BHAKTI RAM PANDEY Vs. STATE

JUDGEMENT

(1.) AGGRIEVED by a judgment dated 31.1.2005 of learned Additional Sessions Judge in Sessions Case No. 9/2000 arising out of FIR 257/99 registered at Police Station Kamla Market by which the appellant was convicted under Section 109 read with Section 376 IPC, he has filed the instant appeal. He was sentenced to undergo RI for seven years with fine Rs. 5,000/ - by an order dated 01.02.2005.

(2.) BRIEFLY stated the prosecution case as reflected in the charge - sheet was that on 10.07.1999 at around 1.25 p.m. when ASI Hari Parkash of Police Station Kamla Market was present at Kotha No. 56, First Floor, G.B. Road for investigation of a case, 'X' (assumed name) surfaced there and recorded her statement. Eleven other girls present also recorded their statements. In her complaint Mark 'A', 'X' implicated the appellant, Uma and Vishnu for committing various offence under Sections 363/366/368/372/373/376/342/506/109/120 -B IPC and Sections 3,4,5 and 6 ITP Act. After making endorsement (Ex.PW -7/A), the Investigating Officer lodged First Information Report. The victims were medically examined. Statements of witnesses conversant with the facts were recorded. The appellant along with Uma and Vishnu were arrested. Upon completion of investigation, a charge -sheet was filed against all of them for the commission of afore -said offences. By an order dated 4.5.2000 various charges were framed against the accused persons to which they pleaded not guilty and claimed trial. The prosecution examined seven witnesses to substantiate its case. In 313 statements, the accused persons denied their involvement in the crime and pleaded false implication. It is relevant to note that during trial, Vishnu expired and proceedings against him were dropped as 'abated'. After considering the rival contentions of the parties and appreciating the evidence on record, the Trial court acquitted Uma of all the charges. The appellant was also acquitted of the charges under Section 366 read with Section 368/376/506 IPC and Sections 4 and 5 of the ITP Act. State did not challenge the acquittal.

(3.) I have heard the learned counsel for the parties and have examined the file. Undisputedly, none of the victims of their own had lodged the FIR. When PW -7 (Hari Parkash) along with Ct.Balwan (PW -2) and PW -1 (Lady Ct.Krishna) was present in connection with investigation of a case whose particulars have not been disclosed at Kotha No. 56, G.B. Road, First Floor at around 1.25 p.m., 'X' lodged complaint Mark 'A'. Eleven more girls were recovered from the said 'kotha' and their statements were reduced into writing. At the time of recovery of the complainant and other victims from the 'kotha', no independent public witness was associated despite their availability. Undisputedly, the police officers used to visit the said 'kotha' in routine before that. PW -1 (Lady Ct.Krishna) admitted to have visited the said kotha on 7.7.1999 and thereafter before 10.07.1999. She further admitted to have participated in many raids conducted at Kotha at G.B. Road. None of the complainant or other witnesses came forward on 07.07.1999 to lodge any such complaint against the appellant. The Investigating Officer was unable to produce complainant 'X' for examination before the Court despite various opportunities granted. Contents of the complaint mark 'A', thus, remained unproved. The Investigating Officer also failed to produce other victims except PW -4 's' (assumed name). 's' herself had not lodged any complaint any time to bring police machinery in motion. Adverse inference is to be drawn against the prosecution for not producing prosecutrix/complainant and other victims.