IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL GOVERNMENT APPEAL NO. 1358 OF 2001 (Old No. 2376 of 1987) The State ……..Appellant Versus Dhan Singh & another ………. Respondents. Dated: June 12, 2008 Sri Tanuj Semwal, learned AGA for the appellant/State. Sri Dinesh Chauhan, learned counsel for respondent no.1. Ms. Geeta Parihar, learned amicus curiae for respondent no.2. HON. DHARMA VEER, J. This appeal preferred, under section 378 of the Criminal Procedure Code, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 15.06.1987 passed by Sessions Judge, Chamoli, in Sessions Trial No.02 of 1987, State Vs. Dhan Singh & another, whereby the learned Sessions Judge has acquitted the accused-respondent Dhan Singh for the charge punishable under Section 366 I.P.C. read with Section 34 I.P.C. and accused-respondent Ravi Dangwal for the charge punishable under Section 366 I.P.C. 2. I have heard Sri Tanuj Semwal, learned AGA for the appellant/State and Sri Dinesh Chauhan, learned counsel for respondent no.1 as well as Ms. Geeta Parihar, learned amicus curiae for respondent no.2. 3. In brief the prosecution story is that P.W.1 Smt. Dhanna Devi sent her eldest daughter Babita to market in the evening of 7.8.1986 to purchase vegetables. After passing of three hours, when Km. Babita did not return to her house then complainant Dhanna Devi along with Gopal Dutt Pant and Jiwan Lal Sah made search for her daughter. While doing search, when they were near the shop of respondent-Dhan Singh, then they heard the cries of Km. Babita. When they moved towards the place from where the cries came, then the room was found locked and respondent-Dhan Singh was guarding the said room. Then they got the room unlocked, where they found Km. Babita in the room of Dhan Singh. When the matter was enquired from Km. Babita, then she disclosed that when she was going on the street to make the purchase of vegetables, then the accused-respondent Ravi Dangwal called her while she was passing on the street in front of shop of respondent- Dhan Singh and then she came to the shop of Dhan Singh. There the accused-respondent Ravi Dangwal caught hold the hand of Km. Babita and took her inside the room and asked respondent-Dhan Singh to lock the door. The accused-respondent Ravi Dangwal induced Babita uttering that he would be taking her to Delhi and would marry her at Delhi. With the same averments, the F.I.R. was lodged by Smt. Dhanna Devi, mother of Km. Babita on 08.08.1986 at 12:30 P.M. in Police Station Karnprayag, District Chamoli, that F.I.R. is Ext.Ka.1. On the basis of this F.I.R., a Chik F.I.R. was prepared by the Head Moharrir Narayan Singh, i.e. Ex.Ka.6. The entry was made in the G.D., the copy of the G.D. is Ex.Ka.7. Thereafter, the investigation of the case was entrusted to the Investigating Officer, S.O. Bharat Singh Yadav. During the course of the investigation, the Investigating Officer recorded the statements of the witnesses and prepared the site plan of the place of occurrence, i.e. Ex.Ka.4. The I.O. also collected the documentary evidence about the date of birth of victim Km. Babita, which are exs.Ka.2 & Ka.3. After completing the investigation the Investigating Officer submitted that charge sheet before the court, i.e. Ex.Ka.5. 4. Thereafter, the Munsif Magistrate, Karanprayag committed the case to the court of Sessions under Section 209 Cr.P.C. after complying with the provisions of Section 207 Cr.P.C. 5. Learned Sessions Judge framed charge against the accused-respondent Ravi Dangwal on 6.4.1987 u/s 366 IPC. The charge was read over and explained to him who pleaded not guilty and claimed to be tried. The charge was also framed against the respondent-Dhan Singh on the same day i.e. on 6.4.1987 u/s 366 IPC r/w Section 34 IPC. The charge was also read over and explained to him, who also pleaded not guilty and claimed to be tried. 6. The prosecution in order to prove its case got examined P.W.1 Smt. Dhanna Devi, complainant of the case, P.W.2 Km. Babita, victim, P.W.3 Jeewan Lal Sah, P.W.4 Devendra Singh, P.W.5 Ghanshyam Pradhan, P.W.6 S.O. Bharat Singh, Investigating Officer & P.W.7 Narayan Singh, Head Constable Clerk, who prepared the chik F.I.R. 7. After that the statements of the accused- respondents were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to them in question from. They denied the allegations made against them. In reply to question no.3 Dhan Singh has stated that Babita was 20-21 years old. Respondent-Ravi Dangwal in reply to question no.3 has also stated that Babita was 20 years old on the date of the incident. In reply to question no.21 respondent Ravi Dangwal has stated that he was tenant in the house of Smt. Dhanna Devi (P.W.1) and Dhanna Devi and her daughters used to visit him room. Dhanna Devi had made a proposal for the marriage of her eldest daughter Babita with him but he refused to marry with Babita and had told her that his parents would not be ready for the marriage because he was a Christian. On this reply, Dhanna Devi had told him that she was thinking that he (Ravi Dangwal) was a Hindu and hence, she asked him to leave her house. In reply to question No.22, he has stated that thereafter he left the room of Dhanna Devi and had taken the room from accused- respondent Dhan Singh on rent. He also stated that due to this reason he has been falsely implicated in the said incident. He has also filed the love letters written by Km. Babita to him before the said incident and that love letter is Ex.1. 