State vs Prashanth and Others

A.S. Pachhapure, J.

The State has challenged the judgment and order acquitting the respondents for the charge under Sections 366 and 114 read with Section 34 IPC and in the other appeal, challenged the inadequate sentence on respondent-accused No. 1 for the offence under Section 363 IPC.

The facts reveal that the victim (PW2) was kidnapped by the first respondent (accused No. 1) on 17.02.2005 in the morning at 6.00 a.m. said to be at the instance of second respondent (accused No. 2) and therefore, on a complaint filed by PW3, the case was registered. After investigation, the chargesheet was laid against the respondents for the charge under Sections 366, 114 read with Section 34 IPC and under Section 363 IPC.

In the trial, PWs. 1 to 10 were examined and in their evidence, Exs. P1 to P28 and MO1 were marked. After recording the statement under Section 313 Cr.P.C., no defence evidence was led, but anyhow, Exs. D1 to D19 were admitted in the evidence of cross examination of PWs. 2 and 5. The Trial Court though convicted the first respondent for the charge under Section 363 IPC and ordered him to undergo imprisonment for 4 years with fine, acquitted both the respondents for the charge under Sections 366 and 114 read with Section 34 IPC. Aggrieved by the order of acquittal, the State has filed Crl. A. No. 802/2010 and sought for enhancement of sentence in the other appeal for the offence under Section 363 IPC.

Heard the learned High Court Government Pleader and learned Counsel for the respondents.

The points that arise for my consideration is:

"1. Whether the State has made out any grounds to warrant interference in the judgment and order acquitting the respondents for the charge under Sections 114 and 366 read with Section 34 IPC?

Whether the sentence of imprisonment for the offence under Section 363 IPC needs enhancement?"

Learned High Court Government Pleader submits that there is ample material on record to prove the offence under Sections 114, 366 IPC and the Trial Court committed an error in granting an order of acquittal. It is also his submission that PW2 was kidnapped by the first respondent at the instance of second respondent and though the Trial Court convicted the first respondent for the charge under Section 363 IPC, committed an error in granting only imprisonment for 4 years and fine of Rs. 5,000/-. He submits that the sentence needs enhancement as the offence is serious.

On the other hand, learned Counsel for the respondents support the order of Courts below and submits that no grounds are made out to warrant interference in the impugned judgment and order.

PW3 is the mother of victim (PW2). PWs. 6 and 7 are the eye witnesses. These are the only witnesses relevant for appreciation of the material placed on record for the purpose of considering the questions raised in these appeals. It is on 16.02.2005 in the evening that PW3 had gone to the shop of second accused. It is at that time the second accused stated about the love affair of PW2 and the first accused asked PW3 to offer PW2 in marriage, failing which, that her son would kidnap the victim (PW2).

So far as this evidence is concerned, it is PWs. 6 and 7 who are the eye witnesses with reference to the abetment and both these two witnesses have not supported the case of prosecution. On the aspect of abetment by the second accused, their evidence also reveals that PW3 had not gone to the shop of accused No. 2 on the relevant date and time. So except the evidence of PW3, there was no other material to prove the instigation or abetment by accused No. 2 to kidnap the victim by his son (accused No. 1). This interested version of PW3 was not accepted by the Trial Court to prove the abetment or instigation to commit the act of kidnapping. This is the reason as to why the Trial Court has granted an order of acquittal.

So far as the acquittal for the charge under Sections 366 and 114 IPC are concerned, the Trial Court has looked into the evidence of victim (PW2), the mother (PW3) and the evidence of PWs. 6 and 7 who are the eye witnesses. PW2 the victim does not say anything in her evidence as regards the intention to have sexual intercourse or to compel the victim to undergo marriage with accused No. 1. Though PWs. 6 and 7 are also the eye witnesses, on this aspect of the matter, they do not state anything as regards the intent of first accused to have sexual intercourse or marriage with the victim.

It is for the aforesaid reasons that the Trial Court has granted an order of acquittal for the charge under Sections 114 and 366 IPC read with Section 34 IPC. When the victim does not say anything about the intention of first accused and there is no other evidence to support the version of prosecution, I do not think that there is any error or illegality in granting an order of acquittal for the charges under Sections 114 and 366 read with Section 34 IPC.

This is an appeal against the order of acquittal. The appellate Court will be slow in interfering with such orders, even if the second view is possible, the one accepted by the Trial Court cannot be disturbed.

Further more, so far as the sentence for the charge under Section 363 IPC is concerned, the victim was a minor and it is for the said reason that the accused has been convicted for the charge under Section 363 IPC. The Trial Court has awarded imprisonment for four years and to pay fine of Rs. 5,000/-. The maximum punishment for the offence under Section 363 IPC is seven years. The Trial Court has assigned its own reasons to grant the sentence of imprisonment for four years. Looking to the reasons assigned, the nature of offence, the age of victim and also the accused, the circumstances in which the incident occurred, I do not find any justifiable grounds to even interfere with the sentence awarded.

Consequently, the appeals fail and they are accordingly, dismissed.