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Manohar v. State Of U.P. - CRIMINAL APPEAL No. 2240 of 1981 [2006] RD-AH 18811 (7 November 2006)


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Criminal Appeal No. 2240 of 1981

Manohar ...............................................................Accused



State of U.P...........................................................Respondent

Hon'ble M. Chaudhary, J.

This is a criminal appeal filed on behalf of the accused appellant from judgment and order dated 22nd of September,1981 passed by IV Additional Sessions Judge, Pilibhit in Sessions  Trial No. 28 of 1980 State vs. Manohar acquitting the accused under section 363 IPC but convicting him under section 366 IPC and sentencing him to  six months' rigorous imprisonment and a fine of  Rs.500.00 thereunder.

Brief facts giving rise to this  appeal are that  at 9:30 a.m. on 8th of  September, 1979 Ganga  Ram lodged an FIR at police station Barkhera  District Pilibhit  alleging that he was  resident of village   Jadopur within the limits of   police station Barkhera District Pilibhit. He married his daughter Nanhi aged  about 15 years   with  Chheda  Lal resident of village  Didhauna within the  limits of police station Bisalpur, District Pilibhit some three years ago and she was living   at his house  as her gauna ceremony had  not taken place. Some 15 days  ago one  Manohar  resident of same village  Jadopur  kidnapped his minor daughter   Nanhi knowing  that  she may forcibly be seduced for illicit intercourse.  Ganga Ram and Shisha  Singh residents of village  Jadopur  saw  Manohar   taking Nanhi with him.   He kept  searching  for his daughter  but he could not  find any trace of her.  It appears  that   on 8th of  October, 1979 Manohar   taking  Nanhi was  going  along the canal side at Piparia Medna and  sighting  a sub-inspector she ran towards  him and that  sub-inspector tried to catch hold of  Manohar but he succeeded in making  his escape good.  Then that  sub-inspector  handed  over  Nanhi  to her  father  Ganga Ram.

Nanhi was got medically examined  by Dr  Lakshmi Devi, Superintendent, District Women's Hospital, Pilibhit on 8th of  October at  4:45 p.m.. She  did not  find  any injury  on her person.  However she mentrioned in the report that  her vagina  admitted two fingers easily. Her radiological examination revealed that  she  was  about  16 years of age.

After completing investigation the police submitted charge sheet  against the accused  accordingly.

After framing of  charge the prosecution  examined  Nanhi ( PW 1) and Ganga Ram ( PW 2) in its support. PW 3 Sri Raja Ram Jatav, SDM Jhansi  who recorded statement of  Nanhi under section 164 Cr.P.C. on 12.11.79 proved the same. PW 4 Dr Lakshmi Devi who medically examined Nanhi proved the medical report ( Ext ka 3). She also proved the radiological report. PW 5  constable  Mahendra  Pal Singh  proved  check report  prepared  by HM Gajraj Sharma on the basis of written  report   handed over to him at the police station and  entry regarding registration of the crime in GD made by him (Exts ka 6 & ka 7).

  The accused  pleaded not guilty denying  the  alleged occurrence  altogether  and stating  that  due to animosity  with   Dharajeet, cousin of Ganga Ram he was implicated in the case falsely.

On an appraisal of  evidence  on the record learned trial judge held the accused  guilty of offence punishable  under section 366 IPC and  convicted and sentenced him as  stated above.

Feeling  aggrieved   by the  impugned  judgment  the accused  appellant   preferred this appeal for redress.

Heard  Sri H.L. Pandey, learned  counsel for the   appellant  and  Sri   Navin Shukla, learned  AGA  for the  State respondent.

After  going  through the   impugned judgment and record of the  case  the court is  reluctant  to agree with the finding of  conviction recorded by the trail judge against the  accused appellant.

Testimony of PW 2  Ganga  Ram, father of  Nanhi is more of less of formal nature as he proved FIR of the alleged kidnapping of his daughter Nanhi lodged by him at the police station. Now remains the sole testimony of PW 1 Nanhi.  She deposed that the alleged evening after sunset  Manohar  came to  her  house; that at that time her father had gone to some  Baba and Manohar  took her   forcibly from  the house  threatening her that he would  shoot her and her  father both; that  for about 8-10 days  he kept visiting with her to his  relations and that  one day he was   taking her   along the canal side at  Pipria Medna; that  she  saw a sub-inspector and she ran to him and that that sub-inspector tried to catch hold of  Manohar but he succeeded in making escape good.  Testimony of this witness Nanhi does not inspire confidence in its truthfulness for the following reasons: (i) She  deposed that the alleged evening  after sunset  Manohar  took her  forcibly from her house by hauling her and she went with him from  her house raising cries.  She also stated that several persons  had come out from their houses though in the same breath she stated that  none came out of his house.  However a perusal of her statement  recorded by the  SDM Bisalpur goes to show that she  stated therein that  at about 4-5  p.m. the alleged  evening  Manohar  came to her  house and  took her forcibly with him by pulling  her at pistol point. It is incredible rather  improbable that  Mahohar  took her with him forcibly in the evening and she went raising  cries and none of the co-villagers met her  in  the village abadi. Had  she   been going  with Manohar raising cries in the evening  some of  the co-villagers  must have  met  her on the way and offered  resistance. ( ii) She  stated in her cross-examination that  when she  was  got married she was about 15 years of age. She  herself stated that  the alleged incident of kidnapping took place after  three years of her  marriage.  Thus according to  Nanhi herself  at the time of alleged  occurrence she  was  above  18 years of age. (iii) She stated that a sub-inspector  recovered her   when  Manohar   was taking her along the canal side at Pipria Medna and that the sub-inspector  took her  to her village  Jadopur and handed  over  her to  his father  Ganga  Ram the same day. However, a perusal of the record goes to show that on 8th of  October, 79 she was sent from the police station to  District  Women's Hospital Pilibhit where she was got medically examined by Dr  Lakshni Devi and that  she  was handed over to  her father  Ganga Ram in his supurdagi on 12th of  October, 1979 ( Exts ka 3 & ka2).  (iv)A perusal of the  statement of this witness Nanhi goes to show that  she   gave   evasive  answers  to  several questions  which she could  have answered. (v) A perusal of the  FIR goes to show that  Ganga  Ram son of  Khyali and  Shisha  Singh  had seen  Manohar   taking away his daughter  Nanhi but neither of these two witnesses was examined by the prosecution in its support. (vi) The sub-inspector who allegedly  saw Nanhi with  Manohar at the canal side  on 8th of  October, 1979 and recovered  her  has not  appeared  as a witness to support the prosecution case.

For the  foregoing reasons, this  Court is  reluctant  to place implicit reliance on the sole testimony of  PW 1 Nanhi. Thus the prosecution  has failed to  bring the charge  home to the accused  beyond reasonable doubt. The Court therefore finds that  the impugned judgment  and order passed by the  trial judge is based on  faulty appreciation of evidence which cannot be sustained and is liable to be  set aside.

The appeal is allowed and the impugned judgment  and order is hereby  set aside.  Accused  Manohar  is  acquitted.  He is  on bail.  His bail bonds are hereby discharged.

Judgment be certified to the  Court below.

Dated: 7th of  November, 2006

Crl Appeal No.2240 of 1981


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