8. After hearing the counsel for the parties and appreciating the entire material available on record, the learned Sessions Judge, Chamoli, vide his judgment and order dated 15.06.1987 acquitted the respondent Dhan Singh for the charge punishable under Section 366 I.P.C. read with Section 34 I.P.C. and accused-respondent Ravi Dangwal for the charge punishable under Section 366 I.P.C Feeling aggrieved by the said judgment and order dated 15.06.1987, the State has preferred the present appeal. 9. To prove its case prosecution has examined P.W.1 Smt. Dhanna Devi, who has stated that on 7.8.1986 at 4:00 P.M., her daughter Babita had come to the market for the purchase of vegetables and when she could not come back to the house then she along with her neighbourers Jiwan Lal Sah, Gopal Dutt Pant and Devendra had gone in the market and they found Km. Babita in the room of respondent-Dhan Singh. She has further stated that accused-respondent Ravi Dangwal assured her daughter Km. Babita for the marriage and also to take her to Delhi. In her re-examination, she has stated that her daughter Km. Babita was born on 25.5.1971. In the cross-examination, she has stated that her marriage took place in the year 1964 and Km. Babita was her eldest daughter. She has further stated that Km. Babita had passed Class-V from Gairsain Primary School and she had failed twice in the High School Examination. She has further stated that she was planning to marry Babita with accused- respondent Ravi Dangwal but when she came to know that Ravi Dangwal was a Christian, then she refused to marry her daughter with him. 10. P.W.2 is Km. Babita, who has stated that on 07.08.1986 at 4-5 P.M. in the evening, she had gone to the market for the purchase of vegetables. When she reached nearby the shop of accused-respondent Dhan Singh, she was called by Dhan Singh and at that time accused- respondent Ravi Dangwal was also there. When she reached there, then respondent Ravi Dangwal caught her hand and took her in the backside of the shop where he asked her to marry with her and also told her that he would take her to Delhi. She also stated that accused-Dhan Singh brought a cup of tea for her and this drink gave a reeling head-ache and a feeling of semi-consciousness to her. In the cross examination she has admitted that the letter Ex.1 was written by her. 11. P.W.3 Jeewan Lal Sah, P.W. Devendra Singh and P.W.5 Ghanshyam are the witnesses who have also stated the same facts and narrated by P.W.1 and P.W.2. 12. P.W.6. Bharat Singh Yadav, Investigating Officer, who has investigated the matter and after investigation, he has submitted the charge sheet against the accused- respondents. 13. P.W.7 is Head Constable Narayan Singh Rawat, who has prepared the chik F.I.R. and also made the necessary entries in the G.D. 14. After that the statements of the accused- respondents were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to them in question from. They denied the allegations made against them. In reply to question no.3 Dhan Singh has stated that Babita was 20-21 years old. Respondent-Ravi Dangwal in reply to question no.3 has also stated that Babita was 20 years old on the date of the incident. In reply to question no.21 respondent Ravi Dangwal has stated that he was tenant in the house of Smt. Dhanna Devi (P.W.1) and Dhanna Devi and her daughters used to visit his room. Dhanna Devi had made a proposal for the marriage of her eldest daughter Babita with him but he refused to marry with Babita and had told her that his parents would not be ready for the marriage because he was a Christian. On this reply, Dhanna Devi had told him that she was thinking that he (Ravi Dangwal) was a Hindu and hence, she asked him to leave her house. In reply to question No.22, he has stated that thereafter he left the room of Dhanna Devi and had taken the room from accused- respondent Dhan Singh on rent. He also stated that due to this reason he has been falsely implicated in the said incident. He has also filed the love letters written by Km. Babita to him before the said incident and that love letter is Ex.1. 15. Learned AGA for the appellant/State has submitted that on the basis of the evidence discussed above, the case against accused-respondent Ravi Dangwal is proved under Sections 366 I.P.C. and also against Dhan Singh under Section 366 I.P.C. read with Section 34 I.P.C. The argument advanced by learned AGA is not as per the evidence discussed above. From the evidence as discussed above, it is proved that Km. Babita was having love affairs with respondent-Devi Dangwal before the said incident. The contents of the love letter reveals that Km. Babita was having love affairs with accused-respondent Ravi Dangwal and she wanted to marry with him. Thus, it is clear that she was not abducted or kidnapped by accused-respondent rather she might be consented party. Even if at all she had gone to market and she was in the market or in the shop of respondent-Dhan Singh along with Ravi Dangwal, there she was with her own consent, as reveals from the love letter Ex.1 and also from the facts and circumstances as discussed above. 