Prem Chand vs The State
1986 Latest Caselaw 243 Del

JUDGMENT

1. By order dt. 2-4-1976 accused Prem Chand and Hari Singh both residents of Nai Basti, Modi Nagar, U.P. were charged to stand trial for the commission of offence under Ss. 363/366 of Penal Code on the allegation that on 15-1-1975 at about 4/5 a.m. at Gali No. 11, Nai Basti, Anand Parbat, New Delhi they in furtherance of their common intention kidnapped Kumari Nirmala, a minor girl, then under the age of 18 years, from her lawful guardians, by means of criminal intimidation that she would be killed and/or with the intention that she may be compelled to marry accused Prem Chand against her will.

2. This charge is the result of the prosecution case that accused, Prem Chand and his brother, Ram Pal along with his wife, Bimla lived together for some time as a tenant in a part of house No. 48/3, Gali No. 11, Nai Basti, Anand Parbat, New Delhi. This house belongs to Manohar Lal. During their stay Bimla, wife of Ram Pal used to tell prosecutrix, Nirmala that her father had 7 daughters besides two sons and would not be in a position to marry her in a suitable family. She insisted that the prosecutrix should marry the accused, Prem Chand. With that end in view she managed to bring the prosecutrix from her house for a cinema show. After seeing the picture they compelled the prosecutrix for a photograph with the accused Prem. After some time the accuse along with Bimla vacated the house and started living elsewhere. It is the case of the prosecution that on 14-1-1975 the accused, Prem sent a message to the prosecutrix that she should meet him during the night time in the factory where he was employed. Accordingly on 15-1-1975 at about 4 a.m. when Manohar Lal and Lal Ram, the father and the brother of the prosecutrix were not present at their house, Nirmala left her father's house along with Rs. 11,000/- which Manohar Lal had kept in the Parchhatti of the house. The prosecutrix came to the bus stand where she met Bimla, wife of Ram Pal. From there the prosecutrix was taken to Modi Nagar. With the help of Hari Singh the prosecutrix was forced to accompany them to village Mandwar. On learning about the disappearance of Nirmala her father, Manohar Lal suspected that she would have been taken by accused, Prem. He along with his other relatives went to the factory where accused Prem was employed but could not find his daughter there. He enquired from Prem about the whereabouts of his daughter but could not get a satisfactory reply. On the next day he lodged a report with the police. S.I. Kulwant Rai Verma was entrusted with the investigation of the case, who arrested Prem and recovered the girl from the house of one Smt. Raj Kumar. The Investigating Officer, however, could not recover the amount of Rs. 11,000/- alleged to have been taken by the prosecutrix along with her. S.I. Kulwant Rai Verma got the statement of the prosecutrix recorded under S. 164 of the Cr.P.C. As Bimla declined to get herself medically examined, she was not medically examined and after completing the investigation filed the challan on the basis of which the accused were charged.

3. In support of their case the prosecution examined as many as 9 witnesses including prosecutrix, her mother, her father and the grandfather. They also succeeded in placing the requisite record for proving the birth of the prosecutrix from the Municipal Corporation of Delhi. The remaining witnesses are of formal nature. Both the accused in their statement under S. 313 of the Cr.P.C. denied the allegations. According to them the parents of the prosecutrix in fact wanted to marry her to Prem, to which they did not agree and had to vacate their house. They also denied having taken the prosecutrix from her house or confining her in another house for the purpose of getting her married to the accused.

4. The learned Additional Sessions Judge however, placed reliance on the testimony of the prosecution witnesses and convicted the accused, Prem for the offence charged and sentenced him to undergo rigorous imprisonment for a period of one year and a fine of Rs. 500/-, in default of payment of fine the accused to further undergo rigorous imprisonment for a period of 3 months under each count. Accused, Hari Singh was acquitted on account of insufficient evidence.

5. Even though the learned counsel for the appellant has not cared to put in appearance in spite of this case being only the daily board for the last about a month, I have heard the arguments of the learned counsel for the State and gone through the record carefully.

6. The first and foremost ground urged in the grounds of appeal is the non-recovery of a sum of Rs. 11,000/- alleged to have been stolen by the prosecutrix from her house at the time of living the house. It is alleged that such a huge amount could not have been available with Manohar Lal, who was engaged in the business of selling vegetables and could not have kept it on the Parchhatti, an obscure place. It is not denied that in spite of their best efforts the Investigating Officer could not recover this amount either from the prosecutrix or from the accused at the time of their arrest or during the course of the search of the premises. No explanation is forthcoming as to where this amount has come from or spent. Furthermore no active role is attributed to the accused, Prem. Admittedly on the day of the alleged occurrence he did not meet the prosecutrix or escort her to Modi Nagar or a place in village Mandwar. It is also not established on records as to how and through whom the accused happened to send a message to the prosecutrix for meeting him in his factory. This material link in the prosecution story is missing. Furthermore accused, Prem was arrested from his place of service and not from the place where the prosecutrix was recovered. It appears that he was not instrumental either in the abduction of the prosecutrix or the prosecutrix having lived with him at any point of time. The only circumstance that the accused along with his brother and sister-in-law, at one time, lived in the house of the prosecutrix and came to know of her, by itself cannot bring the case within the four corners of Ss. 363 and 366 of the Penal Code. There is yet another circumstance which goes in favor of the accused. Even after the prosecutrix was recovered from the village Mandwar she refused to subject herself to medical examination. If the accused had the intention to marry her against her wishes as alleged by the prosecutrix there was all the more reason for him to have committed sexual intercourse for which the prosecution has not placed any material on the record.

7. As regards the age of the prosecutrix the evidence led by the prosecution is not convincing. Oral testimony of her mother, father and grandfather is not only contradictory but also does not find any corroboration from any other source. The birth certificate of the prosecutrix or the certificate from the School where she was studying have not been produced. This very material evidence could have been procured and made available to the court. But for the reasons best known to the prosecution they have not been able to collect the same thereby creating a doubt in the mind of the court regarding her age. Even otherwise she, at the time of the alleged occurrence, had attained the age of discretion and the circumstances further show that she herself was instrumental in leaving the house of her father at the early hours of 15-1-1975 when admittedly there was no threat or inducement from any quarter. All these facts taken together leave no doubt in my mind that the accused, Prem was not responsible for the prosecutrix leaving her house and cannot be said to have committed the offence under S. 363/366 of the Penal Code.

8. As a result of the above discussion I accept the appeal. The accused is on bail. His bail bond is discharged.

9. Appeal allowed.