Uttarakhand High Court
State Of Uttarakhand vs Ashwani on 6 March, 2024
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
THE HON'BLE CHIEF JUSTICE MS. RITU BAHRI
AND
THE HON'BLE JUSTICE SRI ALOK KUMAR VERMA
6th MARCH, 2024
GOVERNMENT APPEAL No. 94 OF 2013
State of Uttarakhand ........Appellant
Versus
Ashwani ........Respondent
Counsel for the : Mr. J.S. Virk, Deputy A.G.
appellant /State assisted by Mr. Rakesh
Joshi.
WITH
CRIMINAL APPEAL No. 236 OF 2013
Ashwani ........Appellant
Versus
State of Uttarakhand ........Respondent
Counsel for the : Mr. D.N. Sharma, learned
Appellant. Amicus Curiae.
Counsel for the State : Mr. J.S. Virk, Deputy A.G.
assisted by Mr. Rakesh
Joshi, Brief Holder.
Judgment: (per Ms. Ritu Bahri, C.J.)
The State has come up with this Government
Appeal No. 94 of 2013, as against the judgment of
acquittal dated 06.05.2013, passed by the IIIrd Addl.
Sessions Judge, Haridwar, in Sessions Trial No.282 of
2010, "State Vs. Ashwani", whereby, the learned Trial
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Court has acquitted the respondent-Ashwani for the
offence under Sections 376, 366, 368 and 506 of the
IPC. However, the accused-respondent-Ashwani has
been convicted for three years for the offence under
Section 363 of the IPC, for kidnapping a minor girl from
the custody of her legal guardian.
2. In the Government Appeal No.94 of 2013, Mr.
J.S. Virk, learned Deputy A.G. for the State/appellant
has argued that the conviction under Section 376 of the
IPC could have been made.
3. However, a perusal of the medical report, at
page-6 of the paper book, shows that there were no
injuries on the private parts of the victim and the sample
of vaginal swab has been sent for histopathological
examination. Page 7 of the paper book is the ossification
report assessing the age of the victim and report of the
vaginal swab. As per the ossification report, at page 7
of the paper book, the age of the victim was about 18
years, and there was no spermatozoa seen dead or alive
on the vaginal swab. Hence, the offence per se is not
made out from this report. The judgment of the Trial
Court acquitting the accused for the offence under
Section 376 of the IPC has rightly been passed.
4. With regard to other offences under Section
366, 368 & 506 of the IPC, the victim was more than 18
years of age and she had accompanied with the
respondent-accused on 21st April, 2010 on a motorcycle.
She had gone from Roorkee to Haridwar. Subsequently,
on a complaint made by her father, she was recovered
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on 22nd April, 2010 and an FIR, Ext.Ka.7-page 8, was
registered on 21st April, 2010 under Sections 363, 366A
and 506 of the IPC. The victim was recovered on 22nd
April, 2010.
5. The complainant was the father of the victim.
The charges were framed against the accused-Ashwani
for the offence under Sections 366, 376, 368 and 506 of
the IPC.
6. The victim had appeared in the witness box as
PW2. She has stated in her statement that she was
taken by the accused on 21.04.2010 on a motorcycle.
She was recovered from the possession of the accused
on 22.04.2010. She has further stated that the accused
had committed rape upon her. The victim in her
evidence has stated that she knew the respondent-
accused, as the victim was in visiting terms with the
sister of the accused. She had stated that after the
school got over on 21.04.2010, the accused came on the
motorcycle and picked her on the pretext that he will
drop her back. She was recovered on 22.04.2010.
7. For making of an offence under Section 366
IPC, it is necessary that the abduction of a woman
should be done with an intent to compel her to marry
against her will, or to force or seduce her to illicit
relationship. This is what has been laid down by the
Hon'ble Apex Court in a case of Rajak Mohammad Vs.
The State of Himachal Pradesh as reported in (2018)
9 SCC 248.
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8. In the present case, as per the medical
evidence given, the victim was more than 18 years of
age and even as per the report, at page-7, there was no
spermatozoa seen on the vaginal swab. So the allegation
under Section 376 of the IPC is also not made out. If
the offence under Section 376 IPC is not made out, the
offence under Section 366 of the IPC cannot be made
out. Offence under Section 368 of the IPC is also not
made out, because the victim has gone with the
accused-respondent with her own consent as she was
more than 18 years of age. The complaint was made by
her father. The victim has stated in her evidence that
she has gone with the accused with her own will.
9. The judgment of acquittal is rightly based on
appreciating the evidence on the correct perspective.
Hence, the Government Appeal (GA No.94 of 2013) is
dismissed. The judgment of acquittal passed by the Trial
Court is hereby affirmed.
10. As far as Criminal Appeal No. 236 of 2013,
"Ashwani Vs. State of Uttarakhand" is concerned. Since
the appellant is not represented by any counsel, the
Court appoints Mr. D.N. Sharma, as an Amicus Curiae to
assist the Court in this criminal appeal.
11. As per the observation made by this Court
while dismissing the Government Appeal No.94 of 2013,
in the present case since the victim was more than 18
years of age as per the ossification report and she was
known to the accused being a neighbour. The victim was
in visiting terms in the house of the accused, as the
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sister of the accused was teaching her. Being 18 years of
age, the victim accompanied with the accused on the
motorcycle. It is not the case of the State that the
victim resisted on the motorcycle. There is no evidence
that any stuff/tablet was given to the victim so that she
became unconscious. As per the statement of the
victim, some tablets were given and she became
unconscious. Even this stand cannot be accepted as she
was going on a motorcycle and after becoming
unconscious, she could never have sat in the motorcycle
and travel with the accused. The offence under Section
363 of the IPC will only be made out, if the girl is minor
and she is taken from the company of legal guardian
against her will.
12. Thus, the Criminal Appeal No. 236 of 2013 is
allowed. Judgment and order dated 06.05.2013, passed
by the IIIrd Addl. Sessions Judge, Haridwar, in Sessions
Trial No.282 of 2010, "State Vs. Ashwani", convicting the
accused under Section 363 of the IPC is set aside. The
accused-Ashwani is on bail. His bail bonds are cancelled
and sureties are discharged.
13. Let the record of the case be sent back to the
Trial Court for compliance.
_________________
Ritu Bahri, C.J.
_________________
Alok Kumar Verma, J.
Dt: 6th March, 2024
Shiv/JKJ