16. Besides above, the date of birth of Babita as told by the P.W.1 Dhanna Devi to be 25.05.1971, also seems to be doubtful. P.W.1 Dhanna Devi has also stated in her statement that her daughter Km. Babita is Class-X failed twice and she has passed 5th Class examination, however the prosecution has not filed any certificate from the school about the date of birth of Babita, which also creates a doubt in the version of prosecution. According to P.W.1 Dhanna Devi, the date of birth of Babita is 25.05.1971, however on the other hand, accused-respondents have specifically stated that in their statements recorded under Section 313 Cr.P.C. that Km. Babita was 20-21 years old at the time of incident which also got supports itself from the statement of P.W.1 Smt. Dhanna Devi, who herself has stated that she was married in 1964 and Babita was her eldest daughter. These facts and circumstances clearly show that victim Km. Babita was more than 18 years on the date of incident and she was major on that date. Further, whatever the incident was happened, that was happened with the consent of both the parties. There is no evidence found in the file which may prove that victim Km. Babita was forcibly taken or kidnapped by the accused-respondents without her consent or without the consent of their parents or she was subjected to marry without her consent or with pressure of anybody else. Hence, it is clear that neither the element of enticing nor the element of abduction is proved in this case. As such, the prosecution has failed to prove its charge against the accused-respondent Dhan Singh under Section 366 I.P.C. read with Section 34 I.P.C. as well as against respondent Ravi Dangwal under Section 366 I.P.C. 17. Learned counsel for the respondents has further submitted that the F.I.R. in the present case is delayed. The argument advanced by learned counsel for the respondents has force. The incident in question took place on 07.08.1986 at 4-5 P.M. and victim Km. Babita was recovered at about 8 P.M. on the same day. However, the F.I.R. of the case was lodged on 08.08.1986 at 12:30 P.M. which is fatal for the prosecution. I am fortified in my view by the verdict of Hon’ble Supreme Court in the case of State of Karnataka v. Mapilla P.P. Soopi reported in (2003) 8 SCC 202. Reliance was placed on para-4 which is as follows:- “undue delay in lodging the complaint without acceptable evidence has also contributed to the doubt in the prosecution case. Hence, the High Court was justified in allowing the appeal.” 18. Learned counsel for the respondents further submitted that where two views are possible and one of the views is possible which was taken by the trial court, then at the appellate court shall not ordinarily interfere with the judgment of acquittal. Reliance was placed on paras 7 and 8 of a judgment rendered by Hon’ble Supreme Court in the case of Kalyan Singh v. State of M.P. reported in (2007) 3 SCC (Cri.) 173, which reads as under: - 7. The High Court while dealing with the matter, in our considered opinion, failed to apply the proper tests in deciding a case where a judgment of acquittal has been recorded. The views of the learned trial judge cannot be said to be wholly unsustainable. It is now well known that if two views are possible, the appellate court shall not ordinarily interfere with the judgment of acquittal. We do no, however, mean to lay down the law that the High Court, in a case where a judgment of acquittal is in question, would not go into the evidence brought on record by the prosecution or by the State but we would like to point out that even if the High Court reversed the judgment of acquittal recorded by the trial court, it is incumbent on the High Court to arrive at the conclusion that no two views are possible. 8. We, therefore, having regard to the fact situation of the instance case, are of the opinion that as two view are possible, the High Court should not have interfered with the judgment of acquittal passed by learned Sessions Judge. We, therefore, set aside the impugned judgment and allow this appeal. The appellant is in jail, he is directed to be released forthwith if not required in connection with any other case. 19. On the basis of the evidence discussed above, I am of the considered view that when one view is also possible as the view taken by the trial court, then as per the aforesaid judgment of Kalyan Singh (Supra), the view taken by the trial court must be accepted. Therefore, there is no reason to disagree with the view taken by the trial court on the basis of the evidence discussed above and, therefore, the prosecution has not able to prove its case against the respondents beyond reasonable doubt. 20. For the reasons as discussed above, I am of the view that the trial court was justified in acquitting the respondent-Dhan Singh under Section 366 I.P.C. read with Section 34 I.P.C. and also respondent/accused Ravi Dangwal under Section 366 I.P.C. 21. Therefore, the appeal preferred by the State/ appellant is devoid of merit and is accordingly dismissed. The judgment and order dated 15.06.1987 passed by trial court is accordingly confirmed. (Dharam Veer, J.) June 12, 2008 Rajeev Dang