4 were found by the Investigating Officer Baldev Ram (PW.13) at the house of accused Tufanveer in village Majhin in District Kangra which were identified by the mother of prosecutrix to be belonging to the prosecutrix. They were accordingly taken into possession vide Memo Ex. PB. They were identified by Smt. Sumitra Devi in the presence of the Executive Magistrate Shri J.C. Sharma (PW.9) also vide report Ex. PC and certificate Ex. PC/1 issued by the Executive Magistrate. 5. The Trial Court framed charges against the accused under Sections 363 and 366 IPC and against the co-accused Smt. Manjit Kaur under Section 366 read with Section 109 IPC.In order to prove the prosecution case, the prosecution has examined as many as 16 witnesses. Whereas, alleged accused have denied the allegations and had shown their innocence. 6. From the perusal of record, prosecution witnesses and from the testimony of Smt. Sumitra Devi (PW.1), mother of Kumari Bhagwanti, prosecutrix, it appears that Kumari Bhagwanti was 21-22 years of age on 22.5.1995, thereby Kumari Bhagwanti prosecutrix was definitely above the age of 18 years on November 23, 1993 i.e. date of incident, when she was alleged to have been abducted or kidnapped. We also notice that the allegations against Smt. Manjit 4 Kaur, while accused Tufanveer and prosecutrix Kumari Bhagwanti were residing in Shimla Puri at Ludhiana, co accused Manjit Kaur had been instigating Kumari Bhawanti to elope with one of her relative. Prosecutrix has never appeared before the Court and never examined by the Court. In view of the testimony of Smt. Devki Devi (PW.7) and her husband Maksudan (PW.8) it could be seen that Kumari Bhagwanti was told by Smt. Manjit Kaur, co-accused that she should marry to one of her relative. 7. We also notice that there is virtually no evidence against alleged co-accused Manjit Kaur, as such in what way she was responsible/accountable for taking away Kumari Bhagwanti. We do not find any material on record, or anything from the testimonies of the prosecution witnesses that alleged co-accused Manjit Kaur could be said to have committed any offence under Section 366 read with Section 109 IPC. 8. So far other alleged accused Tufanveer is concerned, one aspect that the clothes of the prosecutrix were said to have recovered from the house of alleged accused Tufanveer at the instance of wife of the alleged accused Tufanveer, as such, Tufanveer was said to be involved in the alleged offence. Second aspect was that the clothes of prosecutrix Kumari Bhagwanti was said to have recovered at the instance of her mother who provided the clothes saying that such clothes were in the house of alleged accused Tufanveer. However, Smt. Sumitra (PW.1) makes it abundantly clear that articles and the clothes, which were not produced by the wife of the alleged accused Tufanveer but were produced by the mother of the prosecutrix, and were recovered from her own house. 5 9. In order to link the alleged accused Tufanveer with the said incident, only aspect could be noticed that alleged accused Tufanveer and prosecutrix were seen together in village Majhin in District Kangra and also in Shimla Puri in Ludhiana. Sh. Surat Ram (PW.2) who is a resident of village Gori, near the village of the prosecutrix, has stated that on 23.1.1993, he saw the accused Tufanveer going on the way and the prosecutrix was following him. Shri Jai Ram (PW.4) who is a resident of village Majhin in District Kangra, has stated that alleged accused Tufanveer has brought a girl to his house. However, he is unable to say that the said girl was the prosecutrix only. Shri Raj Mal (PW.5) has also stated that Tufanveer, the alleged accused has brought a girl, however, he too was unable to say about the identity of the girl. Smt. Kanta Devi (PW.6) wife of alleged accused Tufanveer, however, has not supported the prosecution version. Smt. Devki Devi (PW.7) and her husband Maksudan (PW.8) had only stated that alleged accused Tufanveer has brought the prosecutrix to Shimla Puri in Ludhiana during such time, but both of them i.e. PW.7 and PW.8 are definite that such girl was prosecutrix Kumari Bhagwanti and none else. 10. On analyzing the material on record, we note that in any case the prosecutrix Kumari Bhagwanti was not below 18 years of age, however, could have been seen off and on with the alleged accused Tufanveer. However, testimony of none of the prosecution witnesses inspires confidence and definitely reveals that Kumari Bhagwanti prosecutrix was being taken by Tufanveer, the alleged accused against her sweet will and she was definitely being persuaded by Manjit Kaur for agreeing her to marry one of her relative. 6 11. Statement of Kumari Bhagwanti prosecutrix could not be recorded by the Court as the prosecutrix was not available. In absence of the testimony of the prosecutrix and in view of the lack of proper material from the testimony of other prosecution witnesses to link the chain of offence with the alleged accused, we are of the considered view, that the prosecution has failed to prove its case against the alleged accused beyond all reasonable doubts. The Trial Court has rightly come to the conclusion regarding acquitting the alleged accused. In view of the aforesaid facts and circumstances, the present criminal appeal being devoid of any merit is dismissed. ( Justice R.B. Misra ), Judge May 15, 2010 ( Justice V.K. Sharma ), (Purohit) Judge